Sitting of 17 February 1999

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

Lord Williamson of Horton
Sir David Francis Williamson, GCMG, CB, having been created Baron Williamson of Horton, of Horton in the County of Somerset, for life—Was, in his robes, introduced between the Baroness Elles and the Lord Whitty.

Financial Stability: G7 Initiative
2.42 p.m.
Lord Hylton Lord Hylton asked Her Majesty's Government:
To what extent the recent financial crises in south-east Asia, Russia and Brazil have been caused or aggravated by speculative money, based in or passing through "offshore" funds, largely outside the control of national central banks and inter-governmental institutions; and whether they will raise these questions in the G8 forum.
Lord McIntosh of Haringey: My Lords, the Government are taking a leading role in international efforts to promote global financial stability. Under the UK G7 presidency, an important declaration was agreed in October 1998, outlining a reform blueprint for the international financial system. As well as broader reforms, this included commitments to examine the implication of the operation of hedge funds and to find means to encourage offshore centres to comply with internationally-agreed standards. G7 finance ministers will report on progress in Bonn this coming Saturday.
Lord Hylton: My Lords, I thank the noble Lord for his helpful reply. I hope that he and his colleagues can make good progress. However, can he be more specific and say whether the Government are seeking better regulation both of derivatives and of speculative trading by major institutions together with better risk control on short-term loans made across international frontiers?
Lord McIntosh of Haringey: My Lords, unfortunately, I have not been invited to Bonn; the Chancellor is going on Saturday. Of course, derivatives exchanges such as LIFFE are subject to regulation, and regulatory standards are kept under review. The problem is that many traded derivatives are traded outside exchanges. That is why the Basle Committee under Dr. Brockmijer on banking supervision issued risk management guidelines which identify the types and sources of risks the counterparties face in these transactions and review sound risk management procedures. But I do not conceal that the issue raised by the noble Lord is extremely difficult to control.
Baroness Williams of Crosby: My Lords, can the Minister say more about the initiative taken by the
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Chancellor of the Exchequer with regard to getting much more transparency into international financial arrangements? In particular, can he say anything about the proposal for much clearer accounting standards and codes of conduct that would touch upon banks dealing with international financial matters?
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Baroness for that reminder of the initiative undertaken, first, by the Prime Minister in September of last year and then by the Chancellor at Ottawa in October. It is the results so far of the negotiations following that initiative which will be reported at the meeting in Bonn of finance ministers and central bank directors. I am sorry I am not able to anticipate that meeting.
Lord Grenfell: My Lords, does my noble friend agree that while, in a financial crisis, resort to strict capital controls has usually proven to be counterproductive, as many countries in Latin America discovered to their cost in the debt crisis of the 1980s, there is a strong argument for setting prudential limits on cross-border flows of short-term loans where financial systems are weak? Does he agree also that the Chilean system, with its requirement that domestic borrowers abroad have to place 30 per cent. of their borrowings into the central bank for one year at no interest, has proven to be the best means of reducing the share of short-term debt in the overall external debt of Chile? That might be widely replicated, even at the cost of some rise in interest rates.
Lord McIntosh of Haringey: My Lords, my noble friend is right in saying that a retreat into capital controls more widely would be dangerous since capital mobility underpins global prospects for growth and development. Having said that, the prospect of more limited measures such as those introduced in Chile are of interest and are being considered by international organisations. I hope that my noble friend is not recommending what is called a "Tobin" tax on foreign exchange transactions. That would be much more difficult to implement.
Lord Skidelsky: My Lords, while the activities of speculators are a cause of legitimate concern, does the Minister agree that the main responsibility for avoiding destabilising capital flows rests with the governments concerned? Further, will the Government resist the populous trap exemplified by Dr. Mahathir of Malaysia of blaming speculators and something called "global capitalism" for the financial crises in east Asia and Russia and instead urge with all possible force, in all appropriate international fora, the importance of domestic reforms in the afflicted countries?
Lord McIntosh of Haringey: My Lords, I am not sure that I agree with the noble Lord. Of course, governments have very strong responsibilities and, depending on their relationships with the financial regulators and depending on how close they are to government, that locks into the responsibilities of financial regulators in individual countries. It is also true

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that interrational financial institutions—the IMF in particular—have heavy responsibilities in this area. Such responsibilities are among those which have been considered in the last six months since the Chancellor's speech in Ottawa.
Baroness Ludford: My Lords, will the Minister tell us whether the concern that is felt by many is recognised? I refer to financial crises such as that in Russia which too often involve the bail-out of speculative western investors by the IMF and not enough stabilisation of the domestic economy. Are there any moves in the international institutions to provide a possible solution to that? As happened with the hedge fund in the United States, it is often western investors who are bailed out rather than the economy at risk stabilised.
Lord McIntosh of Haringey: My Lords, I am not sure that I accept the premise behind the noble Baroness's question. Of course, the noble Lord, Lord Hylton, in his original Question referred to the economies of Russia as well as east Asia and Brazil. However, the first priority must be to avoid any need for bail-out in the first place. Having said that, the noble Baroness is right. It is important to put the economies which are being supported on an even and sustainable track. That must be a very high priority.
Lord Tebbit: My Lords, who is responsible for such matters in euroland?
Lord McIntosh of Haringey: My Lords, we are all responsible, whether in or out of euroland. The meeting of G7 includes representatives of countries which have the euro currency and representatives of countries which do not have the euro. The international financial community includes euroland, but it is not confined to euroland.
Lord Marsh: My Lords, before people go too far down the road of chasing speculators, does the Minister agree that the root problem in such countries is primarily good old-fashioned, bad practices such as gross over-borrowing and mismatching of currencies? Even hedging for risk control simply could not cope with it. We must not kid ourselves that it is just speculators.
Lord McIntosh of Haringey: My Lords, I hope the noble Lord is not misled by the grossly inappropriate term, "hedge funds". They are not "hedge funds" at all; they are the leading edge of extremely highly geared derivatives. "Hedge funds" is a great euphemism for what they actually are. Of course, the noble Lord is right that it is prudential management that is most important. I hope that the recommendations that will come forward in the next few days will cover—as I believe they will—prudential management by financial regulators and by the banking community as a whole.

Visually Impaired Peers: Facilities
2.53 p.m.
Lord Morris of Manchester Lord Morris of Manchester asked the Chairman of Committees:
What special help, in relation to their parliamentary work, is available to Lords with severe visual impairments; and what consideration is being given to providing more help.
The Chairman of Committees (Lord Boston of Faversham): My Lords, there are various facilities for Members with visual impairments. Twenty-one lifts have been adapted, and incorporate either Braille or raised numerals. They also have handrails, tactile floor covering, and can announce floor levels. Handrails have been installed on some staircases and ramps. And a guide dog exercise area has been provided.
Noble Lords with visual impairments may receive an audio recording of the proceedings of the House, in addition to Hansard. Since July 1983 Members with visual impairments, like other disabled Members, can recover extra expenses of attending this House on account of their disablement.
I am always happy to consider ways in which facilities can be improved.
Lord Morris of Manchester: My Lords, I am grateful to my noble friend for his reply. Could he consider applying the Royal National Institute for the Blind's clear print standards to documents commonly used by Peers? Is he aware that this could benefit all Peers, not just those with visual impairments? Could he also explore with the RNIB the possibility of providing dedicated support for visually impaired Peers who require information in formats other than print—for example, on tape or disk—either now or in the future?
The Chairman of Committees: My Lords, on the final point made by the noble Lord, Lord Morris of Manchester, something has already been done in that direction. To an extent, I have indicated some of the steps that have been taken in my original Answer. We shall certainly keep a watch on that matter to see whether any additional help can be provided. I am always very happy to receive any representations from the Royal National Institute for the Blind.
On the point about the RNIB's clear print standards, something has been done in that direction as well. I know, for instance, that italic printing can be confusing and that bold print or roman print can be very much more helpful, and not just to those who are visually impaired. The noble Lord, Lord Morris, may be interested to know—if he is not already aware of it—that a few years ago, when our Order Paper was re-designed, italic lettering was removed almost entirely and, in particular, that Ministers' names, which used to be in italic print, are now in roman print.
I could not help noticing that italic print leans to the right. I am assured that there is no political significance in what has been done in that direction.

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I hesitate to trespass on the time of the House but, on behalf of the House, perhaps I could take this opportunity to congratulate the noble Lord, Lord Morris, on having been invited by Rehabilitation International—the body that co-ordinates disabled organisations throughout the world—to chair its world planning group. The group will draft its charter for the millennium which will be presented to heads of government throughout the world later this year.
The Earl of Longford: My Lords, I rise with a double bias, one in favour of my noble friend Lord Morris. I am delighted that he is to receive this great honour. As far as I am aware, he has done more for the disabled this century than anyone else.
Speaking as a partially-sighted person, I wonder whether more could be done. I am lucky because I am able to get a few kindly people to help me, but there are Peers who cannot get anybody to help them. Can we not do more for them?
The Chairman of Committees: My Lords, like other noble Lords, I am only too eager to do everything that I can to provide further assistance. Perhaps I may mention that great strides were made following the Wycliffe Noble Report of 1993. As they are experts in matters concerning all disabled people, they were commissioned to produce a report on behalf of both Houses and nearly all the recommendations of that report, which included provisions to help visually impaired Members, have been implemented. That has been quite an extensive operation. However, we are always on the look-out for other improvements that we can make.
Lord Ashley of Stoke: My Lords, I am sure that all noble Lords will welcome the comprehensive response from my noble friend. Perhaps I can widen the Question slightly because there are Members who have different disabilities from visual impairment, such as mobility problems, deafness or being hard of hearing. Would the Minister consider how all such disabilities can be assisted if noble Lords so wish? Is the Minister further aware that the help that I have received from the House, Black Rod and his officials in relation to the Palantype machine has been absolutely marvellous? That is a fine precedent and an augury for helping all disabled noble Lords in future.
The Chairman of Committees: My Lords, I am sure that we are all very pleased about the immense progress which the noble Lord, Lord Ashley of Stoke, has made and that he has endeavoured to pass on to others the benefits of the improvements which have been of such assistance to him. I have to be rather careful given that, with others among your Lordships, I am the guardian of procedure in this House, so I hesitate to follow the noble Lord in widening the scope of the Question. However, he has raised some valid points which will certainly be borne in mind.
Lord Clifford of Chudleigh: My Lords, as a visually impaired Peer, perhaps I may ask the Minister a question.
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I believe that the noble Baroness, Lady Trumpington, who I understand has full vision, has asked for the bottom step from the Chamber Floor up to the Back Benches to be made a little more shallow and less steep. Could some action be taken on that for the benefit of the visually impaired? I hope that that will be ad infinitum and will benefit the hereditary Peers also as opposed to only the life Peers.
The Chairman of Committees: My Lords, I hesitate to say this, but the question has thrown me completely as I was not aware of that problem. However, now that, like the rest of your Lordships, I am aware of it, I shall certainly look into it to see what can be done.

School Standards in Maths and Science
3.1 p.m.
Lord Pilkington of Oxenford Lord Pilkington of Oxenford asked Her Majesty's Government:
How they propose to achieve in state schools other than grammar schools the standards in mathematics and science now achieved in grammar schools.
Lord Hunt of Kings Heath: My Lords, we are committed to high achievement for all children, not just the few. To pursue high standards more widely, we are ensuring that all schools set themselves challenging targets, make marked improvements in the core areas of literacy and numeracy and improve access to further and higher education.
Lord Pilkington of Oxenford: My Lords, I thank the Minister for that Answer; but is he aware that the grammar schools, which account for only 3 per cent. of the school population of the relevant age, produce 12 per cent. of the relevant A-levels in maths and science? As the Government are working to establish specialist schools in specified subjects such as maths and science, will they, as they profess to believe in excellence for all, consider making the grammar schools into such specialist schools, based on their present performance in those subjects?
Lord Hunt of Kings Heath: My Lords, given the highly selective nature of grammar schools, it is to be expected that they will do well in examinations. Our concern in raising standards in numeracy is to ensure that we raise standards in all schools. That is why we have established a number of initiatives on raising numeracy standards. The noble Lord asked about specialist schools. Schools with a specialty, whether in maths, arts, languages or technology, have a role to play in helping those children whose potential lies in certain areas. We see some extension of the role of specialist schools. As the noble Lord knows, we said in our manifesto that we would leave to parents the decision about the future admission arrangements of grammar schools. We have fulfilled that commitment.
Lord Ponsonby of Shulbrede: My Lords, does my noble friend agree that it is wrong and misleading to

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point to the achievements of grammar schools without also considering the achievements of the non-selective schools grammar school areas; namely, the secondary modern schools? Can my noble friend help me by comparing the achievements in maths and science of secondary modern schools in grammar school areas with those achieved by state schools in general?
Lord Hunt of Kings Heath: My Lords, that is an extremely interesting question. At grades A* to C, an average comprehensive with a low level of disadvantage would achieve a pass rate of 59 per cent, for maths and 62 per cent, for science. The figures for secondary moderns are 26 per cent, for maths and 28 per cent, for science. Those figures tell their own story.
Baroness Trumpington: My Lords, does the Minster agree—
Baroness Maddock: My Lords—
Noble Lords: Order!
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, as both noble Baronesses are on their feet and we have some time, perhaps we can hear first from the noble Baroness, Lady Trumpington.
Baroness Trumpington: My Lords, does the Minister agree that if grammar schools were to be abolished, the result would be neighbourhood schools, which are what we had in the past and are of no help to children who live in the wrong area?
Lord Hunt of Kings Heath: My Lords, perhaps I may make it clear. We said in our manifesto that changes to the admission procedures of grammar schools must be decided by local parents. We have legislated for that to happen. A vote in favour of change in an admission procedure is not a vote in favour of the closure of a school; it simply requires a grammar school to amend its admission arrangements. We are leaving it to local parents to decide the future admission arrangements of such schools.
Baroness Maddock: My Lords, as I think it is agreed that we now have a general shortage of maths and science teachers, what immediate steps are the Government taking to try to attract maths and science graduates into the teaching profession?
Lord Hunt of Kings Heath: My Lords, there have been reports of schools having difficulty in recruiting teachers, particularly maths teachers. However, we should not overstate the problem. It is a fact that 99 per cent, of all maths posts are filled at present. Nevertheless, it is clear that we need to improve on that. The Green Paper on teachers which was published last December will, I believe, transform our approach to recruiting across all subjects and will ensure that we attract a greater share of talented people to be teachers by offering better pay, prospects and support. I should
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mention in addition the short-term package which was announced last October to seek to address recruitment difficulties. It contained financial incentives for maths and science teachers and provision for funding recruitment advisers to help schools in areas which are experiencing particular difficulties.
Baroness Blatch: My Lords, I am sorry that the Minister was not able to answer the question about the performance of neighbouring secondary modern schools because there is overwhelming, irrefutable evidence about what happens in secondary modern schools in areas where there is a widespread availability of grammar school places. I refer, for example, to Northern Ireland, where the secondary modern schools do very much better than other comparable schools in other parts of the country.
Lord Hunt of Kings Heath: My Lords, the noble Baroness referred to Northern Ireland which I suggest is very different from other parts of the United Kingdom. Perhaps I may point out that in Scotland, where there is no selection, the equivalent results are also higher than those in England. There is no consistent relationship between the structure and the performance of the different secondary education systems.
Lord Pilkington of Oxenford: My Lords, may I ask—
Noble Lords: Next Question!

Otterburn Inquiry: New Issues
3.8 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Why the public inquiry into the continuing military use of the artillery firing range at Otterburn has been re-opened.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, the Secretary of State considers that a number of new issues, which have arisen since the closure of the original inquiry into MoD proposals for development at Otterburn need to be aired before he takes a final decision. These include issues raised by the recent Strategic Defence Review. These issues are identified in the Government Office's letter to parties dated 17th December 1998, a copy of which has been placed in the Library.
Lord Campbell of Croy: My Lords, I am grateful to the Minister for that Answer. Is he aware that the Army possessed the range 30 years before the national park was created and that the land would otherwise have become a vast Forestry Commission plantation of conifers? Does not the Army need the range for its

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latest, very effective guns in the same way that I was able to calibrate my 25-pounders in the Second World War before I took my battery abroad?
Lord Whitty: My Lords, the Army and the MoD do ineed require training facilities on the site. That is not the issue. The issue is whether the infrastructure improvements proposed by the MoD would impact on the national park as a whole or on the A.696. It is not a question of whether or not the MoD should continue to occupy the site.
Lord Redesdale: My Lords, if the SDR indicates that there should be a reduction in the amount of artillery training at Otterburn, can the Minister say whether there will be an increase in the amount of dry training which takes place there, bearing in mind the importance of dry training on the local economy? It will also be a great deal quieter for those of us who live just off the edge of the training area and have to hear the 25-pounders and the AS90.
Lord Whitty: My Lords, as has already become evident, there are a number of conflicting concerns involved. In the first instance, these are matters for the inspector at the re-opened inquiry and then for the Secretary of State. However, I am not in a position to comment further.
Lord Carver: My Lords, despite the bangs that may take place around an artillery firing area, is the Minister aware that those areas are extremely suitable for the preservation of wildlife of all kinds?
Lord Whitty: Indeed, my Lords, that is one of the considerations the Northumberland National Park is putting to the inspector, along with other issues raised by noble Lords.
Lord Burnham: My Lords, can the Minister say whether the inquiry will take into account the fact that Otterburn is probably the only place within the United Kingdom where the AS90 can be tested?
Lord Whitty: My Lords, in its initial evidence the MoD put those points to the inspector, and will no doubt do so in its subsequent evidence to the inquiry.
Earl Howe: My Lords, is the Minister aware that the Army has gone to very considerable lengths to minimise the environmental impact of its proposals for Otterburn? Surely we would do well to bear in mind the point made by my noble friend Lord Campbell. It is the stewardship by the Army of Otterburn over a period of 80 years or so that has preserved its natural features that we know and value today.
Lord Whitty: My Lords, I recognise the importance of that both in terms of the environment and in terms of the local economy. Nevertheless, there are other considerations which must be taken into account; for example, the impact on the national park as a whole and
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the impact on the rest of the infrastructure which might be affected by the MoD proposals. Those factors will all be considered by the re-opened inquiry.
Viscount Slim: My Lords, is the Minister aware that this sort of thing causes considerable unease in military circles? The Army today is small enough. It may be more technically proficient than it ever has been, but the requirement for training areas is paramount. In fact, those of the green and various other environmental organisations could learn a good lesson in Otterburn if they were to see how the wildlife and the flora and fauna are better kept than is the case in many parts of the woodlands and forests of Britain.
Lord Whitty: My Lords, the contribution by the MoD to the management of its rural estates, including Otterburn, is widely recognised. Nevertheless, intensified use of such sites has an impact on the area surrounding the site itself. It is that which is being taken into account in this inquiry.
Lord Campbell of Alloway: My Lords, can the Minister say who reopened this public inquiry, and exactly why?
Lord Whitty: My Lords, it was the Secretary of State in response to further representations made. The position was that the inspector completed the formal part of the inquiry at the end of 1997 and was in a position to deliver a report in the autumn of last year. However, in between we had the Strategic Defence Review and various parties raised the question with the department as to whether that changed the position. Therefore, between the end of the inquiry and the delivery of the report, conditions were claimed to have changed. It is that factor which the inspector is now considering.

Gibraltar
3.14 p.m.
Lord Moynihan: My Lords, I beg leave to ask Her Majesty's Government a Question of which I have given private notice.
The Question was as follows:
To ask Her Majesty's Government what is their policy in the light of developments relating to Gibraltar.
Lord Carter: My Lords, before my noble friend Lady Symons answers the noble Lord's Private Notice Question, perhaps I may remind the House that the Companion states:
"Private notice questions are taken immediately after starred questions, and should not be made the occasion for immediate debate.
Proceedings on private notice questions follow the rules for starred questions … In particular, supplementary questions should be short and confined to not more than two points. Comment should be avoided".
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, the Spanish authorities have been angered by an agreement reached

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on 3rd February between the Chief Minister of Gibraltar and local fishermen about fishing in British waters around Gibraltar. Although this agreement builds on an earlier ministerial understanding, the Spanish introduced unjustifiably long delays at the border crossing. We protested to the Spanish Foreign Minister and made representations in Brussels. The delays have since lessened. The Foreign Secretary and a Spanish Foreign Minister will meet on 21st February.
Her Majesty's Government regret the use of border controls as a policy lever and will continue to defend Gibraltar's legitimate rights with determination. The keystone of our policy remains the 1969 commitment, which I quote:
"We will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another state against their freely and democratically expressed wishes".
Lord Moynihan: My Lords, will the Minister go one step further and take this opportunity to condemn unreservedly Spain's threats to refuse to recognise Gibraltar's driving licences, which is in direct contravention of the European law, and also Spain's threat to ban civil flights to and from Gibraltar? Will the Minister also take this opportunity to concur with the words of the former Foreign Secretary, Sir Malcolm Rifkind, who said:
"The idea for joint sovereignty is a non-starter. The simple point is that Gibraltar people want to remain British citizens and that is the end of the matter"?
Baroness Symons of Vernham Dean: My Lords, on the issue of sovereignty, I do not believe that I could be any clearer than repeating the 1969 position which I did for the record in my main Answer. As regards the driving licences, there is no doubt that Gibraltar licences are valid under EU law. EU licences must be recognised by other member states under the second EU driving licence directive. Further, on the question of overflights, Senor Matutes told the Foreign Secretary that he had not taken a decision to ban overflights to and from Gibraltar. It would be extraordinary and unprecedented for an EU member state to impose an overflight ban on civil aircraft of a European partner.
The noble Lord asked me to condemn such action. However, the sensible course of action is to go ahead with the meeting on 21st February and to create the right atmosphere in which we will talk to Senor Matutes about such matters, and not to inflame the position in the way that the noble Lord invites me to do.
Baroness Williams of Crosby: My Lords, does the Minister understand that we on these Benches fully accept and underline the status of the pledge made to the people of Gibraltar? Does she agree that it is not wise to fan the flames of a dispute in the irresponsible way that has happened in particular in another place, given the fact that there are tens of thousands of British citizens resident in Spain who wish to see the
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best possible relationship between our countries? We are most grateful for what the Minister said about the commitment made by the Spanish Foreign Minister.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Baroness for her very sensible remarks, in contrast to those made by the noble Lord, Lord Moynihan. It is of course sensible that we make our position clear on the matter. Indeed, the Foreign Secretary has done so; he did so with Senor Matutes on 11 th February. Our Ambassador in Madrid also made our position clear, as has our permanent representative, Sir Stephen Wall, in Brussels. The Foreign Secretary has also spoken to Mr. Caruana. It is worth noting that Mr. Caruana has thanked the Foreign Secretary for the stand that he has taken. Now we must look forward to the meeting in Brussels.
Lord Janner of Braunstone: My Lords, I thank my noble friend the Minister for her statement, which I am sure will reassure the citizens of Gibraltar. However, have the Government given some thought to the suggestion that I made previously that we should look at the model of the United States and consider elections by Gibraltarians of non-voting representatives to this Parliament? Surely that would be the clearest possible signal to the Spaniards that this Government, or any future government, will never give way. It is only when the Spanish Government really understand that that they will reduce the pressures which they are now applying.
Baroness Symons of Vernham Dean: My Lords, I do not believe that the Spanish Government can have one iota of doubt about where the British Government stand on Gibraltar. We shall not compromise over sovereignty provided that the people of Gibraltar freely and constitutionally continue to express their wishes about their status. To turn to the point about models from elsewhere, these issues can, of course, be discussed informally with Gibraltar but I do not wish to say anything to the noble Lord that in any way compromised the clear statement of policy that I have made to the House on this point.
Baroness Hooper: My Lords, does not the noble Baroness agree that the recent problems over border controls—I refer to queues and delays—are part of an ongoing pattern of harassment which has been carried out against the people of Gibraltar and visitors to Gibraltar? Will she assure us that she will convey to the Foreign Secretary the wish of many of us who are friends and supporters of Gibraltar that he should convey to his counterpart, Senor Matutes, that a charm offensive on the part of the Spaniards would be far more effective in winning the hearts and minds of the people of Gibraltar than their current policies?
Baroness Symons of Vernham Dean: My Lords, it is important to note that the border closure was effected on 29th and 30th January by fishermen in connection with the original dispute. Since then we have, of course, complained to the Spanish Government about border

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delays. I should, however, tell the House that since we made these complaints the average length of delay on the border has dropped from some six hours to one hour. We still believe that such a delay is unacceptable. We do not believe it is consistent with the light customs checks for which EU obligations provide. That is why my right honourable friend will meet his counterpart this weekend. As to a charm offensive, I agree with the noble Baroness: I hardly think that the way in which the Spanish Government are behaving at the moment is likely to win the hearts and minds of the people of Gibraltar.

Business of the House: Lords' Reform Debate
3.23 p.m.
Lord Carter: My Lords, I undertook yesterday to consider and report back to the House today the request from the official Opposition and others for a second day for the Lords' reform debate scheduled for Monday.
I am pleased to say that, following discussions within the usual channels, it has been agreed that this debate will now extend over two days; namely, Monday and Tuesday of next week, 22nd and 23rd February. I am grateful to the noble Lord the Opposition Chief Whip and his colleagues for their co-operation in ensuring that this arrangement can be made.
A Peer whose name is already on the speakers' list will be assumed to be available for both Monday and Tuesday unless he or she notifies the appropriate Whips' Office, and, in the case of the Cross-Bench Peers, the Government Whips' Office, to the contrary. Those constructing the speakers' list will try as far as possible to meet the wishes of all Peers.
A draft speakers' list will be available in the Government Whips' Office from four o'clock tomorrow afternoon, Thursday. It is, of course, open to Peers to table their names until 12 noon on Monday but no further names will be accepted after that time, as the debate is a single debate over the two days. I should also remind those noble Lords taking part in the debate that, as this is a single debate over two days, and in response to requests from all around the House, Peers taking part in the debate will be expected to be present for the majority of the debate, specifically including the opening speeches on Monday and the closing speeches on Tuesday.
I should perhaps also say that it is the Government's intention that my noble friend the Leader of the House will open the debate on Monday and I will wind up on Tuesday. It is not expected that other Ministers will take part in the debate.
Lord Henley: My Lords, I thank the noble Lord the Chief Whip and the noble Baroness the Leader of the House for their wisdom in conceding this request from this side of the House, and, I believe, from all parts of the House. I note that the noble Lord the Chief Whip requests that all those taking part in the debate should be present at the beginning and at the end of it. I agree with that point but I point out that he acceded to the
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request fairly late. He might have offered it somewhat earlier. There will therefore be a number of noble Lords who have to rearrange their affairs with some difficulty and who may face some problems. However, I am sure they will ensure that they can be present of both Monday and Tuesday. When these matters come before the House on other occasions I hope that the noble Lord will accede to requests—or perhaps even pre-empt hose requests—by offering two days at an earlier stage so that noble Lords can arrange their affairs with greater ease.
Viscount Falkland: My Lords, on behalf of my noble friend Lord Harris of Greenwich, who is not able to be here, I thank the noble Lord for informing us of these plans, which we thoroughly support without any reservation and with great relief.
Lord Carter: My Lords, I have been called a number of things but never a wise Chief Whip before. I am surprised that noble Lords do not wish to be present for the whole or most of the debate and to hear the opening and the closing speeches because, after all, they keep telling us that this is a very important subject. They have asked for two days on this single debate. Given the importance noble Lords attach to the debate and the number of speakers who have put down their names to speak in it, I cannot believe that Peers will not wish to be present. I am pleased to say that we have been able to keep the health service Bill on track thanks to the co-operation of the Opposition. I am sure that we shall have a good debate over Monday and Tuesday with all noble Lords present to hear it.

Births and Deaths Registration (Amendment) Bill [H.L.]
Lord Elis-Thomas: My Lords, I beg to introduce a Bill to make further provision about the registration of births and deaths where particulars are given in Welsh as well as English and to make new provision about certificates of particulars of entries in registers of births and deaths. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Elis-Thomas.)
On Question, Bill read a first time, and to be printed.

Scottish Parliamentary Constituencies Bill [H.L.]
Lord Mackay of Ardbrecknish: My Lords, I beg to introduce a Bill to make new provision in respect of representation in the Scottish Parliament and in relation to the Boundary Commission for Scotland; and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.(Lord Mackay of Ardbrecknish.)
On Question, Bill read a first time, and to be printed.

Severn Tunnel
3.26 p.m.
Lord Crickhowell Lord Crickhowell rose to call attention to the planned closure of the Severn Tunnel this summer and the consequences for users and the Welsh economy; and to move for Papers.
Tie noble Lord said: My Lords, I am not raising this mater this afternoon in order to attack Railtrack or the railway companies, but because a great deal of information has reached me that causes me serious anxiety about the condition of the tunnel, and the threat that therefore exists to what is one of the most vital communication links in the country.
Over the past two years there has been a serious deterioration in the rail services using the tunnel in and out of South Wales. So frequent and lengthy are the delays that many people with business engagements at either end are now forced to travel the previous day and use hotel accommodation in order to guarantee their presence at morning meetings, or have to leave on a much earlier train than has been the practice in the past. The impact on business costs and efficiency, on tourism, and on the lives of large numbers of travellers is severe.
Not all the delays are due to problems in the tunnel; electrical and track failures elsewhere, and flooding in the tunnel west of Didcot are far too frequent. But the tunnel has been, and continues to be, a major cause of delay. Worse, its condition now poses a significant threat to passenger and freight traffic, and therefore to the economies of South Wales and the Bristol area. The tunnel serves Britain's two great steel strip mills, six ports in South Wales—I declare an interest in four of them as a director of ABP—and a huge range of other industries. Frequent delays over a long period, or prolonged closure, would have damaging consequences indeed.
In January I put down five detailed Questions to which I received a blanket response which failed to answer the Questions, and in which I was told that,
"The maintenance and renewal of the Severn Tunnel is the responsibility of Railtrack".
That I understand. However, I was slightly more surprised that the Answer went on to say,
"No assessment is made on the impact of such closures on the local economy".—[0fficial Report, 1/2/99; WA 182.]
It is surely government policy to encourage rail transport and it is surprising that the Department of the Environment, Transport and the Regions seems so little concerned about the integrity of this vital link. I cannot believe that the Welsh Office has made no assessment of the impact of closure on the Welsh economy. If it has not, the operation of the department must have changed a great deal for the worse since I and my noble friend Lord Roberts of Convey were in it.
The Welsh Assembly will undoubtedly take an interest, as, I suspect, will the Secretary of State as he journeys to and fro between Westminster and the Assembly. What is the threat? On 20th May 1998 in a Written Answer, the noble Baroness, Lady Hayman, informed the House that the Severn Tunnel was likely to be closed for three weeks in July this year for necessary
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engineering work to be carried out. Last month I received information that a six-week closure might be necessary this year. The DETR Answer refers only to a series of weekend closures from 3rd April to 30th May. But I shall quote from a letter I have received from the CBI Wales. A senior manager at Great Western has provided the following information:
"Significant work needs to be carried out in the tunnel in terms of re-laying track, drainage and installing new signals; the rail industry and government have recognised that a long-term shut-down of the tunnel may be necessary; at present, all sides have accepted regular 52 hour closures as a solution although it may well not be adequate to complete the work; whilst the need for a shut-down may become unavoidable it will not happen this year as the rail companies would have been informed in plenty of time to arrange timetables.
It would appear that fears of a shut-down this year are unfounded but that the general principle of a shut-down sometime in the future is not in doubt. Sunday is the second busiest day of the week for rail operators so to regularly lose a full service on this day, as part of the 52 hour shut-down over a weekend, is not a popular prospect. The bullet may have to be bitten and a one-off long-term closure may be more appealing to the operators".
My own sources believe that the situation is even more serious and that the integrity of the structures is in doubt; that a much longer closure might be required; that there are safety aspects which give rise to justifiable concern; and that, finally, the cost impact of the necessary work will have a damaging effect on the railway companies and their customers. I understand that already freight is being diverted via the Midlands to avoid the charges made for use of the tunnel. That there is a problem to be solved is not the fault of Railtrack—although I shall return later to justifiable criticisms of its conduct.
If it were above ground, the Severn Tunnel would be a Grade I listed historic monument, no longer used but preserved as an example of Victorian engineering enterprise and skill. It is four miles and 624 yards from mouth to mouth, the longest tunnel on the mainland rail system. The first work was undertaken over a period of seven years in the 1860s by Charles Richardson, a pupil of the great Brunel. An Act for the construction of the tunnel was obtained in 1872 by the Great Western Railway Company and work was begun in 1873, using the ring method of construction favoured by the consulting engineer, Sir John Hawkshaw, rather than the vertical bond technique favoured by Richardson. Sir John was another of the great Victorian engineers—for example, he built the Charing Cross and Cannon Street terminals and bridges and did pioneering work on the Suez Canal. I might add that he was a little less successful as a parliamentary Liberal candidate. Construction took 14 years and was completed in 1887.
During the construction period, the contractor hit coal seams—some of which he may have used to provide coal for his steam engines—and much worse: the Great Spring. Within hours the tunnel was filled with millions of gallons of spring water. The Victorians then sunk shafts, built underground sumps and installed pumps on a scale never seen before. A system of subterranean passages was installed below the railway tunnel to drain water to the sumps.
The aqueduct built to carry water from the Great Spring to the shaft and pumphouse is still used—indeed all those bits of apparatus are used—to raise water to the surface. The water pumped out of the tunnel is sold to Welsh Water, and substantial quantities of it are used under contract by Whitbread's brewery, a few miles west of the tunnel, and by a paper mill.
Between 1929 and 1931, two contracts were carried out to fill all the cavities immediately behind the tunnel lining with cement, to fill and seal off any fissures having direct connection to the cavities, and to render the lining of the tunnel as waterproof as possible. The work was only partially successful. The pressures were such that some cement has been forced up to the surface and appears in farmers' fields. In the 1980s, two jets of water appeared through the shaft wall, and this water still has to be piped away. Engineers believe that water may well force its way through the shaft and tunnel walls in the future, and on a much larger scale than the steady seepage which occurs in any event. In 1957, the decision was taken to replace the old Victorian steam-driven pumps with an equal number of electric motors, and the new system was inaugurated in November 1961.
Railtrack states that during the past few years it has spent more than £10 million on replacing the 1950s pumps and control systems, on installing state-of-the-art control and data analysis equipment, and on replacing the old centrifugal ventilation fan with four new axial fans. That is good news. I congratulate Railtrack on those achievements and on the fact that great care was taken during the construction of the second Severn Bridge—which crosses the tunnel near the English shore—in order to monitor conditions and avoid structural damage. I took the decision with Nick Ridley to build that bridge. I am delighted to see that the noble Lord, Lord Hooson, is in his place; he is the chairman of the company which had the responsibility for seeing that the bridge caused no damage, and I know that it took the greatest possible care.
However, that is not by any means the end of the story. Railtrack refers to,
"an on-going programme of refurbishment and maintenance to both the tunnel structure and railway structure";
there is, what it describes as, "an on-going feasibility study" to investigate opportunities to undertake a major overhaul of the entire tunnel; there are the Government indications last year that at least a three-week closure would be required; there is the statement by Great Western to the CBI that a shut-down may become unavoidable and that the rail industry and the Government have recognised that a long-term shut-down of the tunnel may be required; and there is the information that I have received that, although the central drain was cleared of ballast last year and the inspection chambers reconstructed, ballast continues to fall into the central drain, which has also suffered significant damage. Those much more expert than I believe that major repairs will be required in addition to the work of re-laying track and ballast to which Railtrack has referred in recent statements. There is the view of experienced engineers who have worked on the
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tunnel that a closure of at least six weeks may well be required, and that current investigations may reveal that much more extensive work is needed on the whole structure.
In a recent letter to my noble friend Lord Rooert of Conwy Railtrack's public affairs manager refers to "further phases of work" beyond that being undertaken this spring—which will take place in 2000 and 2001—which will include further track renewal, drainage work and general refurbishment of the tunnel. The total project cost is given as £6.5 million.
A few years ago the canvas survey rolls of the original design were still at Swindon, as were the reports of the 1929–31 cementation process. I hope that Railtrack will confirm that information in those surveys and reports, and the effectiveness of the cementation work, are being fully reviewed by those carrying out the current feasibility study. If the feasibility study has been completed, and is the foundation for the public affairs manager's recent statement to my noble friend, I very much hope that the nature of the conclusions will be made public. If I am wrong about damage having occurred to the central drain and the further ingress of ballast, that matter needs to be dealt with as well.
I also hope that in an early statement Railtrack will cover fully the safety issues and the effectiveness of the emergency arrangements. It is true that there have been earlier reports on safety, but I am told that the multi-track vehicle on standby on the Bristol side would be unable to help in an emergency on the more vulnerable Welsh side if the bottom of the tunnel was flooded, and that it would probably take well over an hour at best to get the emergency engine manned and moved from its branch line on the Welsh side into action in the tunnel.
I refer to the need to provide information to the public. At present there is an unhappy tendency for Railtrack, the rail companies and the Government to clam up when questions are asked. Responses and statements are inconsistent, misleadingly reassuring or non-existent. A prime object of this debate is to ensure that in future there is adequate information, adequate warning of closure and adequate consultation. The whole matter is so important that it needs to be kept under close review by the relevant Parliamentary Select Committees and, in due course, by the Welsh Assembly. The CBI view is that,
"Railtrack must see the customers of the operators as their customers not just Great Western et al. Moreover, freight may lose out in the battle to please passengers, which would have a devastating impact on Welsh business prospects",
and, I would add, on business prospects on the other side of the channel around Bristol as well.
In my judgment, there is an urgent need for Railtrack and the Government to face up to their respective responsibilities. My Lords, I beg to move for Papers.
3.40 p.m.
Lord Hooson: My Lords, I express my regret, and I am sure the regret of the House, that the noble Lord, Lord Berkeley, cannot take part in the debate because he would be unable to conform to the conventions of the House. We are very sorry to miss his contribution.

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I very much appreciate the fact that noble Lord, Lord Crickhowell, has brought this matter to the attention of the House. I have an interest to declare which the noble Lord has already declared for me. I am the chairman of Severn River Crossing plc, which controls and operates the two bridges across the Severn—the Severn Bridge and the second Severn crossing.
The noble Lord, Lord Crickhowell, has outlined a serious problem. When we were building the second Severn River crossing I was well aware of the problems with regard to the tunnel. It was a masterpiece of Victorian engineering, providing an enormously important artery to South Wales. The economy of South Wales depends particularly on the tunnel and the two bridges across the Seve ns is an obvious disadvantage that the Welsh econo npared to the economy on the other side of the Severn, has to negotiate in one way or another the obstacle formed by the estuary.
It may interest noble Lords to hear some figures. I have access to the monthly figures of traffic crossing the two Severn bridges. The noble Lord, Lord Islwyn, indicated in a question yesterday or the day before that the venture of the Severn River crossing has gone very well. If present trends continue we will be in a position to hand the two bridges back to the Government in pristine condition years before that event was expected. It will then be open to government, of whatever complexion, to make them toll free if they so wish.
The amount of traffic has increased every year but has never reached the size that was estimated when the tender was made. The tender was made at a time of high inflation and a great deal of economic activity. The growth in economic activity has not matched the expectations that were then expressed. Having said that, I quote the figures for the year 1997–98. For cars, the increase was 5.3 per cent.; for light goods vehicles, 6.9 per cent.; and for heavy goods vehicles, 4 per cent. That is the lowest increase in heavy goods vehicle traffic in recent years. In December there was an increase in heavy goods vehicle traffic of only 0.7 per cent. Heavy goods vehicles are a good indicator of economic activity on both sides of the Severn estuary.
The obvious alternative for transporting heavy goods, if not by another road route, is by rail. I should perhaps make clear that I am speaking not on behalf of my party but as an individual who happens to have some knowledge of the problems involved. It is obviously in the interests of everyone that this important rail artery is maintained in as good a condition as possible. However, a great problem arises. At a social event I attended last evening it transpired that some Railtrack engineers were present and one of the design engineers of the Severn River crossing. He had had particular responsibility for designing the cantilever system that covers the tunnel where the bridge crosses it on the English side. It is well known in engineering circles that the tunnel has had drainage problems. It is a great Victorian construction but much of it needs to be repaired and restored. If I recollect correctly. we were unable to have a terminal for heavy goods on the Welsh
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side of the tunnel because the tunnel was unable to accommodate goods vehicles brought across by continental railways.
The situation that arises now is due partly to non-disclosure. Engineers have known of the problems for a long time. I agree entirely with the noble Lord, Lord Crickhowell. It is impossible to believe that the Welsh Office has not made some estimate of the effect of closure of the rail tunnel on the economy of South Wales and indeed on the economy of the other side of the estuary. It would have been better to have had a carefully worded announcement by the Government of a study of everything that is entailed. Obviously, one can carry out a certain amount of repair work to make the track more accessible to passenger traffic. However, the problem with regard to freight is rather different. More substantial work is needed to make the tunnel suitable for increased freight ffic. I subscribe to the view that heavy freight should, where possible, go by rail and that rail should at least be in a competitive position with road traffic. But if the tunnel is not available, Wales and indeed the other side of the Severn will be deprived of the only alternative to road use.
I support the noble Lord, Lord Crickhowell, in saying that a statement is needed from the Government. I have in my hand a cutting I received today from the Severn River Crossing plc. It is a newspaper article of last evening and is taken from a newspaper published on the Bristol side of the channel. It is headed:
"Rail chaos ahead as tunnel is closed".
That kind of news will not do the economy or the prospects for the economy much good. The article states that holiday and week-end rail traffic is on the verge of chaos and details the six week-ends from 2nd April and into May during which the tunnel will be closed.
If this is a patch-up job, the country should know. If, on the other hand, it is the precursor to a more serious shutdown of the tunnel because there are serious problems in the tunnel the sooner they are tackled the better. If that means closure of the tunnel, we must face up to it and find out the cost and how long it will take to put matters right. The long-term interests of Wales and Severn side generally depend on the tunnel being restored as a proper alternative artery for crossing the Severn.
I am therefore extremely grateful to the noble Lord, Lord Crickhowell, for bringing the matter to the attention of the House. I hope that it engenders an enlightened and constructive debate on the best course that can now be taken in the interests of the economy as a whole.
3.51 p.m.
Lord Morris of Castle Morris: My Lords, in the year of grace 1966, shortly after the opening of the first Severn bridge, which eased the growing strain on Brunel's tunnel and gave joy and hope to commerce and industry in Wales, the Welsh Nationalist poet

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Harri Webb wrote his fin "Ode on the Severn Bridge" which I beg leave to recite to your Lordships now, in full and unabridged. He wrote:

"Two lands at last connected

Across the waters wide,

And all the tolls collected

On the English side".

Much water has flowed under that bridge and over that tunnel in the 33 intervening years. The second bridge has been built, and the tolls are now collected on both sides, though any profits do not accrue to the Welsh Office. Yet the tunnel is still indisputably a vital conduit for traffic, and we are all grateful to the noble Lord, Lord Crickhowell, a former and distinguished Secretary of State for Wales, for this opportunity to discuss its importance. It is part of a key route to and from Wales with effects on the Welsh economy. Railtrack is the steward of that network and surely has a duty—it is its meet, right and bounden duty—to enhance the network as it stands in whatever way it sees fit.
There may well be some "disbenefits" which may arise to the economy of Wales from the renewal of some 4.3 kilometres of track, which Railtrack deems to be essential and for which it says it must close the tunnel for six weekends between 2nd April and 24th May. Your Lordships will decide for yourselves how serious this disruption will be and what price will be paid for it by the industries, commerce and businesses of Wales, especially in the run-up to the birth of the Welsh Assembly.
Yet it may be relevant to consider briefly what the consequences of such closure might be for the state of the Welsh economy as it was inherited by the present Government at the last general election. We have often been told, and some have been led to believe, that massive inward investment under the previous administration brought happiness and prosperity to the Principality on a scale never before achieved. There was indeed considerable and continuous inward investment, and the noble Lord, Lord Crickhowell, played a distinguished and heroic part in achieving and sustaining it. But that is not the whole picture.
In 1996 per capita GDP in Wales was only 83 per cent. of the UK average, the worst performance of any UK region except Northern Ireland. Although unemployment was relatively low by 1997, participation rates were far lower than in the rest of the UK—around 6 per cent. below the UK average. Welsh earnings were the lowest in Great Britain—89 per cent. of average. In 1979, when a Labour government were in control, the figure was 98 per cent. Even in the most prosperous parts of Wales (for example, South Glamorgan), earnings are less than the average for the rest of Britain. In 1996, Wales had the lowest rate of business formation in Great Britain. Spending in Wales on research and development was lower than anywhere else in the United Kingdom. Less than £100 per worker was spent on R&D in Wales compared with more than £800 in the Eastern region and £250 even in the hard-hit north-east of England. Workers in Wales had lower levels of qualifications than elsewhere in the UK. More than
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40 per cent. of the Welsh workforce were fourd to have poor numeracy skills and a shameful 1,600 16 year-olds left school with no qualifications at all.
These are long-term problems which it will tale more than a couple of years to solve, but the Government have made a good start. New Deal has started to give hope and real jobs to young people and the long-term unemployed. Already 3,700 18 to 24 year-olds have real jobs and by the end of November 1998, 13,000 18 to 24 year-olds and 4,300 long-term unemployed had joined New Deal. This is good news and has nothing to do with the Severn Tunnel and its particular problem.
There has been a net increase of 15,000 jobs in the Welsh economy in the year to September 1998—even though Wales, of course, was affected by the economic downturn. We have almost certainly secured EU Objective 1 status for West Wales and the Valleys. That will bring a £2 billion boost in investment to the Welsh economy. We are increasing spending on lifelong learning to enhance skills. Spending on further education will increase by 13 per cent. next year, to a total of over £200 million. We are increasing spending on enterprise to stimulate Welsh businesses. We have merged the Welsh Development Agency, the Development Board for Rural Wales and the Land Authority for Wales to create a powerful all-Wales economic development agency, capable of addressing the needs of the whole of Wales. Some people have wondered whether it will be too powerful, but time will tell.
And, of course, the National Assembly for Wales—one of Labour's key pledges in the General Election, and delivered in just two years—will give Wales the chance to define distinctive Welsh solutions to Welsh problems within a co-ordinated UK strategy. There is already much of which this Government have no need to feel ashamed. The Welsh economy is large and it is strong.
The closure of the Severn tunnel for a few weekends—allowing passengers to enjoy the landscape of the Severn estuary and the charms of Chepstow—will not derail the economic benefits which this Government are already bringing to the Principality. But there is one commercial enterprise in Wales, and a very important one, which will certainly not suffer from the tunnel closures. I refer to the publishers of the Principality, on whom so much of our cultural pride and prosperity depend. They will be unaffected because so much of their output never sees the light at the English end of the tunnel at all. They export next to nothing.
Welsh book publishers are a skilled and devoted segment of the Welsh economy. They produce hundreds of titles every year in English and Welsh to a standard which none could excel and few could rival anywhere in Europe. They cover a wide range, from history to topography, folklore to folkdance, politics to poetry. And here I must declare an interest, since Gomer Press, in the pleasing little town of Llandysul, has published four volumes of my poetry, and printed them superbly, the last no more than a few months ago—order your copies now and avoid disappointment! But my last volume was sponsored entirely by Dwr Cymru/Welsh

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Water, and most of Welsh publishing rests on some part of the old rock of subsidy in one form or another. There s serious concern about the continuing fall in the sale of books published in Wales, despite some £1 million of government money distributed in grant aid. If a poet sells 300 copies of a book in Wales he throw a party.
The writers are as good as they ever were. "Gwlad beidd a chantorion"—a land of poets and singers, as our national anthem puts it—we still are. Equally good day the designers and printers. The failure lies in marketing. The publishers do hardly any marketing because they leave it to the distributors, the Welsh Books Council. The Welsh Books Council distributes books with great efficiency, but it fails to market its products. The proof lies in the sales figures.
May I commend to your Lordships an article shortly to appear in the magazine Planet, which circulates widely in Wales, by Mr. Meic Stephens, one of Wales's most experienced and distinguished literary figures, which will document this desert of achievement.
Radio and television in Wales virtually ignore literature. There is no serious books programme on the air, and sales figures for literature of all kinds continue to decline. Publishers and distributors must market their products far more vigorously if Welsh books are not to dwindle into becoming an expensive cultural indulgence, funded by the UK taxpayer.
Lord Islwyn: My Lords, could I ask the noble Lord whether these books are about the Severn tunnel?
Lord Morris of Castle Morris: My Lords, my point in reply to my noble friend is that they ought to be going through the Severn tunnel and they are not. So there will be very little difference—if he had listened carefully to what I said at the beginning of my remarks—to the Welsh publishing trade whether the tunnel is closed or not, though the Welsh publishing trade is a large part of the Welsh economy, certainly in its cultural areas.
Welsh books have to be exported through the Severn tunnel and over the Severn bridge, and marketed skilfully in England and beyond. It is significant that Irish novelists and poets are infinitely better known. They have, to use a slightly vulgar but vigorous phrase, "got their act together". Perhaps the significance of this was realised long ago by Harri Webb in another of his short, shrewd poems. entitled "Our Scientists are Working On It", when he wrote:

"What Wales needs, and has always lacked most

Is, instead of an eastern boundary, an east coast".

4.2 p.m.
Lord Rees: My Lords, I add my congratulations to my noble friend Lord Crickhowell for introducing this short but stimulating debate. I also congratulate him on his very detailed analysis of the problem and indeed, to a degree, the history of this great 19th century railway project, the Severn Tunnel.
I hope that the noble Lord, Lord Morris of Castle Morris, will forgive me if I do not range quite as widely as him and embark on a rather partisan exchange of
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misleading statistics about the Welsh economy, or indeed go into the depths of the economy of publishing in Wales. Fascinating questions though they may be, I find them to be but tenuously linked with the subject of this debate—except perhaps on one particular point. I am not prepared to debate the need for the work that is to be undertaken on the tunnel; others may be better qualified to discourse on that rather technical subject. I recognise that the primary responsibility for the work will rest with Railtrack. The noble Lord, Lord Morris of Castle Morris, however, emphasises that we must debate this question against a slightly wider background: in particular, against the assertion of the present Government that the Welsh economy deserves special treatment, special care, and that there is a need, not limited to the Principality, to shift more traffic, more freight, more persons, from road to rail. It is right that we should consider this project against those two particular questions.
It may well be that the Minister will be tempted to take the easy course and say that most of the questions which I and other noble Lords may direct to the Government Benches are properly to be asked of and answered by Railtrack; but I am sure that the noble Lord, Lord Morris of Castle Morris, and perhaps other noble Lords will join with me when I say that I doubt whether that is an adequate answer. Knowing the thoroughness with which the noble Lord the Minister reads his brief, I am sure that he will give a rather wider view and a governmental approach to this particular question.
Perhaps I may leave with him a few questions, which I hope he will be able to answer. First, is it realistic that people should be asked to plan on the basis that this work will be completed in six successive weekends during the course of this year? Even Railtrack, in the document which I am sure other noble Lords have received, have suggested that the current plan is to renew 4.3 kilometres of track in the tunnel, but further work will take place in the year 2000–2001 and then,
"… there will be no need for further work for at least five years".
That is a rather sinister addendum, because most of us, and certainly most businesses, have to make plans over a rather longer timescale than that. Will the Minister be able to reassure us? I am sure that the Welsh Office and the Department of the Environment, Transport and the Regions must have sought some kind of reassurance on this point. I hope he will be able to pass that on to us and indeed indicate which department will be in the lead on this question.
The next question is: what consultation process has there been so far? What consultation process do the Government feel is needed and will be undertaken, and by whom, in regard to the bodies, the people, the businesses, which will inevitably be affected? What chance have they had to voice their legitimate concerns, maybe directly to Railtrack, but what about to the Government themselves? What are the likely consequences to the economy, if it can be identified in quite such terms, of South Wales and, for example, the Bristol area?

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Has any thought been given to the need to improve the railway line and probably the signalling round Gloucester? I understand that over those six weekends, and whatever further period is needed, trains will be diverted round Gloucester. It is idle to say, "Oh, but it is only over the weekends", because as I understand it—and it came as an interesting piece of information to me—Sunday is one of the busiest days of the week for rail traffic. Perhaps the Minister could enlighten us on that.
Finally, has any consideration been given to the environmental consequences of the work? It is very important to know how it is likely to affect the Severn itself or the riparian communities. I do not wish to take up more time of the debate on this because I have nothing in particular in the way of information to contribute. However, I hope that the Minister will not give us a bland reply, passing responsibility to Railtrack, but will tell us what serious thinking has been given by the Government, and from which department, to this undoubtedly very important question.
4.9 p.m.
Lord Islwyn: My Lords, our grateful thanks are due to the noble Lord, Lord Crickhowell, for initiating the debate on this important transport facility. The noble Lord has rightly drawn attention to the inconvenience that will be caused to the travelling public and to the commercial considerations, which may not be negligible, as a result of the proposed closure of the tunnel for limited periods while new track and other work are carried out. Nevertheless, I believe that the prime consideration must be public safety and in that regard I wish to illustrate what has happened in past years.
To use what I would call "Hoddle-esque" language, in a previous incarnation I represented Newport for many years in another place. The Welsh side of the Severn Tunnel was in my constituency and I took a certain amount of interest in its functioning. It is a fascinating construction. The noble Lord, Lord Crickhowell, has mentioned that each day many thousands of gallons of pure water are pumped out of it and that large quantities of that water are supplied to the nearby modern Whitbread brewery. Before the construction of the second crossing, the Whitbread management suffered something approaching apoplexy because it envisaged that when the foundations were dug for the new bridge, sea water could be let in which could contaminate its hitherto pure supplies. It hired top QCs to appear before the appropriate committee. There was quite a lot of concern at the time. In the event its fears proved unjustified and its supply of pure water continued unabated. There has been a seepage problem inside the tunnel in recent months but, to the best of my knowledge, that has now been corrected. The point I wish to make is that with regard to the Severn Tunnel safety is the predominant issue.
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With respect to the worries and anxieties of local people at the time, on 6th December 1990 I put down an Early Day Motion in the other place, which was supported by 39 honourable members. It read as follows:
"Modernisation of Severn Tunnel
That this House considers the Severn Tunnel to be an excellent construction which has facilitated the conveyance of people and freight across the Severn estuary for over a century, avoiding the much longer journey around Gloucester: believes that unless it is moderised there is now a danger of it becoming a relic o the Victorian era; therefore calls for permanent lighting to be installed throughout the length of the tunnel with emergency lighting as an interim measure, and for a system of cameras inside the tunnel which could be linked to British Rail's local headquarters or he local police headquarters; believes that these measures could be of benefit in case of any hold-up or accident; and calls upon British Rail to carry out these measures to bring this important facility up to date".
Lo and behold, 12 months later almost to the day, on 7th December 1991, there was a serious accident in the tunnel. A major tragedy was narrowly averted. It was reported at the time that two trains which crashed in the tunnel were lost for half an hour, that passengers were trapped in the dark and that it was 75 minutes before rescuers could reach them. It seems that the original rescue team was sent in the wrong direction and that a general state of chaos and muddle prevailed at the time. Of the 280 passengers no less than 102 were injured.
I repeat that with regard to the Severn Tunnel we cannot toy with safety. If the company is saying that new track and other work have to be carried out, so be it; let us get on with it. We have been told that the work will be carried out at week-ends and, I understand, during the Easter break. Trains will be diverted around Gloucester and the journey will be much slower. There will be inconvenience to the public and there is bound to be a certain amount of damage to the Welsh economy. Fortunately, as the noble Lord, Lord Hooson, pointed out, we have an excellent road network linking both sides of the Severn estuary. I make no apology for having campaigned year in, year out, for the second crossing. It has proved a huge success, and the Welsh economy would certainly be in dire straits today without it.
That does not in any way mitigate the fact that heavy toll charges are an awesome burden on the Welsh economy, large sections of which are still in a parlous condition. The fact that Objective 1 status is to be sought for West Wales and the Valleys bears out what I say.
The privatised rail operators have a lot of catching up to do. They are in receipt of massive public subsidies but up to the present time they have shown themselves to be thoroughly inefficient. Day by day the complaints escalate. I quote from today's Daily Telegraph:
"Passenger complaints reported by the 25 privatised train companies have continued to rise at an alarming rate, according to the latest figures from the Office of the Rail Regulator. A total of 540,000 complaints were registered by the operators between April 1 and Oct 17 last year, an increase of nearly 25 per cent. on the same period the previous year".
That is an indictment in itself. It is no good the rail companies complaining about competition from the roads. They need to be reminded that they live in a

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competitve world. The situation as regards rail was recently summed up by the Deputy Prime Minister when he told Mr. Richard Branson that his rail service was as deficient as his balloons. I believe that the public deserves better.
4.18 p.m.
Lord Harlech: My Lords, I thank my noble friend Lord Crickhowell for raising this important matter. I shall not dwell in depth on the politics or issues in relation to public transport or freight. I declare an interest in that I am involved in both those areas.
We heard from the noble Lord, Lord Morris of Castle Morris, a litany of all kinds of political beliefs about the week-end closure of the tunnel. Would it not be more appropriate if the Government were to address themselves more to the economy of, and inward investment to, Wales, and to South Wales in particular, and to encouraging overseas investors and our European allies?
There are inadequate and inappropriately-made decisions. There could be single-track working, for example. This is an example of inaccurate politics, underlined by inappropriate examination of the required equality between the trading nations of Wales and England. One needs to be careful. It is important that we do not put on the altar of politics the closure of a vital economic link that can be carefully asserted and adjudicated upon by correct administration. This is an example of an administration that currently in this Chamber and in the other place are ignorant of the public examination of the implications of their decisions.
Make no mistake about it. Noble Lords on the other side may grizzle. But make no mistake about it. Examination of what happens on the ground is more important than a simple agreement between Ministers in an office that bears no resemblance to people's feelings and the effect on their workplaces and their lives.
4.21 p.m.
Lords Prys-Davies: My Lords, I too thank the noble Lord, Lord Crickhowell, for introducing this short but important debate. I agree with much that the noble Lord, Lord Hooson, said. I am sure that by now your Lordships are anxious to hear what my noble friend on the Front Bench has to say in response. Therefore, I shall be brief. I have no interest to declare except that I travel from my home to your Lordships' House through the Severn Tunnel and that currently it is impossible to rely on the operators' timetable, which may imply an inadequate standard of performance or what others may describe as incompetence on somebody's part.
I believe that we all associate any tunnel, let alone a tunnel under an estuary, with danger. Therefore, the need for the highest standard of safety in a tunnel does not need to be discussed because it is so obvious. Safety in a tunnel is not to be negotiated or compromised. We have heard about the history of the tunnel. I very much agree that it is one of the great engineering
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achievements of the past. I also agree that in the past the tunnel has served the people of Wales and the economy of South Wales. Today it remains vital to the economy of South Wales as the mainline route between that area and Paddington. I am sure that my noble friend the Minister appreciates its importance.
Against that background I should like to ask my noble friend three questions. First, particularly in view of what has been said today, can my noble friend confirm that the Severn Tunnel complies with the highest standards of safety—that is a critical matter—and that it is regularly and frequently inspected by the regulator or the appropriate safety authority? It would be helpful if in answering that question the Minister could explain the precise nature and extent of the works to be carried out during the temporary closure in the coming summer months. For example, is it intended to carry out essential repair work, to instal new technology in the tunnel, or what?
Secondly, we are told that the closure is a purely temporary arrangement. Can my noble friend inform the House of the precise timescale of these works? When will they commence and when will they be completed? Has a firm timetable been agreed between Railtrack and the Welsh Office or the Minister's department? Perhaps my noble friend can tell the House what is to happen if the works are not completed on time. Will Railtrack suffer a penalty? What is the sanction? The fear is that without an effective sanction the work may go on and on for a very long time to come.
I turn to my third and last question. Does the planned closure signal that there will be further closures of the tunnel or the track in the vicinity of the tunnel during the next few years which require trains to be diverted? In other words, is the planned closure of the tunnel in the next few months merely the first instalment of a more extensive programme down the track? If so, can we be provided with particulars of that programme and its timetable?
I very much agree with the noble Lord, Lord Hooson, that what is needed is a debate, informed by facts and figures, on the planned temporary closure of the Severn Tunnel. I trust that my noble friend the Minister can produce those facts and figures.
4.27 p.m.
Lord Thomas of Gresford: My Lords, I also congratulate the noble Lord, Lord Crickhowell, on introducing this extremely valuable debate. What becomes apparent as your Lordships speak on this topic is that an opportunity was lost to create a concurrent rail/road link when the second Severn crossing was constructed. That is rather surprising having regard to the Britannia Bridge works where a concurrent road/rail link was provided during the 1970s. We on this side of the Chamber sought to discover which government was responsible for the decision to have only a road link. To use my family motto, ar Bwy mae're Bai?— Who can we blame? Neither my noble friend Lord Hooson nor the noble Lord, Lord Roberts of Conwy, could remember precisely who originally commissioned the bridge.

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I have had the opportunity today to discuss the problem with Mr. Chris Gibbs, operations director of Wales and West Passenger Transport. He tells me that the repairs to be carried out this summer are the replacement of ballast and sleepers over a distance of 38,000 feet of track, together with the cleaning and repairing of the drains, at a total cost of approximately £3 million. He says that the pumps that deal with the Great Spring, to which the noble Lord, Lord Crickhowell, referred, were replaced a few years ago and that the new ones work perfectly adequately. My information is that the work is to be carried out over the Easter weekend and on four subsequent, but not consecutive, weekends during April and May, and that, although some disruption is inevitable, less busy weekends have been selected. I am also told by Mr. Gibbs that in the next couple of years Railtrack propose to carry out upgrading work in the tunnel which will permit trains to travel at speeds of up to 90 miles an hour and closer together in time. That work is anticipated to be completed in a full week with perhaps eight additional weekends. He says that the tunnel will not be totally closed during that period.
I listened to the concerns expressed by the noble Lords, Lord Islwyn and Lord Prys-Davies, about the paramount requirement for safety in the tunnel. What is required is an independent, multidisciplinary engineering survey of the tunnel so that not only noble Lords but the Government and the people of Wales can be informed of the precise engineering position of the tunnel. It is not a responsibility for Railtrack simply to ensure safety in the tunnel; it is also a government responsibility.
Perhaps I may be permitted to widen the debate a little, not to the bookshops and publishing places to which the noble Lord, Lord Morris of Castle Morris, referred, but to the general topic of the importance of railways in the Welsh economy. The noble Lord, Lord Crickhowell, said that the Welsh Assembly will take an interest in what happens with the Severn Tunnel. I am sure it will. However, although the Welsh Assembly will have full control over the Welsh Office's roads budget, it will have no real power in relation to rail transport. The rail system will continue to exist on subsidies and contracts which are decided at Westminster. Although Wales is not the largest part of Britain, a plethora of rail companies serve it at present. There are the InterCity routes, and the Cardiff Railway Company, with the valley lines. Wales and West Passenger Trains are Cardiff-based and responsible for regional routes radiating from Cardiff to West Wales, Holyhead, Manchester, Liverpool, Birmingham, London, Portsmouth and Paignton. It is also responsible for the Swansea to Shrewsbury service. Central Trains are Birmingham-based, with services on the Cambrian lines and Chester to Shrewsbury via Wrexham. North Western Trains are Manchester-based and provide services in North Wales on the coast route, the Conwy Valley and the Wrexham to Bidston service.
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For Central Trains and North Western Trains, Wales is a minority part of their network. Anyone MD travels on those lines—as I do two or three times a week—knows only too well that, as Mr. Rhodri Clarl of the Institute of Welsh Affairs put it,
"the connections policies of the three regional operators do not acknowledge that anybody could possibly want to travel from one part of Wales to another".
That is the fact. The barren, cold Shrewsbury station is well known to those of us who seek to travel from North Wales to Cardiff.
In Scotland, control of the ScotRail subsidy will effectively be in the hands of the Scottish Parliament. That is not the case in Wales. There is an urgent need for integrated rail services, under the aegis of the Welsh Assembly. The franchises of the three regional operators expire in 2003 and 2004. That is a moment of opportunity which must be seized. When the assembly comes into being, it should urgently campaign for the creation of a distinct WalesRail system, bringing together the entire network and incorporating, along with the lines of the network in Wales, some of the lines in England, notably the Newport to Shrewsbury line via Hereford. The subsidy for those services should no longer be in the hands of Westminster, but should be directed through the assembly which should select a new operator for WalesRail; or—if I dare mention this to the Benches opposite—even create an executive nationalised agency linked to the Welsh Development Agency and the Wales Tourist Board.
Railways in Wales under WalesRail would no longer be at the end of the line. They would radiate from Wales to the Channel ports, to the centres of population and industry in England, and to Ireland. With the full co-operation of the Welsh Development Agency, the opportunity would then exist to create new rail links, for example, to Cardiff airport (which is long talked about without coming to fruition) and to existing, new industrial development sites. As my noble friend Lord Hooson pointed out, the development of freight traffic through the rail network is of vital importance to the future of the Welsh economy. Further, the links between North, Mid and South Wales could be improved with an integrated service connecting bus services to meet the core rail network. The tourist services which bring much income to Ffestiniog, Llangollen and elsewhere could be extended to other areas of Wales.
Welsh Office grants are readily available for new roads, but future rail investment depends upon an act of will on the part of the assembly to obtain the necessary powers. We face a situation in Wales where the economy is beginning to slow down on both sides of the Severn estuary. It is vitally important that we maintain the rail tunnel link and develop rail services in Wales in an integrated fashion.
4.36 p.m.
Lord Roberts of Conwy: My Lords, my noble friend Lord Crickhowell was right to move the Motion and to seek clarification of the proposals regarding the closure of the Severn Tunnel. It is a matter of great importance to rail users, as we all realise, and the extent of the tunnel's use

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may be auged from the fact that during one week earlier this month no fewer than 1,187 passenger trains and 147 freght trains passed through it. That is the current weekly average, which I understand does not change with the sections.
As a number of noble Lords have said, the Severn Tunnel is a vital artery to se side and South Wales and of crucial importance to great tracts of the Welsh economy, as my noble friend described. The livelihoods of many thousands of people are dependent to a greater or lesser extent on the continuing successful operation of this Victorian masterpiece of civil engineering, despite the two road bridge crossings built in the second half of this century, of which the noble Lord, Lord Hooson, has extensive experience as chairman of the Severn River Crossing plc.
As regards how the second bridge was arrived at, I recall the meeting between my noble friend Lord Crickhowell, and the late Nicholas Ridley, who contributed his own genius to the solution of the problem facing us. I recall that all the pressure for the bridge came from the Welsh side, from my noble friend, because the first bridge was rapidly reaching capacity and a second bridge had to be built.
Railtrack plc, which is responsible for the tunnel, tells me that the train companies which use it predict that, although there has been no growth in traffic over the past five years, traffic could increase by between 26 and 32 per cent. over the next decade. So there is no question but that the Severn Tunnel will continue to be a strategic rail route of prime importance.
Curiously, perhaps, the Government do not have security responsibilities over the Severn Tunnel comparable with those they have over the Channel Tunnel under the Channel Tunnel Security Order 1994, but that should not inhibit the Government from taking the keenest interest in the maintenance of the tunnel and the safety of those who use it. The Government can, of course, express that interest through the Rail Regulator and the Health and Safety Executive's Railway Inspectorate. They can bring influence to bear on Railtrack, which carries the prime responsibility for keeping the tunnel in good order.
Tempting as it is to wax lyrical about the magnitude of the Victorian achievement and the courage and determination of the tunnellers when they were completely flooded out, two years into construction, by the waters which poured from the great spring they encountered underground, I shall refrain from doing so. However, I must say that the sumps, pumps and subterranean passages installed on a grand scale to cope with the daily flow of 11 million gallons of water clearly require sustained and careful maintenance if the tunnel is to be kept in sound operational order.
As has been said today, Railtrack has spent some £10 million over three years replacing some of the equipment. This year, it hopes to renew some 4.3 kilometres of track, sleepers and ballast. By my calculation, that is about two-and-a-half miles and just more than half the total length of the tunnel. The first phase of the work was done last year and further phases
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are planned for next year and 2001. The total cost will be about £ 6.5 million. It is confidently predicted by Railtrack that when that work is complete the tunnel will not need major track work for another five to eight years.
However, other work may be required. I have studied the comments and representations made by the Rail Users Consultative Committee for Wales on Railtrack's network and management statement. Some six items suggest Improvements in both speed and safety in the area of the tunnel. I am sure that the noble Lord, Lord Islwyn, will be interested in some of the suggestions. They include, for example, lighting in the tunnel; additional signalling; replacing the level crossing at Bishton, between Newport and the Severn Tunnel junction; and others which would improve the conditions on the line and in the tunnel.
The six weekend closures between Easter and the end of May will clearly mean lengthy passenger train diversions via Gloucester and the rescheduling of freight trains. I was surprised to note that Sunday is the second busiest day of the week for train operators. However, as an occasional Sunday traveller. I should not be surprised by that fact.
Temporary closures of this kind are never popular, as my noble friend Lord Crickhowell and I recall very clearly from our experience of the years when the first and then only Severn Bridge was being maintained and upgraded. Together with strong winds, the work caused insufferable delays from time to time. However, maintenance is vital and the sooner the proposed closures are clearly announced the better. Nothing causes more discontent than uncertainty. I hope that the Minister can dispel the uncertainties that currently exist.
I understand that a study is being taken into the feasibility of a major overhaul of the entire tunnel and that it may result in a more substantial shutdown in the future. I hope that the Minister can say more about the feasibility study, which was referred to by Railtrack as:
"currently ongoing to investigate opportunities to undertake a major overhaul of the entire tunnel".
I hope, too, that this essential work on the Severn Tunnel is not caught up in the argument between the Rail Regulator, backed by the Government, and Railtrack over the rate of Railtrack's investment in rail infrastructure and the degree of its responsibility for train delays. The more I hear of the argument which is erupting in the press the more concerned I become that essential work may be adversely affected. Again, I hope that the Minister may be able to give us some assurance on this point. I hasten to add that, although I hold no brief for Railtrack, it has been good enough to provide me with some factual material for the debate.
We have heard numerous references to the Welsh economy. There is not much doubt in my mind that it is rather fragile, in spite of the Government's confident utterances, and manufacturing industry is experiencing a serious downturn. The last thing we want is to add to the gloom a whiff of uncertainty about the future of a major strategic rail route which the Government acknowledge in their White Paper to be a pinch point in the system. The noble Lord, Lord Morris of Castle

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Morris, outlined the current situation and referred to GDP figures in Wales. I can tell him that the situation in Wales would have been far worse had it not been for the tremendous effort made to attract inward investment to the Principality.
I hope that the Minister can allay our fears and provide certainty where none at present exists.
4.48 p.m.
Lord Whitty: My Lords, I thank the noble Lord, Lord Crickhowell, for initiating the debate. I must reflect the concerns of the noble Lord, Lord Roberts, that a great deal of uncertainty has been generated in Wales about the Severn Tunnel. It may have led to the noble Lord tabling the Motion; it has certainly led to some exaggerated anxieties.
Railtrack is doing its job. Perhaps noble Lords have heard harsh words from me about Railtrack's investment programme and more graphically harsh words from my right honourable friend the Deputy Prime Minister. However, I believe that on this occasion Railtrack is "doing the right thing". But, as so often happens, its publicity has let it down. The communications in which it has engaged have not reached many potential users, commercial and individual.
Of course Railtrack is under an obligation to consult. It clearly consulted the rail operators. It is also statutorily required to consult local authorities and other organisations likely to be affected, such as utility companies. It is undoubtedly pursuing its statutory obligations in that respect. However, some remarks of noble Lords show that they rather forget that we are now dealing with a privatised railway system with a relatively light and ineffectual system of regulation. That is part of the problem. This Government are determined to ensure that we have a better system of regulation and a more strategic approach to our railway network throughout the United Kingdom. I look forward to the presentation of a Bill in this House in connection with a strategic rail authority either at the end of this Session or the beginning of the next in order to achieve such aims. Meanwhile, clearly, the Government consult with Railtrack on such issues and will continue so to do.
In respect of the Severn Tunnel closure, I must emphasise once again that it is primarily Railtrack's responsibility. It must consider what renewal work is necessary. I repeat the comments of the noble Lords, Lord Rees and Lord Roberts. The original Severn Tunnel is 100 years old. It is a great achievement of Victorian engineering. Reference has been made to the fact that at the time of construction there was a massive flood and pumps had to be installed to carry away spring water that had seeped into the tunnel. As the noble Lord, Lord Thomas of Gresford, said, the pumps and control systems installed in the 1950s have already been replaced by Railtrack and, to respond to my noble friend Lord Prys-Davies, a new electrical distribution system has likewise been installed. There has already been £10 million spent by Railtrack on improvement of the tunnel.
However, the problems continue. As noble Lords have said, work must now be done on renewing 4.3 kilometres of track as well as the sleepers and
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ballast. That is the nature of this year's work. That part of the work is expected to cost around £1 milion with further phases to take place in the next two years. Overall Railtrack estimates that the total cost of refurbishment will be £6.5 million. Once those phases are completed it is hoped that there will not be any major maintenance and repair work for a considerable period of time. Railtrack indicated that that might be within a period of five to eight years at which is I trust that we will have a more strategic approach to rail investment through the aegis of the strategic ail authority and any more substantial modernisation of the tunnel will have taken place or at least have been committed within that period. As my noble friend Lord Islwyn said, the prime concern in relation to this work must be safety. I can assure my noble friend Lord Prys-Davies that safety is of the highest standard and Railtrack intends to keep it that way.
We are talking about a lot of movement through the tunnel. There are around 150 train movements a day with up to 100 passenger and 20 freight trains travelling on the route. At the peak the tunnel carries seven trains an hour. That intensive use clearly puts a strain on the system and the repair work needs to be done. Railtrack predicts that traffic will increase by around one-third by the year 2007 and it is fulfilling its duty to maintain the safety and repair of the tunnel. However, that is maintenance work only and not a complete rebuilding of the tunnel. Some remarks of noble Lords related to increasing freight traffic in particular and suggested that we should engage in a complete rebuild of the tunnel. That is clearly a much more massive engineering task and would have to be considered as a priority investment in an overall strategic assessment.
Lord Hooson: My Lords, I thank the noble Lord for giving way. The noble Lord speaks of repairing the track, but that would take place whether or not the track went through the tunnel. Repairing the track is a normal maintenance operation in the short term. Surely the concern expressed in this debate, to which the noble Lord, Lord Crickhowell, adverted in his opening remarks, is that every tunnel has a lifespan as does every bridge. That depends on the amount of traffic that goes through. Is there any plan to have an overall assessment of the likely life of this tunnel and what needs to be done to extend that life?
Lord Whitty: My Lords, the noble Lord is correct that all track needs replacing from time to time. But when it needs replacing in an intensive pinch point like a tunnel, the job of itself is bound to be more difficult. In terms of assessment of the overall life of the tunnel, there is not an extant assessment of the life forward from this date. It is clear that Railtrack does not consider that the tunnel has reached the end of its useful life. Nevertheless, in an overall assessment of the priorities for further investment by Railtrack which we would hope to undertake under the strategic rail authority, the whole question of whether or not this is a priority area for major new investment would have to be addressed.
As the noble Lord, Lord Roberts, mentioned, a study has already been carried out with regard to the whole network and some of those results will be available to

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the shadow strategic rail authority some time this year. No decision has been taken either by Railtrack or the Govenment on a major modernisation. Nevertheless, the exent of the work required and being provided by Railtrack at this point should take care of the traffic through to the period I indicated—2007 and beyond.
It terms of the dates, since there has been some corfusion, I should perhaps lay down in Hansard the precise dates it is intended to close the tunnel. The periods of closure are less continuous and less extensive than Railtrack originally envisaged and indeed advised is consultees. They will run from the Easter weekend—2nd to 5th April—and thereafter from 2.30 on Saturday to 4 a.m. on Monday morning from 10th to 12th April, 17th to 19th April, 24th to 26th April, 15th to 17th May and 22nd to 24th May.
As indicated, there will be further phases of this work next year though the degree of closure in each is likely to be substantially less as far as Railtrack can foresee at the moment. In relation to diversions, there are three passenger operators going through the tunnel—Great Western Trains, Virgin Cross Country and Wales and West. I understand that Railtrack has agreed with Great Western that the majority of its services will run and be diverted through Gloucester with a consequent additional journey time of less than one hour. Virgin Cross Country trains will also be diverted via Gloucester to Newport. Finally, I understand that some Wales and West trains will be diverted via Gloucester as well but some will stop short at Bristol Temple Meads and passengers will have to pick up other connections. The services from Swindon to Gloucester will also be cancelled during those periods. So the passenger companies are already well advanced in making alternative arrangements and the impact on passengers is therefore likely to be smaller than had been feared. I suggest likewise that the impact on the economy will be smaller than some of the exaggerated fears expressed before we reached this degree of clarification.
In relation to freight, the two freight companies are English Welsh and Scottish Railways and Freightliner Limited. They are also in the process of liaising with Railtrack about possible alternatives. The improvement in the level of freight being carried on this and other lines is crucial both to our integrated transport policy and to the revitalisation of Wales.
A number of other specific points were raised. My noble friend Lord Islwyn and the noble Lord, Lord Crickhowell, referred to safety. As my noble friend Lord Islwyn indicated, a major accident occurred in December 1991 in the tunnel and anxieties were expressed about that. The Health and Safety Executive is investigating and enforcing safety standards; Railtrack is meeting those standards, and that is part of the work, as well as the engineering work, that is required.
The noble Lord, Lord Crickhowell, raised the question of the rescue train. A rescue train is based at the Welsh end of the tunnel and access at that end is by the rescue train. Since the accident in 1991 an access road has been built at the eastern, English end, of the tunnel which allows access for road and rail equipment.
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Ventilation and telephone equipment have been substantially improved as well as telephone communications.
I am not sure how to respond to the point made by the noble Lord, Lord Roberts of Conwy, about comparing security arrangements with those for the Channel Tunnel. Clearly, safety is paramount at both tunnels. There are possibly slightly different aspects of security relating to the two tunnels because at present, at least, we are not expecting an invasion from Wales.
My noble friend Lord Prys-Davies asked whether penalties would be imposed were Railtrack to overrun the closure periods. That will be assessed as part of the overall performance regime and Railtrack would have to pay performance payments were there greater disruption. In any case, it will have to make payments to the operating companies for the disruption caused by the closures.
The noble Lord, Lord Hooson, indicated that he was concerned that some continental freight could not get through the tunnel. Primarily, we shall not be able to meet that point unless we engage in major new investment. Nevertheless, as envisaged, there is a lot of freight already going through the tunnel—long distance and British freight—and there is a general upward trend in the volume of rail freight entering Wales.
The noble Lord, Lord Thomas of Gresford, raised the question of the role of the Welsh Assembly. Railways policy as a whole, including the Severn Tunnel and this line, is a matter for United Kingdom policy and is not devolved. However, the Welsh Assembly will be responsible for administering the freight grants scheme on the Welsh lines.
The indications are that the anxieties raised about these closures are exaggerated, particularly when it was thought that there would be a continuous closure or a longer and more disruptive closure without alternative arrangements. Nevertheless, they are real. It is important that Railtrack engages in communicating, not only with the immediate consumers of its services—the operators and the commercial interests—but also with passengers as a whole. Next month it is Railtrack's intention to engage in a major publicity campaign through posters at stations and in the local media to ensure that once all the arrangements are finalised, including the diversions, passengers and potential passengers are informed of those arrangements. It is important that that massive communication effort takes place as close to the closures as possible, but with sufficient advance planning so that people can plan alternative journeys.
The debate has also gone into broader aspects of the Welsh economy. Clearly, the Welsh economy has undergone massive structural changes over the past decade or two. The traditional Welsh industry of deep-mined coal has disappeared and the steel industry has been completely rationalised and modernised. There has been diversification in the Welsh economy and in the various areas referred to: automotive, aerospace, media, pharmaceuticals, electronics and optoelectronics.
As my noble friend Lord Morris of Castle Morris pointed out in his lyrical contribution, publishing in Wales is thriving, if on a limited market. He said that

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Wales was at a disadvantage compared with Ireland. On a rather mournful dawn, on the west coast of Ireland, I remember an Irish poet saying to me, "The trouble with this country, you know, is that there are far more people writing poetry than reading it." I suspect the same may be true of Wales, in which case he had better get more of his books through the Severn Tunnel.
Despite the diversification, despite the enormous skill and creativity of the Welsh economy, it is also true, as noble Lords have indicated, that GDP per head in Wales is dramatically lower than that in Great Britain as a whole. Indeed, it is the lowest in Great Britain. There have been serious job losses in Wales, including recently at Ystradgynlais and other notable manufacturing areas.
Nevertheless, in the year to September, the number of jobs for employees in Wales has increased substantially by 15,000. Since the general election, the various schemes entered into by the Government, and some inherited from the previous government, have brought 17,000 new jobs into Wales and safeguarded a further 5,500 jobs. In total, 208 inward investment projects have been recorded in that period. One of my noble friends—I cannot remember who—also indicated the important and enhanced role of the Welsh Development Agency in planning for the future, in providing future support for investment in Wales and for the continued diversification and modernisation of Welsh industry.
Nevertheless, the inheritance is there. It is both an indictment of past policy and a problem of Welsh history that we are now trying to obtain Objective 1 status for the Valleys and West Wales, which means that the GDP in that area must be 75 per cent. of the EU average. We must tackle that. We hope that we shall receive European aid so that we can improve the economy and the wellbeing of the people of West Wales and the Valleys.
There are serious local problems as well as Wales-wide problems and in particular South Wales-wide problems. As I indicated, jobs are coming in, industry is being modernised and the Welsh economy needs infrastructure. It also needs government help which we are committed to providing. However, it also needs a transport infrastructure of which the Severn Tunnel and the Severn crossings in general are absolutely vital parts.
I hope I have covered most of the points raised in the debate. I shall check Hansard to identify those I have not covered. If noble Lords will forgive me, I shall write to them subsequently. I thank again the noble Lord, Lord Crickhowell, for raising the issue. I hope that what I have said and some of the clarification that has emerged from the debate will be relayed back to the people of South Wales and that some of their anxieties at least will be allayed.
5.6 p.m.
Lord Crickhowell: My Lords, I thank noble Lords who have taken part in the debate and the noble Lord the Minister for his response. I confess that the debate ranged rather wider than I had anticipated. The noble Lord, Lord Morris of Castle Morris—that distinguished, though I trust not expensive, jewel of Welsh culture—
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certainly took us very wide indeed. He is a distinguished academic. Therefore, I must not allow him to eave on the record the suggestion that the tunnel was constructed by Brunel. It would have been clever of him if he had constructed it because he had been dead a good many years before work on the tunnel was started by one of his pupils. Nor can I leave him with the suggestion, so frequently denied in the debate, that we are concerned with only six weeks of closures. We have had confirmation from the Minister that there will certainly have to be closures in the years 2000 and 2001.
Lord Whitty: My Lords, perhaps I can correct the noble Lord. I said that there would need to be further work in 2000 and 2001. It is unlikely that the closures will be of as great a scope as those this year and, as the noble Lord, Lord Thomas, indicated, there is some indication that we shall not need closures.
Lord Crickhowell: My Lords, I note what the Minister says. One of the difficulties about weekend closures is that on more than one occasion they have spilled over into the Monday and caused major disruption to the Monday morning service, as they did a month or so ago.
A number of noble Lords dwelt on the important question of safety. I thought that the noble Lord, Lord Thomas of Gresford, was on rather sounder ground when he suggested an independent survey. We also had a demand for an overall assessment of the condition of the tunnel when he produced his, frankly, rather bizarre suggestions about a Wales rail regulator who would have to control a system that largely operates in England. I believe that that would cause considerable difficulty.
The Minister confirmed that Railtrack had been less than perfect in its communication and consultation procedures. I hope we shall see an improvement there. He said that fears had been exaggerated. I note what he said. Time and events will prove whether he is right or wrong. I believe that there will have to be substantial ongoing work on this great Victorian masterpiece. I ask only that there is the fullest possible consultation and the fullest possible provision of information before it is undertaken. I thank all noble Lords who have taken part in the debate, and I beg leave to withdraw my Motion for Papers.
Motion for Papers, by leave, withdrawn.

House of Lords: Separation of Powers
5.9 p.m.
Lord Lester of Herne Hill Lord Lester of Herne Hill rose to call attention to the arrangements for maintaining the separation of powers in the House of Lords between the judicial branch and the legislative and executive branches of government; and to move for Papers.
The noble Lord said: My Lords, this Motion focuses on the arrangements for maintaining the separation of powers of the holder of the great office of Lord

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Chancelor as Minister of Justice, legislator and head of the English judiciary, and of the Lords of Appeal acting both as judges and as legislators.
I hope that the Lord Chancellor and the House will agree that open and careful debate on these delicate maters is timely because of the greatly changed and rapidly changing roles of the Lord Chancellor and of the other Law Lords, especially in the light of the implications of the Human Rights Act, and the Scottish, Welsh and Northern Ireland devolution legislation, the reform of Parliament and other constitutional measures. What also makes the debate topical is the setting up of the Royal Commission on House of Lords reform, the terms of reference of which include considering the position of the Law Lords as Members of the House.
Like others within and outside the House, including the Law Lords themselves, I believe that we need to reconsider the concepts of separation of powers and the independence of the judiciary as part and parcel of the new constitutional settlement. I hope and believe that this debate will contribute to that process of rethinking.
The current arrangements for Law Lords were created just over a century ago. Despite the huge changes in the past 30 years, the arrangements have not been seriously reconsidered since late Victorian times. By the middle of the 19th century, the appellate jurisdiction of this House faced criticism because there were few properly qualified members of the judiciary who were Members of the House. The Lord Chancellor personally had to bear an excessive load.
In 1873 the Judicature Act was passed under a Liberal government. It set up a Court of Appeal as a final court for which English appeals were to be heard. However, following the formation of a Conservative government under Disraeli, in 1874 legislation was passed delaying the implementation of the 1873 Act. In 1876, Disraeli's government introduced the Appellate Jurisdiction Bill, which preserved the appellate jurisdiction of the House of Lords and provided for the appointment of Lords of Appeal in Ordinary.
Professor Robert Stevens, Master of Pembroke College, Oxford, eminent legal scholar and historian, recalls (in an essay in The House of Lords: Its Parliamentary and Judicial Roles, edited by Brice Dickson and Paul Carmichael, 1998, page 112) that the Appellate Jurisdiction Act 1876 was,
"the work of a group of right-wing Tory MPs who cared nothing for law, the courts or litigants, but were anxious to prop up the hereditary principle by creating a group of judges who might balance the bishops. The move was opposed by those admirable reformers—Lord Cairns (Conservative) and Lord Selborne (Liberal)".
Those two Lord Chancellors opposed a second level appeal court, wanting instead an expanded Court of Appeal as the final court. In that, I share Professor Stevens' view that they were mistaken, because there is need or a two-tier system of appeals. But I also share Professor Stevens' view that the two Lord Chancellors were right to oppose this further blurring of the separation of powers. Such a blurring may not have much mattered when judges rarely decided politically sensitive issues, but the great advances in judicial review in the past 25 years and the current resettlement
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of the British constitution make it important for the separation of powers to be more clearly protected and enforced.
The anomalies of the Lord Chancellor's great office add to the rich tapestry of public life—and the last thing that I want is to be a spoil sport. Those anomalies have been famously parodied in W.S. Gilbert's comic opera lolanthe. In it, the Lord Chancellor sorrowfully explained—I cannot sing it!—
"The feelings of a Lord Chancellor who is in love with a Ward of Court are not to be envied. What is his position? Can he give his own consent to his own marriage with his own Ward? Can he marry his own Ward without his own consent? And if he marries his own Ward without his own consent, can he commit himself for contempt of his own Court? And if he commit himself for contempt of his own Court, can he appear by counsel before himself, to move for arrest of his own judgement? Ah, my Lords, it is indeed painful to have to sit upon a woolsack which is stuffed with such thorns as these!".
These days, the thorns are especially sharp because the Lord Chancellor is so politically powerful both as Minister of Justice in charge of a large spending department and as chair of many Cabinet committees dealing with important and controversial issues of policy central to the Government's programme. He is both an eminent jurist and a senior member of the Cabinet.
The present Lord Chancellor enjoys very great political power. He has had a major influence in shaping, for example, the Human Rights Act, the devolution legislation, the Freedom of Information Bill, and the White Paper on Lords reform, together with his direct responsibility for the radical changes being made by the Access to Justice Bill. As the noble and learned Lord knows, I very much welcome those measures and his involvement in them. As Professor Diana Woodhouse has observed in her important recent article in Public Law ([1998],p.617), there is a continuing shift in the balance in the Lord Chancellor's responsibilities away from the judicial, toward the executive and political.
The Lord Chancellor is not the head of the Scottish judiciary, nor of the judiciary in Northern Ireland. But, for historical reasons, in England and Wales he is President of the Supreme Court, an ex officio judge of the Court of Appeal and President of the Chancery Division. He also sits in the House of Lords and the Privy Council and presides when he sits, arranges the judicial business in the House of Lords and the Privy Council, and makes procedural rules for the Supreme and Crown Courts. He delegates to the senior Law Lord the selection of Law Lords for Appellate Committees, but has made it clear that the Lord Chancellor can override his delegate and sit whenever he chooses.
The traditional justification for his exercising judicial as well as executive and legislative powers is that the Lord Chancellor can be relied upon to preserve the essentials of a separation of power; and that his dual role enables him to interpret the views of the Cabinet and of the judges better. Those are important arguments, and nothing I say is intended to weaken the Lord Chancellor's ability as constitutional and legal adviser to the Government to uphold judicial independence as a member of that Government.
The noble and learned Lord, Lord Steyn, has a well-known commitment to maintaining the independence of the judiciary from the political process which has made him accept a self-imposed vow of perpetual silence in the legislative Chamber while he sits as a Law Lord. I understand that the noble and learned Lord considers himself to have sinned by making his maiden speech and by voting on one occasion, but that he has vowed never the do so again while he continues to serve as a Law Lord. The noble and learned Lord considered these arguments and the contrary arguments in an important lecture a couple of years ago, which was entitled "The Weakest and Least Dangerous Department of Government" and which was published in Public Law 84 in 1997. I hope that I will be forgiven for quoting a passage from that lecture by the noble and learned Lord which I think is important. The noble and learned Lord said:
"I am far from convinced that the interpretative process … cannot continue if the Lord Chancellor merely ceased to be the head of the English judiciary. He would still retain all his other functions about appointments, law reform, statute law revision, legal administration, as well as legal and constitutional advisor to the government, and so forth … That leaves the fact that if the Lord Chancellor ceased to be head of the judiciary in England it would follow that he would not be able to sit in the House of Lords or Privy Council. In practice the Lord Chancellor seldom sits. The Lord Chancellor is a great lawyer. But all lawyers are dispensable"—
I think that I agree with that—
"and it would make little difference if he ceased to sit. On balance it seems to me that little of value would be lost if the Lord Chancellor ceased to be head of the judiciary in England".
The noble and learned Lord, Lord Steyn, also pointed to the positive disadvantages in being both a Cabinet member and the head of the English judiciary. Again, I quote:
"A Lord Chancellor gives the appearance to the public of speaking as the head of the judiciary with the neutrality and impartiality so involved. The truth is different … [The] Lord Chancellor is always a spokesman for the government in furtherance of its party political agenda. Even in respect of the administration of justice he is … always subject to collective Cabinet responsibility … The Lord Chancellor as a Cabinet member represents the voice of reform guided by the Treasury perspective. The view of the judges is rather different. They do not wholeheartedly share the modern adoration of the deity of economy. On the whole they put justice first".
I respectfully agree with the argument of the noble and learned Lord, Lord Steyn, and with his conclusion that the proposition that a Cabinet Member must be the head of our judiciary in England is,
"no longer sustainable on either constitutional or pragmatic grounds".
I also agree with my friend and colleague, David Pannick QC, that if, as I would expect, the European Court of Human Rights upholds the powerful opinion by the European Commission of Human Rights in McGonnell's case, it will be contrary to the guarantee of the appearance of judicial independence and impartiality in Article 6 of the European Convention on Human Rights for the Lord Chancellor to continue to sit judicially, especially in any case concerning matters of public policy on which the Government may have a view, or any case affecting the interests of the Executive, for example, a devolution or human rights case. In McGonnell, the commission decided that the
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fact that the Bailiff of Guernsey presided over the Royal Court of Guernsey in deciding questions of law, while also presiding over the legislature and being head of the island's administration, was incompatible with the requisite appearances of independence and impar iality expected of a court of law. Those observations seem to me to apply equally to the Lord Chancellor.
What then of the position of the other Law Lords when they choose to act in a legislative as well as in a judicial capacity—for example, moving or supporting controversial amendments to Bills, which they may later be required to interpret and apply? They are appointed not as legislators but for the purpose of aiding the House of Lords in the hearing and determination of appeals. As life Peers, they are also entitled to sit and vote in the House. In theory, there is nothing to prevent a Law Lord from speaking and voting in a legislative capacity on matters of real political controversy.
Under the previous administration there was an increasing tendency for them to do so. One Law Lord moved a controversial amendment to the Defamation Bill enabling Mr. Neil Hamilton to circumvent parliamentary privilege and revive his libel action against the Guardian. Several Law Lords spoke opposing Home Secretary Michael Howard's equally controversial use of the prerogative to introduce a new scheme to compensate the victims of violent crime, instead of bringing into force a statutory scheme, thereby disqualifying themselves from being members of the Appellate Committee which subsequently decided that the Home Secretary had acted unlawfully.
The White Paper on House of Lords reform states, in paragraph 19 of Chapter 7, that, by convention, the Law Lords,
"do not become involved in politically contentious issues".
I believe that that was the convention until about a dozen years ago, but that there have been some notable recent examples of its breach, for some of which I was grateful at the time as they coincided with my own political viewpoint—for example, during the debates on the Bill of the then Home Secretary, Mr. Michael Howard, to empower the police to use electronic surveillance without a warrant in breach of an important constitutional principle. At that time, I remember a very senior Law Lord lending his support to the Opposition on that proposal.
The White Paper rightly observes that the Law Lords make a major contribution to the Cross-Bench element in the House.
"Retired Law Lords play a particularly distinguished role in the examination of legislation, especially that with a highly technical or legal content. Most significant is their contribution to debates on the administration of justice, penal policy and civil liberties, where law and politics intersect".
I very much hope that a way will be found, in a reformed upper House, of preserving that role, so that Law Lords are able to contribute to public debates within as well as outside the House. However, I hope it will not be considered presumptuous to suggest that, if the Law Lords are to remain as members of this House, they should not play an active role as legislators while holding judicial office. In other words, I do not argue for a rigid and complete separation but for a greater

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separation between judicial powers and legislative and executive powers. I appreciate that it is difficult to draw the line sometimes between what is an active role for a legislator and that which is a contributory role to a public forum, as in delivering a lecture or making a speech in this House.
Parliament is vesting new powers and duties in the courts to protect human rights and maintain the separation of powers between Parliament and the Executive and devolved legislatures and executives. I am not alone in believing that Parliament should also create a supreme court for the United Kingdom, similar to those in other democratic countries, with judges who will not participate in the legislative process as active legislators while serving in a judicial capacity. I hope that this debate will help to develop a better informed public philosophy on that subject.
I look forward to the speeches in this debate of noble Lords of great learning, authority and experience. My Lords, I beg to move for Papers.
5.25 p.m.
Lord Desai: My Lords, we must all be truly grateful to the noble Lord, Lord Lester of Herne Hill, for raising a very important and significant issue today. I went into the Library of the House and, thanks to the Librarian, I downloaded some Federalist papers, because I thought I would look at the origin of the literature on the separation of powers. In a sense very nicely, one of them says:
"No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty",
than that upon which the notion of separation of power is founded. So we are obviously discussing a very important question.
In moving his Motion, the noble Lord emphasised two different issues, both of which, as a non-lawyer, I want to deal with from a layman's perspective. First, he referred to the Lord Chancellor's extensive powers and questioned what we should do about them. Secondly, he emphasised the position of the Law Lords in the matter. As set out in the Federalist papers, what we have here are abstract principles that there ought to be a separation of power; there is no doubt about that.
Again, when looking at the British constitution as of the 18th century, the writers then were rather fascinated by it and, despite what looked like no separation of powers, Somehow people like Montesquieu thought that that was a great guarantee of liberty. The idea was that you did not have separation of power but, basically, that:
"The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it",
and so on, as The Federalist Paper No. 47 puts it. So the idea is that, while there is a mixture of roles in the British constitution, there is still no overwhelming veto of any particular branch on any other branch.
We must examine the anomaly of the role of the Lord Chancellor from that point of view. I very much want to separate it from the person of the present
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Lord Chancellor, who is my noble and learned friend. I believe that we should move away from recent history and discuss general principles. As the noble Lord, Lord Lester, pointed out, there has been an avalanche of constitutional reform legislation. It is anomalous that it is precisely because the Lord Chancellor has to play different roles that that reform has been made possible in such a short time. Let us just imagine a constitution in which different people were responsible for doing different things. We must move away from the fact that my noble and learned friend just happens to be efficient and can work 36 hours a day. As I said, we ought to consider the general principle.
I refer to a further anomaly. I very much agree with the noble Lord, Lord Lester, that there is too much of a mixture of roles. There are matters which are inessential or, rather, harmless, to the Lord Chancellor's role—which I do not mind—but there are other matters which may impinge on that role. The fact that he sits on Cabinet committees does not concern me greatly because not every Lord Chancellor has done that. We have had some good Lord Chancellors and some bad Lord Chancellors. Whether a Lord Chancellor is a powerful person on the Executive depends very much on his personality. That is not part of the system. We have also had weak Lord Chancellors in terms of their Cabinet role.
The fact that the Lord Chancellor presides over your Lordships' House is not a matter of great import because he only presides over it, he does not rule over it. He does not perform the role of a Speaker. My noble and learned friend has tried to separate the two roles whenever he has had to perform the role of a Minister of the Crown rather than that of the Lord Chancellor sitting on the Woolsack. I believe that separation can be achieved and I do not think much harm resides there. However, the nub of the problem that the noble Lord has raised concerns the fact that the Lord Chancellor is the head of the judiciary of England and Wales, he appoints judges and can sit as a judge, but he also has an executive function. That is the anomaly.
The problem is not the position of the Lord Chancellor as such, but the fact that we do not have a proper supreme court. Here I agree with the noble Lord. That, I think, is the nub of the problem. If we had a proper supreme court on which the Lord Chancellor had a right to sit, but on which he would not be likely to sit often—let us put it that way—and which comprised permanent appointments, I do not think one would worry about this problem. I quote from the Federalist Paper No. 51. I refer to departing from strict principles in the appointment of the judiciary. The paper states,
"In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them".
I do not think one is worried about the independence of the judiciary because its members are appointed by the Lord Chancellor. What I think has become quite an urgent matter in the light of recent events is the lack of

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a supreme court, both in terms of dealing with the human rights legislation and the case currently before your Lordships.
People do not understand how Law Lords are appointed. It is not a transparent process. I say nothing about the quality of the people appointed; I am not capable of judging that and I gather it is good. However, it is not a transparent process. I hope I may express the matter thus: Nolan should be appointed on Nolan principles, but those principles have not been applied to the appointment of Law Lords. To have more information on Law Lords would make a tremendous contribution to increasing the degree of openness in the system. When these appointments are made, somewhere, perhaps in a Select Committee, preferably of your Lordships' House, we ought to adopt the American process whereby interests are declared and we examine the interests of people being appointed. I think that would be a good step and a reassuring step. I refer to the tremendous and recent revolution brought about by the noble and learned Lord, Lord Nolan, in reforming standards of public life. That should now be extended to the judiciary.
I refer to the problem of Law Lords participating in your Lordships' House as legislators. On a matter of principle, that does not quite gel. But here I am willing to let things go a little because, as the noble Lord, Lord Lester, admitted, it is useful to have Law Lords taking part in debates. When we were recalled during the Summer Recess to discuss the terrorism and conspiracy Bill, I found the speech of the noble and learned Lord, Lord Lloyd of Berwick, tremendously helpful. He more or less sorted the Bill out and said that it was of no use whatsoever. We then unfortunately had to pass it, but that is another matter! Some noble and learned Lords also spoke on the Scotland Bill. That, too, was useful. If something is useful it should not be sacrificed for abstract principles. To that extent I have been corrupted by living here for so long.
5.35 p.m.
Lord Waddington: My Lords, I thoroughly enjoyed the eloquent speech of the noble Lord, Lord Lester of Herne Hill. I particularly enjoyed his historical references. The speech was attractive to me not least because throughout most of his speech he steered clear of the threat posed to our present arrangements as a result of a recent decision of the European Commission of Human Rights in the case of McGonnell which seems to say that the lack of any clear separation of powers in our present arrangements puts us in breach of Article 6 of the convention which guarantees a fair trial. I shall not duck McGonnell and the fact that our arrangements may well have to be changed as a result of any decision of the European Court of Human Rights which may follow the McGonnell decision. I think that the McGonnell decision and what may flow from it is a matter of the utmost gravity.
If it really be the case that Article 6 of the European convention may force on us changes in constitutional arrangements which over many years have worked well and have stood us in good stead; if we are to be forced into a rigid observance of a separation of powers which
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up to now has never existed in this country; if we can no longer have a Lord Chancellor who is not only the head of the judiciary but a senior member of the Cabinet; if, as a result of decisions at Strasbourg, the Law Lords—with all their wealth of experience on matters of sentencing policy, the treatment of offenders and many other subjects—will no longer be able to sit in this House; if that is the situation in which we may find ourselves as a result of a decision at Strasbourg, we certainly should be asking ourselves whether perhaps somewhere along the line we have taken a wrong turn. Indeed, perhaps in future we should be a little more cautious about signing up to international conventions full of high flown phrases which may be interpreted by foreign lawyers brought up in very different disciplines in wholly unexpected ways.
The briefing paper produced by the House of Lords' Library on the Human Rights Bill stated—I think correctly—that the principal reason why, after ratification, the European convention was not incorporated in our law was that back in the 1950s everyone was agreed that the rights and freedoms specified in the convention were already fully protected in UK law and incorporation was not therefore necessary. No one foresaw that it would be interpreted in the way in which it has been. Now, after the horse has bolted, we are told that perhaps incorporation will be a means of influencing the development of case law under the convention. But some may think that that is pretty unlikely when cases will continue to find their way to a court now made up in the main of very distinguished judges—but judges from countries whose laws and legal systems are, in the truest sense, wholly foreign to our own.
I am absolutely delighted that countries such as Lithuania and Slovakia, the Ukraine and Croatia, Poland and Romania, have joined the Council of Europe. But they are countries with histories, constitutions and laws entirely different from our own. It would be surprising if, from time to time, judgments were not handed down which make little sense in the context of our own history, constitutional arrangements and laws.
I am sorry to strike a somewhat discordant and doleful note, but at a time when all our institutions seem to be under threat from an administration obsessed with modernisation, it is about time that someone said that those self-same institutions have not served us badly over the years and certainly have proved a far more effective defence against tyranny than the continental institutions which we are so often told we should ape.
In these dismal circumstances, I can only trust that if and when the McGonnell case finds its way to the European Court of Human Rights those responsible for representing Britain will argue with all the skill and force they can muster against the Commission's decision, which would lead to results so inimical to our interests and contrary to our traditions.
I certainly hope that the Government will not heed the advice of the noble Lord, Lord Lester, which seems to be that we should just put on a brave smile and swallow the unpleasant medicine being spooned out to us.
5.42 p.m.
Lord Simon of Glaisdale: My Lords, when in the 18th century Montesquieu compared the lack of freedom of the individual and his lack of basic rights in France with what he saw, or thought he saw, in England, he ascr bed the difference to the fact that we had, as he asserted, separation of powers, a phrase that the noble Lord, Lord Lester, used. As is well known, that was a formative influence in the American constitution—a written constitution—which genuinely has separation of powers. It also influenced the constitution-making Abbé Sieyès, who was a precursor of the noble Lord, Lord Lester, in his enthusiasm for system making. As the noble Lord, Lord Waddington, has indicated, it also influenced the juristic thinking of most continental countries.
In fact, Montesquieu was wrong in his perception of this country. We did not have and do not have separation of powers. The noble Lord, Lord Lester, dealt with the Lord Chancellor's position; at the other end of the spectrum, there were also the justices of the peace, who had wide administrative functions. What we had was not separation of powers but something far more subtle and far more valuable—a balance of powers. It is no use separating your executive if it has powers over the individual which are considered inordinate. The executive's powers should be balanced by that of the legislature and the judicature. That is threatened by advocacy of a system purely based on separation of powers. It is a balance of powers that will vouchsafe liberty of the subject and individual rights.
In his valuable speech, the noble Lord, Lord Waddington, mentioned the recent case of McGonnell before the European Commission. To my mind, that was a typical example of looking at the surface instead of at the reality. The Commission—and it was only the opinion of the Commission; the case has yet to go to the Court—was quite right in saying that you must have the very appearance of independence and impartiality. But where it went quite wrong was in imagining that the Bailiff of Guernsey, because he presides in the States, thereby invalidates the claim of the judiciary to have impartiality and independence. I think that the decision of the Commission was wholly wrong.
Perhaps I may make my position clear; I am a completely committed Europhile. But as we are reluctant latecomers, we have to accept that much of the European institutions and their concepts is out of harmony with our own. There is no need to rush to embrace everything that comes from Strasbourg or any other European court. We may have to swallow the medicine in the end, but woe unto him by whom the evil cometh.
As to your Lordships' House—which was the principal subject of the interesting introduction to the debate of the noble Lord, Lord Lester—I see no reason in the way in which your Lordships' House works at the moment to rush into a ministry of justice, which would concentrate even more power over the legal system in the hands of an executive. I see no reason to hive off the Appellate Committee; still less do I see any reason why my noble and learned friend the Lord Chancellor
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should have to follow his predecessor, Thomas More, to Tower Hill, or even his predecessor, Clarendon, to face impeachment in Westminster Hall.
One has only to think of the great Lord Chancellors. It is invidious perhaps to mention individuals, but just think of Cairns, Haldane, Viscount Simon, and how much they have contributed to our legal system and our juristic structure. Think, too, of the judgments that have been given by the Appellate Committee against the Crown, which on occasions, as in the Burmah Oil case, have run into millions of pounds. And not even the noble Lord, Lord Denham, as Chief Whip, whipped a majority to vote down the objectionable, as he saw it, judgment of the Appellate Committee.
In the end, because we are latecomers, we may have to bow, but let us not anticipate disruption and disadvantage.
5.50 p.m.
Lord Beloff: My Lords, I do not know whether Cassandra had time to be happy after her prognostications were fulfilled. Noble Lords who took part in the debate on the incorporation of the European Convention on Human Rights into our law may recollect that I strongly urged this House to reject it and warned the House that it would have bad consequences for our ability to run our own institutions. I must, as I rarely do, differ from the noble and learned Lord who has just spoken. We were not latecomers to the convention. We had a lot to do with the convention. The trouble is that the convention was designed to prevent the recurrence of Nazi-style tyranny and was never thought of as an appropriate method for guiding the administrative or judicial aspects of democratic countries. The fact that a junior member of my college, Mr. David Pannick, thinks otherwise, does not move me.
I am very puzzled by the unwillingness of people generally—I am not talking about your Lordships—to recognise the nature of our constitution, of which the features we are discussing today are part. The noble Lord, Lord Desai, puzzled me totally. He refers to The Federalist papers. He could have avoided troubling the Library staff. I would gladly have lent him a copy of my own edition of the papers, from which he would have learnt that the authors were, on the whole, not familiar with the actual operation of the British constitution and were relying too much on commentators such as Montesquieu in putting forward their notions.
However, I was even more puzzled when the noble Lord said that what we needed was a proper supreme court. Does he really admire the American Supreme Court, which is nominated by presidents of successive parties, who put in office members sympathetic to, or members of, those parties, with an eye to decisions which will favour the administration in being, though longevity does of course occasionally disappoint that

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hope? Looking at the record of the American Supreme Court in recent years, it does not seem to me that we have anything very much to copy from that.
Lord Desai: My Lords, I was really thinking of the Indian Supreme Court. It takes off from the British constitution but has a separate judiciary.
Lord Beloff: My Lords, if the noble Lord was referring to the Indian Supreme Court, I shall plead ignorance. I do not know how it is constituted and therefore it would be improper for me to comment upon it. When people talk about the supreme court, they normally have the United States in mind.
The idea of a ministry of justice is a continental one. Is even the noble Lord, Lord Lester, happy at some of the judicial proceedings in neighbouring countries? Does he really think that there is something admirable about the way in which some ministers in a previous French government are now being tried in an extraordinary public way and under an extraordinary set of procedures which we would find alien?
Lord Lester of Herne Hill: My Lords, as the noble Lord has asked me a question, perhaps I may answer it. Of course I do not consider that everything which happens abroad is better than what happens in this country. To the contrary, I consider that we have the finest serving judiciary in any democracy. But I should have thought that, as the noble Lord apparently regards the current Prime Minister and his Administration as somewhat Hitlerite in tendency, he should be grateful that the European Convention on Human Rights gives effective protection against the misuse of power.
Lord Beloff: My Lords, I am delighted to hear that admiration for what goes on abroad is not as powerful in the noble Lord's breast as some of us may have thought it was.
The historic constitution dates from the Middle Ages. It comprised the Monarchy—we have a monarchical constitution—and associated with it were the more important members of the aristocracy and the Church and ultimately representatives of the other ranks in the population who were thought to have a proper voice. The king, council and parliament were known often as the High Court of Parliament. That is an important point to remember because a distinction was not made between a remedy for a particular wrong which the council—often, in practice, that would mean the Lord Chancellor—was called on to adjudicate, and a more general grievance which, in the end, was corrected by legislation. Those were thought parts of the same procedure by which governments would see that individuals were protected and that the people at large had the institutions and the legislation which seemed appropriate.
I can see no good reason for giving that up. It may well be—obviously it is the fact—that, as the machinery of government has become more complicated and the amount of legislation is much greater, the Lord Chancellor of today may find that the political aspects of his post demand more time than was demanded of
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some of his eminent predecessors. There may well be reasons for considering that aspect of matters. But to remove the powers of the Lord Chancellor in all respects would be a break with the past which I think would be undesirable.
The noble Lord, Lord Lester, referred to the other constitutional legislation that has gone through the House, notably in regard to devolution. It is interesting to recollect that when the Liberal Government, in the Judicature Act, abolished appeals to the House of Lords—it did not last for long—they made an exception for appeals from Scotland and Ireland. In others words, there is a good deal to be said for looking at the role which, in the light of these changes, this House, in its judicial capacity, and of course the Privy Council, which is associated with the Law Lords, may play and should play in holding together the United Kingdom.
We should begin by appreciating that we have a monarchical constitution which embodies counsel in the broadest sense and Parliament; and the Law Lords should manage to play a role that fits in with that constitutional settlement.
5.59.p.m.
The Earl of Longford: My Lords, I have one thing in common with the noble Lord who has just spoken. We both speak without recourse to notes. I do so from physical disability; he does it from natural genius. I wish strongly to submit one proposition which may appeal in one way or another to a number of noble Lords. I believe that our judiciary as constituted, led by the Law Lords who are so highly esteemed, is a supreme bulwark, particularly in these latter days, against mob rule and the menace of the tabloid press.
Perhaps I may offer one example before coming to my main illustration. Recently, the Home Secretary of the day increased the sentencing tariff on two young boys who committed a terrible crime. The courts held that to be unlawful because he appeared to have been subject to undue pressure from the tabloids.
My main example is that of Myra Hindley who as a woman in her early twenties was sentenced, about 33 years ago, for her part as an infatuated accomplice in terrible crimes. For many years she has been an exemplary prisoner. She has gained an honours degree from the Open University and has been recommended for open prison by the Parole Board—a recommendation that was rejected by the Home Office. I have visited her for 30 years and I know her to be, today, a deeply religious woman. Not so long ago her tariff was increased from the 30 years that was first pronounced by the Home Secretary. Now the sentence is that she should remain in prison until she dies. No one could pretend that the seriousness of her crime has increased in the meantime.
To what is that due? There are no prizes for giving the answer. It is due to persecution by the tabloid press. Not so long ago the Sun newspaper, which I read every day—when I agree with it I enjoy it, but not otherwise—described Myra Hindley as "an evil monster." The newspaper knows that to be untrue and could find out the truth, if it were interested, by visiting a whole series of priests who would testify to the contrary.

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No to be outdone, the Daily Mirror discovered not so long ago that four years ago Myra Hindley and another lady were left in charge of an eight year-old child for a short while. There was of course no damage to the child. That was regarded as a scandal. The matter was dredged up after four years for no reason at all except nastiness. The mother of one of the murder victims, a lady who had my sympathy and whom I got to know quite well at one time, died the other day. The Sun, keeping pace with the Mirror, took the opportunity to attack Myra again in a leading article—after 30 years! If that is not tabloid pressure, what is?
Therefore, I am not surprised that people in this House and elsewhere say to me, "I agree with you, my dear chap. Of course after all these years she ought to come out. But you can't imagine any Home Secretary having the guts to let her out, can you? Think what would happen to him. Think what the tabloids would do to him." That is what many people say to me about tabloid pressure.
What is the remedy? It is difficult to know how a Home Secretary is to summon up the courage. I hope that the present Home Secretary will do so. He is a Christian socialist and a man of integrity. But one must not be too optimistic under these pressures. I do not pretend for a moment that I could do his job. Many years ago when I became Leader of this House, my old friend, the novelist Evelyn Waugh, said he was so glad that I was not going to be Home Secretary. Otherwise, he said, we should all be murdered in our beds—not, perhaps some might think a fair estimate. No one who is a friend of prisoners is going to find it easy to persuade the public that they are safe in his hands. The Home Secretary has a heavy responsibility, as the noble Lord, Lord Callaghan knows, as do former Home Secretaries who are present for this debate. They are tempted to feel with Caiaphas, who said, "It is expedient that one man should die and that the whole people perish not." That is the great temptation when under these pressures. The Home Secretary is not only thinking of his career; he is thinking of the reputation of his government. These are far-reaching issues. The confidence of the public, he may feel, has to be maintained. However, I hope that that will not be the final answer.
There is one alternative; namely, recourse to the courts, which is now being done. I shall say nothing about the case, which will eventually go to the Law Lords. I have a different kind of confidence in them. I do not say that members of the judiciary are never subject to political influence. When Mr. Michael Howard was Home Secretary, in four years the prison population increased by over 50 per cent., although crime was going down. So one has to feel that the judiciary were influenced by political attitude. When it comes to individual cases, I shall go to my grave believing that the judges examine matters to the best of their ability. They are all human and are fallible. But to the best of their ability they view matters in an objective light.
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I therefore return to my opening remarks. I submit that the British judiciary as now constituted with the Law Lords is the best bulwark against mob rule and undue domination by the tabloid press.
6.7 p.m.
Lord Renton: My Lords, I am sure that your Lordships are always glad to hear what the noble Earl. Lord Longford, has to say and are very interested in it. His remarks about the independence of the judiciary are vital for us to bear in mind during this debate. Indeed, in Parliament we try to ensure that. We have the rule that when a matter is sub judice and before the courts we refrain from expressing views about it. That is as it should be.
My noble friend Lord Waddington, the noble and learned Lord, Lord Simon of Glaisdale, and my noble friend Lord Beloff made excellent speeches, with which I agree. I can therefore keep my remarks quite short. Perhaps I should just mention that I was one of Britain's representatives at the Council of Europe at Strasbourg in 1951 and 1952. The European Convention on Human Rights was finally endorsed in 1951, and in 1952 I was appointed to the Legal Affairs Committee and had the responsibility, with the famous Belgian lawyer, M. Rollin, who represented Dr. Mosadek at The Hague, of giving advice to the Council of Europe as to the constitution of the European Court of Human Rights. In the two sessions that I attended, in 1951 and 1952, the Council was mainly concerned with giving guidance to European countries, some of which were newly formed or re-formed so as to save them from Nazi or fascist influence in settling what their constitution should be. At no stage did any of the British representatives or anyone else conceive that it would have the effect of changing our constitution. If by some mischance the McGonnell case turns out to be wrongly decided from our point of view, we shall have to think very carefully before we fall into the trap that it might create.
Yes, the separation of powers is broadly speaking a good constitutional principle. I hope that I am not generalising too much, however, when I say that every good principle can be strengthened by making good and necessary exceptions, and we should be proud of the exceptions in our constitution.
I start off with the position of the noble and learned Lord the Lord Chancellor. He is the one person in our constitution who has the task of being a great co-ordinator. He is head of the judiciary, he presides over your Lordships' House, and he is a member of the Cabinet. His help and guidance enable a degree of co-ordination between the responsibilities of those three important parts of our constitution to take place.
The position of the Law Lords and their influence upon our legislation has already been well described. I would just add this. It has for generations been customary for the Lord Chief Justice, the Master of the Rolls and sometimes others, like the President of the Family Division—Probate, Divorce and Admiralty as it used to be—to be Members of your Lordships' House. When they come here they never talk politics, but they give valuable advice to us about what has gone wrong

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with legislation that we have already passed, and about how to avoid making mistakes in our legislation which affect the judicial system.
My Lords, I conclude—
Lord Goodhart: My Lords, before the noble Lord concludes, perhaps he could clarify one point. Would he then be happy were a Lord Chancellor to sit as a judge in a case in which the Government were a party or directly interested—for example, a dispute between central government. the executive, and the Scottish Parliament? Would he regard that as an appropriate way in which to deal with the arrangements for the separation of powers?
Lord Renton: My Lords, there have always been cases in which the Lord Chancellor of the day has wisely decided that he should not take part. I am grateful to the noble Lord, because he has given me yet another potential example.
Another answer to the noble Lord is this: that in our constitution we have self-disciplines, conventions—call them what you like—well-established habits, which prevent us from abusing the opportunities that the constitution could give if misused. Bearing in mind that great tradition of behaviour, I would have thought that it is better to stick to the system that we have.
I conclude with a saying which is about 200 years old but it is one which applies particularly to what has been raised in this debate: if change is not necessary, it is necessary not to change.
6.15 p.m.
Lord Annan: My Lords, I am unprepared for this debate because I did not know what the noble Lord, Lord Lester, had in mind. I wondered whether he wanted us to move towards an American-style constitution in which the executive, the legislature and the judiciary are totally separated. I would note only that this unique separation of powers operates only because America has a written constitution which is interpreted by the Supreme Court, and of course we have no written constitution.
In another sense, however, I am prepared. I listened with awe yesterday to the exchanges between noble and learned friends. I noted that the friendship—for which of course the Bar is renowned—they expressed for each other had certain limitations. There was one remark, however, of the noble and learned Lord, Lord Ackner, which struck me. He said that the Lord Chancellor had produced a discussion paper in order to bamboozle—the word he actually used was "premeditate"—
`… the great British public, upon whose hostility to lawyers one can always rely…".—[Official Report, 16/2/99; col. 629.]
The noble and learned Lord is entirely correct.
I am prepared for this debate, having re-read, while convalescing in Egypt last week, the most famous indictment of the legal profession that was ever written, by England's greatest novelist. Charles Dickens. I re-read Bleak House and his attack on what he called "wigocracy". Despite the efforts of the noble and learned Lord. Lord Mackay of Clashfern, our judges and
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barristers still wear wigs. The House took over two hours to agree to the present Lord Chancellor's request to wear trousers and to de-wig when he is to sit on the Front Bench. It reminds me of "Jarndyce v. Jarndyce"! The noble Lord, Lord Ackner, who I am sorry to see is not in his place tonight, can count me, as fortified by Bleak House, to be among the hostile British public.
When I sat, in Cambridge, at the feet of that great defender of the common law, Professor Hamson, and when I heard him denounce the feeble Mr. Justice McCardie and praise Lord Justice Scrutton, I sensed then that it was next to impossible to reform the law, however unjust, by relying on judicial interpretation alone. The legislature is better at carrying out that task. The legal profession is notorious, of course, in defending not only the common law but its own organisation and procedures. There is a remedy, however. The remedy lies in the presence of the Lord Chancellor in the House of Lords.
The Lord Chancellor is certainly one person who can propose and carry through major reforms of the law. He is not the only Minister who can do this. As the noble Earl, Lord Longford, reminded us, the Home Secretary is also responsible for a major sector of law reform: the criminal law and the law relating to the freedom of the individual. But to deprive the Lord Chancellor of the right to take part in debate and to institute reform would be to cripple those who want to reform the law.
At this point I fear that the noble Lord, Lord Lester, may be looking at me rather quizzically. How many reforming Lord Chancellors have we had during this century? Not many, I would be the first to agree. Perhaps the most famous was a Conservative, Lord Birkenhead. At any rate, I was taught that it was he who reformed the antiquated land law of this country. I can well remember having to learn two kinds of land law: the old land law, which was perfectly incomprehensible, and the new land law which Lord Birkenhead introduced. For the most part, I concede that Lord Chancellors have contented themselves with a little tinkering and persuading the Cabinet to allow them time for some of the less controversial proposals of the Law Commission to be considered. But when we have, as we have now, a Lord Chancellor who is determined to reform the law in many areas, the importance of this office and the essential need to keep the Lord Chancellor as an active Member of the House becomes immediately apparent.
Institutions find great difficulty in reforming themselves. Each generation finds itself in changed conditions and has to adapt to them; but institutions find it difficult to do so. It took three Royal Commissions to transform Oxford and Cambridge from clerical seminaries into modern universities and much government intervention—by no means all of it wise—to provide for mass higher education. It requires a powerful will to bring about changes which have to be made if we are to have, for instance, legal aid available for those who cannot afford to go to law.
It is all the more necessary to have the Lord Chancellor in this House when we are having to redraft our law to adapt it to the law of the European Community. Can anyone doubt the value of the presence

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and ability of the noble and learned Lord the Lord Chancellor when we cast our minds back to the passage of the Human Rights Bill through this House? It could have taken months had it been in the hands of a Minister who was not at the top of the legal profession.
Of course, Lord Chancellors can be misguided, like any other Minister, in insisting on this or that clause in a Bill. I was struck yesterday when two experienced criminal lawyers, the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Hutchinson of Lullington, opposed the establishment of a salaried panel of defence counsel. They are lawyers who are not among the fat cats of the profession and who have often defended the accused for virtually nothing. Yet at the same time I felt it might well be possible to curb the ever-rising cost of legal aid if such a system as that proposed by the noble and learned Lord the Lord Chancellor was set up. I am simply saying that, as always in life, those who want reforms find that at some point their natural allies desert them and they have to think again. The notion that a Lord Chancellor can become a tyrant, however robust his language may be, is absurd.
I have more sympathy for another of the proposals of the noble Lord, Lord Lester. I am not convinced that it is in the public interest that the Lord Chief Justice and the Lords of Appeal in Ordinary should sit in the House and vote. Let them do so when they have retired, by all means. We all in this Chamber know what we owe to those Law Lords who have retired. We need their wisdom. The noble and learned Lord the Lord Chancellor, as he knows only too well after yesterday, should be faced with expert criticism and probing when he tries to move reforms of the law. But it does not seem right to me that those who sit in the highest court of appeal should sit in the legislature.
I remember only too well what happened when the noble Viscount, Lord Runciman, spoke on a particular issue in his report on the reform of criminal procedure. He was followed by the then Lord Chief Justice, the much respected and indeed beloved Lord Taylor, who opposed the Runciman proposal. The conclusion was foregone: if the Lord Chief Justice was against it, no more needed to be said.
There has been talk today of a supreme court. I have some sympathy with that idea, but I do not think that when we talk about a supreme court we need have the American Supreme Court in mind—certainly not. But a supreme court which is distinct from the House of Lords has the following advantage. Very often in the public mind the procedures of this House are confused. It is said, "The Lords have done this". What is meant is that the judicial part of the Lords, the Lords of Appeal in Ordinary, have made a decision, which no doubt may much affect the public. That is very different from the decisions which this House takes as a legislature. I believe that there is some merit in distinguishing openly between the supreme legal body and the legislative functions of this House.
I take the point about the need for the Lord Chancellor to use his natural discretion in deciding whether to sit in cases in which it could be said that he was so politically involved that it would affect the final
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conclusions of a supreme court. But, that having been said, I hope that we will not alter the procedures which allow the Lord Chancellor to be a formidable part of the legislature.
Lord Renton: My Lords, as we have more time than was expected for the speeches in this debate, perhaps I may ask the noble Lord, with whom I agree on nearly everything he said, whether he does not realise that the American constitution, which applies the separation of powers so rigidly, has in fact caused great trouble.
Lord Annan: My Lords, yes, indeed. It caused great trouble to President Roosevelt, who tried to pack the Supreme Court in order to get the New Deal legislation through. I am very much in favour of what the noble Lord, Lord Renton, has said.
6.26 p.m.
Lord Goodhart: My Lords, I start by noting the interesting fact that the previous five speakers have all been over the age of 80 and two of them over 90. While I do not entirely agree with everything they said, the quality of their speeches is a good reason for not imposing a retiring age on Members of your Lordships' House.
Noble Lords: Hear, hear!
Lord Goodhart: My Lords, in the United Kingdom we pay lip service to the separation of powers but we rarely give it serious thought. There is no separation of powers between the executive and the legislature. In theory, the legislature controls the executive; in practice, the executive, backed by a working majority in the other place, controls the legislature.
There is separation of powers between the legislature and the judiciary. In practice they rarely come into conflict. The legislature has no power to appoint judges. It can remove them but has only attempted to do so once, in the case of an Irish High Court judge early in the 19th century. The judiciary has no power to declare Acts void or unconstitutional except, as the Factortame case showed a few years ago, for a very limited power in respect of inconsistency with legislation of the European Community. The main exception to the separation is the fact that Law Lords are Members of your Lordships' House.
There is also separation of powers between the executive and the judiciary. Here the Lord Chancellor plays a pivotal role as a member of the Cabinet, as de facto Minister of justice, as the person who appoints the judiciary and as the head of the judiciary in England and Wales.
The conflicts in the case of the executive and the judiciary are more serious. The judges can exercise, and for the last 30 years or so increasingly have exercised, control over the executive through judicial review. Conversely, successive Lord Chancellors have also, with greater or less success, tried to influence the judiciary.

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I have read with great interest an as yet unpublished article by Professor Robert Stevens, to whom my noble friend Lord Lester referred earlier, in which he gives a number of examples of where Lord Chancellors, from Lord Jowitt to the noble and learned Lord, Lord Mackay of Clashfern, have intervened with judges in relation to the exercise of their judicial functions.
The central position of the Lord Chancellor has been defended—and not only by your Lordships today. In a lecture given at Oxford in 1997 the noble and learned Lord, Lord Woolf, said of the office of the Lord Chancellor:
"On behalf of the Government [the Lord Chancellor] can explain to the judiciary the realities of the political situation and the constraints on the resources which they must inevitably accept. As long as the Lord Chancellor is punctilious in keeping his separate roles distinct, the separation of powers is not undermined and the justice system benefits immeasurably".
I do not find that argument persuasive. To my mind, it makes the Government and the judiciary sound too much like common members of a ruling elite—a group of platonic guardians or (what is perhaps much the same thing) a group of members of the Garrick Club, of which my noble friend is a member but I am not.
Lord Lester of Herne Hill: No. I resigned.
Lord Goodhart: I believe that the Lord Chancellor should not sit as a judge. I agree entirely with the noble Lord, Lord Annan, that the Lord Chancellor should continue to sit in this House and introduce legislation here. I believe that the noble Lord misunderstood the point made by my noble friend. It is his ministerial role on which the Lord Chancellor should concentrate. The Lord Chancellor could certainly not be seen as impartial in any case where the Government had a direct interest. That would include Revenue cases. I agree with my noble friend Lord Lester that the noble and learned Lord, Lord Mackay of Clashfern, was wrong to sit in Pepper v. Hart.
I believe that the Lord Chancellor could not sit in a judicial review case involving a government department, in many cases under the Human Rights Act and certainly not in a devolution case. Plainly, it would have been wrong for him to have sat in the Pinochet case. It is strongly arguable that he should not sit in a criminal case. Maybe a Lord Chancellor would be seen as impartial in a commercial case involving two independent corporate bodies but, frankly, in my view, sitting in such a case would be a waste of his time. The problems of having a senior member of the Government sitting as a judge are so serious that I believe it is much better for the Lord Chancellor not to sit at all.
The noble Lord, Lord Waddington, supported by a number of other noble Lords, attacked the decision in McGonnell. That appears to me correct given that the Government of Guernsey was itself an interested party in the action. My belief in the correctness of that decision is reinforced by the fact that Sir Nicolas Bratza, who was then the British member of the commission and is now a most distinguished judge of the European Court of Human Rights, wrote an opinion that concurred in the decision. I also believe that the Lord Chancellor
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should hand over his power to appoint judges to a judicial appointments commission. In recent years we have grown used to impartial appointments being rude. I have previously criticised the noble and learned Lord, Lord Mackay of Clashfern, but he was outstanding in the impartial way in which he made appointments. I believe that his successor is likely to prove the same. But in the earlier part of the century political appointments were common. Even in more recent years it is widely believed that the noble and learned Lord, Lord Donaldson of Lymington, was denied promotion to the Court of Appeal by the Labour Government of 1974 to 1979 because of his previous association with the Industrial Relations Court. The had old days could return. The increased importance of judicial decisions on devolution issues and convention rights makes this a serious risk.
I turn now to the other element of the separation of powers: the presence of the Law Lords in your Lordships' House. I find this a more difficult issue. It is an issue that is being debated by my noble friends on these Benches as we prepare our submissions to the forthcoming Royal Commission on the House of Lords. Therefore, I am not today in a position to speak for my party. Speaking for myself, I have no doubt that Law Lords, especially retired ones, contribute much to debates in your Lordships' House. In debates on the Access to Justice Bill we have had very valuable contributions from the noble and learned Lords, Lord Lloyd of Berwick, Lord Ackner and Lord Simon of Glaisdale and also from others. The Lord Chief Justice has made powerful speeches on the Youth Justice and Criminal Evidence Bill. Going back some two years, the noble and learned Lord, Lord Browne-Wilkinson, played a leading role in removing from the Police Bill in early 1997 the quite improper power for chief constables to authorise their own forces to carry out bugging and other forms of surveillance.
But there are increasing problems. The Pinochet case is a warning to Law Lords that they must not speak on issues that may come before them in future. This will limit the usefulness in future of serving Law Lords in your Lordships' House. Even retired Law Lords under the age of 75 who may wish to make themselves available to make up the numbers on the Appellate Committee may find themselves somewhat constrained in what they can say in the course of debates.
Devolution cases present what appears to be an intractable problem. Most of them will involve questions to do with the powers transferred to the Scottish Parliament or the Welsh or Northern Ireland assemblies and the powers reserved to the United Kingdom Parliament. How can Members of one of the Houses of Parliament of the United Kingdom be regarded as impartial for this purpose? Technically, the decision will be that of the Judicial Committee of the Privy Council rather than the House of Lords, but all or most of the judges who sit on the Judicial Committee that makes such a decision will plainly be Members of your Lordships' House. That raises the question of whether, when devolution issues become more prominent in litigation, it will be possible for serving Law Lords to remain as Members of your Lordships' House.

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As the United Kingdom faces up to unprecedented consitutional change the question of the separation of powers becomes increasingly important. I have expressed my views. I believe that the debate, in drawing out many other views, including quite contrary ones, has made a valuable contribution to the discussion of the separation of powers in the future, and I am most grateful to my noble friend Lord Lester of Herne Hill for having initiated it.
6.37 p.m.
Lord Kingsland: My Lords, I also congratulate the noble Lord, Lord Lester, on initiating this timely debate. I hope he agrees with me that the quality of the speeches on the balloted Motion fully justifies his initial speculation.
It has been said that our unwritten constitution does not contain within it the principle of the separation of powers. In my view, the separation of powers under our constitution is at the same time the most invisible and the most important part of it. Without it we would have no rule of law. As my noble friend Lord Renton rightly said, the essence of the principle is that, on the one hand, the judges do not interfere in the procedures of Parliament and, on the other hand, Parliament respects the rule of sub judice.
For 300 years that principle has served this nation very well; and is still respected as such. The difficulty is that its spirit is beginning to fray at the edges because an increasing amount of litigation upon which judges must adjudicate has a political content. An increasing amount of litigation involves conflicts between citizen and state, and often issues which relate to the content of legislation.
I believe that the judiciary is being asked to bear too heavy a political burden. The reason for that is the failure of the political part of our constitution to do its job in controlling the executive. One looks in vain at the programme of constitutional reform of the Government for anything which increases the power of members of the legislature to control members of the executive. That is as true in your Lordships' House as in another place. So it is no wonder that one reads increasing vituperation in the press about the decisions of the judiciary.
In some respects, the single most important constitutional reform that the country needs is not devolution. It is not the incorporation of the European Convention on Human Rights. It is increasing the power of the ordinary MP to control the executive. I see no sign of any serious thought being given to that issue. As long as no serious thought is given to it, judges will continue to be in great difficulty.
Quite rightly, judges are unelected. They have to deal with political issues, in particular in the Crown Office and the Appeal Courts, almost every day of the year and, at the same time, retain their legitimacy in the eyes of the nation. That is the real challenge the separation of powers has to face.
Until now the judiciary has managed to survive because, in taking sometimes highly courageous decisions about controlling the acts of the executive, it
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has been able to disguise them under the myth of interpreting the intention of Parliament. That has been the basis of the development of judicial review, beginning with the genius of the late Lord Reid and continuing through to so many able judges in your Lordships' House today. But the great difficulty is that, with the introduction of legislation on devolution and the incorporation of the European Convention on Human Rights, the fig leaf of interpreting the intention of Parliament will no longer be available to the judges. In future they will have to take decisions which will quite clearly be their own decisions. Thereafter they will have to bear the full limelight of responsibility for having so judged. It is in that context that your Lordships have to consider whether anything needs to be done about the principle of separation of powers.
The noble Lord, Lord Lester, offered two solutions: one in relation to the noble and learned Lord the Lord Chancellor; and the other in relation to noble and learned Lords who sit on the Judicial Committee of the House of Lords. I believe that it was the noble and learned Lord, Lord Woolf, who said not so long ago in your Lordships' House that the Lord Chancellor wears three hats, and as long as he remembers which one he is wearing when he is doing whatever he is doing the principle of separation of powers is safeguarded. I have a great deal of sympathy with that. Indeed, I can think of only one occasion since the noble and learned Lord has been Lord Chancellor when he forgot to put on the right hat; and that was in his drafting of Part III of Schedule 5 to the Access to Justice Bill. I shall say no more about that because he has heard me speak about it on so many occasions.
I agree, and I suspect that the noble and learned Lord agrees too, that there are certain cases before the Judicial Committee which it would be inappropriate for him to hear. I think that common sense dictates which those are. I do not believe for a moment that it would be necessary to have those written down or stipulated in some constitutional agreement.
It would be a shame if we were denied the wisdom in parliamentary debate of the noble and learned Lords who sit on the Judicial Committee of your Lordships' House. However, I take note of what the noble Lord, Lord Lester, said about the dangers of their having to sit in future on cases which gave rise to matters upon which they had already spoken. That is not an easy matter to deal with, but it will depend on the individual wisdom of each of the noble and learned Lords to apply the appropriate restraint to himself, or herself, when considering whether or not to intervene in a debate.
Only one noble Lord has addressed the issue of the selection of our senior judiciary. I take the view that the legitimacy of the senior judiciary, who are unelected, will be enhanced if they undergo some kind of public parliamentary procedure, not necessarily before they are appointed but as a part of the appointment. I believe that that will give them greater security in office in future

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and greater protection from the kind of criticism that we read in the tabloid press and sometimes hear in another place.
Lord Simon of Glaisdale: My Lords, has the noble Lord in mind what happened as regards the appointment of Justice Thomas to the Supreme Court?
Lord Kingsland: My Lords, I am only too acutely aware of that. That is why I made the suggestion with an appropriate caveat. I do not think that the decision about selection should be taken by the legislature. However, I believe that a candidate who has been selected by the noble and learned Lord the Lord Chancellor should have the opportunity of being interviewed by a parliamentary committee so that that committee has the opportunity of finding out something about him. The personal views of noble and learned Lords are now a matter for daily public debate in the press. They would be more secure in their posts were some parliamentary procedure of that kind to be initiated. It would give greater legitimacy to the unelected judiciary who, after all, guarantee the rule of law in our country.
Lord Marlesford: My Lords, before the noble Lord sits down, surely one of the essences of a good judge is that as far as possible he keeps his personal views private. Once one exposes judges' personal views on everything, reasons will be found why they should be regarded as inappropriate for appointment to the highest part of the judiciary.
Lord Kingsland: My Lords, in the past that has been possible, and it has worked most satisfactorily. However, as the noble Lord may have gathered from the earlier part of my speech, for better or worse noble and learned Lords, and indeed Lords Justices in the Court of Appeal, are having, daily, to take decisions about highly political issues. The press and many members of the public feel that the personal views of those judges might influence their ultimate decision. Therefore I think it only right that judges who will be appointed have the opportunity—it is an advantage to them as well as to the legislature—to express their views.
6.50 p.m.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I am sure that your Lordships will be grateful to the noble Lord, Lord Lester, for bringing these issues before us. He began his speech with the office which I have the privilege to occupy today and I will begin there, too, by saying why I believe the office is critical within our unwritten constitution.
It is the nature of great offices, and the values which historically inhere in them, that they provide at least as sure a guarantee of our traditional rights and liberties as any transient constitutional text. It is the unique position which the Lord Chancellor occupies in our constitutional arrangements which provides a strong and contemporary, as well as a historic, justification for both the office itself and for the Lord Chancellor to be a professional.
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Lord Chancellors traditionally come to the office after a long career in the law. Their profession puts independent individual judgment above all else. they come to the office imbued with the values that underpin our democracy: the rule of law; freedom under the law; the independence of the judiciary from any Executive interference; the duty of the court to stand between citizen and state; the duty of the court to order the Executive to comply with the law and not overreach itself. In short, to insist that, "Be you ever so high, the law is above you". I believe that the public can have a well-founded confidence that, for any Lord Chancellor, these values would be armour against Executive mindedness or Executive pressure.
In our country, the legislative, the Executive and the judicial branches are not equal and co-ordinate as in the United States of America. Parliament is the senior partner in principle and the Executive is very powerful in practice. The office of Lord Chancellor has evolved as the means of ensuring judicial independence within a constitution which both concentrates supreme power in an elected legislature dominated by fierce party political warfare, and at the same time permits a powerful Executive to govern day by day.
After approaching two years in office, my belief which I brought to the office of Lord Chancellor, that it stands at a critical cusp in the separation of powers, is even stronger. Through the office, the judiciary has a representative in the Cabinet and the Cabinet in the judiciary. Lord Chancellors must have the confidence both of their judicial and Cabinet colleagues. They promote mutual understanding in order to avoid collisions at a major intersection in the separation of the powers.
I have to say with regret, that there was a period under the previous Administration when the public would have been forgiven for thinking that on occasions the Executive and the judiciary had ceased to be on speaking terms. In the latter two years or so of the previous Administration there was unprecedented antagonism between judiciary and the Government over judicial review of ministerial decisions. Some politicians even went so far as to call judicial review itself into question. That was bad for our system because our system ultimately requires a government of laws, not of men.
The protection of the judiciary from Executive interference is, in my view, a high order duty—perhaps the highest order duty—of any Lord Chancellor. The office is a buffer between the judiciary and the Executive which protects judicial independence. The Executive cannot tell the judges how to decide cases, civil or criminal, nor what sentences in criminal cases to impose within the discretion conferred by Parliament. Any Executive is capable of being tempted, but Executive interference with judicial independence must never be allowed. Freedom under the law and judicial independence are two sides of the same coin.
If the Lord Chancellor does not fit into a perfect, purist scheme for the separation of powers, nor do the Law Lords, as your Lordships have shown in today's debate. They are Members of your Lordships' House

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both in its legislative and its judicial capacity. In a debate which I promoted in your Lordships' House on 5th June 1996 concerning the relationship between the judciary, the legislature and the Executive, I said then wait I still think: that the Law Lords' expertise in the administration of justice allows them to make an invaluable contribution to our debates on that subject. But I believe that they would be wise to stop at the administration of justice. I repeat what I said in that debate:
"If they engage more extensively in political controversy, they risk undermining public confidence in their political impartiality. There is a basic tension between judicial engagement in political controversy and public confidence in the judges' political impartiality in deciding disputes according to law".—[Official Report. 5/6/96; col. 1259.]
There is also a need for self-restraint in debate in the Chamber, but I would not circumscribe it by iron rules. Here I am with the noble Lord, Lord Renton. It would be prudent for Law Lords participating in debates in this Chamber to abstain from concluded views of a judicial character on issues, whether arising out of legislation under consideration by your Lordships or otherwise, which might disqualify them later from ruling judicially on these very issues. In particular, if an issue arose about whether a ministerial statement that a Bill was compatible with the European Convention on Human Rights was well founded, the Law Lords in this Chamber would be well advised to abstain from concluded views.
Some who are critics of the Human Rights Act argue that it will have a tendency to politics our higher judiciary. It is true that the Human Rights Act, when implemented, will throw up cases which could be described as politically controversial. But the law is no stranger to that over the centuries. Think of the landmark cases in civil liberties. Think of the development of the law in relation to trade unions and the developments by Parliament of immunities for industrial action which were then interpreted by the judges in controversial ways. Think of Liversidge and Anderson, the Regulation 18B case. Think of the development of judicial review and of natural justice. Think of Brind, which excluded certain politicians from media appearances but allowed actors to stand in. Think of the cases about homosexuality in the Armed Forces. Think about whether the life support machine should be turned off. Think of every controversial decision in the criminal law.
The Human Rights Act may see a change in degree, but not in kind. I remain firmly of the view that judges are to be appointed on their legal merits. Of course, like Shylock, if you prick them they bleed, but that was ever so. I am resolutely opposed to any suggestion—and your Lordships heard such a suggestion from the noble Lord, Lord Kingsland, from the Opposition Front Bench—that our senior judiciary, prior to appointment, should be subject to public hearings, to subject their judicial track records or attitudes to appraisal in terms of the changing
736
fashions for political correctness. I do not think that our higher courts should be sculpted to conform to some notion of social, political, gender or any other balance.
Lord Desai: My Lords, I confess to my noble and learned friend that I made that suggestion. I did not make it as subtly and distinctly as the noble Lord, Lord Kingsland, did when developing the situation, but I am afraid that it came from me.
Lord Kingsland: My Lords, I did not say that an investigation and vote by a parliamentary committee should be a condition of appointment; I merely said that it would be desirable for a judge to appear in front of a parliamentary committee subsequent to appointment.
The Lord Chancellor: My Lords, with that I profoundly disagree.
I turn now to the issue to which the noble Lord, Lord Lester, also called attention as to the circumstances in which the Lord Chancellor should sit in the Chair in the House of Lords. Both my predecessors, the noble and learned Lords, Lord Mackay and Lord Hailsham, attached real importance to the Lord Chancellor sitting in the Chair. So do I. Sitting gives the Lord Chancellor a practical awareness of the development of the common law at the highest level. It enables him to assess the quality of the most senior advocates. And it is just possible that the Lord Chancellor may himself have a contribution to make. Many Lord Chancellors across the centuries have done so. Though I doubt that many would go as far as my noble and learned predecessor, Lord Hailsham. Characteristically trenchantly, he said that regular sitting for the Lord Chancellor was,
"the only factor ensuring that a politically motivated Prime Minister does not give the office to a no-good lawyer".
The only problem is: in what cases would the Lord Chancellor be wise not to sit? In common with the noble Lord, Lord Renton, and the noble and learned Lord, Lord Simon of Glaisdale, I am unwilling to lay down any detailed rules because it is ever a question of judgment combined with a need to ensure that no party to an appeal could reasonably believe or suspect that the Lord Chancellor might, because of his other roles, have an interest in a specific outcome. Examples might be where the lawfulness of a decision or action by any Minister or department might be at issue. In my view, however, there is no category of cases that could be labelled "constitutional" which should be "no-go areas" for the Lord Chancellor.
I part company with the noble Lord, Lord Goodhart, because Lord Chancellors have traditionally sat on criminal appeals which may give rise to issues which could be given that label. The furthest I would go is to say, "any appeal where the Government might reasonably appear to have a stake in a particular outcome"; apart from that, the issue should be addressed case by case.
The extent of sittings by Lord Chancellors in recent years has been remarkably variable. The House may be interested to know the facts. Lord Gardiner, who was Lord Chancellor from 1964 to 1970, sat very little; only four days. The noble and learned Lord, Lord Hailsham,

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was a prodigious sitter. From 1970 to 1974 he sat for 28 days, but when he came to his second period in office—from 1979 to 1987—he sat for 53 days. Lord Elwyn-Jones, Lord Chancellor from 1974 to 1979, was not a great sitter; he sat for eight days. Lord Havers, who was sadly in this office for so short a period in 1987, was not able to sit at all. The noble and learned Lord, Lord Mackay, throughout his Lord Chancellorship from 1987 to 1997, counts as a prodigious sitter too; he sat for as many as 60 days. I tell your Lordships that because I had the curiosity to inquire and, having done so, I thought I should share the information with your Lordships.
In the debate to which I referred and which I initiated on 5th June 1996 the noble Earl, Lord Russell, who unfortunately is not with us today and therefore has not contributed to this debate as well he might, said this, with which a number of your Lordships who contributed today may agree:
"It is impossible to distinguish vires from origins. All three branches, judiciary, legislature and executive, are emanations of the King's Great Council. So it is a relationship in which the balance … is a key feature. I see it as having been over many centuries a creative tension … That balance is the balance of a see-saw—and the day it stops moving, it is defunct. So if there is a tension from time to time, there are uses as well as dangers in it".—[Official Report, 5/6/96; col. 1301.]
The noble and learned Lord, Lord Simon of Glaisdale, echoed that approach. He said that it is ever a matter of balance and not iron rules. That is essentially what the noble Lord, Lord Renton, was saying too. So we have had a good debate, none the worse for its brevity, and your Lordships will be grateful to the noble Lord, Lord Lester, for providing us with the opportunity to discuss these interesting issues.
Lord Renton: My Lords, before the noble and learned Lord sits down, he may be interested to know that this afternoon I visited my noble and learned friend Lord Hailsham who, alas, is not at all well physically, though his mind is as alert as ever. I told him of the debate that we were going to have and his only comment was, "Do be careful"!
The Lord Chancellor: My Lords, I hope that in everything I have said I have unwittingly—not knowing what the noble and learned Lord said—heeded his injunction.
7.7 p.m.
Lord Lester of Herne Hill: My Lords, I too tried to do so and especially because I am proud to have got my red bag from the noble and learned Lord, Lord Hailsham, in his last case at the Bar. I have great affection for him and am very sorry that he is not in good health and recently suffered a bereavement.
When the noble and learned Lord the Lord Chancellor referred to Lord Elwyn-Jones, I was reminded of a conversation that I had with Lord Elwyn-Jones in 1973 just before the Labour Government won a narrow victory. We were travelling back together from Morocco and I asked him what he would do if he became Lord Chancellor. He said, "Well, the one thing I would do is make sure that I was not the last Lord Chancellor".
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I said, "Surely there must be other things" and In said, "No, that is the most important thing. I must make quite sure that I am not the last Lord Chancellor".
I want to make quite clear, if it is not evident already, that nothing that I have said or done was intended to make the present powerful and eminent holder of that office the last Lord Chancellor. The debate is concerned with a much more narrow but still important issue; that is, the appearance of independence and impartiality in our final court and the arrangements in this House for strengthening rather than sacking judicial independence.
I am grateful to all noble Lords who participated. I am glad that I was lucky enough to win the balloted Motion because it gave me an opportunity of hearing a wide range of speeches, some of which gave me particular pleasure and all of which were educational in a broad sense. Perhaps I may be permitted to deal with one or two matters.
First, the enemies of the European Convention on Human Rights were fulminating about the McGonnell case and Article 6. They might be interested to know that Article 6 was drafted by Home Office lawyers. In Europe it is regarded as one of the British articles; it is regarded as reflecting Blackstone's great principles. When Lord Chancellor Jowitt was considering his advice to the Government as to whether or not we should ratify the convention, he foresaw that, if we did so, we might need to make changes about separation of powers. He was worried, for example, about the peremptory powers of the judge to commit for a contempt of court on the spot knowing that it might breach Article 6. It is no surprise, it seems to me, if in the McGonnell case the European Commission and, I dare say, the European Court would be deeply troubled by the notion of a political officer, an administrator, presiding in the Royal Court on Guernsey. If we need to amend our arrangements to give effect to the convention, I regard that as beneficial and not the end of civilisation as the British know it.
I have only one or two other points to make. I am not in favour, and nor is my noble friend Lord Goodhart, of a United States Supreme Court or a United States straight separation of powers. We are in favour of the dewigging of barristers and we hope that the Lord Chancellor, having changed his own costume successfully, will be able to change ours, but that is beyond the terms of the Motion.
We agree that the Lord Chancellor plays a key role in law reform and hope that that will continue and that he or she will always continue to be a Member of this House. The noble Lord, Lord Annan, was absolutely right in pointing to the confusion about the role of the Law Lords, not only in this country, but across the world. I have been astonished by the ignorance of many people in high places abroad—for example, in a friendly foreign government—who still think that the Law Lords are not proper lawyers and that we do not have a proper supreme court. One of the reasons for moving the Motion is that I believe, in the interests of the judiciary and our system, that we should eventually have a proper supreme court.

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No one has drawn attention to the oddity of our situation. Across the Commonwealth—whether in Australia, Canada, New Zealand, India or any other part of the Commonwealth—there is no other country in which the minister of justice, the key law reformer in government, also reserves the right to exercise a judicial role. I continue to believe, at any rate in certain classes of case—I think that the Lord Chancellor by implication agrees with me—that it would be unwise for him to exercise that right because of the appearance of a conflict of interest were he to do so.
One has only to think of the situation that might arise with another powerful Minister—say, the Minister of State at the Home Office, the noble Lord, Lord Williams of Mostyn, who sat as a judge before becoming a Minister. It would be unthinkable for him to sit as a recorder or a deputy high court judge while serving as a Minister. I believe the same is true of the Lord Chancellor who sat as a judge before he became Lord Chancellor. I can see no good reason why, when he becomes the Lord Chancellor, he should continue to sit judicially, at any rate in the kind of cases that have been debated this evening.
Unlike the noble and learned Lord the Lord Chancellor, I believe that we need some criteria and some principles. They do not have to be iron laws—of course not—and they do not have to be rigid or immutable. However, I believe that if we are to proceed by convention, the conventions should he much clearer than they are at present. The Lord Chancellor—I agree with him—gave guidance before he became Lord Chancellor to the Law Lords and other judges about self-restraint in giving lectures. This evening he has given guidance again about Law Lords making speeches in your Lordships' House. I say, with great respect to him and affection for him, that I believe similar guidance needs to apply to the Lord Chancellor himself. Basically it is, "trust me". Of course, we all trust the Lord Chancellor as an individual personality, but this evening we are debating the system itself and the institution itself.
Those are the points that I wanted to deal with briefly. I thank all noble Lords who participated in the debate. I beg leave to withdraw my Motion for Papers.
Motion for Papers, by leave, withdrawn.

Sea Fisheries (Shellfish) (Amendment) Bill [H.L.]
7.14 p.m.
The Earl of Lindsay: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(The Earl of Lindsay.)
On Question, Motion agreed to.

Ministerial Correspondence
7.15 p.m.
Lord Glenarthur Lord Glenarthur rose to ask Her Majesty's Government what criteria they apply to the timeliness and completeness of replies by Ministers and officials to correspondence from Members of both Houses of Parliament and the public; and whether they are satisfied that they are meeting such criteria.
The noble Lord said: My Lords, it will not surprise your Lordships to hear that my asking this Question stems from direct personal experience of less than satisfactory correspondence with at least one government department, but principally one in particular.
Having spent several years as a Minister in a number of departments in the 1980s, I enjoyed—if that is the right word—many an hour, often well into the night, signing ministerial correspondence to parliamentary colleagues and others. I became acutely aware that, whoever had drafted the reply, the responsibility for it lay with me. Members of another place were, rightly, not tolerant of undue delay, inaccuracy or fudged answers. The same was true of many of your Lordships, and quite right too.
So far as I can recall, procedures varied from one department to another. In some departments, a ministerial correspondence section co-ordinated the preparation and drafting of replies. Elsewhere, correspondence was co-ordinated between the responsible Minister's office and the relevant section of the department concerned.
I well remember visiting the hard-pressed correspondence section of the then Department of Health and Social Security. Delays and inaccuracies used to occur and it was important to prevent them. We had to devise a way to do that. I used to stress to the correspondence section management and to those who worked there—they were an extremely hard-working bunch of people—that their correspondence was essentially the shop window of the department. Boring and tiresome though some of the work might be, the public and Ministers very often judged the efficiency of the department by the way in which the people in that section operated.
Together with senior officials, it was agreed that procedures had to be devised to deal effectively, accurately and timely with all ministerial correspondence, and some changes were made to effect that. I do not suppose, by any manner of means, that all problems were solved. What concerned me also—it still does—is that as parliamentarians in either House we can make a fuss and unreasonably demand explanations if things go wrong, if answers are inaccurate, incomplete, hugely delayed or simply go unanswered. But to the public at large I do not believe that the bureaucratic machine is as user-friendly.
Perhaps the noble and learned Lord, Lord Falconer, can give us a few statistics. Can he say what is the volume of parliamentary correspondence to key departments, such as the Home Office, the Department of Health and the Department of Social Security? He

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may choose to answer that by referring to other departments, but whatever he says will help. Can he tell us what has been the increase, or perhaps—though I doubt it—the decrease, in volume over, say, the last five years? What about the volume of correspondence from the public which is to be treated officially? Has the encouragement to complain given rise to a substantial increase? If so, what mechanisms have been put in place across Whitehall to meet the new expectations of individuals?
As I explained at the beginning, my Unstarred Question is motivated by personal experience, and I can hope only that my experience is not the tip of an iceberg. I wrote directly to the Immigration and Nationality Directorate of the Home Office about an asylum case on 16th October 1998, on my own headed House of Lords writing paper, so there was no doubt from whom it came. No acknowledgement, let alone reply, was forthcoming. On 16th November, I wrote to the Minister, Mr. Mike O'Brien, but again there was no acknowledgement and certainly no reply. Somewhat exasperated, I telephoned his private office during the first week of January, insisting on a reply by close of play on Friday, 8th January. I need not go into details of the case, which stands and falls on its own merits, but the assistant private secretary, who did respond, helpfully, by the end of that week wrote:
"I am very sorry that it has not been possible to reply to you sooner".
Well, it would certainly have been possible for someone, somewhere to acknowledge both those letters. Why was no acknowledgement sent?
What procedures does the Home Office or the Immigration and Nationality Directorate have for dealing with correspondence? What about an acknowledgement? What about holding replies, or even further holding replies if a case is complex? I am certain that I and my ministerial colleagues in the 1980s regularly had to send holding replies and further holding replies if a case was complex and required a great deal of work, but such replies assured those with whom we were corresponding that the case was under consideration.
What about signatures by Ministers themselves so that it is known that they are personally aware of the case at point and of the inordinate delay, if that is the case, because that would give confidence to those writing that Ministers have taken ownership of the issue to hand?
What I am to make of the rest of that reply, which explains:
"As you may be aware, major changes to the organisation and working practices of the Immigration and Nationality Directorate are currently taking place which are affecting the service we are able to offer applicants and their representatives".
In referring to the case that I raised, the letter continues:
"transition arrangements are being made with a view to considering his case under the new provisions for dealing with the backlog of asylum applications announced at the time of last year's White Paper. Currently, his file is in transit with the old section and the new unit which is being set up to deal with this type of case. Unfortunately, it is therefore not possible to gain access to the file and give you a detailed reply at this stage. Please accept my apologies for this".
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I certainly accept them. The letter continues:
"I will arrange for you to receive a detailed reply as soon as we are able to gain access on this file".
That was on 8th January; it is now 17th February and still there has been nothing.
I am sure that the backlog of work on asylum cases is substantial, but this case began, as far as I can tell, in January 1996, and three years later it has still not been resolved and the files have been "lost"—perhaps I may put it in that way. What on earth is going on? What are we and the public to make of what seems to be an embarrassing shambles? What am I to say to my correspondent? Does it not make the Government look pretty silly? Is it not really an absolute disgrace?
Perhaps I may humbly suggest some procedures that might help. Can the noble and learned Lord ensure that the acknowledgement of letters is invariably almost immediate in every case? A postcard would suffice. Some departments are very good and already acknowledge by postcard. Can the Minister arrange across Whitehall for substantive replies to be sent to Members of both Houses, signed in every case by a Minister, within two weeks as a matter of policy? Perhaps that could even apply to letters answering points raised in debate which Ministers have promised to send. If an issue is particularly complex, can the Minister arrange for holding replies, explaining the nature and reason for the delay, to be sent at a two-week point? Can the noble and learned Lord ensure that Ministers' private offices take ownership of procedures? After all, it is their Ministers who will catch the flak if their systems do not work.
Efficiency should be Whitehall's watchword. Will the Minister consider league tables for government efficiency in dealing with correspondence, and perhaps even the awarding of charter marks, with the results possibly being published? Would not such an imaginative approach give some comfort to the public at large that Whitehall cares about their correspondence and that the rhetoric encouraging them to complain when dissatisfied means something? Would not that demonstrate that large departments of state, somewhat amorphous to the public at large, really can be user-friendly to their customers who ultimately pay their wages?
7.25 p.m.
Baroness Goudie: My Lords, when the Government were elected, they committed themselves to openness, transparency and listening. Like other noble Lords and the Government, I receive correspondence by letter, e-mail, fax and in other ways. With the use also of the internet and websites, people's expectations of gaining a response to their queries are now much higher.
I should like the Government to set targets for replying to correspondence, not only to Members of Parliament, but also to members of the public. That should happen across departments. Some departments reply to correspondence within 10 days without any problems. They do so not only to correspondence from Members of Parliament, but to that from members of the public—and they do so even on complicated issues.

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However, other departments perhaps suffer from the same disease as some of our friends who never reply to letters unless pushed.
It Is important to have best practice. Letters should be answered—and not only by a holding postcard. They are useful in the first two weeks, but one gets a bit fed up with receiving such postcards again and again when tying to follow up a matter.
I am not even asking for special privileges for ourselves or for Members of the other House. I am asking for best practice generally and for correspondence targets for those outside because we have encouraged them by saying, "We want to hear from you. We want your views. If you aren't happy, please write to us." They should get a reply.
7.26 p.m.
Lord Morris: My Lords, there is in our constitutional life an event which, happily, very rarely visits us, but it is an event of high importance. I refer to the accession and coronation of a new sovereign. Your Lordships will be well aware that at the very centre, the very canon, of the sacrament of coronation, Her Gracious Majesty took a series of oaths. They were taken in the most solemn circumstances, before her God, her Peers and her people. In summary, the two oaths were "To serve my God and to serve my people." Ministers of state and, indeed, members of departments of state are there to serve the sovereign, as we are. Ergo they also have that same duty to serve the people.
If I may so describe my noble and eloquent friend, we have heard a sorry story of a derogation of power from him. He used the word "disgrace". I would go a little further. I think that it is a contempt of Parliament; still worse, it is a contempt of his supplicant; and, still worse, it is a contempt of the Minister's own oath.
Bearing that in mind, I ask the Minister to be good enough to give an undertaking to this House to ensure at least that his ministerial colleagues and his colleagues in his department of state have this debate drawn to their attention, not least because they should be reminded that they are in the public service, not in the self service. If the noble and learned Lord cannot do that—and it is purely a matter of will; it is not a matter of his capabilities or abilities, of which there is no doubt whatever—I wonder whether he can simply apologise to my noble friend and, indeed, to his supplicant. Even that might be of help.
7.29 p.m.
Lord Henley: My Lords, perhaps I may start by offering my thanks to my noble friend for introducing this Question; indeed, I think that he put the case very well. I hope that I can be as brief as my noble friend Lord Morris and the noble Baroness, Lady Goudie, so that we can then listen to the Answer from the noble and learned Lord, Lord Falconer. I am sure that he will be at great pains to explain exactly what the Government are doing and how they are improving the way in which Ministers manage to answer correspondence.
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Like my noble friend Lord Glenarthur, I served in a number of different departments in the late 1980s and in the 1990s, up until May 1997. For example, I served in the Department of Social Security, the Department of Employment, the Ministry of Defence and the Department of Education and Employment. Like my noble friend, I found that every department had its own different way and different systems for dealing with correspondence to Ministers and that coming direct from members of the public. The latter was normally described as "treat as official" and was answered by officials rather than Ministers, whereas Ministers dealt with correspondence from Members of either House. Some departments had a proper correspondence section while others, as my noble friend put it, left it to ministerial officers who then delegated the drafting of the reply to the appropriate section within the department.
Again, there were different systems for dealing with letters from Members of Parliament and those from members of the public. Obviously, as a Minister, I rarely saw—though one did on some occasions—those letters from members of the public. Therefore, I have a less good idea of how the system worked in those cases. Although there were different systems, I remember that virtually all Ministers recognised the importance of getting correspondence right and dealing with it in the appropriate amount of time.
As my noble friend put it—and it was a good way of putting it—the correspondence sections were very much the shop windows of departments. They showed departments as they were. Indeed, I remember that some departments (and this may still be the case) were better than others. The noble and learned Lord, with all his authority in the Cabinet Office, and with a brief that extends over all departments, will probably have some idea as to which departments are better than others. I should not embarrass him by asking which departments he thinks are better or worse than others.
As I said, most Ministers took correspondence very seriously indeed. I accept that there were occasional failings. I certainly had some myself. In particular, I received letters back from Members of another place saying, "The answer sent to me is completely unsatisfactory". From the way in which the noble Lord, Lord Hoyle, looks at me now while nodding his head, I suspect that he might have sent some back to me on occasions. I might then have revised those letters. I also accept that there are some Ministers who were better than others.
I can remember one particular Minister—and I shall not embarrass him by naming him—from whom virtually all correspondence was removed because he agonized over each letter for so long that none ever came through the mill, as it were; indeed, very few were answered. But, in the main, most of them did their task conscientiously and made it their good practice to sign letters which were good ones and to do so in good time. I very much hope that that is still the case, despite the very disturbing example put before the House by my noble friend Lord Glenarthur.

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I also remember that we had targets. I believe that the targets in terms of time originally varied from department to department. However, in the latter years, we had a fairly standadised rule which went through government, which I believe was something of the order of two weeks. With most departments it meant that, if one exceeded that target of two weeks, some sort of note was sent out to apologise for the delay. Again, I hope that most departments were, by that stage, also sending out acknowledgement postcards as soon as they received such letters. However, I appreciate the complaint of the noble Baroness, Lady Goudie, that one does get rather sick of receiving postcards when they come on a regular basis once every two weeks.
Having outlined the case when we were in government, I must confess that I do not know what procedures the present Government have adopted. Therefore, I should like to conclude my remarks by simply asking the noble and learned Lord, in view of all the authority he has as Minister of State in the Cabinet Office, to tell us what time limits now operate. Further, can he tell us whether these are generalised for the whole of government or whether different departments have different time limits? Can he say whether there are procedures in place for when letters exceed such time limits and whether procedures are in place to ensure that acknowledgements are sent out at appropriate times? Finally, perhaps the noble and learned Lord could deal with the question of letters which come direct from members of the public rather than those which come from Members of this House—that is to say, those that inevitably have to be treated as official and have to be replied to by officials rather than Ministers.
The noble Baroness, Lady Goudie, said she wished that all letters were treated with the same diligence. Obviously, for reasons of time, Ministers cannot devote their entire life to signing letters. However, certainly in my time in the Department of Social Security there were times when it felt as though every moment of my life was devoted to signing letters from the likes of the noble Lord, Lord Hoyle.
7.35 p.m.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, I am genuinely grateful to the noble Lord, Lord Glenarthur, for giving the House an opportunity this evening to discuss this important subject. I am also grateful to all speakers who participated in the debate. I have in mind my noble friend Lady Goudie, the noble Lord, Lord Morris, and indeed the noble Lord, Lord Henley.
Noble Lords, MPs and members of the public are entitled to receive a prompt and full reply to their enquiries. I believe this to be a fundamental part of our democratic process. I entirely agree with the designation given by the noble Lord, Lord Glenarthur; namely, that it is the shop window of the Government. Although the Cabinet Office issues guidance on the best practice, it is individual departmental Ministers who are ultimately responsible for the way in which their correspondence, and that of their officials, is handled. It is also individual Ministers who are responsible for setting targets and monitoring performance.
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I believe I should set out the key principles which departments and agencies should follow when hardling correspondence. They are as follows: first, all correspondence should receive a substantive and timely reply; secondly, where a substantive reply is likely to be delayed, an interim or holding reply should be sent; thirdly, every reasonable effort should be made to reply to correspondence within the target time set on Ministers; and, fourthly, target times, together with departments' performance against targets should be published. It seems to me that those are the essential principles and the ones to which this Government seek to live up. I do not believe that there will be much dispute about the validity of those basic principles.
Given the huge volume of letters received by government, it is easy to identify cases where things have gone wrong. It is never excusable when things have gone wrong, but it is understandable in the great volume of correspondence that, from time to time, things go wrong. In parliamentary Answers we have published the detail of the level of correspondence, both from Members of Parliament and from members of the public, that departments are receiving. The Answers were printed in Hansard of the other place on 31st July 1998 at cols. 644 to 646. I shall not go through all those Answers, but perhaps I may give your Lordships some indication of the scale of correspondence that Ministers receive.
In 1997, Ministers received overall about 200,000 letters from Members of both Houses. That obviously divided differentially between departments. However, to give noble Lords an indication of the scale involved for each department, I can confirm that the Home Office, which has been mentioned, received 16,831 letters to Ministers from Members of both Houses during the calender year of 1997, which compared with the previous year's total of 12,072 letters. In 1997 the Department of Health received approximately 14,500 letters while the DSS received 17,500 and the Department of Environment, Transport and the Regions received just under 32,000 letters from Members of Parliament. That is the sort of scale we are dealing with as regards correspondence with Members of Parliament.
I turn now to the position relating to members of the public. Obviously such letters vary in their type; and, indeed, the number ranges from 6,226 received by the Cabinet Office to 85 million received by the Inland Revenue. Therefore one can see that perhaps different procedures might apply in different departments.
What are we doing in order to ensure that the procedures are followed? We know that performance overall can be improved. We are not complacent and we are determined to address this matter. We now publish annual statistics on the handling of ministerial correspondence. The parliamentary answers I have referred to contain those statistics. The statistics include particulars of what the target period is for each department, whether it is 15 days, 20 days, or whatever. They also contain particulars of what percentage of correspondence both from Members of Parliament and from members of the public meet that particular target.

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That transparency is obviously an important discipline as regards making departments reply within the guidelines that are set.
This is the first time that such information has been available. All departments and agencies have been asked to include this information in their annual reports to Parliament. We have also circulated detailed guidance to every department setting out the procedures to be followed when handling correspondence, and to spread best practice. This guidance which is available now in the Library of the House and also available to the public on the Cabinet Office website deals with points such as who is responsible for monitoring that targets are met; what is to be done if targets are not met; and which senior officials are to be responsible if things go wrong. It deals with the kind of issues that the noble Lords, Lord Glenarthur and Lord Henley, have raised.
In addition we wish to spread best practice throughout Whitehall because, as noble Lords have rightly said, performance varies from department to department. There will be a workshop in the spring which will bring together staff from ministerial correspondence units across Whitehall to share ideas and to promote best practice. I believe that individual departments are playing their part as well. Most have developed tailored guidance for their staff and have put systems in place to monitor the quality of replies. Ministers are taking a personal interest in ensuring that their departments live up to the standards they have set themselves. I believe individual Ministers are aware that their reputation both with fellow Members of Parliament and with the public at large depends upon the quality of the replies they give. They are aware that no one out there thinks that an official is responsible. They know that the buck rests with Ministers.
I touch briefly on the point raised by my noble friend Lady Goudie. Increasingly, correspondence is coming in over the Internet. The widespread use of e-mail poses a new challenge for departments in managing their correspondence. It makes government more accessible for many people and raises expectations. E-mail, like the telephone, is often seen as a quick and easy form of communication. We believe that the response targets which apply to traditional forms of correspondence should apply also to e-mail correspondence. The informal nature of many e-mails will usually mean that a quick reply is possible, but it is important that this is not at the expense of quality. We recognise that the increasing use of e-mails raises difficult issues. The Cabinet Office is therefore preparing guidance for departments on the effective use of this medium. I shall ensure this guidance when finalised is placed in the Library of the House and on the Cabinet Office website.
I wish to deal with two final issues. I have mentioned that interim replies should be sent. If a department believes that it will not meet its target date, the policy
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is that an interim reply should be sent explaining this to the person who has written to the Government. I refer to the specific case mentioned by the noble Lord, Lord Glenarthur. The noble Lord was kind enough to alert me in advance to the fact that he would raise it.
It would be wrong for me to go into the detail of the substance of the case but the chronology that the noble Lord gave was entirely accurate. The reason it happened is—as I think is well known—that major changes are occurring in the organisation and working practices of the immigration and nationality directorate in the Home Office. Although that is no excuse, it is at least some explanation. I apologise to the noble Lord for what has happened. His account concluded with the fact that on 8th January he contacted the office of the relevant Minister and a letter followed fairly shortly. The letter indicated that they had not yet been able to locate the file and that a substantive reply would follow. I have made inquiries with the Home Office and I am told that the noble Lord can expect a substantive reply within the next week.
I can do no more than apologise but I ask noble Lords to bear in mind the following. First of all, as the noble Lord and everyone will know, there is a huge volume of correspondence. We are genuinely trying to do our best. We recognise the importance of it and we shall continue to recognise that it is in effect the shop window of government.
Lord Norton of Louth: My Lords, before the noble and learned Lord sits down, I wish to raise one point that arises from what he has said. As he will be aware, an efficiency survey of ministerial correspondence was carried out by the Cabinet Office efficiency unit in 1990. From the figures given in that report and from the figures the noble and learned Lord has given this evening, it appears that the annual volume of letters from parliamentarians to Ministers is maintained at about 200,000 letters. It is interesting to note that the excellent efficiency unit report also identified the cost of responding to correspondence. Given that the volumes have remained the same, can the Minister comment upon cost and whether there have been efficiency savings in terms of the cost of the exercise itself?
Lord Falconer of Thoroton: My Lords, the noble Lord is right to say that the level of correspondence from MPs and Members of this House has remained broadly static. I believe that the level of correspondence as regards members of the public has increased. The question the noble Lord has raised about costs is an important one. I do not have the figures at my fingertips, or indeed anywhere near any part of my body. I hope I may write to the noble Lord with an answer to that question.
House adjourned at fourteen minutes before eight o'clock.

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