Sitting of 3 December 1991

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

    KING'S CROSS RAILWAYS BILL
    Order for consideration read.
    To be considered on Thursday 5 December.

    KING'S CROSS RAILWAYS BILL
      CITY OF EDINBURGH DISTRICT COUNCIL ORDER CONFIRMATION BILL
        STRATHCLYDE REGIONAL COUNCIL ORDER CONFIRMATION BILL
        Considered; to be read the Third time tomorrow.
Oral Answers to Questions
  HEALTH

    NHS Capital Spending
    Mr. Moss: To ask the Secretary of State for Health what has been the average annual increase in national health service capital spending since 1978–79; and what was the average increase between 1973–74 and 1978–79.
    The Minister for Health (Mrs. Virginia Bottomley): National health service capital spending has increased by an average of 4·3 per cent. a year in real terms since 1978–79, compared with an average real terms fall of 6·7 per cent. a year between 1973–74 and 1978–79.
    Mr. Moss: I thank my hon. Friend for that reply. Will she confirm that that excellent national news is reflected in my constituency, which is served by three separate district health authorities which have invested more than £54 million in new hospital builds since 1979?
    Mrs. Bottomley: Not only can I confirm my hon. Friend's figures, I can go further and tell him that an additional £115 million has been invested by the three health authorities that his patients use in Cambridge, Peterborough, and West Norfolk and Wisbech. That is a real and practical example of investing in the health service for the future and of serving patients.
    Mr. Hinchliffe: How much of that capital spending was funded from the closure and sale of established hospitals during those periods?
    Mrs. Bottomley: I cannot give the hon. Gentleman that figure at the moment, but it is essential that we use NHS buildings as effectively as we can. Investing in capital does not mean preserving units that are no longer needed. There were 30,000 tuberculosis beds in this country before the
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    war, but we do not need TB beds now; we need day surgery and intensive care facilities, such as those that I opened yesterday when I visited a hospital in the constituency of the hon. Member for Peckham (Ms. Harman). That shows the side of the health service that the hon. Lady is not so keen to talk about—our investment in the future and our effective use of facilities and resources.

    In-patient Waiting Lists
    Sir Fergus Montgomery: To ask the Secretary of State for Health how many in-patients are waiting for treatment currently; and how many were waiting in March 1979.
    The Secretary of State for Health (Mr. William Waldegrave): There were 752,422 people waiting for in-patient treatment in March 1979 and 692,946 in March 1991—a drop of 8 per cent. However it is the time that patients wait that matters. Latest provisional figures for in-patients and day cases for September 1991 show that in the past six months the number of patients waiting over a year fell by 7 per cent. and the number waiting over two years fell by 16 per cent. This builds on the record reductions achieved last year. Comparisons with 1979 can be made only for in-patients. On that basis the number waiting over 12 months is now 27 per cent. lower than in March 1979. Details have been placed in the Library.
    Sir Fergus Montgomery: Does my right hon. Friend agree that those figures clearly show the progress that the Government are making? Will he confirm that in the north-west region the latest figures show a fall of 26 per cent. since last March in the number of patients having to wait more than a year? Are not those figures the best in the whole of England?
    Mr. Waldegrave: It gives me pleasure to confirm that my hon. Friend's region has been the winner in the past six months, and that waits of more than one year have been reduced by 26 per cent. while waits of more than two years have been reduced by 37 per cent.
    Mr. Gareth Wardell: Will the Secretary of State tell the House how many magnetic resonance imagers are available in England and Wales to provide essential diagnostic information, given that the town of Portland in Oregon has 14?
    Mr. Waldegrave: I do not have the figure to hand, although I can assure the hon. Gentleman that it is a great many more than in 1979. I will write to him.
    Dame Jill Knight: I thank my right hon. Friend on behalf of the west midlands, which is also high in the league table. The numbers waiting two years have fallen by some 31 per cent. in my area, and we are most grateful for that.
    Mr. Waldegrave: I can confirm that my hon. Friend is right —over two-year waits in the west midlands are down by 31 per cent. and over one-year waits are down by 24 per cent. That shows the real progress that is being made on the waiting lists initiative and towards fulfilling our commitment to get rid of all over two-year waits by next year.
    Ms. Harman: Can the Secretary of State point to any year in the past 10 in which the September in-patient

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    waiting list figures have not been higher than for every year under Labour? While he is dealing with waiting list figures, will he tell us more about the figures for day patients? Does he admit that the waiting list for day patients has shot up by 50 per cent? Does he also admit that for the first time in the history of the national health service, waiting lists for day patients and in-patients combined have risen above 900,000 people?
    Mr. Waldegrave: The hon. Lady persists—1 do not think that it is because she does not understand—in making the bogus comparison between in-patient and out-patient waits now and in 1979. I am proud that we have greatly increased the facilities for day-case treatment. That was right. Therefore, there are increasing numbers of people on the waiting lists for such treatment and they are being treated rapidly. I hope that she will welcome that —if she understands it, which I believe she does.

    Patients Charter
    Mr. Brazier: To ask the Secretary of State for Health what representations he has received from NUPE and COHSE on the patients charter.
    The Parliamentary Under-Secretary of State for Health (Mr. Stephen Dorrell): Two representations were received yesterday.
    Mr. Brazier: Is not it sad to hear that until yesterday no representations had been made on the patients charter by NUPE and COHSE? Does he agree that it shows that the unions do not represent their ordinary members who, in hospitals such as the Kent and Canterbury hospital in my constituency, strive for every possible improvement in care of the patient?
    Mr. Dorrell: My hon. Friend is to be congratulated. It is perhaps not entirely a coincidence that his question was due to be answered today and the representations from the two trade unions arrived in the Department yesterday. We know something about the views of Mr. Bickerstaffe because he gave a substantial interview to the New Statesman and Society recently. He did not mention the patients charter, but he gave us some other insights into his approach to the problems. He was asked:
    "What are the likely expectations of your members with Labour in power?"
    He answered:
    "We hope the national minimum wage—currently £3·40 an hour for 40 hours before stoppages—will rise."
    When asked what relationship there was between NUPE and Labour's leadership, Mr. Bickerstaffe said:
    "I meet with the leader, with John Smith, Robin Cook, when necessary."
    My hon. Friend might like to speculate about who decides when it is necessary.
    Mr. Canavan: Will the Minister pay tribute to the distinguished record of COHSE and NUPE in providing excellent standards of patient care over many years? That dates back to long before the Government's so-called patients charter was ever dreamt of. Will the Minister respond positively to COHSE's request for a ministerial meeting to discuss certain aspects of the patients charter?
    Mr. Dorrell: I will gladly give credit to the unstinting support that the staff of the national health service give to the principles of the NHS. Without it we could not possibly deliver the high quality of service that we do.
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    However, the role of COHSE, the trade union which sponsors the hon. Gentleman, in delivering that quality of care is, at best, marginal.
    Mr. Sayeed: Does my hon. Friend agree that it is regrettable that the same unions that stopped the sick from getting to hospital in 1978 and 1979 are showing the same callous disregard—or at least their leaderships are doing so —for the needs of patients? Does he hope that Labour Members of Parliament who are sponsored by COHSE and NUPE will prevail on those unions to put the patients first?
    Mr. Dorrell: Yes, I hope that the Labour party is anxious that reference to patients should be one of the priorities of the unions which claim to represent health service staff. In the same interview from which I quoted, Mr. Bickerstaffe went on to repeat the high priority that NUPE attaches to increasing the minimum wage—a proposal which the hon. Member for Livingston (Mr. Cook) has already said would cost the NHS between £400 million and £500 million.
    Mr. Campbell-Savours: Would the Minister work for £80 a week?
    Mr. Dorrell: Mr. Bickerstaffe said that he wanted to see that bill increased. He goes on to say:
    "We would like to have argued"—(Interruption.]
    Mr. Campbell-Savours: The Minister is a hypocrite.
    Mr. Speaker: Order. Even though that remark was made from a sedentary position, the hon. Gentleman must withdraw it.
    Mr. Campbell-Savours: Nobody in the House would work for £80 a week. I withdraw the remark.
    Mr. Dorrell: Mr. Bickerstaffe goes on to repeat:
    "We would like to have argued for a higher minimum wage, for example, but the party has said no, there are others —pensioners and so on.
    Even in that context, Mr. Bickerstaffe does not mention patients.
    Mrs. Heal: The health service unions, like members of the public, are worried that the commitments in the patients charter
    "to receive health care on the basis of clinical need, regardless of ability to pay"
    are being breached daily. The promises made have already been broken. Do not Conservative Members, the Secretary of State and his health team agree with the hon. Member for Birmingham, Edgbaston (Dame J. Knight), who said in a newspaper article that:
    "All in all, it was, and is, wrong to breach the principle that a health check within the NHS should be free"?
    The question that the Secretary of State must answer is —[Interruption.]
    Mr. Speaker: Order.
    Mrs. Heal: Conservative Members do not like to be reminded of what is going wrong. The Secretary of State has said that he wants a national health service that is well informed of people's needs and preferences. Does the Minister agree that people need and prefer a free eye test?
    Mr. Dorrell: Once again, the Labour Front Bench is raising the red herring of charges. The commitment to deliver a health service on the basis of clinical need and not

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    of ability to pay is common ground between both sides of the House. Any charge within the NHS requires a statutory authorisation. There are three important bases for such charges, and two of them were introduced by the Labour party.

    Air Ambulance Services
    Mr. Simon Coombs: To ask the Secretary of State for Health how many area health authorities now have (a) part-time and (b) full-time use of helicopters for air ambulance; and what advice his Department gives to area health authorities on the desirability of these services.
    Mr. Dorrell: Several ambulance services now use helicopters. It is the view of the regional ambulance officers' group that further development of air ambulances should await the outcome of the current evaluation of helicopter ambulances.
    Mr. Coombs: I am sure that the research being undertaken will show that air ambulances are a useful contributor to paramedical facilities within health authorities. However, will my hon. Friend consider the impact on residents in areas close to the landing pads for helicopters providing such services? Will he also consider the difficulties being experienced by some of my constituents in Swindon, who have a helicopter landing pad only 20 yds away from their back fence? That has been provided because it does not require planning permission. No doubt it is to the benefit of patients, but it is by no means to the benefit of residents.
    Mr. Dorrell: My hon. Friend raises an important matter. The local ambulance service in Wiltshire is to be congratulated on the innovative proposal that it has introduced—sharing the cost of a helicopter ambulance between the health authority and the police service. However, when a helicopter lands it can cause a disturbance to local residents. The health authority has recognised that and has sought an alternative and more convenient landing pad. Unfortunately, it did not get approval from the Civil Aviation Authority. I am sure that that issue is not dead and that the health authority will continue to look for more appropriate landing facilities.
    Mr. Kennedy: Is the Minister aware of the broad welcome that has been given to the development of such a service in various parts of the country? Is he further aware of the important contribution that it can make in large and more geographically remote areas, as it allows casualty access to larger regional hospitals in the event of mountaineering or road accident emergencies?
    Will the Minister examine how the system is working at the weekends? I gather that in some areas, where facilities are usually available from Monday to Friday, the lack of weekend facilities is causing anxiety. That is especially true for travelling, mountaineering and similar accidents, when weekends may be times of maximum need.
    Mr. Dorrell: The hon. Gentleman raises an important point. The patients charter sets out clearly the entitlement of a patient and the standard we seek to set for ambulance services. The charter does not specify 14 minutes in urban areas and 19 minutes in rural areas during weekdays; it sets that standard for seven days a week, 365 days of the
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    year. It is the responsibility of the regional ambulance officer to deliver that standard to all the people living in his district.

    GP Fund Holders
    Mr. Knapman: To ask the Secretary of State for Health whether he intends to relax the patient numbers criteria so that smaller general practitioner practices can apply to be fund holders.
    Mr. Waldegrave: I know that many general practitioners who are not eligible to join the scheme recognise the benefits of fund holding and wish to take part. I hope to be able to open the scheme to more practices soon. At present, small practices may group together to become fund holders.
    Mr. Knapman: My right hon. Friend is aware of the clear advantages to patients of fund-holding practices. That is being increasingly recognised, not only by doctors but by the British Medical Association and, possibly, by some Opposition Members. Does he appreciate the keen desire of many small practices to join these excellent schemes?
    Mr. Waldegrave: My hon. Friend is right. There is a growing consensus about the success of the scheme, and that runs right across the general practitioners taking part in it. The hon. Member for Livingston (Mr. Cook) is not exactly clear about his policy on these issues. I hope that that unclarity means that he is moving towards us.
    Mr. Loyden: Does the Secretary of State agree that there is a danger that the number of patients per doctor might have an effect on the eventual standard of treatment that patients receive? Is he carefully watching the changes that are taking place to ensure that the number of patients per doctor conforms with the ability to supply a good service?
    Mr. Waldegrave: Yes, we are assessing the whole fund-holding scheme jointly with the general medical services committee, the relevant committee of the BMA. The hon. Gentleman might recall that one of our successes has been to bring down average list sizes markedly since Labour was in power.
    Mr. Wolfson: Does my right hon. Friend agree that general practitioners, whether fund-holders or not, as a result of the new contract—which initially was often bitterly opposed—are now giving patients a much better service than they had in the past?
    Mr. Waldegrave: My hon. Friend is right, and that is not just his opinion. A recent independent poll on exactly that matter showed that already, within the first year, a significant number of patients of general practitioners recognised that they were getting better services than a year previously. The level of opposition that existed when my predecessor brought in the contract will be shown by history to have been wildly overstated. It has been a success.
    Mr. Rooker: In the context of smaller practices, I wish to raise with the right hon. Gentleman a subsidiary but related issue, that of the single-practice general practitioner. Does he believe that, even with massive commitment and dedication, it will be possible for the

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    large number of single-practice GPs in this country to measure up to the demands of the community care programme in 1993?
    I cite as an example the urban areas of the city which I partially represent—[Interruption.] I speak for all of Birmingham when I speak on this issue, and I am trying to raise an important matter in which there may be some common cause. There are 586 GPs in 270 practices, over a third of which are single practices. Even with their dedication and commitment, one must feel concern about their ability to measure up to the infrastructure needed for a viable community care programme.
    Mr. Waldegrave: I respect the hon. Gentleman's commitment to those matters, and he is right to point to one of the problems. In recent years there has been a move to much bigger primary care teams, which has generally been welcomed. Many dedicated single-handed practitioners remain, and we must ensure that that option remains so that GPs are free to practise how they wish. One of the strengths of the fund-holding scheme is that general practitioners can group together to use the benefits of the scheme. Therefore, the scheme can provide some of the back-up for single-handed practitioners without their losing the independence that they rightly value.

    National Health Service Expenditure
    Mr. Ian Bruce: To ask the Secretary of State for Health what is the percentage of gross domestic product spent on the national health service in 1991–92; what it will be in 1992–93; and what it was in 1978–79.
    Mr. Waldegrave: An estimated 5·6 per cent. of the United Kingdom's gross domestic product will be spent on the NHS this year, rising to 5·7 per cent. next year. In 1978–79, the NHS share of GDP was a full percentage point lower, at 4·7 per cent.
    Mr. Bruce: Does my right hon. Friend agree that not only has the Conservative party demonstrated that it is willing to spend a greater proportion of gross national product, but, by continuing to expand our economy, we have surpassed the Labour party bid at the 1987 election —when it said that it would increase spending on the national health service by 3 per cent.—by about a third?
    Mr. Waldegrave: It is important to note that if the pledge that the Labour party made at the last election had been carried through, dramatically less money would have been spent on health, for the reasons that my hon. Friend gave. That achievement represents a larger share of a larger national product and the Conservative party can be extremely proud of it.
    Mr. Nellist: Has the Secretary of State seen the item in The Independent yesterday about NHS spending on opted-out hospitals? It refers to a paper called "Personnel Policy and Practice", which advises the managers of all opted-out hospitals to sack renegades and subversives. They are defined as all those who do not share the values and goals of opt-outs. At Coventry's Walsgrave hospital, in virtually every ballot that was held, 80 to 90 per cent. of all doctors, nurses and health workers voted against opt-out. If they are all sacked, who will run the health service?
    Mr. Waldegrave: The hon. Gentleman actually threatened some of the staff in that hospital for carrying out Government policy. He was forced by the Leader of the Opposition to withdraw that threat, so he should be a little careful. He referred to an old paper that is regularly recycled by one of the unions. It is a little out of date. I direct the hon. Gentleman to the leader on the matter in the same newspaper today.
    Mr. Nicholas Winterton: Will my right hon. Friend consider that, although statistics are helpful, the important thing about the health service is the quality of care, and the outcome of the treatments that are given? It is important, especially in my area, to accept that Mersey has achieved dramatic reductions in health service waiting lists, for which Sir Donald Wilson should be given credit in Mersey and Mr. Peter Hayes for the part that he has played in Macclesfield. However, the quality of the service for the amount of money allocated and the outcome of the treatment are critical for the people of this country.
    Mr. Waldegrave: I strongly agree with my hon. Friend and I join him in paying tribute to the management of the health service in his part of the country. We are taking on Mr. McKeever from Crewe to help us with new waiting list initiatives in the Mersey region, and we are giving him £2 million to deal with some of the longer lists. We should be most proud that, despite the fact that our health service spends less wastefully than those in some other countries, our figures on, for example, perinatal mortality are better or just as good.

    Hospital Ancillary Services
    Mr. Salmond: To ask the Secretary of State for Health what representations he has received on the contracting out of hospital ancillary services; and if he will make a statement.
    Mr. Dorrell: The Government's further proposals for market testing hospital ancillary services are set out in the White Paper "Competing for Quality", and take account of representations received.
    Mr. Salmond: Can the Minister confirm that health boards have been issued with new instructions, both written and by meetings, to be responsive to the needs of private contractors? Is there any chance of the Government issuing similar instructions to ask health boards to be responsive to the needs of health service workers? How can a Government who claim to defend the national health service pursue that claim when the hidden agenda behind so many of the changes is to break the morale, commitment and solidarity of people who work in the health service? How can a Government at war with health service workers claim to be defending the NHS?
    Mr. Dorrell: The hon. Gentleman does not need to rely on my words to rebut every word that he has just said; he need only read the latest edition of the in-house magazine of the Confederation of Health Service Employees, where it is written:
    "The Mid-Glamorgan District Linen Service is efficient because it has no choice. In 1987, the service had to compete for the hospital's laundry contract for the first time and in 1993, it will have to submit another tender."
    The article quotes Mr. Jeff Chard, a former COHSE shop steward, as saying:

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    "At the moment, I have to use hospital staff like engineers to service the machines and do repairs. But eventually I'll be able to go to anyone I like if he's cheaper I'll have to get Dai Jones the carpenter from down the road instead." He went on —
    Hon. Members: Boring!
    Mr. Speaker: Order. It is in order for Ministers to quote, but I think they should do so briefly.
    Mr. Dorrell: Just two more sentences, Mr. Speaker. The article continues:
    "Competitive tendering was forced on to us and it's put a tremendous pressure on everyone. But it has made us more productive and more of a team—we all have to co-operate and pull together just to keep our heads above water."
    Mrs. Currie: Is not the key to good service in the health service, good management? Would not the worst thing that could possibly happen for any of our constituents or patients be for the Labour party to come to power and abolish competitive tendering? That would not only cost a great deal of money, but put power once again into the hands of the National Union of Public Employees and the Confederation of Health Service Employees, which could then decide how hospitals were to be run.
    Mr. Dorrell: My hon. Friend is precisely right. The compulsory competitive tendering programme has already saved the health service £630 million in England and £85 million in Scotland —enough to complete 225,000 hip replacements. The repeating saving on an annual basis is £156 million, which is used to increase patient care. It is that figure that the Labour party is committed to cut.
    Mr. Robin Cook: Does the Under-Secretary of State ever ask in relation to competitive tendering about the price patients have to pay in poorer food and dirtier hospitals? Does he not know that one in five of private contracts has ended in failure? Is he aware that the National Childbirth Trust recommends that mothers in maternity wards should clean the baths? Is he aware of the concern expressed by the Mental Welfare Commission for Scotland about the poor food supplied by a private contractor in my constituency? Does the right to a clean hospital or decent food figure anywhere in his patients charter, or does cutting costs always come first with the Government?
    Mr. Dorrell: Perhaps not surprisingly, the hon. Gentleman's question is a straight paraphrase from publications issued by COHSE and NUPE. The hon. Gentleman must answer this question: how can he argue that it is in patients' interests to move away from a system of competitive tendering and use that money to pay trade union members rather than to pay for extra treatment for patients?
    Mr. Gregory: Will my hon. Friend confirm that savings in ancillary services such as catering, cleaning and laundry go to benefit patients directly, not to the paymasters of the Labour party, COHSE and NUPE?
    Mr. Dorrell: Yes, competitive tendering is based on the simple proposition that health service managers are trained to manage health care institutions, not laundries or cleaning forces. It is surely better to use skilled laundry and cleaning managers to manage those services and to rely on
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    the skills of health care managers to manage the essential core activity of the health service —the provision of health care.

    NHS Trusts
    Sir Patrick Duffy: To ask the Secretary of State for Health what representations he has received in connection with applications for national health service trust status from within the Sheffield health authority.
    Mrs. Virginia Bottomley: Trent regional health authority received a wide variety of responses to the consultation exercise for the Sheffield applications which the Secretary of State took fully into account when making his decisions to grant NHS trust status.
    Sir Patrick Duffy: Is the Minister aware that now that clear decisions have been taken on trust status, anxiety in Sheffield relates to the likely impact of the Chancellor's autumn statement on the health authority's financial position next year and in the long term, and particularly the need for greater per capita funding given the number of elderly people and the levels of health inequality and social deprivation in Sheffield, particularly in Attercliffe?
    Mrs. Bottomley: I am pleased to hear from the hon. Gentleman that there is no more concern about trust status. There has been most impressive progress in Sheffield. I commend the annual report from the health authority chief executive, which shows that Sheffield is a centre of excellence for health. The hon. Gentleman need not look only to the health authority chief executive; he can ask the patients. A recent survey by Sheffield university showed that 95 per cent. of patients surveyed were either satisfied or very satisfied with the service that they were receiving at the Northern General hospital trust —an impressive result.
    The hon. Gentleman particularly asked about weighted capitation. He will know that the health service has an excellent settlement this year, with an additional £2·2 billion for the regions—an increase of 8·9 per cent., or 4·2 per cent. in real terms. Weighted capitation is expected to be a more equitable system of distribution, taking account of the young and the elderly. The precise allocation of resources within the region is a matter for the hon. Gentleman's regional health authority chairman, but I know that he will have confidence in the excellent work taking place in Sheffield, particularly in the light of its new health strategy.
    Mr. Roger King: Will my hon. Friend suggest that hospitals in the Sheffield health authority area considering trust status should visit the Walsall trust hospital in the west midlands, where they will discover that in the first three months of this year 1,100 more patients were treated than in the year before—a 13 per cent. increase? Is not that evidence that hospital trusts work?
    Mrs. Bottomley: If the citizens of Sheffield needed to go to Walsall, I am sure that they would do so, but they need look only to their own trust to see the remarkable progress already made. It has six more consultants, a new computerised axial tomography scanner, new plastic surgery beds and an additional surgical ward. I am delighted that in Walsall, as in the other trusts around the country, more patients are being treated more effectively and morale is good. The trusts are a great success.

    Local Authority Social Services
    Mr. Lofthouse: To ask the Secretary of State for Health if he will make a statement on the provision of local authority social services under the Chronically Sick and Disabled Persons Act 1970.
    Mrs. Virginia Bottomley: Local authorities provide a range of social services under section 2 of the Act, including assistance in the home, meals, equipment and adaptations, telephones, holidays and recreational facilities.
    Mr. Lofthouse: Why are the Government preventing local authorities from providing adequate services for the chronically sick and disabled? Is the Minister aware that if the Wakefield district council social services department had to stick to its standard spending assessment it would have to save a further £3 million this year on services for the chronically sick and disabled? Is she further aware that, like myself, each weekend many hon. Members meet many chronically sick and disabled constituents who are not receiving adequate services to enable them to lead a reasonable and respectable life? What do the Government intend to do about that?
    Mrs. Bottomley: I am pleased to be able to report to the hon. Gentleman that we have just had the first results of the monitoring arrangements for the implementation of community care and we are impressed with the practical schemes already being advanced to ensure that the frail and vulnerable, and particularly the chronically sick and disabled, receive the support that they need. The hon. Gentleman will want to know that during the past two years personal social services standard spending will have increased by nearly 33 per cent.—19 per cent. in real terms —which is more than adequate to allow for demography and renewed pressures on local authorities.
    Mr. Thurnham: Does my hon. Friend agree that voluntary groups and private providers can efficiently deliver services for the disabled? Will she instruct local authorities not to use all the extra funds for their own union-dominated monopoly services, so beloved by the Opposition?
    Mrs. Bottomley: There is little doubt that the work undertaken by the voluntary sector, and often by the independent sector, is of an extremely high quality. It is vital that local authority social services departments do not use the additional resources for a job creation scheme for their own staff. They are required to identify the best way of helping the frail and vulnerable and in many cases that will be by using the voluntary or the independent sector.
    Mr. Wigley: Does the Minister accept that those vitally important services that she described depend not only on her own Department, but on the Department of Social Services, on the Department of the Environment in respect of local government, on the Scottish Office and on the Welsh Office? Given the importance of those services from 1993, in the context of care in the community, will the Minister undertake an in-depth review to ensure adequate budgets for those services to ensure that there is no shortfall thereafter?
    Mrs. Bottomley: I greatly respect the hon. Gentleman's comments. If the individual is to receive a seamless service,
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    effective co-operation at local level is essential to ensure that the frail and vulnerable receive help from suitable services and health authorities, with the assistance of housing authorities. We in central Government are taking strenuous steps to make sure that we work effectively; similarly, it is vital that local and health authorities, together with general practitioners, make sure that they are ready for April 1993.
    Dame Elaine Kellett-Bowman: Does my hon. Friend the Minister agree that while Britain has the highest proportion of health costs funded by the public purse, the British public have shown their confidence in it by the fact that only 13 per cent. of them choose private treatment, compared with 25 per cent. in France, and 28 per cent. in Germany? [Interruption.] Will Opposition Members kindly keep quiet?
    Mrs. Bottomley: Once again, my hon. Friend identifies a vital point about public confidence in our national health service, which stems from the Government's investment in and support for it. My hon. Friend need ask only one question. If she or any of her friends become unwell anywhere else in the world, what would they do? They would make their way back home as fast as they could to receive the benefits of national health service treatment.
    Mr. Alfred Morris: How many disabled people, after being assessed for services under the Chronically Sick and Disabled Persons Act 1979, are now on waiting lists for the help that they need? At the latest date for which the Minister has figures, how many local authorities had reduced or removed services in cases where there was no diminution of need? How does the Minister react to the case, of which I have informed her right hon. Friend the Secretary of State, in which home help provision was withdrawn from an elderly couple, both of whom are severely and progressively disabled?
    Mrs. Bottomley: The right hon. Gentleman will be aware that there has been a steady and substantial increase in resources for all kinds of community care—be it day places for the mentally ill or for those with learning disabilities, or increased resources for home help. The right hon. Gentleman identified the way in which some home help services have been moving towards home care services. We are looking at that, but to suggest that there has been other than a clear and steady increase in available services would be a travesty of the truth.

    NHS Expenditure
    Mr. Day: To ask the Secretary of State for Health by how much spending on the national health service (a) in England and (b) in the United Kingdom will increase in 1992–93.
    Mr. Waldegrave: Total NHS spending is forecast to increase by £2·2 billion in England and by £2·8 billion in the United Kingdom next year. That means that, throughout the United Kingdom, the national health service will be spending roughly £100 million per day.
    Mr. Day: Is my right hon. Friend aware that the shadow Chancellor said recently that to repair what he unjustifiably called the Government's neglect of the national health service would require an extra £2billion in this year's autumn statement? Given that an extra £2·8

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    billion was found, has my right hon. Friend the Secretary of State received an apology from the right hon. and learned Member for Monklands, East (Mr. Smith), or have any of Labour's Front-Bench spokesmen for health offered to withdraw that allegation?
    Mr. Waldegrave: I wrote a number of letters to Labour's spokesman on such matters, asking him to clarify Labour's spending pledges. Some months later, he is still working on the reply, but doubtless I shall receive it sooner or later. Labour's spending pledges are in an equal muddle to its policy position, which was described, in two separate New Statesman and Society articles last week and this week as being meaningless.
    Mr. Eastham: Is the not Secretary of State continuously presenting a distorted view when he tries to convince the House that the Government are spending more on the national health service? Is it not a fact that with 560,000 people reaching the age of 65 this year and the elderly accounting for a larger proportion of the population, national health service provision is proportionately poorer, not better?
    Mr. Waldegrave: The hon. Gentleman is wrong. His difficulty is that his party has nothing to tell him about what it would spend if it were returned to power, which it will not be. That lack of leadership makes it difficult for him to do other than cavil at our figures. I sympathise with him.

    Competitive Tendering
    Mr. John Marshall: To ask the Secretary of State for Health what is the latest estimate of the savings from competitive tendering in the national health service.
    Mr. Dorrell: Total annual savings from competitive tendering of NHS ancillary services in the United Kingdom now amount to £156 million.
    Mr. Marshall: Does my hon. Friend agree that the abolition of competitive tendering and the introduction of a national minimum wage would rob the NHS of hundreds of millions of pounds and would lead to the cicsure of hospitals and the cancellation of operations? Would not such a course of action be as successful as the racing tips of the hon. Member for Livingston (Mr. Cook)?
    Mr. Dorrell: My hon. Friend is absolutely right. The Labour party is not committed to any specific increase in health service expenditure, but it is committed to a specific cut in the proportion of NHS expenditure used for patient care. My hon. Friend correctly identifies that, and the hon. Member for Livingston (Mr. Cook) will have a difficult task explaining it to patients who would not be treated if his policies were implemented.

  PRIME MINISTER

    Engagements
    Mr. Carrington: To ask the Prime Minister if he will list his official engagements for Tuesday 3 December.
    The Prime Minister (Mr. John Major): 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.
    Mr. Carrington: Is my right hon. Friend aware that in my constituency Labour-controlled Hammersmith and Fulham council keeps many of its council houses and flats empty? Does he agree that the most effective action that could be taken to end homelessness would be if Labour-controlled London councils brought back into use the many thousands of empty homes under their control?
    The Prime Minister: My hon. Friend makes a valid point and I share his concern about homelessness. For that reason, we are spending more than £100 million over the next three years to provide accommodation for young single people. The Government's initiatives on rough sleeping are having a marked effect on the problem in London.
    Mr. Hattersley: Is the Prime Minister aware that doctors working in the health service have said today that his promise to cut waiting lists to two years can be achieved only if desperately ill patients sacrifice their beds to less serious cases who have waited longer? Is he prepared to sanction such manipulation of waiting lists?
    The Prime Minister: I have not seen that comment by doctors, but I assure the right hon. Gentleman that that is not the situation. Long waiting lists are falling fast. Since March 1990, the number of patients waiting more than two years has come down by 47 per cent.—a substantial reduction—and the number waiting longer than one year has reduced by a quarter.
    Mr. Hattersley: During the day, doctors from Nottingham University hospital and Chase Farm hospital Enfield have said that they can meet the target only if seriously ill patients are sacrificed. Is the Prime Minister prepared to abandon the target or the seriously ill patients?
    The Prime Minister: There is no question of abandoning the seriously ill patients. For that reason, we have expanded expenditure on the health service, increased the number of medical staff and introduced initiatives to cut waiting lists. All those are practical methods, all of them are working, and all of them are delivering better health care and will deliver faster health care.
    Mr. Hattersley: The Prime Minister's wilful refusal to answer a specific question demonstrates the underlying truth of the Government's health service policy: they are interested in public relations, not patient care. No wonder the people of this country know that the health service is not safe in their hands.
    The Prime Minister: The right hon. Gentleman is talking nonsense on stilts, and he knows it.
    Mr. McAllion: Is the Prime Minister aware of the survey published yesterday by the housing charity, Shelter, which revealed that on every working day in Scotland last year 84 children became homeless because the Government had failed to invest enough in decent. affordable rented housing? Is he not ashamed that so many children have been thrown on to the streets of Scotland while he has been Prime Minister? Will he now do something about it by calling a general election and making way for a Labour Government committed to ridding this country of the Tory scourge of homelessness?
    The Prime Minister: The hon. Gentleman would do well to recall that the policies of so many Labour

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    authorities leaving properties empty and voids untreated which significantly adds to the level of homelessness; until those Labour authorities operate properly with their housing resources, they will not make inroads into the housing problem.
    Several Hon. Members rose—
    Mr. Speaker: Order. I inadvertently called two hon. Members from the same side.
    Mr. Franks: To ask the Prime Minister if he will list his official engagements for Tuesday 3 December.
    The Prime Minister: I refer my hon. Friend to the reply that I gave some moments ago.
    Mr. Franks: Will the Prime Minister state clearly and concisely that, irrespective of the place or the audience or the day of the week, he has but one policy for the fourth Trident submarine—to build it, equip it and send it to sea armed for the nation's defence? Will he find time to read recent Official Report s of debates and questions in the House where he will find "We will build a boat", "We won't build a boat" and "We will build a boat but it will have no weapons", all of which is official Labour party policy?
    The Prime Minister: I am happy to confirm the Government's commitment to Trident, as so frequently set out in this House. As my hon. Friend makes clear, there is no comparable commitment from the Opposition, whose polices on defence vary from day to day.
    Mr. Cran: To ask the Prime Minister if he will his official engagements for Tuesday 3 December.
    The Prime Minister: I refer my hon. Friend to the repln that I gave some moments ago.
    Mr. Cran: Is my right hon. Friend aware that a senior Japanese industrialist has made it clear that if the European Community adopts the social action programme it will be committing industrial suicide? That being so, will my right hon. Friend give the House a commitment that he will not give way on that in the discussions next week? Does he also agree that the European Community should be an evolutionary community, not a revolutionary one?
    The Prime Minister: My hon. Friend is right to say that we live in an increasingly competitive environment and that much in the social action programme would damage that competitiveness within the European Community—to the interests of the Japanese, the United States and our other competitors. I confirm to my hon. Friend that I am not prepared to see our competitiveness lost in that manner.
    Mr. Wallace: I congratulate the Prime Minister on the fact that at long last common sense prevailed and he was prepared to meet the Dalai Lama of Tibet. Can he give any indication of whether at that meeting he expressed the British Government's support for the United Nations human rights sub-commission report in relation to the expressions of concern about the violations of human rights in Tibet, and what proposals did he make to help the many thousands who have been refugees from Tibet in the past 30 years?
    The Prime Minister: The substantive part of my discussion with the Dalai Lama was specifically concerned with human rights —most notably, though not exclusively, in Tibet. We discussed the present situation and the representations that we had made to the People's Republic of China, and I reaffirmed the fact that I would continue to make such representations.
    Mr. Peter Bottomley: To ask the Prime Minister if he will list his official engagements for Tuesday 3 December.
    The Prime Minister: I refer my hon. Friend to the reply that I gave some moments ago.
    Mr. Bottomley: As this is "Youth and Parliament" day, led by the British Youth Council, would my right hon. Friend recognise the importance of investing in the young, overcoming unnecessary disadvantages such as handicap, and giving them the opportunity to contribute fully to a better future for the country?
    The Prime Minister: I agree with my hon. Friend. Perhaps the most striking expression of the changed opportunities for young people is the increasing number now going into higher education. In 1979 it was one in eight—today it is one in four, and in the future, under the plans now projected, it will be an even higher percentage.
    Mr. Vaz: Will the Prime Minister reflect on the continued hardship and anxiety facing depositors, creditors and former members of staff of the Bank of Credit and Commerce International? Will he join me today in thanking the Sheikh of Abu Dhabi for his recent proposals which form part of the crucial negotiations that are taking place? Will he for the first time publicly endorse those negotiations and wish them well? Will he ensure that his Ministers are actively involved in getting the best possible settlement for those who have suffered and who are the real victims of this awful tragedy?
    The Prime Minister: We have repeatedly made it clear that we wish depositors to get back as much of their money as possible. I am pleased with the improvements evident from the negotiations that have taken place. As the hon. Gentleman will know, the recent adjournment is to allow the provisional liquidator to formalise details of the compensation package that he has been negotiating with the Government of Abu Dhabi. That is proceeding and I welcome it. I hope that it will reach a satisfactory conclusion and remove the substantial problem that it has laid over the lives of so many former customers of that bank.
    Mr. Speller: To ask the Prime Minister if he will list his official engagements for Tuesday 3 December.
    The Prime Minister: I refer my hon. Friend to the answer that I gave some moments ago.
    Mr. Speller: On our way to the single market, is it not time to give a healthy nudge to the metrication programme so as to enable our manufacturers and exporters to compete more fairly with our continental rivals?
    The Prime Minister: As my hon. Friend knows, there will be a similar system by the end of 1994, which I believe will bring substantial advantages for industry.
    Mr. Enright: Will the Prime Minister explain what attitude he intends to take at Maastricht to co-operation on development issues, and what practical result that will have?
    The Prime Minister: We are content to develop on a co-operative basis a whole range of policies. Where we often have great difficulty with Community proposals is when co-operation is replaced not by agreement but by majority voting on issues of concern to us.
    Mr. Evennett: To ask the Prime Minister if he will list his official engagements for Tuesday 3 December.
    The Prime Minister: I refer my hon. Friend to the reply that I gave some moments ago.
    Mr. Evennett: Will my right hon. Friend join me in congratulating the Secretary of State for Education and Science on devising tests for seven-year-olds which go back to the basics of reading, writing and arithmetic? Will he further commend the Secretary of State for pushing on with the tests, despite the opposition of the National Union of Teachers, the Labour party and the Liberal Democrats? The parents of this country will welcome those tests most warmly.
    The Prime Minister: I believe that my hon. Friend is right. We are concerned primarily about the quality of education and for that reason I very much welcome the tests. Testing is a crucial part of ensuring that we know what quality of education our young people are achieving, so that if a satisfactory level is not reached, appropriate action can be taken.
    Mr. James Lamond: Is the Prime Minister fully aware of the importance for many industries in this country, including the textile industry, of a successful outcome of the GATT negotiations? Is he aware that the negotiations have been going on for five years, that we must have a replacement for the multi-fibre arrangement that will enable our textiles to penetrate the markets of countries which do not allow any textiles in and those with tariffs of 200 per cent., and that even the United States has a tariff of 36 per cent. on British wool cloth? Unless those tariffs are diminished our textile industry will have a tough time, and more jobs will be lost.
    The Prime Minister: I share the hon. Gentleman's view of the importance of GATT and of all aspects of the negotiations. In recent weeks, I have had the opportunity of discussing the matter not only in the United States but with a number of colleagues in the European Community. It is clear that both sides will have to make concessions to reach a satisfactory GATT conclusion. It is to be hoped that that will happen before the end of the year.
    Mr. Harry Greenway: To ask the Prime Minister if he will list his official engagements for Tuesday 3 December.
    The Prime Minister: I refer my hon. Friend to the reply that I gave some moments ago.
    Mr. Greenway: Bearing in mind Britain's good marine conservation record, will my right hon. Friend join some of us in the Whale and Dolphin Conservation Society, with a view to saving thousands of whales and dolphins from drift nets, from so-called scientific whaling and from industrial pollution? I have a form here, it will cost my right hon. Friend £5 or £10 to join, and I invite him to do so.
    The Prime Minister: My hon. Friend makes me an irresistible offer. I have much sympathy with the aims that he set out. The Government have taken a strong lead in international forums to restrict the use of drift nets and to increase the safeguards for whales.
    Mrs. Margaret Ewing: In the context of the Prime Minister's duties in the House, will he advise us whether he will stay to listen to the statement by the Secretary of State for Scotland? Is the Prime Minister aware that the allocation of trust status to hospitals in Scotland is against the general and political will of the people there? Will he therefore spell out what he decides is democracy in Scotland? It seems that the Secretary of State for Scotland is to ride roughshod over the views of elected members at district, regional and parliamentary level.
    The Prime Minister: I shall not be present for the statement because I have a series of meetings with hon. Members immediately after Question Time.
    Mr. Ian Bruce: To ask the Prime Minister if he will list his official engagements for Tuesday 3 December.
    The Prime Minister: I refer my hon. Friend to the reply that I gave some moments ago.
    Mr. Bruce: Does my right hon. Friend agree that many people who choose to work more than 48 hours per week, and who thereby earn overtime and give greater security to their families, would be most upset if an edict from Brussels took the right to work such overtime away from them, especially as hon. Members would be excluded from the rules, as would the bureaucrats in Europe and all managers and executives?
    The Prime Minister: I agree with my hon. Friend on that point. It goes wider than just the position of individuals, important though that is. It also covers the competitiveness of British industry and commerce, a point to which I referred some moments ago. If we were to have to suffer all the rigours of the directive to which my hon. Friend refers, it would cost employers substantial sums —billions of pounds—in the next year.

NHS Trusts (Scotland)
3.31 pm
The Secretary of State for Scotland (Mr. Ian Lang)rose—
Mr. Alex Salmond: On a point of order, Mr. Speaker.
Mr. Speaker: I will take points of order afterwards.
Mr. Lang: With permission, Mr. Speaker, I would like to make a statement about NHS trust applications in Scotland.
As the House is aware, applications for NHS trust status in Scotland have been submitted on behalf of the Foresterhill group of hospitals in Aberdeen, the Royal Scottish National hospital at Larbert and the South Ayrshire group of hospitals. Statutory public consultations have been carried out and I am grateful to all those who responded. I have carefully considered all the comments submitted and I have today written to the sponsors of the applications separately, setting out my decisions. Copies of the letters have been placed in the Library.
In all three cases, the responses to the public consultation revealed concern that trusts might not be part of the NHS and that services might be fragmented. Those concerns are misplaced. The position, as the Government have repeatedly made clear, is that trusts will remain part of the national health service. Services will continue as at present to be free at the point of delivery. Trusts will operate in a framework in which health boards will be required to fulfil their statutory obligations to cater for the health needs of all those in their areas. Bearing that in mind, I have closely examined the three proposals and the comments that they have attracted, in accordance with the published criteria which included the likely effect on patient care, the competence of the management teams, including involvement in management of senior professional staff, and the financial viability of the hospitals concerned.
Taking Foresterhill first, a recurring comment in the responses to the trust proposal alluded to the contribution that individuals have made to the development of hospital care in Aberdeen over very many decades. I fully understand that and I recognise the justifiable pride which people in Grampian have in the services provided and in the developments which have taken place in conjunction with the medical school. None of that, for reasons that I have already explained, is put in jeopardy by the trust proposal. Indeed, I am satisfied that the proposed trust, operating from a sound financial basis, with a management team, including clinicians, possessing a proven track record, and with sound proposals for improving facilities, offers a great opportunity to build on the already high reputation for patient care which the hospitals enjoy. I have therefore decided to grant the application.
Hon. Members: Shame!
Mr. Speaker: Order.
Mr. Lang: I turn to south Ayrshire. The sponsors of the trust proposal see the new Ayr hospital as providing an excellent opportunity for further enhancing the quality of services provided in south Ayrshire. I am sure that they are
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right. I am satisfied that the proposals for NHS trust status for the south Ayrshire group of hospitals also meet the criteria which I have outlined, and in particular that they will secure benefits for patients and an improved quality of service. Again, therefore, I have decided to grant the application.
Finally, there is the application from the Royal Scottish National hospital at Larbert. The hospital serves people with a mental handicap. It has been suggested during the consultation period that, because of the vulnerability of that group, the hospital would not be an appropriate candidate for trust status. I do not accept that proposition. NHS trust status is about providing a means for improving care. I see no reason why that should be denied to those hospitals serving the mentally ill or people with a mental handicap.
As with Foresterhill and South Ayrshire, I am satisfied not only that the RSNH is financially viable but that significant benefits for improved patient care will flow from trust status. It is also clear to me that, on past performance, the management are well able to take forward the changes in a very difficult area of health care.
However, the proposals arise at a time when we are beginning to put in place the policy of care in the community, as enunciated in our White Paper "Caring for People". Work on the development of joint planning between local authorities and health boards and the preparation of individual care plans has begun. But more activity on those fronts is expected in the coming months. The resources of the RSNH management team may not be sufficient to cope with the additional administrative burden of implementing simultaneously "Caring for People" and the immediate transition to trust status. Consequently, I have decided, in granting the application, that the start-up date will be April 1993.
To sum up, I have concluded that all three applications will lead to improved patient care; that all three will have the required management, including clinician participation, to operate free of health board control and that all three are sufficiently robust financially. I shall therefore be bringing forward shortly the necessary orders to establish trusts at Foresterhill and South Ayrshire in April 1992 and at the Royal Scottish National hospital in April 1993.
The three units face a challenge, but one which offers the promise of improved patient care in their areas. Whatever political differences exist on policy, I am sure that hon. Members on both sides of the House will wish to offer them every support in that endeavour.
Mr. Donald Dewar: There is no justification for what the Secretary of State is doing. Foresterhill, the South Ayrshire general hospital and the Royal Scottish National hospital should not be forced out of the main stream of the health service. It is a betrayal —a victory for prejudice over common sense. The Secretary of State has toed his party's line but undermined confidence in the health service. He is once more distancing himself from the people of Scotland.
The Secretary of State claims that opting out is in the best interests of patients. On what does he base that claim? Does he know better than doctors, nurses and the other health service staff whose life work has been delivering the service? Does the Secretary of State remember the response of the Grampian area medical committee, which

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expressed concern that the additional resources consumed by the trust will put at risk priority specialties such as psychiatry, geriatric medicine and physical disability?
The Secretary of State claims that the basis of opting out is to make hospitals more responsive to the local community. How can that be so when today's diktat is a contemptuous dismissal of the community's united protest? Did the right hon. Gentleman not canvass in Kincardine and Deeside'? How does he reconcile today's announcement with the fact that consultants voted against the opt-out scheme by 87 votes to two in Foresterhill and by 50 to nine in South Ayrshire?
Is it not reducing consultation to the level of farce when the responses to the consultation, together with the polling evidence, show overwhelming opposition? In Ayrshire this July, Systems Three found that four out of five of those polled were strongly opposed to the scheme. In Grampian, 80 per cent. of general practitioners gave it the thumbs down.
Does the right hon. Gentleman recall the promise of Bill Fyfe, chair of the Ayrshire and Arran health board:
"the decision rests and has always rested with the hospital doctors. It cannot be otherwise: self governing will happen only with the doctors' approval and only if they are convinced that patients will benefit."
I do not mourn for Mr. Fyfe, but is he to be branded a dishonest man because of the Government's insensitivity in railroading through these unwanted applications?
Just a fortnight ago, on 14 November, Councillor Mike Hastie, who is the Tory leader on Aberdeen district council, was reported as saying that he could not believe that the Government would now push through the measures. In his view—I quote him precisely—
"it would be an act of sheer folly and I do not believe Mr. Lang is capable of that."
He knows better now.
Does the Minister not recognise the dangers of fragmenting the health service and destroying the planning framework; the cost of ever-increasing bureaucracy; the reduction in choice for the doctor; the fear that this is a road that leads to a two-tier system in which money comes first and the Health Service is relegated to a safety-net, fallback provision?
In detail, will the Minister give the capital debt figure that will have to be shouldered by these three hospitals? What percentage of this, in each case, is public dividend capital and what percentage interest-bearing debt? Will he announce now the external financing limit for each hospital? Is he satisfied that the complications arising from the ownership of a large part of the Foresterhill site by Aberdeen university have been overcome?
It is a disgrace that the Royal Scottish National hospital at Larbert is included in this misbegotten scheme. A hospital dealing with the mentally handicapped is by no stretch of the imagination a candidate for the market mechanism. The postponement to 1993 simply to await the Government's belated funding of community care will overcome none of the difficulties.
Finally, may I make it unambiguously clear that Labour will reverse the decisions on these three hospitals announced today and will do so immediately after the general election? The policy is fundamentally wrong. It commands no support and will damage the Health Service. This is vandalism, all the more wounding because it is authorised by the Secretary of State who is supposed to
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protect Scotland's interests. The scheme will not survive this Government, and will, indeed, contribute to their downfall.
Mr. Lang: The hon. Member for Glasgow, Garscadden (Mr. Dewar) has not had the advantage that I have had of studying these applications with very great care, and it is quite clear that he has not addressed the issue in any great substance. He talks about the hospitals being forced out of the main stream of the Health Service. That is precisely the kind of distortions and misleading implications that he and his party have placed upon this exercise throughout the consultation process, which have led to so many people misunderstanding what it is all about.
It is hardly surprising that the national opinion poll carried out in Aberdeen showed that 75 per cent. of the people asked thought that it was about privatisation, and that in Ayrshire a Systems Three poll showed 74 per cent. thought that it was about privatisation or opting out of the health service, because the Labour party was putting about pamphlets saying such things as
"Now the Government is forcing our hospitals to opt out of the NHS."
That is simply not true. We are not forcing them out of the NHS; they will remain in the NHS, and the services will remain free at the point of delivery. Indeed, I am persuaded that the central criteria against which I have had to measure these applications will be met, and that patient care will be advanced very considerably. Greater autonomy and greater local flexibility, greater local ownership and decision making, will be of advantage to the hospitals which are receiving trust status.
The hon. Gentleman asked me about the degree of support from medical staff. In the case of Foresterhill, all the main clinical departments have given their support to the proposal—a proposal that has been drawn up by a multidisciplinary team. In the case of Larbert, there has been support for the application from the Institute of Health Services Management, the Forth Valley college of nursing and midwifery and the National Board for Nursing, Midwifery and Health Visiting. In the case of South Ayrshire, there has been support from a majority of consultants in general surgery, orthopaedics and radiology. As for fragmenting the health service, that is not true. When the hon. Gentleman reflects on the fact that 97 per cent. of the services of the trusts will be purchased by the health boards he will see how self-evident is the nonsense that he talks about fragmentation.
The hon. Gentleman talked about a two-tier system. I have been looking at the Labour party document for health in Scotland, "A Prescription for Change". It says that Labour will
"continue devolution of management to unions within health boards."
It will "devolve budgets" —[HON. MEMBERS: "To units."] Yes, to units. It will
"devolve budgets to units, giving them a significant measure of control over their own finances. The budget will be flexed in order to take account of work done."
If we are contemplating a two-tier service, so is the Labour party. The fact is that we are contemplating not a two-tier health service but a better health service. These proposals will help to achieve it.
Mr. George Younger: Is my right hon. Friend aware—
Hon. Members: Is he a Member?
Mr. Speaker: Order. He is a former Secretary of State.
Mr. Younger: Is my right hon. Friend aware that in Ayrshire we are extremely proud of the new hospital which was built from start to finish within five years, a record for anywhere in the country? We expect it to produce even better services in the future. Will my right hon. Friend confirm that his announcement today means that the hospital will be under more local management than it was? Will he confirm also that it will remain entirely within the national health service and that anyone who needs treatment will get it, as now, free of charge?
In contrast to the irresponsible and negative remarks of the hon. Member for Glasgow, Garscadden (Mr. Dewar), whose responsibility in his party for destroying the consultation process is well known, will my right hon. Friend confirm that, in future, the objective of the new hospital will be to produce even better services? He can be assured, if that is so, that even those who disagreed with his decision will work together to make it a great success.
Mr. Lang: I am most grateful to my right hon. Friend. I agree entirely with absolutely every point that he has made so effectively. Among the benefits to patients that will be derived from trust status for south Ayrshire, I envisage the improved use of facilities, mainly theatres, enhancing cost-effectiveness, increasing throughput and reducing waiting times, upgrading the facilities at Ballochmyle and Biggart, as well as investment, for example, in a CAT scanner and a short-stay surgical unit, and perhaps in the longer-term investment in phase 2 being brought forward.
Those are some of the improvements that can be looked forward to at South Ayrshire under trust status. I entirely share my right hon. Friend's view that we are concerned about improving health care and benefits to patients, which I believe trust status at South Ayrshire will achieve.
Mr. Malcolm Bruce: Will the Secretary of State accept that there are those of us who have never made the point that trust status is about opting out of the national health service, but have said that it is about local accountability and the views of local people? Is it not also about turning a caring service into a business? Is not the Secretary of State misrepresenting the consultation process when he denounces the people who have submitted representations? Indeed, all the consultants, doctors, local health councils and general practitioners have expressed their opposition.
Does not the Secretary of State recognise that there is no confidence in the community in the type of managers he proposes to put in control of the trusts? He knows that they are regarded simply as Tory party stooges put there to do a job on behalf of central office rather than to represent the interests of the people. Will he accept that in a democracy, when people say no, they mean no?
Mr. Lang: That was an uncharacteristic and, I have to assume, an unintended attack by the hon. Gentleman on the present management qualities of the Foresterhill group of hospitals. I have a high regard for Foresterhill and what it has achieved in the last few years under this Government. The aims of the trust will be to build on the achievements, to become more responsive, to build a closer local link with the community and closer links with the health councils and with the GPs, to upgrade wards and facilities in the hospital, to upgrade theatres and
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equipment and to build on the success of recent years. Of course, it is about greater and more local accountability and greater flexibility—we have that in common—and that is what the trust will deliver. I am confident that the quality of the people who will be running it will be excellent.
Mr. Robert Hughes: Is the Secretary of State aware that his scandalous decision will be greeted by outrage not only in Aberdeen and the surrounding area by everyone connected with the medical and caring professions but by everyone right across the political spectrum in the north-east of Scotland, including the hapless Marcus Humphrey? Is he aware that his information is totally wrong and that nothing in the application shows that patient care and services will improve under the trusts? Is he not aware that every specialty at the Foresterhill site, with the exception of laboratory services, voted overwhelmingly to reject the trust? Is it not the case that the right hon. Gentleman's delay in coming to the House to announce his decision is because, when he looked at the facts, he was minded to reject the application but was told by the puppet master sitting next to him that he had to make a political decision?
Mr. Lang: I have taken the decision to approve the trusts. It was my decision. I was required to take it in accordance with the published criteria. When I was considering the applications from Foresterhill and others, I made it clear that I would not approve an application unless I was personally persuaded that the criteria would be met. I regard the most important criterion as an improvement in the delivery of patient care by the hospital in question. After the closest and most detailed scrutiny, I am absolutely persuaded that that will be achieved. I am perfectly happy to be judged on the performance of those trusts in the years ahead—[HON. MEMBERS: "You will be."] Indeed, I intend to remain very close to the development of the trust and to its inception on 1 April to ensure that all that has been promised will be delivered.
Sir Hector Monro: Does my right hon. Friend agree that the structure of the health service in Scotland is somewhat different from that in England and Wales, and that our area health boards are very much closer to the hospital management than is the case elsewhere? How has my right hon. Friend come to judge the weight of opinion between those who wish to stay but to move forward into an area of ever better care in those hospitals against those who want a move into a future of some uncertainty?
Mr. Lang: My hon. Friend is absolutely right. The health boards in Scotland are very close to the hospitals, which is why I set considerable store by the approval that had been granted to the applications by the Grampian health board in the case of Foresterhill and by the Ayrshire and Arran health board in the case of South Ayrshire. Their approval and commendation of the applications has featured in my consideration.
My hon. Friend talked about the future, but we do not need to look into the crystal ball when we can read the book. Some hospitals south of the border already have trust status. In Yeovil, in the constituency of the leader of the Liberal Democratic party, the number of patients waiting for more than 12 months has been reduced by 45 per cent., and the total waiting list is down by 10 per cent.

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Since April, that trust has received 53 letters of complaint and 1,344 letters of praise. I look forward to a comparable result for trust-status hospitals in Scotland.
Mr. Martin O'Neill: Does not the Secretary of State understand that the people in the Forth Valley health board area will greet his decision with great dismay, especially the families of the mentally handicapped patients in that hospital, who do not have a vote, could not be consulted and who are now greatly exercised by the prospect of being cast into the free market system? Does not the right hon. Gentleman realise that there will be outrage tonight in my constituency and in that of my hon. Friend the Member for Falkirk, East (Mr. Ewing) at his betrayal of the trust that has been placed in that hospital by the people in its care?
Mr. Lang: I am sure that the hon. Gentleman is wrong, because the consultants and management were unanimous in their support for trust status for Larbert. The possible developments that the trust could achieve include more emphasis on research, on training and education, on challenging behaviour, and on autism and brain damage. The trust contemplates many benefits for patients, including continuing the systematic assessments and the reductions in institutional accommodation, and has plans to break up the large wards and to increase the staff-patient ratio. Does the hon. Gentleman really want to set his face against the improvements that trust status could deliver?
Mr. Dennis Canavan: How on earth can the Secretary of State justify his disgraceful decisions, particularly on the Royal Scottish National hospital in my constituency, where the application for trust status was opposed by virtually the entire community, the patients' relatives association and 96 per cent. of the staff? Is the Secretary of State so arrogant that he thinks that he knows better than the people who are actively involved in the care of the mentally handicapped? Is he so politically inept that he virtually signals to the people of Scotland that the only thing which will stop this arrant nonsense is the next general election, when he and his cronies will be swept out of power and the interests of patients will be put before political dogma?
Mr. Lang: If the hon. Gentleman sincerely believed that, he would not show so much artificial outrage. He ignores the views of the managers and consultants in the health service. I can understand why some in the medical profession express anxiety. They understand the status quo and do not like the uncertainty of change. There was a similar reaction when we reformed GP contracts, but now, with experience of the contracts, that anxiety is disappearing. There was anxiety about the terms and conditions of future employment. I can reassure the hon. Gentleman that the terms and conditions of junior doctors will continue to be negotiated nationally.
I see for Larbert the prospect of all the changes that I outlined in answer to the hon. Member for Glasgow, Garscadden (Mr. Dewar). If I did not believe that those changes would benefit patients, I would not have approved the application.
Mr. Bill Walker: Is my right hon. Friend aware that his decisions on these hospitals will be remembered by many? As on so many of the decisions taken in the past 12 years, such as the sale of council
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houses and other matters which the Opposition opposed, they have had to change their tune. They will do so on NHS trusts, with the passage of time. Will my right hon. Friend confirm that he will look equally thoroughly and carefully at any proposals from hospitals in Tayside?
Mr. Lang: Yes, I will. Indeed, other hospitals have expressed interest in growing and developing. I expect further applications to come in during the next year and, with time, a growing number of applications as the benefits are seen to come through.
Mr. George Foulkes Carrick: Did not Donald MacNeill, the chief executive-designate of the South Ayrshire trust, give the game away last week when he compared trust hospitals with
"those remaining within the mainstream NHS"?
Is that not the truth? Are not trusts the first step towards privatisation? Will the Secretary of State confirm that there were 226 submissions in Ayrshire, 215 of which were against trust status, including 33 from medical, nursing and professional organisations? Why does he arrogate to himself the claim to know more about patient care than all those professionals? Is he not handing over public assets to a few of his Conservative cronies? That amounts to legalised theft and corruption.
Mr. Lang: The hon. Gentleman is characteristically over the top. I do not arrogate to myself a knowledge superior to that of the professionals, but I have had imposed on me the obligation to exercise a quasi-judicial function in assessing applications. I have done that after the most careful scrutiny. The hon. Gentleman mentioned the number of submissions. I have had more submissions than he said about South Ayrshire, but mostly they were tear-out strips from newspapers and from people who had been —
Mr. Brian Wilson: That is a lie!
Mr. Speaker: Order. I say to the hon. Gentleman, who is an Opposition Front Bench spokesman, that he must withdraw that comment.
Mr. Wilson: But it is true.
Mr. Speaker: In this Chamber we keep our standards. "Lie" is an unparliamentary word.
Mr. Wilson: The statement of fact is that there were 226 submissions —
Mr. Speaker: Order. I am not interested in that. Will the hon. Member withdraw that allegation?
Mr. Wilson: I want the opportunity to state the fact, in which case I will withdraw the statement.
Mr. Lang: The hon. Gentleman might have listened to what I said. I said that there had been substantially more submissions than the number he gave. The figure that I have is about 800 submissions, but most of them were tear-out strips from newspapers. I expect that the people who made them were influenced by the Labour party's "Standard No. 17", which was circulated among people in the area. It said:
"What would opting out mean? It would mean our new South Ayrshire hospital leaving the NHS as we know it and would pave the way for a two-tier health service in Ayrshire."

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It is precisely that type of distortion—misleading and alarming people—that has led to the public reaction. The trouble is that too many people in the Labour party are more concerned with scaring than with caring.
Mr. William McKelvey: The people of Ayrshire will be bitterly disappointed by the Secretary of State's announcement from the Dispatch Box. However, they will not be surprised, because they know that, from the beginning, the consultative process has been an absolute rigged farce. It was undemocratic and the Government were not telling the truth when they said that they would look at all the submissions in a fair and honest manner. At least the Under-Secretary of State had the guts to say that at the Dispatch Box.
Putting aside the postcards that were sent to the Secretary of State, how many of the 226 written submissions were of the quality that he desired? Perhaps the five, six or seven which were in favour of trust status. The Labour party will win the next election. The South Ayrshire hospital will revert to its previous status. Managers of trust hospitals will be judged on their ability to manage and not as apparatchiks of a political dogma.
Mr. Lang: It is the ability of the proposed applicants to manage the trusts which has been borne in mind among the criteria that I have had to consider. As I said earlier, we are also able to look at the successes being achieved by other trust status hospitals elsewhere. In Kingston, for example, the list of those waiting more than 12 months has been reduced by 77 per cent. and 1,600 more patients were treated than was planned. In the Northern General hospital NHS trust, six new consultants have been appointed this year and 95 per cent. of patients surveyed are either "satisfied" or "very satisfied" with the service provided. That is my ambition for trust status hospitals in Scotland, and that is what I believe that we shall achieve.
Mrs. Margaret Ewing: Does the Secretary of State for Scotland remember that on 16 March, in an interview published in The Press and Journal (Aberdeen), he said that the option for trust status existed if the local will were in favour? How on earth does he now reconcile that statement with the fact that he has ignored submissions from wherever they may have come, be it consultants or pensioners, GPs or the disabled, the elected district or regional councillors or Members of Parliament? Is it the case that he merely dismisses those submissions with which he does not agree and proceeds in an autocratic fashion?
How on earth is it that, in London, where teaching hospitals are so highly regarded, the issue of trust status has been postponed indefinitely, but in Foresterhill a key teaching hospital is being asked to take trust status? How much money has his Department spent in conjunction with the health board on those applications? How much money is being spent on future applications? How many are in the pipeline and how many are on his desk?
Mr. Lang: The hon. Lady will find the answer to her question about expenditure in a written answer which has been published in Hansard. She referred to some applications in London with which she is especially preoccupied. I have responsibility for assessing applica-tions in Scotland. I have assessed each application
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individually on its merits, carefully, against published criteria. It is by comparison with the published criteria and all the information available to me that I have reached a judgment. It would be quite wrong if I were to base my view solely on submissions from members of the public who have been unduly influenced by misleading information from other quarters.
The hon. Lady will know that there is an attractive £60 million new hospital in Elgin—the West Grampian unit —and that may well be among those expressing an interest in trust status in due course. I will give the same careful scrutiny to that application, if it reaches me, as I shall give to applications from Princess Margaret Rose orthopaedic hospital, from Lothian college of nursing, from the Victoria infirmary in Glasgow or from any others which express interest. I am concerned to ensure that we continue to build on our excellent record of improving health care in Scotland.
Mr. Nicol Stephen: What view did the Secretary of State take of the outcome of the Kincardine and Deeside by-election in reaching his decision? He will be aware that all five candidates in that by-election were opposed to the Foresterhill opt-out. Is the right hon. Gentleman aware that he is creating in Scotland a clear position of elective dictatorship? The situation is opposed by Conservatives in the north-east of Scotland and he is showing contempt for the people of the whole of Scotland. But he is taking one major step forward today, and that is a step towards the cliff of political oblivion for the Conservative party in Scotland.
What is to happen to the land and buildings owned by Aberdeen university on the Foresterhill site? Does the right hon. Gentleman intend to compensate or confiscate?
Mr. Lang: The hon. Gentleman raised that final issue as a scare during the by-election campaign—[HON. MEMBERS: "Answer."] The answer is that the ownership will remain the same. The health board's interest will transfer to the trust. No difficulty will arise over that. I must tell the hon. Gentleman that, as a new Member of Parliament, he should be more concerned with the possibility of improving the delivery of health care to his constituents. That is what I am concerned with, and that is how I have measured the application.
The hon. Gentleman referred to the Kincardine and Deeside by-election, in the campaign for which he said in his special health service circular:
"Opting out is a dangerous first step towards market economics and privatisation of our health service."
I know, and I hope he knows, that that is not true. Indeed, his party leader, the right hon. Member for Yeovil (Mr. Ashdown) said:
"I do not believe that the…Government's…intention is, or ever has been, to privatise the health service. Indeed, I believe that those who insist on scaremongering have done the Mselves and the NHS no good by concentrating on the 'privatisation' scare."
If the hon. Gentleman will not listen to me, perhaps he will listen to his party leader.
Mr. Brian Wilson: Will the Secretary of State now recognise that his unworthy but all too predictable statement that the 226 representations on the south Ayrshire opt-out included newspaper forms was in direct contradiction of veracity? Will he further recognise that his announcement today, while totally predictable—nobody ever believed that a genuine

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consultation process was taking place—represents one of the final death knells for the discredited band of brigands who represent the Scottish Conservative party?
Does the right hon. Gentleman appreciate that, in Ayr alone, the Conservative party is already being torn apart? Does he further appreciate that, throughout Ayrshire, people recognise that any additional assets that are poured into the South Ayrshire hospitals to make them work will be at the expense of the national health service in the rest of Ayrshire?
Does the right hon. Gentleman mercifully recognise that none of this will come to pass because, within days of this misguided, ideological order—introduced at the behest of the arch-agent of prejudice sitting beside him, the Minister of State—coming into being, there will be a change of government and none of it will happen? Will he also recognise that I have never believed that there are no Tories in Scotland, for one Tory has spoken for Conservative respectability in Scotland, and he is the hon. Member for Dumfries (Sir H. Monro)? The further the Government depart from that line, the more their fate is sealed, and the more richly that fate is earned.
Mr. Lang: I give the hon. Gentleman the benefit of the doubt and assume that he did not hear what I said, not once but twice, perhaps because of the noise coming from his hon. Friend the Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes), seated beside him, who referred to 236 admissions. I said that I had had rather more than that, and I referred to having had about 800, the large majority of which were tear-out newspaper slips, and a large majority of those would have been influenced by the leaflet, the Labour party "Standard", with its misleading, scaremongering, alarmist nonsense.
Surely the hon. Gentleman, as an Ayrshire Member, is interested in a trust that may be able to upgrade the facilities in the hospitals in the trust. Surely he is interested in a trust that is willing to carry out further investment, keen to achieve the further development of a quality programme involving multi-disciplinary, quality action groups. Those are the tangible improvements in health care that can be achieved by trust status. The hon. Gentleman should withhold judgment and hope that I am right, and that we shall succeed in achieving those results.
Mr. Alexander Eadie: Is the right hon. Gentleman aware that today's statement clearly shows that he is a prisoner of the right wing of his political party, which is responsible for the demise of his party in Scotland? Is he aware that his announcement today is not a triumph for the philosophy of trusts but a blow against democracy, consultation and the will of the people? Does not he realise that, in making his announcement, he has, to some extent, signed his political death warrant?
Mr. Lang: No, I do not, because I believe that the electorate will judge by results and that, even before the trusts are up and running, they will begin to see the benefits that will flow from the trusts. The hon. Gentleman said that my statement was a blow against consultation. There was a three-month thorough consultation period for each specific trust, during which detailed application forms were sent out extensively. In the case of Larbert, they were sent out to every applicant who sought them. I have looked carefully over a period of weeks at those applications, and have reached the view that they deserve to be granted.
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I am proud to be a member of a Government who have increased health spending in real terms since 1979 by nearly 40 per cent., treated 900,000 more people in Scotland last year than in the year in which we came into office, increased the number of nurses by more than 9,000 and now pay them 41 per cent. more in real terms than when we came into office. The hon. Gentleman should look back at the Labour party's record in government before he starts to criticise ours.
Mr. John Marshall: May I congratulate my right hon. Friend on ignoring the scaremongering campaign conducted by Opposition Members? Is he aware that a similar campaign was carried out by the hon. Member for Livingston (Mr. Cook) against trust hospitals in England, which have now delivered more patient care, cut waiting lists and been innovative in the service that they offer to patients? Is he surprised that the hon. Member for Livingston now spends less time talking about trust hospitals than producing racing tips for the Glasgow Herald? Moreover, is not the hon. Gentleman equally bad at both?
Mr. Lang: All I can say on that is that, as regards the delivery of patient care in the areas from which we have received trust applications, we are on to a winner.
My right hon. Friend represents a seat in the south and he will know that the Guy's and Lewisham NHS trust intends to improve the pay of more than 1,200 lower-paid workers by 6 per cent., and that it will treat some 6,000 more patients than planned. There are many other examples of health trusts in England that are already up and running a year ahead of those in Scotland, from whose experience we can benefit. We can draw considerable encouragement from the improved quality of their health care.
Mrs. Maria Fyfe: It is interesting that the Secretary of State does not claim that he has a majority of public opinion on his side but merely that the very large majority against trust status was ill informed and listened to Labour propaganda. Can the Minister assure the House that, if a general election goes against his wishes and people cross their ballot papers having been influenced by Labour propaganda, he will accept that result?
Mr. Lang: Of course I will accept an election result, as anyone would. That is rather a silly question on such an important occasion. If Labour Members abandon the trusts, which, from the terminology that I have quoted, are so close to their own policy, would they but acknowledge the fact, it is not the Conservative party that would be the loser but the delivery of patient care in Scotland.
Mr. Gavin Strang: Is the Secretary of State aware that his disgraceful announcement will add to the fear in Edinburgh at the suggestion that the Princess Margaret Rose hospital might also be granted trust status? Is he aware that that hospital was threatened with closure because of the Government's underfunding of the service in Lothian and that it now seems to be faced with a choice of closure or opting for trust status? Is it not a measure of the damage that the Government are prepared to inflict on the health service in Lothian that, having closed the internationally famous Longmore hospital, they are now prepared even to close the Princess Margaret Rose?
Mr. Lang: No, the hon. Gentleman is wrong. It is not because the Princess Margaret Rose hospital was threatened with closure. If that were the case, no trust application would be acceptable and none would be considered.
Mr. Ian Bruce: Using his budget, will my right hon. Friend be able to afford to get a bus to take hon. Members down to my constituency in south Dorset to see the results of trust status? Two years ago, I felt exactly the same as my hon. Friend the Member for Dumfries (Sir H. Monro) and was worried about the health service policy that we were introducing. It is about time that Scotland saw the results, so that it does not miss the bus on this issue.
Mr. Lang: I am most grateful to my hon. Friend, and I am absolutely sure that we can draw considerable comfort from the experience of hospitals in England. I am also confident that the trust hospitals where applications were approved today will soon be able to demonstrate for themselves the benefits to patients.
Mr. Alistair Darling: In the light of his announcement this afternoon, will the Secretary of State confirm that any hospital that expresses an interest in opting out will be granted its wish at the end of the day, and it will not matter what the public, doctors, nurses or anyone else thinks? The minute an application is made to opt out, the hospital is as good as opted out. That being the case, will the Secretary of State confirm that the Princess Margaret Rose hospital in Edinburgh will be the next opted-out hospital?
Mr. Lang: No, of course I cannot confirm that, because I have not yet seen an application from that hospital. When I do, I shall first want the view of Lothian health board, which I expect to have investigated the matter thoroughly, and I shall then wish to examine the application myself. I would not wish to deny the people of Edinburgh the benefits of trust status if any application that reached me contained demonstrable advantages.
The hon. Gentleman talks about the lack of medical support. Perhaps he did not hear me state that the heads of all the main clinical departments at Foresterhill hospital have given their support and that, in south Ayrshire, the majority of consultants in general surgery, orthopaedics and radiology have also done so. It is evident from the second wave of applications in England that there is a growing groundswell of support from consultants as they begin to realise the benefits of trust status.
Mr. Nigel Griffiths: Does not the Secretary of State realise that his chilling announcement today will send a shiver of fear down the spine of every patient in Scotland and most doctors, nurses and health staff? If he is so confident in the public process, why does he not publish the full business plan, so that we can all see it? Why does he instead take his decisions in the bunker of St. Andrew's house, surrounded by acolytes who do not represent anyone in Scotland?
Mr. Lang: This canard about lack of information has been running throughout the consultation process. Applications have been readily available in great detail, the contracts will be available for public inspection, and the annual accounts of the trusts will be published in the same way as annual accounts of health boards are
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published. It is nonsense for the hon. Gentleman to claim that he is not getting enough information. The most convincing argument for the hon. Gentleman should lie in the results. I am persuaded that they will improve dramatically and that there will be a continuing flow of good news and benefits for patients from the trust applications.
Mr. Archy Kirkwood: Will the Secretary of State accept that, whether the decision is right or wrong, there is a strong argument for hastening slowly, so that people can evaluate the optimistic claims that the right hon. Gentleman has made for trusts this afternoon? Therefore, will he give a guarantee that the next wave will be discouraged for at least three to five years, so that the experiments can be properly evaluated?
Mr. Lang: I am sorry about the hon. Gentleman's reluctance to enable the benefits of trust status, if available —as I believe they will be—to flow through to others. The hon. Gentleman can hardly accuse us of moving too fast. First, we are a year behind England; secondly, I am approving two applications for implementation in 1992 and one for implementation in 1993, as compared with 156 or 157 applications that have already been approved in England. That is a sensible pace, which I expect to accelerate. I think that more applications will be submitted as the benefits of trust status become apparent to more people.
Mr. John McAllion: The Secretary of State has told the House that statutory public consultations were carried out in all three of the applications, and that, in three out of three of the consultations, public opinion was totally ignored. On Tayside, local NHS staff and patients, and local people, are totally opposed to a local management proposal to consider allowing Ninewells, Dundee royal infirmary and King's Cross hospitals to opt out of health board control. Since Tayside people now know that their view will be equally ignored by the Government, will the Secretary of State confirm that the only option that remains for Tayside is, at the next general election, to kick out the two remaining Tory Members of Parliament in Tayside who have given him such servile support this afternoon?
Mr. Lang: I am sorry that the hon. Gentleman is not prepared to consider any possible improvements or changes of any kind to the health service. The reality is that every change that we have introduced in the health service during recent years was attacked or criticised, or caused concern, when it was originally announced. But, step by step, as each of them has been implemented, the benefits have begun to become apparent and are now apparent in increasing numbers, many of which I have already outlined to the House—including the increase in the number of patients treated, shorter waiting lists, more nurses and doctors, better pay and 74 major new hospital developments completed, with 7,500 extra beds, 19 under construction and 18 at the planning stage. That is evidence of our commitment to the health service. Had we not believed that trust status would lead to a genuine advance in patient care, we would not have embarked upon it.
Dr. Norman A. Godman: Why does the Secretary of State so flagrantly disregard the principles and good practices of genuine consultation on

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matters of this kind? May I remind him that, many months ago, the overwhelming majority of consultants at the Inverclyde royal hospital completely rejected the concept of opting out? Therefore, the right hon. Gentleman's disreputable approach to consultation is not at all welcome on the lower Clyde. If, in the few months left to him, he brings that shabby approach to consultation to the lower Clyde, one result will he the doubling of the majority of my hon. Friend and neighbour the Member for Renfrew, West and Inverclyde (Mr. Graham).
Mr. Lang: What I think is a shabby approach to consultation is to mislead and alarm people with distorting statements printed in party literature, circulated to cause concern, fear and anxiety, and then just to count the number of tear-off slips or pre-printed postcards that have been circulated. Consultation involves weighing as well as counting the advice that is sent in. I have carefully weighed the advice against the published criteria, and I am completely persuaded that the trust applications will improve health care in Scotland. If I had adopted the same closed mind that the Opposition have, the health service, instead of advancing as it has done all these years, would be retreating.
Mr. Alex Salmond: When the Secretary of State witnessed the stampede of English Tory Members from the Chamber which delayed his statement, was he not embarrassed by the fact that he depends on their votes to ram his policies down the throats of the Scottish people? How can he start a consultation exercise saying that he will abide by the popular will in the north-east of Scotland and end up by ignoring, distorting or rigging the outcome? Does he accept that there is one popular consultation which he will not be able to rig because, long before the damage is done to the hospitals, the political damage to the Secretary of State for Scotland will be terminal?
Mr. Lang: Something that the hon. Gentleman may never learn is that being in government is about taking decisions, making choices and being judged by them. I am willing to be judged by my approval of the applications and by what I believe will be the improved delivery of health care in the north-east of Scotland. I hope that, when that is proved, the hon. Gentleman will be sufficiently embarrassed— to use his word—to come to the House and apologise.
Mr. James Wallace (Orkney and Shetlands): The Secretary of State did not respond to the request of the hon. Member for Edinburgh, South (Mr. Griffiths) for the publication of business plans for the various hospitals. Will he secure the publication of the business plan for Foresterhill? Can he confirm the rumours circulating in Grampian and the Isles that some capital sum would be made available to Foresterhill if it opted out? If so, will that money come from other parts of the Scottish health service budget? Does he accept that the court of Aberdeen university has been told that it is not an option for it to carry on as it has done before? Is the right hon. Gentleman deaf to what has been said to him?
Mr. Lang: On the contrary: I have paid great attention and care to what has been said to me. It will be for the trusts to decide what details of their business plans they can publish, but there will understandably be an element of confidentiality.
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As to the apportionment of resources, the health board will continue to have the statutory obligation to ensure the delivery of health care in its area. It will enter into a contract with the trust,, and I will be responsible for approving the trust's external financing limit. That exercise will be conducted in a responsible and sensible way, to ensure the delivery of improved patient care not only through trust hospitals but in all the other areas for which the health board will remain responsible in Grampian.
Mr. Andrew Faulds rose—
Mr. Speaker: Was the hon. Gentleman present for the statement?—[HON. MEMBERS:"Yes"] All right—I know.
Mr. Faulds: I am surprised that you, Mr. Speaker, have not heard me in the Chamber.
Mr. Speaker: I have—that is the trouble.
Mr. Faulds: I am most grateful.
Will the Secretary of State attempt to be honest? Will the projected changes have the support of the public in Scotland?
Hon. Members: No.
Mr. Lang: In due course, they will.
Sir Nicholas Fairbairn rose—
Mr. Speaker: Order. As the hon. and learned Gentleman has listened to the answers, I will call him to put his question.
Sir Nicholas Fairbairn: Given that I have been branded —within your parliamentary authority, Mr. Speaker—a "brigand" by the hon. Member for Cunninghame, North (Mr. Wilson), and as "subservient" by the hon. Member for Dundee, East (Mr. McAllion)—which I would not have thought was one of my more obvious characteristics; and having within the authority of the hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes)—
Mr. Speaker: Order. The hon. and learned Gentleman surely means within my authority, and I do not want him to be branded with a reputation for being long-winded.
Sir Nicholas Fairbairn: The hon. Member for Carrick, Cumnock and Doon Valley suggested that the present bureaucracy was guilty of theft and corruption.
Mr. Foulkes: Correct.
Sir Nicholas Fairbairn: Will my right hon. Friend confirm that the biggest theft and corruption occurred when bequests to the national health service were spent on things for which they were not bequeathed? Will he tell Opposition Members why he thinks that it is better that money should be spent on the bureaucrats running hospitals and not on those who deserve to receive proper treatment in them?
Mr. Lang: I entirely agree with my hon. and learned Friend's last point. One of the benefits of trust status will be that management will be much closer to the point of delivery and more flexible, and that there will be closer local contact with the community being served. That will reduce bureaucracy and allow more money to go straight to the point of patient care.
Mr. Sam Galbraith: The Secretary of State failed to answer several important questions asked by my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar), so I will repeat them. What is the originating capital debt of each of the three institutions? What percentage will be interest-bearing debt, and what percentage will be public dividend capital? When will the Secretary of State announce the external financing limits for all three?
The Secretary of State spoke of the promised improvements in opted-out hospitals. Is it not the case that such improvements are available anyway, and are not dependent on a hospital opting out? Is it not the case also that opting-out hospitals simply restrict patient and doctor choice, waste resources in an acute bureaucracy, and create a two-tier health service?
I make it clear once again that the incoming Labour Government will immediately return those hospitals to the people of the country and to their health boards. Health care will once again be about treating patients, not perpetrating outdated dogma, as is the case with Government policy.
Mr. Lang: The hon. Gentleman asked a number of financial questions, which will be resolved and to some extent announced as the public expenditure round is completed and the health budget announced. As to general policy, on 13 June the hon. Member for Strathkelvin and Bearsden (Mr. Galbraith) was quoted in the Glasgow Herald as saying:
"The increased funding to which we are committed will be used to create a reserve at health board level which can be released in the course of the financial year to those hospitals who have out-performed and delivered high activity levels in the priority areas."
That is a dramatic departure from the image that Labour seeks to project. It is the image of a party that is determined to create some kind of two-tier health service. We are committed to delivering a better health service, in which trust status will pay an important part.
am confident that that will be achieved from greater local ownership of the decision-making process and resource allocation and from greater autonomy and flexibility. I have no doubt that residents of the areas to be served by the trusts will be the beneficiaries in the years ahead.
Mr. Tom Clarke (Midlands, West): On a point of order, Mr. Speaker.
Mr. Speaker: Was the hon. Gentleman seeking to put a question?
Mr. Clarke: A question, yes. I did not seek to catch your eye, Mr. Speaker, because I had not heard the statement, but I was here before the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn).
Mr. Speaker: It is a bit late, but I will call the hon. Gentleman, although it does make life difficult for the Chair.
Mr. Clarke: Given the Secretary of State's quite outrageous answers this afternoon, may I ask two questions? First, among the tragic decisions that he has announced, does he not realise that there will be great sadness, to say the least, about his decision on Larbert, which will affect mentally handicapped people and people who have no advocates? If he accepts that community care will be postponed until 1993, why does he not at least postpone that decision?
Secondly, when the right hon. Gentleman crows about the success of trusts in England, why does he not take on board the evidence that has been given to the Select Committee on Health, on which I have given many hours of membership? Does he not accept that that is a shambles that he should not be seeking to inflict on the people of Scotland?
Mr. Lang: I shall not repeat all the benefits expected for the Larbert trust. As the hon. Gentleman was not present at the beginning of my statement, he will no doubt read them in Hansard. He says that there is no support for the application. I listed a number of bodies that support it, and said that all the management and consultants do so. In addition, positive comments have been made by the Greater Glasgow health board and, following the consultation, Forth Valley health board has endorsed the application. They expressed confidence in their professional support, their management teams and their strategic skills.
For the reasons that I gave in my statement, which again the hon. Gentleman will have to read in Hansard, the application is being approved, but deferred until April 1993. I am confident that it too will be able to deliver improved benefits. I do not think that it would be right to deny those benefits to those suffering from mental handicap.

STATUTORY INSTRUMENTS, &c.
Motion made, and Question put forthwith pursuant to Standing Order No. 101(3) (Standing Committees on Statutory Instruments, &c.).

HOUSING (SCOTLAND)
That the Clackmannan District Council (Vesting of Central Regional Council Land) (Scotland) Order 1991 be referred to a Standing Committee on Statutory Instruments, &c.—[Mr. Greg Knight.]
Question agreed to.

Points of Order
4.32 pm
Mr. Peter Snape: On a point of order, Mr. Speaker. Last Wednesday, the hon. Member for Amber Valley (Mr. Oppenheim) rose on a bogus point of order and made certain allegations about the conduct of my hon. Friend the Member for Kingston upon Hull, East (Mr. Prescott), who had attended a function at which the hon. Member for Amber Valley was not present. The allegation was completely untrue but was widely reported. Subsequently, the hon. Member for Amber Valley went into the Members' Tea Room and was told in no uncertain terms by a number of my hon. Friends how unacceptaable such conduct was. [AN HON. MEMBER: "Are you going to be him up?"] That would not be very difficult, would it?
The following day, certain newspapers carried reports of the second incident in the Tea Room, quoting extensively the hon. Member for Amber Valley and one of his hon. Friends, who I understand was not present for that or for the previous incident.
You, Mr. Speaker, will remember when it was possible for hon. Members to disagree with each other away from the Chamber—occasionally using industrial language—without the more sneaky Conservative Members running to the press.
Mr. Speaker: Order. What is the point of order?
Mr. Snape: Will you, through the usual channels, draw the attention of the more senior, and perhaps responsible, members of the Conservative party to this conduct and warn them that, if it continues, it will provoke widespread retaliation from this side?
Several Hon. Members: On a point of order, Mr. Speaker.
Mr. Speaker: No, I am dealing with one thing at a time.
This happened last week. I have drawn the matter to the attention of the usual channels. Time was —not very long ago—when conversations in dining rooms, here and outside, and in tea rooms were not brought into the Chamber. I hope that we can get back to those days. It is not necessary to use such ammunition in arguing our policies.
Sir Hal Miller: Further to that point of order, Mr. Speaker, and for the avoidance of doubt. As the person ultimately responsible for the Society of Motor Manufacturers and Traders' dinner, may I make it plain that, when it became known to me after the dinner that the hon. Gentleman had left—so little disturbance did his departure cause —I made inquiries about what had taken place. I found out that, because of late changes, the seating plan in the reception room did not correspond —
Mr. Dick Douglas: You did not do that with me, Mr. Speaker.
Sir Hal Miller: —with the menu which had been printed earlier. I therefore caused the president to send an apology to the hon. Gentleman the following morning. When I read the erroneous reports in the press, I made a statement about the correct position, which is that the hon. Gentleman had left the dinner making the least fuss possible, even though there had been a place available for him.
Mr. Speaker: I think that that disposes of the matter.
Several Hon. Members rose—
Mr. Speaker: I would not normally go back to something that happened last Wednesday.
Mr. Menzies Campbell: On a point of order, Mr. Speaker. This is a new point of order. May I seek your guidance on the application of a convention of the House and, for that matter, may I ask you to look at written question 126, which you will find on page 662 of the Order Paper? The question concerns the future of Craigtoun hospital, which is in my constituency, and it stands in the name of the hon. Member for Tayside, North (Mr. Walker).
If the terms of the question seem familiar to you, Mr. Speaker, it is because I tabled a question in precisely the same terms last week, but it was met with a reply to the effect that a statement would be made shortly. Is it a convention of the House that, when an hon. Member raises an issue about his constituency, it is then appropriate for the Government to plant a question in the name of another hon. Member, who has probably never seen or visited the hospital involved, in order that the Government may have the benefit of introducing into the public domain the necessary information which is of great importance to my constituency?
Several Hon. Members: On a point of order, Mr. Speaker.
Mr. Speaker: Order.
I am not responsible for answers that are given, but, as I understand it, the hon. and learned Gentleman had a holding answer. Therefore, it seems to me that a further question on the same issue should not be on the Order Paper.
Several Hon. Members: On a point of order, Mr. Speaker.
Mr. Speaker: Since the hon. Member for Amber Valley has been mentioned, I shall call him, but then we must end the matter.
Mr. Phillip Oppenheim: If it is in order, Mr. Speaker, I should like to say that I am prepared to accept that the hon. Member for Kingston upon Hull, East (Mr. Prescott) left the dinner as quietly as is consistent with his character. However —
Mr. Speaker: Order. That sort of comment is inflammatory. The sadness of present-day politics is the lack of the courtesy that we used to have in this place.
Mr. Oppenheim rose—
Mr. Speaker: Order. I hope that we can deal with these matters courteously.
Mr. Oppenheim: An attack was made on me by the hon. Member for West Bromwich, East (Mr. Snape), whose claims about what happened in the Tea Room were completely untrue. I am the one who should receive the apology, because when I went into the Tea Room I said nothing but was attacked by the hon. Member for Kingston upon Hull, East who uttered oaths about me and my mother. I did nothing in the Tea Room to provoke him, but it was he reported the conversation to the press, not me.
Several Hon. Members: On a point of order, Mr. Speaker.
Mr. Speaker: Order. This is not a prep school. Let us get on.
Mrs. Margaret Ewing: On a point of order, Mr. Speaker. This is a different point of order, and I am sure that it is one which you will take seriously, as will all members of Opposition parties from Scotland, especially as we have just had to listen to comments about seating arrangements at a dinner table somewhere and about who behaved or did not behave.
You will have noticed, Mr. Speaker, the sense of anger and frustration during the hour allocated to a very serious issue affecting the national health service in Scotland.
We have no opportunity other than such statements to question the Secretary of State on those matters. We have no Select Committee on Scottish affairs, to which such a matter would rightly have been referred. Scottish legislation—for example, the Education (Schools) Bill and the council tax legislation—is being shoehorned into United Kingdom Bills, and Scottish Members are not being allowed the facility to represent effectively the views of their constituents in a Parliament in which Scottish business is increasingly being demoted.
Mr. Speaker: It seems to me that the hon. Lady is criticising some action of the Government. What is the point of order for me in this? I am aware of the strong feeling on the subject—who could be unaware of it?—and that is exactly why I allowed every Member who wished to ask a question to do so, even those who were not present for the statement.
Mrs. Ewing: The point of order for you, Mr. Speaker, is the fact that it is your responsibility to protect the interests and rights of Back Benchers. Scottish Members are being attacked by people such as the hon. Member for Thurrock (Mr. Janman), who did not even listen to the statement but who says that we are constantly whingeing, whining and carping. Yet we are denied the democratic right to express the views of our constituents.
Mr. Speaker: These are not matters of order to me. [AN HON. MEMBER: "She has a grievance."] She may have a grievance, but it is with the Government, not with me.
Mrs. Edwina Currie: On a point of order, Mr. Speaker. Is it in order for an hon. Member who raises a point of order about the behaviour of other Members not to practise what he preaches? It may be acceptable to some Members of this House that we should have to put up with industrial language in the Tea Room and in the Members' Cloakroom—as the hon. Member for West Bromwich, East (Mr. Snape) said to me last week —but I agree that it is not appropriate for such Members to run to the press. I was prepared to ignore the insults of the hon. Member for Kingston upon Hull, East (Mr. Prescott) but he went to the press. Is it not a gross
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discourtesy for an Opposition transport spokesman to make it so clear to me that he disapproves of women drivers?
Mr. Speaker rose—
Several hon. Members: On a point of order, Mr. Speaker.
Mr. Speaker: Order. I am on my feet. I think the trouble is that such matters were raised in the Chamber, when they should not have been. If they were not raised in the Chamber, they would not be reported to the press—or, if they were, nobody would take any notice of them.
Mr. George Foulkes: On a point of order, Mr. Speaker. In relation to the submissions on the South Ayrshire trust, may I help you by pointing out that, although all the Labour Members made submissions, as did every Labour party association in Ayrshire and every prospective Labour candidate, no SNP association or candidate did so? Does that not make the words of the hon. Member for Moray (Mrs. Ewing) ring hollow? [Interruption.]
Mr. Speaker: Order. Why don't the two hon. Members go and have a cup of tea?
Several hon. Members rose[
Mr. Speaker: And I must say that I do not want to hear anything more about what happened last Wednesday.
Mr. Patrick Nicholls: On a point of order, Mr. Speaker. In a ruling a few moments ago, you referred to the tradition of the House that private conversations between Members should not be the subject of tittle-tattle to the press. I seek your guidance on whether the conversations that you have in mind are exchanges less in the nature of conversations than of foul and abusive language. Surely language appropriate to a ship's galley is not appropriate in the precincts of the House of Commons.
Mr. Speaker: I am responsible for language here in the Chamber, not anywhere else.
Mr. Simon Burns: Further to that point of order, Mr. Speaker. You said earlier that you felt that it was important that courtesy and good manners should govern our behaviour. I accept that absolutely, but does it not seem a little ironic that the hon. Member for West Bromwich, East (Mr. Snape) should speak here on behalf of the hon. Member for Kingston upon Hull, East (Mr. Prescott), since on Thursday evening, although totally unprovoked, he swore at four of my colleagues?
Mr. Speaker: We have had some bloodletting on this matter. Let us leave it there. I hope that we can deal with one another as men and women of honour —as, indeed, we are—return to the old traditions of the House which are admired all over the world, and keep up our standards here.

Orders of the Day

  Prison Security Bill
  Order for Second Reading read.
  Mr. Speaker: I have not selected the amendment on the Order Paper.
  4.46 pm
  The Secretary of State for the Home Department (Mr. Kenneth Baker): I beg to move, That the Bill be read a Second time.
  The Bill forms an important part of our response to the serious disturbances in our prisons in April 1990. Last year we witnessed violence and disorder in Manchester prison on a scale unprecedented in modern times. The disturbance lasted 25 days and the prison was very nearly destroyed. Almost 200 officers and prisoners were injured, and one prisoner received injuries which may have contributed to his death. In that month we witnessed sickening and disgraceful scenes. Those must not be allowed to recur.
  The damage caused at Strangeways will cost about £60 million to repair. A series of other disturbances followed —in Glen Parva, Dartmoor, Cardiff, Bristol and Pucklechurch. The cost of the damage in the other prisons and the consequential cost of keeping prisoners in police cells will probably exceed £100 million this year.
  Even now, 1,300 cell spaces at Manchester prison have not been brought back into use—I note that the amendment on the subject has not been selected—and the male remand centre at Pucklechurch, which provided 130 places for young offenders, is beyond economic repair. That, coupled with an unexpected rise of about 3,000 in the prison population, is the principal reason why we still have large numbers of prisoners detained in police cells who should be in prison. Today that number stands at more than 1,700.
  We have taken a number of measures to address the problem in the short term. Those include, as I have told the House on other occasions, converting Hewell Grange young offenders institution into a prison for adult males, bringing forward the opening of the young offenders institution at Brinsford in the west midlands—that is now in hand—and keeping open the prison at Brockhill, which was due to be closed. In the slightly longer term, the prison building programme should provide an additional 2,700 places by the end of the financial year.
  I accept that it is unsatisfactory for prisoners to be held in police cells, but part of the problem with police cells has been the result of industrial action by the Prison Officers Association at a number of establishments. I am glad to be able to report to the House that that action has been suspended, and I am grateful for the positive line and the co-operation shown by the POA. The places lost as a result of that action are gradually being brought back into use —for example, places at Birmingham, Pentonville and Cardiff.
  Mr. Andrew F. Bennett: Can the Home Secretary tell me why I and other hon. Members should believe him now, when he and his colleagues have been telling us for the past 18 months that the position in greater Manchester would improve, yet prisoners are still
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  being held in places such as Denton police station? That is unsatisfactory for prisoners, for police officers carrying out their normal duties, and for probation officers, solicitors and others who wish to visit prisoners. When will it come to an end?
  Mr. Baker: The hon. Gentleman's comments are correct and I agree with them. The conditions are unsatisfactory. The holding of prisoners in police cells has continued longer than anyone would want because there has been an unexpected and unprecedented rise of about 3,000 in the prison population. The latest forecast is that the increase is likely to abate, but that alone is not sufficient—it may not abate. I cannot tell the House what the prison population is likely to be in the immediate aftermath of Christmas. I have brought forward the opening of an institution and I have kept one prison open for longer than we intended. There will be 2,700 more places by Easter. I hope that that will largely deal with the problem. I mean that. It will depend crucially on what happens to the prison population.
  Mr. Alfred Morris: Is it not just as true that the Greater Manchester police authority is very concerned that it is inadequately compensated for the transfer of responsibilities in this way? Is the right hon. Gentleman aware that there is strong feeling throughout Greater Manchester that the police authority is not being properly compensated?
  Mr. Baker: I will look into that matter. I had not heard that complaint, because the payments to police authorities for keeping prisoners in police cells are higher per prisoner than for those kept in ordinary prisons.
  Earlier this year, I received the report into the disturbances, to which I referred, prepared by Lord Justice Woolf and the recommendations for change which he and Judge Tumim made. I am grateful to them for their work. We have since published the White Paper "Custody, Care and Justice", which contains comprehensive proposals for improvements to both the regimes and the conditions in which prisoners are held, and in security and control. The two are linked. There is never any excuse for behaviour such as we witnessed last year, not even if conditions are not as good as they should be.
  Making prisons more decent places to live in will tend to reduce tensions, and will help to prevent a climate in which mutinous behaviour could develop. Prisons that provide proper programmes and fair treatment for prisoners are, as the White Paper acknowledges, more likely to be stable and safe. Staff can work constructively with inmates when they do not have the fear of a breakdown of order.
  I shall remind the House of the seven major steps that we are taking as part of our programme of prison reform. First, we are on target to end slopping out by December 1994. Already some 65 per cent. of places now have access to sanitation. I know that the whole House thinks that slopping out is an unnecessary, degrading and humiliating experience that should be no part of our prisons. As the House will know, I have brought forward the ending of that practice from the end of the century—the Woolf recommendation was 1996—to December 1994.
  Secondly, we have secured an extra £66 million over the next three years for White Paper-related initiatives. There will be total resources for the prison service of about £1·4

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  billion next year. Thirdly, we have awarded a contract to Group 4 Remand Services to take on the management of the Wolds remand prison.
  Fourthly, this year we are recruiting 2,500 prison officers. Next year, we plan to recruit 1,600 additional officers. Fifthly, regime activity hours for prisoners rose by 8 per cent. in 1989–90 and by a further 7 per cent. in 1990–91. As the House knows, I believe that the regime should be positive. Prisoners should be kept busy when they are in prison.
  Sixthly, a total of 13 new prisons will be delivered between April 1991 and January 1994 at a cost of £900 million. Four are now open and three more will be open by next April. Seventhly, we are developing a code of standards for the prison service and reforming arrangements for dealing with complaints. We will appoint a complaints adjudicator next year.
  We are also improving security and control in our prisons to make it harder for a mutiny to begin or develop. We have increased the number of staff trained in advanced techniques of control and restraint for handling disruptive prisoners. By November 1991, the prison service had trained about 5,000 officers in such techniques—an increase of more than 800 over the past year. Those officers have been successfully deployed on several occasions this year.
  We plan to spend more than £16 million this year on improving physical security. That will include X-ray machines, perimeter fencing, secure staircases and strengthened ceilings to prevent access to roof spaces. We have just issued a new contingency planning manual and we will issue a new security manual very soon. Those will take account of many of the security proposals in the Woolf report.
  In addition to those measures, we have decided to create a new offence of taking part in a prison mutiny, with a maximum sentence of 10 years imprisonment. This short Bill fulfils that intention.
  There are, of course, other ways in which to deal with prisoners who engage in calculated disorder such as we saw last year. Those disturbances have resulted in criminal proceedings against a number of prisoners who engage in calculated disorder such as we saw last year. Those disturbances have resulted in criminal proceedings against a number of prisoners. The House may like to know where we stand on that.
  The trials resulting from the disturbances at Dartmoor, Cardiff, Bristol and Glen Parva have ended. Sixty-two prisoners were proceeded against for a range of public order offences and 37 either pleaded guilty or were convicted. The first trials arising from the disturbances at Manchester and Pucklechurch will begin next January. In all, 108 defendants will be involved. Some have been charged with murder.
  Mr. Andrew F. Bennett: Does the Home Secretary accept that one of the points that causes considerable concern in Manchester is the amount of police time that has been taken up in preparing the charges for those involved in the Strangeways incident? It has meant that those police officers have not been able to be on the beat or to carry out other police activities. They have had to concentrate on bringing the charges arising out of Strangeways. That is one reason why many people in
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  Greater Manchester feel that there is not sufficient money and that there are not sufficient police officers to carry out the duty of protecting the public in Greater Manchester. Will the Home Secretary look carefully at the cost that the police authority has had to bear in bringing forward the documentation for the charges? Will he ensure that Greater Manchester police are compensated in some way?
  Mr. Baker: I will consider the hon. Gentleman's point because he follows these matters in a serious and concerned way. The preparation of the cases against the prisoners in Strangeways has taken a long time because it must be done with especially scrupulous fairness on such occasions. That is why it has taken so long to bring the cases to court. I heard what the hon. Gentleman said and I will look into those points.
  It is not enough to have the machinery to mount a prosecution under the existing range of offences. Those do not prevent serious disturbances breaking out in the first place. The Bill does not simply deal with those who engage in serious distrubances in our prisons; it will also deter them. The new offence, which may be committed only in a prison and only by two or more prisoners acting in concert, will bring home to prisoners the severe consequences of mutinous behaviour.
  At present, a prisoner may be vaguely aware of a range of public order or criminal damage offences—normally the latter—with which he may be charged if he chooses to lend his backing to a serious disturbance. However, the warning signals are not, in my view, clear enough.
  All prisoners are given an information pack on their reception into prison. It contains a number of leaflets dealing with visits, complaints, discipline and other matters. The Prison Reform Trust has recently helped us to improve that pack. In future, prisoners will also receive a notice describing the offence of prison mutiny and the penalties available to the courts if a prisoner is convicted of it. This will be drawn specifically to the attention of prisoners. Prisoners must be aware that rioting is not a cost-free option. If prisoners want to make a point about the conditions in which they are held, there are proper procedures for them to follow.
  Mr. Robert Mclennan: As the measure was not adumbrated in earlier considerations by the right hon. Gentleman on the future of the prisons, will he tell us whether he consulted the Prison Governors Association about the Bill, and if so, whether it considered the Bill to be necessary? My understanding is that the association is opposed to it.
  Mr. Baker: There are wide consultations on Bills whenever new offences are created. We and many people in the prison service believe that this extra weapon should be available.
  Mr. Roy Hattersley: No.
  Mr. Baker: Some governors to whom I have spoken have said that they would welcome the measure because they are also concerned. I know that the right hon. Gentleman believes that the Bill is not necessary. I believe that it is necessary because, as I have said, in future prisoners will receive a notice describing the offence of prison mutiny and the penalties available to the courts if a prisoner is convicted of that offence. It will be drawn specifically to the attention of prisoners. Prisoners must be aware that rioting is not a cost-free option. It would be

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  helpful from the point of view of a deterrent for prisoners to appreciate the consequences if they engage in disturbance and riot.
  Mr. John Greenway: Will my right hon. Friend clarify a point? He said that the cost of the damage at Strangeways alone was about £60 million. Has that money had to be found from the prison refurbishment programme or is it additional money? It seems to some Conservative Members in particular that when prisoners riot and cause damage such as occurred in Strangeways, they do not appreciate that it is not cost-free. It must mean that there will be a slowdown in improvements in the prison estate.
  Mr. Baker: Money will have to be found from existing resources for existing refurbishment programmes. My hon. Friend makes a very good point. If, as a result of such disturbances, severe damage costs a great deal to repair, no indulgent Chief Secretary to the Treasury—that is almost a contradiction in terms —would ever say, "You may have some more money for that." The work must be done, and that usually means a postponement of refurbishment elsewhere and a postponement of the very improvements that many prisoners would welcome.
  Mr. Greenway: Just by way of an interesting anecdote, the current Chief Secretary was the Minister with responsibility for prisons at the time of the Strangeways riot.
  Mr. Baker: Because the present Chief Secretary understood the problems of the prisons, I was able to secure from him a favourable settlement for the prison service for next year.
  I shall now refer to the specific clauses of the Bill. The new offence of prison mutiny is contained in clause 1. That makes it an offence for two or more prisoners to take part in a prison mutiny. If convicted, such prisoners face a penalty of up to 10 years imprisonment over and above the sentence that they are serving. The case must be tried in the Crown court and only—this is important—with the consent of the Director of Public Prosecutions. A prison mutiny occurs when two or more prisoners engage in conduct intended to further a common purpose of overthrowing lawful authority in the prison. It also occurs when they collectively resist, impede or disobey any exercise of lawful authority in such a way as to make their conduct subversive of order. The test is intentionally quite strict.
  As the House will appreciate, the provision is targeted on the most serious disturbances. For lesser offences within a prison, there is available a range of disciplinary measures. The governor may at present award up to 28 days loss of remission for offences such as denying access to any part of the establishment to any officer, disobeying any lawful order, and detaining any person against his will. The new offence is aimed at behaviour that goes some way beyond that. The test in clause I will also catch those who instigate a mutiny or co-ordinate the action behind the scenes, but play no active part in it themselves—in effect, those who pull the strings.
  Clause 2 deals with the related security issue of assisting escapes. It does several things. First, it widens the scope of the offence in section 39 of the Prison Act 1952 of conveying anything into a prison with intent to facilitate an escape. The clause also increases the maximum penalty
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  for that offence from five to 10 years imprisonment. Secondly, there is also an offence under section 22(2)(b) of the Criminal Justice Act 1961 of harbouring an escaped prisoner. The maximum penalty will rise from two to 10 years. The purpose in increasing penalties in that way is to reinforce society's disapproval of such conduct and to correct an anomaly. The maximum penalty for the related offence under the Criminal Law Act 1967 of impeding the apprehension of a person known or believed to be guilty of an arrestable offence is 10 years imprisonment. We are taking this opportunity to align the penalties and to remove that anomaly. This is a short but important measure.
  5.3 pm
  Mr. Roy Hattersley: I fear that the Bill is exactly what we have come to expect from the present Home Office. It is concerned less with solving real problems than with catching headlines. It is intended to create the illusion of activity. By that attempt, it diverts attention from the Government's failure to remedy the crisis in our prisons.
  Certainly, the Home Secretary briefly described the crisis in our prisons, but he did not even attempt to relate the Bill to a solution of the problems which he outlined. That may be because he does not quite understand the history of the problem or the nature of the Bill, for during his introductory paragraphs he referred to Lord Justice Woolf's report as comprehensive. Whatever else he thinks of that report, he cannot believe it to be comprehensive, as it did not include the present proposal. I shall refer to that point in a moment, but I want to make absolutely clear our attitude to the Bill and to its contents.
  At the time of the debate on the Queen's Speech, we believed that the Bill would be no worse than irrelevant to the needs of the prison service. We said that we would not oppose it. Nor shall we, but, having now seen the text, I must make it clear that in one particular we regard its provisions as wholly unacceptable.
  The definition of the new offence, which appears in clause 1, was described by the Home Secretary as "intentionally quite strict". In fact, it is so wide and so amorphous that it may encompass activities which in no way justify the penalties which are stipulated in that clause. The offence of prison mutiny carries a maximum sentence of 10 years' imprisonment, yet clause 1 defines prison mutiny as occurring when
  "two or more prisoners…collectively resist, impede or disobey any exercise of lawful authority in the prison in such circumstances as to make their conduct subversive of order in the prison."
  We can hypothesise the behaviour that might come under that heading and might in consequence justify a prison sentence of 10 years. It is easy enough to imagine behaviour of the sort which would justify such a sentence. However, it is easy to imagine, too, conduct which, while being generally appropriate to the description in the Bill, would in no way justify so severe a sentence.
  Previous proposals for a new offence of prison mutiny have all required the prosecution to prove intention or common purpose to overthrow legitimate authority or to demonstrate that prisoners have used threatening or violent behaviour. In this Bill, all that is required for conviction is proof that a lawful instruction was disobeyed in a way which undermined prison discipline. That definition, if words have any meaning, must include

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  conduct such as ridicule and dumb insolence. A maximum sentence of 10 years for such conduct is out of all proportion to the nature of the offence.
  Between March and June of this year, there were, in English prisons, 58 protests of one sort or another. Twenty-three protests concerned the quality of prison food. A prisoner who, as part of such a protest, refused to leave the dining hall would, technically at least, be guilty of an offence that carried a maximum sentence of 10 years. That is wholly unreasonable.
  Clause 1(4) increases the risk of disproportionate punishment for a trival offence. It states:
  "Where there is a prison mutiny, a prisoner who has or is given a reasonable opportunity of submitting to lawful authority and fails, without reasonable excuse, to do so shall be regarded for the purposes of this section as taking part in the mutiny."
  In short, if a group of prisoners refuse to leave the dining room in protest against the quality of their food, anyone who remains with them will be liable to a prison sentence of 10 years. Few people would believe that even the ringleaders in such a demonstration deserve a decade in prison. The idea that those who sit in mute support should also qualify for such punishment is patently ridiculous.
  No doubt the Minister of State will tell us that long sentences will never be imposed in such cases, but some of the conduct encompassed by the clause should not be a criminal offence at all. A prisoner who, for a time, refused to return to his cell has not committed an offence which should be stigmatised as criminal. In any case, the crisis of prison overcrowding is in part caused by thoughtless optimism about sentencing policy. We create maximum sentences in the belief that they will be used only when appropriate. Regrettably, that is not always the case.
  In Committee, we shall attempt to relate the maximum penalties of clause 1 more closely to the most serious offences stipulated in clause 1(2), (3) and (4) and to make it explicit that only appropriate offences are criminalised by the Bill. If the Government reject that necessary improvement, we shall vote against the Bill on Third Reading.
  Of course, the Home Secretary has implied that the Bill is needed to deal with more serious offences —what I shall call genuine prison mutiny; mutiny of the sort that we saw at Strangeways prison in 1990. Perhaps that ludicrously broad definition, which encompasses sitting at a dining room table and threatening to burn down the prison, was simply a mistake. If so, no doubt the Home Secretary will soon tell us which civil servant is to blame. But, if he simply claims that the Bill is necessary to deter violent mutiny, that is patently absurd. Prisoners involved in violence, wilful damage, threatening behaviour, assault and real disorder can already be charged with a number of serious offences. If the severe penalties already available do not deter rioters, none of the penalties stipulated in this Bill will act as a deterrent. In short, this was so much window dressing.
  My noble and learned Friend the Lord Richard made the point exactly in another place:
  "the new offence is needed only in the case of a mutineer who is non-violent and does not threaten to be violent. There are plenty of crimes for which he can already be charged if he is violent or if he threatens violence. Furthermore, he must not occasion criminal damage…and must act alone, otherwise he can be charged with his co-mutineers with an offence of conspiracy.
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  It is difficult to think of an example of a mutiny for which the offence is needed."—[Official Report of the House of Lords. 7 November 1991; Vol. 532, c. 230.]
  It is clearly not needed for the preservation of prison discipline. I do not ask the House to accept my judgment on the matter. That is clearly the judgment of Lord Justice Woolf. In his report, "Prison Disturbances", published in April 1990, he made 204 recommendations on the government of our prisons. A new offence of prison mutiny was not included among them. The Woolf report, commissioned by the Government to prescribe a remedy for the crisis in our prisons, never even mentioned the idea. It is bizarre to the point of perversity that the Government should have the Woolf report at their disposal, fail to implement many of its recommendations, but nevertheless introduce an idea which Lord Justice Woolf did not even think worthy of the Home Secretary's consideration.
  We certainly believe that the Government are right to introduce a prison Bill in this their last Session, but it should have been devoted to something worth while. The Home Secretary shied away from Lord Justice Woolf's key recommendation —the proposal that no prison establishment should hold more than its certified normal level of prisoners and that Parliament should be informed whenever that number was exceeded.
  Yet Lord Justice Woolf was explicit about the major cause of the crisis in our prisons, including the disturbances which erupt from time to time. His report quoted the director-general of the prison service as saying:
  "The removal of overcrowding is, in my view, an indispensable pre-condition of sustained and universal improvement in prison conditions."
  Lord Justice Woolf "unreservedly" endorsed that
  "assessment of the effect of overcrowding and of the importance of resolving the overcrowding problem in the future",
  yet today there are 47,443 prisoners in custody in England and Wales. Our prisons are so overcrowded that 1,667 remand prisoners are held in police cells.
  If the Home Secretary took urgent action to reduce the prison population, he would reduce not only crime, which overcrowded prisons breed, but also the likelihood of prison riots. New cells will not solve the problem of overcrowding. The only way in which that problem will be solved is by a reduction in the prison population, but the Home Secretary will not face the consequences of encompassing that.
  Mr. Baker: That is easier said than done. The hon. Gentleman says that we should reduce the prison population. Is he suggesting that I should exercise executive release or that, if he were Home Secretary, he would exercise executive release?
  Mr. Hattersley: I will give three examples, all of which the right hon. Gentleman has rejected in the past. First, there should be a sentencing council, which would bring some consistency to sentencing and prevent people from being sent to prison for unreasonable periods. Secondly, there should be a real assault upon the incompetence and inefficiencies of our courts, which would result in a reduction of the time men and women are held on remand and reduce pressure in that way. Thirdly, some categories of offence should be removed from custodial sentencing. In my view, it is wholly absurd, for instance, that maintenance defaulters should end up in prison, making

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  sure that, whatever else happens, maintenance is not paid. I could give many other examples, but those are three which the Home Secretary might work on straight away.
  Mr. Andrew F. Bennett: Two of my constituents were awarded by the courts compensation for damage that a burglar had done in their house. Instead of paying that compensation, the person concerned served an extra week in prison. Is it not an absolute absurdity that that person should spend an extra week in prison and my elderly pensioner couple should not get compensation for the damage that they suffered as a result of the burglary?
  Mr. Hattersley: It is not only an absurdity but an absurdity that victims of crime resent. One of the great arguments for sentencing within the community is the opportunity that it ought to give the offender to make restitution in some way for the damage or hurt that he or she has caused. Whenever I talk about these things anywhere in the country, I find that people who have been burgled or mugged, or have had items stolen from their vehicles would much prefer the young man or woman who committed the crime to do something to compensate or repay them instead of spending a brief time in prison, with all the disadvantages that that involves.
  It was the Strangeways riot that resulted in Lord Justice Woolf's inquiry. His report reveals that, at the time of the the disturbance, that prison had certified normal accommodation for 970 prisoners, but held 1,647 prisoners. That, the report concludes,
  "would make it difficult to provide a constructive regime which would have helped to alleviate the dehumanising effects of the insanitary and unsatisfactory physical conditions within the prison."
  Even at Glen Parva, a modern prison, which rioted shortly after Strangeways, the CNA was 612 and the actual prison population was 778.
  All the prisons which, having experienced riots, were examined by Lord Justice Woolf held more prisoners than the certified normal accommodation figure. Yet the Home Secretary does not legislate to deal with the cause of disturbances.
  Mr. John Greenway: I am not entirely out of sympathy with what the right hon. Gentleman is saying on this, but I would remind him that we have seen disturbances recently at the prison at Full Sutton, near York, which is not even full; there are still empty cells.
  Mr. Hattersley: I am not saying that disturbances always have a single cause. I am saying that Lord Justice Woolf, who produced an authoritative report on prison riots and the improvement of prison conditions—admittedly, a report that does not recommend the one thing that the Home Secretary has chosen to do, but a report which the Home Secretary wrongly described as comprehensive—draws attention time after time to the simple fact that all prisons that rioted in 1990 and were the subject of the inquiry were so overcrowded that many of the proper duties that prisons should perform were not being and could not be performed.
  By dealing with the crisis in prisons by a Bill of this sort rather than dealing first and fundamentally with the overcrowding situation, the Home Secretary is attacking the symptoms, not the causes. It is the sort of legislation that comes from a cosmetics salesman. It attempts to paint over the blemishes rather than remove them.
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  The conclusion that this Bill is a pointless publicity exercise is reinforced by an examination of the way in which previous Home Secretaries—Conservative Home Secretaries, I might say—have dealt with the issue of prison mutiny. In 1985, the Prior committee on prison disciplinary systems recommended that such an offence should be created. However, a year later, the Public Order Act 1986, which applies as much inside prisons as outside, became law. It created a statutory offence of riot—12 or more people using or threatening violence for an unlawful purpose. That offence carries a maximum sentence of 10 years, the same period as appears in this mutiny Bill. It created other offences —violent disorder, affray and threatening behaviour.
  The White Paper, "The Prison Disciplinary System", published in the following year, 1986, concluded that, because of the new offence of riot, a prison mutiny Bill was no longer necessary. Indeed, it was explicit in its judgment that the Public Order Act had made a new offence of prison riot unnecessary. A previous Tory Home Secretary wrote in the White Paper:
  "Since the Prior committee's report was published, the Government's Public Order Bill has been put before Parliament…Given the restructuring of public order offences in the Public Order Bill, the Government's view is that there is no need for a further public offence of prison mutiny."
  The Home Secretary has not even tried to explain why the Government have changed their mind or why he has rejected the published judgment of his predecessor. The only possible explanation is that the new Bill is needed as a diversion, an event to divert attention from the real needs of the prison system, needs which the Government do not and will not face.
  Clause 2 amends the Prison Act 1952 so as to increase the penalty for sending anything into prison with the intent to facilitate an escape. That is presumably the product of what we now know about the Brixton prison escape. We still do not know the full story of Brixton; therefore, we do not know the truth. Since the Bill relates to that breakout, I take the opportunity to tell the Home Secretary once more that sooner or later he will have to be frank with the House and the country about what occurred at Brixton and about what he knew.
  It is now established beyond doubt that special branch officers arranged for a prison officer to discuss escape plans with the two suspects who are still at large. It is also certain that the Home Secretary knew of the special branch involvement by the time he made his statement on Judge Tumim's inquiry. Yet he chose to keep it secret and blamed officers of the prison service for what happened. I understand that another television programme, dealing directly with what the Home Secretary chose not to reveal although it was known to him, is to be broadcast on Thursday. I warn him that the subject will not go away until he is frank with the House and the country.
  Our confidence in the Home Secretary and in his ability to handle the crisis in our prisons might be slightly restored if, even at this late stage, he gave the House and the country the full facts about the Brixton breakout. I doubt if he will accept my advice. Instead, he will rely on Bills such as the one we are debating, at best irrelevant, at worst unreasonable —
  Mr. Mark Wolfson rose—
  Mr. Hattersley: This is my final sentence; then I shall sit down so that other hon. Members may take part in the debate. [Interruption.] I think the Whip wants to say something to me.
  Mr. Irvine Patnick indicated dissent.
  Mr. Hattersley: No, the Whip does not want to say something to me. I repeat that the Home Secretary will rely on Bills like this, which are at best irrelevant and at worst unreasonable. The main casualty will be his already damaged reputation.
  5.22 pm
  Mr. Ivan Lawrence: We have come to expect that the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) will pour scorn on every idea which does not emanate from himself. Her Majesty's Opposition are expected to oppose—that is their constitutional position —but they are not expected to oppose everything whenever, whatever and however it is put forward. I should have thought that good sense would dictate that someone who opposes every measure begins to lose credibility. The right hon. Member, who opposes everything so vehemently, has very little credibility left on this subject.
  The right hon. Gentleman said that a reduction in the prison population was the way to improve the position in prisons. I listened with great care to discover how his brilliant mind would explain how in a society so apparently lawless there was a brilliant way of reducing the prison population. All that the right hon. Gentleman could come up with were three proposals.
  The first was that fine defaulters should not be sent to prison; but very few are. What sanction does the right hon. Gentleman suggest for those who persistently flout the view of the court that somebody is able to pay but refuses to do so? Secondly, the right hon. Gentleman suggested that there should be a speedier process. We all want a speedier process and therefore fewer remand prisoners. The problem with recent miscarriages of justice has been that the police have not done a thorough enough job. To do a thorough job, the police need more time.
  Thirdly, the right hon. Gentleman suggested that in some miraculous way a sentencing council would relieve the pressure on prisons. If a court has sentenced somebody to prison for an excessive length of time, there is already a sentencing council—the Court of Appeal, which can reduce the sentence. If the right hon. Gentleman wants more and more bureaucratic institutions set up to do the work of existing institutions, he had better say so. I was totally unconvinced that he, any more than anyone else, has a solution to the amount of crime and the necessity to send people to prison.
  I congratulate my right hon. Friend the Home Secretary on the Bill, which provides for tougher action against prisoners who wish to carry out their war against society after conviction and sentence from within—or worse, outside —the prison to which they have been sentenced. The public are thoroughly fed up with prisoners smashing up prisones, which then have to be repaired at vast expense to the taxpayer, and with attempted escapes which cause injury to dedicated prison officers. Still more are the public fed up with escapes which succeed, and they
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  will be appalled to hear from my right hon. Friend that the cost of damage to our prisons last year exceeded £100 million.
  The Bill is the latest in a long line of measures to protect society from criminals and to improve the penal system. A succession of Conservative Home Secretaries have ensured that we now have the largest prison building programme this century, with nine prisons built and 4,000 places provided, and 12 new prisons on the way. We appointed a superb chief inspector of prisons, Judge Tumim, and set up the Woolf commitee on prison reform, which has produced an excellent report. As a result, we shall end overcrowding by 1995 and slopping out by 1994. We are funding prison security much more excessively than in the past. We have ended some of the petty things like routine censorship of letters, and we have increased family visits.
  More to the point, we have considerably improved, by increasing their numbers, the service provided by prison officers. There are 4,700 more prison officers, with 1,600 on the way, and 3,000 fewer prisoners, so the prison population has risen by 7 per cent. while the prison service has increased by 47 per cent. We have a better staff-inmate ratio than France or west Germany, and if we include prison auxiliaries and night patrols, we do not compare all that badly with the Scandinavian countries.
  If it becomes obvious that the first private prison at Wolds, which is to be run by Group 4, is a success, I hope that the burden on the prison system will be further lightened by the extension of private prison building and private prison management, certainly for remand prisoners as there can be no sensible objection to treating unconvicted prisoners better than convicted prisoners. I think that we can all applaud my right hon. Friend for the other improvements in prison security about which he has told us.
  In all these matters Government prison policy has been positive, constructive and beneficial. We have no need to take lectures from the Opposition, who presided over the slashing of prison building by 29 per cent. while the prison population rose by 14·5 per cent. The Liberal Democrats, starkly represented by the hon. Member for Caithness and Sutherland (Mr. Maclennan), seem to concentrate on reducing the use of prison rather than on anything else. Of course, there is still a considerable task ahead for Government in improving the penal system.
  It is not much use improving the number and quality of the prison buildings if the prison management does not also improve. There is clearly much room for improvement in a number of management areas, such as the co-ordination of intelligence within prisons and the co-ordination of response. It is no secret that the governor of Brixton prison knew on 4 February 1991 that a breakout from the prison was being actively contemplated by IRA terrorists in the prison, yet they were not split up or moved. It seems that they were not closely watched—and the inevitable happened.
  I warn the right hon. Member for Sparkbrook—I hope that he will accept that I do so in the best possible spirit—not to be carried along by media representations of what happened at Brixton. One of my constituents is the prison officer allegedly involved in those activities, and he strongly insists that the portrayal of what happened in Brixton in last week's Thames Television programme is totally wrong. When the inquiry has been completed, we

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  shall all know what happened, but in the meantime I warn the right hon. Gentleman that all is not as portrayed on the media.
  To give the House another example of a fault in the management of the prison service, I remember taking part in a case several years ago involving a prison breakout. Some convicted men went over the wall and the judge, who was born in that very prison, called for an improvement in security at the prison. It was Brixton prison. I do not know how many men have since gone over the same wall, but there have been several even recently. Yet not very much seems to have been done to make that wall unclimbable. That is not the fault of the prison governor; it is the fault of the prison service, for which my right hon. Friend the Home Secretary and his predecessors have the unavoidable responsibility.
  There is something wrong with the management of the prison service when the Prison Officers Association has 70 disputes in 41 prisons. Indeed, there is so much dissatisfaction with that union from within the prison service that another union, the Prison Service Union, is being set up and I understand that it has so far received 1,000 pledges from prospective members.
  Mr. David Trimble: It is not recognised.
  Mr. Lawrence: Indeed, the question is when my right hon. Friend the Home Secretary will recognise it. I hope that the proposed union will receive more support not only from the Government but from the House, because not having a monopoly union in the prison service must be healthy, especially if the monopoly union brings about so many disputes.
  Mr. Robin Corbett: As the hon. and learned Gentleman is asking questions about the management of our prisons, what has he to say about the management of a prison service in which, 12 months after a learned judge advises the Home Secretary to move suspected and convicted terrorists from Brixton prison, they are still there?
  Mr. Lawrence: The hon. Gentleman makes a fair point, which is not very different from the point that lf was making about what the governor of Brixton prison knew several months before those IRA terrorists broke out. I accept that the hon. Gentleman has made a fair point. Perhaps my right hon. Friend the Minister of State will respond by telling the House what she knows when she replies to the debate.
  There are other examples of management failures. Old Bailey barristers are being prevented from having conferences with their clients at Brixton prison by prison officers, the prison service, or both. If one wishes to interview a client, one has to give notice about a week in advance, and sometimes interviews are cancelled at the last minute on the diktat of whoever is running Brixton prison. That is outrageous, as judges at the Old Bailey have made clear, but judges have no power over the running of the Prison Service. That again is a management failure, and improvements must be made.
  I am therefore pleased that my right hon. Friend the Home Secretary has recognised the importance of such management failures and that he has appointed Admiral Sir Raymond Lygo to improve management in the prison service. We can only hope that that review will be followed by sensible action. It is worth noting that the Woolf report
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  also drew attention to those management problems, as has the director of the prison service, Mr. Joe Pilling. Management is at fault and we must clean it up. I know that my right hon. Friend takes this matter seriously.
  With regard to the Bill, after 30 years at the criminal Bar and 35 years in politics, I have been driven reluctantly to the conclusion that fear is a more effective motivator of human behaviour than anything else, especially when dealing with people of ill will. I have seen too many offenders laughing at the courts for their weaknesses, too many malcontents exploiting the absence or inadequacy of the law, and too many criminals making the cool assessment that the risk of detection is well worth taking. As a result, I share the preponderant view that shorter sentences are often worse than longer sentences. It would be better for law and order if criminals were deterred by the possibility of receiving a longer sentence.
  Mrs. Teresa Gorman: I entirely support my hon. and learned Friend's view that people should be afraid of the law and of being caught, but does he agree that boredom has played an important role in prison riots? I hope that our reforms will make it possible for prisoners to do some useful form of work in prison. That trend is growing in America. It enables prisoners to pay off their debts to society by working hard and banking the money.
  Mr. Lawrence: My hon. Friend is a charming relative newcomer to this place and we are delighted that she is here, but if she had been here as long as I have—getting on for 18 years now—she would have heard me banging on about exactly that point. I am pleased to have her support. It is necessary to turn our prisons into workplaces in which the inmates do not receive parole but can work their way out of prison by dedicated activity, which should be properly paid so that they can compensate those whom they have wronged and pay something back into the system. I am pleased that the idea that we should turn our prisons into workplaces is slowly beginning to take hold. The Woolf report gave some articulation to it. Apart from anything else, if prisons were places where criminals had to work, fewer of them would want to go to prison.
  Harsher sentences are necessary to make fear a dominant element in deterrence. It might not be a wholly popular view among pundits, but I am sure that it will he wholly popular among the people that the Bill should provide the power to impose deterrent sentences. Of course, not every would-be escaper would be deterred by the fear of a harsher sentence, but even now some prisoners refuse to go along with escape or mutiny plans due to fear of the consequences. The Bill will ensure that many more prisoners will refuse to join or support others' plans to forgo the consequences of their offending. Only the right hon. Member for Sparkbrook could describe that as a pointless publicity exercise. I hope that the provisions will reach the statute book quickly.
  5.38 pm
  Mr. Robert Maclennan: The hon. and learned Member for Burton (Mr. Lawrence) persisted in talking about the new harsher penalties that would be available under the Bill. I believe that he was misleading the House and the country by those assertions, because the burden of the case of those of us who think that the Bill is completely irrelevant to the problems of our

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  prisons which it purports to tackle is that the penalties already exist in the Public Order Act 1986, for which the Government can legitimately take credit.
  The Bill does nothing to increase the powers of the courts if order should break down inside a prison, although it touches in a new way on some of the matters relating to aiding and abetting an escape outside a prison. But that was not the burden of the case made by the hon. and learned Member for Burton, any more than it was the Home Secretary's case when he spoke in commendation of the Bill. It was notable that, in his introductory speech, the Home Secretary devoted very little time to the content of the Bill and scarcely sought to justify it.
  Mr. Lawrence: It is a short Bill.
  Mr. Maclennan: That does not diminish the need to explain and justify the complete volte face by the Home Office.
  Mr. Lawrence: It is not a volte face.
  Mr. Maclennan: Yes, it is.
  In 1986, the Home Office, under a previous Home Secretary, published a White Paper in which it explicitly rejected the proposal to introduce a new crime of prison mutiny. I cannot understand why the hon. and learned Gentleman says that it is not so. It is there in black and white. It was recommended initially by the Prior committee that an offence such as we are considering tonight should be created. The Government rejected it for precisely the reasons that I mentioned. The instruments for punishing prison rioters were already available and the offence was unnecessary.
  Like the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), I thought hard and long about why the Government had reversed their decision. What change of circumstances had come about which made them take an entirely different view? One recoils from the obvious answer, which is that the Home Secretary wants yet again to produce a cheap headline in the popular press such as "Crackdown on crime", by producing, as the right hon. Member for Sparkbrook said, a modest and short Bill. The Home Secretary is receiving a disproportionate amount of attention from the press for the action that he has taken. There might have been some other more rational explanation, but it was not furnished to the House by the Secretary of State. I will deal with what he said in a moment.
  The Secretary of State did not tell us that there had been a change in circumstances since the Government rejected the Prior report. The change is in the procedures proposed for adjudication on offences in prisons by boards of visitors. It may be argued that, in 1986, the Government rejected the idea of abandoning the adjudicatory role of the prison visitors board, which was part of the Prior recommendations, so, as they had gone some way to changing the internal discipline regime, they might reasonably look again at Prior. But we had none of that from the Secretary of State tonight.
  Instead, we had the bizarre suggestion that prison order was likely to be more easily maintained if, on entering a prison, prisoners were given a little package telling them the consequences of their actions if they stepped out of line. An Act of Parliament is not necessary to do that. I am
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  not averse to packs of information on what happens when someone goes into prison. It seems to be part of the Woolf proposal for compacts and for making prisoners fully aware of what is happening in prisons and what the plans are. The provision of such packs of information is concomitant with that proposal. However, if prisoners are at risk of sentence under the Public Order Act 1986, the pack of information can explain that just as easily as it can explain the contents of this miserable and irrelevant little Bill.
  Once again, the Home Secretary has recognised that there is a problem. He feels that he must do something about it. He must persuade the public that he is doing something quickly, never mind the effectiveness of what he is doing. When there were tragic cases of dangerous dogs assaulting young children, the Home Secretary had to produce a Bill overnight. It was then withdrawn and another Bill was introduced, just so that we could have a crackdown on dangerous dogs. So, when there are riots and problems in prisons, we have to have a speedy and instantaneous responses from the Home Secretary. which is presented as the solution to the problem. Candidly, that will not wash.
  The Bill is scarcely worth opposing. I wholly agree with the right hon. Member for Sparkbrook that it would be inappropriate to oppose the Bill on Second Reading, but, like the right hon. Gentleman, I intend to look closely at what happens to it during its passage through the House. It will have damaging consequences which willl flow from it not being targeted tightly on violent offences, as the Home Secretary suggested that it was. Violent offences gave rise to the need in the Home Secretary's mind to introduce the Bill.
  The word "violent" does not appear in the Bill. If a prisoner disobeys an instruction to place his laundry in a certain basket, he will be at some risk of being found guilty of mutiny under the Bill.
  The Minister of State, Home Office(Mrs. Angela Rumbold)indicated dissent.
  Mr. Maclennan: The Minister of State shakes her head. It may be that, if the matter went to the Director of Public Prosecutions, he would take the view that the matter was not sufficiently serious to prosecute, but that is not the point. The point is that the definition of the offence in clause 1(1)(b) is so wide that any stepping out of line could constitute prison mutiny. As Lord Richard said most eloquently and correctly in another place, the only new element of the offence is that it is non-violent and is almost certainly conducted without conspiracy or the involvement or others.
  In an intervention during the Home Secretary's speech, I asked whether he had consulted or heard from the Prison Governors Association about the Bill. Perhaps the Minister of State will be kind enough to inform the House who was consulted before the Government introduced the Bill, and who approves of it. We had some anecdotal evidence from the Home Secretary that one or two prison governors whom he happened to run into in recent weeks said that the Bill might not be a bad thing.
  The Prison Governors Association has told me clearly that it opposes the Bill on the grounds that the measures that it contains are "too draconian"—I use its exact words. No one is more anxious that the penalties should be apt for the crime than those most immediately affected by prison

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  disorder. The prison governors have said that it is too draconian, and the Prison Officers Association has expressed the view that it is an unnecessary knee-jerk reaction to a deeply serious problem. However, I recognise that the Prison Officers Association does not carry much weight with the Government at present.
  Notwithstanding the scope of Lord Justice Woolf's inquiry, he did not recommend that the new crime of prison mutiny should be introduced. I have not at any point heard Judge Tumim suggest that such a crime is appropriate. I can only assume that, as the matter was extensively discussed earlier, they thought that the issue was dead and that there was no point in discussing it, because the arguments had been so effectively canvassed and dismissed that the Government would not contemplate introducing such an offence.
  The extensive and widely approved report from Lord Justice Woolf said nothing about introducing an offence of prison mutiny. The Government appear to be flying in the face of that report.
  If the Government have received no recommendations that an offence of prison mutiny is necessary or desirable from anyone involved in the management of prisons, from what other organisations have they had such recommendations? Have the Government considered the experience in Northern Ireland or Scotland? Both countries have suffered prison violence, disorder and breakouts. Indeed, in Scotland, the power of a governor to limit remission is about half the power of a governor in England.
  Nevertheless, as far as I am aware, there is no pressure to align the law in Scotland with the Government's proposal. The Secretary of State for Scotland has not introduced a measure of this type. I wonder why. I wonder whether the Secretary of State for Northern Ireland was consulted about his experiences. The situation in the three separate parts of the United Kingdom is not so radically different that it is appropriate to establish different crimes as part of the panoply of the law for dealing with offences in prisons.
  Mr. Lawrence: Is the hon. Gentleman in favour of reducing the age of consent in homosexual offences to 16? If so, Scotland has a different approach to such matters from that of the rest of the United Kingdom.
  Mr. Maclennan: That has nothing to do with the matter under debate. I do not propose to get involved in what is clearly a diversionary tack. That is a Conservative tactic: when faced with a difficult question, they invariably try to divert attention by mentioning another issue.
  In the Bill, the Home Secretary has sought to divert the public's attention from the powerful recommendations in the Woolf report. He has failed to give a timetable for the implementation of those proposals, to set out a schedule which would carry weight and to tackle the problems at base. Instead, he has produced a little Bill which has no friends and which the House will not find—
  Mr. Steve Norris: That is why no one is going to vote against it tonight.
  Mr. Maclennan: As I explained to the normally silent Parliamentary Private Secretary, it is not appropriate to vote against a Bill of this sort at this stage.
  Mr. Lawrence: The hon. Member seems to agree with it.
  Mr. Maclennan: I think that my comments will be taken by a fair commentator as fairly hostile to the Bill. I certainly hope that is the message that got through.
  Clause 1(2)(b) is the part of the Bill which runs the greatest risk of causing mischief. It is far too widely drafted. If the Home Secretary does not want the Bill to do serious damage to internal discipline in prisons, resulting in matters that should be dealt with by internal disciplinary procedures going to court and taking up the time of the criminal justice system—making it far more difficult for prison governors to run their prisons—he had better look again at that clause and amend it. He must tighten that clause and accept the argument that he claimed to be attempting to grasp, which is to target the offence on violent offenders.
  The Bill will win few friends. We shall wait to see what happens in Committee before deciding what our attitude to it should be.
  5.52 pm
  Sir John Farr: I give a general welcome to the Bill. My right hon. Friend the Home Secretary telescoped his remarks. I had hoped to intervene to ask him about the extent of the Bill, but he sat down very rapidly at the end of his speech.
  An important issue in terms of the application of the Bill is contained in clause 3(3), which says:
  "This Act extends to England and Wales only."
  Apart from the general belief of many constitutionalists that all Acts of Parliament should apply to the United Kingdom, including Northern Ireland, that is a real mistake. Some parts of the Bill are relevant to an attempted escape. A trainer containing a weapon was sent from Northern Ireland to assist an escape quite recently. The person receiving the parcel in prison could be prosecuted under the Bill, but the dispatcher could not be dealt with because the Bill does not apply to Northern Ireland.
  This is a fairly modest and harmless little Bill. We must get to the cause of the mutinies that have occurred, especially the mutiny at Strangeways, which was probably the most recent. and the savage mutiny at Gartree in my constituency not so long ago. AS the Home Secretary said, the Bill touches on one of the chief causes of the mutiny at Strangeways—shocking overcrowding. There were 1,647 inmates in a prison designed for 970. We must have more prisons, more staff, and better conditions for both staff and prisoners. It must be Government policy to give the lifer some dignity.
  Hon. Members have already discussed the Bill briefly, but I must mention clause 1(2)(a) again. As has already been said, prisoners frequently
  "engage in conduct which is intended to further common purpose of overthrowing lawful authority in that prison".
  There is a sound reason for rewording that clause, because that is too frequent an occurrence in day-to-day life in prison.
  Clause 1(2) states that there is a mutiny
  "where two or more prisoners while on the premises of any prison"
  engage in certain conduct. Two is the obvious number, but in certain circumstances a case could be made for one prisoner or three prisoners.
  The Woolf report referred to overcrowding, the need for more staff and, above all, the need for meaningful, educational training and a constructive programme of jobs

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  for prisoners. That is absolutely essential. The security of any prison hinges on the attitude and conduct of prisoners. If they are held in overcrowded conditions, unfit for a dog to live in, and have no meaningful occupation—I do not mean soulless, non-productive work—they have no alternative but to fall into mischief and cause trouble.
  My hon. and learned Friend the Member for Burton (Mr. Lawrence) referred to the need to give prisoners some work. I agree, but it must be meaningful work. The trouble is that that is not easily obtained. It is all very well for us to say that we must ensure that prisoners are properly employed, but when the unemployment figures increase every month in the east midlands, there is resentment and resistance to prison inmates engaging in meaningful work as such work would probably take away jobs outside the prison. We must get around that conflict.
  The work must be meaningful, and it must satisfy the prisoners. As my hon. and learned Friend the Member for Burton said that the work should ideally enable prisoners to earn a remission on part of their sentence, or it could earn money to pay compensation to victims.
  My hon. and learned Friend the Member for Burton also referred to the need to maintain what he described as the quality of managers in prisons, and my right hon. Friend the Home Secretary has also spoken about that. I have in my constituency the prison at Gartree and the young offenders centre at Glen Parva. It has been noted at Gartree that the better the governor, the more quickly he goes. If, as I understand, that is Home Office policy, an explanation is needed. I speak from experience, having met many Gartree governors. Some have been brilliant, others not so brilliant, but the more successful they are, the more quickly they seem to go, often within a year.
  The Home Office may think it necessary on security grounds to make regular changes, perhaps believing that it would be undesirable for the routines of governors to be known to the general public. Even so, the present policy seems to prevent our getting the best from some of the good male and female governors we have. Need they be rotated so rapidly?
  In 1987 there was an escape from Gartree. Clause 2 recommends that the maximum penalty for assisting a prisoner to escape should be increased from five to 10 years' imprisonment. I share the doubt that has been expressed about that change. Some of those involved in the helicopter escape from Gartree would not have been deterred by life imprisonment. Adding another five years to any possible sentence seems pointless, especially as some of those involved may already be serving that length of time. The proposal seems no more than a window dressing exercise.
  We learned some lessons from the escape at Gartree. At the time, there was much unease in my constituency because, although Gartree is reasonably isolated, it is only two or three miles from the centre of Market Harborough, with its population of more than 15,000 people. There was terror in the neighbourhood for a long time afterwards. That made me realise how much we depend on the prison officers and the fantastic security systems that have been built up. We depend on them and, by and large, they do their jobs brilliantly.
  Even so, it seems that some of the lessons which should have been learnt from that escape have not been applied,
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  at least not so fully as they should have been. A confidential report that I have —it is not public and I have no intention of revealing its contents—referred to an Exercise Rogue Elephant which should have been put into practice regularly by police and prison officers. It should have been carried out prior to the escape, to put into practice action needed in such an event.
  Perhaps I can be told, either today or in correspondence, whether Exercise Rogue Elephant is still carried out in midlands prisons. Are practice escapes still carried out? The report, by the deputy director-general of the prison service following the escape on 10 December 1987, revealed in connection with lessons that should have been learnt from the escape that effective co-operation between the police and the prison service appeared to be slow to get into action.
  Although the escape was, in part, aborted—because of fog and the fact that the escapers had to land their helicopter at a spot where they had not intended to land, after which they terrorised a number of local people—they still got clear away. One would have hoped that by now the procedure would have been polished and tightened up to prevent such a breakout recurring or to ensure that a more effective response would be forthcoming in the event of a breakout from such a top security prison.
  Gartree is a category A prison. In 1988, after the escape, a review was instigated into category A prisons by the Home Office, with emphasis on what was called the dispersal system. I have a Home Office document of that date detailing the management of category A inmates, with a statement of the Department's intentions. How is that programme proceeding? A letter on the subject from the Home Office at the time said that it was envisaged that a number of changes would be made from category A to category B, including at Gartree, which should go from category A to category B by 1992. Is that changeover still on schedule?
  Some of the points that I am raising may sound tedious to hon. Members, but they are important issues for my constituents. For example, what is being done about what are known as SSUs—special secure units—of which at that time there were Leicester, Parkhurst and Full Sutton? Are those three SSUs still operating? A report on the subject dated April 1989 said:
  "The future of the SSUs at Leicester and Parkhurst will be reviewed when the new accommodation is available."
  Those issues are so tied up with prison security that I would have been at fault had I not raised them in the debate.
  However heinous the crime, a prisoner is entitled to dignity and an aim and purpose in life. Conservative Members expect the Home Secretary continually to struggle to try to improve the lot of prison officers and prisoners. I have often been to Gartree prison and seen life prisoners who have committed the most fearful crimes, but they can all see the light at the end of the tunnel. That window of hope makes them better prisoners, more amenable to discipline although they have no prospect of leaving prison for many years.
  I have written to my right hon. Friend about a particular prisoner whose name I shall not mention. After 25 years in prison, he is now due for remission. In this case, as in many others, I am unhappy because the remission programme seems to have fallen by the wayside. In fact, I am still awaiting a reply from my right hon. Friend about

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  this prisoner. However guilty a prisoner may be, when he has done his term, he should come out as pure as the driven snow and be given an opportunity to start life again.
  With those few words, I welcome the Bill.
  6.11 pm
  Mr. David Trimble: When the Home Secretary introduced the Bill, he referred to the riots and disturbances that occurred recently in several prisons, and said that those scenes must not be allowed to recur. Those scenes led to the commission of several offences and to three people losing their lives. Obviously, one does not want that to recur. The Home Secretary said that the existing legislation was not enough and that consequently he was introducing a new offence of prison mutiny. Like other hon. Members, I am somewhat concerned about the terms of the new offence. Reference has already been made to its considerable width in that it will cover not only violent prison riots like those that occurred recently, but also minor protests, particularly in clause 1(2).
  I am equally worried about the drafting of clause 1(3), which says that, for the purposes of defining the offence of prison mutiny,
  "The intentions and…purpose of prisoners may be inferred from the form and circumstances of their conduct".
  The Home Secretary may have had that aspect in mind when he said that the test was intentionally strict, but I find the strictness alarming. However, the use of the word "may" will allow the courts to rescue people from falling within the net of that provision.
  The offence is extremely wide. I come from Northern Ireland and must therefore bear in mind the situation in Her Majesty's Crumlin road prison in Belfast. The hon. and learned Member for Burton (Mr. Lawrence) referred to prisoners carrying on their war against society while in prison, and that has certainly been happening in the Crumlin road prison. It is a war between both major terrorist factions there, partly directed by one faction against the other, but also partly by one faction for the purpose of obtaining what they call segregation within the prison.
  I appreciate that this is neither the time not the place to go into detail about the extent of that war, but it has been going on for a considerable period. There have been serious disturbances involving the wrecking of part of the prison and attacks on prisoners, culminating only the other week in a bomb being smuggled into the prison and going off, resulting in the death of two prisoners.
  If the Strangeways riots, which resulted in three deaths, justify the Bill, perhaps the continuing warfare within the Crumlin Road prison, which has resulted in two deaths so far, merits consideration. It is unlikely that the explosion in the prison will be the last disturbance, because the atmosphere seems to be deteriorating, and further violence and injury are expected. Indeed, the new visiting arrangements that have been introduced in the prison may backfire, because the warfare may extend among relatives and visitors. Visiting arrangements are now carried out in larger open plan areas, and the authorities seem to be mixing the relatives of the two factions. If that is happening it is extremely curious.
  It is strange that the disturbances in England and Wales that led to the Bill have not so far led to the consideration of legislation to apply to other parts of the United Kingdom. The hon. Member for Caithness and Sutherland (Mr. Maclennan) asked whether it was
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  contemplated to introduce legislation for Scotland and the same could be asked with regard to Northern Ireland. I may be wrong, but I understand that there is at present no intention to extend the legislation to Northern Ireland. That may be partly because the Government think that other penalties under public order legislation are adequate, but it may also be because, unlike England and Wales, Northern Ireland already has an offence of prison mutiny.
  It is not contained in primary legislation but in the prison rules under the Prison (Northern Ireland) Act 1953.
  Rule 31, "Offences against discipline," states:
  "A prisoner shall be guilty of an offence against discipline, —if he (1) mutinies or incites another prisoner to mutiny".
  The prison rules contain no definition of mutiny, thus avoiding the criticisms that we have made of the drafting of clause I.
  Mr. Corbett: I hope that the hon. Gentleman will accept that all hon. Members try to understand the special conditions that lead to some of the circumstances that he has described in prisons in Northern Ireland. I hope that we can take that for granted. Does the hon. Gentleman feel that the ability to deal with events that could be labelled as "mutiny" as a disciplinary matter inhibits prison governors in Northern Ireland? I do not wish to hurry the hon. Gentleman, as he may be about to explain that to the House, but would it help us to deal with the special conditions in Northern Ireland if the Bill were extended to Northern Ireland?
  Mr. Trimble: I thank the hon. Gentleman for his intervention but, as he anticipated, I should be happier to deal with the point later.
  As I was saying, one of the offences against discipline is the offence of mutiny. Hon. Members may be interested to know the current penalties for mutiny in Northern Ireland. Under the prison rules, a governor may—it is at his discretion—refer a charge to the Secretary of State, in which case, the Secretary of State may impose one or more of the following penalties:

  "(a) caution:

  (b) loss of remission for a period not exceeding 180 days;

  (c) stoppage of earnings for a period not exceeding 56 days;

  (d) stoppage of any or all privileges…

  (e) exclusion from associated work for a period not exceeding 56 days;

  (f) cellular confinement for a period not exceeding 56 days."

  Those are the penalties for prison mutiny in Northern Ireland, where the continuing problems clearly fall within the definition of prison mutiny in the Bill. The Government consider that, in England and Wales, the maximum penalty for such an offence should be 10 years. They say that they have no intention of extending the legislation to Northern Ireland, where the present penalty is loss of remission for 180 days or confinement in a cell for 56 days. The penalties seem disproportionate.
  The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) described the legislation as a publicity exercise. If we consider it as such, what sort of message will it send to those prisoners in Northern Ireland who are presently creating a disturbance? The might consider that their activities are not regarded as important and are minor offences. Is that the sort of message that the Government intend to send?
  I cannot underline enough the fact that the present serious problems in Northern Ireland need to be adressed.

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  I know that there have been inquiries and that Lord Colville has been asked to assist the Government. One hopes that sense and control will be restored in Crumlin road prison, and that the prison authorities will exercise discipline in the interests of the prisoners' safety if no other reason. I wonder why the Government have engaged in this exercise when there are such grave prison problems in Northern Ireland.
  The Home Secretary said that one reason for the legislation was that it should act as a deterrent. In its response to the legislation the Prison Officers Association has queried that motive, and suggested that in its experience the majority of prisoners who have been, or are likely to be, involved in serious disturbances in prisons are long-term prisoners who may not be deterred by the legislation. One curious factor about the disturbances in Northern Ireland is that they are taking place not among long-term prisoners, but primarily among remand prisoners. That makes me believe that there might be some validity in the deterrence argument.
  If an additional offence were created, it might dissuade remand prisoners from continuing with their actions in the Crumlin road prison. Whatever weight one attaches to that argument—I am not sure how much to give it—I believe that detection, not deterrence is the important factor. We must detect those prisoners causing problems and there should be a proper system of management and control within the prison.
  The hon. Member for Birmingham, Erdington (Mr. Corbett) asked if it would help if the legislation were extended to cover Northern Ireland. I am not sure whether it is best to take the matter out of the prison discipline system and put it into the courts. If that is to be done, I hope that it will be done in a much better way that in the Bill, which is too widely drafted. I entirely endorse the comments of other hon. Members on the Bill's width.
  I agree with the hon. Member for Harborough (Sir J. Farr) that, if we take such action, we should do so on a United Kingdom not a Northern Ireland, basis. If the legislation is introduced in England and Wales to create a new offence that must be handled through the courts, while in Northern Ireland a similar offence will be left to internal prison discipline, with comparatively minor penalties, we shall have the worst of all worlds in Northern Ireland. It seems most likely that we shall be left in that position. I hope that that will not happen, and that the legislation will be significantly amended in Committee.
  6.26 pm
  Mr. Richard Alexander: I apologise to the House because, as soon as I sit down, I shall have to attend a committee and, as I am standing for office, I think that I should be there.
  In my view, and I think that of virtually everyone in the House, the public were rightly appalled last year when they saw the unprecedented violence committed on the roof of Strangeways and heard of the threats, often of a sinister nature, to other inmates. They were even more concerned when they learned that all that was likely to happen to the perpetrators was that they would lose some remission.
  I served as chairman of the board of visitors at Ranby prison before entering the House, so I know the restrictions on punishment that can be awarded in prison.
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  Therefore, I very much welcome the Bill, which would make it an offence to carry out some of the activities that occurred at Strangeways last year. I appreciate that the case may be sub judice, but the men who perpetrated the acts were clearly evil. They threatened and harmed other prison inmates who were serving their time as best they could. They also threatened the prison officers.
  Great credit is due to the prison officers at Strangeways and other establishments where there have been similar occurrences for their courage and dedication to duty. I do not always agree with what the Prison Officers Association says or does, but I pay tribute to it for the job it does, particularly in prisons such as Strangeways.
  We could not just pass over the events at Strangeways as if nothing had happened. The rioters clearly encouraged the copy-cat rioting at other prisons—one of the more sinister aspects of what happened at Strangeways. To some extent, prisons are governed by the consent of the inmates. If all the inmates of all the prisons throughout the country rose up as one at a particular time of the day, we could not contain the prison population. Let us consider what that would mean for the other inmates who would suffer the sharp end of the unpleasantness of some of their fellow prisoners. Let us imagine what would happen if some prisoners managed to escape and inflicted injuries on people outside, some of whom live in fear of the inmates coming out.
  The consequences of a prison mutiny could be horrific, particularly for citizens outside. If we were to allow them to continue to get away with only what is in effect a slap on the wrist, it would be as though we were saying that prisoners should serve no more time in prison than the judge initially awarded them at their trial.
  It follows that, as a result of the actions of those prisoners, taxpayers have to put their hands deep into their pockets. My right hon. Friend the Home Secretary referred to the £60 million spent at Strangeways. If I were an Opposition Member, I would probably query such expenditure on one prison, but as I support my right hon. Friend and am here to ease the Bill's passage, I shall refrain from commenting adversely on that figure. However, my right hon. Friend will be happy to have my support as I tell the House that our current prison building programme is more than £1,000 million, a rise of 78 per cent. in real terms, over and above inflation, since the Conservative party took office. A prison building programme does not usually hit the headlines, but it is appropriate to underline the Government's commitment to decent. humane prisons. I hope that that commitment is shared by the Opposition, and I make no political point about it at this stage.
  Those who riot and destroy put back the prison building programme. That is the harsh reality of Strangeways. They harm not only their own prisons but the opportunity of more modern and humane conditions of incarceration for those who follow them into the prison system. They place enormous pressure on police cells.
  The hon. Member for Denton and Reddish (Mr. Bennett) who will be seeking to catch your eye, Mr. Speaker. tabled an amendment which has not been selected but on which I have no doubt he will speak, stating that, until we do away with holding prisoners on remand in police cells, we should not introduce such a Bill. I understand that point—it is a fair constituency point —but it is a little self-defeating to say that, because the riots in Strangeways have placed enormous pressure on

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  police cells, we should not provide for future punishment of prison mutiny until those strains have been removed. The Bill seeks to avoid future strains on police cells by deterring future riots.
  It is entirely unsatisfactory that we should ever hold large numbers of prisoners in police cells, often at considerable distance from their homes and, even worse, at considerable distance from their remand courts. It is also unsatisfactory for the police, who have to look after and contain them and to transfer them, when—I am not being populist about this—they should be out and about detecting crime. Using police cells for remand purposes prevents them from doing that work. If necessary, if remand prisons are ever severely full or if for any reason they cannot be used, I hope that my right hon. Friend will not hesitate to use temporary camps for the incarceration of remand prisoners. In any event, I hope that the current building programme will make that problem a thing of the past.
  The Bill has the advantage of providing for such crimes to be punished by a court of law. Apart from the inadequacies of punishments available to boards of visitors, the present system of adjudication by boards of visitors leaves something to be desired. Proceedings are supposed to be informal, and to some extent they are. An inmate can from time to time have a friend to speak for him, but he cannot have a lawyer. I am not necessarily arguing that he should, because if the inmate has a lawyer, so must the prison officer who is giving evidence and prosecuting in the case, and if there are lawyers on both sides, the proceedings will be turned into a court of law and some of their informality will be removed.
  However, I have always been deeply unhappy about adjudication proceedings in prisons. Unless one serves on a board of visitors, one has no experience of such proceedings, but the inmate is marched in—not quite at the double these days —to face three or more members of the board about three or four feet away in a small room. The inmate has an officer on either side of him, with their backs to the adjudication board, inches away from his face. I understand the need for security. No one wants the board of visitors, or the chairman, of whom I was one, being rushed at by an inmate who has been awarded a punishment with which he disagrees. But having two prison officers inches away from the prisoner's face, staring at him while he makes his case—such people are generally not trained advocates, although some are —is rather unfair.
  Some of us did our time in the Army and will remember being on a charge. I am sure that you, Mr. Deputy Speaker, were never in such a position, but I have to confess that I have been. To be run in at the double and shouted at feet away from the person who is putting the charge, without the opportunity of any relaxation, smacks of injustice and intimidation.
  Before I came to the House, I chaired an adjudication board at Ranby prison. The inmate before us was charged with attempting to escape. He had acquired a long length of rope and a few grappling irons and it was clear that he intended to escape, but all that he had done was secrete the rope in another building, where he and the rope had been found. He had made no other attempt to escape, but the authorities expected us to find that chap guilty. We nearly always found inmates guilty, but I directed my fellow members of the board that merely acquiring kit for the purpose of an escape was riot an attempt to escape.
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  I do not tell that story in order to show what a good, sensible fellow I am; I tell it because, as soon as we found that man not guilty, there was outrage throughout the prison. I can tell the House this because it happened at least 10 years ago, and no one will be harmed by my doing so. The prison officers felt that the purpose of the adjudication was to nip the matter in the bud and to give the appropriate punishment. I hope that I do not misjudge the people with whom I was working, but there was outrage at the fact that we had let the chap off.
  I make that point because the way in which we have punished prisoners who have committed offences in prison over the years has left something to be desired. Making serious cases triable before the courts will remove them from the adjudication procedures which are often conducted within days of the event, when passions are running high and when the inmate is in some jeopardy.
  This is a reform that I warmly welcome, and I give it my full support.
  6.38 pm
  Mr. Andrew F. Bennett: I welcome the opportunity to speak in the debate. I was not surprised that Mr. Speaker did not select my amendment. I did not intend to seek to divide the House on it, but it served its purpose because the Home Secretary referred to the problems of Strangeways. I was pleased that he said that he would consider the problems and costs of Greater Manchester police in collecting all the evidence resulting from the incidents at Stangeways and the problems that will exist from January onwards while all those involved in the Strangeways incidents are brought before the court. That will involve many costs for Greater Manchester, and I welcome the fact that the Home Secretary has agreed to consider that problem.
  I was also glad to hear the Home Secretary acknowledge that the police cell situation in Greater Manchester is appalling. What do the Government intend to do about that? Ministers have admitted to that situation for 12 months. I received promises that next week, or the week after, the situation would improve, but it did not. The Government say that the Greater Manchester police will cope, and they will, but it is unfair to expect them to do so, rather than producing a solution.
  There is a major question mark over the competence of the Home Secretary and the Home Office team. It seems that their only response to a crisis is to produce a Bill, have it enacted, and then assume that the problem has gone away. We saw that happen in respect of dangerous dogs, when the Government had to backtrack on several sections of that legislation—which has not, anyway, provided a solution. We are now confronted by the problem of joyriding and car stealing, and a measure is to be rushed through the House next Monday, but I doubt whether it will solve those problems.
  The Prison Security Bill is supposed to deal with the crisis in our prisons—and in Greater Manchester in particular, because Strangeways is not available. The Government want newspaper headlines giving the impression that they are taking action, but in truth they are not achieving anything.
  The Government should review the size of the prison population and devise a strategy to reduce it. We must tackle the avalanche of crime in this country by convincing people that if they commit a crime, they will be caught and

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  punished. Sadly, too many crimes go undetected—or if they are detected, those who committed them escape punishment. There must be certainty that law breakers will be detected and properly punished.
  The Government must consider also the climate created by modern attitudes. I regret the move more and more into a society of greed, in which the Government encourage the public to measure their worth in material terms. Sunday trading is another indication that the individual is measured by possessions rather than inner quality. I believe that it was William Morris who spoke of a person having an honest face. Society should emphasise that the individual should be honest unto himself and to others. Until that change of attitude occurs, those who fail at almost everything will turn to crime to gain material satisfaction.
  Consideration must also be given to effective prison treatment. It is clear that people reoffend because their earlier imprisonment was a total waste of time. I repeat the point made in my earlier intervention, that we are still sending people to prison who do not need to go there. In one appalling case, one of my constituents was awarded restitution by the court, but some months later found that the individual had made no attempt to pay. The person was imprisoned, and that imprisonment crossed out any duty to pay restitution, but it was useless sending the individual to prison for just over a week—it would have been far better if the court had insisted that he paid restitution.
  I ask almost facetiously of the Government whether the Bill will apply to those held in police cells. I suspect that it will. At present, more people are held in police cells in Greater Manchester and neighbouring forces, than in some of our prisons. Those on remand are being held in appalling conditions, and are not being cared for by people trained in that work. Although no senior officer in Greater Manchester will confirm that that situation affects the force's operational efficiency, the evidence points that way. Younger police officers no doubt like the overtime that goes with custodial work, but the extra hours must affect their efficiency when on conventional duties.
  I am told that no one is allowed to go free in Greater Manchester because of the non-availability of a police cell, but people arrested in some parts of Greater Manchester cannot be taken to the nearest cells, because they are either full or occupied by people on remand who ought to be in prison. The newly arrested individual therefore has to be taken to a different police station, which also has an effect on police efficiency.
  Custody officers at police stations are given some training in how to deal with a person who, having just been arrested and placed in a police cell, might attempt to commit suicide. The individual concerned may have been remanded two or three times, and at that stage might represent a potential suicide. I understand that such prisoners can be given paper suits to wear, but great skill—of the kind that prison warders are trained to develop—is required on the part of the police officer in dealing with someone who is suicidal. I understand that there have been 52 attempted suicides in police cells since the Strangeways incident. That is not a situation with which police officers should have to deal.
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  Escapes—there was one important escape in Greater Manchester—and even the risk of escapes place a great strain on police officers in their attempts to contain a large number of prisoners in police cells.
  Greater Manchester solicitors are often required to travel some distance to receive instructions from prisoners on remand, which I understand adds to legal aid costs. The same problem faces probation officers. If someone is remanded in prison, at least he is likely to be found there —but those kept in police cells are often moved from place to place.
  I have said before that many of the cells in which people are currently held in Greater Manchester were taken out of use 10 years ago. Those at Denton police station are an example of that. They were closed because they were thought unsuitable for holding people even overnight. I admit that some work has been done on those cells, but they are still very unsatisfactory.
  I understand that the Minister of State is to visit Greater Manchester one day next week, when I am sure that she will see for herself the problems that I have described. However, I want the Minister not just to look, but to bring some solutions to Greater Manchester's problems, which are certainly growing worse.
  At one point, only 269 prisoners were being held in Greater Manchester police cells, but that number is increasing. Ministers' promises have evaporated in recent months. Ministers come to the Dispatch Box and agree that an appalling situation exists, but nothing happens. As an act of despair, Greater Manchester police authority even considered suing the Home Office. I hope that it does not come to that, but I emphasise that a solution must be found. If necessary, I shall raise the subject again on Report or Third Reading, but I hope that by then the Government will have achieved a solution whereby police cells in Greater Manchester are not used for prisoners who should not be there.
  Like so many other Home Office measures, the Bill is irrelevant to the problem. If we had properly run prisons with a reasonable number of prisoners, there would be little chance of mutiny. Overcrowding and all the other problems that Woolf referred to are causing the difficulties. The Government should address Woolf s recommendations rather than creating the irrelevant offence of prison mutiny, which will not solve the problem but is merely an attempt at window dressing.
  6.50 pm
  Mr. John Greenway: I have much sympathy with the comments of the hon. Member for Denton and Reddish (Mr. Bennett) on the use of police cells for prisoners. It should be of the gravest concern to the House that about 1,700 prisoners are still in police cells. Perhaps this is not the occasion to debate that in detail, except to say that I was heartened to hear my right hon. Friend the Home Secretary say that the Prison Officers Association had decided to call off its industrial action, which to me and many others seemed to lie at the heart of many of the problems. That action is not the only reason why police cells have been used, but it has been a substantial reason. At any one time, about half of the 78 police cells in north Yorkshire are full of prisoners. That is a shocking way of trying to police north Yorkshire, where crime is increasing. The hon. Member for Denton and Reddish has done the House a service by raising that matter.

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  It used to be thought that the great train robbery was the crime of the century. It was certainly very daring, but if I remember correctly the train robbers stole about £2 million and one railway employee was seriously injured. Set against that serious and heinous crime, events at Strangeways last year better qualify for the title of crime of the century. A total of 147 members of prison staff were injured, some seriously, 47 prisoners were hurt and one died. The extent to which the riot contributed to that is conjecture, but as we heard again this afternoon, it will cost at least £60 million to put right the damage.
  I was one of four members of the Select Committee on Home Affairs who had the unforgettable experience of visiting Strangeways a few days after the riot. I choose the words "unforgettable experience" very carefully. It was harrowing, daunting and deeply shocking. The sickening squalor that we saw and the stench of fire damage, urine, excrement and rotting food remained in my nostrils for days afterwards.
  We saw the wanton destruction of so much of the prison building, including the newly installed toilets and washing facilities. Stairways, gangways, doors and windows were ripped out, areas of the roof were demolished and slates and scaffolding poles were strewn over a large area. Many slates were well outside the perimeter walls of the prison. The prison chapel, where the initial disturbance began, did not escape the sordid damage. We saw horrible grafitti and, perhaps the most horrible sight of all, bibles and hymn books rotting on the floor, having been damaged when the fire was put out.
  Seeing all that damage left me in no doubt about two things —first, that the men who had had to face the violent scenes that we witnessed on television deserve the highest praise, and secondly, that such a riot should never happen again. It is the duty of the House and of the Government to ensure that all that needs to be done to prevent similar riots is given priority. Holding those responsible for what happened to account must be part of that process. That is why it is right to consider what can be done to improve discipline in prisons.
  It was clear to us that individual prison officers had shown much courage and had performed their duties bravely and skilfully. They deserve the gratitude and admiration of the House and of the country. Sadly, we have not been able to debate this issue in detail previously, so perhaps there has not been an opportunity to pay that tribute.
  Some Conservative Members have criticised some of the POA's policies, but when considering disturbances at Strangeway and at other prisons we should acknowledge the fortitude of prison staff in the face of extreme and savage violence. I recall talking to one prison officer—this graphically shows the difficulty that they faced—who, despite wearing a helmet and mask, virtually had the front of his face sliced open by a slate that was thrown from the roof. Although I did not see that, having seen the damage I could easily imagine that that had happened.
  Mr. Barry Sheerman: Hon. Members have praised prison officers, who were rightly paid a glowing tribute in the Woolf report and many of whom suffered psychological and physical trauma. I met officers who were terrified of returning to overcrowded prisons and who could not face that trauma again. It is unjust that some Conservative Members—perhaps not the hon.
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  Gentleman, but many of his colleagues, including some Ministers—have unfairly criticised prison officers, who suffered enormously after Strangeways.
  Mr. Greenway: Again, I am not without sympathy with the hon. Gentleman's comments, but there is a difference between comparing the lot of the average prison officer —it is not an attractive job or one that I would like to do, and I make no secret of that—and criticising some of the policies pursued by the Prisoners Officers Association, especially as there are about 1,700 prisoners in police cells, many of them because of the POA's industrial action.
  Mr. Sheerman rose—
  Mr. Greenway: Will the hon. Gentleman allow me to finish my argument?
  The prison officers on duty in Strangeways and in one or two other prisons have every right not only to the plaudits of the House, but to the opportunity to recover from their harrowing experiencce. I have no evidence that anything other than that is happening.
  Many of the prison officers who have taken industrial action in other prisons were not on duty at Strangeways. As I said to the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), there have been problems in the brand new prison at Full Sutton near York, although the accommodation is not full. However, perhaps we can move on.
  There is a world of difference between paying a rightful tribute to the bravery of individual officers and, when we do not agree with the POA's policy, making a justifiable criticism of it. My right hon. Friend the Home Secretary this afternoon gave us the most important and encouraging news about the prison service for some time. He said—and I had not known this—that the POA is to call off its industrial action, and I sincerely hope that that is the case.
  I do not believe that it is in the interests of anyone in the prison service to prolong the disputes. We know that they are about manning levels but, as I shall state later, I believe that the Government are making a genuine attempt to improve our prison regime, a greater attempt than any Government have made for a long time. I hope that the POA will recognise that.
  Leaving Strangeways on that day in May last year, my thoughts were filled with direct questions about what needs to be done to ensure that such a disturbaance is prevented as far as is humanly possible. I make no secret of the fact that I do not believe that the Bill alone is the answer. No one in the Government is suggesting that we can solve all the problems and disturbances merely by creating the crime of prison mutiny. Listening to some of the speeches from the Opposition, one would think that that is precisely what they are accusing the Government of doing. Nothing could be further from the truth—the Bill is merely part of a package of necessary measures on which the Government have embarked.
  However, before we even embark on that, we must consider the lessons to be learned from Strangeways. That is why the House should perhaps have had the opportunity to spend more time in the past few months debating the brilliant Woolf report. It was suggested earlier that we might need to make rather lengthy speeches this evening. One has only to pick up the Woolf report to know that it contains plenty of material to occupy the House for a long time.
  Mr. Keith Vaz: Read it out.
  Mr. Greenway: I shall not rise to the hon. Gentleman's suggestion to read it out, but I shall refer to one or two relevant points.
  The Woolf report cites three requirements for a stable prison—security, control and justice. Security is necessary to prevent escapes; control to prevent prisoners being disruptive; and justice to treat prisoners with humanity and fairness and to prepare them for their return to society in a way that will make reoffending less likely. That must be the fundamental aim of our prison service. The crime rate is rising and the number of prisoners—particularly young people—who come out, reoffend and go back to prison is also increasing. In view of that, we must do more with such people when they are in custody, and the improvement of the regime is crucial in that respect.
  To answer the three aims of security, control and justice in turn demands substantial improvements in three key areas. We must improve the prison estate, the management and the prison regime. Strangeways could not have been better designed to facilitate a riot if that had been the intention. Again, my experience of going to the prison brought that home to me. The Government are doing much—more than any other Government in modern times —to improve our prison-building programme, but I shall deal with that issue in a moment.
  Management failings at a number of levels is the crucial issue to be considered tonight. Management failings were identified by Woolf as being at the heart of the problem at Strangeways. For the benefit of the hon. Member for Leicester, East (Mr. Vaz), I shall refer to one or two of the report's conclusions. Paragraph 432 of section 3 states:
  "The reason why the disturbance developed so rapidly was in particular because of the lack of preparedness of the prison staff and management and the inept handling of the early stages of the disturbance. This was largely attributable to totally inadequate training of the prison management and staff as to how to handle an incident of this sort."
  Woolf went on to say:
  "Headquarters and the North Regional Office bear a substantial responsibility for the extent to which the management and staff of the prison were unprepared for the disturbance. Security and contingency planning was given too low a priority by both bodies…The prison should also give higher priority to security and control. The way security records were kept was unsatisfactory."
  The report contains a third major criticism of management. It refers to the fact
  "that relatively junior governors on duty, who had not received any training in the handling of a major disturbance, contributed to the riot spreading to the whole prison."
  It must be clear from that that the Government are right to try to give more priority to improving the management of the prison service.
  The third issue which must be considered in improving the prison regime involves giving prisoners something worth while to do. It is undoubtedly true that there are too many prisoners who do not have enough to do and who suffer acute boredom. There is too much movement of prisoners because of the numbers on remand, and there are too many remand prisoners in prisons in which there are prisoners whom we want to reform.
  It is a problem but, as my right hon. Friend the Minister of State knows, I have a high regard for a training prison in my area—Thorp Arch—which is to continue in its current role. I am grateful for that. I visited the prison last summer and saw the work being done with some long-stay prisoners—some of whom are serving sentences of 12 or 15
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  years—who are within two years of their release. The work is to help to prepare them for the world outside, and that is the key to what must be done in many of our prisons.
  Leaving that prison, I was aware of the contrast between the squalor that I had seen in Strangeways and the constructive work that I had seen at Thorp Arch. Without a shadow of doubt, one could guarantee that there would not be the sort of disturbance at Thorp Arch that happened at Strangeways.
  Mr. Sheerman: I am delighted to hear the hon. Gentleman mention the good work at Thorp Arch. Sadly, it is not typical. He mentioned the preparation for release and for training and employment on release. We should like much more effort put into that, because the statistics show, as he is aware, that the chance of a prisoner reoffending if he has a job to go to and some back-up in the community is less.
  One of the interesting facts about employment prospects for prisoners that came out of the Select Committee on Employment was how disastrous has been the Government's withdrawal over the past few years of the Department of Employment counselling for prisoners both before and after release. It is a sad comment on the Government that that counselling service has been abolished.
  Mr. Greenway: That is another matter, which the hon. Gentleman may wish to take up later.
  My argument is simple. A regime that is not disrupted by too many remand prisoners being moved backwards and forwards—[Interruption.] The hon. Gentleman might do me the courtesy of listening to my reply to his question. There can be too many movements of prisoners and too many staff engaged in supervising them. That is why I strongly supported the measure in the Criminal Justice Act 1991 to bring in the private sector to deal with escort duties. Prison officers could then get on with the job for which they are trained and at which they are best—trying to reform some of the prisoners.
  Another problem is that most prisoners are in prison for a relatively short time—three months or six months, and then they are out again. The work at Thorp Arch is done with those who are serving long sentences, but we can learn lessons from it, in that where there is worthwhile activity in prisons I do not believe that riot and disturbance are likely.
  Disciplinary arrangements have a crucial part to play in achieving the aim of an improved prison regime. That is what the Bill is about. The right hon. Member for Birmingham, Sparkbrook tried to say that all that the Government were doing to prevent another Strangeways was to introduce the Bill. That does a grave disservice to the tremendous work of my right hon. Friends the Home Secretary and the Minister of State, to whom I pay tribute. Had the right hon. Member for Sparkbrook listened to the Home Secretary's speech and taken the notes that I did, he would have discovered that the Bill was only one of nine measures that the Government are introducing.
  Slopping out will end by 1994. My right hon. Friend the Home Secretary has been under the cosh in the past few days—at any rate, he has had one or two difficulties. However, I believe that his tenure as Home Secretary will be recalled—[Interruption.]—for the fact that he had the courage and secured the resources to end the degrading

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  process of slopping out, which has besmirched the prison service for a long time. The hon. Member for Leicester, East is barracking.
  Mr. Vaz: I am not.
  Mr. Greenway: I remind the hon. Gentleman that when the Minister then responsible for prisons—now my right hon. and learned Friend the Chief Secretary to the Treasury—gave evidence to the Home Affairs Select Committee after the Strangeways riot —
  Mr. Vaz: On a point of order, Mr. Deputy Speaker. I object to being accused of barracking. I merely let out a very small laugh when the hon. Member for Ryedale (Mr. Greenway) said that the Home Secretary would be remembered for great things. I was not barracking.
  Mr. Corbett rose—
  Mr. Greenway: May I continue? I have been speaking for rather a long time. I remind the hon. Member for Leicester, East that, when my right hon. and learned Friend the Chief Secretary was the Minister responsible for prisons, in May last year he told the Home Affairs Select Committee that the Government were still on course to end slopping out by the end of 1998. A year later, as a response to the Woolf report, we are talking about advancing that target by four years. That is a considerable achievement.
  Secondly, we are putting record resources into the prison service. Some £1·4 billion is the annual cost of running the prison regime and there is £66 million to be spent next year on matters related to improvements suggested in the White Paper. Those in turn were a response to the Woolf report.
  The exciting project at Wolds remand prison is a factor to which we can look forward. It will bring about an overall long-term improvement in the prison regime. There will be extra staff, too. I note that we intend to recruit 4,100 more prison officers over the next two years—my right hon. Friend the Minister of State is nodding. That is a substantial commitment.
  There will also be 13 new prisons. The decision to build them was taken a long time ago, and they will open over the next two and a half years. For the first time, a code of standards is being introduced in our prisons, and that is long overdue. There is also the welcome commitment on the complaints adjudicator.
  More staff will have been trained in control and restraint procedures. Security in our prisons will be improved. I was especially interested to hear my right hon. Friend the Home Secretary say that the strengthening of ceilings to prevent access to the roof space was being given priority.
  The final measure is the Bill. As I said, it is part of the overall package. There has been an attempt to suggest that it will make no real difference, and to rubbish its provisions. It is justifiable to ask the question: will it work? Opinions are divided, but the hon. Member for Upper Bann (Mr. Trimble) made an interesting and helpful speech about the experience in Northern Ireland, From which the rest of the United Kingdom could learn a great deal. The hon. Gentleman put his finger on the truth when he said that the measure might discourage some shorter-stay prisoners from getting involved in riots and disturbances created by some of the longer-stay prisoners.
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  There is support for that idea in the first paragraph of Lord Justice Woolf s "Conclusions Specific to the Manchester Disturbance":
  "The disturbance which took place in the Chapel had been planned. That is clear from the evidence given formally and informally to the Inquiry".
  Lord Justice Woolf says that the disturbance was "known beforehand" as likely
  "to take place, and…there were some inmates at the Chapel with weapons and masks. However, the number of inmates who attended the service with the intention of creating a disturbance was probably no more than 12 and possibly a smaller number than that. The remainder of those involved took advantage of the situation which developed to give vent to their own frustration".
  I have no qualms in saying that the penal affairs brief from the Prison Officers Association, which I suspect has been sent to every hon. Member, is generally critical of the Bill. However, even that critical brief says:
  "It is conceded, however, that prisoners on shorter sentences may be influenced by such provisions from joining a disturbance which is already underway".
  The Bill is not, in itself, the answer that will prevent a disturbance such as that at Strangeways from recurring. It is just one measure in a large package, but it is worth while.
  Clause 2 rightly aims to strengthen the law on people outside assisting escapes. With the increase in the number of escapes from prison, that is an important point.
  The Bill is a valuable addition to our law on prison discipline. I am pleased to note that, despite what it has said, the Labour party does not intend to divide the House.
  7.19 pm
  Mr. David Hinchliffe: I am grateful for the opportunity to make some brief comments on the Bill. As the Minister is aware, there are two prisons in my constituency, and I was pleased to welcome her on a visit to both of them recently. I have known New Hall women's prison for some time, and I used to visit it many years ago when it was a detention centre. It was the place where the Government undertook one of their most spectacular failures in penal experiments—the short, sharp shock regime, which involved marching youths up and down. It was a miserable failure, and further failures are likely with policies such as those in the Bill. They are half-hearted measures which do not address the issues that cause concern in the prison system.
  I have been proud to see the change at New Hall. I mentioned to the Minister when she visited that the management of the prison service deserve credit for the smooth way in which they have engineered the change from an all-male establishment to an all-female establishment producing some progressive policies which have an impact, I hope, on the lives of the women who are unfortunate enough to spend time there. I commend the prison governor who initiated the change and the present governor for their work, as I commend the staff who have supported them.
  I have had considerable involvement with Wakefield prison since I was elected as Member of Parliament for Wakefield in 1987. I receive many letters from prisoners, and I visit the prison regularly. The work load, as hon. Members who have prisons in their constituencies are aware, is heavy. I hear about grievances on various issues from prisoners almost daily.
  What concerns me more than the many grievances of the inmates at Wakefield prison has been the almost

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  constant grievances about which I have been told by members of staff. As the Minister is aware, since the last general election there has been a state of industrial dispute at Love lane because of "fresh start". The Prison Officers Association and individual staff at the prison have constantly expressed their concern about the way in which the management of the prison service have failed to honour their side of the agreement reached some years ago on the change under "fresh start".
  Hon. Members will be aware of the national figures. Since 1987, the prison officers' hours have been cut from 56 to 41 per week, which is the equivalent of 6,300 fewer staff. There is a proposal for a further two-hour reduction to 39 hours next April, which will be the equivalent of about 1,000 fewer staff. That has a strong impact on prisons such as Wakefield. There has been a constant dialogue between the POA and the prison governor about the difficulties there.
  Apart from meeting the POA several times, I have also met the prison governor, and I know that he has sometimes been frustrated. He has made comments which I have previously reported to the House about his concerns about possible future problems at Wakefield prison because of the inability of the prison service to deliver the staffing levels required in that establishment.
  I am sorry to say that the Government are paranoid about the POA. The people I meet at both local and national level are eminently reasonable. I put on record the fact that I believe that the POA as an organisation has changed recently. I can recall being in a licensed establishment in Wakefield some years ago when people coming off duty at Wakefield prison came in. I talked to one or two of them, and when I got home that night, I found a number of British National party leaflets in my pocket. At that time, the chairman of the Labour party in Wakefield gave clear evidence at a party meeting that the core of the British National party in Wakefield was in the prison. I used to be concerned about the POA because some of its policies were akin to those of organisations of the extreme right.
  However, the POA has recently transformed itself into a responsible and decent organisation. It is true that it stands up for the interests of its members but, from what I have seen in Wakefield, it also stands up for the prison service. It stands up for issues of concern to my constituents, such as the security of prisons and the staffing level in Wakefield prison.
  The Government's resolution of the dispute at Wakefield has caused me grave concern. I recently met representatives of the POA at Wakefield. It seems to me that the dispute has been ended on the basis of the POA being bullied into submission by being told that, if it did not end industrial action, the full powers of the state, to quote the governor, would be brought in to deal with the situation. That is not a healthy way in which to resolve conflicts that could be resolved amicably, possibly by arbitration. Those issues should be studied and talked about, but they are not addressed in the Bill.
  The central issue which must be addressed by the Government is that they are criminogenic. The nature of Government policy causes crime. The Government have set up a "look after number one" society. They encourage people to look after themselves and to ignore the plight of
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  others. They are anti-collective and pro-individual. If one encourages such motives in society, one gets a society such as the Conservatives have achieved in the past decade, with the worst crime figures in history, and with prisons crammed with people who have offended.
  I do not say that the people in Wakefield who are there for serious offences relate to that issue, but I believe that many people are forced into crime because of the way in which they have been treated as a result of Government policies. We must accept that the central theme of the Government since 1979 has been selfishness and personal greed. That actively encourages people at the bottom of the pile to commit crimes, and the Government must address that issue when working out why people end up in prison. The Government's policies have resulted in huge pressures on the prison system.
  The question of "fresh start" is not addressed in the Bill. Many industrial disputes rumble on. We must be fair and say that there are reasonable grounds for the POA to have grievances about the prison system. People who work in prisons see that the agreements that they thought they had reached at the outset of "fresh start" have been breached by the Government. Until there is a resolution, prisoners will continue to have grievances.
  I have talked to the prisoners at Wakefield. They recognise the reasonableness and legitimacy of the POA's position on "fresh start". The prisoners understand and sympathise with some of the actions that the association has been forced to take, although those actions have sometimes meant that they themselves have suffered.
  The Bill does not address the root causes of the prison crisis. It is a half-hearted measure—
  Mr. Vaz: Half-baked.
  Mr. Hinchliffe: As my hon. Friend says, the measure is half-baked. It scratches the surface of the symptoms, but it fails to address the root causes of the present prison crisis.
  7.28 pm
  Mr. David Martin: It is a pleasure to follow the hon. Member for Wakefield (Mr. Hinchliffe). I do not agree with his analysis about the Government looking after number one and therefore encouraging people to commit crime. I do not believe, first, that there was any less crime under a Labour Government—in fact crime increased under every Labour Government I can remember—or, secondly, that encouraging people to better themselves, to make decisions for their lives and to improve their economic position has anything whatever to do with dishonest methods of doing just that. Although such a view is typical of some Opposition attitudes, it will never be accepted by Conservative Members.
  I wish to continue in that uncontroversial strain by referring to one or two opening comments by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), who described the Bill as being produced merely to catch headlines and as an illusion of activity. If the previous Labour Government in which he served had only caught a few more headlines and been as active in prison improvements and new prison building as all Conservative Governments since 1979 have been, his comments could be taken more seriously. I remind the right hon. Gentleman that, under Labour in the 1970s, the prison population grew by about 15 per cent., while capital

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  spending was cut by 20 per cent., a fact to which my hon. and learned Friend the Member for Burton (Mr. Lawrence) referred earlier.
  Mr. John Greenway: Hear, hear.
  Mr. Martin: As my hon. Friend the Member for Ryedale (Mr. Greenway), who makes encouraging noises, has also said—and it is worth repeating—spending on prison buildings has risen by leaps and bounds, with many new establishments being opened, providing extra places, while fewer prisoners now share cells, and slopping out is being phased out earlier than anyone thought possible. Those are facts, not just headlines or illusions.
  Of course, the running of prisons and their security and good order rely crucially on the staff working in them. It is self-evident that, without manpower of sufficient quality and in sufficient numbers, it does not matter how many technological advances or improvements there are. The prison officer using his eyes and ears is the first security patrol. I have been most impressed by the strength of this basic common sense at Her Majesty's prison in Kingston, which is in my constituency. It is a category B prison. It holds 150 prisoners, all serving life sentences. It is a case of each to his own cell with no slopping out. That has been the case for lifers since 1970.
  There are particular challenges in running a prison which has only those serving life sentences in it, yet it was not until earlier this year that any escape from that prison took place. It involved one prisoner who was recaptured soon afterwards. From the outset, that prison has been well governed. The first woman governor, Miss Muriel Allen, retired a little while ago and has been succeeded by Mr. Roy Merricks. That prison has been well governed by both governors while I have been Member of Parliament for Portsmouth, South.
  It has also been a tenet of good security that prisoners should spend the maximum time outside their cells being kept busy working. Of course that makes sense, as hon. Members have said. Plotting, planning and troublemaking are far less likely to take place under such a regime.
  Many people contribute positively to the right atmosphere at Kingston. Without their dedicated service, the prison would not be run so well as it is. My hon. and learned Friend the Member for Burton referred to the 1,000 members of the Prison Service Union, which is seeking recognition from the Home Office. I understand that the figure is now nearer 1,500, with more than 30 members at Kingston. In the past two years, I have been in touch with my right hon. Friend the Minister of State and her predecessors on the recognition point. I urge her to recognise that union without further delay.
  It will not please members of the Prison Officers Association, who have kept me well informed over the years. I do not dissent from much of what the hon. Member for Wakefield said about members of the Prison Officers Association. Always on my visits to Kingston I am treated with courtesy and consideration. As a result, I have always reported concerns to the various Ministers ultimately responsible for the prison and have obtained responses. I refer not only to issues about manpower and conditions arising out of the implementation of "fresh start" but to the clear opposition to privatisation of prison services, prisons or remand centres, on which I do not agree. In my view, there is scope for such development. I
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  agree with my hon. and learned Friend the Member for Burton and my hon. Friend the Member for Ryedale on that point.
  Those policies will be pursued by a Government who have proved beyond doubt to those working in the prisons their commitment to prison expansion and improvement as well as necessary increases and efficient practices in manpower. That must be contrasted with what occurred under Labour, and no doubt will occur again should we ever be unfortunate enough to have another Labour Government. Labour Governments are always constrained by cost considerations and by the financial disasters brought on by all the spending commitments that they claim are priorities and then have to jettison one by one. Prisons would come well down the list of priorities should Labour ever be in government, and those working in the prisons would soon discover that, too.
  Good industrial relations are in the interests of everybody working in prisons. Without them, as the White Paper "Custody, Care and Justice" says,
  "there can be no assurance that resources"—
  which means money, and I wish that people would say
  "money" rather than "resources"—
  "devoted to the prison service will be used effectively and efficiently in a way which fulfils the obligations of the prison service."
  Finally, in the interests of security, I welcome the Government's action as set out in the Bill. Of course the Bill will not sort out all the problems—it does not pretend to do that—but I wish it well in its passage through the House.
  7.35 pm
  Mr. Keith Vaz: I do not believe that the Government would have introduced the Bill had a Woolf not been at the door. Of course we welcome the Woolf report and its careful examination of what happened during the Strangeways riot. Like the hon. Member for Ryedale (Mr. Greenway), I am a member of the Home Affairs Select Committee. I was not able to join the hon. Gentleman on his visit to Strangeways, but the Committee decided to initiate an inquiry and report into precisely what happened at Strangeways. We were aware that, because of the Woolf inquiry, it was not possible to go into great detail into what happpened at Strangeways.
  Like the hon. Gentleman, my impressions of what I saw are the recollections of a person who was shocked by the wanton destruction that occurred during the riot. I visited the chapel at Strangeways prison to see the great destruction that had occurred, and I wondered whether human beings could have been responsible for it.
  I was escorted around the prison by members of the Prison Officers Association. Like my hon. Friend the Member for Wakefield (Mr. Hinchliffe), I pay tribute to the work of the Prison Officers Association. I deplore the recent attacks by Ministers and others on the association and what it is doing. It is putting forward the best possible case for the prison service. Of course its members gain because they work in the service, but they put forward their views because they want to make sure that the service does not collapse under the strain and we do not have a repetition of the destruction that we saw at Strangeways.

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  I pay tribute also to the work of the newly appointed governor of Leicester's prison on Welford road, Gerry Ross. I visited the prison four weeks ago, and I met him and members of the association. I also spoke to prisoners.
  Like many prisons in this country, Leicester prison is overcrowded. The message that I received from the governor and from the hard-working members of the association who work at Welford road is that there is a need for more resources to be put into the prison service.
  I look forward to the Home Secretary telling the Home Affairs Select Committee what he proposes to do with the prison service. I put him on notice that we shall ask him what he has done to provide extra resources to the prison service. We will ask him to justify the fact that so many prisons remain overcrowded. We will want to know what he is doing to address the POA's concerns about the operation of "fresh start".
  The right hon. Gentleman is smiling in anticipation of his forthcoming visit to the Committee. However, I give him notice that these are some of the questions that we shall be asking him, because they are very important indeed. Although the legislation before us will provide some elements and go some way towards meeting the criticisms of Government policy outlined in the Woolf report, it is important to realise that there is still a great deal that needs to be done.
  I look forward to seeing the amendments that will be tabled by my right hon. Friend for Birmingham, Sparkbrook (Mr. Hattersley) and others when they look in a measured way at the Bill and seek to amend it to provide the support for the prison service that is so desperately needed.
  I want also and in particular to draw attention to the grave concern that I and others feel about the number of young people being held in prisons. If there is a need for legislation in areas of prison policy, surely this is one area that ought to be considered very quickly by the Government.
  I refer the Home Secretary and the Minister to the article that appeared in The Guardian on Wednesday, 20 November, which gave the comments of the governor of the young offenders centre at Feltham in Middlesex. Reacting to the death of a young man in custody, he said:
  "I personally wish to say how abhorrent it is to have to deal with children, because that is what Geoffrey was—a child in a penal setting—and under the conditions in which I have to run Feltham, for want of staff."
  That is what the governor of that offenders centre had to say, and I should be very interested to know what the Minister of State has done since she read that report in the newspaper. The governor referred to a system that was bankrupt of compassion. Why that is so extraordinary is that governors of institutions of that kind tend not to want to give interviews to the press; they keep their views very much to themselves. They may speak to Members of Parliament and Ministers on a confidential basis, but it is very unusual to come out in terms of that kind and say that sort of thing.
  I hope that the Minister of State will provide information tonight that will assure the House that something positive will be done. I am sure that hon. Members need no convincing by me that teenagers must be removed from the penal system. The Home Secretary told me in an answer to a written question recently that he has
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  no plans to remove young people from the penal system. I think we are entitled to be told why. What tragedies must occur before he and the Minister of State will change their minds?
  I welcome the new Criminal Justice Act 1991, which provides for the ending of prison remand for 15 and 16-year-olds. However, it is clear that sufficient places in secure accommodation do not exist to meet the need created by that change in the law. In fact, there has been talk of it taking up to four years to give effect to this, during which time who knows how many young people will die, while the Home Office and the Home Secretary drag their feet? I should be glad if the Minister would comment on the suggestions that have been made that there is wrangling with other Government Departments over who has to pay for these places.
  While accepting that this lethal practice of placing 15 and 16-year-olds in prison must end for those on remand, the Home Secretary refuses to consider removing those serving sentences from the prison system. Does the fact that they are serving sentences made their lives less valuable? Apparently, 15 and 16-year-olds have to remain in prison while the Home Office argues with the Department of Health over what is to happen to them. The Department of Health wants to place more of them in community care, while the Home Office wants to place more of them in secure accommodation.
  Will the Minister of State confirm that young people will be placed in secure accommodation only when they represent a real danger to the public? Will she also confirm that secure accommodation will also be available where local authority homes are not able to provide such accommodation because of lack of funds? I hope that the Minister will address her comments to these important matters.
  The Minister also told me in a written reply about the education and social opportunities that were available to young offenders. Is she aware that the Feltham visitors' report, which I am sure she has had a chance to read, said that there were only 24 workshop training places for 256 young people? Is she also aware that, for 500 unconvicted young people, there are no organised activities or education whatsoever?
  These are very serious matters and I am glad to see that the civil servants are leaving the Box to find the answers. I would expect the right hon. Lady to give us the answers, because she still has time to absorb what her civil servants have to tell her.
  Today I have had a reply to a parliamentary question to the Minister, which tells me the latest figures of young people currently in young offender institutions. Of 14 and 15-year-olds, there are 67 in such institutions; of 16 to 19-year-olds, there are 3,110; and of 14 to 19-year-olds, there are 3,177. These are figures that the House is not prepared to tolerate. We expect some firm proposals from the Minister tonight, or at least when we debate this matter in Committee, that will assure the House that something will he done about this very dangerous situation.
  Finally, I pay tribute to the police service in Leicestershire. I refer to figures published by the Minister on 12 November, in which she sets out the number of prisoners currently held in police cells. My right hon. Friend the Member for Sparkbrook gave a figure, but I wish to top it. The figures given to me show that there are 1,719 prisoners held in police cells. Of these, 227 are in

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  Greater Manchester, 36 in Leicestershire, 17 in Lincolnshire and 42 in Nottinghamshire—all east midlands constabularies.
  These figures cannot be tolerated or justified, either in cost terms or in terms of the most efficient use of police resources. The Minister will know that I and other Leicestershire Members from all parts of the House have continually asked for more officers to be allocated to Leicestershire. I pay tribute to Michael Hurst, the chief constable, and his senior and other officers for the work that they are doing.
  However, the plea continually made to us by senior police officers and members of the Police Federation and other organisations representing the police is that they do not have sufficient people. It is no wonder, when so many police officers appear to be doing the duties which prison officers should be doing and so many prisoners are placed in police cells. This means that police person power is being used on an issue and in an area where it really is not necessary.
  What does the Minister intend to do about the 1,719 prisoners who are being held in police cells? I do not want to know what she intends doing in a year's time or in 10 years' time, because she will not be in government then. What will she do now, when it is her responsibility as Minister of State and the responsibility of the Home Secretary to do something about it?
  Mr. Corbett: My hon. Friend protested when he was accused of barracking by the hon. Member for Ryedale (Mr. Greenway). I sought to interrupt to confess that I was responsible. There has been talk of a commitment to do away with slopping out by 1994. What I wanted to get at was that we have had such commitments before. Three successive Home Secretaries have stood at the Dispatch Box and pledged to do away with holding prisoners in police cells. That is why I objected to the assurance with which the hon. Member for Ryedale was arguing that this would happen. There is a wide difference between promise and performance.
  Mr. Vaz: My hon. Friend is right. We have had commitments from Home Secretaries and Ministers of State at the Dispatch Box, in Committee and in the Select Committee on Home Affairs, when they have promised to do various things, but they still have not done them. They pick a year in the future when they know that there will have been a general election and that they will probably not be in the same job as when they gave the commitment. The Minister of State will be under no time constraint this evening, and she will have plenty of time to tell us precisely what she will do about this serious subject.
  My hon. Friend the Member for Wakefield wondered why we had so many people in prison and in police cells. The reason is that crime has increased dramatically under the Government. The Minister of State turns away, but she and the Home Secretary have presided over the worst crime figures that the country has ever known.
  When my right hon. Friend the Member for Sparkbrook was Home Secretary, he used to draft for us what he described as a crime clock. He divided the number of crimes by the number of minutes in an hour to show how many crimes were committed in a certain time. We do not have a crime clock any more; the clock broke because the figures were so devastating. It is impossible to get sensible statistics from it.
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  It is no use the Home Secretary saying that the high crime rate is due to other factors. The high level of crime and the resultant number of people in prison are due directly to the policies of the Government, which have created people who are greedy and selfish, a society where people are supposed to be on their own, a society which destroys the morale and the will of people who happen to be on benefits and on the poverty line. If the Minister of State wants to see what that is like, she should go into the City tonight and look at the number of people who are sleeping in the cold because there is no accommodation for them.
  It is no wonder that there are so many young offenders. They have no future because of the policies of the Government. Therefore, although we welcome legislation that deals with the serious issues, and although we have promised to consider it carefully in Committee, we cannot do anything about the crime figures. Only the Minister of State and the Home Secretary can do something about them. The Minister of State needs to address some important points. She has probably written her speech already, but I hope that she will include these points in her reply.
  First, the police must have additional resources to deal with the high level of crime; secondly, and more important, the Government have to change their policy, or there will be more people in prison. We are told that their slogan is the power to choose and the right to own; however, it has become the power to take and the right to steal. We want positive policies, and we want them now.
  7.54 pm
  Mr. Peter Kilfoyle: Like my hon. Friend the Member for Wakefield (Mr. Hinchliffe), I have a prison in my constituency; indeed, it almost had two. I am not as familiar with Walton prison as my hon. Friend the Member for Liverpool, Broadgreen (Mr. Fields), but I have visited the prison and I have seen the conditions under which prisoners and staff have to labour.
  I mentioned that we almost had two prisons in Walton. What happened is instructive about the attitude of the Government. They proposed to locate a second prison in Walton, barely a mile and a half from Walton prison. It was to be a category B prison and it would have been the length of a cricket pitch away from the neurosurgical unit in Fazackerley hospital. Hon. Members can imagine how inept the Government must be to believe that overlooking a prison yard, floodlit day and night, would he conducive to the recuperation of neurosurgical patients. Because of local opposition and the intervention of my predecessor, Eric Heifer, and my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley), the Home Office was persuaded that it would not be wise to go ahead with that prison.
  I was dismayed when I heard the Home Secretary's statement. I had the pleasure of spending some years in Queensland, Australia. During that time I had the misfortune to visit the infamous Boggo road gaol; I stress that I was a visitor. I saw at first hand what a regressive prison regime does to prisoners. They were completely intimidated —but even under that very strict regime there was nothing to compare with the suggestion that if two or more people refused to get up from the dining table they might be liable to a 10-year prison sentence.

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  Like many hon. Members, I am receiving increasing amounts of mail from prisoners about simple matters —the right to exercise, the right to decent food and the implementation of the prison rules as they stand. We all know that, because of a lack of resources, a lack of foresight and a lack of a coherent strategy for dealing with the prison population, those matters are not being dealt with.
  Reference has been made to commitments about ending slopping out. I recall a commitment not so long ago to reduce the number or prisoners, yet the Home Secretary told us that there was an unexpected increase of 3,000 in the prison population. What effect does that have on prisoners? They become disaffected. I am talking about prisoners who do not want problems in serving their sentence; they want to serve it in a civilised fashion, where that is possible in any prison regime.
  Prison officers are equally prisoners of the system. The prison service does not have the staff or the resources to provide the rehabilitation that prisoners need and which many prison officers misguidedly joined the service to provide.
  My constituents who are in prison —I hope not for too long—are becoming increasingly disaffected. Unless there is drastic action based on the Woolf report, rather than the sort of band-aid solution that we have heard about today, I fear that there will be an increase in disturbances, especially if there is yet another unexpected surge in the prison population.
  Mr. Vaz: I agree entirely with my hon. Friend, but does he agree that we require a firm commitment from the Government that more resources will be provided for the prison service? Instead of attacking the Prison Officers Association, the Government should spend more time ensuring that the money and resources are available that will enable the prison service to work; otherwise, the result will be the wanton destruction that occurred atStrangeways.
  Mr. Kilfoyle: That is absolutely right. We need more resources, but they must be properly targeted. I do not believe simply in throwing money at the prison service for the sake of it. Building new prisons, for example, is not necessarily the answer. We must have properly trained staff and we must provide some incentive for the prisoners themselves.
  I recently received a letter from a prisoner who was seeking my help. He was in Long Lartin prison when he wrote to me, but by the time that I was able to make contact with him, he had been transferred to Winson Green prison. I telephoned that prison only to learn that he had been transferred to Risley. When I telephoned Risley, I was told that the prisoner had been returned to Winson Green. My office rang that prison today and was told that the prisoner has now been transferred to Walton prison.
  Is that a useful deployment of resources? The man has two months of his sentence left to serve. A properly organised Department would have ensured that that man could be transferred immediately to his home prison for release. Such tales are legion—[Interruption.]
  Mr. Deputy Speaker (Sir Paul Dean): Order. I apologise to the hon. Gentleman. I had just taken over the Chair and I thought that he was making an intervention. I hope that I have not put him off.
  Mr. Kilfoyle: You will have to forgive me, Mr. Deputy Speaker, but I have now lost my thread.
  Another prisoner wrote to me recently, and I am now seeking to get him transferred to a prison nearer his home in Liverpool. That man was being transferred from Dartmoor to the Isle of Wight. The problem was that I could not get a response from anybody in the Department. I seemed to go round in circles, and I am sure that that has happened to many hon. Members.
  Mr. Vaz: My hon. Friend has raised an important point about the ability of prisoners relatives to travel around the country. Does he share my concern about some prisoners being put in prisons that are so far away from their families that it is a difficult and expensive business for the wives and chilldren—especially if there are young children—to travel half way round the country to see their fathers or relatives? It seems to be the families that are being punished for what has happened.
  Mr. Kilfoyle: Again, my hon. Friend is absolutely right. Prisoners are often transferred so far away from their homes that the social problems become immense and the difficulties are exacerbated rather than diminished. It is the local authorities that must pick up the bill for those problems.
  Prisoner after prisoner has complained about the arbitrary way in which the prison regulations are enforced. It is not just a question of prison visits and of people being shifted far away from their homes, because telephone calls can also be a problem. A prisoner wrote to me stating that, although he was worried about his father's health, he was not allowed a telephone call. He was told that, if he behaved himself in the segregation block where he was being held, he would be allowed to make a call to his father who was seriously ill. Telephone calls are being held out as bait for good behaviour. That incident led to the man absconding from the prison just weeks before his sentence was due to end. That is no way to run a prison service.
  On the subject of Walton prison and the conditions there, I must pay credit to all its staff who work extremely hard. However, two of my constituents entered the prison service with the idea of working eventually in Walton prison, but they have ended up working in London. The families are now split up. The prison officers cannot afford accommodation in both places—in fact, they cannot afford accommodation in either—and they are contemplating leaving the prison service for what will probably be a life on the dole. That is happening simply because the prison service has been so badly mismanaged that the staff are disaffected.
  I regret that we hear continual attacks on members of the Prison Officers Association. As far as I am concerned, it is the only body that represents the prison officers, who work under great duress. We must recognise that they are getting a raw deal and are being victimised by the Government. The prison officers have been seen as one of the major reasons for, not one of the victims of, the mismanagement of the prison service.
  I sincerely hope that we shall have a change of Government in the not-too-distant future, and that my right hon. Friend the Member for Sparbrook will be able

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  to rectify the wrongs that have been so obviously perpetrated by the Government on the prison service during the past 12 years.
  8.4 pm
  Mr. Barry Sheerman: When I reply to debates, it is my custom to have heard all the speeches that have been made, so it is unfortunate that pressing circumstances outside the House have led me this evening to commit the grave discourtesy of not being in my place to hear as many speeches as I should have liked. I apologise to the House.
  The Opposition have grave reservations about the Bill. Our concerns go far beyond those that we anticipated in our debates on the Gracious Speech, which took place before we had sight of the text of the Bill although even at that stage we had our fears about its final form. At that time, our views were expressed eloquently by my right hon. Friend the Member for Birmingham, Sparbrook (Mr. Hattersley). At that point, we believed that the Bill would be an irrelevance and unnecessary given that prisoners can already be charged with a wide range of criminal offences, including offences under the Public Order Act 1986. We believed that the Bill would be totally inefectual in terms of deterring rioters.
  That was our opinion before we had read the Bill. Now that we have seen the text, our suspicions and fears are confirmed. I shall turn later to my perception of what the Home Secretary said earlier, and what some of his hon. Friends have said in his defence and aid. Much of what has been said by Conservative Members today seems to be a rearguard attempt to protect the Home Secretary and his sinking reputation.
  I will not call the Home Secretary any names, but I repeat the point made by many of my right hon. and hon. Friends. When the right hon. Gentleman came to that office, he had the opportunity to grasp the nettle of prison reform. Indeed, he had a unique and historic opportunity because the Strangeways riot had already occurred, and the Woolf-Tumim inquiry was in progress. If he had had any foresight, when the Woolf-Tumim report was published, the right hon. Gentleman would have said to himself, "Here is a unique and historic opportunity for me to make my reputation as one of the great Home Secretaries of the 20th century." Those of us concerned with criminal justice matters are disappointed that the right hon. Gentleman did not seize that opportunity.
  As my right hon. Friend the Member for Sparkbrook said earlier, we have seen only a few small and rather insignificant measures that do not add up to a large impact on our criminal justice system, which is crying out for fundamental change. As I shall seek to argue, the opportunity was there; and the Home Secretary's failure has been that he did not grasp it. He will carry disappointment with him for the rest of his political career and, indeed, to the end of his days. Instead of seizing the opportunity to become one of the great Home Secretaries of the 20th century, he remains a rather shaky party politician.
  Our view of the Bill has been expressed most clearly by the Government themselves in their White Paper, "The Prison Disciplinary System of England and Wales", which was published in 1986 in response to the Prior committee report. My right hon. Friend the Member for Sparkbrook referred to that, and it does not harm us—
  Mr. Kenneth Baker: There is no one else here.
  Mr. Sheerman: The Home Secretary is worried about my declining audience. We shall see what audience his right hon. Friend the Minister of State has when it is her turn to speak.
  I quote from the Government's 1985 report. It is a quotation to which the Home Secretary should listen to which his right hon. Friend the Minister of State should reply:
  "Since the Prior Committee's report was published, the Government's Public Order Bill (now the Public Order Act) has been brought before Parliament. Clauses 1, 2 and 3 create new statutory offences of riot, violent disorder and affray, with maximum penalties of 10, 5 and 3 years respectively. Clause 4 creates an offence of threatening or insulting behaviour which replaces the offence in Section 5 of the Public Order Act 1936. All these offences can be committed inside a prison establishment. Accordingly the use or threat of violence in connection with a prison mutiny can be dealt with under the general criminal law. Given the restructuring of public order offences in the Public Order Bill, the Government's view is that there is no need for a further specific offence of prison mutiny."
  I hope that the Minister of State will tell us why the Government's policy has changed since 1985.
  I can perhaps anticipate what the Minister will say. She might say, and I would not blame her for saying, that the Strangeways riot and the riots associated with it have given cause for a total and radical rethink. In some ways, she might be justified in using that argument. However, Lord Justice Woolf was asked to inquire into Strangeways and the other riots. He produced a report which is highly regarded. I have heard no demur from the opinion that the Woolf report is the finc,t document for 100 years on what is wrong with our prisons and the penal system and how to put it right. Everyone agrees that it is the report, and that there is no point in having a royal commission after Woolf. It is a brilliant report. Everyone who has knowledge of the criminal justice system says that Woolf is where it is at, and that, if the Home Secretary implemented Woolf within a reasonable timetable and with reasonable resources, he would have done what was needed.
  As my right hon. Friend the Member for Sparkbrook said, in his wide range of recommendations Lord Justice Woolf rejected a special measure to deal with prison riots and disturbances. The many days spent not only taking oral and written evidence but taking part in the interesting innovation of seminars in which all the participants in the criminal justice system could come together and discuss the issues convinced him that there was no call and no advocate for the creation of a specific offence.
  The Home Secretary said that he had found prison governors who were in favour of the Bill. I hope that his right hon. Friend the Minister will name some of them. Certainly, the Prison Governors Association is not in favour of it. It is the time of year and the period of political history when many of the great campaigning organisations in penal reform have their anniversaries. The Prison Reform Trust recently had its 10th anniversary party. The National Association for the Care and Resettlement of Offenders recently had its 25th anniversary. They were pleasant occasions, at which the Home Secretary was present. He would not find anyone among the people celebrating those events who was in favour of the legislation except his own Parliamentary Private Secretary who was also present, but that is to be expected.

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  When the public think of prison mutiny, they have in mind events such as those at Strangeways, when prisoners attempted to overthrow legitimate authority in a violent manner. That is the very event envisaged in clause 1(2)(a). If the Bill had stopped there, we would have supported it as an unnecessary but reasonably harmless measure, but it goes far beyond the type of incident about which we are all deeply worried.
  Clause 1(2)(b) defines a mutiny as where two or more prisoners
  "collectively resist, impede or disobey any exercise of lawful authority in the prison in such circumstances as to make their conduct subversive of order in the prison."
  That is amazing. Who drafted it? I do not know who pays the salaries of the people who drafted it. It is an astonishingly broad remit. Presumably we shall have a good chew at the clause in Committee, but if it remains in that form we shall certainly be unable to support the Bill on Third Reading.
  I said today to my right hon. Friend the Member for Sparkbrook that if the Oliver Twist story were translated from the workhouse to a prison, the person who drew the short straw and was sent to protest about the food would come within the net of the Bill. It would be necessary only to produce evidence of the drawing of straws and some sort of conspiracy to send Oliver Twist to ask for more. It is ridiculous. Many protests in our prisons are about food, which is extremely important to the prisoners. They protest when the food is not up to standard or of the quality that they have come to expect.
  Clause 1(4) says:
  "Where there is a prison mutiny, a prisoner who has or is given a reasonable opportunity of submitting to lawful authority and fails, without reasonable excuse, to do so shall be regarded for the purposes of this section as taking part in the mutiny."
  Again, the commission of this serious offence, which carries a maximum sentence of 10 years, need not involve any use or threat of violence. We find it amazing that men and women who take part in an action that does not use or threaten violence will have such a penalty thrown at them under the terms of the Bill.
  No alarm, distress or breach of the peace need be caused. What is more, according to clause 1(3) there is no mens rea for the offence. Prisoners' intentions are inferred from their behaviour. Let us compare that with the offence of riot under the Public Order Act 1986, which also carries a maximum penalty of 10 years. It is an important comparison. Under the Act, a riot occurs
  "Where 12 or more persons…use or threaten unlawful violence for a common purpose and the conduct of them … is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety."
  The same safeguards occur for the offences of violent disorder and affray, where the maximum sentences are considerably lower—five and three years respectively.
  Let us consider what behaviour would be caught by the wide definitions in clause 1. First, prisoners will have disobeyed lawful authority if two or more of them have been involved in a sit-down protest in the yard about food or have refused to work in the workshop. I was talking to a prison officer this morning. He said that the legislation was unworkable. It is the normal daily routine in the prison that prisoners refuse to obey when upset about some change in routine or something that has happened.
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  The Minister of State has visited many prison establishments since she took on her job, so she knows the mentality and psychology of prison inmates. She will be aware of the trigger points and catalysts that set off a disturbance. The Secretary of State made a short speech in which he said nothing about the main thrust of the argument and the criticisms that my right hon. Friend the Member for Sparkbrook and those who have lobbied him have made. I am making that criticism in detail, and I hope that the Minister of State will give us some answers.
  We have to run our prisons on the basis of a law that works. Great damage can be done if we introduce an unworkable Bill. Legislation that no one understands and that no one can work with in any meaningful way will bring the law into contempt and may do more damage than good—it may backfire on those who drafted the Bill.
  Sit-down protests in the yard about food or refusing to work in the workshop because the rota or the work has been changed without consultation are everyday occurrences. If two prisoners are involved in a rooftop protest to proclaim their innocence, they will be committing an offence. I do not like rooftop protests. I do not like people climbing up on to roofs and damaging them, but we must put that in perspective. Men who were later found to be innocent have used that means of protest to draw attention to the injustice of their sentence and conviction. There is a difference between mutiny and someone climbing on to a roof and saying that he is innocent but has had to go to that extreme. I do not condone it, but I understand it, and bringing it within the terms of the Bill is dangerous, because it would criminalise non-violent civil disobedience.
  Mr. Timothy Kirkhope: Rubbish.
  Mr. Sheerman: The Whip, the hon. Member for Leeds, North-East (Mr. Kirkhope), who is a great expert on such matters, says, "Rubbish." If it is rubbish, it is the rubbish that every informed person and knowledgeable pressure group involved with the penal system is coming out with. If the Whip—who does not usually say much, thank goodness —thinks that that is rubbish, I refer him to NACRO, the Prison Governors Association, the POA, the Howard League for Penal Reform, the Prison Reform Trust and New Bridge. We could meet some of them and he can tell them that it is rubbish. Perhaps we should go to one of his local prisons—there are several near his constituency. We could talk to the governor and see whether he says that it is rubbish.
  The questions that I am asking are the questions that the informed and high quality lobby outside is asking. I have the opportunity to ask those questions at the Dispatch Box and I have the right to expect an answer, even in these late days of a regime which does not believe in parliamentary accountability any more.
  Everyone accepts that prison authorities must have powers to discipline the non-violent prisoners I have described, but they have those powers under rule 47(19) of the prison rules, which make it a disciplinary offence for a prisoner to disobey any lawful order.
  I was interested when one of the hon. Members representing Northern Ireland explained how the system works there. That shed some light, and I hope that the Minister learned from it. To charge prisoners with a serious criminal offence in those circumstances is

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  draconian and totally inappropriate. The Bill was not designed to deal with that sort of non-violent activity, and we have to do something about it.
  Official prison returns show the extent of non-violent protests. My hon. Friend the Member for Sparkbrook gave the figures earlier, hut they bear repeating. Between March and June 1991 there were 23 food protests, six rooftop demonstrations and 29 allegations of concerted indiscipline—a total of 58 protests.
  A prison officer told me this morning that officers are paid to deal with that type of activity. He said that those were fairly normal occurrences. They are anticipated and are part of the job. All such incidents would fall within the scope of the Bill and would be criminalised. If the law were used in that way, it would undermine confidence in the process of prison reform. There are protests about conditions in many of our prisons.
  I want to bring home to the Minister and to the Home Secretary that we are worried about the Bill because it seems like a sticking plaster job. It dwells on the surface of the problem and is peripheral to it. We keep invoking the Woolf report because it got beneath the surface. It got away from the periphery of the debate and went to the heart of the matter. Woolf drew our attention to the reason why the prison system in 1990–91 is a disgrace to a modern civilised nation. In every paragraph of that thick report, he pointed out that rotten, insanitary, and especially overcrowded prisons are the problem. The Strangeways riot and prison indiscipline resulted from packing men into inhumane conditions and treating them as less than human. That is the truth about our prisons.
  I intervened on one hon. Member earlier who was being unusually nice about some of the things that happen in a few prisons. He was talking about work and assessing prisoners' potential for training. When I became interested in the penal system, I was horrified to find that that has not happened for years. There are about 47,000 prisoners, and the number is rising. Is it not possible to have a management structure which knows who the prisoners are, what they are doing, and their possibilities for education and training? Is it not possible to have a proper personnel file on each prisoner, to assess their potential for rehabilitation and their progress? Is it not possible to anticipate what stage one wants them to get to by the time they have served their sentence?
  In the past few years. we have witnessed the Home Office's inability to tackle the fundamentals of the problem. We have also witnessed its ability to do great damage because it has been unable to stand up for the prison service with other Departments.
  Yesterday morning, I was at a meeting called by the National Association of Probation Officers about employment opportunities for prisoners. It was not only dreary because very little was happening as regards employment opportunities for prisoners. A high percentage of prisoners—80 per cent.—cannot find employment when they come out of prison and stay unemployed. Consider the impetus to reoffend in those circumstances.
  In the great drive towards privatisation and to make the Department of Employment more efficient, the Minister's colleagues got rid of the counselling service for prisoners before and on release. I wonder if they brag about that. I suppose that the Whip will say that that is rubbish, too, but it is true. That was a damaging blow to the prison service.
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  What a disgrace in 1991. Where was the Home Secretary when that decision was taken, a decision that damaged prisoners' opportunities? Probably it was not his fault but was the decision of a previous Home Secretary or one of his underlings. I do not know. There will no doubt be some excuse.
  My right hon. Friend the Member for Sparkbrook was absolutely right. We must recognise why the Bill is thought to be so irritating by people outside: it is because it is a Missed opportunity. We have an opportunity to create a good Bill—one that we could be proud of. I have often told the Home Secretary, although he does not like it, that he should come to the centre ground of informed opinion on penal affairs. He should throw off his ideological blinkers and join those of us who believe that Woolf, with a timetable and resources—something which his recent White Paper studiously avoided—is the way ahead.
  We have no real timetable, unless one believes in the time mentioned by the Home Secretary, who referred to what might happen in the next 20 to 25 years. As John Maynard Keynes said, in the long run we are all dead. Nearly everybody now in the prison system will be out of it by the time the Home Secretary has finished reforming it. [Interruption.] All those now in prison will be out by then. Up to 25 years is too long for the radical reforms for which Woolf called. We want them much faster.
  As I explained, if the law were used against non-violent disturbances in prison, it would undermine confidence in the process of prison reform. In many prisons, protests about conditions happen because the conditions are deplorable.
  Lord Justice Woolf could not have made the case for reform more clearly. A key message to come out of his report is the need for justice in prison—the need for a mechanism to ensure that grievances can be aired. As he says, without justice, security and control inside prisons are compromised. The Bill flies in the face of justice. The use of the criminal law is no answer to legitimate protest.
  Lord Justice Woolf, in his exhaustive report designed to prevent future prison riots, did not propose an offence of prison mutiny. Instead, in his 204 recommendations, he provided for a comprehensive list of reforms, including the need for accredited standards in prison, a new prison rule preventing overcrowding and the establishment of compacts with prisoners setting out their expectations and responsibilities. The idea of the compact went to the very heart of Woolf, but we have heard little about the concept. I know that Lord Justice Woolf himself believed that it went to the very essence of his report, but it was nicely sidestepped in the White Paper.
  The Government's response to Woolf, in their White Paper, makes depressing reading. The White Paper rejects the proposal to end overcrowding and is notable for its avoidance of dates and timetables for implementing reform. Yet improving conditions and reducing overcrowding would have been a far more effective antidote to riotous behaviour than this measure. Parliamentary time should have been devoted to those parts of the Woolf report which require legislation and not wasted on this unnecessary measure.
  Why are the Government so intent on pressing ahead with the Bill at this time? The answer lies in the Home Secretary's attempt to shore up his crumbling reputation.
  Mr. Kirkhope: Oh dear!
  Mr. Sheerman: I will willingly give way to the Whip if he wishes to intervene. [Intervention.] I think that the Home Secretary is making a comment, possibly about the length of my speech. If the time is up for anyone, it is up for him. The right hon. Gentleman is hoping that by sounding tough he can restore some of his credibility. The real problems facing the prison service deserve a considered response, not a political fix. To those who care about these issues, the right hon. Gentleman's reputation is less important than a proper path to constructive reform.
  The Home Secretary cannot run away from the House forever. At some stage he will have to make a statement on the Brixton escapes. Clause 2 of the Bill is all about escapes. It increases the penalty for assisting an escape from five to 10 years and provides that the offence can be committed by sending something into a prison. How reassuring! But the real issue is making prisons sufficiently secure to ensure that prisoners cannot escape. It is no use increasing the penalty if prisoners can get over the wall —especially if, as is alleged, they received considerable help from special branch. If I had special branch helping me to get into or out of a prison, I would expect to succeed.
  I suppose it is somewhat reassuring to know that members of special branch may be liable to longer sentences if they assisted the escape from Brixton. It would be far more helpful in preventing a repetition of that appalling bungle if the Home Secretary would tell the House what really happened, how those men could have been allowed to escape, and what action he proposes to prevent such an escape ever happening again. My right hon. Friend the Member for Sparkbrook dwelt, justifiably, at length on that issue.
  We are engaged in the European debate just now and are expressing worries about parliamentary responsibility and accountability. On an issue of great public concern, two of the allegedly most dangerous terrorists that we had behind bars in this country were allowed to escape. There is a total scandal about how they escaped and about whether special branch was involved in the escape. The Home Secretary has cheated the House of its right to an account of what went on.
  Whether we be politicians or pundits, we feel cheated over the fact that the Home Secretary has not told us what went on. It is amazing that the Home Secretary should have been able to refuse to do that. If he has nothing to hide, why did he not make a statement? Why would he not accept the duty of a Home Secretary and be prepared to be asked questions by Members of the Opposition and others? What does he have to hide? We ask him again to change his mind and to clear the air. Those two dangerous men are still out there. The British public want an inkling of what went on and how those men were allowed to escape. We shall continue to press for an explanation.
  The Opposition had anticipated that the Bill would he an irrelevance to the issue of preventing riots in prison, but it has proved to be far worse than we had expected—undermining civil liberties, criminalising non-violent protest and ultimately precipitating the very kind of disruptive behaviour that it was ostensibly designed to prevent.
  We shall be working in Committee for major changes to be made to the Bill. I am sure that, in that process, the Minister of State and I will be engaged for some time in trying to make it a more palatable and acceptable measure. I do not hold out high hopes for it at this stage, but we
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  shall do our best, for considering measures of this type should not be a question of party political concern: we all want a better penal system. We have consistently offered to be co-operative on such measures if we believe tham to be progressive and in the spirit of the Woolf report, but if such changes are not forthcoming, we shall oppose the Bill on Third Reading.
  8.37 pm
  The Minister of State, Home Office (Mrs. Angela Rumbold): I wish at the outset to reiterate my belief that the scenes people saw on their television screens during April 1990 were genuinely acclaimed as an absolute disgrace. They were, unfortunately, a disgrace to the prison service. It was disgraceful that it was possible for prisoners to take that sort of action.
  The Opposition misunderstand the reasons for the Bill. Despite the passage of the Public Order Act 1986, the previous Home Secretary—now Lord Waddington—at the time of the occurrences at Strangeways and other prisons in April was so shocked by them that he had a strong urge to reconsider the whole matter. He responded to the public outcry and said that further thought should be given to whether there should be a new offence of prison mutiny. When the present Home Secretary came to office, he considered that issue and agreed with his predecessor.
  The hon. Member for Leicester, East (Mr. Vaz) and my hon. Friends the Members for Ryedale (Mr. Greenway), for Newark (Mr. Alexander) and for Portsmouth, South (Mr. Martin) have all said that there is a misunderstanding of the public's concern about what happens in our prisons and what is acceptable. The Opposition must accept that people are genuinely upset, worried and, to a certain extent, disgusted when they see riots and misbehaviour in prisons.
  The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) said that, if people refuse to obey an instruction—for example, to leave a dining hall —that may be considered to be undermining discipline. The test is not whether an act undermines discipline, but whether a protest is subversive of order. That is the critical test. It will therefore be limited only to very serious events. Surely there can be no objection to introducing an offence for serious incidents. It is not for minor incidents, as Opposition Members have been at pains to imply. That is not the Bill's intention.
  Mr. Hattersley: If the intention is to limit the Bill to serious matters, I take it for granted that suitable amendments will be accepted in Committee to make that clear. More important, will the Minister give an example of a serious matter that would be caught and punished under the Bill with a maximum sentence of 10 years, but would not be caught and punished under the Public Order Act 1986 with a maximum sentence of 10 years?
  Mrs. Rumbold: The Bill will apply if a number of people within a prison refuse consistently to allow a prison officer to continue his duties and undermine the governor's lawful control of that prison. That is not exactly the same.
  Mr. Hattersley: The hon. Lady must have misunderstood my question. I understand how the Bill could be applied. My question is which of the situations to which it could be applied would not be appropriate to the Public Order Act?
  Mrs. Rumbold: Under the Bill, mutiny means any action or omission, which need not be violent, but which —this is the important point—destroys the lawful authority of the governor, with the result that he may lose complete control of the prison. The consequences or potential consequences are relevant, rather than the acts of disobedience. We must not lose sight of that fact, as it lies at the heart of the Bill.
  Mr. Lawrence: May I try to assist my hon. Friend? If a judge considers what sentence should be imposed for that kind of misbehaviour, he will have regard to the fact that Parliament has deliberately decided to make an offence of prison mutiny, which he will consider will require a harsher sentence than he might otherwise impose under the Public Order Act.
  Mrs. Rumbold: That is precisely what would happen. For minor offences, a prison officer will still be able to give the internal punishments to which he has had access in the past. Since Lord Justice Woolf's recommendations, the boards of visitors will no longer necessarily have that task.
  My hon. and learned Friend the Member for Burton (Mr. Lawrence) touched on a number of issues, including the issue raised by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) about Lord Justice Woolf's recommendations. The White Paper "Custody, Care and Justice" eloquently covers all those recommendations and contains extensive responses to the whole of Lord Justice Woolf's report. It has been carefully thought through and our responses have been welcomed by Lord Justice Woolf, who said that he was satisfied with how the Home Secretary handled the matter after the report.
  Mr. Sheerman: Just for the information of the House, when did Lord Justice Woolf give his approval?
  Mrs. Rumbold: When the White Paper was published, Lord Justice Woolf was perfectly happy to intimate publicly that he thought that it was a good response to his report. If the hon. Gentleman missed that, that is his problem—it is certainly not ours.
  Several Opposition Members said that we should deal with overcrowding if we wished to tackle the difficulties within our prisons. There is no doubt that we should be looking at prison regimes. No one will deny that what has happened in our prisons is not acceptable in this day and age. I would not dream of saying that our prisons were running ideally, but many of the difficulties that the Government and earlier Governments have found were caused by the disgraceful inheritance of poor prison buildings that required a substantial injection of public funds.
  Mr. Vaz: What does the Minister intend to do about the 3,000 young people in prison and the 1,700 prisoners who are being held in police cells? Does she have solutions to those problems?
  Mrs. Rumbold: If the hon. Gentleman will wait, I shall endeavour to answer some of those questions. First, I want to tackle the accusations by Opposition Members about overcrowding.
  My right hon. Friend has been tackling that problem—his predecessor also tackled it—by instigating a substantial new-build programme to replace old prisons and refurbish existing ones. There are now some 125
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  prisons in this country and there will be another 12 between 1992 and 1994, which will provide an additional 5,000 places within the prison system,
  The right hon. Member for Sparkbrook argued that the right way to tackle the problem was not simply to provide more space within the prison system. None the less, the right hon. Gentleman and a number of Conservative Members would agree that people who must be kept within the prison system, must be kept in decent and humane conditions. That is one of our most urgent priorities, and it was backed up the Home Secretary in his speedy response on slopping out. He has brought forward by two years the date recommended by Lord Justice Woolf to end the disgraceful measure of slopping out. We should all congratulate my right hon. Friend for that. The Government's efforts on tackling the problems of prison buildings and overcrowding are beginning to come together.
  The right hon. Gentleman asked about the number of people who enter the prison system. That, too, has been dealt with by the Government. The Criminal Justice Act 1991—the hon. Member for Huddersfield (Mr. Sheerman) served on the Committee and well knows the arguments—contains many different systems. We shall endeavour to keep people who should not go to prison out of it by ensuring that courts have non-custodial sentences available to them. People will then be able to serve sentences within the community rather than in prisons.
  I shall answer the question of the hon. Member for Denton and Reddish (Mr. Bennett) later.
  Mr. Sheerman: The Minister should not mislead the House about what happened in Committee, when there was agreement on some matters in the Criminal Justice Act 1991. We told the Government time and again that, unless they grasped the nettle and introduced some sentencing reform and a sentencing council, they would never crack the problem of overcrowding in our prisons and the fact that more people are in prison in this country than in any other country in Europe. We said that, if they did not grasp the nettle, no matter how many prisons they built, they would surely fill them, as the Americans have found to their cost. In the past 15 years, the American prison population has risen from 600,000 to almost 1·3 million. Is that the course she predicts for this country?
  Mrs. Rumbold: The hon. Gentleman has a whimsical addiction to the notion that sentencing councils would prevent many people from entering prisons. I do not agree with that philosophy.
  My hon. Friend the Member for Harborough (Sir J. Farr) made sensible comments about long-term prisoners. I shall take up his offer to write to him on the issues he mentioned. I say to him and to the hon. Member for Upper Bann (Mr. Trimble) that it is perfectly right to declare that the Secretary of State for Northern Ireland does not wish the Bill to extend to Northern Ireland at present.
  I am sad that the hon. Member for Caithness and Sutherland (Mr. Maclennan) is not present, because I wanted to address some of the issues that he raised, including the necessity for good regimes—a point on which I agree with him. I shall reiterate the view of the Government on the matter of prison officers, which was raised by a number of my hon. Friends and the hon. Member for Caithness and Sutherland. No Conservative

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  Member and certainly no Minister would ever do other than say that we recognise what a difficult task the people who work within our prisons have and how much we admire them for the work they do in prisons throughout the country. I want that placed on record. I pay tribute to their good work, especially that which is and was done at the time of the riots at Strangeways and other prisons.
  We recognise the bravery that prison officers show and the difficulty and stress under which they work. It is important that when we tackle each of the issues raised by Lord Justice Woolf in his report, we take the prison officers with us because they are the ones who have to build up trust within the prisons. It is important to build up trust between prisoners and prison officers. If we achieve such a regime, it will prove the best way to prevent the sort of disturbances and riots that have occurred.
  The hon. Member for Huddersfield mentioned the Prison Governors Association. The White Paper "Custody, Care and Justice" clearly stated that we intended to introduce the Bill. We gave prison governors and others the opportunity to comment on the White Paper. They have not yet done so, and no one to whom I have spoken has shown any intention of questioning us on that issue.
  The hon. Member for Caithness and Sutherland spoke of the board of visitors and its changing role within the prison system. My hon. Friend the Member for Newark made some interesting comments about his experiences as chairman of the board of visitors and the way in which prisoners had to go through the system. Lord Justice Woolf recommended that the board of visitors should act much more in the nature of watchdogs in prisons. I agree, and believe that that would be a much more satisfactory way for the board to discharge its duties, with prison officers given the task of adjudicating on small offences —events that happen as a matter of course, and which Opposition Members have claimed that the Bill is all about. That is not true; small matters will continue to be dealt with within prisons.
  The hon. Member for Denton and Reddish made a number of points that were also reiterated by many of my hon. Friends. He mentioned Manchester and its police force. He will be glad to know that I shall be visiting Manchester next Monday to see the position for myself. I think that the message that my right hon. Friend the Home Secretary gave earlier will have been well understood by the hon. Gentleman. I am aware of the concern of the Greater Manchester policy authority and have been in correspondence with it. I shall listen to whatever worries it expresses when I visit the city on Monday. I am conscious
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  that the Manchester police and neighbouring forces have had to accommodate more prisoners in police cells than forces in other parts of the country.
  Mr. Andrew F. Bennett: Will the Minister bring a message to the Manchester police to ensure them that their present burden, at least, will be reduced, especially over the Christmas period? At that time, there are often people in police cells who have been arrested rather than remanded there by the courts.
  Mrs. Rumbold: The hon. Gentleman is well aware that the issue of the additional number of prisoners has been overtaken by events. Earlier in 1991, we were looking at a reducing the prison population, but unfortunately, as the hon. Gentleman knows, the prison population has escalated by 3,000 more people than originally predicted. As the hon. Gentleman will no doubt know, that number will be traditionally reduced over the Christmas period. Whether that position will be sustained post-Christmas is an issue we shall have to address later, and I shall certainly tackle it. I want to see for myself at first hand exactly what the position is in Manchester. I shall look at and listen with interest to the suggestions that will no doubt be made to me when I make my visit.
  The hon. Member for Leicester, East talked about youths in custody and asked me to comment on the death of a 15-year-old at a young offenders institute at Feltham. I think that I know the governor there as well as he does. We intend to phase out remand for 15 and 16-year-olds as soon as possible. We need to build more secure accommodation, which will take some time. There is no wrangle within Government over the money for that. We agree with the hon. Gentleman, and we certainly agree with Joe Whitty. I hope that that assists the hon. Gentleman. On a positive note, we are trying to ensure that juveniles on remand in local prisons are given as positive a regime as possible.
  The introduction of the Bill, which is a small but significant and important measure, is in no way a Government response to an issue that has suddenly arisen. It is in response to a serious concern expressed by a number of people throughout the country. The general public expect Governments to act firmly when they see issues of great concern to themselves. They are genuinely worried about the sort of things that happened in our prisons last April. They are worried about the effect of escapes. They wish to be reassured and to know that people who commit such offences within our prisons, or coming out of our prisons, will be punished. This small Bill does exactly that, and I trust that it will command universal support outside the House.
  Question put and agreed to.
  Bill committed to a Standing Committee pursuant to Standing Order No. 61 (Committal of Bills).

  Contempt of Court
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. Nicholas Baker.]
  8.58 pm
  Mr. David Ashby: I rise to raise the subject of the operation of the law on contempt of court. Many hon. Members on both sides of the House would have wished to be in the Chamber and perhaps to speak in the debate, but, because the Government's business has been dealt with with more rapidity than they would have expected, they will be disappointed.
  I am aware that a former colleague and writer on a national paper would have wished me to use my words with great care, but during the past few weeks Leicestershire has experienced the most horrific trial. I do not wish to deal with that trial, but something happened in the course of it which has astounded people and made them want to look again at the way in which we conduct ourselves and our trials in court.
  In the course of that trial, one of the defendants, the major defendant, an evil man, chose to use the name of an honoured colleague in the House entirely for his own ends. He was determined, I think, to try to blackmail the—I almost put it in quotation marks—establishment.
  I think that the defendant felt that, by naming persons who were in public life and putting them forward as people from whom children had to be defended—this was a child abuse case —he might frighten the authorities into not prosecuting or not pursuing the prosecution with the vigour that one might have expected. The defendant was wrong about that. He should have known that in Britain we conduct our prosecutions independently and fairly.
  The defendant could not achieve his objective, but he sought to do so during the course of the trial, and anything said in the course of a trial is not subject to the laws of slander or libel when it is reported in newspapers. It was spread throughout the newspapers the length and breadth of the country, on the radio and on television.
  The problem is that a person in that position has no way of defending his good name. If that person were immediately to issue a statement, which is the very least that one would expect could be done, he or she would be in contempt of court. The jury has to decide the case, and if anyone issued a statement denying that a witness or person is telling the truth, that would be a contempt of court. It would be interfering with the course of justice. It could be said that it would be trying to influence the jury to disbelieve the person who made the statement. So that person is in a hopeless and helpless position.
  When such events happen so close to home, it strikes most hon. Members that this is an unjust and unfair procedure. There cannot be any justice in a person being pilloried, taken from pillar to post, by the press, when people are looking at him askance. The hon. Member concerned has not even been able to deny the allegations. He has not even been able to say that they are untrue. It affects himself and his family, and it must be a living hell.
  Because that has happened to an hon. Member does not mean that it will not happen and has not happened to others who are not in the House. That is a danger into which any one of us could fall, and there is no way that one could stop it happening.
  I recognise that, during any trial, it is absolutely necessary that the defendant and witnesses should be free
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  to give evidence—because if constraints were placed on them in that regard, it could not be a fair trial. Mr. Beck was certainly given a fair trial—and a run for his money.
  Having said that, there ought to be a way of excluding gratuitous evidence affecting those who cannot protect themselves from newspaper, television, and radio coverage of a trial—such as is done in the case of rape victims.
  Ms. Clare Short: Sometimes.
  Mr. Ashby: In most cases, I hope. I thought that, these days, such protection was given almost without exception. In blackmail cases—the trial to which I referred earlier was a form of blackmail—the judge directs that the name of the blackmailer's victim should not be disclosed in open court, but instead it is written down and presented to the court in that way.
  That is a case in which the judge has a discretion—but I am not sure that the judge would always want to have that discretion. In any event, the identity of an individual who has no opportunity to defend himself should not be disclosed by the media. That would not affect the trial. Witnesses would be permitted to say what they wanted without fear or favour, but the innocent person would be protected.
  It would require only a small clause in the next Criminal Justice Bill to provide that protection. Such a provision would be well in keeping with the most excellent policy of this Government of protecting the innocent. which has extended to withholding the identity of rape victims, and of children giving evidence in child abuse cases. We have a good history of improving the processes in our courts, of ensuring that injustices do not occur.
  Needless to say, there must be justice for the defendant, and for the public, in terms of the defendant being properly prosecuted—but there must be justice also for innocent people who find themselves caught up in a trial and unable to control what is said about them. That would be well in keeping with everything that we have said over the years. Such an improvement should take place in our criminal justice system.
  I hope that my right hon. and learned Friend the Solicitor-General and my right hon. Friend the Minister of State, Home Office will consider that it is time that their respective Departments started devising such a provision, so that it will be ready for the next Criminal Justice Bill and that further dreadful injustices will not be perpetrated.
  I refer to the Member of Parliament for Leicester, West —as has my hon. Friend the Member for Rutland and Melton (Mr. Latham)—as my hon. and learned Friend. There have been times when we were adversaries, and we fought tooth and nail in this very Chamber when I first entered Parliament—but outside it, we are friends. In this Chamber, and on this matter, I call him my hon. and learned Friend the Member for Leicester, West (Mr. Janner). I say that he and his family should not have been subjected to the ordeal that they were, and that we should strive to ensure decency in the courts in future.
  Mr. Anthony Beaumont-Dark: Many hon. Members have a great regard for our hon. and learned colleague, the Member for Leicester, West (Mr. Janner), with the accent on "honourable". Many of us are not lawyers—happily, or unhappily for our pockets—so will my hon. Friend confirm that any wretched creature, such as this awful man who lampooned and libelled our good colleague, can say whatever they like

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  about any of us, yet if we defend ourselves we are in contempt of court? If that is so, I am sure that the House and the other place will want to sweep it to one side straight away. It is a calumny that none of us should have to put up with.
  Mr. Ashby: I thought that I had made it clear. Joe Bloggs, who may never have visited Cornwall, could go to Bodmin court and make what statements he wished about someone. It would increase the sentence, but when someone is facing a life sentence, or five life sentences, it does not make much difference.
  I wish to draw my remarks to a close, so that other hon. Members may speak in this important debate.
  9.11 pm
  Mr. Greville Janner: I am deeply grateful to the hon. Member for Leicestershire, North-West (Mr. Ashby) for his friendship, for his kindness and especially for his courtesy in arranging this important debate. In the House, the enemy is sometimes behind one, but on this occasion it does not exist, and I am immensely grateful.
  The hon. Member for Leicestershire, North-West eloquently explained the laws on contempt and how they rightly protect those who are on trial. Wrongly, that law too often leaves those who are not on trial, but whose good names are unjustifiably savaged in court, totally unprotected. That is wrong.
  Anyone involved in a trial can make any allegations they wish about anyone else—provided that the judge cannot disallow them as irrelevant—however harmful, horrendous and vile the lies may be. Those whose representations are attacked are forbidden even to deny the allegations. To do so would be a criminal offence—contempt of court.
  As the House knows, Frank Beck of Leicester was convicted of a series of filthy and most serious crimes and received what must be a near record sentence—five life terms and a total of 24 years' imprisonment. He called Paul Winston as a witness. Long ago, when Winston was a deprived youngster living in a Leicestershire children's home, my family and I tried, unsuccessfully, to help him. Soon after, he was placed in a home run by Beck. After 15 years of Beck's influence—including a period when Winston lodged in Beck's private home—and after I had refused to provide Beck with references and shortly before Beck's trial was due to begin, they combined to make disgraceful, contemptible and totally untrue allegations of criminal conduct against me.
  Their motive was made blazingly clear by a letter that I received only yesterday from a former cellmate of Beck's. I do not know the man, but he took it on himself to communicate with me. He writes that Beck told him that he—Beck —was going to frame me. According to Beck, that would take the light off him. To that end, Beck had enlisted the help of Winston. The former cellmate also wrote that the police knew that he was willing to give evidence to that effect if the Crown thought it necessary to call him. In the event, it did not, but the allegations against me were precisely as the prosecution alleged in Beck's trial —an attempted diversion from the reality of Beck's guilt. Both verdict and sentence showed—happily—that the attempt failed totally.
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  However, is it not horrendous that Beck and Winston were able to make such terrible and lying accusations against me in court and that the media could, and with honourable exceptions did, report these falsehoods, all under the cloak of absolute privilege? I had effectively no legal rights in the matter, and I was not allowed even to nail the lies. No wonder many people were mystified by my uncharacteristic silence —it was imposed by the cruel operation of the rules on contempt.
  Happily, I am a fairly tough character. I have been able to ride out the agony on this ordeal in good heart. But it has not been easy. As a Member of Parliament, I am now well placed to fight back. That would not have applied to any of our constituents or to any other citizens placed by law in this impossible and unjust situation.
  The injustice was both apparent and real. It imposed a special burden on my wife, on my children, on my mother and my sister and on all my family. I pay my loving tribute to them for their staunch and cheerful support during our shared ordeal. I also thank the many hundreds of people who have so kindly written, spoken to or telephoned us to express their affectionate encouragement. Several of them were themselves victims of Frank Beck. I salute their courage and send them my profound sympathy. We ourselves have received nothing but kindness, confidence and concern. We are very grateful. We are deeply blessed with our friends, not least those on both sides of the House and our friends in Leicester, West.
  Surely there should now be a swift review of these injustices in our law and its practice. Surely it must be wrong for people who have no part in a trial to be open to venomous, preposterous attacks, with no remedy, no recompense and, above all, no right of reply. Surely others should not be forced to suffer as we have done. If such a review does lead to a just and useful alteration in the operation of the law of contempt, we shall not have suffered in vain.
  9.17 pm
  Mr. Michael Latham: It is a privilege to follow the hon. and learned Member for Leicester, West (Mr. Janner), who has given distinguished service to the city and county of Leicester and Leicestershire for more than 21 years in this House. He has made it clear—yesterday and today—that there is absolutely no truth in the horrible allegations that were made against him in the Beck trial. The House, of course, immediately and unreservedly accepts that statement from him. It extends to him its affection and sympathy in the abominable ordeal which he, his beloved wife Myra and all his family have endured for so long.
  The hon. and learned Gentleman's many friends in Leicestershire, of which I am very proud to count myself one, and indeed anyone in Leicestershire who knew anything about the matter, never believed any of the repulsive muck for one moment. However, it grieved us greatly that he had to endure it, and that there was no way in which he could clear his name and answer the vile accusations without prejudicing the trial of Beck. There must be a better system than that. Any public figure—indeed, any private figure—could find himself or herself trapped for months in the same nightmare as the hon. and learned Gentleman.
  The House has a proud record of friendship and of closing ranks, irrespective of party allegiance, around

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  those of its Members who are unjustly attacked or threatened. I hope that that day has now dawned for the hon. and learned Member for Leicester, West after the long night of despair, but we should now, as a matter of urgency, examine the existing procedures to ensure that such a horrible event, without any redress for those who have been so long and so unjustly traduced, can never happen again.
  9.20 pm
  Mr. Keith Vaz: I first met my hon. and learned Friend the Member for Leicester, West (Mr. Janner) when, at his invitation, I came to the House with his son to see how Parliament operated. I would not have believed that a few years later I would have been selected as the prospective parliamentary candidate for Leicester, East, and would be his neighbour.
  I am delighted to be here today to give my hon. and learned Friend my full support. My hon. Friend the Member for Leicester, South (Mr. Marshall) cannot be here today because of his parliamentary duties in Northern Ireland, but he joins me in believing my hon. and learned Friend to be the victim of a cowardly and wicked attack by people who simply did not care what damage they did to him or to anyone else. I too wish to extend my good wishes to my hon. and learned Friend's wife and family, and to all his friends, who I know have stood by him during these terrible months. They have shared that terrible burden.
  My hon. and learned Friend is a distinguished Member for Leicester, West. His family in intertwined with the history of the city of Leicester. Before he was elected in 1970, his father was the Member for Leicester, West. The people of his constituency do not believe the lies. They are with him now, and they will be with him in the future, because they know of his unstinting service to anyone who approaches him, for whatever cause. He has vindicated himself, and all of us, in what he has said tonight.
  I remember a speech made by my hon. Friend the Member for Birmingham, Ladywood (Ms. Short), who is another brave Member of the House who has suffered at the hands of a certain newspaper. I worked in the corridor where she had her office, and we Miss her in the west cloisters—especially her use of our fax machine. I recall that, just before her speech, my hon. Friend went through an agonising time wondering whether she should come before the House to tell it what she felt. Courageously, she did so—and struck a blow for every one of us in the House.
  My hon. and learned Friend, too, is a brave man in what he has done, said and endured over the past weeks and months. Every one of us should be grateful to him, because, as the hon. Members for Rutland and Melton (Mr. Latham) and for Leicestershire, North-West (Mr. Ashby) said, what has happened to my hon. and learned Friend could happen to any one of us, so we should all be aware of it.
  During the course of that terrible ordeal, I suggested to the Lord Chancellor that there should be a change in the law to provide for the protection of the innocent. The Lord Chancellor said that he would consider the idea. The Solicitor-General is here today, and I make him an offer. I came 18th in the ballot for private Members' Bills. I know that that is not very high —and there are other subjects that I wish to raise. Nevertheless, I would happily
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  introduce a Bill to cover the point if the right hon. and learned Gentleman would promise it a safe passage through the House.
  We should not wait for another Criminal Justice Bill. There is parliamentary time, and we should get on with the job. I foresee that many unscrupulous people in this country would be prepared to do exactly the same thing again. If it is possible to do so, I will happily give the Solicitor-General my place.
  Mr. Martin M. Brandon-Bravo: I am most grateful to the hon. Gentleman, and I join in the comments made so far. I am drawn 15th in the ballot. I have already tabled a Bill to provide for the innocent victims of sexual offences. It may be possible, if the Bill receives an unopposed Second Reading, for an amendment in Committee to address the point. I hope that it may be so.
  Mr. Vaz: I am grateful to the hon. Gentleman. Is there any improvement on 15th?
  The great thing about my hon. and learned Friend the Member for Leicester, West is that he is a great survivor. Almost alone in some cases, he has taken up great causes and won them. I listened to one of the greatest speeches that I have ever heard in the Chamber when my hon. and learned Friend spoke during the passage of the War Crimes Bill. I was very moved by what he said. He is a survivor, and I am sure that he will survive this great ordeal. I and colleagues will be with him, and the people of Leicester, West, whom he and his family have served so well over the past few decades, will also be with him.
  9.25 pm
  Sir John Farr: I support all that has been said about the hon. and learned Member for Leicester, West (Mr. Janner). I have probably known him as long as any hon. Member of any party has. I knew, admired and respected his father, who was a distinguished Labour Member, as his son is today.
  I support all that my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) said about the law and about the need for change. I support all that has been said by Labour lawyers about the law being an ass. It is an ass, and in this case, it has been very damaging to the hon. and learned Member for Leicester, West and to his family. It is wrong. We have the opportunity and ability to put the law right simply in this place.
  I can probably say with more licence than many others here that this will not be the first time or the last time that the law in Britain has been an ass and has been proved to be an ass. We have an opportunity to put it right tonight, and I am pleased to be associated with the tribute to the hon. and learned Member for Leicester, West and to his family. They must never be subject to such a threat again.
  9.27 pm
  Mrs. Gwyneth Dunwoody: The price that many hon. Members pay for their service in the House is frequently high. It is not always appreciated by those who do not closely understand the enormous pressures that are put not only on Members of Parliament, but on their families.
  I have had the honour of knowing my hon. and learned Friend the Member for Leicester, West (Mr. Janner) for many years. I knew his father and mother before him. I

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  could almost say that I grew up with my hon. and learned Friend, except that he is far younger than I am. That means that I know him not only as an extremely upright, tolerant and charming man, but as a man who is trusted by people in all walks of life. He is trusted not only in his constituency and in the House, but by anyone in need of succour and support. Such a person can always go to my hon. and learned Friend and find understanding, tolerance and a real effort to help alleviate whatever difficulty that person faces.
  I feel especially strongly about the ordeal that my hon. and learned Friend and his family have suffered because my own family went through a similar ordeal many years ago. People outside the House who, like myself, are not lawyers find it almost impossible to understand the byzantine intricacies of what people can and cannot do.
  One of the frightening aspects of modern political life is the tremendous power in the hands of the press. Anyone could have found themselves in my hon. and learned Friend's position. The terrifying quality of the real and long travail that my hon. and learned Friend and his family have suffered was made 100,000 times worse by the behaviour of certain members of the press. As Members of Parliament we are never allowed to say the odd word of criticism of a free press because it is somehow felt that there is an interrelationship and a need for elected Members to get their views over.
  That is true, but it is also true that those who seek to divert attention from their own open evil know that if they nominate or mention in a court case someone who is of interest to the press they will automatically receive publicity of a strength, breadth and constancy that they would not succeed in getting in any other way. Those who purport to be editors of responsible newspapers, news bulletins and television newscasts have a task to look carefully at the decisions they take and the manner in which they handle such matters.
  It is no accident that it has taken a long time to take this case to court, and it is no accident that a long time passed before my hon. and learned Friend could make a statement and clear his name. All those things were aggravated, exploited and made 100,000 times worse by those who behaved as they did for the worst possible reasons—because they were concerned with the sale of newspapers and not with what they were doing to an honourable, learned and responsible man.
  I hope that the House will seek to protect anyone who finds himself or herself in that position. I remember what it did to my family when they were named in a case many years ago and were unable to reply. I remember what that cost in personal unhappiness. It is too high a price for anyone who gives a commitment to this House as an elected Member. My hon. and learned Friend is a man of such stature that I can only pay tribute to him and give him one promise—that those of us who honour his friendship and look forward to enjoying his company for many years will not tell all Members of the House of Commons how many letters we have in our personal files signed, "Love, Greville".
  9.32 pm
  Mr. Simon Burns: I am not a lawyer, so unfortunately I cannot speak with the eloquence of someone who is familiar with the law, but I can speak as a layman who has been disgusted in recent weeks by the press coverage and the pillorying of an innocent victim mentioned in a court case. Justice should be seen to be done in a court case, but where is the justice in British law when an innocent individual who is not even a party in the case can be dragged through the court and vilified day after day by someone who remains in the gutter? There is something inherently wrong when British justice condones that state of affairs and allows it to happen and to persist.
  As hon. Members have mentioned, the hon. and learned Member for Leicester, West (Mr. Janner) is in a position to try to do something about the grave injustice inflicted upon him and his family, because he is a Member of this House. As my hon. Friends have said, there are probably thousands of other people outside who have similarly had their names defamed and their private lives wrongly dragged through the courts and into the newspapers. They are the little people. They do not have the power or the backing to get the justice that they, too, rightly and richly deserve.
  Something must be done. My hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) mentioned rape and blackmail cases. If it is possible in a British court for names not to be mentioned in such cases, why on earth cannot something be done to change the law so that innocent bystanders do not have to have their names dragged through the courts? I believe that that protection is long overdue, and this case has highlighted the fact more than many in recent years.
  It is a sad fact of life that there are, unfortunately, people who believe everything they read in the newspapers. I am afraid that by many people in this country the hon. and learned Member for Leicester, West has been found guilty. They do not understand what reporting on the courts in a newspaper is all about. They see an accusation in the newspaper and take it as a fact; or it is a case, of "no smoke without fire", to use that dreadfully trite expression. We all know that it is not true, but for far too many people it is true and they believe it.
  I hope that two things will come out of this debate. It has provided an opportunity for the hon. and learned Member for Leicester, West for the first time to state the truth and to clear his name of these despicable accusations, so I hope that the newspapers which were ready to give as much coverage as they saw fit to the case when it was going on will tomorrow morning make sure that the hon. and learned Member for Leicester, West gets just as much coverage so that people are left in no shadow of a doubt that there was not one scintilla of truth in the ghastly, grubby accusations that that horrendous man was prepared to make under the cloak of privilege in a court of law.
  I should like to say one thing to my right hon. and learned Friend the Solicitor-General, who is present tonight. I am sure that many other hon. Members would say the same. Surely there is now an overriding need not only to examine and look again at this aspect of the law and of our court proceedings, and not just to think about it but actually to do something. Something should be done quickly, though not in such a hurry that it fails to solve the problem, so that never again will anyone have to go

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  through the sort of nightmare that the hon. and learned Member for Leicester, West and his poor, suffering family have had to go through. If something can be done quickly, it will not make it all worth while, but it will right a great wrong.
  9.37 pm
  Mr. Merlyn Rees: I rise to speak briefly—principally, like so many others, because of my high regard for my hon. and learned Friend the Member for Leicester, West (Mr. Janner) and his family, whom I know, including his father and mother. But that would not be enough, and I wish to make two further points.
  In recent years—since the televising of the House, I suppose—people have asked me, as they have asked other hon. Members, why the House of Commons behaves so badly, like a bunch of yobs. One tries to explain that it happens on the odd occasion, at Question Time, which is not a great parliamentary occasion, and that is what the media pick up. What the media, whether television or the press, never pick up is an occasion such as this, when the House of Commons is at its best in terms of the relationships between people in all parts of the House.
  I wonder to what extent this debate will be reported. If we were all shouting at one another, the media would be here. What the hon. Member for Leicestershire, North-West (Mr. Ashby) has done tonight, and what other hon. Members on both sides of the House have done, although in this respect principally on the Conservative Benches, is to their credit and to the credit of Parliament.
  My second point is this. My hon. and learned. Friend the Member for Leicester, West has had his name in all the newspapers, and in one newspaper in particular. My right hon. and learned Friend the Solicitor-General will be dealing with the question of contempt. I hope that he will not forget the newspapers, in particular. I wonder how many of them will fill their pages tomorrow or the day after in the way they have done in the past few weeks. There is a great deal of talk about freedom of the press. When I think of what went on in eastern Europe, and in fascist Europe before the war, when I was younger, I am glad that we have a free press.
  Ms. Short: We do not have a free press.
  Mr. Rees: We have a press that is free in one sense: it engages sometimes in the most scurrilous reporting and colours it up under the heading of a free press. I wonder what the press will do about this matter in the next few days. With a few exceptions, I suspect that it will do very little.
  9.39 pm
  Mr. Patrick Cormack: I am delighted to take part briefly in the debate. The hon. and learned Member for Leicester, West (Mr. Janner). whom I am pleased to call my hon. and learned Friend, and I entered the House on the same day, and we have been friends ever since. We worked together to form the committee for the release of Soviet Jewry, of which he was the first secretary and I the first chairman. We have not always agreed—I think that he was profoundly wrong on war crimes—but we have always respected and liked each other. I was as appalled as anyone at what happened in recent weeks. It was a terrible ordeal for my hon. and
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  learned Friend and for his family. I endorse everything that has been said from both sides of the House in support and admiration of him and of the courage and fortitude that he and his family have displayed.
  I should like to address my few brief remarks to something else. I am sure that my hon. and learned Friend will endorse what I say. It has already been mentioned that those who serve in the House have an opportunity to put wrongs right. My hon. and learned Friend was able to apply for an Adjournment debate. When it was not appropriate to have it last week, my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) made the facility available this evening. Had he not done so, another hon. Member would have obliged, and we would have had the chance to debate the matter and to make the points which have been made with such eloquence and fervour on both sides of the House.
  What would have happened if the man who had been traduced and vilified had been a village schoolmaster? What if he had been a vicar, a Methodist minister or a rabbi? He would not have had this forum. He would not have had the opportunity to command the attention of the media. Although I endorse totally what the right hon. Member for Morley and Leeds, South (Mr. Rees) said and have doubts about how much of the debate will be reported, nevertheless, we have this privilege and opportunity, but our constituents do not.
  Let us imagine the unspeakable agonies of horror that would have been suffered by someone in —I will not say a less exalted—a different position who had been similarly vilified. Perhaps in a moment of desperation he would have written to his local newspaper. Perhaps he would have gone to his Member of Parliament. As a result, there might have been some minor publicity, but how right my hon. Friend the Member for Chelmsford (Mr. Burns) was: people would have talked about there being no smoke without fire. Mud would have stuck. A career of public service in a quiet and restricted environment might have been ruined.
  There is something wrong with a law that allows that to happen. What we must do because of this horrific and terrible example—I use those words deliberately—is put the law right. In the high court of Parliament, we have a unique opportunity to put the law right. I look forward to a positive and enthusiastic response from my right hon. and learned Friend the Solicitor-General. Even though I did not draw even 15th in the ballot and can offer neither blackmail nor whitemail, I hope that there will be a firm commitment from my right hon. and learned Friend, endorsed by the Opposition parties, that the law needs to be amended, not to restrict in any way the freedom of those who are innocent until proved guilty but to prevent the vile calumny which we are discussing from being perpetrated again.
  If that happens, the sufferings of my hon. and learned Friend the Member for Leicester, West, of Myra and of his family, whom many of us know and admire, will not have been in vain. This case will produce something that all of us want to produce —a positive improvement in the law. We can expect no more than that, and we can certainly ask for no less.
  9.44 pm
  Mr. Alex Carlile: I can but echo the tributes that have been paid to my hon. and learned Friend the Member for Leicester, West (Mr. Janner). He is a man of determination and enthusiasm, whose integrity and will power have crossed party lines. I for one value the friendship that he has given me in the eight and a half years that I have been a Member of the House, despite the fact that we are in different parties and disagree on many issues.
  Mr. Beck is an evil man. Perhaps more to the point, he is a corrupt man. Several hon. and hon. and learned Members who are present, some of whom have already spoken, have, like me, had the opportunity over the years in their professional lives to meet corrupt and evil people and to examine and sometimes cross-examine them in court. I am sure that those who share my professional experience will agree that those who have trodden in the mire of corruption all too easily become corrupt to the core. They cease to recognise the difference between what is good and what is bad and between what is honourable and what is corrupt.
  They turn, like Mr. Beck, easily to more corruption and try to wheedle their way out of their own previous corruption—and that is what has happened in this case. That is why my hon. and learned Friend the Member for Leicester, West was slandered with dreadful calumny by Mr. Beck. That is why it does not surprise me in the least to hear from my hon. and learned Friend about the letter that he received yesterday from Mr. Beck's erstwhile cellmate. It is common for such evidence to appear, but all too often only after a great deal of harm has been done.
  I believe in jury trial and that, however evil they are, people should be entitled to present their defence to a jury if they wish to do so. Mr. Beck would have been extremely well advised to plead guilty. He would have been well advised not to drag the name of my hon. and learned Friend through the courts and an undiscriminating press. He would have been well advised not to compel—because he did compel—his own lawyers to regard what he said about my hon. and learned Friend as part of his case. However, he chose to do so.
  I suggest to the Solicitor-General that a clear intellectual distinction can be drawn between evidence that relates to those who are parties to a trial and those who are not parties to a trial.
  I can see the hon. and learned Member for Burton (Mr. Lawrence) in his place across the Chamber. I know that he has shared my experience many times of being involved in what we lawyers call "cut-throat" trials. Those are trials in which the one defendant makes accusations against the other, and the other often makes even worse accusations against the one. The distinction between those cases and this is that the lawyer for the other can immediately attack the one—there is somebody there to protect the reputation of each defendant who is in the court—but in a case such as that which has affected my hon. and learned Friend the Member for Leicester, West, there is no such opportunity to defend oneself. There is not even, as we have heard, any opportunity to make a realistic and meaningful statement in public, not even in the House, for to do so might affect the outcome of the trial.
  Within the past few years, we have witnessed a case in which a senior Minister made a statement during a trial in which the defendants were convicted. In consequence,
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  those defendants had their convictions quashed on appeal. It was a trial of the greatest public importance, involving alleged IRA terrorism. It demonstrated clearly to all Members of Parliament the dangers of making even inadvertent and mild statements about a trial while it is taking place.
  Therefore, I respectfully suggest to the Solicitor-General that a clear and simple change can be made to the law which would protect those who are not the parties to a trial—third parties outside a trial. It would in no way inhibit the right of a defendant to make his defence, however dishonest. It would in no way inhibit his right to instruct his solicitors, however egregiously. But it would prevent the press from publishing calumnies which cannot be answered, as in the Beck case, sometimes until weeks or even months after the allegation is made in the public arena of a court. I hope that we shall hear the Solicitor-General tell us shortly that such an amendment has the approval and support of the Government.
  9.50 pm
  Mr. Ivan Lawrence: It is most unusual for an Adjournment debate at this hour, at the end of which there will be no vote, to attract so many Members into the Chamber. Come to think of it, it is most unusual at any hour for so many hon. Ladies and hon. Gentlemen in the Chamber to remain seated when I rise to speak. If the debate had started at 10 pm when it was scheduled to start, and if the normal business of the House had continued, many more hon. Ladies and hon. Gentlemen from both sides of the House would be here tonight.
  The reason why so many of us are here is the immense regard which we all have for the hon. and learned Member, our friend, for Leicester, West (Mr. Janner). We have immense regard for the way in which he conducts himself not only in Leicester but in the rest of the United Kingdom and on behalf of the United Kingdom abroad. He is a famous personality. The number of people to whom he is a friend, if not because he has met them but because they know of the good works that he has done not only in Britain but throughout the world, must run into many hundreds of thousands.
  It is precisely such a person who can be brought lowest by the hateful things that may be reported about him in a court of law. The matter that has given me most cause for admiration is the way in which he has conducted himself while the horrible events have gone on and been reported in the press. That shows an inner strength which must be the result of his deep religious conviction. We all have reason to regard him, the causes that he espouses and his beliefs highly.
  We must address what can be done to stop this kind of thing happening again. It is difficult and probably impossible to allow people thus abused to make statements in the press which can only interfere with the process of justice by which someone is tried. However mean, miserable and undeserving a defendant is, he is entitled under our system to a fair trial and not to be the subject of attack, however justified, from someone who has no particular connection with the issue in the case, even if the defendant brought it on himself.
  It would be almost impossible to ban such remarks in a court of law, but there is no reason why a judge should not be empowered to say that, in an appropriate case, the name of the person maligned should not be repeated in the

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  press. There does not have to be a statutory ban—it can be left to the good judgment of the court. As in so many other matters, the judge should be given the discretion to tell the press that they may not publicise the name of a person, because to do so would be in contempt of court.
  I know that my right hon. and learned Friend the Solicitor-General is giving urgent consideration to the matter. Will he seriously consider whether that sort of amendment would be acceptable to everyone? I urge him not merely to consider the matter but, because of the strength of feeling shown here, to take action as soon as possible, so that our hon. and learned Friend the Member for Leicester, West and his family will not have suffered in vain.
  9.55 pm
  Mr. Roland Boyes: Before I became a full-time politician, I was assistant director of social services in a large authority. Wicked episodes were often brought to my attention, but nothing either then or since has been as evil as the man Beck. In this short speech, I wish to think for a moment about all the youngsters who were so badly damaged and hurt by that evil man. He well deserved the sentence he got, but to many of us five life sentences do not seem quite enough for what he did to our youngsters.
  Our hon. and learned Friend the Member for Leicester, West (Mr. Janner) was also caused grave hurt. Having known him in this country and having travelled around Israel with him, I know that he is tough and resilient. I have a high regard for him, and I pay him tribute. I think especially of his family. When we come here, we know what we are up to, but our families, hundreds of miles away, suffer the most. We can rationalise and fight our way out, but they are often deeply hurt. I am sure that all hon. Members in the Chamber will be thinking not only of my hon. and learned Friend the Member for Leicester, West but of his wife and children.
  9.58 pm
  Mr. John Marshall: My hon. Friend the Member for Harrow, West (Mr. Hughes) has asked to be associated with my unusually brief remarks.
  I am happy to count the Janner family as friends. I congratulate them all on the quiet dignity and courage that they have displayed in recent weeks while vile, vicious and baseless allegations were made by a proven liar. The fact that such allegations could be made under the cloak of privilege, and the victim has had no right of redress or to cross-examine those making them, has been a blot on our system of justice. I hope that that basic injustice can be tackled. If it can, good will come out of the traumas that our colleague has suffered and that will be for the good of potential victims. We have been through a ghastly situation, and I hope that some good can come of it.
  9.59 pm
  Mr. Derek Foster: I rise to break my Trappist vow of six years to say how honoured and privileged I have been to attend and take part in this debate. We cannot always say that. Indeed, as Whips we must sometimes sit through long and tedious debates—[HON. MEMBERS: "No."] Many of my hon. Friends will take revenge on me for making that remark, because the
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  Whips hijack hon. Members into taking part in, and thereby lengthening, long and tedious debates. However, this has been a very special debate.
  I wish at the outset to thank the hon. Member for Leicestershire, North-West (Mr. Ashby) for initiating the debate. It was a generous gesture on his part. Adjournment debates are hard won and precious to Back-Bench Members. We thank him sincerely for his generous gesture in allowing this debate to take place.
  It being Ten o'clock, the motion for the Adjournment of the House lapsed, without Question put.
  Motion made and Question proposed, That this House do now adjourn. —[Mr. Wood.]
  Mr. Foster: It is a reflection on the unusual nature of relationships in the House that a member of an opposing party can make such a generous gesture. Again, we thank him deeply. I have rarely seen the House so unanimous in warmth and affection, and especially in its understanding of the severe ordeal that one of our colleagues and his family have had to endure for many months.
  A Chief Whip is in a special position to be able to understand the many strains in the lives of colleagues that are unheard of beyond the bounds of Westminster, and often unheard of except within very small circles in this place. The strains of being a Member of Parliament are extremely great from time to time. The strains on families are also great, and their sacrifices are rarely known.
  The way in which our hon. and learned Friend the Member for Leicester, West (Mr. Janner) has conducted himself has been a model for all of us to follow, though we hope and pray that most of us will not have to undergo that sort of ordeal. If we do, we now have a model and can say that he and his family have been through it and have borne it with great fortitude, resilience and courage—as has been said, only through their deep religious faith—and that that has been a great lesson to us all. A powerful case has been made for a change in the law. I am sure that the Solicitor-General will address himself, as only he can, to those remarks.
  My right hon. Friend the Leader of the Opposition would have liked to be here this evening because I know well that he has been a tremendous support to my hon. and learned Friend and his family in many small and touching ways, which I know have been deeply appreciated.
  Mr. Janner indicated assent.
  Mr. Foster: If the Opposition could facilitate a change in the law—it would be widely welcomed, as is clear from what has been said in the debate tonight—I am sure that my right hon. and hon. Friends would be willing to do what they could to assist.
  10.3 pm
  The Solicitor-General (Sir Nicholas Lyell): It is absolutely clear that my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) has done the House a service by raising this matter. I associate myself with the remarks made by hon. Members in all parts of the House about the hon. and learned Member for Leicester, West (Mr. Janner), who has been through an ordeal that none of us would wish to share. I associate myself also with the remarks made by the Opposition Chief Whip about the dignity with which the hon. and learned Gentleman has borne himself in adversity.

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  When the House is unanimous on a subject, it is a moment to think deeply, particularly when profound principles are involved. As on so many occasions when we discuss matters in the House, we are faced with a conflict between principles, each of which is important, and with the question of how properly to resolve such a conflict. This is not the first time that this issue has reached the public domain, or will it be the last time that the House is asked to focus on the rights and duties of citizens in circumstances—from time to time inevitable circumst-ances—when the interests of one individual or one set of individuals necessarily impinge on and potentially damage the interests of others.
  We have heard speeches not only by my hon. Friend the Member for Leicestershire, North-West, who initiated the debate, and the hon. and learned Member for Leicester, West but by the hon. Members for Leicester, East (Mr. Vaz), for Rutland and Melton (Mr. Latham), for Harborough (Sir J. Farr), for Chelmsford (Mr. Burns), for Staffordshire, South (Mr. Cormack), and for Hendon, South (Mr. Marshall), my hon. and learned Friend the Member for Burton (Mr. Lawrence) and the right hon. Members for Morley and Leeds, South (Mr. Rees) and the hon. Members for Crewe and Nantwich (Mrs. Dunwoody), for Houghton and Washington (Mr. Boyes), the hon. and learned Member for Montgomery (Mr. Carlile), and the Opposition Chief Whip.
  The speeches by and in support of the hon. and learned Member for Leicester, West raised important questions of principle that govern three important matters: first, the need for open justice; secondly, the provision of proper opportunities for the defence in criminal proceedings to deploy the case on which the defence relies; and thirdly, the issue on which we focused most, the effect of the existence of those rights on third parties who necessarily can play no part in the proceedings and who consequently have no immediate opportunity to defend themselves or their reputations.
  The principle that justice should, as far as possible, be open is central to our system of criminal justice. It is a fundamental requirement of any democratic and just society that the process by which individuals are accused, tried and, where appropriate, punished should be open, and exposed to public scrutiny and comment at an appropriate moment, other than in wholly exceptional circumstances—for example, where on grounds of national security the court must receive evidence about matters of security or intelligence; or where, for purposes of the administration of justice, particular matters must be dealt with concerning informants. The rule that criminal proceedings are conducted in open court would be hollow unless those proceedings could be freely reported by the press and television, and the media in general. For that reason, both Houses of Parliament deliberately built into the Contempt of Court Act 1981 a robust declaration of the right to report proceedings in open court, subject to one limited exception.
  Section 4(1) of the 1981 Act provides:
  "Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceeding held in public, published contemporaneously and in good faith."
  The only exception is where it appears to a court that the reporting of the proceedings before it might prejudice the
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  administration of justice in other proceedings imminently pending in another court, or shortly to follow thereafter. Even then, there is no power to prohibit reporting of proceedings. All that the judge may order is a postponement until the risk to the administration of justice has passed. The law does not permit the right of the press freely to report proceedings in open court to be fettered, notwithstanding that such reporting may be or would be embarrassing, damaging or inconvenient to an individual who has featured in the case. That would be a major inroad into a constitutional safeguard and would expose the courts to the risk of pressure from interested third parties.
  Mr. Cormack: Are we not dealing with something a little more serious than inconvenience? I respect what my right hon. and learned Friend is seeking to say, but surely no true freedom would be properly fettered if there were an inhibition on the publication of names.
  The Solicitor-General: We are certainly dealing with matters much more serious than mere inconvenience. Perhaps I should have reordered my remarks and said "inconvenient, embarrassing or damaging"—sometimes deeply damaging. To take my hon. Friend's point, I ask the rhetorical question: is it possible to solve this grave difficulty simply by suppressing a name or ordering the press not to publish it? [HON. MEMBERS: "Yes."] I hear a number of my hon. Friends saying yes, but I invite the House to reflect cautiously before interfering in what seems to be a small particular in the right of the press to make a fair and accurate report.
  Mr. Patrick Nicholls: The press?
  The Solicitor-General: Yes, the press or television.
  Let us reflect on the matter for a moment. If one suppresses the name, one does not suppress the rest of what is reported, so it is reported that someone, or perhaps more than one person who has been defamed, has done something in the course of the case and it may be that he or she is not known to the public and is of no interest to the public. So far, I am happy to say that in the case of children —I was about to come to that exception—and in the case of rape victims, the balance that Parliament has chosen, in that it has granted exceptions in those cases, has proved to be an effective one. However, once we start to distort the operation of open justice and the consideration of the matters, we may very well, through the operation of rumour and all its insidious effects that are so damaging in libel cases—the only justification that I know for the high damages granted in such cases—inflict more damage on justice than we realise.
  Mr. John Marshall: Will my right hon. and learned Friend confirm that in cases of blackmail one refers to Mr. X. Surely in a similar case such as this one, it would be fairer to the individual involved to refer to him or her as Mr., Mrs.,Miss or Ms. X.
  The Solicitor-General: I ask my hon. Friend to reflect that, if Mr. X were a Member of the House, or Mrs. X were a member of the nobility—[HON. MEMBERS: "Lady X."] If she were a Lady, she would still be referred to as Mrs. X. If the person were a member of the nobility or someone in whom the press had an interest, rumour would

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  start to circulate, and damage could not be avoided. I have acknowledged the great damage done to the hon. and learned Member for Leicester, West.
  Mr. Burns: Will my right hon. and learned Friend give way?
  The Solicitor-General: No; otherwise, I shall not finish what I have to say. I apologise for not giving way, but I am sure that the House will understand.
  When one conceals matters, one does not necessarily quieten them. The law does not permit the right of the press freely to report proceedings in open court to be fettered, notwithstanding that such reporting would be inconvenient, embarrassing or damaging to some individual who has featured in the case. That would be a major inroad into a constitutional safeguard and would expose the courts to the risk of pressure from interested third parties.
  Anyone who has prosecuted in the criminal courts—I see a number of such hon. Members here —will know that, in case after case, it is necessary to bring in damaging things about third parties. They may be co-accused who have never been tried and are entitled to the presumption of innocence, or they may be people against whom the defendant has a grudge of any nature. Are all those names to be kept from the press? Is it always to be Mr. X or Mrs. X? I suggest—I put it no higher, and we shall resolve
  nothing tonight —that we should think very carefully indeed.
  Parliament, which has considered the matter carefully, has decreed that the only exceptions should be children involved as victims and the victims of rape. The law of contempt is a doctrine of wide scope which manifests itself in a variety of types of contempt. Their common feature —if I can capture the interest of hon. Members—is that they seek to ensure the efficacy and integrity of the judicial process, which is of concern to us all, so that justice may be administered to all without interference from any quarter.
  Proceedings for contempt of court are the means by which obedience to orders of the court and adherence to undertakings are ensured. Those minded to take reprisals against witnesses on account of the evidence that they have given can also be punished for contempt. Those who disrupt proceedings or undermine public confidence in the administration of justice by scandalising the judiciary are also liable to be dealt with for contempt of court. The media are also required, when reporting matters which are relevant to imminent legal proceedings, to ensure that their reports do not give rise to any substantial risk of prejudice.
  Ms. Short: The mood of the House has changed since the Solicitor-General started speaking, and a mood of exasperation is now spreading widely. Has the right hon. and learned Gentleman anything positive to say to us, or will the rest of his speech simply seek to justify the status quo and say no to everything that has been put before him tonight?
  The Solicitor-General: It sounds as though the hon. Lady has made up her mind.
  Ms. Short: I think that we should look at the question.
  The Solicitor-General: What I am putting before the House are serious considerations about the balance between the rights of individuals, which may be damaged
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  in the course of a case but where the record can subsequently be put straight, the rights of those who are before the courts, accused, to deploy their defence, and the rights of the public at large to scrutinise that process.
  I ask the House to be careful when it has one of its own Members in its charge. We are right to sympathise with the hon. and learned Member for Leicester West.
  Mr. Cecil Franks: It is the principle that matters.
  The Solicitor-General: Exactly. My hon. Friend is entirely right: it is the principle that matters, and the ultimate principle is that there should be justice and that justice should be seen to be done.
  Mr. Franks: There are many lawyers in the House, including myself, and we take a completely different view. I speak not as a lawyer but as a politician. It is just not good enough if the House does nothing. I have the greatest sympathy for hon. and learned Member for Leicester, West (Mr. Janner), but there is a principle involved and it is about time that my right hon. and learned Friend stopped speaking as a lawyer and started acting as a politician.
  The Solicitor-General: I hear what my hon. Friend says. I have had many pleasant discussions with him, but I must say to him and to the House in all firmness that to ask us to talk about justice as politicians is to go down a very dangerous road. When we consider justice, we stand back as politicians and invite independent courts and wholly independent juries to consider hotly contested matters.
  Right hon. and hon. Members are failing to remember in how many criminal trials it happens, often necessarily, that allegations are made by the prosecution or defence which are damaging to persons who are not immediately before the court.
  Mr. Franks: Let us deal with that point.
  The Solicitor-General: My hon. Friend says that we ought to deal with that point. The suggestion before the House is that, in such cases, it would be right and proper not to publish the names of the persons involved. The House has not focused its mind yet on whether any name should be published, or whether only some names should or should not be published.
  Ms. Short: The right hon. and learned Gentleman will not even consider that point.
  The Solicitor-General: I ask the hon. Lady to relax for a moment. I am not saying that the country should not consider the matter. It will undoubtedly be one for public debate, and rightly so. My hon. Friend the Member for Leicestershire, North-West and the ordeal suffered by the hon. and learned Member for Leicester, West will make it a matter, rightly, for public debate. Nevertheless —
  Mr. Bob Cryer (Bradfords, South)rose —
  Mr. Ashby rose—
  Mr. Speaker: Order. I believe that the Solicitor-General does not want to give way.
  The Solicitor-General: I will give way to my hon. Friend the Member for Leicestershire, North-West, who initiated the debate.
  Mr. Ashby: I appreciate that one must approach the matter with considerable caution, and that we cannot go at it in a bull-at-a-gate fashion. It is important to hear the arguments on both sides, and to consider them carefully. I am grateful to my right hon. and learned Friend for replying to the debate in the way that he is doing. I accept everything that has been said so far, but is it really necessary for the persons in question to be the subject of media coverage? I cannot see how it aids justice one iota for that to happen.
  The Solicitor-General: What is reasonable and what the law should forbid are not necessarily the same. We have a very wide press in this country, and we count that as one of our freedoms. However, it embraces a whole spectrum —from a deeply responsible press that is extremely careful in what it publishes and which tries to balance one thing with another, to an element that many people regard, perhaps rightly, as frequently scurrilous or simply aimed at making a profit. I suggest, however, that that is part of a free society. Although it has disadvantages, it is a great deal better than the kind of society in which there is no free press, or in which the press is gagged by more and more complex and frequently unworkable rules.
  I must move on, because there are one or two other points and safeguards that I want to mention. As I said, safeguards apply in the case of children and of rape victims, and they seem to have worked well. The judge also has the power, where the reporting of one case may affect the interests of justice in a subsequent case, to postpone the reporting of the earlier case.
  Mr. Burns: Will my right hon. and learned Friend give way?
  The Solicitor-General: I shall not give way to my hon. Friend, as I believe that I have done so once already and I have only a little time left.
  Professional safeguards apply to those who appear for the prosecution and the defence. The Bar code of conduct requires that those who appear should use their powers as responsibly as the interests of justice may reasonably allow. Paragraph 610 of the Bar code provides, first:
  "Counsel must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person; counsel must if possible avoid the naming in open Court of third parties whose characters would thereby be impugned; counsel must not suggest that a witness or other person is guilty of crime, fraud or misconduct or attribute to another person the crime or conduct of which his lay client is accused"—
  [HON. MEMBERS: "What about this case?"]—
  "unless such allegations go to a matter in issue (including the credibility of the witness) which is material to his lay client's case and which appear to him to be supported by reasonable grounds."
  I hear hon. Members saying, "What about this case?" I am on common ground when I remind the House that this case was immensely serious. If someone is to be tried for matters as serious as those for which Mr. Beck was
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  tried and to receive the condign punishment that Mr. Beck received, it is essential that he should have a fair trial and that he should be given every opportunity to deploy his defence.
  Hon. Members are saying, "We all agree, but what about the hon. and learned Member for Leicester. West?" I must remind the House of another important principle. If I may say so, I acquit the hon. and learned Gentleman of the misguided approach that some hon. Members are taking. He has deported himself with great dignity. That is the way in which we should deport ourselves. He was not on trial. His opportunity to answer necessarily had to be deferred until the trial was over, and he has now had an opportunity to be heard. [Interruption.] I hear the point that other people do not have the same privilege as hon. Members.
  The suggestion is not that we should lift the laws of libel, which would be one other possible step to take, because if we were to do so witnesses would be inhibited and the opportunity for justice would be damaged.
  Mr. Lawrence: Will my right hon. and learned Friend give way?
  The Solicitor-General: No, I am sorry, but I must conclude.
  The hon. and learned Member for Leicester, West is not on trial. He has had an opportunity to make his point, and I wish to end with one important point. As a result of a number of miscarriages, we are scrutinising our system of justice. I hope that the House will never forget that no one is guilty of an offence unless they have been duly tried and convicted and that everyone is entitled to the same presumption of innocence.
  Mrs. Llin Golding: Tell that to the press.
  The Solicitor-General: I do tell that to the press.
  If I may speak for the Law Officers of the Crown, we are scrupulous in bearing that vital principle in mind. We are right to be scrupulous to maintain our system of open justice, to require that people be tried for charges the purport of which is known, and in courts which are open to the public and to the press and can be fully and fairly reported. Despite the undoubted hardship, not only to the famous such as the hon. and learned Member for Leicester, West and other hon. Members, but to those who are known only to their families—I know from correspondence that many ordinary people suffer hardship because of what is said and done in court cases—I suggest to the House that we interfere with this at our peril, and at peril to our liberties and system of open justice. I commend that principle most sincerely to the House.
  The motion having been made at Ten o'clock, and the debate having continued for half an hour,MR SPEAKER adjourned the House without Question put, pursuant to the Standing Order.
  Adjourned at half past Ten o'clock.

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NATIONAL FINANCE
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THE ARTS
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PRIME MINISTER
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HOUSE OF COMMONS COMMISSION
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SCOTLAND
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HOME DEPARTMENT
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  Broadcasting (Ethnic Minorities)
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  Mrs. R. N. Ojimadu
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  Young Offenders
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SOCIAL SECURITY
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  Contaminated Blood
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Preamble
The House met at half-past two of the clock: The LORE CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Salisbury.

Aircraft Accidents: Human Factor
Lord Willis Lord Willis asked Her Majesty's Government:
What steps they are taking to reduce the percentage of aircraft accidents caused by human error.
Viscount Davidson: My Lords, the statutory responsibility for the safety regulation of UK civil aviation rests with the Civil Aviation Authority. It fully recognises the significance of human factors in aviation accidents and has set up a human factors study group. The principal areas covered by the group's work are: flight deck design and procedures; maintenance and inspection techniques; ground and air crew training; and cabin safety.
Lord Willis: My Lords, I thank the Minister for that reply and accept that the British aviation industry has, rather belatedly, made some progress in this area. Does he agree that since 70 per cent. of air accidents are caused by human error there should be a more detailed and thorough study of that aspect? Does he also agree that there should be one overall controlling authority to investigate such accidents? Is he further aware that there have been instances, particularly in the United States, where it has been possible to reduce accidents by studying human error? Does he not agree that we should follow that example in this country?
Viscount Davidson: My Lords, the Air Accidents Investigation Branch, which determines the causes of aircraft accidents, has been able to identify several areas where human factors have played a prominent part in the accident sequence. Information built up is shared among aviation regulatory and accident investigation authorities worldwide via their computer databases. I can also tell the noble Lord that, following accidents, the Air Accidents Investigation Branch co-opts behavioural scientists from the RAF Institute of Aviation Medicine to work with the branch en human performance studies. The IAM team of behavioural scientists is one of the most experienced groups operating in that field anywhere in the world. It is the best national source of expertise on the subject and the branch has had the benefit of its help in several of its investigations.
Lord Clinton-Davis: My Lords, I thank the Minister for a very helpful reply and congratulate the CAA on the progress it is making in this regard. However, does the Minister agree that nonetheless there is a need for a measure of harmonisation at European level—not confined to the European Community but perhaps initiated by the Community
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—of the basic control panel of aircraft, which could certainly give rise to errors, as is evidenced by the Answer he has already given?
Viscount Davidson: My Lords, the noble Lord has raised a very useful point. I said that the information which is built up is shared between all aviation regulatory and accident investigation authorities worldwide, but I shall certainly put the European point to my noble friend.
The Earl of Halsbury: My Lords, does the noble Viscount agree that, acts of God apart, all accidents are caused by human error and there is nothing specific to the aviation industry about human error?
Viscount Davidson: My Lords, the noble Earl is, as usual, right. The purpose of the work which I have described is to reduce the likelihood of human error so far as that is humanly possible.
Viscount Caldecote: My Lords, are the Government fully satisfied that the reduction in the cockpit crew from three to two on long distance flights is compatible with the interests of safety?
Viscount Davidson: My Lords, I am sure that the CAA took that point into account when making its decision.
Lord Willis: My Lords, is the Minister not aware that while it is not possible to eliminate human error entirely it is possible to reduce it and that that has been done successfully by some airlines in other countries? The noble Viscount gave an impressive list of the measures that have been taken to reduce human error, but in this country at least the incidence of human error remains at the same level. Is he aware that a book entitled The Naked Pilot has recently been published—which results from a long study by a former British Airways pilot, David Beatty—which recommends certain measures which as yet have not been taken by the British aircraft industry? Will the Minister recommend that book not only to the RAF but also to the civilian airlines?
Viscount Davidson: My Lords, not having read the book I am not in a position to recommend it. However, I can tell the noble Lord that information about the reduction in accident rates is not readily available but, overall, accident rates are reducing while air traffic is increasing. While a human factor may be identified as contributing to an accident the prime purpose of air accident investigation is to establish the sequence of events and to learn lessons, not to apportion blame. Accordingly, accident investigators are reluctant to indicate that a human factor was a prime cause of an accident.
Lord Whaddon: My Lords, is the noble Viscount aware of the apparent conflict which has sometimes occurred between the making of practice approaches for landing by trainee pilots and the 500 feet clearance rule for aircraft which has apparently been breached? Is he aware of the articles which have appeared in the aviation press concerning that conflict, and will he

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look again at the matter to ensure that pilots under training are cleared to make as many practice approaches as are necessary?
Viscount Davidson: My Lords, I shall certainly pass on that point to my noble friend.

Air Traffic Control
2.43 p.m.
Lord Taylor of Blackburn Lord Taylor of Blackburn asked Her Majesty's Government:
What progress is being made in rationalising air traffic control systems in Europe.
Viscount Davidson: My Lords, work on the initial phase of an action programme to increase capacity in Europe by integrating the air traffic control systems and optimising the air traffic route network of 23 European countries was successfully completed in October. Progress will be reviewed by ECAC transport Ministers at their next meeting on 17th March 1992 in London.
Lord Taylor of Blackburn: My Lords, I thank the Minister for that reply, but will he say what progress has been made in rationalising the many and varied schemes in operation throughout Europe?
Viscount Davidson: My Lords, I am sure that the noble Lord, Lord Taylor of Blackburn, will be pleased to know that the reason I am answering this Question today is that my noble friend Lord Brabazon of Tara is in Brussels at the meeting of the permanent commission of Eurocontrol which is reviewing progress on the European air traffic control harmonisation and integration programme following completion of the first phase of the programme. I am sure that he is enjoying a good Brussels lunch after a successful meeting.
To answer the noble Lord's specific question, I have a list of plans for longer term improvements. I believe that it would be best if I read out some of them and then sent the rest to the noble Lord. In the United Kingdom, NATS is implementing its largest ever investment programme—some £100 million annually—and has increased annual recruitment of controllers from 80 in 1988 to 240 in 1991 and subsequent years. Following a UK proposal, European transport Ministers agreed in April 1990 to an action programme called the European ATC harmonisation and integration programme. Work on Phase 1, a comprehensive evaluation of Europe's ATC systems, has been successfully completed. As I said, European transport Ministers will meet in London next March to review progress.
Lord Clinton-Davis: My Lords, is the noble Viscount aware—I speak from some experience of meetings at Eurocontrol—that the lunch is usually more productive than the meeting itself? Nonetheless, do the Government share the widespread view that Eurocontrol has the potential to provide a single arm for air traffic control? Does the Minister agree that it is now time—the matter is urgent—for Eurocontrol to
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be vested with greater powers so that we avoid the absurd duplication, based on arguments of sovereignty, which afflicts passengers, flyers and airlines throughout Europe?
Viscount Davidson: My Lords, I agree to the extent that integration could be achieved more quickly and would dovetail with the urgent, short-term tasks of increasing capacity and of improving co-operation and co-ordination on a practical level. That is impractical in the immediate future, but we do not rule it out in the longer term.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that it is easier to talk about rationalisation than it is to bring it about? Is he aware that I served for a number of years on the EC transport committee where this matter was discussed again and again and that self-interest of the various participants was very real and deep-seated?
Viscount Davidson: My Lords, I am sure that my noble friend is right.
Lord Molloy: My Lords, does the noble Viscount agree that probably the most important aspect of all forms of rationalisation is the rationalisation of security to prevent aircraft being damaged or blown up and people being slain? Does he agree that that should be the top priority throughout Europe?
Viscount Davidson: My Lords, I am sure that I agree with the noble Lord. However, this is not a Question about security. It is a Question about rationalising air traffic control systems.
Lord Whaddon: My Lords, will the noble Viscount bear in mind that the vast majority of aircraft on the British register are not airliners but machines of general aviation? Will he ensure that in any rationalisation of air traffic control systems the bodies representing general aviation are adequately consulted?
Viscount Davidson: My Lords, I shall draw that point to my noble friend's attention.

The Disabled: Parking Scheme Changes
2.47 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
What progress is being made with the introduction of a new national scheme for parking for disabled people to replace the present orange badge scheme.
Earl Howe: My Lords, the Government have announced the decision to proceed with a package of measures designed to improve the orange badge scheme. The main changes will be to introduce a new passport-style badge; to give automatic entitlement for a badge to those in receipt of war pensions' mobility supplement; to extend eligibility to certain people with very severe upper limb disabilities; and to increase from two to three hours the limit on yellow

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line waiting. The regulations to implement those changes will be laid shortly. The new scheme will come into effect on 2nd March 1992.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for giving that up-to-date report which shows that the scheme is not being held up. Does he agree that the new scheme has been accepted by virtually all those most concerned as being more helpful to individual disabled people than the orange badge scheme and less open to abuse by other people?
Earl Howe: My Lords, I agree with my noble friend that the new scheme contains distinct improvements. I have here a prototype of the new badge. On it appears not only a hologram but a space on the inside, which will not be visible from the outside of a vehicle, for a photograph. That photograph will provide a real deterrent against abuse and will enable police officers and traffic wardens to verify cases of abuse more easily.
Lord Hailsham of Saint Marylebone: My Lords, I must declare an interest, being the holder of such a badge. Will my noble friend tell me what steps a holder of such a badge must take in order to switch from the existing scheme to the new scheme in March?
Earl Howe: My Lords, the intention is for existing badges to run until expiry. At that time it will be open to holders of a badge to apply for a new one.
Baroness Flather: My Lords, is my noble friend aware that certain London boroughs do not allow orange badge holders to park on yellow lines? Such a restriction makes it difficult for out-of-town disabled people to come into London when their only means of transport is their own owner driven vehicle. Will that restriction be affected by the new scheme?
Earl Howe: My Lords, the central London boroughs have particular problems of traffic congestion which make it impractical to adopt the orange badge scheme on a full-blooded basis. However, the granting of some form of parking concessions for disabled people in central London is currently the subject of a separate series of meetings between the Department of Transport, the authorities and the Disabled Persons Transport Advisory Committee. We hope to reach a conclusion early in the New Year.
Lord Donaldson of Kingsbridge: My Lords, can one qualify for the badge on grounds of age alone?
Earl Howe: My Lords, no.
Baroness Llewelyn-Davies of Hastoe: My Lords, is the noble Earl aware that one of the worst abuses of the scheme is that no one seems to check whether unauthorised people are parking on the disabled persons' reserved places? I must declare an interest because I hold a badge. There are always vehicles on spaces where disabled people can park, largely lorries and vans, but no one appears to take notice of them. Is he further aware that in central London the spaces for disabled people to park have been suspended for the duration of the Christmas holidays, which makes
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Christmas shopping extremely difficult for the disabled? Why should that small number of spaces be removed for the whole of the Christmas period?
Earl Howe: My Lords, the central London boroughs have particular problems with traffic congestion. Nevertheless I shall ensure that the remarks of the noble Baroness are brought to the attention of my colleagues in the discussions to which I referred.
With regard to cracking down on abuse, police and traffic wardens take action in appropriate cases where they can. However, the difficulty is one of verification. The new scheme makes verification a great deal easier, and holders of the cards should in turn be deterred from allowing any misuse.
Lord Underhill: My Lords, in view of the widespread acceptance of the new scheme and the inclusion of a photograph, does the Minister agree that there should be strict enforcement of the new scheme? When we have discussed various aspects of road traffic law we have emphasised time and again that there is little point in having new laws unless they are enforced. Will the Government pay special attention to ensure that the police, traffic wardens and/or parking attendants carry out the law?
We welcome any move to assist disabled persons who at present are exempted from parking in the four London boroughs. It will be vital for those disabled persons to be able to move around London when they visit.
Earl Howe: My Lords, I share the noble Lord's last sentiment. We are doing all that we can in that regard.
Whether police powers should be increased in some way is a difficult matter. The Government are considering measures which would give police powers to demand inspection of the orange badge, a power which they do not currently have. However, we feel that for the time being their powers are sufficient.
Lord Stallard: My Lords, will the noble Earl enlarge on a previous reply? In what way does the suspension of disabled persons' parking spaces help the problems of the inner London boroughs?
Earl Howe: My Lords, that question is best addressed to the boroughs themselves.
Lord Stallard: My Lords, the noble Earl mentioned that such spaces were suspended because the boroughs have problems. I ask what problems will be helped by the suspension?
Earl Howe: My Lords, I believe that is a question for the boroughs. I mentioned it because it is up to the boroughs to decide how they manage their parking spaces. Although I understand the relevance of the point which the noble Lord makes, I cannot answer for the boroughs.
Lord Glenamara: My Lords, is the noble Earl aware that there is a whole lot of the United Kingdom outside London? Is he aware that some of the most difficult places in which to park are small country towns? Will he ensure that there are sufficient parking spaces in such places for the disabled?
Earl Howe: My Lords, I was aware of the first point. I believe that one of the main problems to which the noble Lord may refer is pedestrianised precincts. I recognise that pedestrianised areas in some town centres cause difficulties for disabled people. The Department of Transport issues guidance to local authorities encouraging them to consult disabled organisations and to take account of the needs of disabled people, in particular in town centres. However, ultimately it is a local authority matter. There is no obligation on them to give the vehicles of disabled persons unrestricted access to pedestrian areas.
Lord Campbell of Croy: My Lords, with regard to the question raised by the noble Lord, Lord Glenamara, will my noble friend agree that one of the great successes of the 1970 Act—of which I was one of the sponsors in another place—was that it brought in a system where local authorities throughout the country, including Scotland, were able to issue orange badges which were then accepted everywhere in the country?
Earl Howe: My Lords, I fully agree with my noble friend.

Kenya: Human Rights
2.56 p.m.
Lord Judd: My Lords, in the absence through ill health of my noble friend Lord Ennals, at his request I beg leave to ask the Government the following Question:
What is their attitude to the denial of human rights in Kenya in the light of the Harare Declaration of Commonwealth Heads of Government.
Lord Cavendish of Furness: My Lords, Her Majesty's Government deplore abuse of human rights wherever it occurs, and the Kenyan Government have been made well aware of our anxieties over the restraints on freedom of expression and assembly in Kenya.
The British Government therefore warmly welcome the reported decision of the Kenyan Government to move speedily to a repeal of Section 2A of the Kenyan Constitution and to the holding of multi-party elections in Kenya next year. This represents a major advance in implementation of the pledge made by Commonwealth Heads of Government to work with renewed vigour to promote democracy and fundamental human rights.
Lord Judd: My Lords, I thank the noble Lord for the reply. However, is he aware that there will be widespread support in this country for the stand that the Government have made in this respect? Is he also aware that for many working in the front line of economic and social development in the third world, the context of democracy and freedom is absolutely essential to progress, but that if that policy is to carry weight, consistency is essential? For example,
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Indonesia is as important as Kenya. While the policy is being pursued, it is essential to protect the needs of the poorest and most vulnerable members of society.
Lord Cavendish of Furness: My Lords, first, perhaps I may say how sorry I am to hear that the noble Lord's noble friend is in poor health. I hope that he will pass on my best wishes. I was grateful for the noble Lord's opening remarks. I can only agree with everything that he said.
Lord Cledwyn of Penrhos: My Lords, I know that the whole House appreciates the close ties that this country has enjoyed with Kenya over a long period of time. However, is the Minister aware that there is a good deal of disquiet in this country and elsewhere about the tardy way in which the Government have regarded the problems of Kenya and the development of an oppressive and cruel regime? Will he say what actions the Government are taking to indicate their displeasure and disagreement with those policies? For example, will he say what aid Britain is giving to Kenya at present? We support the Government's late conversion to taking some action. However, is he aware that Canada and the United States have been far more active in making their opposition to that government known?
Lord Cavendish of Furness: My Lords, we speak frankly to the Kenyans about our anxieties on human rights and political reforms. We were very disappointed at the Kenyan reaction to the rally organised by proponents of the multi-party democracy and to their arrest. We spoke forcefully on that occasion. The criteria which guide our aid policy have been clearly set out. We take into account many factors including respect for the rule of law, human rights, market principles and good economic management, pluralism and public accountability. To those, Kenya is no exception.
Lord Cledwyn of Penrhos: My Lords, can the Minister go further and say to what extent the declaration has influenced the Government in their aid policy towards Kenya? He did not answer my question. Do we still continue to give the same aid? Have we reduced it or does it not exist?
Lord Cavendish of Furness: My Lords, we and other donors will be looking for further indications that Kenya is committed to a programme of economic and political reform before considering further aid pledges. That approach was strongly endorsed at the meeting of the donors in Paris on 25th and 26th November.
Lord Bottomley: My Lords, is the Minister aware that Odinga, who was number two to Kenyatta and helped to build up the independence of Kenya, has been denied human rights for a long time? Have the Government made any specific representations on his behalf?
Lord Cavendish of Furness: My Lords, will the noble Lord tell me to whom he is referring? I am afraid that I missed the name.
Lord Bottomley: My Lords, I was referring to Odinga.
Lord Cavendish of Furness: My Lords, the impression that I have is that human rights have been restored to everyone to whom they were previously denied.
Lord Molloy: My Lords, is the Minister aware that those of us with a close interest in and considerable knowledge of Kenya will heartily welcome the Government's new approach, despite its lateness, as will tens of thousands of African Kenyans? There will not be a great deal of support for the policy from white Kenyans. However, will the Government press ahead as fast as they can in order not to let down the tens of thousands of black Kenyans who believe that a new life is offered to them by our Government's proposals?
Lord Cavendish of Furness: My Lords, the noble Lord is right in saying that the news of the decision of the Kenyan Government will be welcomed by tens of thousands of Africans. Indeed, it will be welcomed even more widely.
Lord Hatch of Lusby: My Lords, while welcoming the new moves by the Moi Government in Kenya on pluralism, does the Minister realise that he was incorrect in saying that human rights have been restored to all those in Kenya who were deprived of them? There are many Kenyans in prisons who have suffered torture and many are exiled. The coming of plural government does not necessarily restore those rights to them. Will the Minister look into the matter more deeply before coming to the House and saying that the Government believe that human rights are restored to all to whom they were refused?
Lord Cavendish of Furness: My Lords, I must accept from the noble Lord, Lord Hatch, that my answer was too sweeping. I am not aware of individual cases. However, I am under the impression that President Moi is making an effort to reverse previous policies and to root out corruption.

Business
3.3 p.m.
Lord Hesketh: My Lords, it may be for the convenience of the House to know that the Committee stage of the Local Government Bill will be adjourned at about 7.30 p.m. for about one hour and that during this adjournment the Maximum Number of Judges (Scotland) Order 1991 will be taken.

Registered Foreign Lawyers Order 1991
The Lord Chancellor (Lord Mackay of Clashfern)The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That the draft order laid before the House on 18th November be approved [4th Report from the Joint Committee].
The noble and learned Lord said: My. Lords, this order comes before your Lordships as a consequence of the Courts and Legal Services Act 1990. That Act
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removed the statutory bar to solicitors in England and Wales entering into partnership with persons who are not themselves solicitors.
Section 89 of the 1990 Act paves the way for solicitors in England and Wales to enter into partnership with practising members of any legal profession that is regulated within a jurisdiction outside England and Wales. With effect from 1st January 1992 Law Society rules will be amended to allow these multi-national partnerships of lawyers to be created. The ability of foreign lawyers to practise in partnership with solicitors will enable firms to provide a wider range of services to clients, especially in matters having an international element.
Any foreign lawyer who wishes to enter into partnership with a solicitor must apply to the Law Society to be registered. Once he is practising in partnership with a solicitor the foreign lawyer will be subject to the same rules as solicitors as regards professional practice, conduct and discipline. For example, he will have to maintain professional indemnity cover for any claims made against him. He will also be bound by the same accounts rules. However, by virtue of being a member of the partnership he will not be able to undertake areas of work that are by law reserved to solicitors; that is to say, advocacy, litigation, conveyancing and probate. However, if he is a lawyer qualified in an EC member state he will continue to enjoy limited rights to practise in this country in at least some of these areas.
The purpose of this draft order coming before your Lordships is not, however, to gain approval of the principle of solicitors entering into partnership with overseas lawyers. That is a matter which the law already permits. The purpose of this draft order is to secure that two legislative provisions can apply to registered foreign lawyers as they do to solicitors. In other words, in order to facilitate the running of these new partnerships one should be able to treat references to solicitors in these two provisions as including references to registered foreign lawyers.
The first of the two is at paragraph 2 of the draft order and relates to Section 85 of the Solicitors Act 1974. The effect of this section is that, where a solicitor has an account with a bank or building society, the bank or building society does not face a claim from a client if money in the account is misapplied by the solicitor. Furthermore, the money in the account is not to be taken by the bank or building society to meet personal liabilities of the solicitor.
The second provision is at paragraph 3 of the draft order and relates to regulation 8 of the Banking Act 1987 (Exempt Transactions) Regulations 1988. This exempts a solicitor with whom client money is deposited in the course of his profession from being regulated as if he were a bank.
I hope that your Lordships will agree that both these provisions should apply to registered foreign lawyers in the same way as they apply at present to solicitors. I beg to move.
Moved, That the draft order laid before the House on 18th November be approved [4th Report from the Joint Committee]. —(The Lord Chancellor.)
Lord Mishcon: My Lords, the noble and learned Lord the Lord Chancellor, with his usual clarity, has indicated that a particular stage has been reached in a revolutionary process. That process was initiated by the Courts and Legal Services Act 1990 which the noble and learned Lord piloted through this House. I know that he will not regard it as an impertinence if I bring to the attention of the House the fact that the ability to enter into partnership with foreign lawyers led to a definition of "foreign lawyers" in the Courts and Legal Services Act. Included in that definition are Scottish lawyers.
It is a revolutionary process and one in which the House will be interested. The order will result in a broader service to the people of this country by allowing an international element of speciality to enter into legal practice. However, I am hoping, as is the Law Society, that in addition it will ensure that London is the major centre for international dealings in law. The order will take effect from 1st January 1992 but 1st January 1993 is a more familiar date to members of the EC. In giving permission for such merged partnerships of foreign and English lawyers we shall have acted ahead of that significant date.
We have a law and a language which are common in a large part of the world. It may be as true in the future as it is now that our Commercial Court is the envy of almost every other system of law. Furthermore, London is the seat of arbitration because its courts are so adept in carrying out those arbitrations in accordance with English law or any foreign law which may be applicable.
The Law Society is anxious that your Lordships should know of the great appreciation felt within the profession towards the noble and learned Lord the Lord Chancellor. It is grateful for his personal interest in the matter and for the way in which he and his department have speeded up complex procedure. It is estimated that by the end of 1992 more than 1,000 foreign lawyers will have registered. I convey to the noble and learned Lord the thanks of my profession and the thanks of the House.
Lord Hailsham of Saint Marylebone: My Lords, when my noble and learned friend replies—and perhaps I missed this—will he explain what is the situation as regards the profession of the English barrister in this country, the faculty in Scotland and the Bar in Northern Ireland and in the Republic of Ireland?
The Lord Chancellor: My Lords, this provision is intended to allow partnership with solicitors in England. Members of the profession who are regarded by the Law Society as properly to be in partnership with English solicitors will be able to register in this matter.
The present situation in Scotland is that the rules of the Law Society of Scotland would not permit Scottish solicitors to form such partnerships, and the rules of the Bar would have a bearing on that too. Therefore, the idea of the provision is to allow solicitors in England to be in partnership with those from other jurisdictions who could appropriately be in partnership with them.
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I thank the noble Lord, Lord Mishcon, for his kind remarks and his support for this measure. It is an extremely important development, vital to the standing of this country in the field of international law, and in particular as regards London.
Lord Mishcon: My Lords, in the reply which the noble and learned Lord gave to the noble and learned Lord, Lord Hailsham, he mentioned English solicitors. I know that he will wish it to be pointed out that the measure covers Wales as well.
The Lord Chancellor: My Lords, I am grateful for the correction, particularly with the noble Lord the Leader of the Opposition sitting there. It would be inappropriate for me not to acknowledge the great debt which our law owes to those who come to serve it from the Principality.
On Question, Motion agreed to.

Local Government Bill [H.L.]
3.12 p.m.
The Minister of State, Department of the Environment (Baroness Blatch): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Blatch.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Principal Deputy Chairman of Committees in the Chair.]
Clause 8 [Application of competitive tendering to professional services etc.]:
The Principal Deputy Chairman of Committees (Baroness Scrota): My Lords, before calling Amendment No. 83A I should point out to the Committee that if it is agreed to, I cannot call Amendments Nos. 84 to 90 inclusive.
[Amendment No. 83A not moved.]
[Amendments Nos. 85 and 86 not moved.]
Viscount Mills Viscount Mills moved Amendment No. 87:
Page 8, line 30, at end insert:
("(c) the evaluation of the environmental standards which persons willing to carry out the work are able to meet.")
The noble Viscount said: The aim of Clause 8(2) is to maintain, or indeed improve, the existing standards of service for professional and technical services which are put out to compulsory competitive tendering. It is proposed to achieve that aim by ensuring that tenders cross a pre-set quality threshold before price is even considered. However, there is no specified requirement for environmental standards to be met.
The purpose of the amendment is to ensure that potential tenderers for local authority services are able to meet the necessary environmental standards in the course of carrying out their functions. The lack of that requirement could result in the diminution of environmental standards of service because the focus could be totally on financial and other non-environmental criteria.
I accept that at first glance it may not he obvious as to how local authority professional and technical services, if misdirected, could cause environmental damage. Therefore, I give an example. The promotion of tourism is one service which the Government propose to put out to compulsory competitive tendering. Tourism is a growth industry which increasingly involves local authorities. The majority of local authorities now have a tourism policy for their area. Without the appropriate checks and balances, tourism development can have considerable impact on the environment. Let us take, for example, an authority in a coastal area which decides to put its development of tourism policy to tender. Under the Bill as drafted, the authority would consider the tender in terms of cost, economy, efficiency and effectiveness. Not surprisingly, the potential contractor may formulate a policy which sets priorities for the development of such activities as water skiing, jet skiing, footpath construction and so on.
As the Committee will know, coastal areas provide essential habitat for many forms of wildlife and especially birds, which depend on undisturbed areas both for feeding and roosting. Because Clause 8 does not include specified environmental safeguards, there is a serious risk that tendering for tourism, as in the example, could have a damaging effect on our environment.
The amendment would help to prevent such a situation occurring and thus improve the Bill. It would require local authorities, in assessing the relative value of tenders, to take account of environmental aspects. In turn, that will encourage the tenderers to think environment as well as profit. To be effective, such environmental safeguards must be built into the legislation. I beg to move.
Lord Norrie: I support this amendment. I welcome the Government's objective of seeking value for money in local service provision. I welcome also the emphasis placed by my noble friend Lady Blatch on Second Reading, when she emphasised that quality is an important consideration in the extension of compulsory competitive tendering.
However, I believe that environmental standards should be considered to be a distinct part of the quality of services. The public are increasingly looking to local authorities to ensure high environmental standards in the provision of a range of services. The consequences of yesterday's Division will, I believe, make that all the more pertinent. I should not like to see the search for efficiency and reduced costs leading to a decline in the environmental standards of local services. My noble friend Lord Mills described how that may occur with tourist promotion.
Clearly, the Royal Institute of British Architects has shown through its lobbying that it is concerned that CCT should not be allowed to cause a decline in the standards and quality of buildings. That is important whether it be in the town or countryside.
Issues such as energy conservation in buildings, appropriate building materials and design which enhances the character of the surroundings are all important environmental considerations. They should be taken into account in the tendering process.
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Environmental considerations are relevant to many other services which are likely to be affected by the provisions of the clause; for example, engineering services and the management of property and construction. One way of ensuring that environmental standards are maintained and improved is to ensure that they are taken into account alongside other quality considerations as well as financial terms and questions of cost.
Therefore, this amendment requires tendering procedures to address specifically the environment as a distinct aspect of service standards. I hope that the Minister will be able to reassure the Committee that environmental standards will be maintained.
Earl Howe: I appreciate the concerns which have prompted the amendment in the names of my noble friends Lord Mills and Lord Norrie. Local authorities have a range of responsibilities with important environmental implications. The needs of the environment must be respected whether authorities employ their own staff to discharge their responsibilities or turn to private companies to do work on their behalf.
Our consultation paper, Competing for Quality—Competition in the Provision of Local Services, presents our proposals to extend CCT to several professional services, and in particular to the so-called construction-related services; architecture, engineering and property management. Clearly, the way in which these services are performed can be of especial relevance to both the built and the natural environment. Certainly, those employed or appointed by local authorities to take forward the design of buildings or roads must be conscious of environmental concerns and capable of safeguarding them. There can be no doubt on that score.
However, I do not consider that the right way of addressing these concerns is through the approach proposed in the amendment. Clause 8(2) (a) already provides for a separate evaluation of the quality of tenders and of those who submit them. We are ready to consider what the components of such a quality evaluation might be, but one could well be the professional experience of tenderers relevant to the work subject to CCT. It may be that relevant environmental experience could appropriately be included if the work subject to CCT clearly called for such experience.
More fundamentally, however, I consider that the essential mechanism for addressing environmental concerns in work which is, or will be, subject to competition is the tender specification, which will be as important for professional services as for the work already subject to CCT under the 1988 Act. It is vital that the local authority in each case prepares a well-considered and clearly comprehensible specification, which will make it clear to all concerned—the local authority as client, the successful tenderer as contractor, and the local community as customers—exactly what work has to be done, to what standard and over what period. If the specification is right, and the CCT process attracts the right competitors, the service delivered will meet the standards set, be they performance-related, or environmental. I hope

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therefore that with that explanation of our intentions my noble friends will see fit not to proceed with their amendment.
Baroness Nicol: Before the noble Viscount, Lord Mills, responds, I wonder whether the Minister can clarify a matter. Is he saying that guidance has already been, or is about to be, issued to local authorities as to how they should get environmental protection under the circumstances? I am not clear whether the Minister is leaving it to the local authorities or whether the Government are proposing to issue guidance. If that is the intention of the Government, can the Minister say what formula has been or will be applied? How will he ensure, if it has not already been done, that in property management consultancy exercises due regard is paid to environmental costings? I am not at all sure how the Minister proposes to bring these matters into a reasonable and understandable exercise for the local authorities.
Lord Howie of Troon: I am interested in what the Minister said about the preparation of the brief. That is clearly of extreme importance in a matter of this kind. It strikes me that a brief on a technical and environmental matter may be drafted either by the local authority or other public authority, or by a consultant brought in by the local authority. If the local authority decided that it required the help of a consultant to draft the brief, can the Minister say whether that would be subject to CCT?
Earl Howe: In answer to the noble Baroness, Lady Nicol, I must point out that there are regulations already in existence extending principally from the planning and compensation Act which covers that kind of situation. However, the department will be issuing guidance in due course although the precise form that it will take is still unclear. I shall write to the noble Baroness. I undertake also to write to the noble Lord as regards the point he raised about consultants.
Baroness Hamwee: I thank the noble Viscount and the noble Lord who introduced this issue. It is an important one on which we shall spend some time. Following on what the noble Earl, Lord Howe, said, I too understood that the word "quality" in subsection (2) (a) should extend to the environment. I hope that in evaluating quality we should also be talking about the quality of life as one of the aspects of the quality of services. I was a little disturbed when he said that quality could include environmental criteria. I hope that he will take back the message which has clearly come from all sides of the Committee that the interests of the environment are uppermost in everyone's mind.
I welcome very much his comments about the design of specifications and the scope which he seems to indicate may be available to local authorities for taking that into account. That will be a very welcome message to take back though I dare say it is a matter to which other Members of the Committee and myself will return.
Earl Howe: I fully agree with the sentiments that the noble Baroness expressed. It is worth remembering
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that it is for local authorities themselves to determine the quality threshold which they are going to adopt. That is why I say that it could include environmental considerations. As we discussed yesterday, environmental anxieties are part and parcel of what constitutes effectiveness in this context. I hope that that message is understood.
Viscount Mills: It was perhaps a predictable response that the amendment would be covered by Clause 8(2) (a) as regards quality. I have to disagree. The quality of service is an intrinsic factor whereas its effects on the environment are extrinsic and may be quite independent of the quality of service which is supplied. The example which I have given as regards the tourist industry clearly illustrates that. The tourism policy adopted could be of high quality and financially attractive and yet still be highly detrimental to the environment.
The Minister may be aware that a precedent has been set by the National Audit Office whereby environmental costs have been included in the cost-benefit analysis of publicly funded schemes. I go back to my original comment when introducing this amendment that to be effective such environmental safeguards must be built into the legislation. In those circumstances, will my noble friend the Minister consider bringing forward an amendment at Report stage which makes it clear on the face of the Bill that any consideration of tender price will include environmental costs or benefits?
Earl Howe: I take note of my noble friend's comments. Environmental considerations are a matter for weighing up with many other considerations, as we mentioned yesterday. While I am not in a position to give him the assurance that he seeks, I can say that it is certain that environmental considerations will be built into both the specifications that local authorities choose to adopt and into the quality threshold as well.
Viscount Mills: Before the Minister sits down perhaps I may take this opportunity to state that the environment is not just another factor. It is not just a criteria to be considered along with freedom of information, women's issues or equal opportunities as the noble Baroness, Lady Hamwee, suggested yesterday. Important as these matters are, without the environment there would be nothing to consider. Ultimately we are dependent on the environment and not it on us.
Lord Tordoff: Is the noble Viscount aware that without women there would be nothing to consider either?
Earl Howe: As I said, local authorities already have obligations for environmental considerations as they relate to measures in the Planning and Compensation Act, and the Environmental Protection Act still remains in place. That is not affected or invalidated by the Bill.
Viscount Mills: I thank my noble friend for his comments. I may wish to return to the matter at Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.30 p.m.
The Principal Deputy Chairman of Committees: In calling Amendment No. 88 the Committee should be aware that if it is agreed to, I cannot call Amendment No. 89.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 88:
Page 8, line 32, leave out from ("consult") to end of line 33 and insert ("and take account of the views of the National Consumer Council, National Council of Voluntary Organisations, relevant professional bodies and the local authority associations in England, Wales and Scotland.").
The noble Lord said: When Amendment No. 88 was drafted the issue of consultation did not have such widespread significance as it has now. In view of the amendment carried last night, Clause 8 and the orders under it take on a rather different aspect from that which they took in the Government's original drafting. However, I thought it worth retaining the amendment on the Marshalled List and detaining Members of the Committee for a few minutes to discuss the subject. The whole issue of consultation on the extension of compulsory competitive tendering rather than merely on the orders under Clause 8(1) deserves further consideration in the light of last night's decision by the Committee.
From the outset I must say that such evidence as there is regarding compulsory competitive tendering in the past is by no means as favourable to the Government's claims as they seem to believe. That is particularly so when one considers that Clause 8 as now drafted extends the quality considerations not merely to the architectural and engineering professions—as the consultation paper does—but to the whole range of competitive tendering for local government services.
I do not know what the department said to the press regarding the effect of last night's amendment, though Some curious reports have been coming back to me. However, it is clear that last night we did not destroy Clause 8 at all. In fact we extended the quality threshold argument to the whole of compulsory competitive tendering rather than to just a small part of it, and that is quite apart from what we did in upholding the principle against Henry VIII legislation.
Before we look at consultation on specific orders perhaps we should look at the consultation already taking place as regards Clauses 8 to 11 of the Bill and Schedule 1. In other words, perhaps we should be looking critically at the consultation paper Competing for Quality which has already been published. That paper no longer represents the Bill before Parliament. It confines the discussion of quality to two paragraphs —2.4.8 and 2.4.10—and refers only to quality considerations in proposed new procedures for architects and engineering services. Now that quality covers the whole range of competitive tendering surely the consultation paper is misleading.
As I say, I do not know whether the department has picked up on the point. Certainly local authority associations have done so. I am authorised to say that all local authority associations—the Association of County Councils, the Association of District Councils, the Association of Metropolitan Authorities
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and the Convention of Scottish Local Authorities—support the demand that I now make that the consultation paper be withdrawn and revised. They do that regardless of the political complexion of their members; they do that in the interests of local government as a whole.
It is not satisfactory to have a consultation paper to which local authorities are expected to respond when it proposes quality as a factor for only two services although it is now applicable to all the services. As it was not satisfactory for the consultation paper process to be carried on at the same time as the procedures of this Chamber, it becomes even less satisfactory when the consultation paper is no longer adequate for the purpose. With the leave of the Committee, I am taking the opportunity offered by the amendment, which calls for a more limited but more effective form of consultation with local authority associations, voluntary organisations and others, to put the point to the Government as clearly as I can that the present consultation paper should be withdrawn and the Government should reconsider their position on Clause 8 and the succeeding clauses. I beg to move.
Baroness Blatch: Two points are implicit in what was said by the noble Lord, Lord McIntosh. One of those points is that he appears to imply that somehow or other the Government believe that quality is not a factor in other services for competitive tendering, and that somehow it applies only to two specific services which are the subject of the Bill. That is not true. We are advocating that quality as such is dealt with in different ways for different services.
The effect of last night's amendment means that quality must be taken into account in precisely the same way for all services. That cannot be sensible. We are saying that it will be necessary to take quality into account in different ways for different services.
As the noble Lord pointed out, the purpose of the amendment is to require the Secretary of State to consult widely on any order that he may wish to make under Clause 8. The organisations named have all been given the opportunity to comment on the principle of the Government's proposals. What is now sought, in addition, is a requirement that they should be consulted on the detail of any proposed order. That would make the consultation process unnecessarily unwieldy, particularly if other organisations which have equal claims to be consulted, such as those representing chargepayers, were included. Perhaps I may remind your Lordships that a Clause 8 order would modify the CCT procedures in connection with the extension of CCT; it would not itself extend compulsory competitive tendering.
Of course I understand the wish of a wide spectrum of organisations to have the opportunity to comment on our proposals, and, as far as possible, the Government try to respect that wish. However, those organisations are mainly interested in the standards of service delivery and that will remain in the control of the local authority client. Indeed, what CCT affects is the efficiency with which those standards are achieved. Furthermore, I doubt whether those organisations, with the exception of the local authority associations, would actually wish to contribute to the detailed

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drafting of an order under Clause 8. We shall certainly consult the local authority associations again when we reach the point of turning any firm proposals into secondary legislation.
Finally, the reference to local authority associations would mean that virtually any body describing itself as a local authority association, however unrepresentative, would have the right to be consulted on a Clause 8 order. I am certain that the noble Lord opposite does not wish that, and more certain that it is not the wish of the Committee. The amendment is unneccesary. Consultation is a real exercise and the fears of the noble Lord are unfounded. I ask the Committee to reject the amendment.
Baroness Carnegy of Lour: Before the noble Lord replies, I should like to say that I hope he does not intend to press the amendment. He has completely forgotten consumers and voluntary organisations in Scotland, though he remembered the local authorities in Scotland. That is quite extraordinary and the amendment simply will not do.
Lord Howie of Troon: I am a little surprised that we are debating this matter today. I thought that the events of last evening would lead the Government to withdraw to their various havens in order to cogitate how to proceed on Clause 8. I see the Minister shaking her head and of course I do not expect her to agree with me immediately; but she will in due course.
The clause is now a pile of wreckage and should be taken away. The Government should consider what to do next and bring the clause back repaired, if they must bring it back at all. I do not wish to pursue these lofty thoughts at any great length—noble Lords will know that that is not my way. I want to support my noble friend Lord McIntosh in Amendment No. 88 and refer in passing to my own Amendment No. 89, which I fear would fall if Amendment No. 88 were agreed to. I say that with great feeling because last night I had tabled Amendment No. 38 when we agreed Amendment No. 37 and I was squeezed out then. I should not like that to happen twice in two days.
The point I wish to make is a very narrow one. It refers to the specific groups which are mentioned in Amendment No. 88. I am asking that the consultation process should include the professional institutions. I think I am right to speak to Amendment No. 89 under Amendment No. 88, although it is not grouped, because I am sure that anything which the Government may say about professional bodies under Amendment No. 88 they would also say about professional institutions under Amendment No. 89.
I raise the point for this reason. I do not believe that the Government understand the nature of the in-house professional team. Or, if they do understand it, they have not made it plain in the legislation. The in-house professional team—I refer specifically, as noble Lords would expect, to those involved in architecture and engineering with whom I am well acquainted—has two functions. First, it acts as an internal consultant performing a professional function to professional standards in exactly the same way as
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any other professional consultant; that is, professionally, the local authority architect is the same as an architect in private practice. He has other duties which are different, but professionally he is the same.
The second function which the in-house team carries out is equally important but different. It acts as a professional client, guiding and advising the authority, drawing up the brief, as we mentioned earlier on, selecting outside consultants and monitoring their work. So there are two different functions to perform. Both are professional functions and they are both performed to a total professional level of competence.
That is important because it provides a fully professional career for the architect or engineer in the public service. Fully professional staff are attracted to it. The Institution of Civil Engineers has around one-third of its members in the public service. The number is hard to define because the definition of "public service" changes quite a bit from time to time with privatisation. But a sizeable number of professional engineers and architects are in the public service. They are attracted to the public service because it gives them a fully professional career. If it transpires that the functions which they are to perform are in any way diminished, the attractions of these professional careers will be diminished and the standard of the staff attracted into the public service will be very much reduced. It will be very much reduced for obvious reasons. If the attractions of the posts are less than those in private practice, architects and engineers will not come into the public service. It would be a great mistake for the Government to insist on CCT, with its emphasis on the market. Despite what the Minister has said about quality, I believe that the market rules in this respect and quality is certainly not the major factor.
I think the Government are mistaken and should certainly consider consulting with the professional architectural and engineering institutions, and others which may well be appropriate, in the detail of how their schemes are to be carried out.
Lord McIntosh of Haringey: Perhaps I could console my noble friend Lord Howie and the noble Baroness, Lady Carnegy. I do not see the difference. I agree with everything he says, but I do not see the difference between professional bodies in my amendment and professional institutions in his amendment. I hope that on reflection he will feel that we have covered the point which he has so rightly made.
As far as concerns the point made by the noble Baroness, Lady Carnegy, in syntax it is always a question whether England, Wales and Scotland is taken to refer only to the immediately preceding phrase or to the whole range of bodies set out in the amendment. It was certainly my intention that it should refer to the whole range of bodies set out in the amendment. Therefore, although the corresponding body to the National Consumer Council is called the Scottish Consumer Council in Scotland—and I presume the National Council of Voluntary Organisations has a similar Scottish name—the intention certainly is that all parts of the amendment

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should cover comparable bodies in Scotland. There is perfectly good precedence for this in Part I of the Bill where the draftsman gets tired of saying Audit Commission and Scottish Accounts Commission and reduces it to Audit Commission when clearly the Scottish Accounts Commission is included.
3.45 p.m.
Baroness Carnegy of Lour: The Labour Party, which controls the vast majority of local authorities in Scotland, should not insult colleagues by failing to mention the two Scottish bodies, which are totally separate. That is quite honestly ignorance on the part of the noble Lord and I was just trying to appraise him of the fact that his amendment will not do. That is all.
Lord Howie of Troon: I do not wish to get involved in any party squabble across the Floor. I fully accept that his bodies include my institutions and we are both agreed—as is almost always the case.
Baroness Blatch: My noble friend makes an important point and I have no doubt that the noble Lord, Lord McIntosh, has noted it. This whole issue is about when the talking has to stop. I have explained that a great deal of consultation is going on all the time with local authority associations, voluntary organisations and also with the professional bodies. It has to be said that the professional bodies are enormously helpful when, for example, it comes to defining quality thresholds. We shall be talking to a number of professional bodies about this but at some point the talking has to stop, and it is for the Government to put an order based on the results of that consultation before the Houses of Parliament and for Parliament to decide.
The noble Lord, Lord Howie of Troon, made reference to this Bill being in a mess and that we should all just forget it and leave Clause 8 alone. I should say to him that the Bill is still very much intact. The Secretary of State's power to extend competitive tendering is entirely in place. The effect of the amendment last night reduces the Secretary of State's flexibility to treat definition of quality in different ways for different services. In other words, it takes away what I believe is his ability both to sensitively and effectively deal with the definition of quality. That is what we are saying: a reduction in flexibility. That point I am absolutely certain will be addressed as the Bill proceeds through this House and through another place.
Lord Howie of Troon: I did not say that she should leave the clause alone. I said that she should bring it back repaired and in a seaworthy condition—if that were possible.
Baroness Blatch: I think the noble Lord's particular phrase was "to go away and cogitate". The effect of the amendment has reduced flexibility: that is all it has done. The policy of the Government is in place and the ability of the Government to extend competitive tendering is also in place. We are dealing with the ability of the Secretary of State to deal sensibly, effectively and sensitively with the definition of quality. We believe that that is important; noble Lords
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opposite clearly do not. We shall certainly be addressing that as the Bill passes through both Houses.
Lord Howie of Troon: I am terribly sorry, but perhaps the Minister will reflect that I have tabled several other amendments, all of which include the word "quality". I cannot let her say that I, at least, am not interested in quality.
Baroness Blatch: I have not made that suggestion. Perhaps I may say to the noble Lord that the ability to deal differently with different services in a sensitive way has been denied to the Bill so far by the success of the amendment last night. I believe that the Government's record on consulting Scottish local authorities, English and Welsh local authorities and indeed the professional bodies is a good one and will continue to be so.
Baroness Hamwee: While I do not for one moment suggest that the Scots should not be consulted—I hope that the noble Baroness, Lady Carnegy, will understand that that is a genuine comment—I support the amendment. The Minister has spoken of the need to cajole people into competitive tendering by the compulsion that is the subject of the Bill. Having myself cogitated on that phrase, it seems to me that the best way to cajole is to persuade and the best way to persuade is by full debate. The very number of amendments which we would have debated had last night's Division not gone as it did shows the widespread anxiety about how the extension of CCT might proceed, and shows the great wish of people from so many services and sectors to have their say at the appropriate point.
Given the experiences that we have had of competitive tendering, I have to say to the Minister that the talking should not stop at the point where the Government have listened but have not indulged in further debate with those who have made their point. Consultation is quite a long process if it is to be successful. For it to be successful it has to persuade those taking part in it.
Though the example is quite different there are serious lessons to be learnt from the soap opera of the television franchises. If that did not contain some small lesson for discussion about how quality and the extent of consultation should be considered, then it is one thing that we have missed.
Baroness Blatch: Perhaps I may say in response to one of the points made by the noble Baroness that it is quite normal to consult on a draft order that comes before the House. Clause 8(3) includes the words "Before making an order". When an order is made, the Government place it before the House. At that point it must be for the Government to make the final recommendation and for each House of Parliament to confirm or reject that recommendation.
Lord McIntosh of Haringey: I rather thought that at some stage the Minister would seek to give the Committee her view on what Clause 8 now means. I am sorry that she should feel it necessary to give the House a view which in my opinion is totally distorted.

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She spoke affectingly about sensitivity and flexibility as if that were the object of the original wording of Clause 8. That is certainly not the case. What we have said in the amendment is that the provisions should be applicable on a common basis. That is the minimum protection required in order to make sure that the Secretary of State is acting fairly as between one service and another and one local authority and another and is not simply taking these powers, which, I must repeat, were powers to amend primary legislation, to discriminate at his own whim between one service and another and between one local authority and another. That is what Clause 8 stated until the amendment was carried last night. All the talk about flexibility and sensitivity is simply a gloss on what the clause stated and does not reflect either the original drafting or the drafting of the amendment.
What the Minister has chosen not to do in her reply to the amendment is to respond to my important and urgent point about the consultation document which is now before the public and before local authorities. I put it again to the Minister that the consultation document no longer reflects the Bill before Parliament. It no longer reflects the widening and widened requirements that quality should be considered in all compulsory competitive tendering, and it no longer reflects the more limited powers which the Secretary of State now has under the Bill to intervene in a differential way between different local authorities and different services. I put it to the Minister that the proper course now would not be to continue with a sham consultation process but to withdraw the paper and put it out again in a revised form.
Baroness Blatch: I can give the noble Lord an absolute assurance that consultation will go ahead as planned and that the loss of one amendment on one evening reducing a measure of flexibility on the part of the Secretary of State, which was the intended use of that power, will not invalidate the importance and the essential nature of that consultation process. It will continue, and it will continue unaltered.
Lord McIntosh of Haringey: The Government are reducing the credibility of the consultation process to which they claim to be committed. All the local authority associations, regardless of political complexion, have asked that the consultation paper be withdrawn. I hope that the Committee will consider it right to express its support for proper consultation by agreeing with the amendment.
Baroness Carnegy of Lour: I must ask the Committee to pay attention to what the amendment does. It asks that the National Consumer Council of England and of Wales and the voluntary organisations in England should be consulted—the Scottish organisations and the Scottish Consumer Council are completely left out. We have had that from the Labour Front Bench and the Liberal Democrat Front Bench. If the Committee votes for the amendment it will be saying something very peculiar indeed, something that will be enormously resented in
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Scotland. I really must make the point. For that reason I hope that the Committee will vote down the amendment.
Lord McIntosh of Haringey: The noble Baroness is being uncharacteristically prickly. The words "England, Wales and Scotland" apply not only to local authority associations but to consumer councils and voluntary organisations. We could have added the words "Scottish Consumer Council" but it would have been a distinction without a difference. It is clear from the wording, as it is clear in many examples of the drafting of legislation, what is intended by the amendment. I respect the noble Baroness but I cannot take her intervention seriously. It is right that the Committee should take a view on the matter and should take the view that consultation, when it takes place, should be taken seriously by the Government. That is not the case at the present time.
3.57 p.m.
On Question, Whether the said amendment (No. 88) shall be agreed to?
Their Lordships divided Contents, 109; Not-Contents, 164.

Division No. 1

CONTENTS

Addington, L.

Howie of Troon, L.

Aylestone, L.

Hunt, L.

Banks, L.

Hutchinson of Lullington, L.

Beaumont of Whitley, L.

Irvine of Lairg, L.

Birk, B.

Jacques, L.

Blackstone, B.

Jay, L.

Boston of Faversham, L.

John-Mackie, L.

Bottomley, L.

Judd, L.

Broadbridge, L.

Kennet, L.

Brooks of Tremorfa, L.

Kilbracken, L.

Bruce of Donington, L.

Kinloss, Ly.

Callaghan of Cardiff, L.

Leatherland, L.

Campbell of Eskan, L.

Llewelyn-Davies of Hastoe, B.

Carmichael of Kelvingrove, L.

Lloyd of Hampstead, L.

Carter, L. [Teller.]

Lockwood, B.

Castle of Blackburn, B.

Longford, E.

Cledwyn of Penrhos, L.

Lovell-Davis, L.

Clinton-Davis, L.

Macaulay of Bragar, L.

Cocks of Hartcliffe, L.

McIntosh of Haringey, L.

Crook, L.

Mais, L.

David, B.

Mallalieu, B.

Dean of Beswick, L.

Mar, C.

Desai, L.

Mason of Barnsley, L.

Donaldson of Kingsbridge, L.

Mayhew, L.

Dormand of Easington, L.

Milner of Leeds, L.

Ezra, L.

Molloy, L.

Falkender, B.

Morris of Castle Morris, L.

Falkland, V.

Mulley, L.

Foot, L.

Murray of Epping Forest, L.

Gallacher, L.

Nicol, B.

Galpern, L.

Ogmore, L.

Gladwyn, L.

Parry, L.

Glenamara, L.

Peston, L.

Graham of Edmonton, L.[Teller.]

Redesdale, L.

Richard, L.

Greene of Harrow Weald, L.

Ritchie of Dundee, L.

Grimond, L.

Robson of Kiddington, B.

Hampton, L.

Rochester, L.

Hamwee, B.

Russell, E.

Hanworth, V.

Sainsbury, L.

Harris of Greenwich, L.

Scanlon, L.

Hatch of Lusby, L.

Seear, B.

Henderson of Brompton, L.

Serota, B.

Hilton of Eggardon, B.

Shackleton, L.

Hollis of Heigham, B.

Stallard, L.

Hooson, L.

Stedman, B.

Houghton of Sowerby, L.

Stoddart of Swindon, L.

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Strabolgi, L.

Wallace of Coslany, L.

Tanlaw, L.

Whaddon, L.

Taylor of Blackburn, L.

White, B.

Taylor of Gryfe, L.

Willis, L.

Thomson of Monifieth, L.

Wilson of Langside, L.

Tordoff, L.

Wilson of Rievaulx, L.

Turner of Camden, B.

Winchilsea and Nottingham, E.

Underhill, L.

Young of Dartington, L.

NOT-CONTENTS

Abinger, L.

Harvington, L.

Adrian. L.

Henley, L.

Ailesbury, M.

Hertford, M.

Aldington, L.

Hesketh, L. [Teller.]

Alexander of Tunis, E.

Hives, L.

Allenby of Megiddo, V.

Holderness, L.

Alport, L.

Hood, V.

Arran, E.

Hooper, B.

Astor, V.

Howe, E.

Balfour, E.

Hunter of Newington, L.

Belhaven and Stenton, L.

Ironside, L.

Beloff, L.

Jellicoe, E.

Birdwood, L.

Jenkin of Roding, L.

Blatch, B.

Johnston of Rockport, L.

Blyth, L.

Killearn, L.

Boardman, L.

Kings Norton, L.

Borthwick, L.

Kinnaird, L.

Boyd-Carpenter, L.

Knollys, V.

Brentford, V.

Lauderdale, E.

Bridgeman, V.

Lindsey and Abingdon, E.

Brigstocke, B.

Lloyd-George of Dwyfor, E.

Brougham and Vaux, L.

Long, V.

Butterworth, L.

Lytton, E, L.

Caldecote, V.

Mackay of Clashfern, L.

Campbell of Alloway, L.

Macleod of Borve, B.

Campbell of Croy, L.

Malmesbury, E.

Carnegy of Lour, B.

Manchester, D.

Carnock, L.

Mancroft, L.

Carrington, L.

Manton, L.

Cavendish of Furness, L.

Marshall of Goring, L.

Chelmer, L.

Merrivale, L.

Clanwilliam, E.

Mersey, V.

Cochrane of Cults, L.

Mills, V.

Colnbrook, L.

Milverton, L.

Constantine of Stanmore, L.

Monk Bretton, L.

Cottesloe, L.

Morris, L.

Cox, B.

Mottistone, L.

Cross, V.

Mountevans, L.

Davidson, V. [Teller.]

Mowbray and Stourton, L.

Denham. L.

Munster, E.

Denman. L.

Murton of Lindisfarne, L.

Denton of Wakefield, B.

Nelson, E.

Dormer, L.

Nelson of Stafford, L.

Dundee, E.

Norfolk, D.

Eccles of Moulton, B.

Norrie, L.

Effingham, E.

Oppenheim-Barnes, B.

Ellenborough, L.

Orkney, E.

Elles, B.

Orr-Ewing, L.

Elliott of Morpeth, L.

Oxfuird, V.

Erroll of Hale, L.

Palmer, L.

Faithfull, B.

Pender, L.

Fanshawe of Richmond, L.

Perry of Southwark, B.

Ferrers, E.

Peyton of Yeovil, L.

Flather, B.

Platt of Writtle, B.

Fortescue, E.

Porritt, L.

Fraser of Carmyllie, L.

Pym, L.

Fraser of Kilmorack, L.

Quinton, L.

Gainford. L.

Rankeillour, L.

Gardner of Parkes, B.

Reay, L.

Goold, L.

Renfrew of Kaimsthorn, L.

Gray, L.

Renton, L.

Gray of Contin, L.

Romney, E.

Greenway, L.

St. Davids, V.

Gridley, I..

St. John of Bletso, L.

Grimston of Westbury, L.

Seccombe, B.

Grimthorpe, L.

Sharpies, B.

Hailsham of Saint Marylebone, L.

Shrewsbury, E.

Shuttleworth, L.

Hardinge of Penshurst, L.

Skelmersdale, L.

Harmar-Nicholls, L.

Stodart of Leaston, L.

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Strange, B.

Ullswater, V.

Strathcarron, L.

Vaux of Harrowden, L.

Strathclyde, L.

Vivian, L.

Strathmore and Kinghorne, E.

Waddington, L.

Strathspey, L.

Wade of Chorlton, L.

Sudeley, L.

Wharton, B.

Swansea, L.

Whitefaw, V.

Swinfen, L.

Wigram, L.

Terrington, L.

Wolfson, L.

Teviot, L.

Wyatt of Weeford, L.

Thomas of Gwydir, L.

Wynford, L.

Thorneycroft, L.

Young, B.

Trumpington, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.7 p.m.
[Amendments Nos. 89 to 91 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 92:
Page 8, line 43, leave out paragraph (b).
The noble Lord said: The Minister has been very determined to show Members of the Committee that the Bill ought to give the maximum opportunities for flexibility and sensitivity. The purpose of this amendment is not in any way to oppose the idea of flexibility and sensitivity, but to seek to find out what is in the Government's mind as regards Clause 8(5), which states that the Secretary of State shall have:
"The power to make an order under this section shall include the power—

"(a) to make such incidental, consequential, transitional or supplementary provision as the Secretary of State thinks necessary or expedient; and

(b) to make different provision for different cases, including different provision for different localities and for different authorities".

That is the kind of wording which tempts me to say, as the noble and learned Lord, Lord Hailsham, has heard me say before, that it means that the Secretary of State shall do what he likes. Therefore, why bother to have a large number of words to express that very simple thought? It is a puzzling piece of wording. It goes further in giving the Secretary of State power to do what he likes than any equivalent provision that I have so far met. No doubt the Minister will have precedents to read to me on the matter. I do not claim that I read more than a tiny proportion of the legislation which passes through this Chamber.
I must ask the Government to say how such wide-ranging powers will actually be used. For example, is it really intended that the Secretary of State shall have the power to say that local authority A must put out service X to competitive tender but that local authority B need not do so; or that local authority A shall put out to private tender services X and Y but not service Z? That is the possibility that arises from the wide-ranging wording of Clause 8(5) (a) and (b).
That leads me to wonder what are the principles upon which the Secretary of State will make his judgment in exercising those powers. Will he be responding to special pleading from local authorities or, depending upon his political background and point of view, will he be responding to special pleading from private contractors who might be interested in taking over the services? Those matters are not clear

117
from the way in which the Bill is drafted. As it stands, the power is all embracing. It is not enough merely to call it a reserve power.
I am not saying there should be no reserve power to force local authorities, under certain circumstances where they are patently not carrying out their responsibilities, to go out to competitive tender for certain services. It would be bold to say that competitive tendering was so wrong that it should not be possible, in extreme cases, for the Government to say that it should take place even when a local authority resists. I know that some of my local authority friends will not like that, but that is my view.
The wide-ranging power contained in Clause 8(5) (a) and (b) deserves a good deal more explanation from the Government than it has yet received. I beg to move.
Lord Howie of Troon: I can understand, I think, why the Government might wish to include different provisions for different localities and for different authorities, but I am not sure what "different cases" means. Does it mean different projects, projects of a particular kind, or projects in a certain cost range? What does it mean? What are the cases involved?
Baroness Blatch: We must remember that Part I of the Local Government Act applies to many different types of defined authority. It applies not just to counties, boroughs and districts, but to parishes and to development corporations. It may be that the consultation process will suggest that the provision for separate evaluation of quality and cost which we propose will not be appropriate for all types of authority. The procedures may also need to differ according to the value of the contract and the size of the authority. I believe that that is the point raised by the noble Lord, Lord Howie of Troon. There may be some circumstances where different localities merit different treatment, perhaps because of different market circumstances. This is not intended to be exclusive. There may be other circumstances where different treatment is appropriate.
The Secretary of State will not, of course, use the power in an unreasonable or discriminatory way, but it is essential that he should be able to take account of such legitimate differences when framing the orders.
I hope that the noble Lord will feel able to give way to that flexibility. The power in Clause 8(5) (b) is expressed differently from the power contained in Section 15(6) of the 1988 Act; but it has no different purpose, and we believe it to have no wide effect.
Lord Simon of Glaisdale: I am glad that the noble Lord, Lord McIntosh of Haringey, has raised this matter. My objection to the provision is different from his. He regards it as sinister. I presume to regard it as completely unnecessary. It occurs in statute after statute, and now, no doubt automatically, pops up in the computer and word processors in the department and in Parliamentary Counsel's office. Of course the Minister can make different types of order for different authorities and in different localities. That is all included. There is no need to spell it out. The only
118
reason which might now be advanced is that it has been done so often that we cannot prevent an advocate from saying, "Well it was done in a previous statute and therefore its omission here is significant". I have never known that argument succeed, but that does not prevent it being put forward in case after case.
When the Renton Committee reported in 1975, the statute book ran to three volumes. The committee remarked upon its prolixity. Ten years later, in 1985, it ran to five volumes. It not only ran to two more volumes but it embraced fewer statutes than 10 years previously. It is because we clutter up our statute book with unnecessary provisions like that that the statute book becomes more and more unwieldly. I hope that the noble Baroness, Lady Carnegy, is here to hear me say that it also becomes more and more expensive for the purchasers of the statute book.
4.15 p.m.
Lord Howie of Troon: Before the Minister replies, I am not sure that I am very much clearer about what are or are not "cases" in this respect. I should like to be clear about one point: the Minister used the two words "quality" and "cost". I did not quite catch what she said. Was she trying to imply that there might be circumstances in which the cost side of the tender was more important than the quality side, or did I just misunderstand that point?
Baroness Blatch: I did not suggest that one was more important than the other. During the course of the Bill's passage I have suggested a number of times that in some services it is necessary to define quality in a different way and more specifically because the service itself—for example, professional services—is more complex and less straightforward.
I find the arguments put forward by the noble and learned Lord, Lord Simon of Glaisdale, compelling and particularly seductive. They are different from the ones put before the Committee by the noble Lord, Lord McIntosh. I bow to the noble and learned Lord's greater knowledge of these matters. I can give him the assurance that if I am advised that the words are superfluous and that the Secretary of State will be able to act in a flexible way—as I said, recognising that there will he different sets of circumstances in which the Secretary of State will require the flexibility to act differently—and I believe that the words should be removed from the Bill, they will be. If the noble and learned Lord's advice is confirmed, as I suspect it will be, I shall see that the words do not sit on the face of the Bill merely because the provision has been included in other legislation.
Lord Simon of Glaisdale: I am very much obliged to the Minister. I cannot encourage her to believe that she will get very far in her consultations, but it is very good of her to say that she will have them.
Baroness Blatch: The noble and learned Lord underestimates me. If I believe that there is a technical explanation and that the words are superfluous in this place they will be removed from the face of the Bill.
Lord McIntosh of Haringey: I think that I should respond to the debate on behalf of the noble and learned Lord, Lord Simon of Glaisdale, as he has taken over the thrust of the argument. I was interested in the exchange which took place between him and the Minister. I should he happy to see the subsections removed on the basis that they are unnecessary. I should be even more happy to see them removed since I retain a nagging suspicion that they give the Secretary of State power to discriminate in ways which could be undesirable. That would apply to any Secretary of State, not just the present one. On the basis of the Minister's final response, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 93 not moved.]
Clause 8, as amended, agreed to.
Clause 9 [Power to define conduct as competitive or anti-competitive]:
Lord Howie of Troon Lord Howie of Troon moved Amendment No. 94:
Page 9, line II. after ("competition") insert ("in terms of quality and price").
The noble Lord said: I do not intend to detain the Committee long with this matter. Amendment No. 94 is grouped with Amendments Nos. 97 and 99 which all say much the same: that the word "quality" should be clearly placed on the face of the Bill. My general objection to compulsory fee competition is that it is likely to lead to a reduction in design quality. That is what I am talking about, whether it be civil engineering or architectural design.
This is wholly different from quality in terms of dustbin collection, street cleaning and such matters. I wish to draw the attention of the Committee to a letter from a civil engineer which was published in the magazine New Civil Engineer on 28th November. The letter was from a Mr. R. A. Hannan, a member of the Institution of Civil Engineers who lives in France. I quote his letter because it states what I wish to say as clearly as, or perhaps more clearly than, I could from the view of the working civil engineer in the working conditions in which civil engineers find themselves rather than in the rarefied atmosphere of this Committee. Mr. Hannan quotes from the report Guidelines for the design of public buildings by the Department of the Environment. It states:
"Good design need not cost more than poor design, though it may sometimes warrant extra expenditure on structure and materials".
His letter goes on:
"The opposite is the case. Good civil engineering design is that which results in the most economic use of materials. Therefore good design warrants less expenditure on structure and materials. Bad design results in clumsy, oversized, ugly structures with wasteful use of materials".
Later in the letter Mr. Hannan makes a significant comment in relation to the Bill and the reaction of clients to the fees which designers may charge. He speaks of the refusal of the client, in this case some kind of public authority,
"to acknowledge the fact that good design does cost more than poor design. More time and expenditure in the design stages involving additional site investigations, engaging additional expertise, comparison of more alternative schemes and more sophisticated calculations will result, in the long
120
run, in a more aesthetically acceptable solution, and less over-expenditure during and after construction on claims and unforeseen contingencies".
Mr. Hannan is saying something which is self evident: namely, that if we save money on the fee, we spend it later on. By saving money on the consultants' fee, we achieve poor design. We cannot possibly want that. Poor design at the beginning leads to greater expenditure in the whole life of the project. That is why I want quality to be at the front of any competitive arrangements which lead to the appointment of consultants, whether they are architects, engineers or people in similar activities.
The measurement of the quality of design is very difficult. It is not as easy as judging between two prices, but it is much more important both for the long-term economic viability of the project and also for the quality of life of the citizen. I beg to move.
Lord McIntosh of Haringey: I wish to support my noble friend's amendment. He touched on a theme to which we shall certainly return in later amendments, notably Amendment No. 102 which is concerned with this aspect. The Government rightly in their publications draw attention to the possible conflict between short-term costs and long-term benefits. The Government do not seem to recognise that the way in which contract specifications have in the past been drawn up—although with Clause 8 as amended that will be more difficult—very often local authorities have been forced to sub-optimise. In other words they have been forced to choose an option which is cheaper at the design, installation and construction stage, but which will cost more in terms of energy consumption, maintenance and so on afterwards. With his particular knowledge, the noble Lord, Lord Howie, drew proper attention to that point. I hope that the Government take it seriously.
Lord Skelmersdale: I am confused by the amendment. As a result of the Committee's activities last night, the proposition of the evaluation of quality remains very firm. It not only remains firm, but it occurs earlier in Clause 8 than the Government originally intended. I therefore dispute the suggestion of the noble Lord, Lord Howie, that quality is not on the face of the Bill.
The second reason for my confusion over the explanation of the amendment is that Clause 9 to which it refers has the heading:
"Power to define conduct as competitive or anti-competitive".
I do not see where the issue of quality comes into it, although I agree with everything the noble Lord said about the need for quality.
Baroness Blatch: Perhaps I may return to the illustration given by the noble Lord, Lord Howie of Troon, about good and poor design. He said that good design leads to more economic use of materials and that poor design can cost more and lead to more expensive use of materials. I do not argue with that. I believe that often poor design is an expensive option. Whether one uses good materials or poor materials, poor design is poor design. At some time there is a reckoning for it.

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However, it is also possible to have good design leading to the use of expensive materials and poor design using poor materials. All that can sometimes be true. In speaking to the amendment, the noble Lord properly made the case for a sensitive and thorough definition of quality when it refers, for example, to architectural services. Thus I believe that the case for it has been made.
The Secretary of State proposes to use the power to make regulations to clarify the existing framework for competitive tendering so that local authorities are required to treat certain matters which have hitherto caused problems in tender evaluation on a consistent basis in order to ensure that external contractors have a fair chance to compete. The matters at present proposed are set out in the first part of our consultation paper Competing for Quality Competition in the Provision of Local Services. Examples are how redundancy costs and some other costs extraneous to the bid should be treated, and how long should be allowed for various periods in the process of letting contracts. If the Secretary of State should decide to adopt the double envelope tendering procedure which the consultation paper offers for consideration for professional services, he may also wish to make regulations to ensure that each stage of that procedure is properly carried out. In particular he is likely to wish to use the power to rule out financial considerations from the evaluation of the unpriced bid against the quality "threshold" at the first stage. He is also likely to wish to rule out quality considerations from the second stage of the procedure; namely, consideration of the financial bids of those who passed the quality threshold.
These amendments would therefore restrict the Secretary of State's power to introduce the double envelope tendering procedure. The procedure, when combined with a well-considered contract specification, should allow quality issues to be clearly and explicitly addressed and separated from financial considerations in a way that is fair to all bidders. I hope that it was not the noble Lord's intention to prevent this. If it was, I must ask him what alternative he proposes.
More generally, it would not be right to set out on the face of the Act what detailed matters these regulations should, or should not, address. The matters we have identified in the consultation paper are those which have caused most difficulty hitherto. Others will almost certainly emerge as competition is extended to new fields. But I can assure the noble Lord that it is not the Government's intention to prevent quality considerations from having their proper weight in tender evaluation, within the context of competitive tendering. The amendments would prevent the suggestion we have made for achieving this. In view of this, and of my assurance that we shall not neglect quality, I trust that the noble Lord will agree to withdraw these amendments.
4.30 p.m.
Lord Howie of Troon: I am surprised that the noble Lord, Lord Skelmersdale, is confused by these amendments. They are simple. They contain fewer words than any other amendment on the Marshalled List. It is quite possible for consultants to compete against each other on quality proposals alone. It is not only quite possible, but it is the way in which they have competed for the past 150 or so years, and it is the way in which, in a sensible society, they will continue to compete.
That takes me to the only other matter that I want to raise. I am somewhat reassured by the comments that the Minister has made about the importance that she places upon quality. She has repeated them on several occasions during the proceedings on this Bill, and I take her word for it absolutely. The noble Baroness put one direct question to me. I was not suggesting that the Government should abandon their two envelope system, although I do not like it. The noble Baroness said that if we abandoned the system what alternative would I suggest.
There is an alternative, and that is to make the choice on one envelope, that envelope being totally on quality, and leave the price element to be negotiated. That is a system that the World Bank uses to some extent, and which has been used for quite a substantial period of time. There is nothing wrong with it. It is a great deal better than the dual envelope system that the Government suggest.
I only mention that in passing and in reply to the noble Baroness's direct question. It was not what I had intended to say. In the light of her assurances, and in the certainty that we shall return to this matter on Amendment No. 102 and possibly later in the Bill, I beg leave to withdraw my amendment for the moment.
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 95:
Page 9, line 13, at end insert:
("1A) Conduct not prescribed by regulations under this section shall be deemed not to be construed as conduct which has the effect of restricting, preventing, or distorting competition or is likely to have that effect.)".
The noble Baroness said: I should like to move Amendment No. 95, which again picks up the issue of competitive and anti-competitive behaviour. Under the 1988 Act local authorities were subject to sanctions by the Secretary of State if they behaved uncompetitively, but they had the discretion to decide for themselves what was anti-competitive, and therefore local authorities could, and did, consider advice from a wide range of sources—for example, from the Audit Commission, from CIPFA—the Chartered Institute of Public Finance and Accountancy—as well as the DoE. Indeed the Government's Circular 19/88 encouraged local authorities to do precisely that and seek their own advice.
Our understanding is that this Bill will remove that discretion from local authorities. They will be bound by whatever provision is contained in the regulations.
Behind that is the belief that local government has been behaving uncompetitively, and that this needs to be tightened. But is that true? As we argued at Second Reading, only 31 of the 2,800 or so contracts out to tender since 1988 have been called in, or reviewed, or criticised by the Secretary of State as uncompetitive. Yet nonetheless the Government's belief appears to be that if local authorities are winning 80 per cent. of the contracts, and barely 1 per cent. of them are regarded by the Secretary of State as uncompetitive, then there must be something wrong with the system. If the private sector cannot win by the existing rules, change the rules, and change them again until the private sector wins a higher percentage of contracts.
As the chief executive of a traditional Conservative county council, Norfolk, said quite recently, what are the Government seeking to do under the CCT? I quote
"Which is the Government's message? Is it that we [the Government] believe in the best value for money for local authority services, or is it we believe that these services are best provided by the private sector?".
These are not the same things, and the chief executive of that Conservative county called on the DoE to "come clean on its objectives".
This amendment tries to get a grip on the notion of what constitutes "uncompetitive". It is not, I would suggest to the Committee, simply whatever the Secretary of State may rule just because too many of his friends are not getting their contracts. This amendment limits what the Secretary of State can deem uncompetitive to that which is defined in regulations under Clause 9. Those regulations issued under Clause 9 of the Bill would be subject to parliamentary scrutiny, but if the Secretary of State can bypass that scrutiny by ruling whatever he sees fit post hoc as uncompetitive, then parliamentary scrutiny is redundant.
This amendment would bring the Secretary of State's actions within the definitions laid down by Parliament, and the question is—and it is one that we have had before—whether Parliament, through its legislation as in 1980 and 1988, should determine what is uncompetitive, or whether it should be a power taken unto himself by the Secretary of State. If the Committee believes that this should be within the purview of Parliament, I hope that it will support the amendmsent.
Baroness Blatch: A straight answer to the question posed by the chief executive of Norfolk, put by the noble Baroness, Lady Hollis, is that we believe that the local authorities' role is as enablers to see that services are provided; that they should specify the quality of those services themselves; and that they should certainly monitor the effective delivery of those services and do something about it if the services delivered are not consistent with the quality set out in the specification. But whether that work is done by direct labour forces or by the private sector is not a point at issue. The point at issue is that the playing field on which everybody is competing for this work should be as level as possible.
We consider that the uncertainty that has arisen out of divergent approaches to tendering by local
124
authorities needs to be resolved by means of the prescription of consistent practice through regulations, and we would wish to establish consistency as widely as possible across the different aspects of tendering. Both the Local Government Planning and Land Act 1980 and the Local Government Act 1988 already place the Secretary of State in the position where he has to take a view on whether authorities have behaved anti-competitively, since both Acts give him a power to use sanctions on authorities who have so behaved. The Committee will of course recognise that in reaching a view on such matters the Secretary of State's actions are ultimately reviewable by the courts.
Since the passage of the 1988 Act the Secretary of State has made his views known widely through his use of sanction powers and through the issuing of guidance. Clause 9, by giving him a power to issue regulations dealing with such matters, will make it possible to provide even greater certainty on questions of competitive and anti-competitive behaviour, and this will be helpful to all concerned.
Regarding the statistics mentioned by the noble Baroness, the fact that such sanctions are available to the Secretary of State and the threat of his using them has a salutary effect on local authorities, encouraging them to do the right thing.
The amendment would provide that local authorities' conduct in the context of CCT could be regarded as anti-competitive only if regulations had been made dealing with such conduct. It cannot be right that if a local authority blocked off competition for work subject to CCT by acting in a way which had not previously come to the attention of the Secretary of State, and therefore had not been addressed specifically in regulations, that authority could not be brought to book for anti-competitive behaviour. It should be remembered that at the end of the day the Secretary of State can be—and from time to time is —challenged for unreasonableness and that the court would be the arbiter in such matters. It would be highly irresponsible for the Secretary of State to accept the limitation which the amendment would impose.
I hope that with that explanation the noble Baroness will feel able to withdraw the amendment.
Lord Stoddart of Swindon: I hope she does not, because it is a very good amendment. It seems to me that the Government want to wage perpetual war against local authorities. They appear to believe that local authorities. far from wanting to assist their ratepayers or chargepayers, want to do the reverse and place further burdens on them by ensuring that any work that is done for the authorities is charged at a higher price than necessary. That is what the noble Baroness is saying. Reasonable local authorities—and I believe that local authorities are reasonable bodies—if they wish to assist their ratepayers and to carry out more work, will have all the work in hand carried out as cheaply and as well as possible.
The noble Baroness shakes her head. I have had some experience of the matter. I found that far from the local authority on which I had the honour to serve being anti-competitive it was the private sector which

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was anti-competitive. Because the private sector was anti-competitive we ensured that our direct labour organisation became stronger. We discovered that the private sector was so anti-competitive that it organised itself in rings. We discovered that because as regards one particular contract a private sector company made the mistake of leaving a letter within the tender envelope. We found that anti-competitive practices, far from taking place in the local authority, were taking place in the private sector. By ensuring that the direct labour organisation was able to compete on a level playing field we found that not only was the direct labour organisation able to carry out work more cheaply than private enterprise but, in addition, from then on the prices charged by the private sector fell.
Therefore, in my experience, local authorities do not want to endanger competition by obtaining work for their direct labour organisations which would cost the local authority more; they want to do the reverse. This niggling at local authorities and refusal of the Government to trust local authorities to do what is best for their ratepayers has undermined the confidence of local authorities, those who serve on them and those who work for them. I wish the Government would start believing in what they preach; namely, that local democracy is good and the more responsibility is given to local authorities the more they will rise to the challenge.
4.45 p.m.
Baroness Blatch: The noble Lord, Lord Stoddart of Swindon, began by saying that we were at perpetual war on this issue. There is no requirement to take the lowest tender, but it is important that the world, and certainly the local community, understands why a lowest tender has not been accepted and good reasons must be given. It is also true from experience so far that some authorities do engage in anti-competitive behaviour. Sometimes that is so obvious that the matter is taken as far as the courts. At other times a warning is enough. That it happens is beyond doubt.
The noble Lord also referred to the playing field. The Bill is all about ensuring that the playing field is level. The noble Lord went on to say that there is anti-competitive behaviour in the private sector. I agree with the noble Lord that there are good, bad and indifferent practitioners in the public sector just as there are good, bad and indifferent practitioners in the private sector. There is other legislation which deals specifically with the private sector. The Restrictive Trade Practices Act 1976, administered by the Office of Fair Trading, is designed to counter the adverse effects of some of the practices which the noble Lord mentioned—cartels and other anti-competitive practices. Action has been taken against a number of firms which have admitted price fixing among suppliers, for example, of ready mixed concrete, road surfacing materials, steel reinforcing bars, float glass and fuel oil.
There is legislation in place which can deal with anti-competitive behaviour in the private sector. We say that when local authorities define the work that
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they want to be done at a quality which they determine then the people who bid for that work, whether direct labour forces or private sector companies, should do so on a fair basis. We believe that the amendment is inhibiting in that respect.
Baroness Hollis of Heigham: Will the Minister care to tell us how many further cases, in addition to the 31 out of 2,800, she believes would have been caught by the Secretary of State had this legislation been in place?
Baroness Blatch: I am not able to be specific. I have said that when anti-competitive behaviour is indicated the matter is sometimes resolved by the local authority without any further action being taken. We also know that there have been instances of what the Secretary of State has regarded as anti-competitive behaviour which has not been caught by existing legislation. That is the whole point of this legislation.
If there is only one example, in one area, of thousands of pounds being spent where they ought not to be spent then it is important that we, the Government, should act as guardians of the public interest. In general, as a result of competitive tendering, in which noble Lords opposite do not believe, savings have been made. That has been codified. Standards have risen and many direct labour authorities are now in better shape, better managed and more effective in their delivery of services almost directly as a result of the measures which this Government have put in place.
Baroness Hollis of Heigham: In terms of the Minister's original remarks in response to the amendment there is much with which we would not disagree. She is certainly right to say that local authorities are enablers of services. They need to monitor the services provided as well as themselves also being providers. We also entirely accept that in that situation the playing field should be as level and as fair as possible. However, we do not accept that the Minister's conclusions follow from the Minister's remarks.
Under pressure the Minister agreed that since 1988 only 31 cases have gone through the Secretary of State's default powers out of a total of 2,800 contracts. I then asked the Minister a moment ago what other examples she would have wished to have seen caught but which were not caught because the legislation was not sufficiently comprehensive. She could not give the Committee a single example. One would have thought that, if there had been such transgressions to hand, she would have informed the Committee.
The Minister then went on to say that, even if there was just one case, those all-encompassing powers would be necessary. If I may use a phrase that has been used elsewhere, it is a fishing trip to say that there may, although we are not certain, be some authority ingenious enough to come up with something that the Secretary of State, although equally ingenious, has not quite thought of. It is a fishing trip to say that we should therefore have an all-encompassing, all-empowering responsibility for the Secretary of State to define what he sees fit as anti-competitive in ways that

127
the local authority cannot necessarily anticipate in advance because it has not been laid down in regulations. That appears to be not only heavy-handed beyond words, but to put local authorities in the unfortunate position of not knowing in advance whether their behaviour may or may not be deemed uncompetitive until it is caught and declared so by the Secretary of State. The Minister's logic does not follow—
Baroness Blatch: I am grateful to the noble Baroness for giving way. Perhaps I may put a straight question to her. If a matter is not specifically prescribed on the face of the Bill but is, in the Secretary of State's judgment, a case of anticompetitive behaviour and if it survives the challenge of unreasonableness and the challenge of the courts—in other words, if it is seen to be a reasonable judgment and to be anti-competitive by the courts themselves—does not the noble Baroness agree with me that the Secretary of State should be allowed to make that judgment in the public interest?
Baroness Hollis of Heigham: There are two issues involved in responding to the Minister. The thrust of our amendment is, first, that the local authority rather than the Secretary of State should decide what is and what is not competitive. In other words, the emphasis lies with the local authority. Secondly, that separates the functions of the Secretary of State and prevents him from being both judge and jury in his own case. Amendment No. 96 concerns the Wednesbury Rules which were cited by Mr. Justice Popplewell with regard to the Knowsley case. He held that, although the local authority had acted entirely properly and had taken into account the full range of costs in awarding a tender other than to the lowest tenderer, it could not hold the Secretary of State to be acting unreasonably because he could define his own agenda. That is the situation that the amendment seeks to prevent.
Baroness Blatch: I hope that I rise for the last time on this point. The noble Baroness implied that the Secretary of State would be judge and jury in the case. In fact, it is almost exactly the opposite. The noble Baroness advocated that not only shall the local authority provide the service and specify and make the contract, but that it may act anti-competitively and then judge whether its behaviour is anti-competitive or not. The Secretary of State cannot be judge and jury. Once he has made that judgment, it is subject to challenge on the grounds of unreasonableness and can be challenged in the courts. He cannot possibly be judge and jury.
Baroness Hollis of Heigham: I rise on this point for the last time. I shall not press the matter to a vote at this stage. It is clearly an issue to which we shall return in the next and subsequent amendments and on Report. It is clear that a number of legal opinions suggest that the local authority was right in spirit, but could not be held to be right in law by virtue of the definition drawn by the Secretary of State. We shall return to that issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 96:
Page 9, line 29, leave out ("or disregarded").
The noble Baroness said: This amendment picks up some of the issues that we have just discussed. Under the 1980 and 1988 Acts, local authorities had to satisfy conditions of not acting uncompetitively. In the history of local government, certainly since the war, it has been presumed that they will operate within the framework of the Wednesbury Rules, the legal judgment of 1948 which laid down that local authorities must take all proper factors into account in the best interests of their area. That was the fiduciary principle laid down in the Wednesbury Rules.
Since the 1980 and 1988 Acts, there have been three cases relating to compulsory competitive tendering which are relevant to this amendment. The Knowsley case has already been cited. There are also the Leicester and York cases.
Perhaps I may enlarge a little on the Knowsley case. Knowsley borough council challenged by way of judicial review the Secretary of State's direction under Section 14 of the 1988 Act that the authority had acted uncompetitively in awarding a refuse contract to its in-house DSO rather than to an apparently lower cost external contractor. I was glad to hear the Minister say earlier that the local authorities were not automatically required to award contracts to the lowest tenderer. The authority in question argued that, taking all factors into account, the in-house quote would turn out to be cheaper. The factors that it took into account were reapportionment of overheads, lease termination costs, contributions to former employees' pensions, CEC charges and the like.
In responding to the case with regard to whether any cost arising from awarding the contract to Sitaclean was a proper figure to be taken into account, Mr. Justice Popplewell commented:
"if it were open to me to lay down the proper approach on principle it would be that the local authority as employer are entitled to take into account the overall cost to the ratepayers as the result of the contract going to an outside contractor. The overall cost seems to me to be those costs which if proved properly flow directly from losing the contract. However, that is not my function—it is not to decide if the authority were unreasonable—for my part I do not think they were. If I were having to decide as a Judge in the Queen's Bench what costs should be taken into account I think it likely that I would have taken the same view as the local authority. But that is not my position. What I have to decide is whether the Secretary of State is unreasonable."
Ultimately, the Secretary of State was found to be not unreasonable.
That is my understanding of the legislation. The amendment seeks to clarify what happened in the Knowsley case. There appears to be a straight contradiction between the Wednesbury Rules, on the one hand, which lay down the fiduciary duty of the local authority to take into account all factors in order to protect the financial interests of its local taxpayers and, on the other hand, the Secretary of State's position, particularly with regard to his drive towards CCT and privatisation.
The amendment would prevent the Secretary of State from prescribing items of actual or potential expenditure that local authorities are prohibited from

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considering in evaluating tenders. The Wednesbury principles require that all relevant factors should be taken into account. The Secretary of State would not therefore be empowered to remove what Mr. Justice Popplewell would regard as a relevant factor. That seems to me sane, sensible, proper, in the tradition of our common law and in the best interests of local electors. I beg to move.
Baroness Blatch: I shall not explain again our reasons for seeking the regulation-making power in Clause 9, save to re-emphasise that we consider that it is needed to provide far greater certainty and clarity on matters in which local authority practice varies so widely.
As a result of this amendment and Amendment No. 98, such regulations would do little more than list those matters that could be taken into account and could not spell out the way in which such account could be taken. We have set out our proposals on the treatment of extraneous cost items in tender evaluation in our CCT consultation paper. We identified a number of items which we consider should not be taken into account when a local authority compares the costs submitted by its own workforce and by external tenderers, such as the cost of continuing overheads or central administration. There has been extensive discussion of those matters both before and since the issue of the consultation paper. We want to consider carefully the responses that we received to that paper.
Nonetheless, the regulations must address both types of extraneous cost items—those to be included and those to be excluded—if they are to provide the certainty and consistency for future CCT exercises, which is the prime purpose of the regulations. For the same reason, the regulations will have to do more than provide a list of items which are to be included in order for there to be a proper comparison of the costs and benefits of the tenders submitted. We propose that they should be calculated at constant prices and discounted at a real discount rate over a period that would be consistent across all authorities. We have proposed a period of 10 years. Again we shall consider the views expressed on those proposals but we shall finally resolve the approach to be followed. It is necessary that the regulations spell that out in order to provide a proper basis for all concerned with CCT exercises.
With that explanation, I hope that the noble Baroness will feel able to withdraw the amendment on the grounds that we are seeking for consistency and to eliminate uncertainty.
5 p.m.
Baroness Hamwee: My Lords, I support the amendment. The words in the Bill which precede "disregarded" are,
"matters which are to be taken into account".
I understand that those words mean simply what they say. Matters are to be taken into account, not to be obeyed strictly. It does not preclude one from considering outside factors.
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The Minister has spoken of certainty and clarity. However, other words that have been used seem to go beyond certainty and clarity into the area of such precise prescription as to make one more alarmed at the reference to items to be "disregarded".
I have a different point on Amendment No. 98. Following the comments made today by the noble and learned Lord, Lord Simon of Glaisdale, is it necessary to spell out "disregarded" in the detail and to the extent that occurs in the Bill at present? That may be another example of a few more words than are absolutely vital.
Baroness Blatch: Perhaps I may respond to the point about matters which are to be taken into account and link it with a point raised by the noble Baroness, Lady Hollis. She was fairly selective in her quotation from Lord Justice Popplewell. Lord Justice Parker and Lord Justice Leggatt took a contrary view. It was that local authorities were able to take account only of the bids and of no other costs. Our regulations do not go that far but allow for the Government to take a measured view of what should be taken into account and what should be disregarded. It is that aspect which can be challenged by local authorities themselves.
Baroness Carnegy of Lour: In proposing the amendment, the noble Baroness, Lady Hollis, as the main part of her argument quoted Lord Justice Popplewell. Has she taken account of comments in Scots law? Does the argument hold in Scotland? I am beginning to wonder to what extent the Bill has been considered with regard to Scotland. I am glad to see the noble Lord, Lord Carmichael, in his place. I am anxious that we legislate correctly for Scotland and that amendments should be considered in that light.
Lord Carmichael of Kelvingrove: Before the noble Baroness sits down, perhaps I may point out—I had thought that we were working from similar briefs—that Lord Prosser said much the same as Lord Justice Popplewell. Lord Prosser stated:
"If the placing of a contract with an outside contractor would lead to the local authority incurring major liabilities, I cannot regard taking notice of that fact, and giving weight in the decision making process, as within the category of actings covered by sub-section 9(4) (aaaa). A responsible regard for the truth does not seem to me to be something which can be said to restrict, distort or prevent competition, unless one has decided that competition is more important than both truth and the interests of citizens for whom the local authority are responsible".
I believe that that is good, strong, logical Scottish thinking.
Baroness Carnegy of Lour: I thank the noble Lord. I may have that brief; I am unaware of it. I apologise if I displayed any ignorance. I am glad to know that fact. We need to keep an eye on such matters as we proceed through the Bill.
Baroness Hollis of Heigham: In her concluding comments the Minister referred to a host of matters which we wish to explore in greater detail on Amendments Nos. 104 to 109. Those include price fixing cartels, on-going expenditure that authorities will incur, 10 years amortisation of savings and so on.

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Perhaps we may take up detailed arguments later. The core of the amendment relates to the basic issue of whether the local authority has the right to be regarded as acting reasonably when there are two conflicting principles—the fiduciary responsibility to its ratepayers or taxpayers under the Wednesbury Rules—as against the requirement of the Secretary of State, given the words on the face of the Bill and by regulation, as to what constitutes competitive and anti-competitive behaviour.
As I understand it, the outcome of the Knowsley case was that although the local authority was held to have acted reasonably, the Secretary of State was not held to have acted unreasonably. That is why the judicial review was not upheld. That leaves the conflict unresolved. Most people of good sense and good will would and should regard the Wednesbury principles as being the binding principles within which all other legislation should be subsumed.
On this side of the Chamber, we feel strongly on the matter because without it the ethical core of local government business is jeopardised. I mean that very seriously. Therefore I should like to test the opinion of the Committee.
5.6 p.m.
On Question, Whether the said amendment (No. 96) shall be agreed to?
Their Lordships divided: Contents, 82; Not-Contents, 139.

Division No. 2

CONTENTS

Addington, L.

Howie of Troon, L.

Beaumont of Whitley, L.

Hunt, L.

Birk, B.

Irvine of Lairg, L.

Blackstone, B.

Jacques, L.

Boston of Faversham, L.

Jay, L.

Bottomley, L.

Jeger, B.

Brain, L.

Jenkins of Putney, L.

Broadbridge, L.

John-Mackie, L.

Brooks of Tremorfa, L.

Lockwood, B.

Campbell of Eskan, L.

Longford, E.

Carmichael of Kelvingrove, L.

Lovell-Davis, L.

Castle of Blackburn, B.

Lytton, E.

Cledwyn of Penrhos, L.

Macaulay of Bragar, L.

Clinton-Davis, L.

McIntosh of Haringey, L.

Crook, L.

Mallalieu, B.

David, B.

Mar, C.

Dean of Beswick, L.

Mason of Barnsley, L.

Donaldson of Kingsbridge, L.

Morris of Castle Morris, L. [Teller.]

Dormand of Easington, L.

Falkender, B.

Murray of Epping Forest, L.

Falkland, V.

Nicol, B.

Gallacher, L. [Teller.]

Ogmore, L.

Galpern, L.

Parry, L.

Gladwyn, L.

Richard, L.

Glenamara, L.

Ritchie of Dundee, L.

Graham of Edmonton, L.

Robson of Kiddington, B.

Gregson, L.

Rochester, L.

Grey, E.

Russell, E.

Hampton, L.

Scanlon, L.

Hamwee, B.

Seear, B.

Hanworth, V.

Sefton of Garston, L.

Harris of Greenwich, L.

Stoddart of Swindon, L.

Hatch of Lusby, L.

Strabolgi, L.

Hilton of Eggardon, B.

Taylor of Blackburn, L.

Hollis of Heigham, B.

Taylor of Gryfe, L.

Holme of Cheltenham, L.

Thomson of Monifieth, L.

Hooson, L.

Tordoff, L.

Houghton of Sowerby, L.

Turner of Camden, B.

132

Underhill, L.

Wilson of Langside, L.

Wallace of Coslany, L.

Winchilsea and Nottingham, E.

White, B.

Young of Dartington, L.

Willis, L.

NOT-CONTENTS

Abinger, L.

Howe, E.

Aldington, L.

Ironside, L.

Allenby of Megiddo, V.

Jellicoe, E.

Alport, L.

Jenkin of Roding, L.

Arran, E.

Johnston of Rockport, L.

Astor, V.

Killearn, L.

Balfour, E.

Lauderdale, E.

Beaverbrook, L.

Long, V.

Belhaven and Stenton, L.

Mackay of Ardbrecknish, L.

Bellwin, L.

Mackay of Clashfern, L.

Beloff, L.

Macleod of Borve, B.

Bessborough, E.

Mancroft, L.

Blatch, B.

Manton, L.

Boardman, L.

Marsh, L.

Borthwick, L.

Merrivale, L.

Boyd-Carpenter, L.

Mersey, V.

Brigstocke, B.

Mills, V.

Brougham and Vaux, L.

Monk Bretton, L.

Butterworth, L.

Mottistone, L.

Caldecote, V.

Mountevans, L.

Campbell of Alloway, L.

Munster, E.

Carnegy of Lour, B.

Murton of Lindisfarne, L.

Carnock, L.

Nelson, E.

Carrington, L.

Norfolk, D.

Cavendish of Furness, L.

Norrie, L.

Charteris of Amisfield, L.

Oppenheim-Barnes, B.

Cochrane of Cults, L.

Orkney, E.

Cockfield, L.

Orr-Ewing, L.

Colnbrook, L.

Oxfuird, V.

Constantine of Stanmore, L.

Pender, L.

Cox, B.

Peyton of Yeovil, L.

Craigavon, V.

Platt of Writtle, B.

Cranbrook, E.

Porritt, L.

Cross, V.

Pym, L.

Davidson, V. [Teller.]

Rankeillour, L.

Denham, L.

Reay, L.

Denton of Wakefield, B.

Renton, L.

Dormer, L.

Romney, E.

Downshire, M.

St. Davids, V.

Eccles, V.

Seccombe, B.

Eden of Winton, L.

Selborne, E.

Elibank, L.

Shannon, E.

Elles, B.

Sharples, B.

Elliot of Harwood, B.

Shrewsbury, E.

Elliott of Morpeth, L.

Skelmersdale, L.

Elton, L.

Stodart of Leaston, L.

Faithfull, B.

Strange, B.

Fanshawe of Richmond, L.

Strathclyde, L.

Ferrers, E.

Strathcona and Mount Royal, L.

Flather, B.

Fortescue, E.

Strathmore and Kinghorne, E.

Fraser of Carmyllie, L.

Sudeley, L.

Fraser of Kilmorack, L.

Swansea, L.

Goold, L.

Swinfen, L.

Gray, L.

Terrington, L.

Gray of Contin, L.

Teviot, L.

Gridley, L.

Thomas of Gwydir, L.

Grimston of Westbury, L.

Thorneycroft, L.

Grimthorpe, L.

Trefgarne, L.

Hailsham of Saint Marylebone, L.

Trumpington, B.

Ullswater, V.

Hardinge of Penshurst, L.

Vaux of Harrowden, L.

Harmar-Nicholls, L.

Waddington, L.

Harmsworth, L.

Wade of Chorlton, L.

Harvington, L.

Westbury, L.

Henley, L.

Wharton, B.

Hesketh, L. [Teller.]

Whitelaw, V.

Hives, L.

Wise, L.

Holderness, L.

Wynford, L.

Hood, V.

Young, B.

Hooper, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.15 p.m.
[Amendments Nos. 97 to 99 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 100:
Page 10, line 1, leave out paragraphs (e) and (f).
The noble Lord said: I need not read the amendment, but in order to outline the full flavour of this part of the Bill I must read out with emphasis subsection (3) (e) and (f). I remind Members of the Committee that under this subsection the Secretary of State is authorised to make regulations as to competitive or anti-competitive activity. Paragraphs (a), (b), (c) and (d) of subsection (3) list matters which may be covered by the regulations. Paragraphs (e) and (f) appear on page 10 of the Bill. Paragraph (e) provides that the regulations may:
"make provision for the issue by the Secretary of State of guidance"—
Members should remember the word "guidance"—
"as to how conduct restricting, distorting or preventing competition is to be avoided in the doing of anything under or for the purposes of Part III of the 1980 Act or Part I of the 1988 Act; and".
Paragraph (f) provides that the regulations may:
"require the extent (if any) to which there has been a contravention of guidance issued by the Secretary of State under the regulations to be taken into account in any determination of whether or not a condition mentioned in subsection (2) above has been fulfilled".
The conditions in subsection (2) are referred to in the definition of "conduct" described in the regulations as conduct distorting competition or not distorting competition as the case may be. The implication of that provision is clear. Paragraph (e) states that the Secretary of State may issue guidance; paragraph (f) states that the guidance is, in effect, elevated to the status of being a regulation.
We spoke earlier and last night about Henry VIII legislation in which government show disrespect for primary legislation by allowing it to be altered by secondary legislation. I suggest to the Committee that in this provision we have some Henry VIII legislation—one might call it Edward VI legislation—in which disrespect is intended by government to secondary legislation. The Government are saying that guidance which is issued to local authorities becomes elevated to the status of secondary legislation.
We have been familiar with the use of the word "guidance" for many years. Generally speaking, guidance issued by the Secretary of State is taken seriously; those concerned are expected to have regard to it. However, when the Secretary of State issues regulations there is no question of the local authority or others concerned having regard to them; they must give effect to them. There is a clear distinction between guidance which must be taken into account and regulations which must be given effect to.
We are becoming reduced to government by circular. That has been going on for far too long and I suspect that it went on even under Labour Governments. It is occurring to a considerable extent in planning regulations in respect of which local authorities are considered to be at fault and could be challenged in the courts if they fail to implement planning circulars from the Department of the Environment. However, the provision now appears
134
plainly on the face of the Bill. Therefore, government by circular is no longer a creeping danger but is actually happening and being proposed for the first time. I suggest to the Committee that on that issue alone, regardless of any other factors relating to competitive or uncompetitive activity, paragraphs (e) and (f) of Clause 9(3) should not appear on the face of the Bill. I beg to move.
Baroness Blatch: This is a further attempt to limit the scope of the regulation-making power in the clause with the effect that uncertainties, which need to be resolved, would persist. It is customary for the Secretary of State to provide guidance to local authorities on a range of matters through circulars or similar documents. Most local authorities find them useful when finding their way through legislation.
On compulsory competitive tendering the Secretary of State has covered a range of related matters in circulars issued since the passage of the relevant legislation; for example, circular 19/88 of August 1988 and circular 1/91 of March 1991. We consider that it will be appropriate for the Secretary of State to be able to set out his views on CCT related issues in that way and to issue regulations under the clause in order to underline and clarify the relevance of such guidance as to the way in which local authorities carry out their competitive tendering exercises.
I stress that the guidance in question will not necessarily be that contained in circulars so far issued. Local authorities must have regard to guidance. When the Secretary of State makes a judgment about whether or not a local authority has behaved anti-competitively, it is important that he should consider the extent to which local authorities regarded or disregarded the guidance. As I have said a number of times, that judgment can be challenged in the courts on the ground of unreasonableness.
This amendment would seriously inhibit the Secretary of State and would preclude such clarification action which I believe is helpful to local authorities. I ask the noble Lord to withdraw the amendment.
Baroness Hamwee: I support the amendment. However, in doing so I suggest to the noble Lord, Lord McIntosh, that Elizabeth I may be a better monarch and one more likely to have done this sort of thing than poor Edward VI.
When I was a new member of the administration of my local authority I commented to a chief officer on how distasteful it was that there was so much legislation by circular. He sighed and said, "Every chairman coming into office says that but every government find they must do it." There may be some truth in that but I prefer to remain more idealistic and set my sights higher. We should not slide down the road of legislation by some other type of instrument.
If this suggestion is only guidance, why is it referred to in legislation? Is it not possible for the Secretary of State to issue guidance of which local authorities can take account and can regard as helpful? The words may not say so, but is not the sense of this suggestion far more akin to regulation than a mere helpful back page to help to guide one through the difficulties of the

135
legislation—I use the word broadly—which will apply? Other Members of the Committee are far more capable than I to comment on that. However, it occurs to me that if guidance is given the status which it is accorded in these paragraphs, will not the courts be rather more reluctant to regard the Secretary of State as being unreasonable than they would be if they were not given such status?
Lord Stoddart of Swindon: My noble friend has raised an extremely important issue. Increasingly weare having government and decision by edict rather than decision after due and proper discussion. For a long time I have been under the impression that the relationship is not between government and local authority but between Parliament and local authority. In fact, local authorities derive: their existence and power from Parliament and not from Secretaries of State. However, increasingly power is being taken away from Parliament to regulate local authorities. They are being regulated in ways of which Parliament has no concept because Parliament and Members of Parliament, unless they are extremely closely tied up with local authorities, hardly ever see the regulations which are being issued in their hundreds by Ministers. Therefore, my noble friend has raised an extremely important and interesting point which should be taken seriously.
We now move from regulations to guidance. I always believed that guidance was to guide and not to be enforced. Its purpose is to give advice and to help people. It is not to tell people what they must do but to guide them along a certain path. Now, as my noble friend pointed out, guidance says, "This is the guidance but if you will not be guided, then we shall make it compulsory". That seems nonsensical. I should be interested to hear what the Minister says. The point is reasonable and I am grateful to my noble friend for raising it.
Baroness Blatch: It may be helpful if I draw a distinction between guidance which are guidelines to help and guidance which has a different status. That is known by all parties in both Houses. In coming to their views about tendering procedure and so on, local authorities must have regard to guidance and be seen to have regard to it. That is rather different from guidelines which I believe were being described by the noble Lord.
Lord Simon of Glaisdale: I respectfully agree with the noble Lord, Lord Stoddart, that the noble Lord, Lord McIntosh, has raised an extremely important point; namely, how far guidance and, by extension, circulars are to have legislative or even the faintest juristic force.
Yesterday evening, in her able defence of what proved to be indefensible on Amendment No. 37, the noble Baroness defended the Henry VIII provision on the grounds that it was subject to the affirmative resolution of Parliament; in other words, there was some parliamentary control. However, as regards guidance, the noble Baroness said that local authorities must have regard to it. However, the crucial point is that there is absolutely no
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parliamentary control over letters of guidance or circulars. They do not come before Parliament even for a negative resolution.
We are bound to ask how far we are going along the road of bureaucracy. So far as I am capable of judging the matter, I am in favour of competitive tendering. I have every sympathy for those who are administering the policy when they find it being avoided and they want to plug the holes by this and that. However, that is not a sufficient excuse for intervention and, indeed, subversion of our normal legislative processes.
Parliamentary democracy, like any human institution, is not perfect. But it is well tried. There is no reason why we should give up all the safeguards and all the value that it has shown over the centuries and submit to government by future letters of guidance. At this stage we do not know what the guidance will be; it is insufficiently defined. I therefore suggest to the noble Baroness, who has thus far conducted the Bill to general admiration, that she consider how far we are travelling down the road of bureaucratic rather than democratic government.
5.30 p.m.
The Earl of Erroll: Perhaps I may add something to the debate. I am interested in the redefinition of "guidance". I had not thought about it before, but as a small businessman and layman I often receive notes of guidance on this, that or the other. They always contain a disclaimer which states, "You cannot abide by these notes. We may have got them wrong and you must read the regulations to see the true position". They are issued by the VAT man, local government and all sorts of people. They always contain a disclaimer to the effect that the guidance is not accurate but the regulations are. I should like to know why "guidance" is now definitive. Is it definitive or are the regulations definitive? As a layman I do not understand.
Baroness Blatch: It is the law that is definitive. Guidance is something that is issued—in this case to local authorities—to clearly set out a number of factors that need to be taken into account or had regard to in coming to a decision in regard to specific subject matter—in this case compulsory competitive tendering.
I am always reluctant to take issue with the noble and learned Lord, Lord Simon. I know that his experience in these matters is considerable. However, it is normal and common practice for all governments, not only this Government, to refrain from cluttering up legislation with a plethora of detail, certainly in cases where the detail may change over a period of time. For example, it is easier to change guidance than to change primary legislation.
It is also true that guidance is consulted upon. Draft guidance has been drawn up for the Local Government Commission. All sorts of bodies will have an input into the final version of that guidance. There is therefore a fairly democratic process in being. At the end of the day the intention is for guidelines to be helpful to public authorities and guide them through the minefield of legislation. Guidance is something which the government of the day—it applies to all governments—believe must be taken into

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account when decisions are being made in regard to specific issues. Those clearly set out factors that have been arrived at on the basis of consultation.
The Countess of Mar: Over and over again we seem to be having trouble with language. I wish Bills could be written in plain English so that we could all understand them. Perhaps it would be better to say "instruction" rather than "guidance" on the face of the Bill. "Instruction" is obviously what is meant.
Baroness Blatch: That is a wrong assumption. It is not an instruction. If it were an instruction people would not only need to have regard to it, but also to positively carry out what it says. Guidance is a set of factors which an authority needs seriously to consider in the process of making up its mind about a specific issue. It is guidance in that sense. It is not an instruction. The only instruction element is that the authority must have regard to those factors in making up its mind. The specific factors are not instructions.
Lord Stoddart of Swindon: I am sorry to pursue the matter. In my book guidance is guidance. I reckon the Oxford Dictionary would give "guidance" the same status as I give it; that is, that it is to guide. It is not to instruct; it is to guide.
I am not averse to that. However, in paragraph (f) we see the words, "contravention of guidance". How can one contravene guidance? One can perhaps contravene instructions. That I accept. But how can one contravene guidance? The Minister said that if we disregard the guidance we will contravene it. Therefore it is not guidance. It is an instruction, as the noble Countess pointed out.
I served on local government and received guidance from governments on many occasions. Often I told the government to go to hell. For example, in 1968 when the local authority of which I was leader was lending some £2.5 million a year to people to buy their own homes, the Labour Government said, "Our guidance to you is that you will only lend £300,000 a year". I wrote back and said, "Thank you for your guidance, but I do not agree. We are receiving a lot of money in repayment of capital and I am entitled to re-lend that to people who want housing". "No", said the Government, "you cannot do that". I said, "Yes, I can. Try and stop me". And they could not. There was no law that could stop me and they could not issue an instruction. Therefore they had issued guidance which I chose not to follow.
That is guidance and the proper status of guidance. The Government are now trying to increase its status to one of instruction. If they want to instruct local authorities let them say so and Parliament will know exactly what they are doing. But please do not let them try to mislead us by suggesting that all they want is to guide local authorities when in actual fact they want to instruct them and to impose penalties if those instructions are not followed.
Lord Howie of Troon: I do not want to stop my noble friend Lord Stoddart in any way; I wish to support him. I agree with him and believe that he is right.
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It may be in the recent recollection of the Chamber that in explaining guidance to us the Minister drew attention to guidelines. She explained that guidelines were helpful and advisory. If I remember rightly, the noble Baroness went on to say that guidance was rather more severe. "Guidance" seems to me, from her own definition, to be not unlike "instruction", as we heard a moment ago, and not unlike "regulation", as my noble friend Lord McIntosh described it.
A certain amount of confusion exists on the Government Front Bench. Perhaps the Minister will undertake to take the amendment away and consider the differences, in so far as they exist, between guidelines, guidance, instruction and regulation. They could possibly return with a revised paragraph to be inserted in the Bill at a later stage.
Lord McIntosh of Haringey: I am afraid the Minister has been as badly advised on this amendment as she was on Amendment No. 37 last night. Of course we all know what guidance is and what its force is. It comes in circulars and it is the responsibility of local authorities to have regard to it. If the matter goes to the courts then the local authority, in defending its action, must show that it had regard to the guidance and acted reasonably.
That is different from what happens in regulations, as was made clear by a number of Members of your Lordships' Committee. Paragraph (f) is different in what it says from paragraph (e). If it were simply a matter of having the authority to give guidance, paragraph (e) would not be necessary on the face of the Bill. There is no prohibition anywhere on the Secretary of State on giving guidance. Some people may regret it, but it has been established for a very long time that it is a fact of central and local government relationships. Paragraph (e) on its own merits does not need to be on the face of the Bill because guidance can be issued without it. That paragraph is in the Bill for a very specific purpose; namely, to support paragraph (f) which says, as my noble friend Lord Stoddart quite rightly said, that the Secretary of State can treat contravention of guidance as being in effect disobedience to an instruction. The paragraph states that the regulation can require:
"the extent (if any) to which there has been a contravention of guidance issued by the Secretary of State under the regulations to be taken into account in any determination of whether or not a condition … has been fulfilled".
That paragraph is clearly elevating guidance to the status of instruction or regulation which has to be put into effect but not, as with guidance, to have regard to it. Under this clause there is no shortage of powers to the Secretary of State as regards regulations.
Paragraph (a) states that the regulations may,
"prescribe the matters which are to be taken into account, or disregarded, in the course of any evaluation … who should undertake or carry out particular work".
Paragraph (b) states that the regulations may,
"prescribe the manner in which, or extent to which, any matter described in the regulations is to be taken into account or disregarded",
and so forth. There is no shortage of powers. In paragraphs (e) and (f) the Government are deliberately seeking to put in unnecessary provision for guidance and then to elevate it to the status of regulation. That is unacceptable. It is a constitutional

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principle. There is disrespect for parliamentary control, such as it is, of secondary legislation. The Committee should reject that. I gladly give way to the Minister.
Baroness Blatch: Before the noble Lord presses the amendment, perhaps I may once more give a reason for this measure being on the face of the Bill. It is very important for local authorities to be convinced that the Secretary of State is not making a purely subjective judgment about their behaviour. By putting the matter on the face of the Bill in the manner in which it is done here, a way is set out by which the Secretary of State will arrive at a judgment. In other words, by issuing guidance which is clearly set out in the Bill and in consideration of anti-competitive behaviour, he will make a judgment about the degree to which that guidance was either regarded or disregarded. The breach will be in disregarding the guidance. Because the provision is on the face of the Bill local authorities are left in no doubt whatever that there is no subjectivity in the Secretary of State's judgment, but that it is about as objective as it can be.
Lord McIntosh of Haringey: I thought that the Minister was going to produce examples where legislation had given power to the Secretary of State to give guidance. Clearly, she cannot do that. The answer is that the Secretary of State has power to give guidance without requiring legislation to do so. I am sorry that this is becoming very boring, but the status of guidance is very clear. Local authorities have to have regard to it and if they are challenged they have to show that they have had regard to it and that they have acted reasonably. That is what guidance means.
Paragraph (e) would not be on the face of the Bill unless paragraph (f) was elevating guidance to the status of a regulation. The word "contravention" is totally inappropriate to guidance. That is the fundamental point which the Minister fails totally to answer. On that basis I ask for the opinion of the Committee.
5.44 p.m.
On Question, Whether the said amendment (No. 100) shall be agreed to?
Their Lordships divided: Contents, 83; Not-Contents, 120.

Division No. 3

CONTENTS

Airedale, L.

Gainsborough, E.

Beaumont of Whitley, L.

Gallacher, L. [Teller.]

Birk, B.

Galpern, L.

Blackstone, B.

Gladwyn, L.

Boston of Faversham, L.

Glenamara, L.

Bottomley, L.

Graham of Edmonton, L. [Teller.]

Brooks of Tremorfa, L.

Campbell of Eskan, L.

Grimond, L.

Carmichael of Kelvingrove, L.

Hampton, L.

Carter, L.

Hamwee, B.

Castle of Blackburn, B.

Hanworth, V.

Cledwyn of Penrhos, L.

Harris of Greenwich, L.

Clinton-Davis, L.

Hatch of Lusby, L.

David, B.

Hilton of Eggardon, B.

Dean of Beswick, L.

Hollis of Heigham, B.

Dormand of Easington, L.

Hooson, L.

Erroll, E.

Houghton of Sowerby, L.

Falkender, B.

Howie of Troon, L.

Falkland, V.

Hunt, L.

140

Irvine of Lairg, L.

Ritchie of Dundee, L.

Jay, L.

Robson of Kiddington, B.

Jeger, B.

Russell, E.

Jenkins of Putney, L.

Scanlon, L.

John-Mackie, L.

Seear, B.

Judd, L.

Sefton of Garston, L.

Kennet, L.

Shaughnessy, L.

Lockwood, B.

Simon of Glaisdale, L.

Longford, E.

Stoddart of Swindon, L.

Lovell-Davis, L.

Strabolgi, L.

Lytton, E.

Taylor of Blackburn, L.

Macaulay of Bragar, L.

Taylor of Gryfe, L.

McIntosh of Haringey, L.

Thomson of Monifieth, L.

Mallalieu, B.

Tordoff, L.

Mar, C.

Turner of Camden, B.

Mason of Barnsley, L.

Underhill, L.

Molloy, L.

Wallace of Coslany, L.

Morris of Castle Morris, L.

Whaddon, L.

Nicol, B.

White, B.

Ogmore, L.

Willis, L.

Parry, L.

Winchilsea and Nottingham, E.

Redesdale, L.

Winstanley, L.

Richard, L.

Young of Dartington, L.

NOT-CONTENTS

Abinger, L.

Hesketh, L. [Teller.]

Aldington, L.

Hives, L.

Allenby of Megiddo, V.

Holderness, L.

Arran, E.

Hood, V.

Astor, V.

Hooper, B.

Auckland, L.

Howe, E.

Balfour, E.

Huntly, M.

Beaverbrook, L.

Ironside, L.

Belhaven and Stenton, L.

Jenkin of Roding, L.

Beloff, L.

Johnston of Rockport, L.

Blatch, B.

Killearn, L.

Boardman, L.

Lauderdale, E.

Borthwick, L.

Long, V.

Boyd-Carpenter, L.

Mackay of Ardbrecknish, L.

Bridgeman, V.

Mackay of Clashfern, L.

Brigstocke, B.

Macleod of Borve, B.

Brougham and Vaux, L.

Mancroft, L.

Butterworth, L.

Merrivale, L.

Campbell of Alloway, L.

Mersey, V.

Carnegy of Lour, B.

Mills, V.

Carnock, L.

Milverton, L.

Cavendish of Furness, L.

Monk Bretton, L.

Clanwilliam, E.

Mottistone, L.

Cochrane of Cults, L.

Mountevans, L.

Colnbrook, L.

Munster, E.

Colwyn, L.

Murton of Lindisfarne, L.

Constantine of Stanmore, L.

Napier and Ettrick, L.

Cox, B.

Nelson, E.

Cross, V.

Norrie, L.

Davidson, V. [Teller.]

Oppenheim-Barnes, B.

Denton of Wakefield, B.

Orkney, E.

Dormer, L.

Pender, L.

Downshire, M.

Peyton of Yeovil, L.

Dundonald, E.

Pym, L.

Eccles of Moulton, B.

Rankeillour, L.

Eden of Winton, L.

Reay, L.

Elibank, L.

Renfrew of Kaimsthorn, L.

Elliot of Harwood, B.

Renton, L.

Elliott of Morpeth, L.

Renwick, L.

Elton, L.

St. Davids, V.

Faithfull, B.

Seccombe, B.

Ferrers, E.

Selborne, E.

Flather, B.

Sharples, B.

Fraser of Carmyllie, L.

Shrewsbury, E.

Fraser of Kilmorack, L.

Skelmersdale, L.

Gardner of Parkes, B.

Stodart of Leaston, L.

Geddes, L.

Strange, B.

Gray, L.

Strathclyde, L.

Gridley, L.

Strathcona and Mount Royal, L.

Grimston of Westbury, L.

Hardinge of Penshurst, L.

Strathmore and Kinghorne, E.

Harmar-Nicholls, L.

Sudeley, L.

Harmsworth, L.

Swinfen, L.

Harvington, L.

Teviot, L.

Henley, L.

Teynham, L.

141

Thomas of Gwydir, L.

Wade of Chorlton, L.

Trumpington, B.

Wharton, B.

Ullswater, V.

Whitelaw, V.

Vaux of Harrowden, L.

Wynford, L.

Waddington, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.52 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 101:
Page 10, line 10, at end insert:
("( ) No regulations made under this section shall interfere with the manner in which a local authority chooses to—

(a) organise its services in response to local conditions;

(b) contract with a willing tenderer;

(c) carry out its role as a buyer of services.

( ) In particular, regulations will not be issued in connection with:

(a) contract documentation and specifications;

(b) the size and scope of contracts;

(c) the use of local authority assets.").

The noble Lord said: In moving Amendment No. 101, I shall speak also to Amendment No. 103. These amendments are concerned with other aspects of the issue which has already been raised by my noble friend Lady Hollis when she moved her amendments about the Wednesbury principle. Amendment No. 101 seeks to make sure that no regulations are made under this clause which interfere with the manner in which a local authority chooses to organise its services in response to local conditions, to contract with a willing tenderer, or to carry out its role as a buyer of services.
In documentation on competitive tendering the Secretary of State and other Ministers have always talked about the necessity of defining carefully the nature and standards of the services which local I authorities wish to see provided. It has always been said that competitive tendering is designed to increase the economy of local authority services but to make it possible for representatives of the community to decide what level of service is needed.
If they are going to do that, surely they must be able to act as proper purchasers of services from either their own staff or from the private sector. What cannot happen, or should not happen, is that regulations limit their ability to act effectively as buyers of services. These amendments are not particularly far-reaching; they are not saying anything which ought not to be well understood. However, unfortunately the regulation-making procedure in Clause 9 is so widely drawn that it is possible for the regulations to put very severe restrictions on the local authority's ability to act effectively as a buyer of services.
Let us take the example of organising services in response to local conditions. Services have to be organised to be controlled from a department; therefore they are dependent on the departmental structure of the local authority. Geographical limits have to be set to a contract for services. In order to fit in with the other services of a local authority, there has to be some sort of specification of the method to be used. The willing tenderer procedure is fairly well understood and is well understood in purchasing in the private sector. The specific examples which we go
142
on to give in Amendment No. 101 make that clear. The contract documentation and specification have to be adapted to the local authority's needs and procedures. It ought not to be—as it so often is, for example, in France—laid down on a completely prescriptive and unvarying national level.
The Minister made a plea earlier on for flexibility and sensitivity. I throw that plea back at her and say surely local authorities will work most effectively if they are allowed to be flexible. Again, the size and the scope of contracts is something which cannot be laid down centrally; it cannot be laid down by regulation by the Secretary of State. It has to reflect the needs of the community and the needs of the local authority and the citizens.
The use of local authority assets—the way in which a tender is framed—can have a very great effect on whether the service will be carried out efficiently. To take the obvious example of street cleaning, in the local authority service that is usually combined with the need for snow clearing on occasion. The street cleaning teams use assets of the local authority—in other words, snow-clearing equipment—when they are called upon to do snow clearing. If street cleaning is privatised—and that may well be the right thing to do; I am not arguing against the principle of private tendering at the moment—then part of the contract may have to specify that the company will be responsible, using local authority assets—because there is no point in buying them themselves—for the snow clearing. These seem such common sense provisions that it is difficult to see why amendments of this kind could be thought to be a threat.
I turn to Amendment No. 103. I do not think the Government will find anything to object to in the principle of these amendments. The amendment says that regulations shall not be made which prejudice the ability of an authority to set standards of service; to establish criteria to assess the ability of a tenderer to carry out the work—that is common business practice I should have thought—and fully investigate, to its satisfaction, the ability of a tenderer to carry out the work. The point is that so much of the very elaborate procedures which could be set out in regulation would actually damage the ability of a local authority to carry out the tendering procedure properly.
Let me return to the issue to which my noble friend Lord Howie referred, which is the issue of a double envelope tendering. I think everybody knows that the double envelope tendering procedure—where one first opens an envelope on quality and then assesses the ability of tenderers to achieve the quality without knowing their price—has been brought into disrepute by the Broadcasting Act. It was so clear that even the former Prime Minister, Mrs. Thatcher, was moved within 24 hours of the result of that fiasco to write and apologise and to take personal responsibility for the fact that it had been carried out. It does not actually work. There are better ways of doing it. I personally support the view of my noble friend Lord Howie. Certainly for services like architecture the best thing is to choose the person with whom one wants to deal and then negotiate the money with the people best qualified to do the work.
There are other variations. It is possible to look at the quality and the price together, and that is what the Government do in their tendering procedures. I often receive an invitation to tender for government services and it is made very clear in the tender document that the Government reserve the right not to take the lowest tender, to take any part of any tender that they choose, and to reject any part of any tender that they choose. In other words, they reserve the right to take a higher bid or to negotiate a bid. The Government assume that right for themselves but deny it to local authorities. The implication behind all of this, despite the sweet words about flexibility, is that the flexibility is entirely to be given to the Secretary of State and no flexibility is to be given to local authorities. That way lie inefficiency and inequity; that way the whole principle of competitive tendering can be negated. I beg to move.
6 p.m.
Baroness Blatch: This amendment and neighbouring amendments use the powers in the 1988 Act to wreck the level playing field, the very thing that we are trying to achieve by the Bill, and certainly they override anti-competitive behaviour. I do not believe that any of that is in the public interest. The noble Lord starts from a base of not liking competitive tendering and certainly not liking compulsory competitive tendering. That shows in many of the amendments.
In 1988 Parliament approved the Local Government Act 1988, with its requirement in Part I that local authorities should carry out competitive tendering for a range of services specified in the Act. The 1988 Act required local authorities to avoid anti-competitive behaviour, and gave the Secretary of State sanction powers which he could use if he considered that authorities had acted anti-competitively. Many authorities have complied with both the letter and the spirit of the 1988 Act in putting work out to tender during the past three years. But, sadly, too many have failed to do so.
In our view it would be greatly to the benefit of all involved with the CCT process if a clear and consistent basis for tendering exercises could be established in advance, so that the need for later intervention by the Secretary of State would be reduced, if not removed altogether. That is why we have placed this clause before Parliament, in order to enable us to clear away the uncertainties over tendering practices. We have set out our proposals for regulations to be made under this clause in our CCT consultation paper, published on 5th November.
Amendment No. 101 would provide that regulations could not cut across what we might call the "client" activities of local authorities, and in particular could not deal with contract documentation, the packaging of contracts, and the use of local authority assets. Of course local authorities must be able to act as effective clients. But they must also meet their "client needs" in a way which is not anti-competitive. As we have explained in paragraphs 1.26 to 1.29 of our CCT consultation paper, the decisions which they take on the matters identified in this amendment may
144
indeed inhibit competition. It cannot serve the I fundamental purpose of Part I of the 1988 Act if regulations to be used to define anti-competitive behaviour are unable to tackle these issues.
The subject matter of Amendment No. 103 is close to that of Amendment No. 101. I would say again that the Government are in no doubt about the importance of local authorities acting as effective and responsible clients in the organisation of services to their local communities. CCT has provided local authorities with the opportunity and the stimulus to get to grips with the proper organisation of these services, and we have seen a widespread improvement in the management of services subject to the CCT legislation. Of course, local authorities need to have confidence that in appointing a contractor they are placing the provision of a service in reliable hands. We would not wish to make regulations depriving authorities of such confidence, but we consider that there must be reasonable limits to the demands for information and for performance guarantees which authorities may make on tenderers. This amendment would give free rein to the most exorbitant demands of local authorities.
I repeat that we see the use of the regulation-making power in Clause 9 as being consistent with the objectives of the 1988 Act, and as necessary to tackle inconsistencies and uncertainties which have caused problems for local authorities and private contractors alike. The amendments would perpetuate those problems. I hope that, in the light of what I have said, the noble Lord will not press the amendment.
Baroness Hamwee: I wish to speak in particular to Amendment No. 103. I had hoped that the Minister might feel that the provisions of Amendment No. 103 were rather different from those of Amendment No. 101. I take her point that the exorbitant demands of disreputable and untrustworthy local authorities, if there are such authorities, should not be given free rein.
Lord McIntosh of Haringey: Which ones?
Baroness Hamwee: There may be some. On the other hand, it is important that we should state clearly that those which, as the Minister has said, wish to act as responsible clients should be able to do just that. The right to set standards of service, to assess the ability of a tenderer and to investigate to its satisfaction the ability of a tenderer to carry out the work is not in the slightest way overambitious, exorbitant or extravagant. I do not know whether the noble Lord intends to divide the Committee on the amendment. If he does not, perhaps the Minister will take that thought with her in order that the sentiment expressed during the debate may be incorporated somewhere so that local authorities may feel that they are regarded by government as responsible when they are trying to act responsibly.
Lord Howie of Troon: I wish to support my noble friend Lord McIntosh in this amendment. Before doing so I should like to touch on a point in passing. From time to time in her remarks the Minister refers to the various successes which CCT has already

145
produced in various local government services. No one on this side of the Committee has challenged her on those remarks. I do not intend to challenge her in any depth but I wish to put it on record that the quality of service in the collection of dustbins in the London Borough of Barnet is no better now than it was in the old days when it was done in the old way. I do not wish to pursue that point very far but I notice that the noble Baroness uses these previous alleged successes in order to throw light on successes which she expects to arrive in the future.
Lord McIntosh of Haringey: Before my noble friend proceeds with his support for me, perhaps he will allow me to defend myself against that very gentle rebuke. I did not go into the history of the successes or otherwise of existing compulsory competitive tendering because the amendment last night has changed the rules. As the Bill now stands, local authorities will have to have regard to quality as well as price for the existing services which have already been privatised. I thought that that was a sufficient achievement for me to spare the Committee from a recital of some of the more awful instances of privatised services in the past.
Lord Howie of Troon: I thank my noble friend for that intervention. I would be slowed up if I were to follow him too far. My remarks were not intended as a rebuke. I hoped that I might bring the slightest blush of shame to the Minister's cheeks and then hear no more of this in the course of the remaining debates.
This part of the Bill seems to relate to local authorities in two ways. There is the local authority as a client and then there is the local authority as the in-house consultant, so to speak. It might be involved in some arrangement whereby the in-house consultant was in competition with an external consultant—architects or engineers—and the client would deal with this matter in some manner. The Bill is intended to ensure that not only the in-house consultant behaves in a competitive way but so too does the authority as a client. That is how I see the Bill. I may turn out to be wrong.
I should like to say something about the nature of tendering. In my early career, when I used to function as a civil engineer, I had to deal with the consideration of tenders, and so on. There was almost an unwritten rule, if I may put it that way, that we never took the lowest tender unless there was a specific instruction which stated that we were obliged to do so. Indeed, we would only take the lowest tender with the greatest reluctance, for the simple reason that the lowest tender was usually the worst one that could possibly be obtained. Seldom in the construction world is the lowest tender the one which is really wanted. The best tender is the one required. As I said earlier, the tender required is the one which gives an immediate price and the best whole-life cost.
Therefore, when one talks about acting in a non-competitive way, one is obliged to take into account a complex arrangement of characteristics in the tender of which the price—or, in this case, the fee
146
—is only one. The various elements of professionalism, expertise, and so on, are other characteristics. I believe that my noble friend has put his finger on a weakness in this part of the Bill and that he ought to be supported.
Lord McIntosh of Haringey: I am grateful to my noble friend for that further expression of support. I also accept the fact that what I described as "a courteous rebuke" was not in fact intended to be a rebuke. I believe that the amendments before the Committee should be looked at in the context of Clause 9.
Clause 9 is concerned with the definition of the words "competitive" and "anti-competitive". All of these regulations are to that effect. It is very clear from the way that the Government are resisting even the most reasonable and moderate amendments that they seek to put the definition of those words on a pedestal. That is to say, they want it to be more important than any other single consideration in the letting of tenders. Despite last night's decision, they think that it is more important than quality and that it could even be more important than price. They certainly do not take into consideration the wider responsibilities of local authorities; for example, their fiduciary duties, their duty to achieve the best value for money over the longer term as well as in the shortest term and their duty to see to it (as future amendments will make clear) that the tendering process is free from the operation of cartels. All of those considerations are brushed to one side. They are determined to see to it that compulsory competitive tendering is pushed forward regardless of the consequences.
The Minister accused me earlier of being opposed to competitive tendering; that is not true. However, I am certainly opposed to the indiscriminate use of compulsory competitive tendering powers regardless of local circumstances, regardless of local judgment and regardless of the needs of local people. I fear that the Government have been peculiarly intransigent throughout the passage of the Bill, despite the fact that our amendments have not been recking amendments; indeed, like this one, they have generally been helpful.
I am sorry that the Government's response has been of this kind. I do not think that it is appropriate to divide the Committee at this stage. However, these matters in general are ones to which we shall certainly return on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 102 and 103 not moved.]
6.15 p.m.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 104:
Page 10, line 10, at end insert:
("(3A) By regulation under this section the Secretary of State shall prescribe that the award of a contract to an external tenderer when the work was previously undertaken by direct labour shall be considered to be subject to the Transfer of Undertakings Regulations (Protection of Employment) 1981.").
The noble Baroness said: This amendment concerns the Transfer of Undertakings Regulations

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(Protection of Employment) 1981. These were enacted by the British Government in 1981 following an EC directive. The purpose of the regulations is to ensure that when a company changes ownership—that is, when a transfer of ownership between companies takes place—the company continues, but in different hands, to ensure that the rights of employees which are based on continuity of employment (redundancy rights, unfair dismissal, maternity pay, and so on) are retained by the employee and taken with him or her into the new company.
Clearly, the latter is a matter of considerable significance to the employee. It also matters, when considering the issues which we discussed earlier today, to the local authority. I say that because it transfers responsibility for items such as redundancy payments to the new organisation. It is also important to the customer—that is, the local taxpayer—because it has the effect of ensuring that its experienced and skilled staff are more likely to remain in post when a company ownership is transferred.
Therefore, given that we have an EC directive with such virtuous consequences, why should this amendment be necessary? I suggest to Members of the Committee that the issue is not whether employees do or do not transfer their rights, but whether the TUPE regulations apply as such to local government as they clearly do to commercial organisations. Does the EC rule out local government from the transfer of undertakings? On the contrary, European law states that they apply to any organisations "emanating from the state". I suggest that DSOs are a clear example of such organisations. Yet, despite the spirit and the pace of the EC directive, the British Government have narrowed the scope so that the TUPE regulations apply to activities of a commercial nature only and therefore do not apply to the transfer of DSO undertakings. We believe that that is a false reading of the regulations. Indeed, it is being challenged in the courts at present on the grounds that DSOs are commercial organisations which are required, for example, to return 5 per cent. on their operations.
Earlier this afternoon the Minister made much of the point that whether contracts go outside into private competitive hands or remain in-house with DSOs, the latter are operating in a commercial and competitive environment and are expected to act accordingly. That was the Minister's own gloss and one which I would be happy to accept in those circumstances.
Therefore, does the Minister believe that the Transfer of Undertakings Regulations (Protection of Employment) 1981 apply to services which are currently subject to CCT, or which will be following the enactment of the Bill—pace Clause 8? If she does not believe that they do, is she saying that DSOs are not operating in a competitive and commercial climate? But, if they are operating in such a climate, why will she not accept that the TUPE regulations apply to local government? Finally, why will she not align British Government law with that of the EC, given the fact that when there is a clash between the two the latter takes precedence? I beg to move.
Earl Howe: As the noble Baroness said, the effect of this amendment would be to apply the Transfer of Undertakings (Protection of Employment) Regulations 1981 to all transfers of work from a local authority direct service organisation to an external contractor.
The 1981 regulations are designed to protect employees when the commercial undertaking they work for is transferred to a new employer. They do not, and should not, cover the circumstances envisaged here. In these circumstances there is no transfer, because the local authority retains responsibility for the work, and no commercial undertaking.
Let us be quite clear about what this amendment would do. It would deny local authorities and their chargepayers the benefits of competition. At present, when an in-house team fails to win the right to continue to do the work for the local authority it may be redeployed on other work, or, in some cases, its members may have to be made redundant. In the latter case, they would receive appropriate compensation from the local authority and may be given the opportunity to work for the incoming contractor.
However, if this amendment was accepted, the incoming contractor could be obliged to take on all the in-house team on their local authority pay and conditions. Contractors would be severely restricted in their ability to restructure their workforces, to devise new performance-related arrangements or to introduce innovative ways of doing the work. In short, they might not be able to increase efficiency to the extent that local taxpayers have a right to expect. I appreciate the anxiety of the staff about the changes they may face, but that is not sufficient reason to deny charge payers efficiency gains by extending the scope of the regulations to those wholly inappropriate circumstances.
Members of the Committee opposite earlier expressed enthusiasm for the level playing field, but it should be clear that the amendment wrecks that playing field and the entire basis of competitive tendering. I hope that the noble Baroness will think better of it and withdraw the amendment.
Baroness Hollis of Heigham: The Minister said that the amendment would deny to local authorities the benefit of competition. I do not accept that. This is a point to which we shall return. When it suits them Ministers are conflating the interests of the local authority as contractor—the DSO—and the interests of the local authority as fiduciary trust holder for the wider public interest. We saw that confusion earlier today. We are seeing it again.
The Minister argued that it is not reasonable in terms of competitiveness—the local authority would not enjoy the benefits of competition—if the rights presently enjoyed by employees were transferred with them when a DSO contract went outside. Because those costs are not transferred to the private, incoming contractor, they continue to be carried by the local authority in its fiduciary role, although not necessarily by the DSO as a trading organisation. That may produce a level playing field between two potential contractors, but it cuts across the rights employees would enjoy in the private sector, were the situation to

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arise, and the rights of local taxpayers to enjoy the protection from the local authority to which they are entitled, as fiduciary trust holder on their behalf, trying to establish the best value for the local authority.
The Minister says that that denies to local authorities the benefit of competition. On the contrary, he is putting the outside contractor into a privileged position while ensuring that the in-house local authority team, or the local authority on behalf of its taxpayers, has to continue to bear costs properly borne by the private sector thus favouring the private sector in the competitive field. That is the difference between us. I am sorry that the Minister fails to distinguish between that conflict of interest—on the one hand as contractor, and, on the other hand, as client. However given the lateness of the hour I do not intend to press the amendment to a Division. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 105:
Page 10, line 10, at end insert:
("(3A) No regulation made under this section shall require a defined authority to assume any notional time period over which any annual savings from any contract award might accrue.").
The noble Baroness said: The amendment provides that,
"No regulation made under this section shall require a defined authority to assume any notional time period over which any annual savings from any contract award might accrue".
The background to the amendment is the consultation paper Competing for Quality which proposes that when evaluating tenders local authorities would be required, through regulations made under Clause 9, to assume that any possible savings from contracting-out the work would continue for 10 years. There is little or no evidence to support that proposal.
Contracts, as laid down by the Secretary of State, often run for four to five years only. It would be folly, and in contradiction of its fiduciary duty, for a local authority to assume notional savings following a contract when the notional savings are assumed to run for twice the time the contract is to run. That is perverse.
If the service is contracted out and, as a result, council operations wind up—a point to which we shall return on later amendments—there is likely to be an increase in prices when the contract is subsequently let for the second time. The result of always having an in-house bid is that it prevents the growth of cartels or monopoly price fixing, which warp the final bid level. Once the DSO has gone there is no genuine alternative competing bid against which to measure, and press down on, the external bid. We then have a monopoly.
Why presume that savings will run for 10 years when contracts, in the first place, will run for four to five years, and when, if they are renewed, prices may well increase because there will be no in-house bid to bring down the price level? I can only suggest that the Government are motivated by the desire to inflate the assumed and anticipated savings that will come from
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privatisation. Far from establishing a level playing field, the result will be to favour private contractors over DSOs yet again. Much earlier the Minister favoured a level playing field. So do we. However, I cannot understand for the life of me what a level playing field means when a contract running for four or five years is supposed to generate savings for 10 years, even though that contract will have had to be renegotiated and may well have gone to a different organisation.
We are being asked to assume savings beyond the period of the contract. If we do not do so, we are told we are acting uncompetitively. That is perverse and shows the Government's desperate wish to depress the capacity of in-house organisations to contract and compete effectively and to hold down prices in the interests of us all. I beg to move.
Baroness Blatch: Paragraphs 1.19 to 1.21 of the consultation paper set out our proposals for the treatment of extraneous cost items in tender evaluation. The amendments offer a negative image of our proposals and would rule out of any regulations made under this clause those items which we consider must be covered if we are to achieve clarity and consistency in the field of competitive tendering for local authority services.
We propose to require that in comparing the allowable costs and savings resulting from the acceptance of tenders submitted, local authorities should calculate those sums at constant prices and discount them over a period of 10 years that we would specify. The amendment would preclude the specification of any period for the calculation of savings. It cannot be right that a local authority could reject an external tender, offering recurring annual savings in carrying out the work, because the authority would face one-off costs of, say, redundancy payments which in total would mean higher expenditure if an external tender were accepted, but only in the first year of the contract. Clearly, the financial evaluation must take account of the longer term. As for the specification of a 10-year period, we expect that, in general, government departments will use a 10-year appraisal period when evaluating tenders, which is the rule we propose to adopt for local government. We believe that the specification of a 10-year period will strike the best balance between the need to take account of short-term costs and long-term benefits.
I repeat that we see use of the regulation-making power in Clause 9 as consistent with the objectives of the 1988 Act and as necessary to tackle inconsistencies and uncertainties which have caused problems for local authorities and private contractors alike. The amendment would perpetuate those problems, and I hope that the noble Baroness feels able to withdraw it.
Baroness Hollis of Heigham: Does the Minister accept our argument that a contract may last for five years while the Government propose that the savings will be assumed for 10 years?
Baroness Blatch: No, I do not accept that premise.
Baroness Hollis of Heigham: Will the Minister comment upon the apparent contradiction that most

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contracts, as regulated by the Secretary of State, will run for four to five years while the White Paper suggests that notional savings must be assumed for 10 years?
Baroness Blatch: The costs of redundancies and other overheads which are included are often added to the contract tender price for one or two years only. That is unfair. Local authorities should manage to spread the discounting of those services over 10 years. The noble Baroness speaks as though, at the end of five years, nothing happens. The discounting continues for a further five years. That will lessen its impact. It is our view that that will be taken into account when it comes to retendering for the new contract.
Baroness Hollis of Heigham: I remain completely baffled by an argument which suggests that the process is similar to buying a lease for five years while assuming that one has rented the property for 10 years. That seems to be what the Minister is saying. I remain baffled, but I do not believe that there is any point in pressing the amendment at this time of night. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
6.30 p.m.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 106:
Page 10, line 10, at end insert:
("(3A) No regulation made under this section shall prejudice (or have the effect of prejudicing) the ability of a local authority to prevent, in so far as possible, the future availability of contractors to tender for services, or the creation of a monopoly supply situation for the delivery of any service; nor shall it prevent a local authority from rejecting a bid from a contractor or contractors where in the opinion of the authority there has been collusion between contractors, or the fixing of prices.").
The noble Baroness said: The amendment seeks to pursue a theme which we have been exploring with the past two amendments. It is to try to ensure that the local authority's responsibility to its taxpayers—to maintain the best value for money for services with a genuine level playing field in competitive tenders—is supported. We fear that once an in-house DSO has lost its ability to compete, we may as a result see cartels.
The amendment asks the Committee to review the situation. Cartels operate in different ways. For example, they may have major financial implications for the local authority; they will clearly raise prices. They will generate higher contract prices than if there had been open competition. They will create the conditions that we talked about just now for contractors to seek unjustified or excessive cost increases during the life of the contract because the local authority in its fiduciary role has no alternative supplier. It will make more difficult the achievement of value for money through efficient, effective and equitable service delivery. As a result, local authorities would not be able to serve their taxpayers as they should.
The fear behind the amendment is the experience we have had in the past few years. All the service
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sectors that were subjected to CCT have witnessed a series of takeovers and mergers since 1989. For example, with the enforced tendering for National Health Service cleaning and laundry work, by 1990 two cleaning contractors had gained two-thirds of the NHS domestic contracts, either through direct bids or takeover of firms who had won contracts. Such takeovers and mergers will no doubt continue. We can have no confidence in the situation where the DSO's capacity to put forward an internal bid has gone, and where the market has effectively been monopolised by one or two contractors. I am not saying that they are not offering value for money but we have no way of testing the efficiency. The amendment seeks to alter that. Competition is sustained by genuine competitiveness between firms. We have no guarantee that this will happen.
In 1888 the old LCC was set up and subsequently it and the county councils set up in 1894 quite deliberately, whatever their political persuasion, created direct works departments. Conservative county councils in the late 19th century were prominent in setting up DSOs, as were the Liberal and progressive authorities at the time. The reason they did so was to break the cartel fixing in everything from transport to water, gas and the utilities. As a result they improved the value for money for local taxpayers and ratepayers.
I ask the Committee not to throw away that accumulated experience of local government. We suggest that without the capacity to contract and to ensure fair competition, local taxpayers will be the losers. I beg to move.
Baroness Blatch: To some extent I addressed these points when speaking to an earlier amendment proposed by the noble Lord, Lord Howie of Troon. The effect of these amendments would be to leave local authorities free to make judgments about a range of matters to do with the current and future operation of markets and the behaviour of private contractors, which are highly contentious. These are areas where local authorities have no particular expertise and where a body of legislation already exists to protect customers and the public interest.
I understand authorities' anxiety that the market in the provision of goods and services for which they are responsible is sometimes weakly developed and that some contractors may collude or act in such a way as to restrict competition, resulting in higher prices than are necessary. The Government are clear that such behaviour is both undesirable and illegal.
As I mentioned on the earlier amendment, the Restrictive Trade Practices Act 1976, administered by the Office of Fair Trading, is designed to counter the adverse effects of cartels and other anti-competitive practices. Action has been taken against a number of firms who have admitted price-fixing among suppliers of ready-mixed concrete, road surfacing materials, steel reinforcing bars, float glass and fuel oil. Local authorities have played a valuable part in bringing these cases out into the open.
The government recognise that the legislation needs strengthening, and have announced their intention to bring forward legislation as parliamentary time

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permits. In the meantime, local authorities who have cause to think that they have evidence—and it is important to emphasise that they should have evidence—of anti-competitive behaviour should notify the Office of Fair Trading in line with the guidance recently issued to them.
The noble Baroness opposite argued that direct labour organisations are the best safeguard against anti-competitive practices. I do not dispute that DLOs had an important role to play in preventing such practices before the Restrictive Trade Practices Act was on the statute book. But the Government take the view that the regulation of fair competition is primarily a matter for the OFT, and that local authorities' understanding and appreciation of the operation of the market is inevitably very limited. They believe that adequate safeguards exist in the 1976 Act, and that where appropriate the provisions should be strengthened. To provide local authorities with the powers that these amendments would bring would, in the Government's view, introduce the possibility of an even worse distortion of competition as authorities sought to protect and retain their direct labour organisations. Far from protecting local taxpayers from higher prices, these measures would preserve inefficiencies and result in poorer services. I am sure that that is not what the noble Baroness intended in the amendment. I hope that she will feel able to withdraw it.
Baroness Seear: Before the noble Baroness sits down, does she agree that it is delightful to hear of Labour's conversion to competition, but in the days when there was only direct labour and there were many Labour councils, there was absolutely no competition at all?
Baroness Blatch: The noble Baroness is absolutely right. There was no competition. I believe that it is right that where direct labour forces win in fair competition against the outside sector, they should gain the work.
Baroness Hollis of Heigham: We on this side of the Committee entirely agree that local authorities' DSOs should operate in a businesslike way, offering value for money. There is no dispute between us. Commenting on the remarks of the noble Baroness, Lady Seear, where there have been inefficient DSOs from whatever authority or whatever party, I personally—and I am sure I speak for my noble friend Lord McIntosh—would be no defender of such DSOs. In our individual capacities as leaders of authorities, we have sought to overcome the problem. Nevertheless, as the Minister accepted in her helpful remarks, the situation remains that there is a problem about cartels. They are being found to exist and are being exposed in many areas of the building trade. The Minister paid tribute to the extent to which local authorities have helped to reveal that and I believe it was a graceful acknowledgment. She accepts that such cartels are often informal, hard to monitor and to bring to light. Bids are put in but bidders know in advance what other parties are doing and segments of
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the work are allocated between them. We agree that there is a need to bring those extremely anti-social, anti-competitive and undesirable practices to an end.
The point I wish to press is that the Minister said that legislation would be forthcoming, and that there were adequate safeguards in the 1976 Act but legislation would be forthcoming to tighten them. Will she tell us when that legislation may come? I could withdraw the amendment with a glad heart if, in the foreseeable future, the Government were going to do what they suggest to strengthen the legislation of 1976 in ways which would avoid the necessity for amendments like this one being explored.
Baroness Blatch: I repeat that we believe that the Act needs strengthening. There is evidence for it and it is our intention that that should happen; but I added that it would be when parliamentary time permits. It would be presumptuous of me so close to a general election to pre-empt not just what we may do in the next Parliament but what any government may do in the next Parliament.
Baroness Hollis of Heigham: How can one resist the suggestion that we shall be making the legislation within a few months' time and can take on our own problems? In that light, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 107:
Page 10, line 10, at end insert:
("(3A) No regulation made under this section shall prevent a defined authority from taking into account the reasonable effects of future increases in prices resulting from awarding a contract externally.").
The noble Baroness said: The amendment seeks to prevent the Secretary of State from overruling an authority which takes into account the reasonable effects of future price increases. In other words, it is the mirror image of some of the amendments that we have already explored.
We have so far accepted—and I think the noble Baroness opposite has accepted—that the presence of an in-house bid can often restrain bids submitted by private contractors. But clearly, if the service is privatised, the in-house operation is closed, the staff are made redundant, and the assets disposed of. Consequently, once the first contract ends, there may be no capacity to have genuine competition the second time around.
In these circumstances the local authority is likely to face an increased bid, and the Audit Commission and CIPFA have long recognised that to be the case. So incidentally have the Government in circular 1/91. However, in that circular the Government said that local authorities believe that it is not possible to quantify what the future assumptions will be, because the local authorities may not make hypothetical assumptions about the future movement of prices. It should not therefore be taken into account when reaching a decision on the award of a contract. It seems from circular 1/91 that the Government have already said that local authorities may not take into

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account possible future increases in prices once, for example, a DSO no longer exists and when perhaps a cartel may be in operation.
Having said that, why pursue the amendment when it looks as though the Government have already made their position clear? The reason is that although this has been outlined by central government on the grounds that it cannot be costed and that it is hypothetical and the like, in the same breath and in the same circular, and certainly in the latest consultative White Paper, we have had the argument that though local authorities may suffer short-term losses—for example, the costs of their depots, and so on, not being able to be financially effectively used—nonetheless these short-term losses will be outweighed by unquantified, longer-term benefits.
Will the Minister not accept that if unquantifiable benefits resulting from competition, as reflected in the White Paper, could and should be taken into account by local authorities to offset their known short-term losses, so equally should unquantifiable and unquantified price rises? The Minister seems to be saying that benefits, though unquantifiable, should be taken into account; losses, which may be unquantifiable, may not be. The principle is exactly the same. Either we do, or do not, go in for future forecasting, but what we should not do is to go in for future forecasting, as the Government would wish us to do, when it benefits the private sector, but refuse to do so when it does not. That is the purpose of the amendment, which I have pleasure in moving.
Baroness Blatch: I am a little confused, not by my understanding of the amendment, but by the way in which the noble Baroness spoke to it. I find it an extraordinary amendment. It would ensure that an authority could take into account, when evaluating tenders, the effects of future increased prices which might result from the award of a contract to an external provider. This would mean for example that an authority was entitled to reject the lowest tender on the grounds that it had concluded that an external contractor, if awarded the contract, would be in a position at some future date to raise the price for doing the work, and moreover that the increased price would have undesirable consequences.
We are determined to extend competition as provided in this Bill. What we are not prepared to do is to go along with the notion that local authorities are somehow particularly well equipped to anticipate the behaviour of the market and the various factors within it, and to judge the effect of hypothetical price increases on their taxpayers. If they were capable of such prophecy then a good living could be made by those officials and members with such skills.
There are, as I indicated in speaking to Amendment No. 106, powers to act against restrictive practices that aim to raise the prices of goods and services beyond that which can be reasonably justified. That legislation is designed to protect customers and the wider public interest, and we are committed to strengthen the current provisions as soon as parliamentary time permits. The Government are fully apprised of the need to ensure that the benefits of free and open competition are extended as widely as
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possible, and that includes making sure that no supplier or provider acts in an anti-competitive manner. It would be quite unacceptable for this role to be handed over to local authorities whose prime motive may be to protect their direct labour organisation rather than ensure good value for their taxpayers. I hope that the noble Baroness will agree to withdraw her amendment.
6.45 p.m.
Lord Desai: Can the noble Baroness clarify a point that has been puzzling me? Most of the time in economics when we talk about competition we assume that purchasers have some knowledge of what they are purchasing. On this amendment, as on the last, the Government seem to be assuming that the local authority has no knowledge, and no capacity to know, either that a cartel is acting against it or that prices may increase in the future.
It does not know exactly how much prices may increase; it may only do as well as the Treasury does, which is not very well. But we should still allow that purchasers should have the ability—even the imperfect ability—to forecast what price increases they may face and take those into account in making a purchase. That is a purely commonsense point. To assume that local authorities have no capacity to detect cartels or to forecast price increases seems a rather strange notion. In other words, who knows? Is it only the private sector that knows?
Baroness Blatch: The noble Lord, Lord Desai, is absolutely right. It is important that purchasers who are purchasing something know exactly what they are purchasing. In the case of local authorities putting work out to tender, it is for the local authority both to describe what it wants and at what level, and then to put it out, and, as I believe under the measures in the Bill, to put it out to fair competition.
We shall have to agree to differ, but if the noble Lord is saying that we should give licence to local authorities to make subjective judgments about what price increases may actually happen at some time in the future, and add that to the contractor's tender price in order to make their own direct labour force seem more competitive, that is a policy that we could never support. I hope that the noble Lord will make clear to the wider public whether that is the policy which his party would support.
Lord Desai: We have forecasts of price increases published by the Treasury and by various other private and public bodies. What is to prevent a local authority from using those published forecasts and acting on that knowledge? You are denying them the right to act upon available knowledge.
Baroness Blatch: The noble Lord is suggesting differential treatment for a private contractor and the local direct labour force. If the noble Lord is saying that you can have some view about where the economy is going in the future—which of course happens in certain sectors—and a view is taken about what inflation may be and what the level of price increases may be, then the notion must be applied just

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as much to a direct labour force as to a private contractor. In that case the real terms price of the contract at the time—in other words the contractor's tender price and the direct labour organisation's tender price—must be seen as equal, unless the noble Lord is suggesting something wholly unacceptable to this side of the Committee and to the Government; namely, that there shall be a higher notional increase attached to the private contractor and a lower notional increase some time into the future applied to the DLO. That is wholly unacceptable.
Lord Desai: If the noble Baroness were to inspect the data on public sector pay and private sector pay in any Treasury publication, she would see that such a differential exists and that, often for a long period of time, public sector pay is below private sector pay. It is easy to envisage a situation in which such a differential can honestly, without any desire to cheat, arise.
Baroness Blatch: I am grateful to the noble Lord for giving way. The noble Lord is making a rather simplistic assumption about public sector pay. It does not always follow that public sector pay is necessarily, in any given pay increase, lower than private sector pay. When one is comparing the pay of contractors, an argument often used by noble Lords opposite is that the pay is much lower in the private sector than it is in the DLOs. That is the first point.
On the second point, it is not enough to think of a pay increase in isolation. One must also consider other conditions of service. When one takes those into account one finds very often that the cost of employing in-house labour is higher.
Baroness Seear: Perhaps I may say in response to the noble Lord, Lord Desai, that for my sins I served for 13 years on the Top Salaries Review Body. Attempting to make any real comparison of total rewards, including benefits such as indexed pensions and the rest of it, was extremely frustrating. The arguments that went on about the relative benefits of an indexed pension and a chauffeur-driven car would have defeated even the noble Lord, Lord Desai.
Lord Desai: I meant only to say that differences can and do exist.
Baroness Hollis of Heigham: At the heart of the issue is the plausible assumption that there will be situations in which the private sector bids for work on the basis of loss leaders. That is undeniable. We have seen it happen, particularly when companies are hungry for work. We have seen it happen when contractors want for the first time to obtain a share of work. Every good supermarket will use the method to attract people through its doors. The implication is that that destroys the in-house capacity to compete subsequently. At a future re-tendering that loss leader price will float upwards and become excessive.
It is precisely for that reason that the first edition of the CIPFA code of guidance—and perhaps the
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Minister will indicate whether or not she believes that CIPFA is right—referred directly to the matter. It states:
"Where authorities want to give a contract to a DSO for the purpose of preserving its capacity to compete on later occasions they may do so even if the DSO tender is not the lowest, providing both that the work is the minimum necessary to keep the DSO afloat and the price difference is not so significant as to affect good value for money principles".
That is what CIPFA, a recognised public body, gave as guidance to local government. Is the Minister saying that she finds that unacceptable?
All we are trying to do with the amendment is to ensure that we keep a healthy competitive market. Where local authorities suspect that a tender is a loss leader or that the original bid has been deflated and as a result will be followed by price rises in future, whether through a loss leader or cartel effect, the local authorities' ability to act in the interests of their taxpayers and to aim at a competitive playing field should not be inhibited. That is why we moved the amendment. Perhaps the Minister may wish to comment on the CIPFA code.
Baroness Blatch: It is true that CIPFA has been enormously helpful in making that advice available. However, that is not the last word on the matter. In the case of the particular example which the noble Baroness mentioned I have to say that I do not agree.
In relation to the point about loss leaders, it is important to remember that when a contractor wins work from a local authority at a price which is deemed by the local authority to be a loss leader, at least for the duration of that loss leading tender price the local authority gains considerably. When the time for review comes and a more realistic price is put in place, if that breaches the principle of fair trade there is a mechanism for taking action by invoking the 1976 Act. If it is simply a more realistic price then I have to say to my noble friend—to the noble Baroness (well, she is a friend!)—that the local authority still benefits.
The survey which has been undertaken on competitive tendering shows that overall local authorities have benefited considerably financially and the performance of both in-house labour forces and contract services has raised standards in local authorities.
Baroness Hollis of Heigham: These will be my two final points. The first is a point to which I shall want to return. The situation is becoming very confused for local authorities. They have guidance from CIPFA—the recognised Chartered Institute of Public Finance and Accountancy—guidance in some cases from the Audit Commission, again a recognised independent, quasi-professional body, as CIPFA undoubtedly is, (and by saying quasi-professional I do not in any sense mean to impune their competence), and also from the DoE. Increasingly guidance from those three sources is diverging. Local authorities are expected to make good judgments in the interests of their taxpayers while CIPFA says one thing, the Audit Commission may or may not say something different and the DoE says something else again. Those are the professional judgments on which we expect our DSO

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managers and city treasurers to manage affairs in the best Interests of their local authorities. I was disappointed that the Minister did not endorse the professional guidance of CIPFA to local authorities.
Baroness Blatch: Perhaps I may correct the noble Baroness, for the record. I said that CIPFA made a very valuable contribution and that its advice on this issue has been much valued. However, on the specific point raised by the noble Baroness I said that I did not agree.
Baroness Hollis of Heigham: Or, to paraphrase the Minister, CIPFA is very valuable but just happens to be wrong.
My second point concerns the wider issue of competition. The Minister said that local authorities would enjoy the benefits of the loss leader bid which would be low and would lead to an undoubted financial gain. There may be a financial gain but, given all the debates we have had so far about the quality of service, there is no doubt—and my noble friend Lord Howie made the same point earlier—that the quality of service is affected. We have seen that in privatised contracts bought by leading companies in London—where else? An example was quoted at Second Reading of one case in which 1,000 people flowed through 80 refuse cleaning jobs in three years. As a result complaints trebled. That is what happens when people buy work below a proper market price: quality plummets.
I am sure that the Committee will permit me to finish the debate on the amendment with a quotation from John Ruskin:
"It is unwise to pay too much,
But it is worse to pay too little.
When you pay too much,
You lose a little money—that is all.
When you pay too little,
You sometimes lose everything.
Because the thing you bought was incapable
Of doing the thing it was bought to do".
I beg lave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 108:
Page 10, line 10, at end insert:
("(3A) No regulations made under this section shall require a defined authority to subtract from an external bid any item which will require actual expenditure by that authority.").
The noble Baroness said: The amendment is designed to pick up the point about performance bonds. We have explored the matter in this amendment because the Government's position on performance bonds has varied.
The Government's stated aim has been to introduce competition. We accept that we want that competition to take place fairly. One of our anxieties, which has been explored in previous amendments—the Committee may think ad nauseam—is that when DSOs lose a bid, unlike the private contractor they may not go out to find other clients to keep themselves alive; they have to close. DSOs which lose in-house contracts close. Private contractors which lose a bid
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for local authority services can find an alternative client and keep afloat. As a result, prices may very well drift upwards.
The second difference between a DSO and a private service competing for the same tender is that the operation of the DSO remains under the direct control of the council. The Government know therefore and have accepted in the past, the need for local authorities to obtain the same quality assurance—or life quality assurance—from private contractors through performance bonds.
Perhaps the Committee will forgive a personal anecdote. As someone who was for 11 years a housing chairman I knew how important it was to get performance bonds from private building contractors—because all our building work went out to competitive tender—to ensure that they were capable of doing the work competently and that the company would not close in the meantime or fail to perform. The cost, then as now, of providing the bonds is as much an element in the price of the job as turning up with the correct tools. One does it by turning to the banks for references and one adjusts the scale of the performance bond according to the integrity, and known track record and experience of the company one is dealing with.
For many years performance bonds have been used in connection with building work—where I have had personal experience of them—and in engineering contracts. There has never been any suggestion from private engineering or private construction companies that it was improper, unreasonable or impeded consultation. Yet now we are being told that this is a factor which should not be taken into account in evaluating the cost of a tender.
The Minister ought to justify that departure from well-established practice—which has existed for the 20 years in which I have been involved in local government—which ensures for local government the contractor's ability to deliver what was promised and have a performance bond to set against the delivery of that performance. If we do not have it, we shall be extraordinarily vulnerable to the loss leader situation in which quality suffers and the local authority has no economic leverage against which to judge that performance. I beg to move.
7 p.m.
Baroness Blatch: This amendment seeks to achieve the opposite effect of the proposals that we made in our CCT consultation paper. It provides that regulations under Clause 9 could not require authorities to subtract any cost items from tenders submitted by external contractors for the purposes of tender evaluation. We proposed in the CCT consultation paper that, in comparing the cost of tenders submitted for work, local authorities should subtract from the price tendered by private contractors any cost incurred in order to provide a performance bond which the authorities may have required.
I must stress to the Committee that we are not precluding local authorities from requiring performance bonds, but we consider that the resulting cost

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to the contractor is extraneous to the direct cost of performing the work itself. It should therefore be taken out of the tender evaluation process to avoid distorting the comparison with the cost of the in-house bid.
We have argued for some hours for a level playing field. We shall have to agree to differ on that matter, but we believe that the playing field should be level. If we were to accept the amendments tabled by the Opposition, the level playing field would be stood on its head in presuming in favour of direct labour organisations. The amendment is unacceptable and I hope that the Committee will not support it.
Baroness Hollis of Heigham: It is clearly fruitless to push the amendment to a vote. Performance bonds indicate in effect the financial integrity, and capacity of an organisation as assessed by bodies such as banks, to deliver the performance as promised. That is an entirely proper cost to be taken into account. DSOs have that guarantee of quality and integrity because they continue to receive the monitoring internal to a local authority. It is perfectly proper to require performance bonds to be regarded as part of the cost of a private contract to be set against the equivalent cost of the monitoring of DSOs that local authorities carry out.
As the Minister said, the gap between us is as wide as the Rubicon. I hope that she will be the first to cross it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 109:
Page 10, line 10, at end insert:
("(3A) No regulations made under this section shall require a defined authority to exclude from consideration in tender evaluation—

(a) the effect on cash flow of variations in the terms of any transaction, including the actual payment of frozen holiday payments;

(b) costs arising from the discretionary award of compensation by way of added years to staff who would be made redundant; and

(c) costs of accommodation, storage or central administration so far as may not be immediately saved in the event of a service being taken over by an external contractor.

(d) the cost of any losses incurred if an incoming contractor did not wish to make use of depots and vehicles that had been made available to him; any such losses relate to bygone expenditure which is not relevant to the choice between internal and external bids.").

The noble Baroness said: This is the last of a clutch of specific amendments. It seeks to ensure that no regulations made under the Bill would require a local authority to exclude from consideration a "shopping list" of costs. We have already picked up some of those costs by implication, but perhaps I may explore some of the others a little further.
When we consider the costing of contracts, we are considering two or three different items. First, we are considering staff costs. We argue that some of the costs that a local authority would expect to pay if it failed to hold a contract in-house would continue to be borne by the local authority. Again, we want to
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ensure that there is a level playing field because, with all due respect to the Minister, the Government are confusing the local authority's role as contractor with its role as client.
Secondly, we are considering the physical cost of accommodation—depots, vehicles and so on—when not used by the private contractor. I wish to explore this point a little more fully than the point about staff costs which we have already discussed.
Perhaps I may take the example of depots to show how unfair the Bill would be without such an amendment. In Circular 1/91, which was published at the beginning of the year, the Government said that local authorities were required to make available to private contractors their depots because, otherwise, contractors would be deterred from competing. Furthermore, paragraph 17 stated:
"Making depot facilities available to contractors … would make the best possible use of [authorities] assets … in the interests of their chargepayers".
In other words, making such depots available would be the best possible use of assets and would be in the interests of chargepayers.
However, if the contractor did not want to use those depots, the local authority could not include the item as a loss. If we consider the circular together with the Bill, it means that throws in the value of depots if it helps the contractor to compete and one excludes it if it helps him to compete. You throw it in if it helps to make financial use of assets, but you exclude it on the grounds that it is considered to be "bygone expenditure", to quote from the consultation paper, if the contractor does not want it.
Where then is the best possible use of the local authority's assets that we are asked to bear in mind in the circular? In other words, if the interests of the contractors and local taxpayers coincide, the Government exhort us to take that route, but, if they do not, the interests of the contractor are supposed to prevail. That makes it clear that the Government hope that the interests will coincide. When they do not, the interests of contractors are to be privileged. The Bill cannot be clearer than that.
The Bill is not about economy. If it were, there would be no such inconsistency. It is about privatisation and, once again, putting more bumps into the playing field in the hope that DSOs will be knocked out of the game. I beg to move.
Lord Skelmersdale: So far in this long series of amendments the arguments of the noble Baroness, Lady Hollis of Heigham, have been based on a situation in which there is effectively one private sector contender for a tender—if you can have a contender for a tender; the noble Baroness knows what I mean—and the local authority. However, we are rapidly moving to the stage at which the first three-year, four-year or five-year tenders will have finished. There will therefore be two or more private sector tenderers tendering for a contract and possibly the residual DLO or new DLO, which would be formed to carry out a particular contract, will be involved too.
In Amendment No. 109, the distinction between the two or more private tenderers is not made. That means that the playing field, which both sides of the

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Committee have agreed should be level, will not be level among the private sector competitors. That is quite wrong. For example, competitor A would not be allowed to put into his contract price
"the effect on cashflow of variations in the terms of any transaction, including the actual payment of frozen holiday payments",
redundancy payments and so on.
The amendment encapsulates all the wrong arguments which have been made throughout this series of amendments from the other side of the Committee.
Baroness Hamwee: I know that we are talking about specifics, but I hope to bring us back to the underlying concerns which have no doubt led to this series of amendments. Perhaps I may take up the point made by the noble Lord, Lord Skelmersdale; namely, his comment that, with regard to the services that have been put out to CCT for four or five years, DLOs are not now generally in a position to compete because they have been wound down. They do not even begin to approach the boundary line of, to use that extremely overworked phrase, the level playing field.
It is right that I put on record from these Benches that, although we have been quiet during this series of amendments, that has been as much as anything in order to assist the Committee to move on with its business. It does not indicate a lack of support for the underlying anxieties that are being articulated.
I should like to put it on record that I am extremely anxious that the level playing field does not allow DLOs to participate as a player. We are losing the choice, variety and so on in our local authorities. Underlying that, we have to address the Government's ambitions, which are rapidly being realised in some areas, to reduce the powers of local authorities.
Baroness Blatch: It is a further amendment which offers the converse of what we propose in the CCT consultation document. Whether it is called wrecking or whether it simply negates does not matter. It is entirely consistent with the fact that noble Lords opposite simply do not approve. My noble friend Lord Skelmersdale was indeed right. I listened carefully to the noble Baroness, Lady Hamwee. However, we refer to a straight comparison between the cost of employing a DLO and the cost of employing a contractor. If that comparison is unfavourable to the DLO this range of measures referred to in the series of amendments makes it seem more competitive simply by adding costs of one kind or another to the tender price of the contractor until it becomes unfavourable. Therefore the cost of employing the contractors as labour forces is not comparable and not favourable, yet somehow there are ways and means of contriving to make the DLO seem more favourable.
The amendment would provide that regulations under Clause 9 could not require the items listed in the amendment to be excluded from local authorities' evaluation of tenders. The items in question vary, but the common theme which links them is that, while there may indeed be costs arising to the local authority from these items, those costs should not rightly be regarded as integral to the cost of having the work
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carried out by an external contractor. If such costs are included in the comparison of tenders received, the result is a distortion of competition which must be avoided in order to secure the aims of Part I of the 1988 Act.
I do not propose to dwell in greater detail on our proposals. I must stress that we see a need for regulations to be made under this clause which would remove as much uncertainty in tendering matters as possible. The effect of the amendment is the opposite; namely, to uphold and perpetuate inconsistency and doubt. I hope that the noble Baroness will feel able to withdraw the amendment.
7.15 p.m.
Baroness Hollis of Heigham: I consider the statement by the Minister very revealing. I wonder whether she meant it to be as revealing as it may prove to be. The noble Baroness accepted on the one hand that there were real costs to the local authorities should its DSO not win a contract in-house. Some costs are listed in the amendment. They are real costs; the Minister accepts them. There is a real bill to be met with regard to frozen holiday pay entitlements, compensation, costs of accommodation, vehicles and depots, central establishment charges, and so on. The Minister accepts that those are real costs which will be incurred somewhere. Nonetheless she is not willing to see those costs set against the equation that the local authority has to make as a client when assessing which of two bids it should accept.
I ask the Minister this question in good faith. If she were on the board—of course she cannot be—of a major company such as Marks & Spencer or Sainsbury's, would she expect to be neutral between an in-house bid and an out-of-house bid knowing that, by taking the latter, residual costs to the company of which she was a director would continue? Those costs would have to be borne by that company. Yet she is not willing to take them into account in the name of competition. She would quite properly regard the ongoing costs that that company had to carry, were a contract to go out, as a proper consideration to bring into play when deciding whether to contract out. If the savings more than offset the cost of contracting out plus the residual cost left to the organisation, she would contract out. However, if the outside bid were cheaper but the advantages gained were outweighed by the losses incurred, I am confident about the advice she would offer as a director. Why should she ask local authorities to behave differently?
Baroness Blatch: The noble Baroness again is over-simplistic in the way in which she interprets what I said. It is possible for local authorities to cease to incur many of the costs that have been named by the noble Baroness. There are alternatives in the case of some of the matters to which the noble Baroness referred. Some costs can be discontinued completely if the work is contracted out. It is possible to take a longer term view. The annual savings, year on year, need to be weighed against the cost of keeping what might on the face of it be the more expensive option of keeping the direct labour in without challenge.

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We are talking about licence to contrive. We do not approve of that. The range of amendments taken together allows licence to contrive in favour of the DLOs. We want fair competition. Where a DLO wins the work on a level playing field, we welcome that.
Baroness Hollis of Heigham: Does the Minister accept, first, that those are real costs that will follow? The amendment refers to,
"Costs of accommodation, storage or central administration so far as may not be immediately saved".
Those are no contrivances. They are real costs which the consultative document recognises. Those words are in the consultative document. I accept that if a cost can be dismissed within a few months, it is not necessarily a substantial material consideration. But we refer to the costs of accommodation, storage, central administration charges, depots, vehicles, heavy equipment, or costs which will continue to be incurred for many years, in many cases after a contract has come to an end. Those are proper costs. If they cannot be set against the savings offered by an external contractor, who will pay? The Minister may rightly say that the taxpayer will benefit from a reduced bill for refuse and cleaning, for example. But his position will be worse by 200 per cent. because of the increased costs that the authority will continue to bear. Those costs have to be borne somewhere, as the Minister said in her opening remarks.
Is the Minister really saying that local authorities should accept a lower outside tender but continue to bear higher internal costs so that the net cost to the authority is greater than it would otherwise be if that contract remained in-house? That is what we are talking about.
It is clear that the Minister does not wish to respond to that last point. I can only assume that it is all right for local taxpayers to pay a higher overall price and to suffer under-value for money in the name of doing everything possible to ensure that the private contractor can compete. I can only deplore that. I hope that it is noted that apparently that is the Minister's view. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 110 to 113 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 114:
Page 10, line 17, leave out from ("expedient") to end of line 20.
The noble Lord said: I shall move this amendment. If the Committee thought that it was going to get away with Part I of the Bill that easily, it has another think coming.
It is an extremely important amendment. In many ways it refers back to the discussions that we have had about the powers of the Secretary of State and the abuse of those powers which are implied in many of the provisions of this part of the Bill. The provision to which we object in Clause 9 of the Bill is the measure under subsection (4)(b) which allows the Secretary of State under regulation,
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"to make different provision for different cases, including different provision for different localities and for different bodies".
I take it that it is understood that "different bodies" means different individual authorities. Different words are used for local authorities. They are called "relevant authorities", or "relevant bodies". A similar provision in Clause 8 allows the Secretary of State,
"to make different provision for different cases, including different provisions for different localities and for different authorities".
I had thought that Sir Ernest Gowers had made it clear that such elegant variation was undesirable on stylistic grounds. It is even more undesirable to use in the same part of a Bill different words to mean the same thing. However, the matter is far more serious than the merely stylistic question.
The Government appear to justify the provision with the assumption that the legislation in the 1980 and 1988 Acts which gave local authorities some interpretative powers has not worked. That is not the case. Under the 1988 Act in particular—and I remember that Act clearly because I was involved in trying to prevent its passage in its present form—the Secretary of State had substantial powers of sanction to override the letting of contracts if he believed that a level playing field had not been achieved. No one has said that those sanction powers were ineffective. The truth of the matter is that they have hardly every been used. Local authorities have taken advice from the Secretary of State, from CIPFA and from the Audit Commission. They have adopted a set of broad principles which in nearly all cases have satisfied the Secretary of State.
We need from the Government more convincing evidence showing that the sanctions and broad principles have not worked and that they need to be interpreted by giving these extraordinarily wide provisions of discretion to the Secretary of State. In effect, the provisions entitle the Secretary of State to be inconsistent in the way in which he deals with different authorities, different localities and different cases. One of my noble friends asked the plaintive question: what is meant by "different cases" when authorities, localities or bodies are already spelt out? He received no answer. The fact is that during the past three years, in fact since the 1988 Act, the Secretary of State has issued four different views on how local authorities ought to take into account redundancy costs.
The power is unjustifiable because it is wide and because the evidence shows that the Secretary of State has chosen not to use the perfectly adequate existing sanctions under the 1988 Act. Unless better evidence is produced showing the need for these wide powers they should be resisted. I beg to move.
Baroness Blatch: I believe that the noble Lord overstates his case. Amendment No. 113 would replace the negative resolution procedure in the Bill by affirmative procedure—
Lord McIntosh of Haringey: I have not moved Amendment No. 113. I am moving Amendment No. 114.
Baroness Blatch: I apologise to the noble Lord. He spoke earlier about the resolution procedure and I confused the two amendments.
Clause 9(4) (b) allows the regulations to make different provision for different cases. This is analogous to Clause 8(5) (b), which we have already debated. It also follows the precedent of Section 15(6) of the 1988 Act which allows different provision for different cases in regulations under Sections 4 to 8 of that Act. In its effect this subsection is identical to section 15(6) of the 1988 Act. As I said in the debate on Clause 8 the Secretary of State would not use this power in an unreasonable or discriminatory way. It is essential that he should be able to take account of legitimate differences when framing the regulations. He might, for example, wish to take account of differences between services and the market for providing those services when setting maximum and minimum periods for different phases of tendering. He might also wish to distinguish between different classes of authority or different types of area; for example, to take account of differences in the labour market, in rural and urban areas when prescribing the minimum mobilisation period to be allowed a successful bidder. There will be other differences which it may be appropriate to take into account.
The provisions in Clause 9(4) are closely modelled on those in the 1988 Act. There is nothing novel here. They are not going to be used in a discriminatory fashion. As I said in the debate on Clause 8, I am prepared to take advice on whether to include it.
Lord McIntosh of Haringey: In the light of the Minister's last statement I shall not pursue the amendment. However, she has not answered the trivial point about wording let alone the substantive point about the meaning of this part of the clause. She has not even explained why the comparable subsection in Clause 8 refers to different localities and different authorities while this subsection refers to different localities and different bodies. Before I turn to the more important issues perhaps the Minister will enlighten the Committee about whether the difference in wording means a difference in meaning.
Baroness Blatch: I hope that I shall be able to help the noble Lord. Clause 9(4) refers to bodies rather than to authorities because it relates to the 1988 Act which applies to defined authorities, and to the 1980 Act which applies to local authorities and development bodies. The word "body" includes authority, but I am advised that the word "authority" does not include body.
Lord McIntosh of Haringey: I am most grateful to the Minister. I am sure that any reasonable lay reader of legislation will have spotted that point immediately and that only my stupidity has concealed it from me. It is a case of:
"What from Eli was concealed
The Lord to Hannah's son revealed".
The substantive point is much more serious and has not been answered in any way. It is that powers existed under the 1988 Act—indeed, the Minister appears to glory in that fact—and it has not been necessary to use
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them. That is the real point of the issue. The number of occasions on which the Secretary of State has used the sanctions available to him under the 1988 Act is very small. No evidence has been given to the Committee which would justify the extension, even the continuation, of such wide powers. This, together with a comparable provision in Clause 8, is a matter to which we may be obliged to return at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 agreed to.
Clause 10 agreed to.
Baroness Blatch: This would be an appropriate moment to break. I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
Earl Howe: My Lords, I beg to move that the House do now adjourn during pleasure until 7.34 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.29 to 7.34 p.m.]

Maximum Number of Judges (Scotland) Order 1991
The Lord Advocate (Lord Fraser of Carmyllie)The Lord Advocate (Lord Fraser of Carmyllie) rose to move, That the draft order laid before the House on 14th November be approved [3rd Report from the Joint Committee].
The noble and learned Lord said: My Lords, the draft order seeks to increase the maximum number of judges of the Court of Session from 24 to 25. Until 1968 the number of judges at the Court of Session, who also act as judges of the High Court, was determined by statute but the Administration of Justice Act of that year, which fixed the number of judges at 19, also provided that future increases should be by way of Order in Council. Since that time four such orders have been made: one in 1972 for one judge, the second in 1977 for two judges, the third in 1985, and the fourth in 1986, each for one judge. It is some five years therefore since authority was last sought to increase the number of judges of the Court of Session.
The reason which prompted the present draft 1991 order is essentially the same as that which led to the earlier orders; namely, the continuing and substantial increase in business in the Supreme Courts, both first instance and appeal. Between 1986 and 1990, the number of criminal appeals increased from 2,070 to 3,038. The number of judge sitting days devoted to criminal work, both first instance and appeal, increased from 1,606 to 1,852. Over the same period, the number of contested first instance civil cases increased by no less than 65 per cent. and the number of contested civil appeals increased by 31 per cent.
Over a period of five years when the volume of court business increased so substantially, the Supreme Courts have been able not only to cope with these

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workloads but also to reduce delays significantly. For ordinary civil proofs, the period before a court hearing which stood at 15 months in 1986 was reduced to five months by 1990. For criminal appeals against conviction where the appellant is in custody, the delay period has been reduced from four-and-a-half months in 1986 to one month in 1990. Those are but two examples of very significant improvements which have been secured in the Supreme Courts in recent years. Such a state of affairs cannot be achieved other than by the application of a great deal of careful thought and the expenditure of much energy. I would wish to pay tribute in that regard to the inspired leadership of both Lord President Emslie and Lord President Hope, and to the very considerable work of judges and court service staff.
The Supreme Courts have therefore been able, with 24 senators, to contain considerably increasing workloads over the past five years and, at the same time, to pull back on court delays. It is now abundantly clear, however, that unless the number of senators is increased, court delays will worsen significantly. Given all the progress secured in recent years, that would be most unfortunate. It is to avoid that situation, and to enable the Supreme Courts to continue to deal timeously with business brought before them that the Government, at the request of the Lord President of the Court of Session, have decided to bring forward a draft order to increase the number of senators from 24 to 25. I beg to move.
Moved, That the draft order laid before the House on 14th November be approved [3rd Report from the Joint Committee].—(Lord Fraser of Carmyllie.)
Lord Macaulay of Bragar: My Lords, on this side of the House we welcome the order but it raises a question as to whether it is sufficient to deal with the Scottish position in the Supreme Courts. As the noble and learned Lord said, it is five years since the last order was made but the workload on senior judges has been ever increasing. Sadly in Scotland there has been a 15 per cent. rise in criminal work for the senators of the College of Justice. There has also been a tremendous expansion in civil work.
What is happening in Scotland is worthy of some criticism: there is provision to use retired judges, subject to an age limit, and temporary judges to service the higher courts, both civil and criminal. At least the use of retired judges, forgetting the temporary judges for a moment, indicates that a real manpower shortage exists in the Scottish judicial system.
The retired judges are put into the Appeal Court to sit on either side of the presiding judge in that court to deal with appeals. That enables other judges who would normally be sitting in the Appeal Court to be released to deal with cases at first instance, both civil and criminal. However, questions must be asked regarding the policy of using retired judges. I ask these questions.
First, what is the annual cost to the Exchequer of using retired judges who have been declared by Parliament to be no longer eligible to sit as judges? Of course a statutory provision exists allowing them to be
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recalled. My information—right or wrong—is that the daily fee for a retired judge on a considerable state pension based on his salary, runs close to £400 a day, being around £370 as a fee for sitting in the court plus expenses of not less than £25. I may be wrong in that regard. However, to use a quote from the Orkney inquiry, I do not see why there should be a judicial gravy train for retired judges. If they are retired and the country says that they have done their service for the country, then they should be allowed to live in peace wherever they choose to go.
Secondly, why should they be used at all if the state says that they must retire? It is a contradiction in terms for Parliament to say, "You are too old to be a judge. But you can come back and be a judge provided you sit in the Appeal Court on one side or the other of the presiding judge".
Thirdly—and this is perhaps the most important question —is the use of retired judges sitting on a daily basis plus expenses masking the real position of the lack of numbers of judges in Scotland. In other words, if they were not available other judges would have to be used in the Appeal Court and the true extent of the lack of judicial manpower would be revealed.
Fourthly, the use of retired judges in that context may also be blocking promotion to the Supreme Court for people who would otherwise be eligible to become Senators of the College of Justice. I do not know of any other profession serving the public which retires people and then brings them back and allows them to behave as though they are not retired. That is a disturbing situation.
On speaking to judges—I have been known to speak to them occasionally—they complain, first, of over-work. It is a genuine complaint and I am sure that the noble and learned Lord the Lord Advocate will agree with me. Only last week I spoke to a judge who told me that he works from Monday to Thursday and seldom goes to bed before 2 a.m. That is a deplorable situation in which to place any man who is administering justice.
Secondly, in Scotland there is a lack of what is known as writing time; that is, time for both civil and criminal judges to sit back and reflect on their judgments. They are under tremendous pressure. As I understand the position, although a judge may take one or even a few days off when he wants to write a judgment, he will be suddenly whisked off —I hesitate to use the word "provinces" because they do not exist in Scotland—to other areas to hear a criminal case. Judges must be allowed to write their judgments, civil or criminal, in a civilised manner.
Thirdly, on more than one occasion judges complained that their holiday arrangements were completely disrupted due to the shortage of judges to deal with the work, particularly in the criminal courts. That situation is deplorable. I do not blame the Government; it is not their fault. However, we must recognise that there must be sufficient judges to give us a civilised system which leads to rational rather than hurried decisions.
Perhaps the noble and learned Lord the Lord Advocate could say on what statistical and population basis it was decided that one more judge will meet the

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pressure in the courts. Is the same statistical and population ratio used in England and Wales or is it merely because the Lord President says that he wants one more judge? I should like to know the reasoning behind it. The impression was certainly given that the Senators of the College of Justice are over-worked and certainly more than one judge is needed.
The salary of a judge is £84,000 a year. To the layman and indeed to me that is a lot of money. However, in terms of the total administration of justice it is nothing. We are talking of £84,000 plus a pension provided the judge is not over-worked and lives long enough to collect it. That is not a great deal to pay for the proper administration of justice.
The other matter that I wish to raise is whether the Government are giving consideration to the possibility of the civil courts sitting a five-day rather than a four-day week. The four-day week arose from the old days when the judges had to return from their country estates. Perhaps one or two still own country estates, although if one listens to some of them they cannot afford country estates on their salaries. However, the days of returning by coach and horse from the depths of Inverness or Sutherland are gone.
The five-day week operates in the sheriff court, in the lower courts and in England. The question must arise why Scotland does not do it. No doubt the answer will be that the judges need time to write their judgments. Well, let us have sufficient judges so that we can operate a five-day week with the judges being required to write their opinions, either civil or criminal, on the Monday and a sufficient number to deal with the work which requires attention.
The alternative is to look again at the sheriff court. I did not give the noble and learned Lord notice of this question and I do not expect an answer today. However, I should like to know the effect that increasing the power of sentencing in the sheriff court in criminal cases to three years in sheriff and jury trials has had on the running of the High Court. Has there been a drop in remitted sentences? As your Lordships will know, when a sheriff felt that he could not sentence someone to less than two years he referred the case to the High Court for sentence. That power has been raised to three years and perhaps consideration could be given—I do not say that it is a good idea—to raising the power of sentencing in the sheriff court to five years. I know that was considered in the past and cast aside because people did not trust the sheriffs to exercise a power of that standing, the power to sentence someone to prison for five years. But in the light of the rise in criminal cases to which the noble and learned Lord referred, it may now be appropriate to raise the sentencing power of the sheriff court to five years. After all, they are sheriff and jury proceedings and in England there is no difficulty in that regard. I do not see why there should be any difficulty in Scotland, and the Appeal Court, we hope, can always correct any silly decisions by the sheriffs.
That can only be done if the manpower is available to do justice to the system, to the judges themselves, to the litigants and to the accused. Justice under pressure is bad justice. Within reason everything must be done to relieve the pressure on judges.
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In closing, I wonder why it is necessary—there may be some legal reason for it—to come here every so often begging for another judge. Why do we not simply take a broader approach? For instance, we could make a ceiling on the number of judges rather than going through what I do not wish to call a charade but what is an exercise of saying, "Please can we have another judge because the system is falling apart?" That is a ludicrous way of dealing with the system of justice in this country. I do not oppose the Motion because I want to see more than the number of judges covered in the Motion so that the judicial system of Scotland can progress in a way that will be recognised by the people of Scotland as being a good, fair and efficient system, and where the senior judges are not acting under considerable pressure as they are now.
7.45 p.m.
Lord Fraser of Carmyllie: My Lords, my honourable friend Sir Nicholas Fairbairn, QC, will no doubt be flattered to know that the legal spokesman for the Opposition in your Lordships' House has taken the care to read what he had to say when the matter was debated in another place. He too made the point that the original arrangement of four sitting days in the Court of Session was to allow for those with estates in the country to return to Edinburgh in good time.
As I understand the position, in England if one adds up the number of Mondays—or writing days as they are to be described—in both jurisdictions they come to pretty much the same number. It is a matter of interest whether in Scotland we follow that arrangement, with writing days following after, shall we say, a long difficult civil proof. I have no doubt that what the noble Lord said will be of considerable interest to the Lord President of the Court of Session. However, it is not directly germane to the difficulties encountered on the basis of the statistics I gave to your Lordships' House in seeking an increase from 24 to 25 judges.
Perhaps I can say with respect to the noble Lord that there is one matter on which it would appear to me he advances his argument on a false premise. Under the powers contained within the Law Reform (Miscellaneous Provisions) Scotland Act 1985, Section 22, the Lord President of the Court of Session, with the consent of the Secretary of State, may recall a retired judge to assist with the disposal of business, but he can only do so in circumstances where that judge retired in advance of what is now the statutory retiring age of 75.
Unless I have the position badly wrong, that is similarly the position on this side of the Border. In 1990 five retired judges were available who, together, provided around 250 court sitting days. Although the noble Lord opposite appeared to be somewhat critical of the contribution made by those retired judges, I would dissent from that. I consider that they have indeed made an important contribution.
More to the point, as regards the profile of the ages of judges in Scotland, the number of retired judges who will be available in the future under the age of 75

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to assist in either the High Court or the Court of Session will not be that great. That is one of the factors that leads to the increase in the number of judges now being sought.
In direct answer to the noble Lord regarding the annual cost of using retired judges in the Court of Session and the High Court, the figure is around £100,000 per annum. He has used the language of criticism that has been adopted as regards the Orkney inquiry, but with a figure of £100,000 per annum that would not appear to be in any sense a gravy train.
When the present Lord Chancellor was Lord Advocate of Scotland he was very keen to emphasise to the sheriffs of Scotland that they had a power to remit from their own sheriff courts to the High Court where the Crown had mounted a prosecution in a sheriff court, but having heard the facts put before him and a verdict returned by the jury, the court decided that the gravity of the offence was outwith his existing sentencing powers. My noble and learned friend repeatedly urged that sheriffs should remit to the High Court if they thought that their sentencing powers were inadequate. As the noble Lord has raised the matter I return to it and encourage the sheriffs yet again that if they feel that they cannot impose an appropriate sentence because of the limitations of their powers, they should remit. As the public prosecutor in Scotland, I shall be more comfortable to instruct that more cases be marked from the High Court to the sheriff court. If I felt that the judgment was wrong as regards the severity of the offence, the sheriff court should be more willing to use its powers to remit.
That seems to be the better way forward. Instead of increasing yet again the sentencing powers of the sheriffs it would be more desirable if we moved down some cases. If it was then considered that we had the balance wrong the sheriffs should use their powers to remit. I cannot offer the noble Lord any precise statistics for obvious reasons, but my impression is that, because the Crown has marked a case down to the sheriff court, that court in some way takes that as an indication of the severity of the offence and the sheriff court is reluctant to remit to the High Court. I would not be uncomfortable at all if it dissented from Crown counsel's judgment as regards the severity of the offence and remitted to the High Court.
I am grateful to the noble Lord for his approval of the effort that has been made to increase the number of judges from 24 to 25. The arrangements that we have made for increases from time to time seem to be appropriate. I am sure that the noble Lord will appreciate that if the number of judges in Scotland is to be increased by one, two or three, that involves an extra burden on the public purse. The arrangements that we now have to bring the matter back before Parliament from time to time when an increase is necessary is the right way to do it.
Lord Macaulay of Bragar: My Lords, before the noble and learned Lord sits down, perhaps I may ask for clarification. On the figures that he has given it would appear that the money being paid to retired judges—I am not critical of them because they
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perform a great service in the Appeal Court—appears to exceed the cost of one other judge in Scotland. My arithmetic is notoriously incorrect, but it appears to work out at £104,000 on the basis of £400 a day. Is the noble and learned Lord saying that, although the Crown Office takes a decision to send a case to the sheriff court, that a sheriff exercising his authority within that court is now to be given a guideline saying, "We have sent this matter down to the sheriff court because we believe that it falls under the three years' sentence mark, but if you do not feel happy about that please send the case to the High Court and we shall sort it out there". That seems a rather dangerous practice to adopt.
Lord Fraser of Carmyllie: My Lords, as regards the latter point, I am not saying what the noble Lord suggests. There is a power to remit. As the noble Lord appreciates, sentencing is not a matter for the Crown. The Crown, and particularly Crown counsel, in marking cases for the High Court or the Court of Session, has to have some regard for the severity of the offence. The noble Lord has been a member of the Crown counsel team, and I do not believe that he would ever claim infallibility for that team in the assessment of the severity of an offence. All I am indicating, as my distinguished predecessor the present Lord Chancellor did, is that if the sheriffs consider that the offence or crime truly merits a more serious sentence than they can impose, then they should remit. The impression that I have, and I can say no more than that, is that in such circumstances they are very reluctant to do so because there seems to be an apprehension that we have a greater and more precise view about sentencing than we have.
The £100,000 figure is the one that I have given the noble Lord for the annual cost of retired judges. He has given the figure for the annual salary of a judge. If he works it out and takes account of what may be other ancillary costs, I have little doubt that the total figure would exceed that.
I am sure the noble Lord appreciates that from time to time there are peaks in the way that business comes before the courts. That is where the real value of retired and temporary judges comes in. I certainly do not suggest that we should in any way move to a very extended pool of retired or temporary judges rather than having full-time judges, but simply to have a limited number who can assist the courts in discharging their business. That is probably the best way to ensure that the business is performed expeditiously without imposing too great a cost on the public purse.
On Question, Motion agreed to.
The Earl of Strathmore and Kinghorne: My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.1 to 8.30 p.m.]

Local Government Bill [H.L.]
House again in Committee.
Clause 11 [Amendments of competition provisions]:
[Amendment No. 115 not moved.]
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 116:
Page 11, line 3, at end insert ("and under section 2(9) of the 1988 Act, the Secretary of Slate shall prescribe a de minimis provision of £250,000 in any financial year to be uprated at regular intervals in line with inflation").
The noble Baroness said: In moving Amendment No. 116 I shall speak at the same time to Amendment No. 121. I hope that the Minister has had guidance on that.
Baroness Blatch: I am not objecting, but I had a note from the noble Baroness saying that we would be dealing with Amendments Nos. 115 to 117. I shall be addressing Amendment No. 115. The noble Baroness seems to have excluded it at this moment.
Baroness Hollis of Heigham: The Minister is entirely correct. We are not moving Amendment No. 115. I have moved Amendment No. 116 and I shall speak at the same time to Amendment No. 121.
The Government have always accepted that there is a threshold of work below which the cost of preparing the tenders, specifications and so on is self-defeating. We are talking about contracts under the present de minimis rule of perhaps three or four full-time equivalent staff in cleaning or catering. When the matter arose in 1988 the noble Lord, Lord Sanderson of Bowden, felt that, as the cost of complying with the Bill's provisions looked like offsetting the potential competitive gains, there was a case for exemption. In 1988 the noble Earl, Lord Caithness, said that that figure should be kept under review and, by implication, that the figure could be raised upwards. That has not yet happened.
On this side of the Committee we suggest that the figure of £100,000 as originally fixed was too low. Refuse collection and maintenance contracts in Scotland which are above £100,000 fall into the CCT arrangements but 50 per cent. of them have received no competitive bid. The result in Scotland has been that the total costs for those contracts has increased, extra staff have been employed but no savings have resulted. The amendment seeks to probe the Minister's views on the need to uprate the de minimis provision of 1988 to a figure of £250,000. I beg to move.
Baroness Blatch: Amendments Nos. 116 and 121 seek to achieve the same end by slightly different means. Amendment No. 116 would oblige the Secretary of State to make an order dealing with a de minimis threshold under Section 2(9) of the 1988 Act; Amendment No. 121 would write that threshold onto the face of the 1988 Act.
The noble Baroness will be aware that a de minimis exemption already exists in the legislation governing CCT. The 1988 exemptions order made by the Secretary of State under Section 2(9) of the Local Government Act 1988 provides that work to a value of less than £100,000 per annum is not a "defined
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activity" and is therefore exempt from CCT. That provision applies, as would the amendment proposed by the noble Baroness, to activities already subject to the discipline of competitive tendering, and unless altered or limited in scope by my right honourable friend would also apply to any new activities added under the provisions of this Bill or existing legislation.
The existing £100,000 de minimis rule reflects a judgment as to the point at which it would not be right to oblige an authority to comply with the accounting and reporting requirements of CCT and not any belief that there are no benefits in putting work of a lower value out to tender. On the contrary, tendering, properly managed, gives opportunities for savings regardless of the size of the authority concerned and regardless of the size of the contract. It may be the case that in the light of new evidence my right honourable friend revised his judgment; or that in the case of new activities a different judgment would be appropriate. I have to say that we have as yet received no evidence to suggest that the £100,000 limit is too tight.
As far as concerns new services, if my right honourable friend brought forward any orders to extend the list of defined activities he would also need to consider the appropriate level of de minimis provision, if any.
I have to say that the Government consider Amendments Nos. 116 and 121 unacceptable. I hope that the noble Baroness will withdraw them.
Baroness Hamwee: I support the amendments. I am sorry that the noble Baroness, Lady Carnegy, is not present because I shall refer to some Scottish examples just to show that there is no discrimination. The Secretary of State might find, if he inquired, that authorities which had in their area dispersed communities would find precisely the difficulties that the amendment seeks to ameliorate. The services involved are relatively small in value. If the Minister were to make inquiries of the Convention of Scottish Local Authorities she might find that she had the evidence to persuade her right honourable friend that this matter should be looked at again.
The Earl of Balfour: Part II of the Bill does not apply to Scotland.
Lord McIntosh of Haringey: The noble Earl is ahead of himself. We have not reached Part II.
Baroness Blatch: Perhaps I may say in response to the noble Baroness, Lady Hamwee, that I have not changed my views on the principal point being raised in the amendments, but it is right that I should speak at least with my noble friend Lady Carnegy when I have an opportunity to do so. It is right that we should gather as much information as possible as the Bill goes through this Chamber. I shall do that but I want it to be on the understanding that it is without any commitment.
Baroness Hamwee: I thank the Minister for that. It is much appreciated.
Baroness Hollis of Heigham: I shall withdraw the amendment but before doing so I wish to make two points. The figure of £100,000 was set in 1988. A clear

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impression—not exactly an undertaking—was given at the time that the figure would be uprated, perhaps in line with inflation or the RPI or in terms of a more realistic figure given the outcome of experience in the form of tenders.
The figure has not been reviewed. It needs to be and it would be helpful if the Minister would say that she was willing to take the matter away and consider it. As the noble Baroness, Lady Hamwee, said, some of the strongest evidence of problems comes from Scotland. We need information in that regard. As I understand it, there is nothing in the consultation paper on de minimis. Yet, throughout the consultation process, it has been relied upon very heavily as the basis for the size of contracts in competitive tendering.
Although we have not been so fortunate, the Minister has had the advantage of reading the PA report on white collar services. That formed the basis of the consultation document. Can she say whether that report suggested any de minimis rule for professional services? It would be most helpful for us to have that information.
Baroness Blatch: It is quite impossible for me to discuss a detail of such a report from the Dispatch Box at this stage.
Baroness Hollis of Heigham: I stand to be corrected by those who are infinitely more experienced in the procedures of this Chamber than I am. However, I assumed that, where documents were part of the domain of public debate in this place, it was the Minister's responsibility to ensure that copies were put in the Library unless their contents were such that they were commercially confidential in some understandable sense—that is, either affecting individuals or the value of contracts. I do not understand why a key document which clearly influenced both the Government's thinking and the consultative White Paper about which there has been so much discussion, has been withheld from Members of the Committee. On the presumption that it does not contain commercially sensitive information, I do not understand why it should not add to the general level and nature of discourse. Perhaps the Minister can explain why that is so.
Baroness Blatch: It is not normal practice that advice which Ministers seek in order to form views —whether it be draft guidance, consultative papers or whatever—should be placed in the Library. When something is brought to this place to form the basis of legislation, it is essential to ensure that, for example, any guidance or forethinking should be in the public domain for consultation. That is precisely what is in the public domain. The noble Baroness is referring to advice which was taken en route.
Baroness Hollis of Heigham: It is for the Minister to say what is and what is not in the public domain. I do not see the difference in status between a PA report which may raise questions of de minimis and which would be helpful for us to explore—a report which is not available for us to consider but which has nonetheless influenced the thinking in the consultative
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paper—and some of the consultative papers that will be available for consideration either before or after Christmas upon which the basis of legislation, and the Secretary of State's powers, will be drawn. I do not see the difference between either set of documents. Both of them are informing us about the Government's thinking and both of them are leading to the formation of the nature of the legislation under discussion today.
It would be most helpful to Members on both sides of the Committee to have that document. It would provide clarification of thought on some of the principles that have been raised. The unavailability of such information does not improve the standard of debate in this Chamber. However, perhaps we can return to that matter at a later stage. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 117 not moved.]
Clause 11 agreed to.
8.45 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 118:
After Clause 11, insert the following new clause:
("Consultation over contract specifications
. Where a local authority draws up a document specifying the nature, quality, quantity or otherwise detailing a service for which a contract is to be offered for tender competitively it shall consult—

(a) such voluntary organisations and statutory bodies as appear to the authority to represent the interests of persons who use or are likely to use such services within the area of the authority and;

(b) such persons and voluntary organisations as appear to the authority reasonably to be in a position to offer such services.").

The noble Lord said: This amendment is in the form of a new clause. I should say straightaway that this is not necessarily a clause which will appeal to some of my friends in the local authority associations and in local authorities. I say that because it is, quite irrespective of any responsibility that the Secretary of State may have, putting additional obligations on to local authorities. However, I believe that local authority members and officers generally would welcome such a clause. It opens up the procedure for competitive tendering in a way which does not threaten the general thrust of the Bill; indeed, that is not the point. In fact, it ought to improve the tendering process.
Where local authorities have been providers of services for a very long time, they naturally adhere to their own ways of providing such services. For example, they are used to their own standards and to the assumptions that they make about levels of provision. Therefore, with the best will in the world, it is very difficult for such local authorities to accept that there may be totally different ways of doing things. It is only too likely that they will frame a tender document in the light of their own experience. I can think of many examples where central government do likewise. I can also think of many other examples where this happens in business life. Indeed, it is nothing unique to local authorities.
We are seeking by way of this amendment to provide that particularly voluntary associations and statutory bodies which represent the interests of persons who use or who are likely to use the services, and persons in voluntary organisations who might be in a position to offer such services, should be consulted about the tender document; in other words, in the words of the amendment, they should be consulted about,
"a document specifying the nature, quality, quantity or otherwise detailing a service for which a contract is to be offered".
That in no way means that that consultation should affect the tendering process itself. That must be a commercial process as between those who are tendering for the service and the authority which is issuing a tender for the service.
When the decision is being taken about the content of the lender document, it seems to us to be common sense that a local authority should be required to consult those who have different detailed experience on the ground of the real needs of service users. For example, the London Borough of Bromley has been putting out its children's homes to private tender. I have no personal knowledge of that tendering process. I do not know what the result has been. However, there are many people in the voluntary and in the private sector who have real experience of running children's homes outside local authority control. It seems to me that it would be most sensible for the London Borough of Bromley to be required to talk to the National Children's Home or the National Association of Young People in Care, both of which represent the users and not the providers of the service about such a contract.
Again, looking at the providers of services, although I mentioned the National Children's Home, Barnardos might also be tendering for the contract. Without prejudice as to whether the latter would obtain the contract, its experience is relevant and ought to be brought in. The National Society for the Prevention of Cruelty to Children above all ought to be able to comment on the quality conditions in the tendering document which would actually protect the rights of children in homes.
There are many examples of that sort of consultation procedure in the National Health Service and Community Care Act 1990. Moreover, there are plenty of examples where not only has it been enacted, but my understanding is that it also actually works. It does not delay the tendering process; indeed, it improves it. In my view, it is a worthwhile addition without in any way threatening the tendering process which is proposed under the Bill.
I can give many more examples. I suppose that the classic or e would be the planning service. However, I shall restrict myself to what I have already said. I hope that the Minister will feel that this amendment is one that does not threaten the thrust of the legislation but that it actually offers the opportunity for the tendering process to be improved. I beg to move.
Baroness Blatch: We wish to encourage local authorities to consult consumers of services about the standards that they desire. Indeed, this almost links
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back to the very first amendments to the Bill. The difference between talking about aspirational targets or aspirational service standards and the actual business of putting a contract out and delivering good services. This is at the heart of the Citizen's Charter. We believe that outside providers should also be consulted. However, we are not convinced that the proposed new clause covers all those who should be consulted; nor are we convinced that it is necessary or desirable to consult each time a specification is drawn up.
Finally, the amendment does not provide—this is important —for consultation about service standards when the work is to be done in-house without competition. In our view, there should be concern about standards whoever provides the service. Indeed, experience shows that control over the setting of standards is often slacker when there is no competition since, without a clear separation between service provider and the in-house client, the standard tends to be set by and for the convenience of the provider rather than through explicit consideration by the council in consultation with consumers.
I understand what the noble Lord said, but there is nothing to preclude local authorities from communicating with the public about the standards of service and the service delivery that they want. We do not want on the face of the Bill something that adds to the bureaucracy and does nothing necessarily to improve what happens between a local authority when it is providing through its DLO or outside contractors through competition.
Baroness Hamwee: I support the amendment. I note what the Minister says. If the amendment can be improved, I am sure that that is something that its movers will take on board at a later stage. To involve and take advantage of the knowledge and experience of the users and other providers of the service is a necessary part of the whole process. The Minister says that the amendment does not include consultation with regard to direct service organisations. I should have thought that the earlier clauses of the Bill relating to performance standards would have covered that ground more than adequately.
I commend the amendment to the Minister, and I shall use one of her own examples. In my borough, as she is aware, work in the two royal parks is going out to tender. I might have a discussion with her on another occasion about the process that was gone through. The friends of the parks appreciated that they did have a chance to comment, albeit just a little one, on the specifications. There were some discussions with the Minister. They were glad of the opportunity to make comments even though they had only about a week to do so. I believe that that will have informed the process and will lead to a better outcome.
Lord Mancroft: I understand and appreciate the motives of the noble Lord, Lord McIntosh, in moving the amendment. It is important and it is a good thing that it has been discussed by the Committee. Some of the Members of the Committee may be aware that I am involved with some voluntary organisations who

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regularly tender for contracts with local authorities. It is my experience that most local authorities have close relationships with those voluntary organisations. The people within the voluntary organisations who are responsible for providing care together with local authorities have close, ongoing working relationships with them. There are sensible people on both sides of the equation. They seem to work well together so that the provider provides what the local authority wants and the local authority lets the provider know what it wants. They seem to come to good conclusions. Not always, of course, but on the whole, the system seems to work well.
Whereas I appreciate that the closer the contact, now and in the future, the better, it seems to me that that does not have a place in the Bill at the moment. I do not believe that it would provide any higher standard of service. My experience is that the voluntary organisations provide a higher level of service than the local authorities have been asking for. Their standards are infinitely higher which is why it is so much more satisfactory for the local authorities to shop around among the voluntary organisations. Although I concede that it might be nice to include in the Bill the requirement that local authorities should have an obligation to consult, it seems to me that they consult without that obligation and that there is no possibility that they will stop consulting. It would be an extra, unnecessary adjunct to the legislation.
Baroness Blatch: I thank my noble friend for that interjection. It illustrates the difference between the two sides of the Committee. We are not in any way invalidating the need and the desire to consult local communities, but when wording on the face of the Bill such as, "it shall consult"—again, I say that this relates to competitive tendering only—
"such voluntary organisations and statutory bodies as appear to the authority to represent the interests of persons",
who may use the services, is suggested, we are aware that that is a difficult thing to do. How does one consult everyone who represents the people? Does it include every organisation that represents someone who will use the services? The amendment continues,
"and such persons and voluntary organisations"—
it is an "and", so additional consultation is required—
"as appear to the authority reasonably to be in a position to offer such services".
The difference between us lies in the compulsion to add a layer of bureaucracy. That is so because if accepted these would be requirements and obligations under the Bill. The consultation would have to take place every time a specification was altered in any way. Under the amendment, once there was a change of a word, or a phrase, or a slight modification, there would be a requirement to go out to a raft of consultations, in addition to what is already happening informally and effectively.
Lord McIntosh of Haringey: I believe that the Minister will concede that when I moved the amendment I did so in a reasonably conciliatory way and without in any way threatening the thrust of this part of the Bill. I can only conclude from that strange
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reply that after what happened last night the Minister is under orders to ensure that no comma or phrase in Clauses 8 to 11 is changed. That is the only charitable reason that I can adduce.
The amendment says nothing about what the Minister described. It provides that the local authority,
"shall consult such voluntary organisations and statutory bodies as appear to the authority to represent the interests of persons who use or are likely to use such services".
If it does not appear to the authority that there are any such organisations, it does not need to consult. The amendment continues:
"such persons and voluntary organisations as appear to the authority reasonably to be in a position to offer such services".
If it does not appear to the authority that there are any such persons or voluntary organisations, then it does not need to consult. It is not a prescriptive requirement. No extra bureaucracy is involved. It is, as I think the Minister in one of her candid moments admitted, something which reasonable local authorities might wish to do. Let us encourage them to do so, and let us encourage them in this modest way.
It can only be a determination not to have one change in the Bill which can have led the Minister to have responded in that unhelpful way.
Baroness Blatch: Let me give the noble Lord an example. It is not an unusual one. Let us take road maintenance. Every person within a local authority area and every organisation—there is no person or body who would not have an interest—will have an interest in the repairing and maintenance of roads. Where does the consultation begin and end? If it were to be selective, it would be unhealthy. We should leave local authorities free to determine how they communicate with their local communities. On the basis of the proposed measures people will have a good deal of information about the quality of that communication. They can at election time make real judgments about whether they have a council that communicates effectively.
Lord McIntosh of Haringey: Again, the Minister has not observed the difference in wording between paragraphs (a) and (b). In paragraph (a) we talk about the interests of persons who use or are likely to use the services, and we restrict the consultation to voluntary organisations and statutory bodies. When we talk about people who are in a position to offer the services, paragraph (b) provides for such persons and voluntary organisations. There is no risk of the local authority being flooded with the views of users of the services. I wish there were. That would be much better. If that were possible, and if the amendment had not been tightly drawn, the local authority could fulfil its obligations merely by advertising and saying that anyone fitting those categories who would like to have a copy of the tender documents and comment upon them should write and obtain one and reply by the following Friday, or whatever the time limit may be. The Minister is making heavy weather of what was intended to be a helpful suggestion. If the Government

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are going to be intransigent on this as well as all other matters, I am afraid that there is no alternative but for me to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9 p.m.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 119:
After Clause 11, insert the following new clause:
("Saving for E.C. legislation
.The exercise of the powers conferred on the Secretary of State by and under sections 8 and 9 above shall be without prejudice to the operation of European Community legislation relating to the co-ordination of procedures on the award of public contracts, or to the operation of regulations implementing such legislation.").
The noble Baroness said: The amendment refers to the EC directives and asks that the powers conferred on the Secretary of State,
"shall be without prejudice to the operation of European Community legislation".
The reason for the amendment is that the consultative document nowhere refers to EC Directives. I stand to be corrected on this but as I understand it, EC Directive 71/305, taken with the latest revision of 89/440, defines CCT arrangements for public works where the contract value is above 5 million ecu or over £3 million. We have those EC directives and a draft directive which I understand will probably come out later this month, Directive 91/332, which will apply to public services. It would come into effect in mid-1993.
At the moment, defined activities, those covered by CCT, an; exempt from EC law, but from mid-1993 they will no longer be exempt. In addition, those professional public services such as architecture, engineering and the like, the priority services referred to in the consultative paper, will also come under EC law. The point was made earlier this afternoon that where national law and EC law conflict, EC law prevails. The sanctions include the withholding of significant sums of EC grants.
The amendment seeks to ensure that there is co-ordination and not potential conflict between national regulations and EC directives. I suggest that the issue might usefully have been explored in the consultation paper. As it was not, we hope that the Minister's, response will indicate ways in which the two bodies of legislation, potential and actual, may be aligned.
I remind the Committee that as regards some of the professional services—architecture, engineering and subsequent legal, personnel, financial services and so on—there is the presumption in the White Paper of a double envelope procedure. First, there would be a quality threshold and once bids had passed it, the presumption was that one would go on to the second stage where bids would be judged by cost. One would take the lowest.
Why is it worth proposing this amendment? What is the difference between the procedure outlined in the consultative paper and what we understand to be the case under EC law? Under the latter, after passing through stage one, the quality threshold—and here the national and EC law are in agreement—the local authority can either take the lowest price which is the
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route in the Government's White Paper or (and this is the important point) the local authority can go for the economically most advantageous tender. This brings us full circle back to the discussion we had earlier on as to whether we should take the lowest tender, even if ultimately it produced increased costs.
According to the EC, the economically most advantageous tender might include consideration of such issues as technical merit, service quality, delivery dates and the like. In other words, under British law one would tend to go for the cheapest; under EC law it is clear that one has a choice of going for value for money, if the client chooses, where it is not the cheapest. That is an argument that the Government themselves accepted in their guidance on purchasing policy, Circular 116/90: the cheapest is not always the best value.
Maybe the Government agree that that is the route that local authorities are permitted to follow. After all, it is what the Audit Commission suggested we do, as well as what the EC proposes. However, with the wording of the amendment, the phrase "economically most advantageous" would mean that the local authority would still have to have good reason for departing from the cheapest price, but it would permit the extra degree of flexibility for local authorities. Value for money would be safeguarded. It would, however, ensure that domestic law and EC law were co-ordinated in ways that would enhance the capacity of local authorities to pursue value for money. I hope that the Minister will support the amendment.
Baroness Blatch: I entirely accept the sentiment underlying the amendment. The United Kingdom is part of the Community and the Government wish to implement Community legislation in full. But the new clause is unnecessary. Without it, it would be unlawful to use the powers in Clauses 8 and 9 in such a way as to conflict with EC legislation. Should it happen inadvertently, then as the noble Baroness pointed out, European Community legislation would take precedence. In any case, our proposed use of these powers is wholly consistent with European Community works and services directives. So the new clause neither adds to nor subtracts from our proposals.
We must not be in the business of introducing new legislation which has no effect whatever. The effect of the amendment is entirely neutral, therefore it is superfluous. I hope that the Committee will not accept it.
Baroness Hollis of Heigham: Perhaps I may seek clarification of the Minister's comments which took me somewhat by surprise. Is she saying that the amendment is unnecessary, because either the British Government are already doing that or will have to do so when the EC directive comes into force? Is she saying that it is permissible for local authorities to accept the economically most advantageous tender when it is not the cheapest? Does she accept that into the consideration of "economically most advantageous" will go precisely the shopping list which we considered under Amendments Nos. 104 to 109 which she has hitherto rejected?
Baroness Blatch: We have signed European Community law and under it we have no alternative but to adhere to it and abide by it. We have an obligation to do that. As regards those aspects where the noble Baroness believes there may be a total contradiction or breach of European Community law in the way in which the Bill will work or in the way in which local authorities behave, that would seem to be illegal. I said that European Community law would override national law in these matters.
Baroness Hollis of Heigham: I thank the Minister for that response. I take it to mean that with some of the amendments which we moved and which the Minister was unable to support, Amendments Nos. 104 to 109, the Minister accepted publicly that real costs were to be incurred by the local authority and they might come into consideration when determining whether to accept an outside contract because they were part of the total package in deciding whether or not something was economically more advantageous to the local authority.
If that is what the Minister said, as I take it to be, then although the Committee may not have accepted Amendments Nos. 104 to 109, nevertheless those amendments will come into play when the EC directives for mid-1993 are in place. In the light of that, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [Amendments of Competition Provisions]:
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 120:
Page 28, line 35, leave out paragraph 10.
Lord McIntosh of Haringey: The noble and learned Lord has indicated to me that he does not wish to move this amendment.
[Amendment No. 120 not moved.]
[Amendment No. 121 not moved.]
Schedule 1 agreed to.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 122:
Before Clause 12, insert the following new clause:
("Abolition of the Local Government Boundary Commission for England
. The Local Government Boundary Commission for England shall cease to exist with the commencement of this section.").
The noble Lord said: I beg to move the new clause standing in my name on the Marshalled List and to speak also to Amendments Nos. 226 and 227 to Clause 24. I put down these amendments in the spirit of innocent inquiry. Hollow laughter opposite! Wait for it, and I shall explain. Part II of the Bill, which we have now reached, replaces the Local Government Boundary Commission for England with the new Local Government Commission for England. This is necessary because the existing commission, which was set up under Section 46 of the Local Government Act 1972, is too restricted in its remit for the job that the Government, with much agreement up and down the country, now wish it to perform.
The problem is that the existing commission is restricted in making representations to the Secretary of State to effect changes in local government areas
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appearing to it to be desirable. It is only permitted to suggest amalgamations and separations for areas of "like description", which of course will lead to amendments later in the names of various of my noble friends. In other words, to change areas either within districts or within counties.
Clause 14 of this Bill, however, gives them much wider functions, and in subsection (2) (b) allows them to recommend changing, for example, counties into districts, or a district council, or presumably groups of district councils, into a county. Also, in subsection (1) (a), it permits unitary authorities. Clearly there are two legislative methods of achieving this end. The first, which the Government have I believe quite rightly rejected, is to increase the powers of the present boundary commission to achieve the Bill's objectives. I believe that if they had done this it would have resulted in an unduly complicated piece of legislation by reference which, in the terms of the famous book 1066 and All That, would be a bad thing.
The other method is to destroy the old commission and create a new one to carry out both the existing functions and the extra ones conferred upon it by the Bill. Interestingly, however, the draftsman has chosen to do something else. He has set up a new commission —11 clauses and 1 schedule, if my mathematics are right—before abolishing the old one. This formulation is upside down, and I should like to ask my noble friend why they have prepared Part II of the Bill in this way. After all, you cannot fill a jam pot with honey before emptying out the strawberry jam. I beg to move.
Baroness Blatch: I am relieved that this is a probing amendment. As I understand the amendment, the effect would be to abolish the Local Government Boundary Commission on the date that the Bill receives the Royal Assent, irrespective of whether or not the new Local Government Commission had been set up. Clause 24, which abolishes the Local Government Boundary Commission, is to come into force on a day to be appointed by my right honourable friend the Secretary of State. This approach secures maximum flexibility over the timing of the winding up of the Local Government Boundary Commission in relation to the setting up of the new commission. The new commission can be set up at any time after Royal Assent and as soon as my right honourable friend appoints its members.
What I can say to my noble friend is that we are firmly committed to winding up the Local Government Boundary Commission at an early date. Indeed, we have no wish to see it in being any longer than is necessary to effect a smooth transition of work from the boundary commission to the local government commission. To achieve an orderly transfer of work from the Local Government Boundary Commission to the new commission we need to retain flexibility in the winding up of the Local Government Boundary Commission.
There is very little between us if the fear behind the amendment is that we shall have a duplication and the boundary commission in being for longer than necessary. I hope I have been able to assure my noble friend that that will not be the case.
Lord McIntosh of Haringey: Are not the Government in danger of falling into the trap of the city fathers of Limerick? The Minister will recall that the city fathers of Limerick resolved to build a new jail. They resolved to build it with the stones of the old jail, and they resolved to keep the old jail in operation until the new jail was ready.
Lord Skelmersdale: I think my series of amendments fails with respect to the story that the noble Lord, Lord McIntosh of Haringey, has just enunciated. I accept my noble friend's strictures on the amendment. However, she has not answered my point. That point is, why delay destroying the old commission until after the new one has been appointed? I accept that I could have said in my amendment that:
"the Local Government Boundary Commission for England shall cease to exist with the commencement of this Part",
in which case I suspect that my noble friend's worries would have been alleviated.
She did not answer the main thrust of what I said in my introduction. However, this is not the time to go into detail. Perhaps she will be good enough to write to me to tell me the real reason behind her rejection of my point.
Lord McIntosh of Haringey: I regret being tempted to get to my feet again, but if this is not the time to go into detail, when is?
Lord Skelmersdale: When I have an answer that I can understand to the point which I enunciated in my introduction to my amendment, which I shall clearly not receive tonight. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 [The Local Government Commission for England]:
[Amendment No. 123 not moved.]
Clause 12 agreed to.
Schedule 2 [The Local Government Commission for England]:
9.15 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 124:
Page 29, line 34, leave out ("five and not more than fifteen") and insert ("twenty-five and not more than thirty-one").
The noble Lord said: Amendment No. 124 starts the consideration of the composition, powers and responsibilities of the Local Government Commission. Looking at the amendments to follow, perhaps the Committee will allow me to say that this is not the most important of those amendments. However, it is of some significance. The Government's declared intention, as set out in the consultation paper, is that the commission should not just have completed its work by 1st April 1994 but that the new authorities should be established by 1st April 1994.
I do not know how many other noble Lords have been involved in past reorganisations of local government. I was involved in the reorganisation of London government in the early 1960s. I can assure the Committee that that timescale, involving a body of between five and 15 people going round the country
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place by place and making judgments about the local government structure for those areas and then putting their recommendations into effect, is extraordinarily tight. I seriously doubt whether that is possible.
I realise that Mr. Banham has been appointed chairman of the commission. I should be very interested to hear his views about the feasibility of completing the work in that time. After all, the period between the passing of this Bill and the implementation of the new authorities is scarcely more than two years. I should also be interested to know what plans Mr. Banham has and what plans have been proposed to him by the department in respect of the work he will have to carry out and the work consequential on the work of the commission.
It may be that the Government have ideas for splitting up the commission and for it to operate in different areas at once. If that is the case I suggest that that would be a very sensible way to approach the problem. A commission consisting of between five and 15 people is simply not large enough. If it is to rely on members of the commission rather than on people brought in on an ad hoc basis to assist the commission —although I believe that that is required for the purposes of continuity and comparability between the deliberations of the commission in different parts of the country—it ought to be a larger commission.
A further advantage of a larger commission is that it enables the commission to include people with real experience of communities as well as local authorities in different parts of the country. I shall not press that point too far because it is the subject of subsequent amendments. However, it is important to recognise that, unless there is a commission of sufficient size to include wider representation, none of the other provisions, either in our amendments or in the Government's own plans, for a representative and well-informed commission will be realised.
I find it impossible to conceive that the commission as proposed can complete its work in the time proposed by the Government. I make this suggestion of a larger commission not out of any desire to frustrate the work of the commission. I made it clear from the outset at Second Reading that we were not opposed to the establishment of a commission or the principle of local choice in the structure of local government. We are certainly not opposed to the thrust towards unitary authorities which is in the Government's mind and has been in the mind of the Labour Party for a considerable time. In order to make it work I suggest that the Government would be wise to accept the amendment which is intended only to be helpful. I beg to move.
Baroness Hamwee: I support the amendment for the reasons given by the noble Lord, Lord McIntosh. Perhaps I may give him a minor piece of news. Although I do not believe everything that I read in the newspapers, the Times of 29th November carried a report of an interview with Mr. Banham. With regard to the number of commissioners, he is quoted as saying:
"It is not quite the more the merrier, but I do want to see a broad commission so that individual commissioners could look at individual parts of the country in detail".

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I am not sure whether the Government or Mr. Banham have in mind that one commissioner will take one area. That is what the reporter then goes on to say, but the report also comments on the fear of local authorities that areas which are left until last will lose key staff to places which have been reviewed earlier. That is a serious and well-founded fear. I therefore support the possibility of extending the numbers and putting in a floor to the numbers so that the job can be done thoroughly and swiftly.
Earl Howe: The amendment would give the commission between 25 and 31 members. The matter has been considered carefully and we cannot see a need to increase the number of members of the commission as the noble Lord, Lord McIntosh, proposes. We have said that we wish the commission to carry out a rolling programme of work, looking at the country area by area in a timetable that we believe is achievable. The noble Lord mentioned April 1994 as a deadline. It is intended that only a limited number of the new unitary authorities should be up and running by that date.
The number of commission members specified in Schedule 2—between five and 15—seems to us a perfectly adequate number given the way in which we have suggested that the reviews should be carried out. It is always difficult to reach a consensus with a larger number of people and we have deliberately chosen a manageable number in order to facilitate the commission's work. It is not as though it will only be the commissioners themselves who are doing the work; they will have a capable staff to advise them. I therefore urge the noble Lord not to press the amendment.
Lord Skelmersdale: Following a point made by the noble Baroness, Lady Hamwee, it is fair to ask my noble friend how he anticipates that the commission will work. Does he expect that there will be one commissioner per inquiry or that there will be more? It is clear to me that there will be several areas under review by the commission as a whole at any one time. Clearly, not only must it have the staff to do the background, nitty-gritty work, but it must have one or more commissioners involved in particular areas.
Lord Stoddart of Swindon: On Second Reading on 18th November I commented at col. 736 of Hansard:
"Those authorities reviewed at a late stage will find it difficult to recruit and retain staff. Therefore, I believe that if local government reorganisation is to be a success it is essential that there should be a thorough national review followed by implementation on a single vesting day".
That is still my view. I support my noble friend's amendment for the reasons that he gave and for the additional reason that a rolling programme is dangerous in that it may roll on for too long. I hope that even at this late stage the Government will consider the need to have a thorough but rapid look at the boundaries and come forward with proposals which can be implemented on a single day. Acceptance of the amendment would help them to do just that.
Baroness Seear: I should like briefly to add to that. Other speakers have spoken of having one commissioner in one place and one in another. I should have thought it totally unsuitable to have fewer than two people. In undertaking such a job one needs to rub one's mind on someone else's. One needs at least two people in each area that is being studied. With the timing involved, that requires double numbers.
Lord Skelmersdale: That is why I asked my question of my noble friend. If one reviews an area in its entirety, one will overcome the problem that the noble Lord, Lord Stoddart, sought to address. For example, if one considers the whole of Somerset, Avon or Berkshire—the noble Lord knows Berkshire better than me—the problem of the available labour pool being snapped up by one part of the area or another should be avoided.
Lord McIntosh of Haringey: I wish I thought that it would work that way. Unfortunately, what has been said about April 1984, and about the commissioner moving around the country, fills me with apprehension. The noble Lord, Lord Skelmersdale, cited the example of Somerset and Avon. It has been made clear that it is the Government's intention to start with Avon and Humberside. Those are probably the least popular of the new counties. But let us consider what occurs if one starts with Avon. Presumably one will create a county borough of Bristol and some unitary district councils around Bristol, some in what is now Somerset, some in what is now Gloucestershire and so on. The knock-on effect on the remainder of Somerset with regard to the possibility of a coherent structure in the areas which are not at present included in Avon, and perhaps should be included in the new unitary councils around Bristol, is very great.
I cannot understand how one can have a general rolling programme which will not be sub-optimising. (I apologise for the jargon.) It will produce solutions which are appropriate at the time that the decision is taken—let us say, June 1992—but would not be appropriate if the consideration did not take place until June 1993. We are not playing a jigsaw puzzle game with maps. We talk about the way people organise their local government. To be honest, I cannot see the system working.
Lord Skelmersdale: That is the point I made. I am glad that the noble Lord referred to Avon. One cannot look at the city of Bristol or the existing county of Avon without considering the surrounding areas. That is why I said that one must look at large enough areas. That is what I would expect the commission to do.
Lord McIntosh of Haringey: There will always be boundaries relating to the bigger areas. My noble friend Lord Stoddart is right. The idea that one can go piecemeal round the country and then implement the system on a piecemeal basis will not work. I do not see how it will be made to work.
We may have moved a little away, although not far away, from the size of the commission. The ability of the commission to undertake a number of inquiries which will have implications for each other as well as

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for local people is severely constrained by the proposed size of the commission. The noble Baroness, Lady Seear, is entirely right. To have a single commissioner, perhaps with outside help, undertaking an inquiry will not be satisfactory from the point of view of that commissioner or anyone else.
In addition to the arguments that I have adduced about the speed with which the commission can work and its representative nature, the commission must be convincing and acceptable. It must be understood to be fair and representative to local people who will give evidence to it. I do not see how that will be achieved with a small commission such as is being proposed.
The noble Baroness, Lady Hamwee, with her quotation from Mr. Banham, revealed that those who thought about the matter more deeply than the Government appear to have done have come to a different conclusion from that of the Government. I am delighted to yield to the noble Earl.
9.30 p.m.
Earl Howe: It is the Government's intention that the commission should carry out its work area by area. An area could be larger than a county. In all respects, the Government will determine a programme which makes sense. At the same time the commission will be able to find the best local solutions and we shall be able to move quickly in those areas where the case for change is established. It is by no means clear that Avon and Humberside will be the first on the list. That suggestion has been mooted but no decision has yet been taken. I understand the points that have been made and I am sure that they will be borne in mind when the commission begins its work. However, the commission will not be overstretched and we shall ensure that it carries out its work thoroughly.
Lord Stoddart of Swindon: Let us suppose that it is found that the commission cannot carry out its work with the number of members and the staff available. Are the Government prepared to he sufficiently flexible to increase the members as it goes on? Will the Government return to Parliament and say, "This is not working. Will you give us the power to appoint more commissioners?"?
Earl Howe: We do not envisage that to be a problem.
Lord McIntosh of Haringey: The noble Earl's answer merely papers over the cracks. He has heard from Members on all sides of the Committee about the anxieties of those who know what they are talking about. It seems that they have a better idea of the task that will face the commission than the Government have, although perhaps not a better idea than Mr. Banham judging from what he has said.
The Government are digging themselves a trap by restricting the membership of the commission to 15. They will discover that in doing so they are committed to a procedure which will be far too long and drawn out. It will result in decisions being taken which are the best for the present but not for the future, but with which they must continue for a long time. The Government's motives in setting up the commission
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are admirable but they will find themselves with a monster; not a monster that is too large, but one that is too small and too slow. It is an issue to which we must return in some form at a better hour of the day. Only on that basis do I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 125:
Page 29, line 35, after first ("State") insert ("of whom not less than half nor more than three quarters shall be persons having knowledge or experience of local government").
The noble Lord said: I shall speak also to Amendments Nos. 126 to 130. I appreciate that not all those amendments are tabled in my name and that of my noble friend Lady Hollis. It is a matter for Members of the Committee to decide whether they wish to have their amendments grouped with ours. In the amendments we are concerned not so much with the size of the Local Government Commission but with its membership and representation. Disappointed as we are with the Government's response about its size, we wish to pursue the question of its representative nature.
Amendment No. 125 suggests that not less than half and not more than three-quarters of the commission should be people with knowledge or experience of local government. The commission is about local government and communities, although we recognise that it is not confined to that. We believe that it would be a good idea to have a levelling of people who come freshly to the problem and who have never been involved with local government. The fundamental skill which will enthuse the work of the commission will be based inevitably on some experience of the working of local government, of the problems that may arise with two-tier authorities, of the problems of dealing with the needs of communities and authorities which are too large and of dealing with services in authorities which are too small. That is the single most relevant piece of experience and it should be heavily represented on the commission.
Amendment No. 126 suggests that the membership of the commission should be established,
"after consultation with the local authority associations and such other organisations as are appropriate".
In this case consultation is likely to mean asking people for suggestions as to who are likely to be members rather than saying, "This is our list. What do you think of it?" I cannot imagine that it will take the second more formal form. We do not suggest exactly how consultations should proceed but we say that the Government should take advantage of the skills which exist in the local authority associations in particular and that we should seek that help in finding people who are both willing and able to do the work. "Able to do the work" is a major consideration because a huge task is proposed.
Amendment No. 127 is no longer relevant. The chairman has already been selected. I shall not move that amendment because of the appointment of Mr. Banham.
No doubt the noble Lord, Lord Norrie, will speak to Amendment No. 128 which is in his name. We

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support the view that there should be representation of environmental interests on the commission. Despite the words of some Members of the Committee earlier, that thread should not merely run through the considerations of the commission but in a sense should suffuse them. No doubt the noble Baroness, Lady Hamwee, will speak to Amendment No. 129 which is in her name.
Amendment No. 130 is in the name of the noble Baroness, Lady Young, and my noble friend Lady Hollis. The amendment is concerned with consultation on the appointment of a chief executive. Clearly that will be a critical part of the commission's work. If consultation is, as we believe, appropriate for the chairman and members of the commission, so too should it be for the appointment of a chief executive.
On Second Reading, at col. 795 on 18th November, the Minister said that the Government would seek a balanced membership for the commission covering those with local government experience and those with other experience too. The amendments seek to give flesh to the intention expressed by the Government which we fear is not adequately expressed in the Bill as drafted. I beg to move.
Baroness Hamwee: I speak to this amendment and some of the amendments grouped with it. As regards Amendment No. 125, this is an occasion —and in a way I am glad to have found one—on which I disagree with the noble Lord, Lord McIntosh. I do not like to see legislation prescribing the knowledge and experience of a number of members of the commission and particularly not such a large number as one-half to three-quarters. The members of the commission have an enormous amount of ground to cover: voluntary organisations, local business interests —and in our discussions about communities over the past two days we have tended to forget that local businesses are also part of our communities—public service organisations and the general public. The list could be long. It would not be appropriate to be as prescriptive as is suggested.
Amendment No. 129 is a probing amendment. I hope that the Minister will be able to explain what is meant at line 46 on page 29 where paragraph 1(5) (b) states:
"The Secretary of State may remove a member of the Commission from office if he is satisfied that he … has not complied with the terms of his appointment".
My amendment attempts to discover what will be the terms of the appointment. It seems to me that the terms should be the duty to fulfil the functions of the commission. However, the amendment is tabled in order that we may learn what is meant by that last line on page 29.
Lord Norrie: Perhaps I may speak to my Amendment No. 128, which was supported by the noble Lord, Lord McIntosh. It seeks to ensure that among the members appointed to the Local Government Commission there is adequate representation of environmental interests.
The Bill provides the Secretary of State with considerable discretion in deciding who to appoint to the commission. Although we now know that the
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commission will be headed by John Banham of the CBI, we have yet to hear from the Government regarding the background and experience that the Secretary of State will be seeking when appointing members of the commission. That is a matter of interest to everyone affected by local government reform. It is important that the Bill tells us more about the criteria to be used in appointing members of the commission.
Members of the Local Government Commission will undoubtedly need to cover a wide range of expertise across the spectrum of local government services. I contend that it is not enough to ensure that members are experienced in or knowledgeable of local government. It will be necessary to ensure that the commission has an understanding of all local government services.
The growing importance of environmental concerns is widely recognised. My right honourable friend the Secretary of State for the Environment, in his introduction to the Government's first year report on the environment White Paper, said, when referring to the need to build environmental concerns into policy making,
"there will be an environmental expert on relevant Government committees and bodies".
The need for environmental expertise on the Local Government Commission cannot be over-emphasised. In the same first year report the Government made an important commitment that local government reform should make local authorities "better able" to rise to the environmental challenge. It also stated that the Local Government Commission will consider the need for effective environmental protection in developing proposals for reform.
I am particularly concerned that the importance of strategic planning for environmental protection is fully understood by the commission. To meet the environmental expectations of local government reform the Secretary of State should appoint appropriate people to the commission. They should have an understanding of the nature of the environmental challenge and the sort of local authorities we need in order to meet that challenge. That is what I hope my amendment will achieve.
Baroness Seear: Briefly commenting on what my noble friend Lady Hamwee said in regard to Amendment No. 25, I do not quite know what the noble Lord, Lord McIntosh, is seeking. He says that these people must have knowledge or experience of local government. The word "or" implies that they do not need to have had experience of local government. Can there be anybody in the country, after the poll tax, who does not have knowledge of local government? Who are those people?
Lord McIntosh of Haringey: Tony Travers of the London School of Economics.
Baroness Seear: The London School of Economics, in my experience, is by no means always correct.
Earl Howe: All these amendments in their various ways concern the membership of the Local Government Commission or its staff. Two of the

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amendments require my right honourable friends the Secretary of State and the Home Secretary, who is also concerned with the appointments, to consult the local authority associations and other organisations about the appointment of the chairman and members of the commission.
Amendment No. 130 requires my right honourable friends to appoint at least two members of the commission after consultation with environmental bodies. Amendment No. 125 would require between half and three-quarters of the commission members to have knowledge or experience of local government.
Naturally my right honourable friends welcome the suggestions they receive from the associations and other organisations, including bodies specially concerned with the environment, about people who might be suitable for those appointments. We have made it clear that we want people on the commission with knowledge of local government. I know that my right honourable friend has said that he fully intends to ensure that environmental issues are covered. But decisions about the appointments are for my right honourable friends and we do not accept that it is appropriate for there to be a statutory requirement for consultation before the appointments are made, nor do we consider it appropriate—as Amendment No. 130 would require—to lay an obligation on the commission to consult these bodies about the appointment of its chief executive. As has already been mentioned in the debate, my right honourable friend announced in reply to a Parliamentary Question—
Lord Stoddart of Swindon: I am obliged to the noble Earl for giving way. He said that the Secretary of State will not consult the authorities and that he must be left free to do what he wants. Surely he is going to consult some people. The Secretary of State cannot possibly know the range of people who might be able, willing and competent to serve. Are not the best people to consult those who know something about the issues involved?
9.45 p.m.
Earl Howe: I did not say that the Secretary of State would not consult. I said that on the face of the Bill he should not be obliged to consult, which is a very different thing. Mr. John Banham, as has been mentioned earlier in the debate, and currently Director General of the CBI, will be heading up the commission. I am sure that noble Lords will agree that Mr. Banham has an excellent knowledge of local government from his former role as controller of the Audit Commission and that we can expect an outstanding contribution to the commission's work from him.
Amendment No. 129 seeks to require the terms of appointment of commission members to include a duty to fulfil the functions of the commission along with other members. It seems self-evident that that is what being, a member of the commission means. The requirement in Amendment No. 129 seems entirely unnecessary and inappropriate. The noble Baroness, Lady Ham wee, asked me a specific question about the
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meaning of Schedule 2, paragraph 5(b). That provision enables my right honourable friend the Secretary of State to remove a member from office if he is satisfied that that member has not complied with the terms of his appointment. What is referred to here is the simple matter of a contract of employment as is quite normal in business.
As regards the composition of the commission about which a number of Members of the Committee have asked, we are not publishing the criteria that will determine its make-up. It will be a balanced commission and the members will he taken from as wide a cross-section as possible, with professional experience, taking into account the expertise required for the job. The anxieties expressed this evening are ones which I, and I am sure the commission chairman, Mr. Banham, will fully understand. The main point is that the functions of local government will be high on the list of the expertise that the members of the commission will have at their disposal.
Lord McIntosh of Haringey: Can the Minister say whether it is the Government's intention to appoint the other members of the commission while the Bill is still before Parliament?
Earl Howe: That is a very good question. I shall have to write to the noble Lord about it.
Lord McIntosh of Haringey: It would be very helpful to know because we are receiving assurances about the good intentions of the Government while the Government are as usual resisting any attempt to put those good intentions onto the face of the Bill. We are concerned that the anxieties which have been expressed on all sides of the Committee are relieved. The points which the noble Baroness, Lady Hamwee, and the noble Lord, Lord Norrie, and others have made are not trivial. Noble Lords on all sides of the Committee have put their names to these amendments not because they are anxious to hold up the business or hear the sound of their own voices, but because they want the commission to work. We all want it to work because we are all concerned with the same objective.
I am very much concerned that, because of the inadequacy of the size of the commission, the lack of precision about its membership and above all because of the speed with which the commission is to be worked, we may end up with a botched job. We have had two very badly botched jobs of local government reform in the past 30 years. Both of them were put forward by Conservative Governments and repudiated by another Conservative Government. Those botched jobs took far longer to design and implement than this proposed reform which has much going for it. It will not prescribe the same pattern everywhere and because it is being responsive to local needs, this reform does many of the things that we want to see. Let us not spoil it by restricting the "representativeness" and the size of the commission too much, and by making its timescale impossible. I gladly give way to the noble Earl.
Earl Howe: There will be no formal appointments —and I stress the word "formal"—to the commission until after Royal Assent.
Lord McIntosh of Haringey: Stressing the word "formal" means that the appointments will be made in posse, and that the decisions will have been made about the membership of the commission. That is what really matters.
Lord Skelmersdale: That is a little unfair. In cases like this it is quite normal to announce very early on the presumptive chairman of a new body, or a new quango, as this will be. It is also quite normal to carry out soundings as to who the future members of the commission will be. It is equally normal not to appoint them until a Bill has received Royal Assent.
Lord McIntosh of Haringey: The noble Lord speaks with the due caution of an ex-Minister. The reply which the noble Earl, Lord Howe, gave to me did not indicate whether people were to be approached and offered the jobs before the legislation is passed or whether there would simply be soundings taken. I quite understand that no formal appointment will be made. It would be impossible to make a formal appointment—that is a tautology. I should like to know whether adequate time will be given to the consultation about the "representativeness" of the
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body. If it is proposed to approach people and offer them the jobs as I said, in posse, before the Bill finishes proceeding I doubt whether the commission can be adequately representative. I wonder whether the noble Earl can tell us how far the process of appointment, short of a formal announcement, will be taken while the Bill is still before Parliament.
Earl Howe: It is impossible for me to elaborate on what I have already said. It is possible for certain individuals to be approached informally; but I have no knowledge of who they are or when that might happen.
Lord McIntosh of Haringey: The noble Earl is learning the discretion of office very successfully and very quickly. That is not a satisfactory response. The commission which we all want will not be well served by the nature of the legislation which is proposed to set it up. This is certainly a matter to which we shall have to return at a later stage. I beg leave to withdraw Amendment No. 125.
Amendment, by leave, withdrawn.
[Amendments Nos. 126 to 130 not moved.]
Baroness Hamwee Baroness Hamwee moved Amendment No. 131:
Page 31, line 2, after ("any thing") insert ("including causing a local inquiry to be held").
The noble Baroness said: In moving this amendment, I shall speak also to the other amendments grouped with it and in particular to Amendments Nos. 133 and 134. The schedule to the Bill, the incidental powers, specifically preclude the holding of a local inquiry. It was a little surprising to see not simply that the commission could not make up its own mind as to the means that it should adopt to inquire the views of local people and all those who were interested in contributing to the process, but that it was to be specifically restricted from holding a public inquiry. The main amendment standing in my name in this group is to leave out the words,
"or to cause any local inquiry to be held".
The incidental power and the mechanisms to be employed should be a matter for the commission, which we are being assured tonight will consist of very trustworthy people. Indeed, I am sure they will be.
Amendment No. 134 stands in the names of the noble Lords, Lord Feversham and Lord McIntosh. My point here concerns parishes. Even if there is no formal public inquiry, the commission could undertake a rolling stage show around the country and conduct its deliberations in public in a way that the local community could contribute to. The parishes would appreciate that approach.
Lord McIntosh of Haringey: In the previous group of amendments the noble Baroness, Lady Hamwee, indicated the first schism in our views in the course of our proceedings on the Bill when she did not agree with what we were saying about public authority experience on the commission. I am sorry to say that I do not agree with her about public inquiries. A public inquiry is a long drawn out and expensive way of conducting the business of the commission. I hope that the Government will resist those amendments.
Although Amendment No. 134 has been grouped with other amendments, it was tabled by the noble Lord, Lord Feversham, in his capacity as president of the National Association of Local Councils. I am pleased to be associated with him on the amendment. Amendment No. 134 does not imply that there should be public inquiries. We think that the commission should hive the power, if I may quote the words used to set up Committees of this House, to meet from time to time and at such places as seem to the Committee to be convenient. In other words, the Local Government Commission should have the power not only to send individual members to meet in different parts of the country but if necessary to meet as a body in different parts of the country. It should go out of its way to use the ability to meet in different parts of the country to inform itself about local views.
I would expect the Minister to say in reply that that power exists and that it is not necessary to have it on the face of the Bill. I think it is worth emphasising our view that it is an important power and that it is essential to the effective conduct of the commission's business.
Lord Desai: Our experience of local government over the past 15 or so years has shown that many policies have been based on ignorance of what local people want. That is now beyond doubt. I do not care very much what means are used to elicit local opinion on matters affecting local people. However, if the commission is to be a success, it should use effective and efficient methods of consulting local opinion. There may be public opinion surveys. The commission may travel around the country listening to the people. Indeed, television may be used in this way. It is extremely important that the commission's work should be seen by the people themselves and not just by us. Those relations with the public are very important. I urge the Government to accept the amendments.
Lord Skelmersdale: I could not agree more with the noble Lord, Lord Desai, but to conduct a form of local review is going a little far. After all, we have in the Bill Clause 15, which adjures the Local Government Commission to publicise its intentions, activities and vires to such people as appear to it to be interested. The word will get round the local authority area very well indeed. The commission must take account of the views submitted to it. Equally, it must deposit copies of draft recommendations in advance of submitting them to the Secretary of State. Those can be commented on by the local populace. The point is well covered in the Bill.
10 p.m.
Lord Stoddart of Swindon: Clause 15 is simply not good enough. It gives the commission power to do many things. However, it does not say that it should properly consult local people. When we talk about local people, we are not talking about local councillors or any other bodies which have a close relationship; we are talking about ordinary people who vote in local elections and who are in fact at the sharp end. They are the ones who either benefit or suffer from the administration of their local authority. Therefore, the sort of organisation that they have must be very important to them. There must be means of discussing the matter between the commission, or the commissioners, and the ordinary people in the area. As my noble friend pointed out, it is vital that there should be a way in which ordinary voters can express themselves.
I happen to believe that the latter should be achieved by a series of public meetings. These can be very successful. Indeed, you can enthuse people to take part in such public meetings. For example, I remember when we wanted to amalgamate the water undertakings of Reading, Berkshire and South Oxfordshire. We were compelled to have not just one public meeting, we were obliged to have two of them and a town poll. That meant that the people of Reading—not those in Berkshire because they were not under the same constraint—became involved in the whole business and they eventually voted for it. However, they were well informed as to what was happening. It is vitally important that the ordinary people who are to be administered should have the

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opportunity to speak directly to the commissioners, and not through anyone else. They must be able to speak to them directly. One way or another, I hope that we can ensure that that process takes place.
Earl Howe: These amendments would enable or require the Local Government Commission to hold local public inquiries as part of its process of review. As my noble friend Lord Skelmersdale rightly pointed out, Clause 15 of the Bill sets out the framework for the procedures the commission must follow when conducting its reviews, including the arrangements for consultation with local people and organisations.
It is clear that a review by the commission will be initiated with publicity, at which point any interested parties will have the opportunity to put forward their views and, if they so wish, to submit proposals for change to the commission. The commission will then prepare draft recommendations and invite comments on them during a specified consultation period. Following its consideration of the comments received on its draft recommendations, the commission will draw up its final report and recommendations which will be published and submitted to the Secretary of State.
Clause 17 places a duty on the Secretary of State to wait for six weeks after receiving the commission's report and recommendations before making an order which implements the recommendations. That provides local people and organisations with a further opportunity to make representations on the recommendations, this time, however, directly to the Secretary of State.
There is nothing in the Bill to prevent the Local Government Commission from holding informal local meetings as part of the process of finding out what local people think, where it considers it appropriate to do so. I cannot help feeling that it is much better to go along to a village hall and listen to the people than it is to sit through rather stultifying formal inquiries. My right honourable friend intends to issue guidance to the commission about the procedure it should follow in carrying out its reviews. He intends to direct the commission to have regard to this guidance under Clause 15(7). We shall invite views on the content of this guidance.
We firmly believe that the arrangements for consultation are such that the need for local public inquiries, or hearings, which can be both costly and time consuming, will not arise. It is clear that the arrangements for public consultation have been designed to provide all interested parties with ample opportunities to make their views known to the commission and to my right honourable friend the Secretary of State. I therefore urge the noble Baroness not to press the amendment.
Lord Stoddart of Swindon: Will the guidance to be given to the commission be on the basis of paragraph (f) on page 10 which, in relation to the guidance,
"require the extent (if any) to which there has been a contravention of guidance issued by the Secretary of State".
We discussed that issue earlier. Will the commission have guidance or guidelines?
Earl Howe: It will be guidance.
Lord Stoddart of Swindon: So paragraph (f) on page 10 will apply. If the commission does not accept the guidance, it will be in contravention of the guidance.
Earl Howe: If the guidance says that certain procedures must take place, the commission must pay heed to that.
Lord Desai: I have read Clause 15 and I still have the feeling that it is talking about specialised bodies when it refers to interested parties and lobbies. It is not talking about ordinary people. While I welcome what the noble Earl said about informal soundings that the commission may take, I should be much happier if that provision were made more explicit and said that the commission would be encouraged to go around the country and talk to the people. It is much more important that it does that than consult local government specialists, for example.
Earl Howe: The commission will be in touch with all segments of the community, not just organisations, but the people themselves.
Lord McIntosh of Haringey: Perhaps I may pursue the point made by my noble friend Lord Stoddart. In response to the question whether the commission would be unable to contravene the guidance, the Minister said that it would have to pay heed to it. That is a new phrase which I have not previously heard in legislation. By "pay heed to", does he mean the same as "have regard to"? What is the distinction?
While I am on the subject, I recall that only yesterday I was rebuked magisterially by the noble Lord, Lord Cockfield, when I pointed out that the Secretary of State had the general power to give directions to the Audit Commission about any part of its activities. The obligation on the Audit Commission was to give effect to those directions; in other words, the Audit Commission, in the nicest possible way, is a creature of the Secretary of State. When I said that that was strange, the noble Lord, Lord Cockfield, said that it was readily explained by the Secretary of State's need to answer to Parliament for the Audit Commission's activities. Why does not the same procedure exist for the Local Government Commission? In the absence of such direction-giving power and such obligation on the commission to give effect to the directions, how can the Secretary of State answer to Parliament for the activities of the Local Government Commission?
Earl Howe: I hope that this answer will be helpful: the guidance that the commission will have will set out the requirements and considerations that it must adopt in regard to the proper delivery of services in any particular area. It must pay regard to that guidance. It is clear that the Secretary of State would direct the commission to have regard to that guidance under Clause 15(7).
Lord McIntosh of Haringey: The noble Earl has not answered my point about the directions and how the

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Local Government Commission would be answerable to Parliament, or perhaps the noble Lord, Lord Cockfield, was in error when he said that.
Baroness Blatch: Perhaps the noble Lord will allow me to intervene at this point. The noble Lord is playing games over this amendment and is being unnecessarily difficult. The Secretary of State will direct the Local Government Commission to have regard to the guidance. We have all had sight of the guidance. One of the aspects of the guidance in which I know my noble friend Lord Norrie will be interested is that it sets out that the Local Government Commission must have regard to the proper delivery of services; for example, land use planning and proper delivery of any local government service. It must have regard to it. If it does its work without having proper regard to the guidance it will be considered in breach of its work. Its recommendations to Parliament will be defective because it will not have had regard to the proper delivery of local government functions.
Lord McIntosh of Haringey: I have still not received an answer to my question about the difference between the Audit Commission and the Local Government Commission.
Baroness Hamwee: I had no idea that I was going to stimulate and provoke such a debate. I do not think that this was playing games; it exposed something important. I hope that the noble Earl's reply which referred to Clause 15 is a trailer for the approval of amendments on the Marshalled List for Thursday.
I see nothing inconsistent in the ability to hold an inquiry and holding that inquiry in a village hall. I do not suggest in my amendments that the investigations should not be held as conveniently and as locally as possible. My main distaste for the Bill is that there is the proscription against holding a public inquiry. However, I take the point about the greater the informality, probably the greater the response provoked. However, in view of the hour, I shall clearly not get anywhere and I beg leave to withdraw the amendment.
Earl Howe: Before the noble Baroness sits down, I put on record that the guidance under Clause 15(7) is procedural, and that under Clause 13(6) is what we have published. There is a distinct difference between the guidance in each clause; but regard must be had to both.
Baroness Hamwee: I thank the noble Earl. I am sure that we shall all go away and wrap hot towels round our heads and try to work out all these distinctions.
Lord Skelmersdale: Or cold towels?
Baroness Hamwee: I find that hot towels work perfectly!
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 132:
Page 31, line 6, at end insert ("and such power shall include power to commission and carry out surveys of public opinion in the areas subject to review").
The noble Baroness said: My noble friend Lord McIntosh has made clear that we warmly welcome this part of the Bill. Our amendments are genuinely meant to be constructive and to probe or to amplify terms of reference. Thus when the recommendations of the Local Government Commission are made, they can be readily accepted by local authorities of all sizes and political persuasions as sensible and fair.
This is one of a series of similar amendments in the hope that we may strengthen the robust nature of the recommendations that we expect the Local Government Commission to bring forward. Hence the nature of this amendment which seeks to empower the Local Government Commission to,
"commission and carry out surveys of public opinion in the areas subject to review".
In a way, it is an extension of the arguments we have just had about committees of inquiry, public inquiries, and so on. I wish to take the Committee back to the 1974 re-organisation of local government. It was based on the concept of functions. Not surprisingly, as every function has a different ideal population size for its base, we ended up with two tiers, agencies, gaps and overlaps that have done much to mystify the users of local government ever since.
The reorganisation of 1974 was based on the car driver and as a result, it could never quite make up its mind what the natural area of a community or a local authority was, whether it was the historical boundaries—a subject which we shall come to shortly—its built up area, its travel to work area or the degree to which it serves a population for shopping and services.
Having one reorganisation based on the concept of functions and another on the notion of concentric rings of community meant that this produced an instability at the heart of the 1974 reorganisation. It has led to subsequent discontent and efforts to change it going right back to 1977. In some cases such as planning, functions have had to be re-allocated downwards; in others—for example, highways — agency arrangements have had to be set up to make better use of services. In other cases, counties have set up area offices coterminous with district councils and the social services or they have set up local offices with different boundaries from those of the social services, if they were also education authorities. The result has been a mystifying patchwork that is costly, cumbersome and incomprehensible. That is why we, as I am sure do Members on the Government Benches, welcome this reform.
At least two things, among no doubt many others, should have been learnt from the experience of 1974. The first is that the only way to obtain stable local government to which people can relate and which they can comprehend and therefore hold accountable is local government based on local communities—not on functions, not on the distance you can drive in your car, but on communities.
Functions come and go. For example, health and various aspects of education have been, and are being, stripped out of local government. But equally,

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economic development or arts and leisure, for example, are growing in significance. In other words, functions come and go, but communities endure.
The second thing that might have been learnt from 1974 is the crucial importance of starting with communities first and then considering services and functions and the best way of ensuring that they are met. A further lesson that the Minister will certainly endorse is that of the enabling authority, which has meant that there need be no incompatibility between the concept of a local community on the one hand and that community's competence to arrange value for money services on the other.
Behind that is the question of what is the community; in other words, what people identify with. The amendment suggests that we find out by asking them so that the result is a local government that they own. We are not seeking to prejudge the outcome of those surveys, but I have no doubt that the surveys are necessary. If we do not base the work of the Local Government Commission on such research and surveys then we shall simply add to the pressure on the Secretary of State when the Local Government Commission has reported, and a second and intense round of lobbying of the Secretary of State will result for him, or her, not to accept the recommendations of the Local Government Commission. We shall be in a continuous programme of instability.
We want the local government recommendations to be robust. We want them to carry consent. We doubt that there will be enough commissioners to do the job, an issue we have already raised; we doubt that its members will carry sufficient experience, but we shall wait to see. We want the commission to have the confidence of the local government world. All those considerations give us concern. If, however, we can get the concept of what the community is carried with consent and support, then at least the commission will have the building blocks on which to produce a local government system for the future with stamina and robustness. The most effective way of determining what people think in their community is to ask them, and that is the point of the amendment. I beg to move.
Lord Skelmersdale: The noble Baroness is right. Over and over again the Government have made it clear that they want the commission to respect the achievable wishes of the local population. So far as this amendment is concerned, I look at paragraph 4(1) of Schedule 2 on page 31.
"Without prejudice to any powers exercisable apart from this paragraph, the Commission shall have power to do any thing … to facilitate … the carrying out of any of its functions".
Noble Lords opposite constantly complain of the wide scope of Bills. Here we have a perfectly reasonable and, I am sure the noble Baroness would agree, acceptable wide power for the commission: therefore, we do not need the amendment that she has moved.
Earl Howe: I am grateful to my noble friend for his helpful intervention. I probably need all the help I can get. Clause 13 requires the commission to have regard to the need to reflect the identities and interests of local communities in carrying out its reviews, and
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there we agree. We are very anxious that the commission should use the best methods available to determine the views of local people about their community and their feelings towards the place where they live and the structure of local government they would like to see. We believe that in many areas opinion polls may be a useful tool for the commission in its work. The Local Government Boundary Commission has used them in its work and found them a valuable aid to examining local opinion. We therefore intend, in the guidance which my right honourable friend will issue to the Local Government Commission about the procedures which the commission may follow in carrying out its review, to encourage the commission to use polls wherever appropriate.
To help the commission make the best possible objective assessment of the views of local people about the communities in which they live we have commissioned some research into community identity. The overall aim of the research is to develop and refine criteria which might be applied to the assessment of community identity and loyalties and which might be amenable to testing by means of surveys of public habits and attitudes in a given local area. The findings of that research should make a useful contribution to the commission's work.
I can reassure the noble Lord and the noble Baroness that under the Bill as drafted the commission would indeed have the power to carry out opinion polls, although it is up to the commission to decide how it carries out its work, and that we intend to encourage it to use opinion polls through the guidance on procedures which my right honourable friend may issue under Clause 15.
I hope that the noble Lord and the noble Baroness will be satisfied with that response and will not press the amendment.
Baroness Hollis of Heigham: That is absolutely splendid. Can the Minister say when we may hope to see the results of the research he has commissioned?
Earl Howe: The research is intended to inform the commission's deliberations. We may disseminate the findings more widely but I do not yet know when those findings will be complete.
Baroness Hollis of Heigham: I hope that the noble Earl will forgive me, but perhaps he might for once chance his arm and say that he would expect the research to be published. We are talking about what counts as community identity. If that information is to inform the Local Government Commission and form part of the mind map of the commission in much the same way as its precise terms of reference, which refer to the need to take account of communities and that version of communities will have been shaped by the research which has been commissioned, I should have thought that it was appropriate for that information to be put out for public debate and consideration. It will be very important when other bodies present their arguments to the commission that they share a common language as to what the word "community" means in the circumstances.
Earl Howe: I understand the anxieties of the noble Baroness. I am sure that she will understand that it will be a working document. It will be a bank of information which will enable guidance to be issued. If we feel that it contains information which is likely to be of particular interest and importance we shall disseminate it more widely. However, one would not normally expect a document of that kind to circulate in the public domain.
Lord McIntosh of Haringey: The Government constantly publish documents of this kind and expect to do so. Every department in the realm, with the possible exception of the Ministry of Defence, expects its research, whether it is designed for the purposes of an individual agency or commission or for government generally, to be published. It is a well known and well understood principle of government research. The Government always retain the Crown copyright in such projects with the deliberate and express intention that the information should be published.
I do not suggest that the noble Earl should go beyond his brief now, but I ask him to think about the issue and, on mature consideration, to write to my noble friend. I think that he will find that all precedents are in favour of publication.
Earl Howe: The noble Lord is quite right that the Government do indeed publish such information, but only when it is considered appropriate to do so. It is by no means appropriate in every instance.
Baroness Hollis of Heigham: Perhaps I may say one last sentence to finish the point. At the heart of the terms of reference of the Local Government Commission is the objective of producing effective local government embodying local communities. I hope that we accept that definition.
Clearly, if a concept of community based on research is at the core of that objective, that must be in the public domain so that all sides involved, including the local authority associations and the professionals, share a common language. Unless that information is published, we shall not share that common language, a great deal of debate may go beyond the point and the different sides may simply bypass each other. In the circumstances, it would be absurd if the research on which the Local Government Commission was proceeding was not in the public domain. That would produce a great deal of misunderstanding. In the hope that we can press the Minister on the matter at a later stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 133 and 134 not moved.]
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 135:
Page 31, line 17, at end insert:
("(1A) Any formal meetings of the Local Government Commission shall be open to the public.").
The noble Baroness said: Amendments Nos. 135 and 136 seek to apply in a modest way to the formal working of the commission the requirements that local authorities must fulfil under the Local Government (Access to Information) Act 1985 and other
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legislation. Under the access to information legislation, all the meetings of local authorities—council committees and sub-committees—are open to the public unless there are good reasons, all of which are defined in legislation, why the public should be excluded. Those provisions have operated effectively, successfully and, I believe, beneficially with regard to local government business. Agendas and reports are also open to public inspection unless they are precisely exempted. Furthermore, those agendas and reports must be publicly available at least three clear working days in advance so that everyone may have the right to consider the information in the public domain.
The two amendments propose that the commission should be subject to the same procedures and openness as the local authority system which it is considering. We do not suggest that all meetings should be open to the public. The commission would still be able to work up reports in private and have informal discussions. However, the proposals would allow members of the public to be aware of the issues discussed by the commission at any meeting and to consider and comment on any formal reports to that body. It is not unreasonable that a body which is considering the future of local government in England should be bound within the realm of practicability by similar considerations as to conduct as apply to the body whose future it is reviewing. I beg to move.
Earl Howe: The Local Government Commission will be a deliberative, not a decision-making, body. It will assess and analyse complex information and draw up recommendations. We consider that the most appropriate means for public involvement in the commission's work is for there to be ample opportunity for considered representations to the commission at each stage of a review.
Clause 15 sets out the framework for the procedure that the commission will follow. I do not need to repeat what I said in connection with an earlier amendment. There will be plenty of opportunity for interested parties to put forward their views and, I am sure, plenty of publicity in the process. The draft recommendations will be drawn up only after all the recommendations and comments put forward by local people have been taken into account. That is how the objective which I believe both sides of the Committee seek will be achieved. The arrangements for consultation are such that it is not necessary to require the Local Government Commission to open its meetings to the public or to publish the agenda or working papers for the meetings. The amendments are not necessary and I urge that they should not be pressed.
Baroness Hamwee: I am sure that the Government will note the anxiety about openness and the public's ability to discover what is going on. However, it would be a little difficult to support the amendments which refer to formal meetings; first, because I am not sure what is the distinction between a formal meeting and an informal meeting; and, secondly, because we have heard today that perhaps we shall have only one commissioner conducting the inquiry in each patch of the country.

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My noble friend Lady Seear referred to the need to have more than one commissioner because one needs to bat ideas around. If there is only one commissioner supported by staff, how will there be agendas for meetings which that commissioner will have with herself or himself'? I am not sure how that could operate.
Lord Skelmerdale: I believe that the idea of more than one commissioner came from myself. It was not subscribed to by the noble Baroness and the noble Earl on the Bench in front of me. I should not like the noble Baroness, Lady Hamwee, to get away with the idea that I direct government policy on the matter. I most certainly do not.
Baroness Hollis of Heigham: If we do not need the public present because there is only one commissioner, that is a bad thing. If there is more than one commissioner and they talk to each other, the public should certainly be there, and that would be a good thing.
I am sure that the noble Earl understands the spirit of the amendment. It may not be in the most precise form; it may need redrafting. However, if we want the recommendations of the commission to be well informed, to be robust, to stick and to carry consent, then they must carry the public with them. We expect that of local government. The public have the right to know. So far as is practicable, we wish to have the same rules of debate, of openness and public accessibility, applied to the commission as we expect that the commission would wish to see applied to local government.
Perhaps the Minister will consider the matter to which we may return when we discuss more closely the working arrangements of the commission. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 136 not moved.]
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 137:
Page 31, line 47, at end insert:
("(1A) The amount available to the Commission shall be sufficient to ensure appropriate consultation with the Audit Commission and an adequate level of publicity and consultation.").
The noble Baroness said: I shall be even briefer. I shall be delighted if the Minister says that the amendment is unnecessary and redundant.
A number of amendments have been tabled from all sides of the Chamber which require additional consultation, additional publicity, the use of opinion surveys and so on to ensure that there is maximum public input. Equally, Clause 16 provides that the Audit Commission shall charge the Local Government Commission such fees for opinions provided, for example on value for money, as will cover its costs. Such work, whether research, opinion polling, or paying the Audit Commission, involves resources. The amendment seeks to ensure that the Local Government Commission is adequately financed, in particular if it is to complete its considerations in the appropriate timescale to do the
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job properly. If the Minister says that of course it will, and that the amendment is unnecessary, I shall be delighted. I beg to move.
Earl Howe: Schedule 2 sets out the arrangements for financing the Local Government Commission. Each year the commission will receive an amount of grant from the Department of the Environment which the Secretary of State considers sufficient to enable the commission to carry out its functions.
This will not be an arbitrary figure. It will be based on the Local Government Commission's own forecast of the amount of grant it will need to carry out its functions in that year, taking account of the costs of publicity, of consultation and of the Audit Commission, on the basis of its programme of work set out by the Secretary of State.
The procedure for arriving at the amount of grant to be paid to the Local Government Commission will form part of the public expenditure survey leading to the approval by Parliament of the Supply Estimates. It will therefore be for Parliament to approve the level of grant to the commission.
It is our firm intention; indeed there is no question but that the commission will complete the job and will not be inhibited in its work by resource constraints. I hope that with that reassurance the noble Baroness will not press the amendment.
Baroness Hollis of Heigham: I am well content. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 agreed to.
Clause 13 [Duty to conduct reviews and make recommendations]:
[Amendment No. 138 not moved.]
The Deputy Chairman of Committees (Lord Airedale)The Deputy Chairman of Committees (Lord Airedale): In Amendment No. 139 there is a misprint on the Marshalled List. The amendment should read,
"Page 11, line 17, leave out ('of such areas')".
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 139:
Page 11, line 17, leave out ("of such areas").
The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 141. They are straightforward amendments which seek clarification. Its purpose is to ensure that the whole of England outside the metropolitan areas is included within the review of local government structure. We are seeking to ensure that the re-organisation of local government outside the metropolitan areas is completed once and for all. To risk doing only half the job will continue to produce uncertainty and instability, in particular for the remaining two-tier areas. Perhaps the commission will recommend a two-tier or single structure in particular areas. However, we wish to ensure that is covered by a comprehensive review and not by the patchy review which we fear may be the case. We hope that the Minister will assure the Committee that all the areas of England will be covered by the Local Government Commission.
Baroness Blatch: The Government have made it clear that they intend the Local Government

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Commission to carry out a rolling programme of reviews of local government in the shire counties. We believe that an area by area approach will best enable the commission to give full and careful consideration to all local concerns. We have already said that we intend to give special priority to Humberside where the Local Government Boundary Commission found a strong case for change. Other priorities will be announced in due course. Areas where there is a history of dissatisfaction with the existing structure must be high on the list.
The Secretary of State would be able to use his power to set a balanced and manageable programme for the commission and to give directions to the commission to require it to consider only boundary or only pectoral changes, for example. This could be necessary where the commission had already made recommendations for improving the structure of local government in an area and consequential boundary changes were needed.
The Local Government Commission will have the power 10 recommend more far-reaching changes than the Local Government Boundary Commission and will no: have a mandatory programme of reviews of local government structure and boundaries. In those circumstances, it is essential that my right honorable friend the Secretary of State should have the power to direct ice commission which areas to review and which type of changes to consider. We intend that the commission should review all shire counties in England—
Baroness Hollis of Heigham: Perhaps I may intervene in order to ask the Minister whether she is correct in saying that the Local Government Commission will have a more fundamental role than the Boundary Commission? Did she put that the right way round?
Baroness Blatch: I was saying that the work of the Boundary Commission will be subsumed by the Local Government Commission. The work of the Local Government Commission may make a recommendation what requires no boundary changes. However, it may make recommendations that have an impact on boundaries. Therefore, it will have to complete its work by making references to boundary changes.
Baroness Hollis of Heigham: Perhaps it is my fault that I am a little confused. We are not debating the amendments relating to boundaries. They are Amendments Nos. 147 and 145. We are currently debating Amendments Nos. 139 and 141. They seek to obtain a comprehensive review by the Secretary of State and not a partial review which would leave the residual areas of the country uncertain about their two-tier status, unitary status, and so forth. I am puzzled because I believe that perhaps the Minister is talking to Amendments Nos. 145 and 147 rather than to Amendments Nos. 139 and 141. Is that correct?
Baroness Blatch: No, I was speaking to Amendments Nos. 139 and 141. Perhaps I may repeat precisely what I said. The Local Government Commission will have the power to recommend more far-reaching changes than the Local Government
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Boundary Commission. It will not have a mandatory programme of reviews of local government structure and boundaries. In those circumstances, it is essential that my right honourable friend the Secretary of State should have the power to direct the commission as to which areas to review and which types of change to consider.
Lord McIntosh of Haringey: I thought I heard the Minister say in her earlier response that the review would cover all shire counties in England. If she would repeat that assurance, my noble friend would be satisfied.
Baroness Blatch: No. The difference between us is that Members of the Committee opposite are asking for a complete comprehensive review to take place at the same time. I repeat what I said earlier. The Government have made it clear that they intend that the Local Government Commission should carry out a rolling programme of reviews of local government of the shire county areas in England. Therefore, it will not be one review of all areas of England at the same time.
Lord McIntosh of Haringey: I was not suggesting that it would be all at the same time. I realise what is the Government's intention. We seek an assurance that it will be not just a review of the shire counties but specifically of all the shire counties. In other words, no shire county of England will be excluded ultimately from the review.
Baroness Blatch: That is right. On completion of the rolling programme, all areas of the country will have been covered.
Baroness Hollis of Heigham: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Oppenheim-Barnes Baroness Oppenheim-Barnes moved Amendment No. 140:
Page 11, line 17, after ("areas") insert ("or classes of local authorities").
The noble Baroness said: I move this amendment on behalf of my noble friend Lady Young who expresses her apologies. She cannot be here this evening because she has a long-standing engagement. I speak also to Amendment No. 150 which is in my name and that of my noble friends Lady Young and Lord Beloff and the noble Baroness, Lady Hollis.
I shall try to be brief, but there is a good deal of very strong feeling in the areas concerned about these matters. The purpose of Amendments Nos. 140 and 144 is to allow the Secretary of State to direct the local commission to review not only areas but classes of local authorities. I support these amendments because it seems to me that certain authorities are clearly in a class of their own. They combine most of the features which the Local Government Commission would be looking for in making its recommendations for change to a unitary structure.
Because I believe it is likely to be of assistance to the Local Government Commission in going about its review work, I welcome the prompt publication and content of the draft guidance. The Government are

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right to give such prominence in the guidance to community identity as the cornerstone of effective local democracy.
In moving the amendments, I refer to only one part of the draft guidance which is relevant to my argument. Paragraph 4 of the guidance refers to strength of identity with a particular area. It recognises that there are likely to be cases where strong identity with a town or city will weigh heavily against weaker identity with a group of districts or a county. If people live within one of our great historic cities and enjoy the civic pride which goes with the history and traditions of such a city and participate in the modern working life of that essentially urban environment, they are far more likely to identify with that city as representative of their interests than they are with the rural hinterland which may surround it. They are also likely to feel that councillors elected from within that city community are more likely to understand the needs and aspirations of the modern urban environment.
In 1974 the great city of Gloucester, which I represented, was in a very sad way as a result of the reorganisation, particularly because the functions of education and social services were removed from where they had happily been previously. There were elected representatives from within the city on the county council, but the county council was a mature council. The chairmanships and deputy chairmanships of the various committees were already in the hands of those who had a great deal of rural experience but no experience of the great historic city of Gloucester. As a result, much damage was done to the historic grammar schools of that city.
Paragraph 4 recognises that rural and urban communities can co-exist and indeed are both part of the fabric of our society but that they are essentially different. A large number of our shire counties are made up of one or more large cities or towns. In the case for making a number of those areas unitary authorities, that is self-evident. If strong community identity, competence and capacity can be established for those urban areas leading to a presumption in favour of the unitary authority status, it remains for the commission to focus on the surrounding areas. Amendments Nos. 140 and 144 offer the Secretary of State an opportunity to direct the Local Government Commission to proceed by dealing first with such "classes of authority" as the historic cities. That will be helpful in looking at the first areas of the country and would not prejudice the outcome for other parts.
I turn to Amendment No. 150. This amendment is in keeping with the reference to "history" in paragraph 3 of the draft guidance for the Local Government Commission. But it is of sufficient importance to be considered for inclusion also on the face of the Bill. I know that my noble friend the Minister has been listening with great sympathy to what I said in regard to Amendments Nos. 140 and 144, but I hope that she will listen with even greater sympathy in relation to Amendment No. 150.
The right reverend prelate the Bishop of Exeter said at Second Reading that there are deep roots within the
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communities of many of our ancient cities which have enjoyed hundreds of years of community government. Charters are not just pieces of paper with nostalgic relevance. They look forward as much as back, reflecting a strength of community identity and civic focus. When we talk of historic traditions we are not only talking about civic traditions of government and community pride focused on a specific city but also about the nation's historic continuity held in trust by those cities.
If historic traditions were to be embodied in legislation as they are in the guidance for the commission, it is perhaps more likely that we shall be able to avoid the nonsense that has occupied so much time and energy in Gloucester recently, where proposals for a new magistrates' court by the county council have been viewed by the city council planning committee as being totally out of character with the historic site in which it is to reside. The city council received strong backing from the Royal Fine Art Commission, English Heritage and the Gloucester Civic Trust. Despite that and the city's own national award-winning work on design and conservation, the council is unable to exercise any direct prerogative in the matter.
On a more recent timescale, the concept of historic traditions also refers to an authority's track record. That is a matter which must be reflected in any decisions.
Finally, Amendment No. 150 seeks to reinforce the draft guidance on the question of history. It seeks also to remind us of the wide connotations of civic traditions and I hope that it will find favour with my noble friend.
Baroness Nicol: I wish to support Amendments Nos. 140 and 144 particularly. Both these amendments have the backing of the historic cities group which Members of the Committee probably know comprises Cambridge, Carlisle, Chester, Exeter, Gloucester, Lincoln, Norwich, Oxford, Worcester and York. I had the privilege of serving on Cambridge City Council in the days before the last reorganisation. I had only a very short time on it before we suffered that reorganisation. The difference between the feeling of the city's identity then and afterwards is quite remarkable. Therefore, I understand why all these cities are welcoming the opportunity to return to unitary authority.
Historic cities are particularly vulnerable to modern pressures. They have inherited mostly ancient street patterns and they cannot cope with modern traffic. They are constrained in their development by the need to protect our heritage of historic buildings and so they have added costs as well as less flexible opportunities for commercial and industrial development. But they also have opportunities including tourism which can be exploited by an informed approach. As the noble Baroness, Lady Oppenheim-Barnes, said, from their long past they enjoy a much closer feeling of community than many of the newer creations.
But if they are to make the most of these opportunities (which I am sure that we all want them to do), they need to be masters in their own houses.

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There is no other way in which they can fully exploit and yet protect the very precious heritage which most of them have to care for. I very much hope that the Government will accept this amendment so that these cities can be treated in a special way.
Baroness Blatch: Amendments Nos. 140 and 144 are designed to provide for the commission to review particular classes of local authorities. The Secretary of State may specify the types of authorities the commission should review by direction, and for that reason these amendments are not necessary. We intend the commission to proceed area by area with structural reviews, but it might prove useful to refer to types, of authority later when specifying a programme for electoral or boundary changes.
Even expressing all our very real anxieties about the work of the commission, the one thing that we must not do is pre-empt what it has to do. It must approach its work with an open mind. Some of the points made by my noble friend and by the noble Baroness, Lady Nicol, about historic cities are well taken by me. I have had a very constructive meeting with representatives of the historic cities. I know that they have a record which is not just the one mentioned by the noble Baroness, Lady Nicol, but a record of working with the world of heritage, tourism, business and commerce in a way which is different from other parts of the country.
Nevertheless, it is important (I emphasised it when I met tie representatives) for them to make their case to the commission. It is that body which needs to be convinced in the first place of the need and of the pace for change. It will be for the commission to make a recommendation to my right honourable friend who in turn will make a recommendation to Parliament. One of the problems of dealing with this work on the basis of classes of authority is that it is not possible to say that we shall look at districts because they are within counties and therefore counties and districts would need to be looked at at the same time. Equally, historic cities are also within the boundaries of counties. Therefore, the rolling review area by area will be determined by my right honourable friend.
This debate is very important. The comments made in it will continue to be part of that bank of information which will influence my right honourable friend when he comes to determine the programme. Although my noble friend Lady Oppenheim-Barnes has pointed to the importance of history, I can tell her that that point too is very well taken. Historic roots and local communities are very often interlinked anyway. That is a very important point. I must emphasise that we must be careful not to pre-empt the work of the Local Government Commission.
Amendment No. 150 would require the commission to have regard to the historic traditions as well as the identities and interests of the local communities. Again I can assure my noble friend and the noble Baroness, Lady Nicol, and other Members of the Commerce that we appreciate the importance that people attach to the history of their local areas. I am well aware that some of our oldest cities which have traditionally run their own local affairs, are particularly keen to become unitary authorities.
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It is because we recognise the importance of tradition that the draft guidance to the Local Government Commission makes it clear that the Commission should consider the history of an area when assessing community identities. However, I must say once more that we do not believe it necessary to include this requirement in the Bill. We believe that the Local Government Commission must approach its work with an open mind, and we must not pre-empt the conclusions of that work. The debate has been useful, and my right honourable friend will be told of the import of it.
Lord Beloff: Before we conclude the debate, perhaps I may inject one other consideration into the question of historic traditions. It seems that the real worry we have about local government and another reform is whether it will stick. It has been suggested—probably rightly—that the only thing that would make it stick is if it is based upon a sense of community.
I do not know—and I find it very difficult to know—whether communities exist any more in this country, given the mobility of the population and the fact that people live in one place, earn their living in another and are taxed by a third, and so forth. I am sure that this cannot be discovered by public opinion polls or by any of the other gadgets of the social scientists. We can only do it by making assumptions; and the assumption is that if a city has had a long tradition of self-government in one form or another, its citizens probably have an attachment to it which is not shared by artificial, imposed units of local government. We are told that the reason why certain counties face abolition is that they have not taken root.
We have abandoned a great many natural divisions of local government that once existed in this country. We have no more ridings and tithings, sokes, hundreds and wapentakes. These were all real things, whereas the districts are the creation of legislation. Therefore it is important that the potential existence of any community, whether it be a natural county—not a created county—an historic county or an historic city, should figure very largely in the commission's deliberations. I say this particularly because I believe —and this has hardly been touched upon—that if we could get that kind of community we might then begin to rebuild a more satisfactory relationship between central and local government, which is the other great weakness of our system when compared with other systems where the two are thought to be naturally compatible, and where a career in one often leads to a career in another.
I hope the Minister will not object to my adding these considerations, though I agree that it is for the commission to take them on board.
Lord Renfrew of Kaimsthorn: Perhaps I may add a word of support to what my noble friends have said. It is most encouraging that the Minister has assured us that the commission will take account of historical factors in evaluating identities.
However, the Bill as drafted gives the impression of a rather piecemeal area approach: one will look first at

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one area and then at another area. The debate has been helpful in expressing the hope that the commission will first sit down to consider those criteria which will lead it to establish its priorities. It is important that before the commission moves from one area to another it has clear criteria as to whether historic cities, for instance, are likely to become unitary authorities. The historic factor, as the noble Baroness, Lady Oppenheim-Barnes, has stressed, is one that will be of great importance, not only in the cathedral cities but in other historic cities in this country.
Baroness Blatch: Both of those interventions were enormously helpful and of course will also be reported to my right honourable friend.
I wish to respond to two specific points. My noble friend Lord Beloff posed an important question: will it stick? That will be the great challenge of the work of the Local Government Commission. Not only must it do what I believe will be the difficult job of identifying communities and making recommendations to Parliament that they are the right communities for unitary authority status, but those recommendations must enjoy the widest base of support for change. The case for change needs to be made first and then it must receive the widest base of support. The wider the base of support for the change the more likely it is to stick. But that must also be balanced against the proper delivery of services. The concerns of some of my noble friends and other noble Lords, for example, about the proper delivery of strategic functions, must be taken into account. The Local Government Commission will have to have regard to the guidance which will set out all the factors that must be taken into account in the course of its work.
There is in our proposals a presumption in favour of unitary authorities. Where a unitary authority is not appropriate, the Local Government Commission having done its work, it will be necessary for the commission to produce positive reasons for no change and not just say that it is better just left alone. There will have to be positive reasons why two-tier authorities remain rather than negative reasons. This has been a useful debate and I shall report very fully to my right honourable friend.
Baroness Hamwee: Perhaps I may add a word from these Benches in support of the notion of history being a factor in the identity of communities. It is too late to embark on a discussion as to whether or not there is such a thing as a collective folk memory. I believe that there is. We feel that historical traditions and historical identities will be important to the decisions of the commission. I must also add—and I am sure that I speak for my noble friend Lord Tordoff as well—that there are cities in this country that may not have the charm of our old university and cathedral cities. Their charm may be more industrial, but historical and important nevertheless.
Lord Tordoff: Perhaps I may amplify what my noble friend said. When the commission tries to decide whether Manchester and Salford should be separate
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places, it will have an historic problem. I am reminded, in terms of sense of identity—this is where the noble Lord, Lord Beloff, is right—that people believe that they belong to a particular area of the country. They have names for it. Mr. A.J.P. Taylor said that he was always a Lancastrian, a view that I endorse entirely. Indeed he said that when he saw the cliffs of Yorkshire falling into the North Sea and the sands of Southport stretching ever westward he had the glorious vision of Lancashire stretching from coast to coast, a view that I should like to support. There are enormous difficulties in putting labels on places and saying that one is historic and one is not, but the sense of history that people feel in themselves as citizens of an area is very important.
Baroness Blatch: Labels are important to some people. Names such as the Ridings, Pembrokeshire and Monmouthshire are important. There is the facility to resurrect traditional county boundaries or traditional boundaries with the old names in a non-administrative way. If that is what local people want, that is what local people will say to the commission. It will be for the Local Government Commission to make recommendations to my right honourable friend.
Baroness Hamwee: We may have passed the point of embarking on this subject but the reference to Monmouth and Pembroke is interesting. It has arisen in the context of the part of the Bill that does not extend to Wales and has raised some high feelings.
Baroness Oppenheim-Barnes: I thank my noble friend Lord Beloff for his profound contribution and those noble Lords and noble Baronesses who supported the amendment. I should also like to thank my noble friend the Minister especially for her sympathetic remarks. I believe that there may be a window of opportunity here. I wonder whether it is too much to hope that there may be someone on the commission who has personal knowledge of one of our historic cities and who will, therefore, be even more sympathetic. With that hope in my heart, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
House resumed.

Tribunals and Inquiries Bill [H.L.]
The Lord Chancellor: My Lords, I beg to introduce a Bill to consolidate the Tribunals and Inquiries Act 1971 and certain other enactments relating to tribunals and inquiries. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time. — (The Lord Chancellor.)
On Question, Bill read a first time, and to be printed.

Severn Bridges Bill
Reported from the Select Committee with amendments and recommitted to a Committee of the Whole House.

British Railways Bill
Brought from the Commons, read a first time and referred to the Examiners.
House adjourned at five minutes past eleven o'clock.

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