Sitting of 19 February 2001

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

Prostate Cancer
Baroness Howells of St Davids Baroness Howells of St Davids asked Her Majesty's Government:
Whether they will now initiate a screening programme for prostate cancer for men aged 50 and above.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, the NHS Plan and the NHS Cancer Plan both committed the Government to introducing a prostate screening programme if and when screening and treatment techniques are sufficiently well developed. The evidence supporting the introduction of a screening programme will he kept under careful review by the National Screening Committee.
Baroness Howells of St Davids: My Lords, I thank the Minister for that Answer. Is he aware of research by King's College hospital and Lister hospital which suggests that black men are more prone to cancer and subject to the most virulent types of cancer? Is the department liaising with or supporting Gordon Muir? His research was drawn to my attention by my noble friend Lord Morris of Manchester.
Lord Hunt of Kings Heath: My Lords, I am happy to take my noble friend's suggestion back to the department. I understand—these findings are based on American data—that there are differences in instances of and mortality from prostate cancer between blacks and whites and other ethnic groups. The National Screening Committee has commissioned a review of the evidence for an increase in instances of prostate cancer in Afro-Caribbean men. If that is identified as a result of the review, we shall of course consider what action needs to be taken.
Baroness Gardner of Parkes: My Lords,
does the Minister recall that on the two occasions on which I have raised this matter we were told that one of the problems was that screening was not satisfactory and that false positives were common? Does he agree how important it is for men from any ethnic group to be aware of the need to seek care and assessment if they suspect that they have symptoms? There needs to be a culture change among all men—younger men in particular, not simply those over 50—to make them aware of the need to see their doctor if they have any doubts.
Lord Hunt of Kings Heath: My Lords, I do not disagree with the noble Baroness's point. She will be
494
aware that there are problems with the PSA test and that, while treatment can be effective, it has some very undesirable side effects. Because of that, the Department of Health is developing an education programme about prostate cancer, which will be published in a few months' time. That will focus on ensuring that when men see their general practitioner they are able to reach an informed decision about the risks and benefits of taking a test.
Lord Morris of Manchester: My Lords, I know my noble friend will recall my correspondence with him and my parliamentary questions over the past four years about the deeply important issue raised so well by my noble friend Lady Howells. But is he aware that the initial research findings of Gordon Muir, the distinguished urologist, suggest a 50 per cent higher incidence of prostate cancer among black men in the King's College Hospital's catchment area? Is there not a pressing need now to make further such research an urgent priority and to alert those who are shown by research in this country and abroad to be at exceptional risk of having inoperable cancer?
Lord Hunt of Kings Heath: My Lords, I thank my noble friend for his comments. I have already made clear that we shall look closely at such research. The point that he makes is borne out by statistics gathered in the United States. I have already said that the NSC will review the evidence that is available in this country, and that that will have an impact on our future policies towards prostate cancer.
Lord Ezra: My Lords, pursuing the matter raised by the noble Baroness, Lady Gardner of Parkes, does the Minister accept that there is growing concern about the situation in relation to prostate cancer and that that concern arises in particular from the fact that what was assumed to be a satisfactory test—the PSA test—is no longer regarded as being satisfactory and that no alternative has been proposed? At the same time, we are told that, if the condition is not diagnosed in time, life can be threatened. Surely the situation demands much greater action than is presently being taken.
Lord Hunt of Kings Heath: My Lords, that is why the Government have increased the resources—to £4.2 million by 2003–04—to be spent on research into prostate cancer and on testing and treatment, which were discussed by the noble Lord. On the PSA test., the problem is that some men with prostate cancer will not have a raised PSA level whereas some men with a raised PSA level will not have prostate cancer. The other problem, which relates to treatment, is that it is estimated that the operation may cause operative deaths of between 0.4 and 0.6 per cent, some incontinence in up to 20 per cent of cases, and impotence in between 20 and 85 per cent of people who are treated, depending on the patient's age. That is why such caution is displayed in this country towards testing and treatment. That is also why we need to ensure that our research effort is as effective as possible.
Lord Elton: My Lords, as a survivor thus far of radiotherapy for prostate cancer, and I hope a

495
reasonably good advertisement for it, I ask whether the noble Lord is aware of the presentation by Georg Bartsch to the American Urological Association Year 2000 annual meeting, which showed that the introduction of PSA screening in the Austrian state of Tyrol, where there are 62,000 men between the ages of 45 and 75, was followed in 1998 by a 42 per cent lower mortality rate from prostate cancer than in the rest of Austria where there is no such screening. Existing techniques were used, which suggests that they are worth pursuing.
Lord Hunt of Kings Heath: My Lords, I am prepared to look at the research to which the noble Lord has referred, but we need to treat such figures and comparisons between this country and other countries with a degree of caution. My impression is that diagnosis of prostate cancer is higher in other countries than in this country because the PSA test is used more frequently in those other countries. However, that would tend to suggest that the survival rate, if equalled out, is not as different as is often claimed because in this country we do not see so many people diagnosed with prostate cancer.
Lord Cavendish of Furness: My Lords, as another survivor of this unpleasant disease through being diagnosed early due to having had a PSA test, I ask the Minister not to accept that the level of false positives is grossly exaggerated. Does he accept that many treatments for women with the same level of false positives are supported by the Government? Does he also accept that most doctors, and nearly all sufferers, believe that that policy is driven more by the Treasury and less by considerations of health?
Lord Hunt of Kings Heath: My Lords, I congratulate the noble Lord on his experience. The Government received advice, not from the Treasury, but from the National Screening Committee. We continue to follow the advice of that committee, which is that using current techniques for testing and treatment there is no evidence that a screening programme would save lives. As I said, the Government are not complacent. We have stepped up by many hundreds in percentage terms the amount of money spent on research in this important area.

Parliamentary Ombudsman on Access to Official Information: Report
2.45 p.m.
Lord Goodhart Lord Goodhart asked Her Majesty's Government:
What is their reaction to the report of the Parliamentary Ombudsman on Access to Official Information for April to December 2000.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, the Government welcome the Ombudsman's report. The Government agree with his conclusions that there can
496
be no excuse for some departments to fail to deal effectively with requests under the code of practice. Recently the Permanent Secretary at the Home Office has written to his colleagues to remind them that they are required to comply fully with the provisions of the code.
Although not complacent about the failings identified by the ombudsman, we should recognise the Government's achievements in promoting openness. In 1995, there were 44 complaints to the ombudsman about non-disclosure under the code. I am happy to report that in 1999 that number reduced to 36. In 1995, 8.4 per cent of requests under the code were refused and in 1999 that had reduced to 6.3 per cent. The Government have, through the Freedom of Information Act 2000, provided, for the first time, a wide-ranging statutory right to information. When implemented, the Act will replace the code and, in particular, will provide a free and direct means for the public to enforce and to access their rights.
Lord Goodhart: My Lords, naturally I welcome what the Minister has said, but does he agree that that is a wholly unacceptable standard for the moment? Will the Government ensure that the kind of attitudes shown up in the ombudsman's report are wholly eliminated before we move from the code of conduct to the Freedom of Information Act?
Lord Bassam of Brighton: My Lords, this is one of those areas where there is broad political agreement, certainly between the Benches of the noble Lord and our own Benches. Yes, of course, we need to tackle the culture of secrecy that, over many decades, has taken root in some parts of our institutions. I cannot give an undertaking that we shall root out all of that before we implement the Freedom of Information Act, but the training and the learning exercise that needs to take place to deal with that problem is important.
I believe that departments are robust in dealing with complaints where the ombudsman has upheld them. I congratulate the ombudsman and the departments on their positive responses, as noted in the report. Progress has been made, but there is more to do. We are proud to have introduced the Freedom of Information Act. However, we know that we have a long way to go in tackling that culture of privacy and secrecy that, at times, is all too pervasive.
Lord Archer of Sandwell: My Lords, has my noble friend noticed that in case after case, even where the outcome has been satisfactory, the ombudsman criticised the way in which the request for information was initially dealt with and, in his introduction, pointed out that some departments appear even now not to recognise that requests for information have to be dealt with under the code? When may we expect to see a proper training scheme in place for all staff, as was discussed during the debates on the Freedom of Information Bill?
Lord Bassam of Brighton: My Lords, I cannot be specific about the dates for the commencement of training, but of course, we need to have a lead-in so that departments can deal effectively with such issues. Training will be absolutely critical. The need for a national roll-out plan is urgent and we are in the process of preparing one. Although the Act provides us with up to five years to introduce roll-out training and so on, we would expect to bring matters forward much sooner than that.
Lord Cope of Berkeley: My Lords, will there be full disclosure of the invitation list for the recent party for lawyers given by the noble and learned Lord the Lord Chancellor, or is that secret?
Lord Bassam of Brighton: My Lords, I would take such questions seriously if the party opposite had, during its 18 years in government, introduced a Freedom of Information Bill.
The Countess of Mar: My Lords, may I, through the Minister, express my gratitude to the noble Lord, Lord Hunt of Kings Heath, who in response to a Question which I tabled for Written Answer valiantly fought to obtain the names of members of a working party? I received his reply today and I am most grateful to him.
Lord Bassam of Brighton: My Lords, I am always pleased to receive congratulations from wherever they come.
Baroness Carnegy of Lour: My Lords, would the Minister mind answering the question posed by my noble friend Lord Cope?
Lord Bassam of Brighton: My Lords, I believe that I made my position perfectly clear on the matter and I believe that most Members of your Lordships' House agree with me.
Lord Cope of Berkeley: My Lords, does the Minister still not recognise that the code of practice was stronger than the Freedom of Information Act?
Lord Bassam of Brighton: My Lords, the Government's Freedom of Information Act is a profound piece of legislation. I believe that it is as profound as the Human Rights Act. I believe that, over time, it will change the culture of secrecy which many in your Lordships' House sought to defend for far too long. I believe that our Act is effective and robust and provides an important right of access for the people of our country.
Lord Peyton of Yeovil: My Lords, will the Minister stretch his mind far enough to accept the possibility that answering a question and making his own position clear are not necessarily the same thing?
Lord Bassam of Brighton: My Lords, I believe that they are pretty roughly adjacent.

US Missile Defence Plans: Reaction
2.51 p.m.
Baroness Williams of Crosby Baroness Williams of Crosby asked Her Majesty's Government:
What representations, if any, they have made in response to the United States Government's statement that they propose to go ahead with sea and space-based national missile defence systems; and whether consultations on the issue among the NATO allies have now been scheduled.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, the new US Administration, while stressing their commitment to national missile defence, have made no decision on the development or deployment of a specific system. The US has made clear that prior to making any such decision it will consult fully with allies, with Russia and with others. We expect formal consultations to be scheduled with NATO allies once the US has developed its thinking further.
Baroness Williams of Crosby: My Lords, I thank the Minister for that Answer. However, the Prime Minister recently implied that if there were to be such requests from the United States, he would be inclined to give a positive reply. Is the Minister aware of the deep concern among many of our European Union allies, including those who are loyal allies of NATO, such as Germany and Italy? Would the Government support efforts made in particular by the German Government and others to try to bring Russia and possibly China within a negotiation that would allow the ABM treaty to survive and any possible NMD initiative to be associated with large-scale disarmament proposals under the Start 2 and Start 3 treaties?
Baroness Scotland of Asthal: My Lords, we fully understand how serious and sensitive the issue is but I reaffirm what I said in my Answer. The United States Government are determining how to take the matter forward and they have come to no conclusion in relation to the specific form. It is also clear that the issue is a matter of anxious debate with our European allies and with the Russians. We are comforted by the statements made in particular by Colin Powell that those concerns will be taken into account and that consultations will continue. We believe that we should be fully involved in that situation and we will take those discussions further.
Lord Marsh: My Lords, while it is reassuring to know that the United States will consult with friendly and major nations on the subject, can we have an assurance that the British Government will consult with the British Parliament?
Baroness Scotland of Asthal: My Lords, your Lordships will be aware that in any matter which needs to come through this House or the other place the Government have always honoured their responsibility.
Lord Judd: My Lords, does my noble friend agree that in the hard realities of the age in which we live real dangers face us in the sphere of international terrorism and the possible use of nuclear/chemical weapons by unorthodox means? Does she further agree that before we go down the road of "gi-normous" expenditure, it would be as well to examine how far such a system would defend us against the real and likely attacks which lie ahead?
Baroness Scotland of Asthal: My Lords, I repeat that I understand the anxiety that has been generated by the issue. It is serious and sensitive. However, noble Lords will know that we undertook our own Strategic Defence Review in 1998 and as far as we are concerned that review stands. We shall continue to identify those issues which best serve the safety and security of the British people. That is not to fail to recognise the threat. We understand and sympathise with it.
Lord Blaker: My Lords, did not the Foreign Secretary say in Washington on 7th February, as reported in the Financial Times the following day, that an American national missile defence system could yield a net gain? Would the Minister spell out for us his thinking in saying that?
Baroness Scotland of Asthal: My Lords, my right honourable friend the Foreign Secretary during his recent visit to Washington made clear that we fully understand and share the concerns of the United States about the threat from weapons of mass destruction and their means of delivery. The Foreign Secretary and the Secretary of State Colin Powell agreed that we should work together to do all we can to strengthen the international regime against missile proliferation.
National missile defence would be one element of the new Administration's response to the threat and it is not in British interests for our closest allies to feel vulnerable to attack. However, as I have said twice, the new Administration have made clear that they have no firm views on a specific system. Therefore, we must take this stage by stage and not run before we have decided in which direction to walk. We will treat the matter with the same probity and judicious judgment that we have used in the past. The nation's security will remain our priority.
Lord Avebury: My Lords, will the wonderful Freedom of Information Act allow the British public to have access to the details of the agreement we have made with the Americans on the use of Fylingdales and the Mendip Hills and any changes which may be necessary to that agreement in order to accommodate the NMD process?
Baroness Scotland of Asthal: My Lords, I do understand. I wish that noble Lords would not run away on certain premises which are false. We have not been asked as yet for use of any of the facilities which
500
the noble Lord described. If and when a request is made by our US allies, we will consider it and make a judicious judgment. That date has not yet arrived.
Baroness Rawlings: My Lords, is the Minister aware that the US Secretary of Defense, Donald Rumsfeld, told a conference held in Munich on 3rd February that America had a moral duty to press forward with the programme and wanted to discuss how to help the European nations and other allies to deploy missile defences? Does the Minister believe that it would be better for this country to be brought under the protection of a Russian missile defence system rather than a US-led NATO one? Does the Minister not agree that to work with the US rather than against it is the best way to proceed?
Baroness Scotland of Asthal: My Lords, perhaps I may say this, it is to be hoped, clearly and for the last time. We will work energetically with our oldest allies, the United States. This is an issue which we have been working on for quite some time. Noble Lords opposite should be left in no doubt that we understand the ambit of this issue and we will work with energy with all our allies. We are comforted by the fact that America and Russia are talking together about the self same issue.

Agrimonetary Compensation
3 p.m.
Lord Kimball Lord Kimball asked Her Majesty's Government:
Why the available agrimoney has not been claimed in full in the United Kingdom.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Hayman): My Lords, the Government are providing £629 million of agrimonetary compensation, of which £233 million is optional, in recognition of the pressures faced by the agricultural industry. Agrimonetary compensation is partly compulsory and partly optional. Because much of the cost falls to the British taxpayer, either directly or indirectly through the Fontainebleau abatement, decisions on whether to pay the optional elements must be taken in the context of priorities for agriculture and other expenditure.
Lord Kimball: My Lords, I thank the Minister for that Answer. I ask the noble Baroness: why not, bearing in mind that the amount of money will run out in the course of the next two months and the incoming government will find it even more difficult, because if the full amount is not claimed this year the amount reduces next year?
Baroness Hayman: My Lords, I understand the point that the noble Lord makes. However, our policy remains what it has been in the past. On every occasion when agrimonetary compensation has become available, we have looked carefully at the state of the industry and the prospects of the sectors concerned, as

501
well as at other calls on the UK exchequer. We shall examine the optional compensation, the details of which we shall learn at the end of this month, on the same basis.
Lord Tomlinson: My Lords, does my noble friend agree that essentially the impact of the Fontainebleau mechanism to which she referred in her Answer is that the UK remains responsible for paying the whole of it by virtue of lost income to the Chancellor of the Exchequer? In those circumstances, nowadays is it not perhaps much more effective to concentrate on fundamental reform of the common agricultural policy, which will certainly be necessary if British farmers are to survive in an enlarged European Union?
Baroness Hayman: My Lords, I have a great deal of sympathy with the point that my noble friend makes. It is wrong to represent agrimonetary compensation, as sometimes happens, as some kind of free good from Europe. Because of the rebate, the payment of only the EU contribution costs UK taxpayers about 71p for every pound spent, and when it involves matched funding the figure rises to 85p in the pound. As I said in response to the noble Lord, Lord Kimball, that is the reason why we have to look at whether the money is best directed at sustaining people in what are admittedly very difficult circumstances or trying to support them in the restructuring of agriculture for sustainable incomes in future.
Baroness Williams of Crosby: My Lords, can the Minister say whether there is any real conflict between the two? The Minister is well aware of the tremendous damage done to agriculture as a result of the difference between the high value of sterling and the cheaper euro, in addition to the BSE crisis and several others. Does the Minister agree that it is wise for the Treasury to match the funds available under the agrimonetary compensation scheme? Does she recognise that there is a very strong case for adding the problems of the agricultural industry to the five criteria which the Chancellor will consider in giving advice on whether or not this country should enter the euro-zone?
Baroness Hayman: My Lords, the criteria which the Chancellor will consider have been made absolutely clear in the past, and I am not sure that it would be of assistance to add to that at this stage. However, the noble Baroness makes the important point that the difference in the value of currencies has been one of the main difficulties faced by the agricultural industry. That is why £629 million in agrimonetary compensation has been drawn down in sectors like cereals, which may surprise people. However, this is public expenditure, and we must look not only at short-term support but also at the issue to which my noble friend referred—reform of the CAP—as well as at transfer into the rural development budget.
The Countess of Mar: My Lords, can the Minister say whether the ewe premium comes into agrimonetary compensation? Does it come directly
502
from Brussels or does the Treasury have some part to play in it? If it is the former, can the Minister confirm that last year the Ministry overestimated the British sheep flock by 1 million, which represents a considerable loss? I have worked out that the loss to British farmers is about 50p per ewe.
Baroness Hayman: My Lords, I am not sure about the difficulties which may arise in terms of estimates of the national flock, and on that point I shall write to the noble Countess. The sheep annual premium is the difference between a Community-wide target price and average sheep prices on the Community market. If market prices are high, the SAP rate is low. Market prices in member states are reported to the Commission in national currencies. The Commission converts them into euros using current market rates. If the euro is weak, the conversion will provide higher euro rates nearer the target price, thus producing a lower rate of premium. I understand that the Commission is concerned about how the calculation is working currently and is looking at proposals which potentially make it slightly simpler.
Lord Boardman: My Lords, I declare an interest as a farmer. Does not the effect of the Minister's reply mean that the agricultural community is being deprived of funds from Europe to which it is en titled and which it desperately needs?
Baroness Hayman: My Lords, I have tried to make clear in my responses that we are not being deprived of funds from Europe. All the mandatory agrimonetary compensation is, by definition, mandatory and is drawn down. Decisions about optional agrimonetary compensation are taken by every eligible country on the basis of national circumstances. In this country the national circumstances are such that, because of Fontainebleau, compensation involves large amounts of UK rather than EU expenditure. Therefore, questions about the proper disposition of public expenditure come into the equation.
Lord Dubs: My Lords, does my noble friend agree that for British farmers the best way forward would be a substantial reform of the CAP, as her right honourable friend Mr Nick Brown endeavoured to bring about during the Agenda 2000 discussions in Brussels? Does my noble friend agree that reform of the CAP would help British farmers and in achieving European Union accessions?
Baroness Hayman: Yes, my Lords.

Iraq
3.7 p.m.
The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean): My Lords, with the leave of the House I should like to make a Statement about coalition operations to enforce the no-fly zones over Iraq. Since the end of the Gulf conflict in 1991, the goal

503
of our policy has been to contain the threat to regional security posed by Saddam Hussein's Iraq. This policy has been successful. Without our efforts, Saddam would have been free to maintain and develop his weapons of mass destruction and military capability, and he would have been free to bully and threaten his neighbours with impunity as he did in the past. As we approach the anniversary of the liberation of Kuwait, we can look back with satisfaction that these aims have been achieved.
As your Lordships will be aware, coalition patrols of the no-fly zones have been conducted since the early 1990s in support of UN Security Council Resolution 688, which demanded an end to Saddam Hussein's repression of his own people. They have served a vital humanitarian purpose over the past decade in limiting Saddam's ability brutally to repress the Shias and the Kurds. Without them Saddam would be free, as he was prior to their establishment, to use aircraft and helicopter gunships to further his barbarous ends. The patrols are justified in international law as a legitimate response to prevent a grave humanitarian crisis.
Since January 1999 Saddam's air defence units have mounted sustained and concerted efforts to shoot down coalition aircraft conducting this legitimate task. Over that period there have been over 1,200 attempts to shoot them down, using surface-to-air missiles and anti-aircraft artillery. Coalition aircraft have rightly been authorised to respond to this aggression in self-defence, and have done so on some 250 occasions over the past two years. They do so entirely within the constraints of international law, attacking only those military facilities that contribute, as part of the Iraqi integrated air defence system, to the threat to coalition aircraft. All targets are carefully selected with a view to minimising and, if possible, avoiding civilian casualties.
Military commanders have been able to manage this risk, with 2000 seeing a reduction in the number of threats compared with 1999. Over the past few weeks, however, the Iraqis have redoubled their efforts which amount to a qualitative and quantitative increase in the threat to coalition aircraft. January saw more surface-to-air missile firings than were effected in the whole of 2000. We have seen the Iraqis using innovative tactics, including the use of radars and command centres located outside the southern zone to cue offensive systems, linked by a new secure communications network, within it. The threat is real: Saddam Hussein is trying to kill our aircrew.
Friday evening's action was planned and carried out against that background. It was a proportionate response in self-defence, taken solely in order to reduce the risk to our aircrew carrying out routine patrols of the southern no-fly zone. As such, it was entirely in keeping with all such operations conducted over the period since January 1999 when Iraq started challenging our patrols.
The operation was carefully planned and cleared by Ministers on both sides of the Atlantic. Targets were carefully selected and precision guided weapons used to minimise and, if at all possible, avoid the risk of civilian
504
casualties. In all, six sites were engaged, comprising elements of the Iraqi integrated air defence system, including radar, command and communications sites. Five of the targets were north of the zone, ranging up to no closer than 10 miles from Baghdad. All were directly involved in threatening coalition aircraft. Aircraft conducting patrols of the northern no-fly zone have previously engaged targets south of the 36th parallel, but this is the first time that coalition aircraft have attacked targets outside the southern no-fly zone—above the 33rd parallel—since Operation Desert Fox.
RAF participation included four Tornado GR1 strike aircraft, two Tornado F3 air defence aircraft and two VC10 tankers. All aircraft returned safely. Although detailed battle damage assessment is still ongoing, initial reports are that our attack was successful with weapons impacting on or very close to the targets. We are confident that the mission degraded the Iraqi air defence system and reduced the threat to coalition pilots.
We cannot confirm Iraqi allegations of civilian casualties. No military action is without risk, and we deeply regret any casualties. But we learnt long ago to distrust Saddam Hussein's claims. He routinely claims that there were civilian casualties on days when coalition aircraft have not released weapons; and we know that on occasions he has alleged civilian casualties when only military personnel have been injured. We suspect that to be the case on this occasion.
The operation was conducted in response to an escalation on the part of the Iraqis. It does not represent a change in policy. RAF aircrew undertake a difficult and dangerous mission with great skill and fortitude. Faced with a substantial increase in the threat to them in recent weeks, we had no choice but to act to protect our people. All this could stop now if Saddam stopped trying to kill our aircrew.
3.13 p.m.
Lord Burnham: My Lords, the House is very grateful to the Minister for the Statement. However, the Minister rose to speak at seven minutes past three. We received the Statement at 2.41 p.m. That really—I suspect I speak too for the spokesman from the Liberal Democrat Benches—has not given us sufficient time to make a reasoned response. I must ask that in future more consideration is given to the Opposition parties.
Having said that, on these Benches we believe that the action was fully justified. Ten years on from the Gulf War Saddam Hussein is still a source of aggression in the Gulf. The need for the Government to develop a resolute policy is as strong as ever. The no-fly zones were essentially the invention of my right honourable colleague John Major. It is appropriate that from these Benches we should support fully the current policy.
The Minister made it clear that Friday's air strikes were against military targets, including radar and command and control sites, around Baghdad. The attacks were aimed at defence installations which threatened allied warplanes in one of the no-fly zones.

505
President Bush stressed that it was a "routine" enforcement of the no-fly zones. If the no-fly zones are to be supported, the need to use our air power preemptively from time to time against Iraq's anti-aircraft missile system is an inevitable consequence of our continuing to enforce the no-fly zones.
The Minister made the point that the no-fly zones are the inevitable consequence of Saddam Hussein's continued persecution of his minorities—the Kurds in the north and the marsh Arabs in the south. Our patrols have successfully prevented Saddam Hussein from using his helicopter gunships and using air-delivered chemical weapons to wage war against these minorities, which he did previously. The Iraqis cannot be allowed to do that with impunity. They have been playing a game of cat and mouse with our jets, and have tested the scope of the no-fly zone.
The Minister stated the major increase in surface-to-air missile figures for the month of January. Even if these missiles are not fired, it is not possible for an aircraft, or any of its systems, to decide whether the radar or system facing it is actually loaded and is intended to be fired. It is right that we should do all we can to ensure that the threat to our airmen flying patrols over Iraq is reduced as far as possible. For years Saddam Hussein has built up his weapons of mass destruction, including biological weapons. He has increased their range. He has possibly even come near to the possession of nuclear devices. He poses a serious and growing threat, both to the region and to Europe.
I have some questions. First, what happens now? Does this presage the tightening of sanctions against Iraq? What is the attitude to the regime and to the ballistic missiles? We note that when push comes to shove it is the United States and Britain who stand up and actually act to protect the minorities and the countries which are affected by dictator-run regimes like Iraq. We have had no response from Germany, and, with the response we have had from France it is clear that the other countries are not so resolute in their determination to act in the way that we have done.
I have one further point. If matters get worse—Saddam Hussein has been threatening retaliation as a result of these strikes—will the United States and this country and other countries be able to act as they did in 1991? Will they be able to produce the firepower and the activities that will once and for all ensure that Saddam Hussein is unable to behave in the same manner as he has for the past 11 years?
3.19 p.m.
Lord Wallace of Saltaire: My Lords, we on the Liberal Democrat Benches support the action which has been taken within the limited context in which it has been taken. Clearly, any action which lessens the danger to British pilots and aircraft is necessary. We have no illusions about the nature of Saddam Hussein's regime. However, we are concerned about the long-term context in which this action has taken
506
place and about the dangers of continuing with an action for which the strategic rationale appears less and less convincing.
We are also concerned about the wider Middle East context of the action taken against Iraq against the background of the most serious situation in the Arab-Israeli conflict that we have seen for some years. Anything which contributes to increasing Saddam Hussein's popularity among Arab radicals in the current circumstances should not be done lightly.
We are also somewhat concerned about the overuse of the term "humanitarian intervention". We have already heard in other contexts from the Russians that humanitarian intervention seems to them to be being used by the United States as an all-purpose justification for unilateral intervention in defence of western interests as defined by the United States. We see this as containment, as the Statement says at one point, but the humanitarian elements seem to us less clear than they were 10 years ago, given that the United Kingdom is not committed to the division of Iraq and that the prospects for a change of regime are rather less optimistic than they were.
There are reports in the newspapers that there are to be talks on 26th February between the United Nations and Iraq on the inspection regime. I note that the Egyptian Foreign Minister, Mr Amr Moussa, is quoted in one of today's newspapers as saying that this action could seriously undermine those talks. I note that the non-White Paper, The Future Strategic Context for Defence, states on page 17 that the UK has an important role to play in preventing misunderstanding between the United States and European partners. How are we playing that role at the present moment and what plans do we have to consult with our allies in the EU as well as the with the US? What plans are there for the British Government to reconsider the long-term guidelines for the containment policy?
3.23 p.m.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lords, Lord Burnham and Lord Wallace of Saltaire, for the support they have offered Her Majesty's Government in the action that has been taken in reinforcing our position in the no-fly zones. I am sorry that the noble Lord, Lord Burnham, was disappointed by the short notice he had in receiving the Statement. I asked for the Statement to be somewhat fuller than it was in its original form. I believe that in so doing, although there may have been some slight delay, I was able to present more information to your Lordships as a result. It is always a difficult issue trying to balance both the time given to Opposition parties, which I recognise is very important, and trying to get as much information into a Statement as possible.
The noble Lord, Lord Burnham, is quite right that the no-fly zones were established under the previous Prime Minister, the right honourable Mr Major, and of course we have continued to support those no-fly zones throughout the lifetime of this Government.

507
Indeed, when the Iraqis started to attack the coalition aircraft, that did not deter us in any way. I am grateful to both noble Lords for recognising that.
The noble Lord, Lord Burnham, described the Friday night air strikes as pre-emptive. But actually they were a response to the increased activities of the Iraqis. I wish to make it clear to the House that this could all stop if only the Iraqis would stop trying to shoot down coalition aircraft. I remind the House that in January this year there were more attacks than we saw in the whole of last year. To have more attacks in a single month than in the whole of last year represented a significant increase.
It is important for us to remember why the no-fly zones were established. The noble Lord, Lord Wallace of Saltaire, was concerned about what he described as the overuse of the word "humanitarian". The noble Lord does not need to be reminded of the appalling atrocities that were carried out against Halabja in the north no-fly zone, when more than 5,000 civilians were murdered by the activities of Saddam Hussein's forces. The Shias and the marsh Arabs in the southern no-fly zone suffered appalling attacks as a result of the activities of Saddam's helicopter gunships. I believe that the no-fly zones and their protection are at the heart of what we are talking about.
Both noble Lords asked what will happen now. We believe that we have taken out some of the offensive capacity. As I hope the Statement made clear, we are still assessing just how much of that offensive capacity we have been able to deal with. That will be important if it means that there are fewer attacks on coalition aircrew as a result. However, the basic policy remains the same—the pursuit of UNSCR 1284, a resolution that was supported in the United Nations not only by the coalition but also by the Arab nations.
The noble Lord, Lord Burnham, asked what will happen if the situation gets worse. If it gets worse, that will have to be assessed against the threat as it evolves. It is difficult to answer that question hypothetically, but, as all of us will be aware, it is an issue which demands constant vigilance, as indeed it has, from the coalition forces. We did not go into this action lightly. Of course the issues around the delicacy of the Middle East peace process have been considered very fully, but I am glad not to be having to stand before the House today to present noble Lords with a Statement about our aircrew having been shot down. The House must recognise that that was the possible alternative if we had done nothing to try to take out these installations.
We all recognise that Saddam Hussein has never wasted an opportunity to present himself as a champion of the Arab cause. Those of us who know the Gulf states and the Middle East will realise how deeply embarrassing many of his Arab neighbours find his self-portrayal in that way.
The humanitarian basis of establishing the no-fly zones is at the heart of what has been going on here. Of course we should like to see the inspections resumed. That is clear in UNSCR 1284. And of course the noble Lord, Lord Wallace of Saltaire, is entirely right.
508
Consultations on this matter should not be just across the Atlantic; we also have to consult closely with our allies in Europe and elsewhere. We have to put before them the incontrovertible evidence that we have about the way in which Saddam Hussein has been building up his military capability to try to shoot down coalition aircraft. That is why this action was so necessary.
3.29 p.m.
Lord Shore of Stepney: My Lords, I thank my noble friend for making the Statement and assure her that as long as we have no-fly zones none of us will seriously object to making certain that our aircraft are properly protected or are able to protect themselves. However, is not the problem that the relevance of the no-fly zones to our real purposes in dealing with Iraq is not now as clear as it was?
As my noble friend reminded us, Saddam Hussein remains a major threat to stability in the whole area. I should like to think that weapons of mass destruction are not again being, as it were, recreated in Iraq. But what can we do about getting the UN inspectorate back into that country in order to make certain that Saddam Hussein has not been able—we know how near he was—to manufacture nuclear weapons and other weapons of mass destruction?
Furthermore, how do we propose to react to his reiterated public threat made only a week or two ago to the independence of Kuwait? While I do not object to our actions, what we are dealing with here is only one symptom of the major problem.
Baroness Symons of Vernham Dean: My Lords, as my noble friend pointed out, for so long as the no-fly zones are in place, we must ensure that our aircrew are properly protected. My noble friend went on to question the relevance of the no-fly zones. I do not think that my noble friend should believe for one moment that the threatening stance adopted by Saddam Hussein towards the Kurds in the north of his country and the marsh Arabs in the south has in any way abated. Indeed, my noble friend himself pointed out that, within the past few weeks, Saddam Hussein has once again threatened Kuwait. That being the case, I believe that we are justified in drawing the conclusion that Saddam Hussein still harbours very considerable territorial ambitions in the region and that he continues to be extraordinarily ruthless. We are well aware that he has the ability to feed his people. However, Saddam simply does not care to feed some of his people. That has resulted in a great deal of the anguish and difficulty within Iraq itself.
My noble friend asked what we can do here. We have a vehicle with which to deal with Saddam Hussein; namely, the United Nations Security Council Resolution 1284. We should not lose sight of the importance of that Security Council resolution. It was secured through the United Nations. It has enjoyed and still enjoys the support of the entire United Nations. It does, of course, point the way towards sanctions, but it should be remembered that those sanctions could cease tomorrow if Saddam Hussein

509
were to allow the inspectorate back into Iraq. It is that which is so necessary: inspectors must be allowed back into Iraq. That has to be done because we have been given no reason whatever to believe that Saddam Hussein is not still pursuing his programme of developing weapons of mass destruction.
Lord Renton: My Lords, while fully supporting the action which has been taken, for the removal of doubt will the noble Baroness confirm that the joint decision with the United States Government had nothing to do with a Republican, President Bush, being elected as President of the United States?
Baroness Symons of Vernham Dean: My Lords, I am happy to confirm that. The decision was taken in order to protect coalition aircrew. It was a legitimate decision which had nothing whatever to do with the political parties to which anyone belongs. I am absolutely confident that, were the opposition party to be in power in the United Kingdom, it would have taken the same decision as Her Majesty's Government. On that, I do not think there can be any doubt.
The Lord Bishop of Birmingham: My Lords, in the Churches we are aware of the brutal character of Saddam Hussein's regime towards his own people. Furthermore, one must remain aware of issues of safety for our pilots. One appreciates the dilemma in which Her Majesty's Government found themselves when faced with escalating attacks last month, which the noble Baroness described to us. Nevertheless, one hopes that the Government are aware of the considerable and longstanding disquiet in the Churches about the effects of this country's policies towards Iraq and its people. This disquiet is grounded in no small part on our contacts with the considerable Christian communities whose ancient home is in Iraq. Does the Minister accept that history will judge last Friday's actions above all by two criteria: first, in the wider context, will they turn out to have served peace or the increase of tension; secondly, what will they have done for the ordinary people of Iraq?
Baroness Symons of Vernham Dean: My Lords, I do not think that anyone could fail to be aware of the disquiet felt not only in the Churches, but also among many people of good will about the effects, as they see them, of sanctions in Iraq. However, I would say to the right reverend Prelate that that is not the direct effect of sanctions; it is the direct effect of the way in which Saddam Hussein chooses to use sanctions as an excuse to withhold from his people the food, medicines and humanitarian equipment that they could so easily be given under the auspices of UN Security Council Resolution 1284.
We have no quarrel with the Iraqi people. I do not know how many times I have said those words from this Dispatch Box. My noble friend Lady Scotland of Asthal has said exactly the same. However, when the right reverend Prelate asks me how history will view this action, I answer by saying that I hope that history
510
will recognise that the enforcement of the no-fly zone has protected a considerable number of people on Iraqi territory. We must not forget that. What would happen if the no-fly zones did not exist? We might then find ourselves discussing another incident such as Halabja. We might be discussing further clearances of the marsh Arabs and the brutal repression of people living in the south of Iraq. It is enormously important not to lose sight of why the no-fly zones exist.
I understand absolutely the fears and concerns articulated by the right reverend Prelate as regards the ordinary people of Iraq. However, I hope that history will remember that, over the past few years, Saddam Hussein has built no fewer than 48 palaces, many of them furnished with gold-plated taps and other accoutrements. A splendid new park has been created for the pleasure and delight of senior officials, which ordinary people will never see. While children may fail to be given food, there are no shortages whatever of whisky and cigarettes for those in favour in Iraq.
Lord Merlyn-Rees: My Lords, what is the nature of the joint activities announced today between the armed forces of the United States of America and Israel in southern Israel? Given the timing, is there any connection whatever between what is taking place in Israel and the coalition forces for Iraq?
Baroness Symons of Vernham Dean: No, my Lords, we understand that the previously planned joint US-Israeli exercise is entirely unconnected with the attacks on Iraq.
Lord Hardy of Wath: My Lords, does my noble friend accept that, if our aircrew are required to fly in harm's way, then the Government are obliged to seek to reduce the peril that they face? Does my noble friend further accept that the Government would be justified in suggesting to politicians of member states of the EU and those in other parts of Europe that, if they tacitly accept, perhaps endorse, or in some cases, service this abominable regime, then they are hardly entitled to criticise actions taken either by the Government or our aircrew, who are implicitly serving the humanitarian cause?
Baroness Symons of Vernham Dean: My Lords, I believe that not only are we right to keep our aircrews out of harm's way as far as possible, but that it is our absolute duty so to do. Those who choose to criticise what has happened over recent days must ask themselves about the realistic alternative to what we have done. The alternative would be to abandon the no-fly zones and thus to expose innocent people living in the north and the south of Iraq to a brutal, murderous regime. I put it in those terms not because we think that it might happen, but because we know that it has happened and we are quite sure that it would happen again.
Lord Gilmour of Craigmillar: My Lords, the noble Baroness has repeated several times the word "coalition". Is not the coalition in this case quite

511
remarkably small? Is that not the case because virtually every other country is fully aware that the policy which has now been pursued for over 10 years has conspicuously failed and is probably illegal? Is it not therefore time for a reassessment of the position? If the Government, quite rightly, are so concerned about the savage repression of people in southern Iraq, what are they doing about savage repression in Palestine?
Baroness Symons of Vernham Dean: My Lords, the noble Lord is, of course, quite right; the coalition consists of the United States and the United Kingdom. I did not mean to imply anything more or less. I thought I had made it perfectly clear who was involved in the coalition and I certainly did not mean to imply otherwise. I do not think that the noble Lord really thought that I did.
The fact that others do not wish to join the coalition does not mean that what we are doing is not right. Sometimes one has to have the courage to do what is right, even where others choose to criticise. It is not illegal either. It was not illegal to establish the no-fly zones—which were established when the noble Lord's party was in office—and it is not illegal for us to defend our aircrew having established those no-fly zones.
The noble Lord will know that Her Majesty's Government offer friendly, critical advice and concern where it is merited to other countries. It is not fair to imply that no such criticism is ever made of actions elsewhere when we believe it is merited. Where it was due, I have certainly offered such criticism from this Dispatch Box, as has my noble friend Lady Scotland. I do not think that it is right and proper, in all conscience, to compare the democratically elected regime in Israel to the brutal repression of innocent people which has taken place so barbarically in Iraq.
Lord Judd: My Lords, while my noble friend has, very convincingly, explained the Government's position so far as concerns the actions over the weekend—the whole House will respect that—does she agree that it is true, as the noble Lord, Lord Gilmour, emphasised, that central to what we face is the continued presence of Saddam Hussein and everything that he represents? Can she assure the House that when the Prime Minister goes to Washington in the near future, high on the agenda will be the need to agree with the Americans and others a political strategy for a lasting solution in the area involving the effective dispatch of Saddam Hussein? We can then stop talking about what is necessary for containment and start talking about how we build peace and security in the region.
Baroness Symons of Vernham Dean: My Lords, I must remind my noble friend that it has never been the aim of Her Majesty's Government's policy to remove Saddam Hussein. I have listened with some concern to some of the commentary over the weekend to the effect that our presence in the no-fly zones has been a failure because it has not resulted in Saddam Hussein's fall
512
from power. Our presence there concerns trying to ensure that the people covered by the no-fly zones do not suffer brutal oppression. We have also been concerned to control Saddam Hussein's programme for weapons of mass destruction through the use of Security Council resolutions.
Much as we may despise and abhor how Saddam Hussein has behaved, it is a matter for the Iraqi people to decide who governs them. We have not sought to remove him by force but to control the threat that he poses to the region. I am sure that my right honourable friend will discuss these matters when he visits Washington. I am sure that he will discuss lasting solutions not only to the issues in the Gulf—particularly in relation to Iraq—but to the wider issues in the Middle East as a whole.
Lord Peyton of Yeovil: My Lords, does the noble Baroness agree that the Iraqi people have limited opportunities to get rid of this tyrant? Does she further agree that the immediate, almost reflex, reaction of some of our European allies goes a long way towards enhancing the fears and anxieties which many of us have about the proposed European rapid reaction force?
Baroness Symons of Vernham Dean: My Lords, I agree with the noble Lord, Lord Peyton, on one point; that is, that the Iraqi people, sadly, do have very limited opportunities to get rid of their leaders, unlike, if I may say so to the noble Lord, Lord Gilmour, the people of Israel, who have demonstrated that they are able so to do.
The noble Lord, Lord Peyton, may recall that we had discussions with opposition parties from Iraq about ways in which the opposition might be strengthened. That is a very different matter from getting directly involved in a military overthrow of Saddam Hussein.
I do not believe that there is any connection whatever with the European rapid reaction force. We are evolving that force with our friends and colleagues across Europe in relation to humanitarian tasks we are able to agree and where NATO as a whole will not be engaged. I genuinely believe that the noble Lord seeks to draw an erroneous conclusion.
The Lord Bishop of Oxford: My Lords, does the Minister agree that the decisive decision was the setting up of the no-fly zones in the first place? Does she further agree that, if one accepts the no-fly zones as being necessary as the only way open to us to protect the marsh Arabs in the south and the Kurds in the north, it logically follows that appropriate steps must be taken to enforce them? If the attacks on the command and control centres were discriminate and proportionate, as they appear to have been, then it is totally inconsistent to condemn them and at the same time try to support the policy of the no-fly zones.
Baroness Symons of Vernham Dean: My Lords, I could not have put it any better than the right reverend Prelate.
Lord Wright of Richmond: My Lords, does the Minister accept that, whatever the military justification for these recent attacks—which I do not dispute—the impression has been given in the Middle East and elsewhere that the United States Administration, with the support of the Government, are paying insufficient attention to the real political problem of the Middle East, which is the Arab/Israel problem? There is a need to show some awareness of the suffering of the Palestinians under the Israeli Administration and armed forces over the past few months since the intifada was provoked by Sharon's entry into the Dome of the Rock. The fact that there is insufficient awareness will have been underlined by the news that the United States is entering into joint military exercises with the Israeli armed forces.
Baroness Symons of Vernham Dean: My Lords, as I indicated in response to the noble Lord, Lord Burnham, Saddam Hussein has never wasted an opportunity to present himself as the champion of the Arab cause. Sadly, there will be those who, at this time of heightened tension in the Middle East, will choose to take that impression from what has happened. We all understand that the current, very real, very difficult situation in relation to the Middle East peace process will have raised Saddam's popularity in the region. We were aware of that at the time we took the decision to engage in military action on Friday.
We have to reiterate over and over again—it cannot be said too often—that the attacks were not related to the Middle East peace process or in any way to the commitment that we have to finding a peaceful, just and lasting settlement between the Israelis and the Palestinians. I am sure that we all agree with the noble Lord, Lord Wright, that that is enormously important.

Regulatory Reform Bill [H.L.]
3.49 p.m.
Read a third time.
Clause 1 [Power by order to make provision reforming law which imposes burdens]:
The Minister of State, Cabinet Office (Lord Falconer of
Thoroton)The Minister of State, Cabinet Office (Lord Falconer of
Thoroton) moved Amendment No. 1:
Page 1, line 14, leave out ("its retention") and insert ("the re-enactment").
The noble and learned Lord said: My Lords, I am sure that the vast majority of noble Lords will recognise the amendment as virtually identical to Amendment No. 5 proposed on Report by the noble Lord, Lord Phillips of Sudbury. The noble Lord gave me notice that he would not be present in the Chamber today.
When I sought to respond to the amendment on Report, I got the wrong end of the stick completely. I undertook to consider it further. I did so, and found it well thought-out and sensible. It sought to place at the end of Clause 1(1)(b) the same word in principle as occurs elsewhere in the clause. It was a sensible drafting amendment.
The amendment that we propose differs from that tabled by the noble Lord, Lord Phillips of Sudbury, only in so far as it substitutes "the re-enactment" for "its retention", thus making clear that "re-enactment" refers to the provision, not to the "burden". After all, one cannot "re-enact" a burden, only the provision that gives rise to it. Inspired by the noble Lord, Lord Phillips of Sudbury, we proposed this amendment. I beg to move.
Lord Goodhart: My Lords, in my noble friend's absence, I am grateful to the Minister. I am happy to support the amendment.
On Question, Amendment agreed to.
Viscount Goschen Viscount Goschen moved Amendment No. 2:
Page 1, line 20, leave out paragraph (d).
The noble Viscount said: My Lords, throughout our consideration of the Bill, we have referred to the wide-ranging, and in some circumstances ill defined, nature of its provisions. These are the very provisions that are designed to give Parliament comfort as regards the Bill's wide-ranging powers, which enable the parliamentary processes that we normally expect to apply to changes to primary legislation to be avoided by means of an order.
My amendment is simple. It seeks to remove paragraph (d) in subsection (1). The paragraph gives Ministers powers to bring forward orders under circumstances where they are aimed at,
"the removal of inconsistencies and anomalies".
If the provision in paragraph (d) were designed purely to get at tiny technical drafting errors, there could be some argument for its retention. However, that is not what the Bill states; it simply spells out "inconsistencies and anomalies". I would argue strongly that these terms are far too wide, allowing Ministers to bring forward orders to amend primary legislation and bypass the standards and procedures of this House and another place merely on the basis that the Minister believes that he has spotted an anomaly or an inconsistency.
"Inconsistent" must be a comparative term. "Inconsistent" with what? Inconsistent with other pieces of legislation? Inconsistent perhaps with provisions within the Act that is to be amended. The Bill is silent on the definition of the word.
"Anomaly" and "inconsistency" are reasonably close in meaning. But what does "anomaly" mean in law? There is no further definition within the Bill. Ministers could use the fact that they believed they had spotted an anomaly to bring forward orders to amend primary legislation which do not affect burdens. That would not happen under the provision in paragraphs (a), (b) and (c), which are all aimed at circumstances which the House knows and understands.
All noble Lords who participated in earlier debates on the Bill will clearly understand the aims of those paragraphs. They are designed to address circumstances where burdens should either be removed or where they should perhaps be transferred in the interest of making legislation clearer and better.
That is not the case with paragraph (d). "Anomaly" can mean almost anything one wants it to mean. There is no place for such a provision in a Bill which gives unprecedented powers to the executive, tipping the balance of power in favour of the executive and away from Parliament.
This House has itself been described as an "anomaly". We heard the noble and learned Lord, Lord Falconer, referring during the passage of what is now the Disqualifications Act to an "anomaly" which led to the bringing forward of that piece of legislation. Perhaps "inconsistency" would be a better term to describe the way in which the treatment of Commonwealth citizens was different from that of citizens of the Republic of Ireland.
The Minister furnished the House with a list of 51 examples of potential circumstances in which regulatory reform orders could be brought forward to the benefit of those who were regulating: bringing forward clearer legislation and all the other aims in which this House believes. But how many of those listed rely on the provision in paragraph (d),
"the removal of inconsistencies and anomalies";
and how many can be dealt with under the provision in paragraphs (a), (b) and (c)?
Unless it involves the removal, reduction or modification of a burden, there is no place within the Bill for giving Ministers catch-all, "get out of gaol free" powers to amend legislation whenever they feel like it. The Government argue that to become the subject of such an order legislation must be concerned with imposing burdens. But show me the piece of legislation that does not impose a burden on someone somewhere, even if that person is not the Minister. The burden must be on the Government to prove that there is a strong argument for using these unprecedented powers. That must depend on the removal or modification of serious burdens; the power should not be used merely where the Government identify some anomaly.
There are a number of anomalies within legislation. Some should be there, and some should not. We propose giving the Government the widest of powers to deal with what could be quite small problems. I suggest that the balance between protections given to Parliament and opportunities given to Ministers will not be met unless we remove paragraph (d). I beg to move.
Lord Peyton of Yeovil: My Lords, perhaps my noble friend will forgive my intervention. I shall not detain the House for long. When I first saw the amendment, I thought that my noble friend was being rather unkind to the Government, who were showing a becoming modesty and humility. It is not often that administrations come to Parliament and say that they admit the possibility that a Bill may contain a whole mass of inconsistencies and anomalies. I thought that the Government deserved a note of praise for that.
However, my noble friend has succeeded in causing me to have second thoughts. If the Government are admitting that Bills can be strewn with inconsistencies
516
and anomalies they ought, first, to take an early opportunity humbly to express regret that that is so and to explain the inconsistencies that need to be removed, and then to remove them with at least some ceremony, not merely with a stroke of the pen saying, "We don't like this". On second thoughts, I agree with my noble friend that the Government are making their own lives a bit too easy instead of, as I thought originally, making a humble admission of the fact that they can be wrong, welcome though that is.
Baroness Buscombe: My Lords, I rise to speak in support of my noble friend Lord Goschen. I do so, not because I disagree with the purpose envisaged by the words "inconsistencies and anomalies", but because it seems to me that this is yet another example in the Bill of an attempt to adopt the same legislative approach to matters of a fundamentally different character.
Paragraphs (a), (b) and (c) of Clause 1(1) are concerned with burdens: their removal, their reduction, their introduction and their reintroduction. However, that does not apply to paragraph (d); it is concerned with inconsistencies and anomalies. Burdens are not mentioned, save that the legislation, which is to be the subject of a regulatory reform order (the purpose of which is to remove inconsistencies and anomalies), must be such as to impose burdens. That is all. There is not even any need for there to be a casual link between, on the one hand, the burdensome nature of the legislation and, on the other hand, the inconsistencies and anomalies. They should merely appear in the same legislation.
Legislation is rarely internally inconsistent. What is to happen if the burden is created by one Act, but the inconsistency by another Act that does not create a burden at all? I fear that I shall be told by the Minister that, of course, the Government will not use this procedure other than to strike down bad regulation, or regulation in need of reform where inconsistencies and anomalies are found. However, I have to say that that is not an acceptable answer for it is circular in its nature.
Paragraph (d) of Clause 1(1) has every appearance of being a provision that has been added to this clause, not because that is where it belongs but because that is the least inconvenient place to put it. So it seems that, yet again, if we are to have any sort of threshold test for the exercise of this wide-ranging ministerial power, we are to be driven back upon the elephant test. Indeed, I must express my concern that the power contained in the Bill is too widely drawn and too ill defined to provide adequate safeguards against abuse.
4 p.m.
Lord Campbell of Alloway: My Lords, I support this amendment. I apologise to the Ministers on the Front Bench opposite because I promised both of them that I would not speak at all. Indeed, there did not seem much object in doing so. I was unaware that my noble friend Lord Goschen was going to table this amendment. I shall take very little time in what I have to say.

517
We are talking about a sort of indefinable catch-all phrase that really enhances the unprecedented powers of the executive. It is wholly without any form of judicial control. For the reasons that have bored your Lordships in the past, I am bound to support the amendment. If my noble friend divides the House, I shall support him in the Lobby.
Lord Borrie: My Lords, one of the odd elements of the speech of the noble Viscount, Lord Goschen, was the fact that twice in the early part of his remarks he said that this provision would enable the Minister responsible to deal with what he would call "inconsistencies" and "anomalies" just because they would be considered so to be, "in the opinion of the Minister". Noble Lords will recall that during certain stages of the Bill I drew attention to Clauses 3 and 5 where phrases like, "in the opinion of the Minister", or, "if it appears to the Minister", appear. We debated those matters and the Bill stands in its present form for very good reason; namely, that it should be dependent on the opinion of the Minister.
However, it seems to me that there must be some objective test applicable in the case of Clause 1 which does not leave the matter to a Minister's opinion. The clause states that a Minister may make an order for the purpose of reforming legislation which has the effect of imposing burdens, but that he must do so with a view to several following considerations—one being,
"the removal of inconsistencies and anomalies".
I am sure that the Conservative Party does not wish to go down as the party that favours inconsistencies and anomalies. I suggest that it may not be desirable just to remove anomalies and inconsistencies within one piece of legislation, but that—
Viscount Goschen: My Lords, I am grateful to the noble Lord for giving way. He is quite right on the point regarding the opinion of the Minister. I do not dispute that for a moment. However, it does apply as regards tiny inconsistencies. Indeed, it is like the point raised by my noble friend Lord Ferrers on a previous occasion regarding "an" versus "a" hereditary Peer. This might, perhaps, be ideally suited for such an argument. It could, for example, be said to be inconsistent for football supporters to be banned from travelling overseas to watch their team play, but not rugby or cricket supporters. Those are the sort of circumstances where a Minister could say, "This is an anomaly and, therefore, I am bringing forward an order". It goes rather wider than the type of "micro, micro" issue, as the noble Lord, Lord Borrie, quite rightly pointed out in his remarks.
Lord Borrie: My Lords, my noble friend the Minister will correct me if I am wrong, but I believe that one of the purposes of the Bill was outlined on Second Reading as follows. When you have a whole range of primary or secondary legislation that has grown up over the years leaving a whole lot of inconsistencies and/or anomalies that necessitate the making of a regulatory reform order, that action may be justified simply because those inconsistencies cause
518
confusion. That confusion among businessmen and other people, who are subjected to a range of regulations on a particular subject, calls for the removal of the difficulty by removing not just burdens but also inconsistencies. When those businessmen are legally advised, and so on, they are told, "Well, this regulation says this, but that somewhat later regulation says the opposite". It is almost impossible for a lawyer to tell which of the two is correct. Getting rid of anomalies and inconsistencies is surely wholly desirable. Given the fact that the noble Lord kindly agreed to my first point—namely, that it is not simply dependent on the view of the Minister—there must, objectively speaking, be an anomaly.
Lord Lawson of Blaby: My Lords, I am surprised that, for someone as distinguished as he is, the noble Lord seems to be labouring under a misapprehension. I believe that the point that my noble friend is quite rightly putting to the House is not that inconsistencies and anomalies should remain on the statute book—none of us is opposed to the removal of inconsistencies and anomalies but—the question of the proper way to do this. There is a real danger under this legislation that matters that should not just be passed without any parliamentary scrutiny will be able to be so passed under the umbrella of the words, "inconsistencies and anomalies". This House must be jealous in that respect, remembering, as always, that there is no written constitution and no constitutional court to which we can appeal. Of course, there is judicial review, but that involves a whole lot of extra, elaborate apparatus and, indeed, imposes more burdens on individuals than applies to the present position without this innovation.
Lord Borrie: My Lords, I am not sure whether than was an intervention or a speech. However, if I take it as an intervention, there is a great deal of what the noble Lord, Lord Lawson, said with which I entirely agree. At several stages during the passage of this Bill both in Committee and on Report Ministers were asked to explain where the parameters are for a Bill which, on the face of it, looks very broad. Important statements have been made that it is not intended, for example, to use the Bill for controversial political matters. It is a Bill that is, in a sense, a very technical piece of legislation. However, it will greatly help in removing such difficulties experienced by businessmen and others who are subject, as we all know, to regulation of which they either disapprove or which they regard as overburdensome. Surely it is worth while to get rid of inconsistencies and anomalies. I give way.
Lord Campbell of Alloway: My Lords, I am obliged. Does the noble Lord accept that that is wholly beside the point? The intentions of government are not a way in which one approaches a Bill. The undertakings of government as to how to use precision are totally immaterial. We have to look at what use might be made of the provision, not by this Government but by any government. Does not the noble Lord accept that?
Lord Borrie: My Lords, I accept a great deal of what the noble Lord has said. But I hope that he also accepts

519
that many statements made by Ministers in the course of discussion on a Bill, and many questions asked by the Opposition so as to obtain such statements, are made for so-called "Pepper v Hart" purposes in order to pin down the Government as regards stating what a particular clause means.
Lord Campbell of Alloway: My Lords, the noble Lord does not seem to accept that Pepper v Hart has nothing to do with this; we are concerned with what may happen under any government.
Lord McIntosh of Haringey: My Lords, I suppose to a limited extent this debate is my fault. What now appears to be an important constitutional principle—that we should not deal with inconsistencies and anomalies—was not thought by anyone to be significant in Committee when no amendments were put down to that effect. It was not thought by anyone to be significant on Report when no amendments were put down to that effect. However, the noble Viscount, Lord Goschen, in debating an entirely different amendment of the noble Lord, Lord Campbell of Alloway, on Report thought that the matter was a jolly wheeze and that he would throw it into the argument. That is my fault as I rather brushed him to one side and said that I would deal with the amendment before the House rather than with his intervention. I virtually invited him to put down an amendment to this effect. He has done so and I cannot complain, even if I feel a little like Lord Randolph Churchill.
The amendment cannot be taken entirely seriously. There is no dark secret behind the term "inconsistencies and anomalies". Clause 1(1)(d) makes it clear that we want the power to be able to encompass reform aimed at eliminating anomalies and inconsistencies as part of the reform of legislation. That will be useful in larger reforms of overlapping legislation where regulatory regimes rub up against each other. Of course, most inconsistencies and anomalies would already be covered under paragraphs (a) to (c) as removing them would entail the levelling up or down of some burden or another.
But some instances do not fit in with the concept of burden. If one statute requires a notice to be given on a Tuesday and another, for no good reason, on a Wednesday, even though both refer to the same category of information, it is not increasing or decreasing the burden to bring them into line, but it removes an inconsistency or anomaly.
The two words are closely linked. However, it is sensible to include them both. An inconsistency may occur where one provision tells you to do one thing and another tells you to do another. If one piece of legislation states that all London cabs must be black while another states that all London cabs must be blue, that is an inconsistency. An anomaly occurs not so much where two pieces of legislation clash, but where they fail to make the proper provision intended. If a licensing regime treated all businesses registered before 19th February in one way and all businesses registered after 19th February in another, what is the status of those businesses registered on 19th February itself?
520
The provision to deal with inconsistencies and anomalies will be helpful to Ministers in bringing forward any proposals resulting from the recommendations made by either or both of the Law Commissions which specifically refer to the removal of anomalies. Of course, any such proposal would have to fit in with all the other requirements of the Bill, including the removal or reduction of a burden, but could be used to iron out those inconsistencies and anomalies that grow up over time in any body of legislation.
The ante has been raised on this to some extent by the noble Viscount, Lord Goschen, who says that the measure is far too wide. He asked me which of the 51 examples it applies to. I am not sure that it applies to any of the 51 examples that we have so far, although I think that inconsistencies and anomalies might well appear if we went into the detail of the legislation that would have to be changed. The noble Viscount, Lord Goschen, in intervening on my noble friend Lord Borrie, said that such measures could apply to football supporters as opposed to rugby supporters or cricket supporters. Such provisions would never get through any of the other tests applied to regulatory reform orders.
Noble Lords opposite forget that not only have we had safeguards in the Bill from the beginning against widening the scope of the legislation in dealing with burdens but that the safeguards that we have against the wide use of the powers were enhanced by the amendments tabled by the noble Lord, Lord Goodhart, on Report which the Government accepted.
The measures we are discussing simply do not bear the construction put upon them by noble Lords opposite. They constitute no more than a small completion of the task which may well be necessary to tackle significant burdens. To remove them may cause difficulties and the Government could not do other than resist such a step.
4.15 p.m.
Viscount Goschen: My Lords, I am grateful to all noble Lords who have spoken in the context of the amendment. However, if I may say so, the Minister's response to my amendment was typical of a theme which has run throughout the Bill; that is, to contrast the assurances of Ministers with what is actually written on the face of the Bill.
Lord McIntosh of Haringey: My Lords, the noble Viscount does not listen to me. I said that even if we had been accused of giving assurances that were not on the face of the Bill, the fact that we accepted the amendments of the noble Lord, Lord Goodhart—the noble Viscount must recognise this point as his party did not oppose them—means that the assurances are now on the face of the Bill.
Viscount Goschen: My Lords, the amendments of the noble Lord, Lord Goodhart, closed the door a little. They were extremely helpful. We supported the approach taken by the noble Lord, Lord Goodhart.

521
However, that does not mean that all the ministerial assurances are now written on the face of the Bill; the absolute opposite is the case. The noble Lord, Lord McIntosh, said that the provision would be used for minor clearing up. However, that is not stated in the Bill. The Bill uses two words, "anomalies" and "inconsistencies".
I return to a point that was much better made by my noble friend Lord Lawson. The issue concerns the use that is made of the powers. The powers are wide. They could be used to clear up small anomalies. I recognise that by removing the provision one would remove the power to clear up anomalies, but only anomalies that do not impose a burden on anyone. I suggest that that kind of anomaly should go to the bottom of the queue.
If I may say so, that is proved by the fact that of the 51 measures that the Government have produced as examples, the noble Lord was unable to quote even one which would impose no burden and would constitute just an anomaly. The noble Lord, Lord Borrie, was quite right. It would indeed be a minor shame not to be able to tidy up these small points. However, that is not what the Bill is about. The noble Lord, Lord McIntosh, made no attempt whatsoever to explain how the measure on the face of the Bill would prevent legislation as regards the examples that I mentioned.
It could be said that to ban one field sport but not others could be inconsistent and therefore, according to what is written on the face of the Bill, that approach could be said to be an anomaly. The normal procedures for primary legislation could be bypassed. The noble Lord, Lord McIntosh, was reduced to relying on imaginary examples of black cabs and blue cabs. I have not seen the legislation that states that all cabs must be blue. The noble Lord has not tried hard to address the serious criticisms that have been raised by my noble friends and by myself. I wish to test the opinion of the House.
4.19 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 86; Not-Contents, 152.

Division No. 1

CONTENTS

Anelay of St Johns, B.

Courtown, E.

Astor of Hever, L.

Cox, B.

Attlee, E.

Craigavon, V.

Blaker, L.

Crickhowell, L.

Boardman, L.

Dean of Harptree, L.

Bowness, L.

Denham, L.

Brougham and Vaux, L.

Dixon-Smith, L.

Burnham, L.

Eden of Winton, L.

Buscombe, B.

Elles, B.

Caithness, E.

Elliott of Morpeth, L.

Campbell of Alloway, L.

Elton, L.

Carnegy of Lour, B.

Fookes, B.

Cavendish of Furness, L.

Freeman, L.

Chilver, L.

Gardner of Parkes, B.

Cope of Berkeley, L.

Garel-Jones, L.

522

Geddes, L.

Mowbray and Stourton, L.

Gilmour of Craigmillar, L.

Murton of Lindisfarne, L.

Glentoran, L.

Naseby, L.

Goschen, V. [Teller]

Noakes, B.

Gray of Contin, L.

Northesk, E.

Griffiths of Fforestfach, L.

Oxfuird, V.

Hanham, B.

Palmer, L.

Hayhoe, L.

Park of Monmouth,

Henley, L. [Teller]

Peel, E.

Higgins, L.

Peyton of Yeovil, L.

Hogg, B.

Plummer of St. Marylebone, L.

Holderness, L.

Rawlings, B.

Home, E.

Rawlinson of Ewell, L.

Hooper, B.

Renton, L.

Howe, E.

Roberts of Conwy, L.

Howe of Aberavon, L.

Ryder of Wensum, L.

Jenkin of Roding, L.

Seccombe, B.

Kingsland, L.

Selborne, E.

Kirkham, L.

Simon of Glaisdale, L.

Laing of Dunphail, L.

Strathclyde, L.

Lawson of Blaby, L.

Swinfen, L.

Lucas, L.

Taylor of Warwick, L.

Luke, L.

Tebbit, L.

Lyell, L.

Thomas of Gwydir, L.

Macfarlane of Bearsden, L.

Trumpington, B.

Mayhew of Twysden, L.

Vinson, L.

Miller of Hendon, B.

Vivian, L.

Monson, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Farrington of Ribbleton,

Addington, L.

Faulkner of Worcester, L.

Ahmed, L.

Fitt, L.

Alexander of Weedon, L.

Fyfe of Fairfield, L.

Allenby of Megiddo, V.

Gale, B.

Alli, L.

Gibson of Market Rasen, B.

Amos, B.

Gladwin of Clee, L.

Andrews, B.

Goldsmith, L.

Archer of Sandwell, L.

Goodhart, L.

Avebury, L.

Gordon of Strathblane, L.

Bach, L.

Goudie, B.

Barnett, L.

Gould of Potternewton, B.

Bassam of Brighton, L.

Graham of Edmonton, L.

Bernstein of Craigweil, L.

Grenfell, L.

Blackstone, B.

Hardy of Wath, L.

Blood, B.

Harris of Greenwich, L

Borrie, L.

Harris of Richmond, B.

Bradshaw, L.

Haskel, L.

Bragg, L.

Hayman, B.

Brett, L.

Hilton of Eggardon, B.

Bristol, Bp.

Hogg of Cumbernauld, L.

Brooke of Alverthorpe, L.

Hollis of Heigham, B.

Brookman, L.

Hooson, L.

Bruce of Donington, L.

Howells of St. Davids, B.

Burlison, L.

Hughes of Woodside, L.

Carter, L. [Teller]

Hunt of Chesterton, L.

Christopher, L.

Hunt of Kings Heath, L.

Clarke of Hampstead, L.

Irvine of Lairg, L. (Lord Chancellor)

Clement-Jones, L.

Clinton-Davis, L.

Islwyn, L.

Cocks of Hartcliffe, L.

Jacobs, L.

Crawley, B.

Jay of Paddington, B. (Lord Privy Seal)

Dahrendorf, L.

David, B.

Jeger, B.

Davies of Coity, L.

Jenkins of Putney, L.

Davies of Oldham, L.

Judd, L.

Dean of Thornton-le-Fylde, B.

King of West Bromwich, L.

Dearing, L.

Kirkhill, L.

Dholakia, L.

Laming, L.

Dixon, L.

Layard, L.

Dubs, L.

Lea of Crondall, L.

Elis-Thomas, L.

Lester of Herne Hill, L.

Evans of Watford, L.

Lipsey, L.

Ezra, L.

Lockwood, B.

Falconer of Thoroton, L.

Lofthouse of Pontefract, L.

523

Macdonald of Tradeston, L.

Sawyer, L.

McIntosh of Haringey, L. [Teller]

Scotland of Asthal, B.

Serota, B.

McIntosh of Hudnall, B.

Sharp of Guildford, B.

MacKenzie of Culkein, L.

Shepherd, L.

Mackenzie of Framwellgate, L.

Shore of Stepney, L.

Maddock, B.

Simon, V.

Mallalieu, B.

Slim, V.

Mason of Barnsley, L.

Smith of Clifton, L.

Massey of Darwen, B.

Stallard, L.

Merlyn-Rees, L.

Stoddart of Swindon, L.

Mishcon, L.

Stone of Blackheath, L.

Molloy, L.

Strange, B.

Morgan, L.

Symons of Vernham Dean, B.

Morris of Castle Morris, L.

Taverne, L.

Morris of Manchester, L.

Tenby, V.

Nicol, B.

Thomas of Walliswood, B.

Tomlinson, L.

Northover, B.

Tordoff, L.

Orme, L.

Turner of Camden, B.

Patel of Blackburn, L.

Uddin, B.

Paul, L.

Wallace of Saltaire, L.

Peston, L.

Walmsley, B.

Plant of Highfield, L.

Weatherill, L.

Ponsonby of Shulbrede, L.

Wedderburn of Charlton, L.

Prys-Davies, L.

Whitaker, B.

Puttnam, L.

Whitty, L.

Ramsay of Cartvale, B.

Wilkins, B.

Redesdale, L.

Williams of Crosby, B.

Rendell of Babergh, B.

Williams of Elvel, L.

Rennard, L.

Williams of Mostyn, L.

Rodgers of Quarry Bank, L.

Williamson of Horton, L.

Sandberg, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.30 p.m.
Lord Kingsland Lord Kingsland moved Amendment No. 3:
Page 1, line 23, leave out paragraph (a) and insert—
("( ) any Act (whether or not in force) which was passed before this Act is passed and at least two years before the day on which the order is made,
( ) any Act (whether or not in force) which was passed after this Act is passed and at least two years before the day on which the order is made and which contains a provision that it shall be deemed "legislation" within the meaning of this subsection, or").
The noble Lord said: My Lords, the noble Lord, Lord McIntosh of Haringey, helpfully pointed out a difficulty in our earlier amendment to this paragraph, which we have sought to resolve at Third Reading. The amendment would help to define what the elephant test cannot define—the type of legislation to which the power granted by the Bill applies.
We believe that all future legislation that contains what is regarded as regulatory content should identify itself as such. The Government have repeatedly stressed that the Bill will not be used for politically controversial measures. It must follow that the inclusion of such a provision in primary legislation would be non-controversial. I beg to move.
Lord McIntosh of Haringey: My Lords, I am glad that I finally persuaded the noble Lord, Lord Kingsland, that taking out seven years of legislation between 1994 and 2001 was not a particularly good idea. However, I am afraid that the issue is not as simple as he seems to think.
524
Throughout the passage of the Bill, we have discussed at great length the procedures and safeguards surrounding the order-making power, including public consultation, parliamentary scrutiny, the objective of proportionality and the tests contained in Clause 3. Those are substantial hurdles, which go considerably further than those in the Deregulation and Contracting Out Act 1994. They are the best gatekeepers for the power.
I am sure that the noble Lord recognises that it is rare for a Bill to be prepared with the express intention of being reformed in some years. The amendment would result in the danger of many Acts for which the order-making power would be suitable being omitted from the definition of eligible legislation. A valuable and universally welcomed reform could become impossible because one—and only one—of a large number of Acts concerned did not contain the magic formula in the amendment, even if the changes required to that Act were small and uncontroversial.
If Parliament feels strongly about an issue, there is nothing to stop it saying that a particular Act should not be subject to the order-making process. There would be no need to amend the Bill for that. However, I see no case for contracting in, as the amendment would do.
As things stand, Parliament can decide whether an area is suitable for reform each time a regulatory reform proposal comes before it. Surely that is the most sensible route. The Bill will be able to make substantial legislative reform, while still providing stringent and transparent safeguards. I am sorry to say that the amendment would add nothing to those provisions.
Lord Kingsland: My Lords, on the one hand the Government have asserted that the Bill is not intended to deal with controversial matters, but on the other hand they have consistently refused to accept concrete controls that would ensure that it did not affect controversial matters. In those circumstances, I wish to test the opinion of the House.
4.34 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 80; Not-Contents, 149.

Division No. 2

CONTENTS

Anelay of St Johns, B.

Cavendish of Furness, L.

Astor of Hever, L.

Cope of Berkeley, L.

Attlee, E.

Courtown, E.

Blaker, L.

Cox, B.

Boardman, L.

Crickhowell, L.

Bowness, L.

Dean of Harptree, L.

Brougham and Vaux, L.

Denham, L.

Burnham, L. [Teller]

Dixon-Smith, L.

Buscombe, B.

Eden of Winton, L.

Caithness, E.

Elles, B.

Campbell of Alloway, L.

Elliott of Morpeth, L.

Carnegy of Lour, B.

Elton, L.

525

Fookes, B.

Mowbray and Stourton, L.

Freeman, L.

Murton of Lindisfarne, L.

Gardner of Parkes, B.

Naseby, L.

Garel-Jones, L.

Noakes, B.

Geddes, L.

Northesk, E.

Gilmour of Craigmillar, L.

Oxfuird, V.

Glentoran, L.

Palmer, L.

Goschen, V.

Park of Monmouth, B.

Gray of Contin, L.

Peel, E.

Hanham, B.

Peyton of Yeovil, L.

Hayhoe, L.

Pilkington of Oxenford, L.

Henley, L.[Teller]

Plummer of St. Marylebone, L.

Higgins, L.

Rawlings, B.

Hogg, B.

Rawlinson of Ewell, L.

Home, E.

Renton, L.

Hooper, B.

Roberts of Conwy, L.

Howe, E.

Seccombe, B.

Howe of Aberavon, L.

Selborne, E.

Jenkin of Roding, L.

Strathclyde, L.

Kingsland, L.

Swinfen, L.

Kirkham, L.

Tebbit, L.

Lawson of Blaby, L.

Thomas of Gwydir, L.

Lucas, L.

Trumpington, B.

Luke, L.

Vinson, L.

Lyell, L.

Vivian, L.

Macfarlane of Bearsden, L.

Wade of Chorlton, L.

Mayhew of Twysden, L.

Wilcox, B.

Miller of Hendon, B.

Young, B.

NOT CONTENTS

Acton, L.

Fitt, L.

Addington, L.

Fyfe of Fairfield, L.

Ahmed, L.

Gale, B.

Allen by of Megiddo, V.

Gibson of Market Rasen, B.

Alli, L.

Gladwin of Clee, L.

Amos, B.

Goldsmith, L.

Andrews, B.

Goodhart, L.

Archer of Sandwell, L.

Gordon of Strathblane, L.

Avebury, L.

Goudie, B.

Bach, L.

Gould of Potternewton, B.

Barnett, L.

Graham of Edmonton, L.

Bassam of Brighton, L.

Grenfell, L.

Beaumont of Whitley, L.

Hardy of Wath, L.

Bernstein of Craigweil, L.

Harris of Greenwich, L.

Borrie, L.

Harris of Richmond, B.

Bradshaw, L.

Haskel, L.

Bragg, L.

Hayman, B.

Brett, L.

Brooke of Alverthorpe, L.

Hilton of Eggardon, B.

Brookman, L.

Hogg of Cumbernauld, L.

Bruce of Donington, L.

Hollis of Heigham, B.

Burlison, L.

Holme of Cheltenham, L.

Carter, L. [Teller]

Hooson, L.

Christopher, L.

Howells of St. Davids, B.

Clarke of Hampstead, L.

Hughes of Woodside, L.

Clement-Jones, L.

Hunt of Chesterton, L.

Clinton-Davis, L.

Hunt of Kings Heath, L.

Cocks of Hartcliffe, L.

Irvine of Lairg, L. (Lord Chancellor)

Crawley, B.

Dahrendorf, L.

Islwyn, L.

David, B.

Jay of Paddington, B. (Lord Privy Seal)

Davies of Coity, L.

Davies of Oldham, L.

Jeger, B.

Dean of Thornton-le-Fylde, B.

Jenkins of Putney, L.

Dholakia, L.

Judd, L.

Dixon, L.

King of West Bromwich, L.

Dubs, L.

Kirkhill, L.

Elder, L.

Laming, L.

Elis-Thomas, L.

Layard, L.

Evans of Watford, L.

Lea of Crondall, L.

Ezra, L.

Lester of Herne Hill, L.

Falconer of Thoroton, L.

Lipsey, L.

Farrington of Ribbleton, B.

Lockwood, B.

Faulkner of Worcester, L.

Lofthouse of Pontefract, L.

Filkin, L.

Macdonald of Tradeston, L.

526

McIntosh of Haringey, L. [Teller]

Sawyer, L.

Scotland of Asthal, B.

McIntosh of Hudnall, B.

Serota, B.

MacKenzie of Culkein, L.

Sharp of Guildford, B.

Mackenzie of Framwellgate, L.

Shepherd, L.

Maddock, B.

Shore of Stepney, L.

Mason of Barnsley, L.

Simon, V.

Massey of Darwen, B.

Simon of Glaisdale, L.

Merlyn-Rees, L.

Smith of Clifton, L.

Mishcon, L.

Smith of Gilmorehill, B.

Molloy, L.

Stoddart of Swindon, L.

Morgan, L.

Stone of Blackheath, L.

Morris of Castle Morris, L.

Symons of Vernham Dean, B.

Morris of Manchester, L.

Taverne, L.

Nicol, B.

Thomas of Gresford, L

Northover, B.

Thomas of Walliswood, B.

Orme, L.

Tomlinson, L.

Tordoff, L.

Patel of Blackburn, L.

Turner of Camden, B.

Paul, L.

Uddin, B.

Peston, L.

Walker of Doncaster, L.

Plant of Highfield, L.

Wallace of Saltaire, L.

Ponsonby of Shulbrede, L.

Walmsley, B.

Prys-Davies, L.

Wedderburn of Charlton, L.

Puttnam, L.

Whitaker, B.

Ramsay of Cartvale, B.

Whitty, L.

Rea, L.

Wilkins, B.

Redesdale, L.

Williams of Crosby, B.

Rendell of Babergh, B.

Williams of Elvel, L.

Rennard, L.

Williams of Mostyn, L.

Rodgers of Quarry Bank, L.

Williamson of Horton L.

Sandberg, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.45 p.m.
Clause 2 [Meaning of "burden" and related expressions]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 4:
Page 2, line 32, leave out ("or preventing the incurring of expenditure").
The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 5 and 6. Many of us will have read with considerable interest articles in our newspapers this weekend concerning a Bill currently "working its way through Parliament" which is being hailed by the Government as the Bill that will get rid of all unwanted red tape. I must confess that I find it difficult to believe that the Bill referred to is this one.
What does not surprise me is that there is no mention by government Ministers and noble Lords opposite in the press of the considerable increase in executive power afforded by the Bill, including an enabling power which will allow Ministers, government departments and local authorities to incur further expenditure.
The Minister made it very clear on Report that there would be,
"occasions when we would want to remove conditions which prevent expenditure".—[Official Report, 13/2/01; col. 184.]
and the example used was the condition attached to the granting of vaccine damage compensation, such that it would be easier for Ministers to incur that expenditure for the benefit of the parents of a vaccine-damaged child.
That is an example with which we should have no argument. While we support extra spending on things that matter such as schools, hospitals and police officers, this clause raises serious alarm bells at the possibility of Ministers using the Bill as a quietly convenient way to waste taxpayers' money—spending by stealth on matters which are not deemed by Ministers to be of a politically controversial nature and therefore ripe for a regulatory reform order.
For example, is it politically controversial for the Government to have spent £300,000 of hard-earned taxes on a poetry competition designed to make people more aware of the provisions of the European Convention on Human Rights? It is our view that while the competition may be a tame idea, the degree of expenditure is clearly controversial.
Perhaps it matters not to the Government how much money is wasted so long as the Minister deems the initiative to be of a politically non-controversial nature and, therefore, appropriate for a regulatory reform order.
Will the Minister concede that as currently drafted the Bill could easily be used by the executive as a licence to spend? If the Government are not minded to accept our amendments, will the Minister agree with me that there should be some clearly defined parameters on the face of the Bill for the use of that power? I beg to move.
Lord Falconer of Thoroton: My Lords, I am amazed by this. The process of scrutiny which the Front Bench opposite is now seeking to adopt in relation to the Bill is confusing. This amendment was raised on Report. An answer was given and if one looks at col. 184 of Hansard, our explanation was accepted. I believe that the noble Baroness accepts, although I am not sure, that if her amendment were agreed to by this House, it would not be possible to reduce the conditions which the parents of vaccine-damaged children presently have to undergo before they receive compensation for vaccine damage.
Therefore, I understand two matters from the return to this amendment: first, that the Conservatives have retreated from their acceptance of our position; and secondly, they would not wish a regulatory reform order to be used as a means of relieving the conditions for the obtaining of vaccine damage.
If that is the position, first, I am amazed that there has been such a reversal. Secondly, I am surprised that no notice was given of such reversal.
Baroness Buscombe: My Lords, before the Minister concludes his remarks, I point out that we did not accept the amendment to which he referred and that we did not move it on Report. Moreover, there are many other ways in which to deal with the question of compensation for vaccine damage. In turn, I find it rather strange that we on this side are being ticked off for raising matters that were not fully debated during the Bill's earlier stages, and for raising matters about which we were not content during those earlier stages.
Lord Falconer of Thoroton: My Lords, on the noble Baroness's first point, when the noble Lord, Lord Kingsland, discussed Amendments Nos. 16 and 17 on Report, he said:
"My Lords, I am grateful to the Minister for his response … and for the particular example he gave"—
that is, of vaccine damage. The noble Lord went on to discuss another amendment that was grouped with those amendments and with which we are not concerned. He said:
"He will not be surprised to hear that I remain unhappy with his explanation in respect of Amendment No. 15".—[Official Report, 13/2/01; col. 184.]
Any reasonable reader of those comments would assume that the noble Lord accepted our explanation in relation to Amendments Nos. 16 and 17.
The noble Baroness, Lady Buscombe, did not answer my second point. I asked whether she accepted that the effect of her amendment would be to deprive the Government of the opportunity to reduce the conditions for vaccine-damaged children and, if so, what she suggested we should do about that, if her amendment were agreed to. Perhaps she will answer that point later.
It would be our intention—we have always made this clear—that we should introduce an RRO in relation to that provision. That is why the phrase,
"preventing the incurring of expenditure",
appears in the Bill. I am sure that we all agree that the definition of the word "burden" is key to the Bill's success, and we have sought to define the term very broadly so that we can implement the Bill's important and worthwhile reforms. That extends to the ability of orders to incur expenditure. The noble Baroness knows as well as I do that it is often said that the reduction in the burden of paperwork is an aim that is sought by the voluntary, private and public sectors.
Let me stress again that the power is surrounded by rigorous safeguards to guarantee against possible misuse. There is therefore no possibility of the power being used to allow spending willy-nilly without passing through the rigorous parliamentary scrutiny that is provided for in the Bill. If Parliament were not to approve expenditure, save on the imposition of conditions, it could ensure that those conditions remained.
Of course, there are other stringent procedures in place surrounding the incurring of expenditure which it is the right of another place to discuss. Any order requiring expenditure would have to go through the usual procedures. In administrative terms, prior Treasury approval, for instance, would be needed in each case.
I repeat: the power is broad but I make no apology for seeking to introduce a power that will be used to make such worthwhile changes to legislation while ensuring that the most stringent safeguards are met. Our arguments on this issue remain the same as they

529
were in Committee and on Report. I urge the noble Baroness to think again and to consider the people who will be affected.
Baroness Buscombe: My Lords, I thank the Minister for that response. I make it absolutely clear that my noble friend Lord Kingsland did not accept the amendment on Report. I believe that he was implying that he accepted that the example could be used if the Bill was implemented in that way. The point is that there are many ways in which to resolve problems such as that relating to vaccine-damage compensation. In relation to such an important matter, we should consider the use of primary legislation. It is wrong to use that as an example—
Lord Falconer of Thoroton: My Lords, is the noble Baroness arguing that in that context we should use not an RRO but primary legislation?
Baroness Buscombe: My Lords, it is wrong to decide whether or not the Bill should give such a broad, blanket power to the executive by referring to such an emotive example. I made it absolutely clear in my speech that we have no argument with the use of this power by a government who are seeking to find some way to provide compensation to vaccine-damaged children. However, there are other ways to do so, including the use of primary legislation. Our concern is that the Bill contains such a broad power. It refers to removing the conditions that prevent the "incurring of expenditure" by the executive. There is no question of degree when draft orders are being scrutinised, albeit by a super-affirmative order. Will the amounts of expenditure be made clear in the draft order? I suspect not, in many cases.
Once again, we have shown our deep concern about the broad powers that remain in the Bill. I have made my point clear. It is wrong to use one small but important example—I agree about its importance—to try to twist what I have said. We are not happy about there being no parameters, as it were, in the Bill. I am sorry that the Minister offered no suggestions about the ways in which to limit the amount of expenditure that can be incurred by the executive through a regulatory reform order in relation to the Bill.
We are not making any progress in this regard, but I do not want to test the opinion of the House. I suspect that the matter will be argued vigorously in another place. On that basis, and with some regret, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 5 and 6 not moved.]
Clause 9 [Code of practice relating to enforcement of regulatory requirements]:
5 p.m.
Baroness Buscombe Baroness Buscombe moved Amendment No. 7:
Page 7, line 42, at end insert—
("( ) A code of practice under this section shall incorporate the mandatory procedures set out in Schedule 1 to the 1994 Act, but that Schedule shall be interpreted as if in paragraph 3(a)(i) for the
530
words "that he is considering taking the action and the reasons why he is considering it," there is substituted "that he intends to take action and the reasons why;".").
The noble Baroness said: My Lords, I shall deal with Amendment No. 7 and then discuss Amendment No. 8 separately. I wish to make two points: one is relatively narrow and the other involves a point of principle that highlights the difference in the respective approaches to fair and effective enforcement between those of us on this side of your Lordships' House and those on the other side.
The narrow point is this. The greater part of the Bill is concerned with parliamentary procedure and the power of the executive. Those are important constitutional matters, but only rarely do they have an immediately discernible impact upon the daily lives of ordinary people. It is only when we arrive at Clause 9 that we come to that part of the Bill that is likely to have an immediate and profound effect upon ordinary people in their everyday lives.
The amendment seeks to ensure the continuation in statutory form of those fundamental rules of best practice that were set out in Schedule 1 to the 1994 Act and which I shall refer to as "the schedule". The schedule contains four major provisions, each granting a power to the Minister concerned to impose rules regarding enforcement procedures. In the amendment, we seek to ensure that those provisions continue to have statutory effect and that their inclusion in any code of practice created pursuant to Clause 9 is mandatory.
The first provision will require an enforcement officer, before he takes enforcement proceedings, to serve notice explaining what remedial action he requires and why, and to give time for remedial action to be taken. The second is similar in nature, but it is tailored to circumstances in which immediate enforcement action is necessary. The third requires an enforcement officer to hearken to representations made to him by the person against whom enforcement action is contemplated, before enforcement action is taken. The fourth requires an enforcement officer to explain the relevant appeals procedures, once enforcement action has been taken.
I have listened with care during the passage of this Bill to the points made against the substance of the schedule. The only argument that I have heard is that there has been a misunderstanding with regard to the operation of the third provision, which requires an enforcement officer to listen to what it is the person against whom action may be taken has to say about it. The objection is not that it is undesirable that the enforcement officer should have to listen to what is being said; it is that enforcement officers have found it difficult to get across the point that no final decision on enforcement has been taken at this stage and that misunderstandings have arisen as a result.
The intention of that part of the amendment that refers to paragraph 3(a)(i) is to make the position clearer. If the words proposed are not yet sufficiently polished, I hope that the Government will at least say

531
that they regard the problem as being a very minor one indeed and that it does not amount to a difference of principle between us.
That said, I now pass to those matters about which there are fundamental differences between us and to differences which are clearly differences of principle. I have referred to the four provisions in the schedule to the 1994 Act. By this amendment, those provisions would be mandatory in two senses: first, they would be required to be part of any code of conduct; and, secondly, they would themselves be mandatory provisions within any code. Compliance by enforcement officers would be compulsory. I see nothing wrong with that. I regard such provisions as providing an essential and fundamental degree of protection to the small businessman who, nowadays, is overwhelmed by a never-ending series of regulatory initiatives.
By way of contrast I turn to the concordat. The opening pages emphasise the maintenance of proper standards; they speak of openness and helpfulness, of a complaints procedure and of how enforcement will be proportionate and consistent. All of those are worthy sentiments and each is admirable in its purpose. However, they are voluntary. There is no basis upon which any can be said to be legally enforceable, but they are none the worse for that.
On the final page of the concordat we come to the part that will prove of real interest to those against whom enforcement action is taken. It is headed "Principles of Good Enforcement: Procedures". Here are set out four provisions, each of which demonstrates a different and a fundamental aspect of sound enforcement procedure. They represent best practice. Each is aimed at ensuring that enforcement operates in a way that is fair, balanced and evenhanded. Each is intended to ensure that any person who is the subject of enforcement procedure knows what is happening to him and why, and that he has the right to be heard.
What are those provisions? Do they herald a radical new approach? Do they bring new benefits? Do they throw fresh light upon the enforcement of regulations and rules? No, they do not. The language may be different, the provisions may appear in a slightly different form and in a different order, but they are none other than the four provisions contained in Schedule 1 to the 1994 Act. The difference is that in the concordat compliance is voluntary. That is the difference of principle between us and I believe that it is the only difference.
There is no difference in what amounts to fair and even-handed treatment; there is only a difference as to whether the person against whom enforcement action is taken has the legal right to require that appropriate procedures be followed. I am unable to discern any reason why compliance with those rules should not be compulsory. If the concordat is to work in the way we are told that it will, no doubt those tasked with the enforcement of regulations will welcome the provisions with open arms and will do everything they
532
can to ensure that the "Principles of Good Enforcement" are followed. After all, they are best practice.
I would require much persuading that a general desire for a voluntary code did other than mask a wish in certain quarters to be rid of what may be regarded as rules of an irksome and burdensome nature. That seems to me to be the difference between noble Lords on this side of the House and noble Lords opposite.
One man's rules are another man's rights, or at least they should be. That being so, I should be surprised to hear any argument against making the principle of compliance with Schedule 1 compulsory. Such will give statutory effect to fundamental rules of best practice while at the same time ensuring a proper level of protection for those who are affected by enforcement procedures.
Amendment No. 8 would require any tribunal tasked with passing judgment on an enforcement matter to take into account a breach of the rules of enforcement procedure. The amendment is not intended to provide a procedural escape route for the wrong-doer, but it is a logical extension of the introduction of a degree of procedural compliance into matters of regulatory enforcement.
Earlier I said that the concordat contained a number of admirable sentiments but that it was voluntary. In so far as helpfulness, openness and the like are concerned, the fact that the concordat is voluntary is not my present concern. However, enforcement is another matter. It is essential that those against whom enforcement proceedings are taken, or against whom proceedings are being contemplated, or who are required to comply with an enforcement officer's demands under pain of enforcement action, should have rights. Reliance upon a voluntary code is simply not enough. Such matters are too important. Nor, in such circumstances, is it enough that the tribunal may—the important word is "may"—take noncompliance into account.
In this context we are concerned with matters that are fundamental to fair enforcement procedure. If the procedure has not been followed, it must follow that prosecution—that is what it is perceived to be—is unfair and it should be the duty of the tribunal to take appropriate action. That is the only means whereby the rights of the individual can be protected.
This clause grants to the tribunal a degree of discretion in the matter. The purpose of the amendment is not to remove that discretion but to place a limit on it. There is no reason why the code of practice envisaged in the clause should not make it clear which are those rules of practice upon which the provisions of this clause are intended to bite.
Unhelpfulness, or a lack of proportionality, could be dealt with as the tribunal saw fit, but a denial of fundamental rights, such as those contained in the "Principles of Good Enforcement", to which I referred earlier, is a different matter entirely and should be treated as such. This amendment should be used to make that clear. I beg to move.
Lord Borrie: My Lords, there is some objection to Schedule 1 to the 1994 Act being incorporated into this Bill, largely because it does not sit at all well with the several provisions that begin in Clause 9. Schedule I to the 1994 Act was an all-purpose, prescriptive set of requirements for enforcement officers in all circumstances. When looked at individually one sees that they are not unreasonable in the way in which they are set out. However, as I have had occasion to recall to your Lordships at previous stages of this Bill, when the previous government conducted their consultation in December 1996, they found that trading standards officers and other enforcement officers had discovered that some of the requirements—I shall not elaborate on them again—resulted in illegitimate trading being continued more easily because of the requirements of Schedule 1.
Moreover, on the other side, businesses, including small businesses, found elements of confusion in the requirements of Schedule 1. If issued with a notice saying that enforcement officers were considering taking action against them, many felt that they were being sued or prosecuted. The degree of confusion and the fact that rogue traders were perhaps getting away with it led the previous government in 1996 to question that particular approach of Schedule 1.
The approach of this Bill, which I believe has a lot going for it in terms of widespread agreement across the political parties and outside among businesses and enforcement officers, is that one starts with a voluntary concordat. Remarks have been made about it by the noble Baroness, Lady Buscombe, but that concordat, set out in Annex C to the Explanatory Notes to the Bill, comprises some of the best practice that was also in Schedule 1 to the previous Act. Underpinning that concordat is Clause 9 and successive clauses that are meant to be brought into operation if, in some way, there is a failure in the application of the concordat.
The code of practice within Clause 9 is intended to be tailored to address the enforcement problem which emerges. There will be consultation about the legislation, regulation and problems before another code is developed. Simply importing into the Bill, holus-bolus, mandatory requirements in Schedule 1 of the 1994 Act, which for good reason has had much criticism levelled at it by both enforcement officers and business, is not suitable.
Amendment No. 7 would be apt only if the government of the day took a wholly different view from the government of today. The noble Baroness, Lady Buscombe, and the noble Lord, Lord Kingsland, recalled the Minister stating earlier that there will be no regulatory reform orders relating to politically controversial matters. The noble Baroness, Lady Buscombe, may satisfy my curiosity in replying to the debate. Does her party share the view expressed by the Minister that the Bill should not be used to put forward a regulatory reform order which is
"significant and controversial in political terms"?—[Official Report, 23/1/01; col. 173.]
534
I do not believe that the amendment is appropriate. It does not sit well with the provisions of the Bill, or with the idea that they are reserve provisions, if what we all hope does not happen in fact happens; that is, the concordat, which is widely accepted by business, consumer groups and the enforcement officers, is a failure.
Lord Freeman: My Lords, the noble Lord, Lord Borrie, tried to argue his case but I do not find his arguments convincing. My noble friend's amendment does not take Schedule 1 lock, stock and barrel and set it into Clause 9. It requires that the code which is drawn up by Ministers and consulted upon, and which is then subject to negative resolution procedure in both Houses, incorporates the procedures, not the de tailed language and words.
I have one simple request to make to Ministers in support of my noble friend's amendment. Will the Minister replying to this brief debate deal with the particular problem? Let us take a local authority somewhere in England—it could be Haringey or Kettering—in which a small businessman feels aggrieved because fire regulations, food safety regulations, planning and environmental health laws have been enforced upon him by the appropriate local authority. It may be that because the enforcement was rushed he did not become aware of his right to make representations and of his right of appeal.
Let us suppose that the local authority—perhaps Kettering and Haringey are bad examples—had not signed the concordat and were not bound by the voluntary good practice. The code, which the Minister may or may not introduce in due course but which provides the back-up to the concordat, does not require written notices. It is consistent with the unfair enforcement action taken against the small businessman. What does the small businessman do? He goes to the tribunal, which is not obliged to take into account the fact that the behaviour is not in accordance with the code, let alone the concordat, and he is bereft of any redress.
I believe that by accepting the amendment the Government, in promoting the Bill, will be saying, "Okay, we are obliged to consult on the code and we will have to include the procedures in Schedule 1 to the 1994 Act. It is a fresh consultation in the light of the operation of the concordat. Let us see what happens." I do not believe that the Government have made out a case that the consultation procedures have taken into account the views of small businessmen. The Tories introduced the measure in order to protect small businessmen and the Government are removing it.
5.15 p.m.
Lord Vinson: My Lords, we are all agreed that the way in which the regulation is enforced is as important as the regulation itself. Tonight's debate goes to the heart of that matter. I have had the fortune, or misfortune, to be regulated as a small businessman. I can speak from bitter experience of an official coming in and unreasonably and disproportionately throwing the book at me.

535
When I hear the noble Lord, Lord Borrie, and the noble Baroness, Lady Gibson, speak about such matters I have no doubt about their experience as members of local authority boards and regulatory authorities. However, when they talk about small businesses and how they will be part of a concordat I believe that I am listening to eagles talking about the habits of moles. They would not know a small business if they saw one.
We are agreed that fair and better regulation is at the heart of regulation. All that lies between us is the question of whether that should be statutory or non-statutory. My experience tells me that unless we introduce statutory protection on enforcement procedures we shall again have slippage. There will be nothing to halt the reversion to the previous unfair levels of playing between the regulated and the regulator.
I hope that the Government will adopt the measure. I hope that they will not go down in history as the Government who removed statutory protection on enforcement from small businesses.
Lord McIntosh of Haringey: My Lords, I am on the side of the moles, not on the side of the eagles. As I am sure the noble Lord, Lord Vinson, knows, I ran a small business for 30 years. I am only too sorry that it was a small business when I stopped running it; I would rather it had been a big business after that time. Therefore, I do not believe that I can be accused of not understanding the problems of small businesses.
This is an entirely proper Third Reading debate. During the Committee and Report stages, amendments were tabled to remove the entire enforcement section of the Bill and replace it with the enforcement provisions of the 1994 Act. That argument has not been repeated from the Benches opposite tonight, although the argument against such a change was effectively and forcefully made by my noble friend Lord Borrie.
The basis of our argument against the 1994 Act provisions, which consist of Schedule 4 to that Act as opposed to Clauses 9, 10 and 11 in this Bill which provide for a voluntary concordat, backed up if necessary by a code of practice, was twofold. First, the Schedule 1 provisions of the 1994 Act were not used. I said that they were hardly used and the noble Lord, Lord Vinson, said that they were never used.
Secondly, when in 1996 the previous government consulted on the provisions of Schedule 1 the result was that enforcement officers believed that the "minded to" procedures were bureaucratic and could be manipulated by illegitimate businesses, and businesses themselves were, to say the least, unenthusiastic about the provisions. On that basis we believed that we responded correctly to the consultation that the previous government had carried out in 1996 and the consultation that we carried out in
536
1999. We resisted the suggestion that we should move away from a voluntary procedure, which could be backed up if necessary and had been approved in consultation, in favour of something which had been tried and basically failed.
What are we talking about today? Despite the very grand speech of the noble Baroness, Lady Buscombe, which was full of fundamental constitutional principles, we have before us an amendment which retains the voluntary concordat in Clause 9 and simply says that if there is to be a back-up code of practice it should incorporate the mandatory procedures set out in Schedule 1, but that the "minded to" procedures in Schedule 1, which were objected to in consultation, should be changed to "intends to". Certainly, that is a worthwhile change. But none of that can justify the kind of attack on the motives and conduct of the Government in bringing forward these changes that we have heard from the Benches opposite.
All that is proposed in Amendment No. 7 is a reestablishment of the mandatory procedures set out in Schedule 1 as part of the code of practice, rather than in the form it appeared in Schedule 1 to the previous Bill. There is a difficulty, in that the reference to Schedule 1 is purely a dictionary reference (as I believe it is called) because Clause 12 of the Bill, which we shall pass in due course—no amendments to it have been tabled—repeals Schedule 1. Therefore, it is not there and cannot be referred to in the way intended.
Nevertheless, I acknowledge that this is a sincere attempt to rectify a fault in the previous procedures—the "minded to" which was so objected to—and make a minor alteration to the code of practice provisions; namely, to change "minded to" to "intends to". But it does not work. We are now at Third Reading and we must have something that works. The prescriptive procedures in Schedule 1 to the 1994 Act would have to apply whenever a code of practice was made and that would result in inflexibility and unnecessary bureaucratic burdens.
I remind the House of the principles of good regulation of the Better Regulation Task Force under the chairmanship of the noble Lord, Lord Haskins. Those principles provide a framework against which good regulations and their enforcement should be measured. One of those principles is targeting, which means ensuring that the approach taken to regulation is aimed at the problem. This amendment adds procedures to the Bill that are not targeted but universal. The result is that the Minister would have to include the "intends to" procedures in every code of practice that he issued regardless of whether those procedures resolved the particular problem that had arisen. The amendment would provide no extra protection to small businesses. Rather than pursue a semi-mandatory, semi-statutory objective, it is far better that enforcement officers spend time helping small businesses comply with regulations in the first place so that enforcement action, or threatened enforcement action, is not necessary. Any code of

537
practice is likely to contain provisions similar to those in the enforcement concordat, because they require that,
"Before formal enforcement action is taken, officers will provide an opportunity to discuss the circumstances of the case and, if possible, resolve points of difference, unless immediate action is required".
Surely, what is proposed here not only has the same objectives, which I believe noble Lords opposite have at heart, but is a more flexible and effective way to do it. Perhaps I may point out to the noble Lord, Lord Freeman, that Haringey has accepted the concordat but Kettering has not.
Lord Freeman: My Lords, Haringey is a Labour seat.
Lord McIntosh of Haringey: My Lords, this is not a grand amendment but an amendment which must be dealt with entirely on practical grounds, and I suggest that noble Lords should not accept it.
I deal briefly with Amendment No. 8. That amendment would make it mandatory for the courts to take into account whether the enforcement officer had complied with any code of practice issued in accordance with the Bill before deciding how to deal with the regulatory breach. It may be that there is no accusation that the enforcer has failed to comply with the code but the court will still be required to establish it. Under the Bill as drafted the court is not automatically required to consider any failure to comply with the code; it has discretion to do so. Surely, that is the right way round. If the court believed for some reason that it needed to establish whether the enforcement officer had complied with the code it would be free to do so, but it would not be required to do so as a matter of course. I believe that the "shall" instead of "may" is in the wrong place in the Bill, but if it is placed in the right position it has no useful effect whatever.
Baroness Buscombe: My Lords, I thank the Minister for his response. To answer the last point, we are content that "shall" versus "may" is in the right place in the Bill. All this afternoon we have tried in both short and long speeches to convey to noble Lords opposite that there is a wealth of difference between ministerial assurances and what is on the face of the Bill. The noble Lord, Lord Borrie, may regard this as a little debate, but it addresses a very serious issue which directly affects the interests of small businessmen. In relation to these amendments, we on this side of the House are more interested in rights than rules. We wholly disagree with the response of the Minister to points that we believe have been made with great strength. On that basis we should like to test the opinion of the House.
5.28 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 84; Not-Contents. 154.

Division No. 3

CONTENTS

Anelay of St Johns, B.

Howe of Aberavon, L.

Astor of Hever, L.

Jenkin of Roding, L.

Attlee, E.

Kingsland, L.

Blaker, L.

Kirkham, L.

Boardman, L.

Lamont of Lerwick, L.

Bowness, L.

Lawson of Blaby, L.

Brougham and Vaux, L.

Liverpool, E.

Burnham, L. [Teller]

Lucas, L.

Buscombe, B.

Luke, L.

Caithness, E.

Lyell, L.

Campbell of Croy, L.

McColl of Dulwich, L.

Carnegy of Lour, B.

Macfarlane of Bearsden, L.

Cavendish of Furness, L.

Monson, L.

Chadlington, L.

Montrose, D.

Colwyn, L.

Mowbray and Stourton, L.

Cope of Berkeley, L.

Murton of Lindisfarne, L.

Courtown, E.

Noakes, B.

Cox, B.

Northesk, E.

Craigavon, V.

Onslow, E.

Crickhowell, L.

Palmer, L.

Dean of Harptree, L.

Park of Monmouth, B.

Dixon-Smith, L.

Pilkington of Oxenford, L.

Eden of Winton, L.

Plummer of St. Marylebone, L.

Elles, B.

Rawlings, B.

Elliott of Morpeth, L.

Renton, L.

Elton, L.

Roberts of Conwy, L.

Feldman, L.

St John of Fawsley, L.

Fookes, B.

Seccombe, B.

Freeman, L.

Selborne, E.

Gardner of Parkes, B.

Skelmersdale, L.

Geddes, L.

Stewartby, L.

Gilmour of Craigmillar, L.

Strathclyde, L.

Glentoran, L.

Swinfen, L.

Goschen, V.

Tebbit, L.

Gray of Contin, L.

Thomas of Gwydir, L.

Griffiths of Fforestfach, L.

Trumpington, B.

Hanham, B.

Vinson, L.

Hayhoe, L.

Vivian, L.

Henley, L. [Teller]

Wade of Chorlton, L.

Higgins, L.

Walker of Worcester, L.

Hooper, B.

Wilcox, B.

Howe, E.

Young, B.

NOT-CONTENTS

Acton, L.

Christopher, L.

Addington, L.

Clarke of Hampstead, L.

Ahmed, L.

Clinton-Davis, L.

Alli, L.

Cocks of Hartcliffe, L.

Amos, B.

Cohen of Pimlico, B.

Andrews, B.

Crawley, B.

Archer of Sandwell, L.

Currie of Marylebone, L.

Avebury, L.

Dahrendorf, L.

Bach, L.

David, B.

Barnett, L.

Davies of Coity, L.

Bassam of Brighton, L.

Davies of Oldham, L.

Bernstein of Craigweil, L.

Dean of Thornton-le-Fylde, B.

Blackstone, B.

Dholakia, L.

Borrie, L.

Dixon, L.

Bradshaw, L.

Donoughue, L.

Bragg, L.

Dubs, L.

Brennan, L.

Elder, L.

Brett, L.

Elis-Thomas, L.

Brooke of Alverthorpe, L.

Evans of Parkside, L.

Brookman, L.

Evans of Watford, L.

Brooks of Tremorfa, L.

Falconer of Thoroton, L.

Burlison, L.

Falkland, V.

Carter, L. [Teller]

Farrington of Ribbleton, B.

539

Faulkner of Worcester, L.

Merlyn-Rees, L.

Filkin, L.

Molloy, L.

Fitt, L.

Morgan, L.

Fyfe of Fairfield, L.

Morris of Castle Morris, L.

Gale, B.

Morris of Manchester, L.

Gibson of Market Rasen, B.

Nicol, B.

Gladwin of Gee, L.

Orme, L.

Goldsmith, L.

Parekh, L.

Goodhart, L.

Patel of Blackburn, L.

Gordon of Strathblane, L.

Paul, L.

Goudie, B.

Peston, L.

Gould of Potternewton, B.

Plant of Highfield, L.

Graham of Edmonton, L.

Ponsonby of Shulbrede, L.

Grenfell, L.

Prys-Davies, L.

Hardy of Wath, L.

Puttnam, L.

Harris of Greenwich, L.

Ramsay of Cartvale, B.

Harris of Richmond, B.

Rea, L.

Haskel, L.

Rendell of Babergh, B.

Hayman, B.

Rennard, L.

Hilton of Eggardon, B.

Rodgers of Quarry Bank, L.

Hogg of Cumbernauld, L.

Sandberg, L.

Hollis of Heigham, B.

Sawyer, L.

Hooson, L.

Scotland of Asthal, B.

Howells of St. Davids, B.

Scott of Needham Market, B.

Serota, B.

Hughes of Woodside, L.

Sharp of Guildford, B.

Hunt of Chesterton, L.

Shepherd, L.

Hunt of Kings Heath, L.

Shore of Stepney, L.

Irvine of Lairg, L. (Lord Chancellor)

Simon, V.

Smith of Clifton, L.

Islwyn, L.

Smith of Gilmorehill, B.

Jay of Paddington, B. (Lord Privy Seal)

Stoddart of Swindon, L.

Stone of Blackheath, L.

Jeger, B.

Symons of Vernham Dean, B.

Jenkins of Putney, L.

Taverne, L.

Judd, L.

Thomas of Gresford, L.

Kirkhill, L.

Thomas of Walliswood, B.

Laming, L.

Tomlinson, L.

Layard, L.

Tordoff, L.

Lea of Crondall, L.

Turner of Camden, B.

Lester of Herne Hill, L.

Uddin, B.

Lipsey, L.

Walker of Doncaster, L.

Lockwood, B.

Wallace of Saltaire, L.

Lofthouse of Pontefract, L.

Walmsley, B.

Longford, E.

Warner, L.

McIntosh of Haringey, L. [Teller]

Warwick of Undercliffe, B.

Watson of Richmond, L.

McIntosh of Hudnall, B.

Weatherill, L.

MacKenzie of Culkein, L.

Wedderburn of Charlton, L.

Mackenzie of Framwellgate, L.

Whitaker, B.

McNally, L.

Wilkins, B.

Maddock, B.

Williams of Crosby, B.

Mallalieu, B.

Williams of Elvel, L.

Marsh, L.

Williams of Mostyn, L.

Mason of Barnsley, L.

Williamson of Horton, L.

Massey of Darwen, B.

Woolmer of Leeds, L.

[*The Tellers for the Not-Contents reported 154 votes. The Clerks recorded 153 names.]
Resolved in the negative, and amendment disagreed to accordingly.
5.39 p.m.
[Amendment No. 8 not moved.]
Lord Falconer of Thoroton: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Falconer of Thoroton.)
On Question, Bill passed, and sent to the Commons.

Children's Commissioner for Wales Bill
5.40 p.m.
The Attorney-General (Lord Williams of Mostyn): My Lords, I beg to move that this Bill be now read a second time. We can fairly describe this as an historic moment. Before I come to the Bill itself and commend it to the House, I wish to make two points. First, we owe an enormous debt to the inquiry carried out by Sir Ronald Waterhouse. I have been re-reading the inquiry's report recently in preparation for the Bill. The more one returns to it, the more grateful one is to the tribunal and particularly to Sir Ronald. The report is a continuing contribution in a long life of public service in Wales and outside. There are many of us present who have been friends and colleagues of Sir Ronald for many years. I know that that tribute will resound throughout the House. Secondly, the Bill is a constitutional milestone because it is the first piece of legislation specific to Wales brought forward in your Lordships' House at the particular request of the National Assembly for Wales.
One of the first priorities of the Assembly's Health and Social Services Committee was the development of policy on the Children's Commissioner for Wales. There had been calls for a commissioner from bodies such as Children in Wales, the Welsh Local Government Association and the Welsh Affairs Committee of another place, and in evidence to the Waterhouse tribunal. The report that was eventually produced by the Assembly recommended that the commissioner should ensure that children's rights are respected through monitoring and oversight of the operation of complaints and whistle-blowing procedures, and arrangements for children's advocacy; examine handling of individual cases brought to the commissioner's attention, including making representations of the merits, when the commissioner considers it necessary and appropriate to do so; and publish reports, including an annual report to the Assembly.
As the House will know, the National Assembly announced in December last year the appointment of Mr Peter Clarke, the former director of Childline Cymru, as the first children's commissioner for Wales. He will take up his post in a few days' time, appropriately on 1st March, just over a year after the publication of Sir Ronald's report.
We were always aware of the Assembly's aspiration for a children's commissioner who would be a champion of children in Wales, would promote their rights, raise the profile of children's issues and take an overview of policies and procedures across services affecting them. I referred to the Assembly's report. The Bill is the response to that vision.
The commissioner is given a principal aim in Clause 2—to exercise all of his functions with the aim of safeguarding and promoting the rights and welfare of children in Wales. That is the essence of his role; a champion of children's rights with a wide-ranging remit. The width of that remit is seen in later clauses of the Bill. It gives the power to the commissioner to

541
review the effect on children in Wales of the exercise of functions by the Assembly and other public bodies for which it has responsibility, such as local authorities, health authorities and named Assembly-sponsored public bodies.
Public bodies are not simply those obviously connected with children, but include many diverse organisations which may affect children, such as the Welsh Development Agency, the Sports Council for Wales and the National Museums and Galleries of Wales. The Assembly clearly believes that it should be subject to the same scrutiny. All of its activities, including the making of subordinate legislation, will be open to the commissioner's scrutiny. Perhaps I may make two points in that respect. First, it is the mark of a confident Assembly that subjects itself to that scrutiny. Secondly, the commissioner himself will have very wide powers indeed.
The Care Standards Act, which I appreciate is recent legislation, already gives the commissioner power to examine cases of particular children and to assist in particular cases. The Bill extends those powers. The precise application will depend, quite rightly, on regulations to be made by the Assembly, but it could apply to a very wide range of bodies. The Bill will extend the range of the commissioner's power to review and monitor arrangements for complaints procedures, whistle-blowing and advocacy. That will cover local authorities, the National Health Service, schools and other education establishments, and training organisations.
In support of those functions, Assembly regulations will be able to empower the commissioner to require bodies to provide information to him if they are involved in the investigation of individual cases or if their arrangements for complaints, whistle-blowing and advocacy are being monitored. That power is backed by legal sanctions.
Even on this brief explanation I hope your Lordships will have seen that these proposals go beyond the recommendations of the Waterhouse report, which have already been implemented. No one can forget the lessons of the Waterhouse report. Accordingly, perhaps it is inevitable that there has been a good deal of focus in respect of the role of the commissioner with regard to children looked after by local authorities. That is a key role. However, I should make it plain that the Assembly does not envisage the commissioner taking the place of the existing statutory child protection agencies or the regulatory and inspection role of the planned care standards inspectorate for Wales. Nor is it the intention that the commissioner should seek to take the place of existing systems or routinely investigate cases directly.
The Assembly report made it plain that the commissioner was expected to undertake formal investigations only when a matter of principle is at stake. We see the commissioner's role in respect of child protection systems as being essentially a strategic role of ensuring that systems are in place and working effectively. He will need to co-operate with a wide range of bodies. He already has the powers to do that.
542
He therefore has a roving brief to consider the effects on children and young people of the activities and policies of a wide range of public bodies. He will be able to raise the profile of children's issues and to build up what has been lacking in the past; namely, a coordinated view of how public bodies, directly or indirectly, affect children in their daily lives.
I have indicated that the Bill is a milestone. It is a sign that the devolution process is alive and functioning vigorously. The Assembly has a wide range of responsibilities. The majority of services that impact on children will therefore be within the commissioner's formal responsibility. Even if some issues are outside the statutory remit, he does not have to stay silent. If during the course of his work he receives representations about non-devolved matters, he can bring them to the attention of relevant government departments and in so doing can indicate his views. He can also bring to the Assembly's attention complaints and information he receives about non-devolved matters. He can do that, of course, through the annual report to the Assembly. The Assembly itself can establish a framework for that through regulations in the light of matters raised by the commissioner, and the Assembly itself may wish to consider matters and make representations to the Government at Westminster.
This is, in text, quite a short Bill. It is a very significant step forward. I repeat our gratitude to Sir Ronald and underline that it is entirely fitting that this first measure brought before the House at the request of the National Assembly for Wales is one aimed at tackling the needs of children and young persons in such a radical way. For those reasons, I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Williams of Mostyn.)
5.49 p.m.
Lord Roberts of Conwy: My Lords, we are all grateful to the noble and learned Lord the Attorney-General for his clear exposition of this short but historic Bill, the first piece of primary legislation requested of this Parliament by the National Assembly for Wales. I am happy to join in the general welcome being given to the Bill. The fact that it has enjoyed an easy and unimpeded passage through another place is promising and gives grounds for hope that future requests from the Assembly for other pieces of legislation will be equally acceptable, at least in principle.
To my mind, there were two inspirational mainsprings for the proposal to establish a children's commissioner for Wales, neither of which is mentioned on the face of the Bill. The first was the wide-ranging United Nations Convention on the Rights of the Child, adopted in 1989 and ratified by John Major's government in 1991. A number of European and Commonwealth countries have subsequently established children's commissioners or ombudsmen. Others, notably Denmark, Sweden and South Australia had made special arrangements before the convention was adopted.

543
The Care Standards Act, passed during the last Session, established the first children's rights director within the commission in England, which I understand will come into existence in April 2002, as well as the post of an independent commissioner in Wales, whose scope and functions are to be extended under the Bill before us. The Bill goes some way, but not all the way, to meeting the aspirations of the Health and Social Services Committee of the National Assembly for Wales. It consulted widely on this matter and it is to be commended on its report.
However, there is no doubt in my mind, and here I fully agree with the noble and learned Lord, that the strongest impetus to establishing the office of children's commissioner in Wales was the direct recommendation to that effect made by Sir Ronald Waterhouse in his encyclopaedic report on his inquiry into child abuse in north Wales. That inquiry was established by my right honourable friend William Hague when he was Secretary of State. The gross abuse of young people detailed in Lost in Care shocked the nation and aroused a determination that everything should be done to ensure that such systemic mistreatment of young people should never be allowed to happen again.
Sir William Utting argued for a similar independent commissioner's office in a foreword to Peter Newell's 1991 report, Taking Children Seriously: A Proposal for a Children's Rights Commissioner. Mr Newell listed more than 100 organisations dealing with children as supportive of the idea. To that end, some distinguished organisations have combined to form the Children in Wales Commissioner Campaign Group. The group welcomes the Bill, but feels that it does not quite match up to the vision of the National Assembly and that the Welsh commissioner's office falls short of international standards. I am bound to say that the group is to be complimented on its tenacity.
It is as well to remind ourselves at this point that child abuse is not confined to Wales. According to the Independent newspaper of 8th January, no fewer than 67 police inquiries are either continuing or have been recently completed, involving 32 of the 44 police forces in England, Wales and Northern Ireland. Their locations range from Greater Manchester to Devon and Cornwall and involve 400 homes and schools, with at least 2,000 possible victims and some 415 suspects. Those figures give noble Lords some idea of the extent of suspected abuse of children.
Other material gleaned by the Independent and recent court cases, such as that which revealed the terrible and tragic fate of little Anna Climbie, suggest that further profound shocks may be in store for the public, which could well result in a demand that still more should be done to safeguard vulnerable children against physical and sexual abuse. Indeed, paedophile rings operating on the Internet are also causing deep concern.
It is not surprising that some, including Philip Hammond, the Conservative spokesman on the Care Standards Bill in another place, are asking why there
544
is not an independent children's commissioner for England and there is for Wales. After all, this was a recommendation of the Health Select Committee in another place. I shall be surprised if the English dimension does not feature in this debate.
One of the key questions that has to be asked about the Bill before us is whether it goes far enough to prevent child abuse in Wales. It is clear that the commissioner's scope for reviewing and monitoring arrangements for safeguarding children directly provided with services by statutory bodies is to be considerably extended in terms of the authorities covered. We welcome that. As the noble and learned Lord pointed out, the National Assembly itself, along with its subsidiary bodies, is to be brought into the commissioner's frame. He will have the power to consider and comment on the possible effects on children of any existing or proposed Assembly legislation or the exercise of any other function by the Assembly or its related bodies operating in devolved areas. Could this power extend to primary legislation, such as the Bill before us? On my reading, it would not.
The inclusion of further and higher educational institutions and young people up to the age of 18 and occasionally older has raised the issue of whether the title of "children's commissioner" is adequate. Perhaps the words "young people" or "persons" should be added to it.
Although the scope and powers of the commissioner have been enlarged, they are confined to the areas of government that have been transferred to the National Assembly under the Government of Wales Act. There are of course non-devolved areas, some of which are controlled by the Home Office, where children and young people are provided for. The commissioner's writ does not run to these areas and whatever reassurances are given by Ministers, undoubtedly there is a loophole here which the Bill's critics have properly highlighted. It is not easy to understand why the Welsh Language Act, for example, covers all public authorities operating in Wales.
There is also some uncertainty about the commissioner's role in relation to Welsh children cared for across the border in England, and English children cared for in Wales. It is hoped that we shall be able to deal with these and other matters in Committee.
While we are concerned about the extension of the scope and powers of the commissioner, we are concerned also about their depth and effectiveness in rooting out and preventing abuse. I recognise that this is a difficult area to deal with. Much is made of the point that children should be listened to, and I am sure that that is right in these circumstances. The first children's commissioner appointed in Wales, Peter Clarke, as a director of Childline, is very experienced in listening to children. But abused children are reluctant to talk. They are far more likely to be ashamed, cowed, fearful and silent. That is the ugly reality that haunts the pages of the Waterhouse report.
When abuse is suspected and reported to the police, a curtain of silence then inevitably descends while the police carry out their inquiries, which may continue

545
for months or even years. Worse than the silence that accompanies suspicion of abuse is the paralysis that grips those in authority and everyone else who may be at fault in some way. I am not certain that this Bill has truly got to grips with those problems.
The commissioner cannot comment on matters that are sub judice or cases decided by a court or tribunal. This may make sound legal sense, but coupled with the limitations placed on his investigative and access powers, it leaves ominous gaps in the commissioner's role as children's champion.
The prevention of abuse is far better than cure and the Bill is right to emphasise the commissioner's role in reviewing and monitoring arrangements that involve the welfare of children and highlighting the effect of failure to make such arrangements. However, there is an argument for giving the commissioner stronger investigative and access powers in the event of need. Otherwise, the commissioner may become a remote, tangential and almost powerless figure if a crisis occurs. Furthermore, it is difficult to see how he can carry on his job of monitoring effectively if he cannot check things on the ground.
Of course, the principal aim of the commissioner, as defined in Clause 2 and spelt out in detail elsewhere, extends beyond the prevention of abuse into the positive promotion of the rights and welfare of children. Some may feel a little uncomfortable with the possible implications here. There is the threat of an overweening bureaucracy, thrusting confusedly in all kinds of directions and interfering unnecessarily in all kinds of areas, including normal family life and normal child-parent relationships. Some of us still remember the Orkney children scandal of 1991 when nine children, aged eight to 15, were taken from their beds by police and social workers. Before that, there was the Cleveland fiasco which arose from what I can best describe as an excess of paediatric zeal. I hope, as did Sir William Utting, that,
"the rights of children and the rights and responsibilities of parents prove mutually supportive".
In welcoming the Bill, the NSPCC summed up its criticism with enviable clarity and precision. It said:
"The Government should strengthen the legislation to allow the Commissioner to comment on non-devolved matters, cross border services and court and tribunal decisions as well as give powers to the Commissioner to enter institutions which contain children and adults. This would assist the Commissioner to put children's interests first. As a matter of urgency, the Government must establish a watchdog and champion for all the UK's children by introducing Commissioners in England, Scotland and Northern Ireland.
It is to be hoped that we can go into some of these matters at later stages, limited in time as those stages may inevitably be if the Bill is to become law before an election is called.
I am sure that we are all agreed that children's rights and welfare are all-important and that this measure, imperfect as it is in some ways, will assist the commissioner in Wales to safeguard and promote those rights. The Opposition will therefore give the Bill a fair wind and do what we can to help it to reach a safe
546
haven in the statute book before the tempest of the election blows prospective legislation to the four winds.
6.2 p.m.
Lord Thomas of Gresford: My Lords, in introducing the Bill, the noble and learned Lord the Attorney-General said that this was an historic moment. Indeed it is. No one who was with us during the passage of the Government of Wales Bill will doubt my own commitment to devolution over 40 years and my desire to see the Welsh Assembly and everything that it stands for succeed. I have to welcome this very first piece of primary legislation that relates to Wales.
However, I also have to admit to a measure of disappointment about the Bill. I had hoped that, unless there was a very good reason, the reservation of primary legislative power to Westminster would not prevent the informed will of the Assembly from prevailing. When people have asked me what is the point of the National Assembly, as people tend to in Wales, I say, "In policy formation you have the most considered and informed group of people who are investigating the issues and coming to conclusions".
Indeed, in this case, the Health and Social Services Committee investigated this issue with great thoroughness. It had 94 responses to its inquiries and it received oral evidence from many organisations such as the NSPCC, Barnado's and others. It came to the firm conclusion that the committee,
"fully endorses the key principles of the rights of children as defined in the United Nations Convention on the Rights of the Child".
The committee went on to say:
"The UN Convention informed the overarching context in which we approached this task; which is our commitment I o the rights of all children and young people to be treated as valued members of the community whose potential must be fully developed through appropriate policies and services and the meaningful representation of their interests".
The committee said:
"We want the Commissioner to ensure that children and young people are listened to and enabled to play an active part in determining the services and opportunities offered to them; that their needs and views are taken into account across the range of policy-making, planning processes, and provision for all relevant services".
This theme of the committee was taken up in the debate which subsequently followed on 7th June last year on the floor of the National Assembly. Jane Hutt is the Assembly's Health and Social Services Secretary concerned with this matter. Bearing in mind that she is of the Labour Party, of the Labour Government, she said:
"We turn to the UN Convention on the Rights of the Child as a starting point because it has been instrumental in the past decade in helping to set up an accepted international framework for the treatment of all children. The aim has been to advance an international commitment to protecting children's rights, to raise the profile of children and to foster a competent and positive image of children as pro-active holders and users of rights of citizens of the world".
Those were very embracing words put forward by the Assembly's Health and Social Services Secretary. They took into account not only a part of a child's life

547
and of the matters that affect children but the child as a whole. We were looking—indeed, amendments were tabled in the National Assembly to make this absolutely clear from these Benches—for a children's commissioner for Wales who would not be concerned with only a part of a child's life but with the whole of a child's life; who would represent all the human rights to which a child is entitled.
This Bill, as it has been sent here from another place, is, in my view, a pale shadow of the Assembly's wishes. It is limited in its extent. It is limited to deal only with those parts of the rights of a child as are covered by what has been called the "devolution settlement", the functions that have been devolved to the National Assembly.
When we were debating and considering those functions which should be devolved to the National Assembly, no one had it in mind for a single moment that we were in any way limiting the way in which the children of Wales should be considered. Attempts that were made in Committee in another place to promote compliance with the United Nations convention were not accepted by the Government; attempts that were made to widen the ambit to include all the problems that a child faces were rejected in Committee in another place, and we have here a limited Bill.
Reference has been made to Sir Ronald Waterhouse and to his excellent report. I too add my commendations on the work he carried out. Those of us who have known him for so long realise that he has fulfilled all his potential in doing what he could in respect of the problems that he was asked to consider.
Those problems affected institutions in my own area, in Wrexham and its surrounding area. I know the institutions intimately. It seems to me so curious that the children's commissioner for Wales under this Bill would not have had the right to enter those institutions had he wanted to do so. Why the right to enter care institutions such as Bryn Estyn, where the worst of the abuse took place, has been denied to the commissioner is a matter I should like the Government to explain.
The results of limiting the ambit of the children's commissioner simply to the functions which come under the National Assembly for Wales are widespread. The effect on children of any social security measures may not be reviewed by the commissioner. We heard at the weekend, at some conference which was held involving the Labour Government, that child poverty was to be at the forefront of their campaign at the next election—and yet child poverty in Wales, in so far as it is affected by the social security system, would be outside the ambit of the children's commissioner. The effect of the Child Support Agency could not be challenged. Complaints or representations made in individual cases involving social security could not be considered.
But that is social security. When it comes to the Home Office area of responsibility for functions which have not been devolved, the problem is stark. The children's commissioner could not carry out a report on the youth justice system—on, for example, the effects of curfews
548
on children and on the effects of the probation services. Youth offender institutions could not be looked at. Nothing concerning the rehabilitation of young offenders would come within the commissioner's purview. Bullying would presumably be regarded as a police matter, and would come under the Home Office.
Assurances that the commissioner would not be gagged and that he could make some kind of informal report are not enough. The whole point of the Care Standards Act, which this Act amends, is that it gives powers under subsections (3) and (4) of Section 74 to require persons to provide information, explanations and other assistance and to exercise a coercive power similar to that of the High Court to require the attendance of witnesses and to call for papers. How the commissioner can expect to produce a report on social security or home affairs issues when he has no powers to investigate in the way that he ought to be able to is beyond me.
Further, as the noble Lord, Lord Roberts of Conwy, pointed out, there can be no investigation by the commissioner into the decisions of courts or tribunals. One matter that is currently in the news, for example, is the level of criminal injuries compensation payments. There is a promise that the matter will be reviewed by the Home Secretary before the next election. I shall have a great deal to say about it in due course. The children's commissioner for Wales would not be able to comment on the level of compensation given to child victims of the kind of attack that took place in the Midlands not so long ago.
Under the Bill as drafted, the commissioner's powers are limited to reviewing what goes on within the areas of his responsibility in any event. So the commissioner cannot propose measures for primary legislation. Indeed, children who are ordinarily resident in Wales are outside his purview.
What is the justification for this? It is said that to do otherwise would offend the devolution settlement. The Minister in another place, Mr Hanson, said in Committee that the,
"underlying principle is that the commissioner is the creation of the National Assembly, with Government support, and of the legislation that we have enabled the Assembly to enact. It is therefore right and proper that the commissioner's functions should coincide with the Assembly's areas of responsibility".—[Official Report, Commons, Standing Committee F, 30/1/01: col. 112.]
As I understand it, the Minister is trying to say that the independent children's commissioner for Wales will be employed and chosen by the Welsh Assembly and will, ipso facto, be limited to reviewing and commenting on only devolved matters.
That is not good enough; it is not an answer. Although the National Assembly for Wales may appoint the commissioner and pay for and receive reports from him, the commissioner is a creature of Westminster. It is primary legislation that is being passed; nothing can prevent the Houses of Parliament giving such powers as they think appropriate and fit to a person in that position. So it is no answer to say that the commissioner is appointed and paid for by the Assembly. He is a creature of Westminster and can be given just such powers as we choose to give him.

549
The matter can be looked at in another way. The Assembly has power, under Section 33 of the Government of Wales Act, to,
"consider, and make appropriate representations about any matter affecting Wales".
It is a broad power. Attempts were made in another place to introduce a similar concept into the powers of the children's commissioner for Wales. Again, those attempts were rejected.
We shall examine the Bill with some care. I hope that this House will ensure a return to the original concept developed by all parties in the National Assembly for Wales. No particular party can take credit: Labour, Plaid Cymru, Tories and Liberal Democrats were all involved in arriving at an agreed solution. If the retention of primary legislative power in Westminster is to be at all acceptable to the people of Wales, it is surely the duty of Westminster to pass the legislation that the National Assembly for Wales wants.
6.15 p.m.
Lord Prys-Davies: My Lords, I, too, welcome the Government's decision to introduce the Bill. It is a short Bill, with only eight clauses. However, it represents a significant step forward in safeguarding and promoting the rights and welfare of children. It is also an historic Bill: it is the first public Bill to be sponsored by the National Assembly for Wales.
The genesis of an independent children's commissioner is to be found in the United Nations Convention on the Rights of the Child and in the reports published by a number of UK charities in the 1990s—in particular, Taking Children Seriously, published by the Gulbenkian Foundation in 1991, and Childhood Matters, the report of the National Commission into the Prevention of Child Abuse, under the distinguished chairmanship of my noble and learned friend the Attorney-General.
But it was the recommendation of the Waterhouse inquiry into the appalling abuse of children in care in North Wales which brought home the case for moving ahead without delay to appoint a children's commissioner for Wales. One of the very few gains from the accumulation of appalling events disclosed by the Waterhouse tribunal is that it served to arouse the public conscience. The tribunal's report was published on 15th February last year. The office of the children's commissioner for Wales was created by Part _ V of the Care Standards Act. It is to the immense credit of the Welsh Assembly and the Government that they have, in under 12 months, brought forward this Bill.
I appreciate the encouraging tenor of the opening speech of my noble and learned friend the Attorney-General. He knows as much or more about this subject than any other Member of this House. I appreciate also the positive speech of the noble Lord, Lord Roberts of Conwy, in committing the support of the Official Opposition. I shall turn later to the speech of the noble Lord, Lord Thomas of Gresford.
I trust that I shall not be considered out of order if I say that I shall miss the contribution of my noble friend Lord Cledwyn of Penrhos, to these debates. He
550
has been a true friend and ally in many a battle. I believe that this is the first occasion in 50 years when, sadly, the voice of my noble friend will not be heard in the course of the parliamentary passage of a Bill which has special significance for Wales.
In my approach to the Bill, I am guided by the report of the Health and Social Services Committee of the Welsh Assembly. As we have heard, the committee consulted widely on its own proposals, receiving submissions from 94 organisations and from individuals. The organisations are listed in the report. It is an impressive list. Further, all the representatives of the political parties in the Welsh Assembly strongly support the committee's recommendations. I reiterate the tributes paid to the committee.
I am also guided by the advice that we received from the Children in Wales Commissioner Campaign Group, which is a very important skill group. Among its members are representatives of the leading charities, Barnardo's Cymru, Children in Wales, the Children Society in Wales, NSPCC Cymru and Save the Children, together with representatives of the Royal College of Paediatrics and Child Health (Wales Branch). These bodies have a fine record in safeguarding and promoting the rights and welfare of children. They know very well how services for children in Wales are working. Clearly their views on the Bill cannot be lightly set aside.
The children's campaign group welcomes very much Clauses 3, 4 and 5 as an important step forward. But it must also be said that the group is disappointed by the limitations in the Bill. It regrets that the Government were not persuaded when the Bill was in another place to accept any of the amendments that were intended further to extend the functions and powers of the commissioner. The validity of the explanations given by the Ministers in another place for rejecting the amendments are now being seriously challenged. I understand that my noble and learned friend Lord Williams of Mostyn knows that the campaign group has obtained legal opinion of leading counsel, who has advised that the reasoning is not well conceived. I also understand that my noble and learned friend has been given a copy of that opinion.
The noble Lord, Lord Thomas of Gresford, has already identified the major areas of concern to the commissioner campaign group, and others. The Bill is criticised on three main grounds, which I shall summarise as follows: first, that the policy and performance of the UK government departments providing services for children ordinarily resident in Wales will be outside the commissioner's remit; secondly, that the commissioner will not have power to enter premises; and, thirdly, that the commissioner will be debarred from inquiring and reporting on any matter that has been determined by a court of law.
I should like to elaborate a little on the first criticism. In dealings with government departments, or agencies not operating in devolved areas, it is strongly felt that too much is left to individual departments or agencies to decide for themselves how

551
they will relate to the commissioner. It was said repeatedly in another place that the commissioner will have to rely on goodwill and informal connections.
But what will be the case where the UK government department, or an agency operating in a non-devolved area, is not sympathetic to the commissioner, because it may wish to guard itself against potential criticism, potential embarrassment, or whatever? We are surely right to ask that question, and to envisage the problems that could arise when the commissioner has to rely on goodwill alone. Moreover, the commissioner will be subject to the doctrine of ultra vires—a point that has not been much discussed.
I am sure that the commissioner will do his very best in any dealings with UK Government departments, or with non-devolved agencies. However, there is a fear that he may not be able effectively to undertake tasks that may be expected of him by children and parents when these involve non-devolved agencies, or Whitehall departments. In that event, public confidence in the office of the commissioner could be diminished, not because of what he does for children but because of what he cannot do for children in Wales by virtue of the legislation.
I turn to one further issue. There is nothing in the Bill about the United Nations Convention on the Rights of the Child. But that convention can be said to be at the core of the aspirations for a children's commissioner. I believe that many organisations and individuals had expected the Bill to contain a statement of principle that the commissioner for children in Wales would always act in the spirit of, and by reference to, the UN convention. If there are technical reasons why we cannot go as far as incorporating any of the provisions of the convention in the Bill, I wonder whether the Government could consider the possibility of inserting what is known as a "purpose clause" into the Bill. Such a clause would not impose a legally enforceable duty, but it would express in a simple, short form what is Parliament's intention in enacting the legislation. I wonder whether a purpose clause would fill the lacuna.
I can think of no better augur of the success of the National Assembly than that it should have brought forward proposals for primary legislation to extend the powers of the commissioner. Our Government are committed to making devolution work. That commitment was renewed in the Royal Address delivered in this Chamber on 6th December last.
Under the terms of the Welsh devolution settlement, the objectives of the National Assembly, where they are dependent on the passing of new primary legislation, can only be achieved in partnership with the UK Government and the Houses of Parliament. This Bill provides an opportunity for the Assembly and for Parliament to work in partnership. If that partnership gets the Bill right, that will demonstrate the merits of the Welsh devolution settlement. Is my noble and learned friend in a position to inform the House whether the Assembly is fully satisfied with the terms and the effect of the Bill that is now before us? I have a feeling that the Constitution Committee of your
552
Lordships' House may wish to examine carefully as time goes by how well Sections 31 and 33 of the Government of Wales Act 1998, and the Protocol with the Secretary of State for Wales, are working in the interests of Wales and of the Parliament of the United Kingdom.
If new primary legislation fails to meet the legitimate needs of the Welsh National Assembly that will generate disaffection and demand for reform of the devolution settlement; and that could lead to instability and all the consequences of instability. Unless we are assured that the Assembly is broadly satisfied with the Bill as it stands, it would be greatly appreciated if my noble and learned friend the Attorney-General could persuade his ministerial colleagues that the Government should make some adjustments in the Bill in order to address the weaknesses which have already been identified.
6.30 p.m.
The Earl of Listowel: My Lords, I warmly welcome the Bill before us today, as have the previous speakers. I take the opportunity to praise the Government's record of achievement as regards children. This may be the last piece of legislation which directly affects children that is introduced before a general election.
The Government have succeeded in reducing the size of primary school classes. Our children are receiving a better education at a time when education can most benefit them. The Government have greatly strengthened the protection for children in care and beyond through their Care Standards Act and Children (Leaving Care) Act. I express my particular gratitude to the noble Lord, Lord Hunt of Kings Heath, for his amenableness and diligence during the passing of those Acts.
The Homes Bill, which we are shortly to receive in this House, increases the housing priority of 17 and 18 year-olds and requires local authorities to develop a homelessness strategy which the charity Shelter believes will significantly reduce the numbers of children and families becoming homeless.
It was encouraging to hear the Shadow Chancellor, Michael Portillo, speak eloquently at Toynbee Hall, the East End settlement, of the need for better care for our children. He took the trouble to be present on that occasion less than two hours before he responded to the Government's Budget.
We need an effective children's commissioner for Wales because children have no vote, depend on adults and are recognised as having suffered unacceptable levels of abuse and neglect in our society. They need a strong advocate and that is what an effective commissioner will provide—an ear and a trumpet for children.
I make the following observation, however. Focus groups, social exclusion unit reports and children's commissioners' advice are all helpful but can only be meaningful if taken in tandem with personal experience. I submit that interested parliamentarians still need to visit children and families in temporary accommodation, in women's refuges, in children's

553
homes and in foster and adoptive families. The establishment of a children's commissioner should not be an excuse for legislators to spend less time with vulnerable children and families.
I beg the Minister to consider extending the powers of the commissioner further than the Bill currently allows. It would be generous of the Minister to extend the powers of an official appointed by the Welsh Assembly to non-devolved matters. It would be generous of Parliament to allow him to do so. In these particular circumstances it would also be right to do so.
British children particularly need children's commissioners. We have the highest divorce rate in western Europe; we have more reconstituted families and our families are in greater danger of family dysfunction. Most child abuse occurs in families. Having a step-parent, particularly a stepfather, increases one's risk of being abused. We have the lowest age of criminal responsibility in Europe. In France it is 13; in Belgium it is 16 or 17, depending on circumstances; in Britain it is 10. We have the least regulated, most dynamic economy in Europe. We have to be all the more careful that there is adequate protection for children of families who are losers in this competitive economy from which the rest of us benefit.
We have more households in temporary accommodation than at any time since 1978. I am advised that most of those comprise families. Children are growing up in damp, overcrowded and unhygienic conditions, as I have seen. In Newham I visited a mother with three young children. Water was almost running down her walls. Another family had a lavatory which doubled as a shower.
Wales will receive asylum seekers. Many of the children involved will speak little English. They will need a strong advocate to ensure they receive adequate help in learning English and that they are protected from bullying.
It is important that the commissioner has the right to comment formally on certain aspects of tribunals and legal cases. Often the manner of our treatment of children in courts is lacking. We lack the admirable French system in which there is a juge d'enfance who visits families and takes family circumstances into account. The European Court of Human Rights found that we infringed the rights of Venables and Thompson. In a similar murder case in Norway, the identities of the children were not published. We need a commissioner who can obtain the necessary information to be able to comment formally on the way we treat children in court.
Over the past two years we have heard in this House of the inadequate provision for children held in prisons, most particularly at Medway secure training centre and at Feltham young offender institution. There has been a lack of education provision among other lacunae. We need a Children's Commissioner for Wales who can speak up for children in penal institutions and who can speak up for Welsh children resident in English prisons and
554
remand centres. He needs the power as of right to enter these institutions. This Bill does not allow the commissioner to be an independent children's champion and watchdog, as requested by the National Assembly for Wales and as claimed by the Secretary of State for Wales at Second Reading in the other place. I hope that the Minister will consider favourably in Committee the amendments to increase the commissioner's powers.
6.37 p.m.
Baroness David: My Lords, I appreciate that this Bill is primarily a matter for Wales, but, given that we are debating legislation to establish the first children's commissioner in the UK, I do feel that there are UK implications. My own involvement with these matters started a long time ago in 1990, when I was on the Advisory Board for the Gulbenkian Foundation's development of a proposal to establish UK-wide children's rights commissioners. I believe that was where it all started, and in my view it has taken much too long to get to the point of actually establishing powerful independent bodies to represent children's interests.
The proposal has since attracted very wide support from over 100 children's organisations and professional groups and, from looking at the debates on this Bill, it appears to have all party support nowadays too. Around Europe, lots of countries have commissioners and ombudspeople for children up and running.
I was delighted when the National Assembly for Wales set out its proposals for a watchdog and champion for children last year, and even more delighted when the Government agreed they could find time for legislation to broaden the powers of the commissioner in this Session.
But it is clear from the debates on the Bill, and from the briefings we have received, that there are serious concerns as to whether the legislation establishing the commissioner provides for a real champion and watchdog. It is no good being half-hearted about these things. Surely we have learnt enough from the tragedies of abuse in North Wales and elsewhere to know that children need powerful, independent advocates.
You cannot be a powerful champion for children if you have to keep looking over your shoulder, or at the small print of your legislation, to make sure you are not acting ultra vires. For Ministers to state, as they have, that the commissioner will be able to comment "informally" on matters over which he has no formal powers is most unsatisfactory. Nor is it satisfactory to limit powers of a human rights institution just because of the existence of other public bodies, inspectors, for example; they are not operating from the particular perspective of children's human rights and welfare.
Nor is it enough to rely on the goodwill of future administrations to interpret the commissioner's powers broadly: the whole purpose of this sort of champion is to advocate fearlessly for children when goodwill is absent.

555
It seems plain to me that the commissioner should have, and be seen to have, a broad power to review and report on anything which affects the rights and welfare of children in Wales. This is not a decision-making body: whatever powers the commissioner has will be soft powers—only to monitor, review, report and so on. But surely it is perfectly obvious that a commissioner cannot be constrained in these powers by the distinction between devolved and non-devolved matters. You cannot divide children up like that. In Northern Ireland, the Human Rights Commission has been allowed broad powers; why not this commissioner?
In previous debates, the Parliamentary Under-Secretary of State for Wales suggested that it would be inconsistent with the devolution settlement to allow the commissioner powers in relation to non-devolved matters. Given the nature of the powers, that seemed unlikely, and I gather we now have authoritative legal opinion that there is no conflict with the devolution settlement.
I appreciate that we are working against time here but it is important, not just for Wales, to get this legislation right and to ensure that the children's commissioner lives up to the Assembly's vision, to children's expectations and to international standards established for human rights institutions, with which I know the Minister will be familiar.
I hope that, given the evident concern—it has been obvious from the speeches today—that the Government will be able to come up with a positive response by the time we get to the Committee stage. The Government have done so much to bring human rights home. Surely we can use the passage of the Bill through this House to create a new-style institution of which we can all be proud without reservations. I know that the noble and learned Lord has been very involved before with these matters with the NSPCC; he must know what we are talking about. I hope and am sure that he is capable of paying attention and bringing about a Bill of which we shall all be proud.
6.42 p.m.
Lord Morgan: My Lords, like other speakers, I greatly welcome the Bill. I congratulate the National Assembly for Wales on its progressive and inclusive approach. I welcome the Government's framing of the Care Standards Act, and their swift action in bringing this historic piece of Welsh primary legislation forward for debate as quickly as possible. The Children's Commissioner for Wales will provide a megaphone for justice and the welfare of children's rights. All who were shocked by the results of the Waterhouse inquiry will greatly welcome the measure. The noble Lord, Lord Roberts, observed that Wales is first in this area. That is to be welcomed. We hope that it will be a goad and stimulus to the introduction of a children's commissioner with similar responsibilities in other parts of the British Isles.
The Bill contains some welcome features. Since the tone of some of the debate has been somewhat critical, we should emphasise the more positive features. A new
556
dimension to the children's commissioner is as a whistle blower but with power to inquire and to report, with considerable back-up from the finance provided through the mechanism of the Welsh Assembly. It is important that he should have that wider range of powers: there should be no clash of function between the investigative role of the commissioner—for example, in relation to children's homes—and inquiry agencies and other bodies. We would not want confusion, particularly in that area.
The commissioner's role is also more comprehensive and covers a range of health, educational and social services provided by a variety of statutory bodies. He will report to the Assembly. As my noble and learned friend the Attorney-General observed, the Assembly will be within the remit of the commissioner. The measure is very welcome. It has all-party support. It benefited from the inclusive nature of the Welsh Assembly. It is evident from this debate that there will be broad support for it in this House.
For those interested in devolution, it is, as my noble and learned friend observed, an historic moment. It is the first such measure to come from the National Assembly for Wales. The Assembly is often criticised, even derided, for the weakness of its powers. Like the famous death of Mark Twain, perhaps its weakness has been exaggerated. This measure demonstrates the Assembly's potential to be more effective. It shows that the Assembly is not limited to secondary legislation and statutory instruments. It can further the cause of primary legislation. If such a measure goes through the National Assembly for Wales and is then promoted by the Government, the Assembly has, in effect, a primary role.
Another criticism of the Assembly is somewhat weakened by the Bill: that is, that the Assembly has a purely executive role. If one considers the range of responsibilities which flow from the Bill, including the commencement orders, the executive and legislative roles of the Assembly become more merged.
I have some sympathy with the unease expressed by many noble Lords—from this side of the Chamber, from religious leaders and from children's charities—about the non-devolved powers, and the pressure to give the children's commissioner an almost unfettered remit. It is a serious point. It is difficult to demarcate. I suppose that that is what is meant by joined-up government. People, including children, have joined-up lives. One facet of their life experiences, often sad, impinges on another.
The noble Lord, Lord Thomas of Gresford, outlined a number of important areas. I draw attention to the Home Office responsibilities. It may be unreasonable for juvenile offenders to come under the remit of the children's commissioner, although there would be considerable overlap. However, it is worth emphasising this point. Agencies concerned with children as victims of crime involve the social services, schools, children's charities and voluntary organisations such as Victim Support. Increasingly, they have specific training as regards juvenile experience. They deal with proper sensitivity with the

557
traumatic effects of a crime which may be physical, or the result perhaps of observing indirectly a crime inflicted on others such as parents. It is an area which impinges closely on the experience of children and, therefore, on the role of the children's commissioner.
The Government have shown open mindedness. I understand that the children's commissioner can comment on and bring before the National Assembly for Wales the widest range of factors and agencies which impinge on a specific aspect of a child's experience. That is the way it should be done.
I have every sympathy with the important comments of my noble friend Lord Prys-Davies about not being tied down too narrowly, and about taking seriously legal opinion about what is or is not a devolved matter. At the same time, surely we do not want to unpick the devolution settlement. It was contentious and controversial at the time, and has only recently attained a more inclusive form and atmosphere in Wales. I hope that improvements will be considered in Committee, but devolution should not be unpicked at this stage. One can compare the roles of children's commissioners in different European countries, but devolution is a many-sided process that has created many forms of administration, so the parallels are not always close.
I hope that devolution will move on and acquire still greater substance. I hope that the children's commissioner will move on too, as an essential and important part of that process. Like other noble Lords, I hope that the House will pass the Bill effectively and quickly as the basis of a humane and enlightened proposal that reflects the moral consensus of a civilised society.
6.51 p.m.
Baroness Andrews: My Lords, I join others in welcoming the Bill. This is a proud day for the Welsh diaspora in this House in two senses: this is the first devolved Bill to reach this House and it puts children first. In both senses, it speaks of a better future.
In creating a children's commissioner last year and now in providing deeper and wider rights to safeguard and promote—those words are equally balanced in Clause 2—the rights and welfare of children in Wales, Wales has forged ahead and joined other progressive nations that have given children the right to be heard, to be fully protected and to be nourished for the future. Although we have heard significant criticisms of the Bill during the debate, the children's charities and the Welsh Assembly have every reason to be proud of what has been achieved. I think that they would agree with that. Their reward should be to see the Bill pass through the House with the greatest speed so that the exceptional appointment that they have vested so much hope in can get on with the job of protecting the children of Wales. I say that notwithstanding the ghastly shadow that is bearing down on us at the moment.
It is worth revisiting why this office is so important and why the commissioner's powers should be extended. The report of the Health and Social Services
558
Committee of the Welsh Assembly made it clear that it saw the appointment of the commissioner as affirming its commitment to improving the quality of life for children and young people in Wales. There is a long way to go, not least to ensure that the misery of those children who were the subject of the Waterhouse report, which laid the foundations for this new office to safeguard children in care, is never repeated.
The new commissioner, Mr Peter Clarke, has already said that his highest priority is to ensure that in Wales there is nowhere for child abusers to run to or to hide. He has said that whether children are looked after in their own home or a foster home, whether they are being bullied in school, in the community or in the street, they must have the opportunity to speak out and to feel safe in doing so and that the adults who care about them should also know that they can feel safe about speaking up on their behalf as early as possible.
Because of their value and their vulnerability, all children in England and Wales ought to have someone to speak up for them across all the services that affect them and to scrutinise the work that is done on their behalf and for them. The extension of those powers in Wales is particularly timely. We have many outstanding examples of performance in public service and community provision in Wales. We have always put a very high value on education, culture and the health service. In the past 20 years, Wales has been in the front line of industrial change, which, together with unemployment and poverty, has had a marked impact on children and young people who have grown up in communities that have lost confidence as well as jobs.
Recent official reports on social inclusion in Wales have found that, compared with England, we have some pretty awful statistics. We have more children leaving school without academic qualifications, more children recorded as truant, more children in local authority care, more children on the child protection register, more households with no earner, more children living in households with below 50 per cent of mean income and fewer day care places. That means lower achievement, poor health and poorer life chances. One in seven young people is not in education, training or work. We know the link between poverty, unemployment and poor health. That has been diagnosed to death—literally. Health authorities in Wales recently pointed out that children and adolescents in Wales have some of the worst health-damaging behaviour indicators in western Europe, with smoking, alcohol, drug abuse and unintended teenage pregnancy all on the increase. The Welsh Assembly's report on young people said that we should do more to strengthen the fences that prevent people from falling over the cliff rather than providing more ambulances and police vans when they do.
The children's commissioner is a vital part of that protective mechanism. Most importantly, he can also promote the rights and welfare of children in Wales. Whether we are talking about children at risk because they leave care without homes or prospects or those who look after others because they have no choice or the many others who do not know their rights or how

559
to fight, the commissioner can do more than just provide a willing ear or a willing voice or a more critical eye: he can assert their rights, make the case for them, fight their battles, improve their chances, find out what is going wrong and help to put things right. I see nothing in the Bill to inhibit him doing that.
I very much hope that the statutory services will see him not as a threat but as a powerful ally as they strive for higher standards. He is independent and can be a critical friend to services, but he must also be a critic of services on behalf of those young people whom they are failing. If necessary, I hope that he will not hesitate to challenge them. The children's charities know the value of informal comment across a range of services, even if his powers are limited—although they may not be limited if the noble and learned Lord, Lord Williams, listens to what has been said this evening.
The commissioner is not there to represent a collection of boxed-off interests. As many noble Lords have said eloquently this evening, children are not a collection of client issues. We must deal with the whole child. The commissioner will have a role across the board—on issues relating to the failure of child protection, the right to the most appropriate education, training, employment or health services or resources that children lack and cannot obtain, whether that means safe places to play, opportunities to take part in the arts or sports, or affordable transport. I hope that he will be able to make sure that the young people's strategy in each area will reflect what the young people want and can make most use of. All that may give him a unique opportunity to improve the quality of life of children and young people.
Wales is doing this for the first time and in novel circumstances. Like many other things done for the first time, the process is bound to raise difficult questions—indeed, it has already done so. Many noble Lords have emphasised that the scope of the commissioner's work is limited, logically, to the powers that have been devolved. The limitation raises serious and sincere concerns about the potential fragmentation of his powers. There are issues and ambiguities that need to be cleared up. For example, it is not clear to me whether the commissioner will be free to explore a matter that relates to youth justice if he uncovers it incidentally in the course of his work in, for example, exploring social services for children.
Those and other matters will be raised with the steering committee. Other issues that the children's charities have raised have already been referred to this evening. However, we have not addressed the imperative on the commissioner to find new ways of listening to children. Peter Clarke comes from an organisation that has made a reputation for listening acutely and responding to the needs of children. I feel sure that he will bring that with him, because he must know that to have a token representation in this new post would be a great disservice. Children rarely complain and when they do so they are often not listened to or taken seriously.
560
In that respect, I should be interested to know to what extent the regulations laid by the Assembly will be robust in providing mechanisms which will make access for children easy and appropriate and whether the resources will be put behind the mechanisms to make sure that those children's voices which are most muted and diminished are heard, and that action will follow from that.
I believe that the strength of this Bill is not that it is about making reparation to children. It is not a default model for making good what does not work. The commissioner cannot put right all that is missing. He cannot provide the resources for recreational activities and training, clean up the valleys and the streets, repair houses, improve transport or banish the drugs which are such a curse in so many of our communities, especially in south-east Wales. But he can draw attention to some of the disparities that occur across Wales and the implications of that and can draw attention also to the intensity of disadvantage which we have seen in recent years. He can do far more than complain.
With those new powers, he can reach into the most powerful corners of Wales on behalf of the least powerful and he can celebrate what children do. Although he may have to shame, I hope that more frequently he will inspire and energise. Above all, he can get people working together for the sake of the children and young people of Wales.
We have had some very bad news in Wales in recent weeks in connection with the steel industry. It may not come to pass. I hope fervently that alternatives will be found. If not, families and children will be placed at even greater risk in those communities. But I believe that this Bill offers fresh hope for the future of Wales through the potential of its children and in that it is something of an antidote to recent despair. I wish the Bill a speedy passage through the House so that that task can begin as soon as possible.
7.2 p.m.
Baroness Walmsley: My Lords, I rise broadly to welcome the Bill but I too echo the disappointment of my noble friend Lord Thomas of Gresford and others at the Government's resistance to the amendments tabled in another place. I hope that our discussions in your Lordships' House will convince the Minister that this Bill is a vital opportunity to change for ever the attitude we take in this country to children's rights.
We have the opportunity in this Bill to strike a blow for an effective voice for the children of Wales, a voice that must be listened to.
In my view, we need to be much more child-focused in the whole of the United Kingdom. Currently, we treat children more like property than junior human beings with rights and voices of their own. The Bill we are debating today could be an enormous step forward in changing that attitude for ever.
That is why it is important that the right of the commissioner to consider and make appropriate representations about any matter affecting the rights and welfare of children ordinarily resident in Wales,

561
including non-devolved matters, is put on the face of the Bill. That is why the right of the commissioner to enter institutions which contain children and to interview children and adults in a way that does not duplicate the work of others must be put on the face of the Bill. That is why the right of the commissioner formally to comment on the effects of decisions of courts and tribunals must be put on the face of the Bill.
Wales needs a children's commissioner with statutory powers across all services, across all areas. The additions that I have just mentioned would bring the Bill into line with the United Nations guidance on human rights institutions, as laid down in the Paris principles.
The Waterhouse report revealed the desperate need for a fully empowered children's commissioner, but it would be sad if history showed this Bill to be a knee-jerk, narrow-minded reaction to a particular sad case, rather than what it has the potential to be—a radical, thoughtful and courageous step forward for children's human rights in Wales and the beginning of a similar process in the other jurisdictions.
The noble Earl, Lord Listowel, has eloquently listed the many sad reasons why that is desirable. It is not enough for the Government to say that the commissioner can comment informally in areas other than those in the schedule and would not be gagged. Without a statutory right to do so, the listening attitude which we currently detect in the Government could quickly give way to an unaccountable deafness in a future Administration and we should have lost a golden opportunity.
It is critical that the commissioner is given as broad a mandate as possible since, under the doctrine of ultra vires, a public authority must not act outside its powers. We must ensure that the commissioner can conduct his work with confidence within the widest possible powers.
The Government said that they were willing to legislate to put into effect the vision of the Welsh Assembly on this matter. This Bill as it stands does not quite do that. I hope that we in this House will be able to persuade the Government that there are no legal obstacles to fulfilling those objectives during the passage of the Bill. Indeed, a recent legal opinion, which has already been referred to, obtained by the Children in Wales Commissioner Campaign Group, makes it clear that there are no such obstacles.
There was general consensus at the joint meeting between the Welsh Assembly's Health and Social Services Committee and the Pre-16 Education, Schools and Early Learning Committee in March last year that the children's commissioner should, among other things, first, promote children's rights, raise the profile of children's issues and take an overview of the impact of policies and procedures on children across all services. The Bill must be amended if that requirement is to be fulfilled. Children are not parcelled up into discrete devolved and non-devolved packages. They are as affected by non-devolved matters as they are by devolved ones.
562
Secondly, as regards not seeking to take the place of existing complaints systems, a right for the commissioner to enter premises containing children would not duplicate the work of other agencies or complaints systems.
Thirdly, in relation to the ability to undertake a formal investigation if a matter of principle is at stake, the commissioner will be acting in a mode similar to that of the Equal Opportunities Commission or the Commission for Racial Equality. The right to comment on court and tribunal cases could be very important in that respect.
There was also general agreement that there should be a mechanism to ensure that the commissioner's recommendations were not ignored. That is why the Government's refusal to allow a formal right of comment in certain situations is not in line with the consensus in Wales. If that formal right is not enshrined in law, it would be easy to say that the commissioner was stepping beyond his brief and that it was not an informed view; and to ignore it.
There are many good examples of such commissioners in other countries. The best and most effective models do not limit a commissioner's right to comment formally about any matters affecting children. A society that was confident about the way it treated its children would have no fear of the professional comments of an experienced expert. We must have the confidence to create such a commissioner in Wales, someone who has the freedom and independence to advise on any aspect of children's rights and welfare, someone to whom governments are obliged to listen, not just today under this Administration but for the future.
7.8 p.m.
Lord Brookman: My Lords, I declare an interest not only because I am Welsh—as, I believe, are all noble Lords who have spoken on the Bill this evening—and proud of it but also because, about a month or two ago, I was approached to become president of the Welsh Trust for the Prevention of Abuse, a charity. That trust was founded in mid-Wales by a strong campaigner for justice, Mrs Joan Nathan. Lord Wise, the trust's current chairman, together with some wonderful volunteers, approached me and I agreed to become the president.
That trust runs on a voluntary basis. It has been in operation only for some 12 months or more and it works to prevent physical or sexual abuse of the elderly, children, children in care and anyone subject to abuse.
I am pleased to say that at its launch the trust had the support of some 54 signatures of Members in the other place, as well as the strong support of the Secretary of State for Wales. I say all that because as far as I can ascertain, the trust is not part of the Children in Wales Commissioner Campaign Group which has been referred to extensively this evening. I am sure that the trust welcomes the Bill as strongly as any organisation that has been mentioned.

563
I hope that at an appropriate time my noble friend the Minister will comment on the trust, on the fact that it is a charity and on its being called,
"The Welsh Trust for Prevention of Abuse".
What is its—and any charity's—role in relation to the duties and responsibilities of the children's commissioner?
Wales has received some body blows during the past few weeks. That was referred to by my noble friend Lady Andrews. I am extremely pleased that the House is discussing a proposal that is good news for the people of Wales. The Welsh Assembly should be commended on its speedy work and its Health and Social Services Committee on producing a positive and constructive report. Moreover, the Secretary of State for Wales, Paul Murphy, should be given credit for facilitating the report, as should the Assembly's First Secretary, Rhodri Morgan. That report spells out in some detail a clear view of the commissioner's duties, responsibilities and accountability. That is properly summed up by saying that we should ensure that the commissioner becomes the children's champion.
Embracing the report's recommendations and turning them into a sensible, workable and acceptable piece of legislation is the challenge before Parliament. As the Minister is aware—this has been discussed extensively this evening—there are various concerns in this context. Many of them were expressed by the Children in Wales Commissioner Campaign Group. I am sure that the Minister is by now fully aware of those strongly held views. Briefly, they involve: the right to consider and to make appropriate representations about any matters affecting the rights or welfare of children who are originally resident in Wales; a right to comment on the decisions of courts and tribunals; formal power of entry to institutions; and rights of interviews for children and adults. Many noble Lords have discussed those concerns. I hope that I have summarised the main areas of concern.
I point out—I believe that the noble Lord, Lord Morgan, and my noble friend Lady Andrews also maintain this—that above all we must ensure that the children's commissioner for Wales quickly starts working as the champion of children in Wales. I feel equally strongly about the need for the Minister, who has been praised for his knowledge of this subject, to address the concerns that have been expressed this evening in this House and in the other place. He should ensure that the House takes a constructive role in establishing legislation that will play an ever-important role on behalf of children in Wales. We in this House must not let them down.
The opening remarks of my noble and learned friend Lord Williams Mostyn were correct. This is an historic occasion, and we must ensure that the Bill is enacted quickly.
7.15 p.m.
Lord Laming: My Lords, I am most grateful for the opportunity to contribute to the Second Reading
564
debate on this important Bill. I have been helped by the opening speech of the noble and learned Lord the Attorney-General and by the notable contributions of all those who have spoken this evening. Several fundamental questions that are aimed at strengthening the role of the children's commissioner for Wales have been raised.
Although I readily accept, as the noble Lord, Lord Brookman, said, that this proposal is primarily a matter for Wales, I hope that noble Lords understand that I have a general and a particular interest in this matter. I have a particular interest because I am to chair the statutory inquiry into the ill treatment and murder of the little girl Victoria (Anna) Climbie, which was referred to earlier. Nothing that I say this evening should be interpreted as questioning the need to do everything that we can to protect vulnerable children. My questions are not about the principle of having a children's commissioner; rather, they seek clarification about the powers and resources that are attached to the post and its relationship to other authorities.
As has already been said, the Government recently enacted the Care Standards Act 2000, for which they deserve great credit. That Act brings together for the first time a system of registration and inspection of most childcare provision irrespective of who provides it. The registration and inspection of childminders will be undertaken specifically by a created section of Ofsted. In my view, that is a mistake because childminding is more about good childcare than about education. Be that as it may, the decision has been made and I wish the new arrangements well.
The Government are also creating a general social care commission, which is charged with the registration of staff working with vulnerable people. Children are in a primary position in that regard. Although I am not as familiar with the Welsh Assembly as are many noble Lords who are present this evening, I assume that there will be an equivalent body with similar powers in Wales.
My point is that the children's commissioner will have to operate within a framework involving several statutory bodies which have clear duties to provide services for children and young people, and within a regulatory framework which has been deliberately strengthened. In addition, most of the organisations that are providing services for children and young people are subject to performance evaluation by several government inspectorates. Having read the Bill and the deliberations in another place, I remain somewhat unclear about the powers of the commissioner and whether those powers are sufficient to achieve the aims, which have already been discussed this evening, that attach to the post.
That the commissioner has a role to promote the well-being of children and young people is welcome. I am associated with a Carnegie project, which seeks to support good practice in ensuring that young people play an active, responsible and constructive part in community life. Helping young people to be heard is most welcome. Also welcome is the freedom of the commissioner to highlight the need for better services,

565
be they about youth clubs or speech therapy. I take it that this is what the Minister meant when he said in another place that the commissioner would look at broad policy obligations or commitments and make general comments about the level, support and type of service provided. That suggests a very general approach.
As has already been said, the recommendation for a children's commissioner was made in the voluminous Waterhouse report on child abuse. That was specific about the responsibilities that such a post should have in seeking to protect young people from abuse and exploitation. In response to that, the Minister in another place said that the National Assembly has made it clear that it does not anticipate the commissioner investigating individual cases as a matter of routine. Somewhat to my surprise, he went on to say that he wanted to ensure that the children's commissioner has all the necessary powers to prevent a recurrence of the circumstances that led to the Waterhouse report. We all agree with that; we all want the commissioner to have powers that will prevent the recurrence of those dreadful circumstances. The question is whether the post, as it is currently envisaged, has the powers to achieve that laudable aim, which we all support.
I am sure that all noble Lords agree that one child being treated cruelly or preyed upon by an adult is one child too many. Already too many sad and atrocious experiences of that kind have been brought to our attention. We must question whether or not the post, as now envisaged, has sufficient responsibility and power to achieve that aim. It is particularly important that, in creating such a post, we avoid the danger of creating a false sense of security and the feeling that all will be well.
I turn to resources. I note that the Explanatory Notes to the Bill estimate the cost of the provisions to be £300,000 per annum and that in another place the Minister said that the commissioner will have a budget of £800,000. Can the Minister tell the House whether he is satisfied that the children's commissioner, as outlined in the Bill, will have all the powers and freedoms that he needs, and the authority and the accountability to protect children at risk, and whether the resources are sufficient to carry out that task?
I, for one, do not question the need to have a children's commissioner, but all noble Lords need reassurance that the commissioner will be given the powers and freedom to have a powerful impact on protecting vulnerable children and young people from exploitation and abuse.
7.21 p.m.
Lord Davies of Coity: My Lords, it is not necessary at the Second Reading of a Bill to provide a children's commissioner for Wales, to speak at great length and I do not intend to do so. Fundamentally, no noble Lord is opposed to this Bill. Indeed, I would have been surprised—no, I would have been shocked—if any noble Lord did not support the principle of a children's commissioner. There is clear need for such a provision.
566
The horrific reports that we constantly hear of the practices of paedophiles and child abusers clearly brings home to us all how vulnerable too many children are to such grotesque predators. As we know, that is not a problem that is confined to Wales, as the recent Internet case so illuminatingly demonstrated. This Bill is a start. The Waterhouse report, Lost in Care, which followed the North Wales abuse scandal, prompted the Welsh Assembly to act and that is why this Bill is before us today.
As I have said, I would have been shocked if any noble Lord opposed this Bill, but I recognise that there are those who believe that the children's commissioner should have greater powers and more influence. Among such critics are the National Society for the Prevention of Cruelty to Children and the Children in Wales campaign. We know that those organisations truly have small, frightened and exposed children at heart. I have no doubt that anything they propose is well meant and fully intended to protect children from abuse, particularly the worst excesses of abuse.
Therefore, I implore the Minister to give the views of the NSPCC and Children in Wales very serious consideration with a view to bringing forward appropriate amendments. Of course, no one wants to see the Bill delayed or to fall because of lack of parliamentary time. But what harm can it do to strengthen the powers of the commissioner further, even if some believe it would be over-kill to do so? I believe it would do no harm. On the other hand, further powers to protect children that little bit more would undoubtedly justify bringing forward amendments in line with what the NSPCC and Children in Wales seek.
In conclusion, in the 40 years that my wife and I have been married we have brought up four daughters who are now married. Between them they have provided us with eight wonderful grandchildren who live around us. I am constantly grateful for the healthy and stable environment in which they live, but when we hear of the unfortunate circumstances that many little children suffer, through no fault of their own, I despair. We know of the loneliness that such children have to endure through the absence of family support. When so many are subjected to gross abuse we know that something has to be done. This Bill makes a start. We can build on it in the future so that the evil suffered by so many little children can eventually be eradicated.
7.25 p.m.
Baroness Gale: My Lords, being one of the last speakers in the debate I shall not mention all the matters to which I would have referred if I had spoken earlier. Having been involved in the concept of a Children's Commissioner for Wales for several years, I take part in this debate with the greatest pleasure.
Noble Lords may well know the history of this Bill: that it will improve Part V of the Care Standards Act, which established the post of Children's Commissioner for Wales. Noble Lords will also be aware that it results from of close co-operation between the Welsh Assembly and the Westminster

567
Government. This is a unique approach in the way that we look after the rights of children in the United Kingdom.
In the past, children's voices have not been listened to. I am pleased to hear from the Attorney-General that Peter Clarke will take up his post as children's commissioner on 1st March. From that day on children in Wales will have a champion; someone who will safeguard and promote their welfare and rights; someone who will speak up for them; someone who will listen to them and someone whom they can trust.
As my noble and learned friend has said, the new clause sets out the principal aim of the commissioner as follows:
"The principal aim of the Commissioner in exercising his functions is to safeguard and promote the rights and welfare of children to whom this Part applies".
I believe that that encapsulates all that the children's commissioner stands for.
In the debate we have heard a great deal of criticism of the Bill and in Committee stage we can examine those criticisms. However, I believe that this is a good Bill and I feel proud that a Labour Government, working with the Welsh Assembly, has committed itself to this important measure.
My noble friend Lord Davies has much more experience in this field than I have and I was proud to listen to his speech. He spoke of criticisms of the Bill and, as I said, I hope that those will be addressed in Committee. This is the first "Wales only" primary legislation since devolution, which makes this an historic Bill. Having worked in Wales for many years to achieve a Welsh Assembly, I feel proud to be able to take part tonight.
When discussing this Bill with me, many of my noble friends asked why there is not to be a Children's Commissioner for England, but devolution is about different parts of the United Kingdom doing what is necessary for that part. I hope that in the future England will follow the example of Wales and have its own children's' commissioner, although I do not believe that that is a matter for this particular Bill. Wales is leading the rest of the United Kingdom in this matter, albeit as a result of some terrible cases of child abuse in Wales.
The Waterhouse report recommended the appointment of a Children's Commissioner for Wales. At the elections for the Assembly in 1999 three of the four political parties in Wales had such a commitment in their manifestos. There was no difficulty in the Assembly working with the Westminster Government to ensure that a children's commissioner be appointed. All four parties in the Assembly are now in favour of extending the powers of the commissioner.
I am aware that children's charities in Wales have reservations and are concerned that the Bill does not go far enough. When I followed it through its stages in another place, it seemed that there was a desire to get it through without delay. Indeed, there appeared to be a great degree of co-operation between the parties.
568
We know that the rights of children are paramount and that they will prevail in your Lordships' House. Noble Lords expressed reservations about the Bill and I do not want to give the impression that it should be rushed through without proper scrutiny. But I am concerned about possible delays. Although we are possibly approaching a general election and there could be little time left to debate the Bill, it is important to the children of Wales that it is not lost.
The Bill is a huge improvement on what was previously put forward. It may not contain everything that everyone wants but I am sure that all the organisations and those concerned about the well-being and rights of children would prefer it rather than the alternative.
As my noble friend Lord Brookman said, it is good news for Wales and I hope that this unique and historic Bill will have a swift passage through your Lordships' House in order that it shall be on the statute book before the general election.
7.31 p.m.
Lord Hooson: My Lords, I had not intended to speak in the debate but, having heard what has been said, I want to reflect on one issue. I warned the noble Baroness, Lady Farrington, of my decision to speak.
Throughout the debate, Members on all sides have expressed the desire to have an effective children's commissioner for Wales. The worst thing that we could have is an ineffective commissioner, because that would bring the whole system into disrepute. I greatly appreciated what was said by the noble and learned Lord the Attorney-General about the work of Sir Ronald Waterhouse in compiling the report. He performed a gargantuan task and I know that he would want to see an effective children's commissioner.
Will the Minister tell us whether we are we inhibited by what has been described as the "devolution settlement"? I do not believe that we are. I subscribe to the view advanced by my noble friend Lord Thomas of Gresford about the legality of the post. As regards the legal and constitutional grounds, are the arguments put forward in the Commons Standing Committee valid? There are grave doubts about whether they were. If they were valid, is there not another means of providing the broad powers which the children's commissioner needs in order to be effective? Are there not parliamentary conventions embodied in what during the devolutionary settlement were called "concordats"? Perhaps that is another means of achieving the necessary power.
If a prison inspector were not entitled to visit a prison, for example, his reports would not be much good. One can argue that care inspectors visit to establish the standards of care. However, the children's commissioner will visit for a totally different purpose. He or she will visit for the purpose of ascertaining the welfare of the child, which is an important distinction—and we know how effective prison inspectors' reports can be in alerting the public to great problems in prisons.

569
I believe that it is possible for us to provide the Children's' Commissioner for Wales with the powers necessary to be of benefit to the children of Wales. There is no disagreement by any party, a position different from that which existed when the devolution Bill was before us. Therefore, surely there is an opportunity, especially for someone with a mind as agile as that of the noble and learned Lord the Attorney-General, to provide the powers that the children's commissioner needs.
7.35 p.m.
Baroness Farrington of Ribbleton: My Lords, I thank all noble Lords for their contributions to the debate and shall seek to respond to the points that they raised. It has been an extremely thoughtful and knowledgeable debate and if I overlook any of the individual points I undertake to write to noble Lords.
In reply to my noble friend Lord Prys-Davies, I, too, am most conscious of the fact that our noble friend Lord Cledwyn of Penrhos would have wanted to be present for the debate had his health allowed. We miss him very much on an occasion such as this.
Perhaps it would be logical to begin by examining the issue which has run as a thread through almost all tonight's contributions. It is the jurisdiction of the commissioner as proposed in the Bill over non-devolved matters. As my noble and learned friend outlined earlier, the establishment of the children's commissioner is the result of policy developments by the National Assembly for Wales. It is therefore right that his functions should coincide with areas in which the Assembly has a responsibility. The Bill will extend the commissioner's jurisdiction to the Assembly and to bodies in Wales which have significant functions in the areas which come within its responsibility. That will give the commissioner a very wide scope for his activities ranging from the WDA to the Welsh Language Board and including the Assembly, local authorities and the NHS.
Lord Roberts of Conwy: My Lords, I thank the Minister for giving way. She mentioned the Welsh Language Board. The Welsh Language Act 1993, to which I appended my name when it was a Bill, has powers over all public authorities in Wales, including those operating in the non-devolved areas.
Baroness Farrington of Ribbleton: My Lords, the noble Lord is right. The terms of reference of the Welsh Language Board are extremely tightly drawn and relate only to the Welsh language, whereas the role and responsibilities proposed for the commissioner are much more wide-ranging. However, I hope to deal with some of the concerns that the noble Lord, Lord Roberts, expressed.
We do not believe that it would be consistent with the devolution settlement for the commissioner's jurisdiction to extend to UK government departments and bodies operating within the UK Government's area of responsibility. The noble Lords, Lord Hooson and Lord Thomas of Gresford, and my noble friend Lady David raised different aspects of the issue. The
570
issue of whether there is in principle any reason why the Government should not legislate for the commissioner to have a role in respect of non-devolved services is one of policy rather than constitution. My noble and learned friend Lord Williams, in opening, and I, in closing, are making clear that on this we should be coterminous with the Government's view of the devolution settlement.
The Children's Commissioner for Wales is a statutory office and therefore has the functions which the law confers on it. It is reasonable for the commissioner to consider any relevant issue in exercising his functions, but he is limited by the Bill to reviewing the exercise of the Assembly's functions or those of the public bodies listed in the new schedules. However, the noble Lord, Lord Thomas of Gresford, and the noble Earl, Lord Listowel, may be reassured that the commissioner will also have power to exercise functions which are incidental to his core functions. As my noble and learned friend indicated, he may receive correspondence from, or on behalf of, children about non-devolved matters which he may wish to bring to the attention of relevant government departments. That would not give him substantive functions in non-devolved areas, nor would he have any formal power to require information to be provided in relation to such matters. However, it is very likely that government departments would react positively given the profile of the commissioner's office.
My noble friend Lady Andrews and the noble Earl, Lord Listowel, referred to what has already been done to tackle the problems facing children. The commissioner may also formally bring to the Assembly's attention non-devolved matters about which he becomes aware. As a result, the Assembly itself may wish to consider and make representations to the UK Government. I believe that answers one of the concerns of my noble friend Lord Pry-Davies and the noble Baroness, Lady Walmsley. I should like to make clear that the Government see nothing in this Bill that would debar the commissioner from commenting informally on matters that do not come within his jurisdiction.
Perhaps I may reassure the noble Lords, Lord Laming and Lord Hooson, that all of the recommendations of the Waterhouse report on the commissioner are already implemented in the Care Standards Act, but neither Sir Ronald Waterhouse nor the Assembly expects the commissioner to protect looked-after children by himself. Other key elements of the Care Standards Act, including in particular the proposed creation of a care standards inspectorate for Wales, have a vital role to play in that respect. The commissioner will oversee the range of improved arrangements being put in place by legislation, and other means.
My noble friends Lord Brookman and Lord Davies of Coity asked whether the prevention of abuse would be covered by the terms of reference of the commissioner. The commissioner's formal powers relate to bodies which provide statutory services and extend to non-public bodies if they provide services under arrangements with the relevant public bodies.

571
The commissioner will be able to co-operate with other bodies and may well wish to have discussions with the campaign for the prevention of abuse.
Lord Davies of Coity: My Lords, I am most grateful to my noble friend for giving way. It strikes me that the only difference between us is the formality or informality with which the commissioner would be entitled to approach certain matters. The thrust of my approach is that, rather than being allowed to deal with matters in an informal fashion, the commissioner's formal position gives greater force to what he says and does.
Baroness Farrington of Ribbleton: My Lords, my noble friend's point is covered by the coming together of the different parts of the response to the issues raised in the Waterhouse report. The commissioner's recommendations are likely to be extremely wide-ranging and cover areas from the provision of regulated services right through to all Assembly policies. The commissioner's role is not to enforce the existing regulatory framework, which is rightly the responsibility of the Assembly, but to draw to the attention of the Assembly in carrying out his formal role his views based on his experience and work.
The noble Lord, Lord Laming, raised the question whether the Bill would enable the Assembly to request a report from the commissioner on any matter that affected children and their rights in Wales. The answer is that the Assembly may make regulations under paragraph 8 of Schedule 2 to the Care Standards Act to provide that the commissioner can make periodic or other reports to the Assembly relating to the exercise of his functions. It is my understanding that the Assembly is about to consult on proposals for reports to be made by the commissioner and that interested bodies—I am aware that my noble friends Lord Brookman and Lord Davies of Coity have an interest in this matter—will be able to make known their views at that time.
Other noble Lords have raised the question of rights of access. The Government want to ensure that the commissioner has all the powers necessary to be effective but do not believe that right of access is necessary. My noble friend Lord Prys-Davies and the noble Lords, Lord Thomas of Gresford and Lord Roberts of Conwy, referred to that issue. We recognise that some children's organisations have expressed concern, and we fully understand the reasons for it. The Waterhouse report catalogued a terrible record of abuse which remained undetected over a long period. In answer to the noble Lord, Lord Roberts of Conwy, child protection measures have changed considerably since then.
All of us want to put in place a framework to prevent such a terrible range of incidents, or even individual cases, occurring again. Would that I could say that such matters will never occur again. However, we believe that a right of access for the commissioner should be considered in the light of the significant improvements in safeguards that have been made post-Waterhouse,
572
Sir Ronald Waterhouse's own recommendations in respect of the commissioner and the Assembly's vision for the office. Because a right of physical access essentially invades the privacy of the person concerned, we must be very sure that such a right is absolutely necessary before it is given. That must be considered in the context that the vast majority of looked-after children now live in foster homes, not care homes. There is nothing in Sir Ronald Waterhouse's recommendations relating to the commissioner to suggest that the office should undertake a regulation and inspection role; rather, they support the Assembly's own view that his primary role is one of strategic overview and monitoring.
In response to the noble Lord, Lord Laming, my noble friend Lord Prys-Davies and the noble Baroness, Lady Walmsley, the Assembly does not intend the commissioner to take the place of other statutory bodies or agencies or to examine particular cases unless they involve a matter of principle. In response to my noble friend Lord Brookman, the Assembly's report makes clear that the commissioner should have the right to information but does not recommend a right of access.
Lord Hooson: My Lords, what everyone has in mind is not that the children's commissioner should go on an inspection tour, but occasionally that he has a spot check.
Baroness Farrington of Ribbleton: My Lords, that is to misunderstand the role of the commissioner and would be fulfilling the inspection function. I understand the concerns of the noble Lord, Lord Hooson. The noble Lord made very detailed points, even within the small space of the gap, but I believe that he is confusing two separate aspects. I undertake to write to the noble Lord on the detail of those points.
The Waterhouse report specifically recommended that a separate agency should be established to undertake the inspection and regulation of services for looked-after children, which was independent of the bodies who provide or arrange for such services. Such a move had already been accepted as necessary, and the new care standards inspectorate for Wales is being established to regulate and inspect services under the Care Standards Act. The inspectorate will have powers of access as an inspection authority.
The commissioner's functions will extend to the inspectorate as it will be an arm of the Assembly. The commissioner may decide to examine a particular case concerning a matter of principle, which could involve a report by the inspectorate following an inspection of, for example, a children's home. However, it is not right to expect the commissioner to have a statutory right of access to examine successfully such a case. He would be able to rely on the right that the Assembly can give him to information, explanations or other assistance, by virtue of regulations under Section 74(3) of the Care Standards Act for his considerations and conclusions. Noble Lords who have expressed a concern in this particular area will want to consider that point in detail.

573
Several noble Lords raised the question of outcomes of court and tribunal decisions. Courts and tribunals determine specific issues before them, and it is not for the commissioner to try to re-open their determinations. However, the restriction in Section 77(1) of the Care Standards Act does not prevent the commissioner from making informal comment on the outcome of court cases, although, obviously, he would have to be judicious in that respect as he would be operating outside his statutory jurisdiction. That would not prevent him from inquiring into or reporting on related issues within his jurisdiction, such as the actions of a social services department. The commissioner would be able to consider the handling by agencies that come within his jurisdiction of matters that had been looked into by the police but had not resulted in a prosecution. Matters that are determined by courts or tribunals are generally very narrow. The extent of the commissioner's locus would depend on the circumstances of each individual case.
The noble Lord, Lord Roberts, the noble Earl, Lord Listowel, and my noble friend Lord Prys-Davies raised detailed issues relating to individual cases and court hearings. It is appropriate that I should write to noble Lords on these issues, with particular reference to the Climbie case.
My noble friends Lady David and Lord Prys-Davies, among others, raised the issue of the UN Convention on the Rights of the Child. The Assembly may reflect the importance of having regard to the convention, along with other matters, in guidance. The understanding is that the Assembly is committed to the commissioner having regard to the UN Convention on the Rights of the Child in exercising his functions. That has already been reflected in material, such as was made plain in the job description and the advertisement for the post. The commissioner will be able to provide advice and information to any person in connection with his functions by virtue of Section 76(3) of the Care Standards Act.
I have tried to cover the points raised by noble Lords in the debate. The issue was raised of the effect of a coming-together of devolved and non-devolved issues. I hope that I have been able to make plain that in those circumstances the commissioner would be able to include reference to that and make representations about changes needed.
The noble Lord, Lord Thomas of Gresford, raised the issue of bullying. Almost all cases of this—not all I accept—come within the jurisdiction of education establishments. Therefore, they are devolved matters. I reassure my noble friend Lady David that further primary legislation would be needed if a government at some time wanted to curtail or restrict the powers of the commissioner.
As my noble friend Lady Gale and other noble Lords identified, it is important that the Bill recognises, and makes provision for, the proper representation of and listening to of children and young people in Wales as part of making certain that their needs and their interests are protected. All noble Lords have recognised that Wales is leading the way
574
for the UK in developing the children's commissioner. I am sure that other parts of the UK, in particular, Northern Ireland, will be watching with interest.
I thank all noble Lords who have expressed an interest in the Bill. It is now the turn of your Lordships to give the Bill careful scrutiny. I am confident that that scrutiny will be careful and effective. I hope that satisfies the noble Lord, Lord Hooson. My noble friend Lady Gale was right when she said that, along with effective scrutiny, we all want to see this in place as soon as possible. I commend the Bill to your Lordships.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Social Security (Contributions) (Re-rating and National Insurance Fund Payments) Order 2001
7.58 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey rose to move, That the draft order laid before the House on 30th November, Session 1999–2000, be approved [First Report from the Joint Committee].
The noble Lord said: My Lords, the order does three things. First, it deals with the reduction of the employer's Class 1 contribution to match the climate change levy; secondly, it increases the small earnings exemption for the self-employed; and, thirdly, it raises the voluntary Class 3 contribution in line with prices.
First, I deal with the reduction in the secondary Class 1 contributions from 12.2 per cent to 11.9 per cent. That will be the rate payable by all employers from April 2001 to recycle revenues arising from the introduction of the climate change levy. It will therefore help to protect UK competitiveness.
Secondly, the order raises the small earnings exception for the self-employed, below which, depending on the level of their profits, they may claim exemption from Class 2 contributions. The exception will rise next April broadly in line with prices, from £3,825 to £3,955 a year. Given that the rate of Class 2 contributions for 2001–02 will remain at £2 a week—a reduction in real terms—it may be that many people will choose to pay the contributions in order to protect their benefit entitlement. Nevertheless, the increased exception will be of real assistance to the lower earning self-employed.
Staying with the self-employed, the draft order also sets the profits limits between which Class 4 contributions are paid. The lower limit at which such contributions become due will rise in line with the income tax personal allowance, from £4,385 to £4,535 a year. At the other end of the scale, the upper profits limit will continue to match the upper earnings limit for employees, at £29,900 for 2001–02. This ensures that the self-employed pay Class 4 contributions on much the same range of earnings as employees liable to Class 1 contributions and is an essential element in making the national insurance system fair for everyone.
Thirdly, the draft order deals with the weekly rate of voluntary Class 3 contributions, which help those with insufficient contribution records in any given tax year to make up a "qualifying year" for benefit purposes. The rate of Class 3 contributions will rise next April by 20p to £6.75, a standard rerating in line with prices.
The review of contribution rates is accompanied by a report from the Government Actuary detailing the effects of the draft order, and the draft order uprating benefits laid by the Secretary of State for Social Security, on the National Insurance Fund. I am pleased to say that, for the third year in a row, there is no expectation that the fund will need a Treasury grant. Nevertheless, a prudent minimal provision is made in line with advice from the Government Actuary.
As happened last year, there is a single draft order for both Great Britain and Northern Ireland. Northern Ireland has a separate national insurance scheme from Great Britain but the two schemes are closely co-ordinated and maintain parity of contribution rates. Following the transfer of policy from the DSS to the Treasury, Northern Ireland's social security legislation was amended to enable the draft rerating order to include corresponding measures for the Province. I commend the draft order to the House.
Moved, That the draft order laid before the House on 30th November, Session 1999–2000, be approved [First Report from the Joint Committee].—(Lord McIntosh of Haringey.)
8 p.m.
Lord Higgins: My Lords, the House will be grateful to the noble Lord for that explanation. It is of course the case that Mr Gordon Brown, as Chancellor of the Exchequer, seems to be taking over more and more the role of other government departments. It was previously the case that the uprating of benefits under social security has been discussed at the same time as the uprating of the contributions that are designed to cover those increases in benefits. However, since the matter of contributions was transferred to the Treasury, the two debates have become separated. I think it is true to say that the noble Lord has now taken over that aspect of what was previously dealt with by social security Ministers.
I am second to none in my admiration for the noble Lord's versatility and ability to widen the scope of his activities. At the rate Mr Brown is taking over matters, the noble Lord will find the burden increasing more and more until we will need to have him investigated by the Monopolies and Mergers Commission. At all events, I am not very happy about the way in which the benefits increases and the contributions increases have been divided. Looking back, I notice that when the Government first came to office these matters developed into a really major discussion of the whole of social security policy, whereas today we are concerned with what is obviously a much more limited order.
576
Perhaps the Minister can clarify one point for me. Earlier in the evening I was puzzled about the relationship between this order and the Social Security (Contributions) (Amendment) (No. 2) Order Regulations 2001. I could not find out where those had disappeared to. I think I am right in saying that the reason they appear to have disappeared, if that is not a contradiction in terms, is that they have been dealt with under the negative resolution procedure rather than the affirmative resolution procedure. The regulations are concerned with the uprating of primary Class 1 contributions and have been dealt with separately. I should have thought that there was a case for discussing the two together, even though the other instrument, which in many ways is more important, has been dealt with under different provisions in the primary legislation.
The wording of the two instruments is rather different. The order before the House refers to the Treasury having carried out a review of earnings, and so on. The wording of the other instrument is far more formal. In my concluding remarks, I shall come back to the question of a review.
We recognise that some aspects of the order are favourable. I refer, for example, to the ability to make up qualifying years and to the change in the lower limits for some classes of contribution. Two major points come to mind. The first concerns Class 1 secondary contributions relating to the climate change levy. We are told that this money is being recycled. We are told that companies will have to bear the climate change levy but that they will be compensated in some way by the reduction in the Class 1 secondary contribution. That is a rather strange way of going about it. To what extent will the burden of the climate change levy overall be covered by the reduction in Class 1 secondary contributions? Are the amounts, broadly speaking, of the same order of magnitude?
Although the sum may be in balance overall, it is clear that that will not apply with regard to individual companies. Being very much fuel intensive, the climate change levy is likely to affect manufacturing industry in particular; for example, the motor industry and the steel industry. I think in particular of CORUS and all the problems associated with that company. It seems unlikely that the "compensating" change in national insurance contributions and the climate change levy will be anywhere near in balance. On the other hand, it seems likely that the reduction in the Class 1 secondary contribution, introduced apparently to balance up the climate change levy, will benefit other non-manufacturing industries for no apparent reason. The Government are using a blunt instrument in their efforts to protect—understandably and with our support—the export ability of British industries, particularly against the present high level of the exchange rate. It would be helpful if the Minister could give us an explanation—he did nothing of the kind in his opening remarks—of exactly how the levy and the change in the Class 1 secondary contributions will balance out, either overall or in individual cases.

577
I am reinforced in what I say by my continuing view that national insurance contributions should be regarded as a tax. To the extent that the Chancellor has taken over the matter, that is recognising the move in that direction. National insurance contributions are in many ways similar to a tax and so give cause for concern.
I turn to my other main point before I put matters in a broad macro-economic context. I refer to the question of Class 4 contributions paid by the self-employed. We see from the debate in another place that the upper limit for Class 4 contributions is to be increased. That increases the revenue. It is a classic stealth tax. Those in this category earning over around £30,000 will find that they will pay more than £2,000 extra as a result of the changes in this order. The limit will be raised from £27,820 to £29,000, an increase of some 7.5 per cent. In some cases, it will be 8.24 per cent or more.
The Chancellor did not mention this in his Budget speech. The closing remarks of the Explanatory Note to the order before us state that:
"Class 4 upper profits limit increases [are] in accordance with the announcement in the March 1999 Budget".
It may be in accordance with the documentation and with remarks made by other Ministers, but certainly the Chancellor of the Exchequer, although he announced in his Budget speech the increases in the benefits which were going to be made, did not mention the increases in contributions, which are clearly far in excess of inflation. Perhaps the Minister could explain why it is that this increase—in my view it is clearly a tax increase—is justified. I find it difficult to think of a reason, but no doubt he will be able to enlighten the House.
That brings me to my final major point. Both the Minister in another place and the noble Lord this evening have stated that this is in line with the recommendations of the Government Actuary in the context of the increase in government grant. I find it difficult to understand why the Minister thinks that the increase in the proposed Treasury grant of, admittedly, only 2 per cent or so, is in line with the recommendation of the Government Actuary. It is clear from the Government Actuary's report that the fund is massively in surplus. For that reason, it is not clear why, on grounds of prudence—however prudent Mr Brown may be—the Treasury thinks it necessary to take powers to increase the government contribution.
In fact, this increase is far from modest. It is far in excess of the proposal made three or four years ago for increasing the grant on a so-called "prudent" basis. The report of the Government Actuary indicates that he is quite content with the present state of the fund—one-sixth of the fund payable, which is the minimum limit which he has imposed. The fund is satisfactory and does not require any more money. However, while the Government Actuary has recommended one-sixth of the fund—or a little more than that in percentage terms in order to avoid a recurring fraction—the actual amount in the fund is over 40 per cent. As a
578
consequence, it is difficult to understand why—although the Minister has stated that this is in line with the actuary's recommendation—it is necessary at all.
To put this important order involving a great deal of money into context, it may be helpful to consider the report of the Government Actuary in the related context of the Child Support, Pensions and Social Security Act 2000. He looks at the costs of uprating the basic retirement pension in line with the general level of earnings or in line with prices, a subject which lies close to the heart of the noble Baroness, Lady Castle of Blackburn. On page 11 of that report, which is in many ways more relevant than the report produced in relation to this order, we can see that the extent of increase in the fund rises very strongly indeed. To take the period 2000–01 to 2005–06, the balance at the end of the year, on the assumption of only price upratings (the Government have said that that is their intention) it rises from a surplus of £18.4 billion to £21.9 billion, £24.2 billion, £25.8 billion, £27.7 billion and £29.9 billion. Yet this order has been put before us to increase the money to be collected by the Government, despite the fact that this balance is enormous.
If we take the corresponding percentage in relation to benefit expenditure—which is what this order is supposed to finance—we see that it rises from 39 per cent to 44 per cent, 47 per cent, 48 per cent, 50 per cent and 52 per cent. One must ask the question: why is this order being introduced, given that that is the projection which the Government Actuary has made of the surplus in the fund? This is developing into a levy which is increasing government borrowing. Of course, in broad macro-economic terms, an increase in government borrowing has much the same effect as changes in taxation. This will be of great help to the Government in terms of macro-economic management. However, given the actuary's projections, I find it difficult to understand why it is the Government think they should go on introducing orders of this kind.
Perhaps I may draw an analogy with a private company pension scheme. If the surplus was of this order and was forecast by the actuary to increase at this rate, one of two things would happen. Either a contributions holiday would be declared or the benefits would be increased. However, in most cases the benefits here are not to be increased any more than in line with prices. Furthermore, there appears to be no prospect of a contributions holiday.
These are important issues. We need to consider the order in the light of the overall macro-economic context. At the moment, I find it difficult to understand exactly what is the underlying policy in relation to the question of contributions.
8.15 p.m.
Lord Goodhart: My Lords, we on these Benches welcome the small reduction in the secondary Class 1 contributions. Secondary Class 1 contributions are of course a tax on jobs. We believe that it is right to transfer that tax from jobs and to replace it with taxes on non-renewable inputs, CO2 emissions and other forms of pollution. For that reason, we welcome the

579
climate change levy. Furthermore, we feel that the reduction of 0.3 per cent in secondary contributions, though small, demonstrates a move in the right direction.
Moving on to the situation as regards Class 2 and Class 4 contributions, we welcome the shift of the burden of contributions made by the self-employed from Class 2 to Class 4. Flat rate payments such as those for Class 2 are regressive. However, I wonder why the small earnings exemption has not been increased by much more than the rate of inflation, along with the lower earnings limit for Class 1 contributions?
For the current year, the starting point for Class 2 contributions is only £120 below the lower earnings limit. However, next year that gap will rise to nearly £600. We believe that it is wrong to make the self-employed pay Class 2 contributions at levels well below the lower earnings limit.
I shall turn to the more general contributions. To some extent, I share certain concerns with the noble Lord, Lord Higgins. We see that in the year 2001–02, receipts will exceed payments by some £2.5 billion. Reserves will increase to more than 40 per cent of the amount of the yearly payments.
It is my understanding—I may be wrong that the 2 per cent figure for contributions out of public funds is a notional figure which will not be called upon unless something goes quite extraordinarily wrong. Nevertheless, national insurance contributions are obviously a hypothecated tax. We believe that national insurance contributions should not be used to bring in revenue in excess of payments at a time when the reserves stand at something like two-and-a half times the recommended minimum level.
The noble Lord, Lord Higgins, referred to the question of the raising of the upper limit for the Class 4 contributions, which is of course well above the rate of inflation. I wonder whether the Government, if they are re-elected to office, would be prepared to undertake a wider review of the contributions system, in particular the balance between the liability of the employed—including both primary and secondary contributions—and the self-employed. Undoubtedly the present system imposes very heavy burdens on employees as against the self-employed. This has undesirable side effects—for instance, it encourages firms to contract out work rather than give it to their own employees—and it encourages contribution avoidance schemes such as the personal company scheme, which was targeted by the well-known—perhaps I should say notorious—IR35.
It is clear that we need a thorough review of the system, in particular the relationship between the employed and the self-employed. I recommend to the Minister a discussion paper which has just been published by the Tax Law Review Committee on the subject of classifications of people as employed or self-employed. That is an issue we should look at seriously.
580
Those are the points I wish to make. On the whole, we are broadly supportive of this order, but we think that there are issues which should be looked at and, perhaps, one or two missed opportunities.
Lord McIntosh of Haringey: My Lords, I looked behind me to see if anyone else was going to join in and answer came there none. I am grateful to both noble Lords for the extent to which they have welcomed the order. I choose those words carefully.
It is, of course, true that the Treasury has taken over the responsibility for these contribution matters from the Department of Social Security. If we look back at the Taylor report on the tax and benefits system, which was produced for the Chancellor of the Exchequer in 1998, we can see why, in rational terms, this is the right thing to do. It has to do with empire building; it is the best way to handle these complex issues.
I appreciate the point made by the noble Lord, Lord Higgins, that it deprives us, to some extent, of a broader debate in the House on social security benefits and contributions policy. But it is up to the House to seek for itself opportunities to debate these matters; it is not necessarily a matter for the Government, as we do not have government time in the House.
I take the point made by the noble Lord, Lord Higgins, about the No. 2 order. He is correct, it is a negative order. It has not come before the House for that reason. I hesitate to say this because the noble Lord may do it next year, but the way to ensure that we debate both of them together is to pray against the negative order. In that way they can both be debated at the same time—without intending to overturn the order, of course; that is well understood. The question of how the matter is debated is a matter for the usual channels.
Turning to the issue of the climate change levy, I am grateful for the general support of the noble Lord, Lord Goodhart. I can confirm to the noble Lord, Lord Higgins, that the burden of the climate change levy is equal to the change in contributions—in other words, the proposals are revenue neutral in total. In aggregate, of course, they must be. They cannot be neutral for individual companies or individual industries. If they were, the proposals would not be worth making.
The whole point is to put some kind of squeeze on excessive fuel use to meet our obligations under Kyoto. If we did not do that we would be failing in our international obligations. This is a way to do it. The noble Lord, Lord Higgins, describes it as crude, but it is a way of doing it without running the risk of being accused by those on the Benches opposite of introducing a stealth tax.
We recognise that there are certain high energy consumption industries. There are rebates of up to 80 per cent for some of those industries and there are rebates for those who are good in the use of renewables, but, in principle, there must be pressure on fuel use by industry otherwise we could not meet our

581
obligations. We do not apologise for the package of the climate change levy and the reduction of national insurance contributions.
Lord Higgins: My Lords, in that case, to some extent, have not the Government taken on the obligations with regard to the climate change levy but then offset it and partially, at any rate, ameliorated its impact on manufacturing industry and so on? Have the Government had any reaction from those overseas who would regard this as in some way not fully meeting the obligations?
Lord McIntosh of Haringey: My Lords, the net effect of this, including the rebates for certain industries and the rebates for the use of renewable energy, is calculated to meet our obligations. Therefore no reaction is expected from overseas on that point.
Turning to the issue of Class 4 contributions, the noble Lord, Lord Higgins, queried the rise in the upper limit for Class 4 contributions for the self-employed. There are two principal issues involved here. First, the upper limit is in line with employees' national insurance contributions, and therefore we are achieving concordance between the regime for employees and the regime for the self-employed. I hope that that will be agreed as being a sensible way to proceed; there is no good objective reason why they should be treated differently.
Secondly, while I acknowledge that the upper limit is rising faster than inflation, even at the larger figure it is still at 124 per cent of average earnings. That contrasts with a figure of 156 per cent of average earnings under the noble Lord's own government in the early and middle 1980s. Even with this increase we are still not clobbering the self-employed in the way that the noble Lord's government did in their early years.
I am disappointed to find the charges again being made, almost two years later, that this is another tax or even a stealth tax. Indeed, it was not in the Chancellor's Budget speech in 1999, but a lot of detail of the tax and benefits system does not get into the Chancellor's speech. It was in the Budget documentation; it has been heavily aired over the past few years; and we have not been in any way shy of defending it and promoting it as encouraging the progressive element in national insurance contributions for the self-employed. The noble Lord, Lord Goodhart, rightly pointed out that if we did not do something we would end up with a regressive tax on the self-employed, which does not make good sense. In total, the self-employed are getting a very good deal out of the tax and benefits system. They are paying some £2.5 billion a year less in contributions than they are receiving in benefits. I do not think that there is any good cause for complaint.
The noble Lord, Lord Higgins, then raised a point about the National Insurance Fund. He asked why there should be a Treasury grant when the fund is in surplus. I can confirm that the fund is in surplus, to something like 2½ times the recommended minimum. But that is the recommended minimum; and as the
582
noble Lord, Lord Goodhart, said, the Treasury grant of 2 per cent is a nominal figure, and will not be taken up unless it is actually needed.
The National Insurance Fund is the difference between two very large figures. It can change very rapidly. In 1993–94, under the previous regime, there was a change that brought the National Insurance Fund into deficit by £6 billion almost overnight. We do not think it at all undesirable to be cautious, perhaps even on occasion more cautious than the Government Actuary, in seeing to it that the National Insurance Fund is fully protected.
Lord Higgins: My Lords, I am sorry to interrupt the noble Lord. In his opening remarks, he said that this had been recommended by the Government Actuary. I have difficulty in finding where that is said.
Lord McIntosh of Haringey: My Lords, I did not say that it was recommended by the Government Actuary. I said that we are perhaps being even more cautious than the Government Actuary would wish us to be. I do not apologise for that, because I believe it is the right approach. When the National Insurance Fund as the potentiality of being as volatile as it is, it is right for us to be particularly cautious.
Those were the three major points raised by both noble Lords. I am grateful to them for expressing them. The noble Lord, Lord Goodhart, ended by suggesting that there should be a new review of the tax and benefits system. A very thorough review was carried out by Martin Taylor in 1998. This has provided the basis of our changes to Class 2 and Class 4 contributions for the self-employed. Of course, we shall continue to keep those contributions under review. I think it will be evident that the policy that we have for national insurance contributions is one that takes a number of years to introduce in full. I do not want to promise that it is complete now. When the occasion arises, we shall not be in any way afraid of carrying out a further review. But the review carried out by Martin Taylor, which we have been implementing since 1998, was undertaken with the intention of improving work incentives, encouraging job creation and building a fairer national insurance system. We have achieved that by new higher starting-points for paying employees' and employers' contributions; a single rate of employers' contributions instead of the multiple rates that we inherited; and a new structure of self-employed contributions which gives help where it is needed most—to the lower-earning self-employed. We have been able to do this, as I say, through the prudent management of the National Insurance Fund. I give way to the noble Lord.
Lord Goodhart: My Lords, before the noble Lord sits down, he has not dealt with my point as to why the small earnings exemption for the self-employed was not increased so that it kept more or less in touch with the lower earnings limit for the employed.
Lord McIntosh of Haringey: My Lords, that is a fair point. My answer partly covers it, in saying that we do

583
not do everything in one year. However, I think it would be prudent if I wrote to the noble Lord on the point.
This year's order, including the negative order, helps to bring forward those conscious policies that have been adopted following the Taylor report. We believe that they are well justified. I commend the order to the House.
On Question, Motion agreed to.

Company and Business Names (Amendment) Regulations 2001
8.34 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey rose to move, That the draft regulations laid before the House on 2nd February be approved [6th Report from the Joint Committee].
The noble Lord said: These regulations give full effect to the Company and Business Names (Chamber of Commerce, Etc) Act 1999, a Private Member's measure introduced in another place by Mr Andrew Lansley, the honourable Member for South Cambridgeshire.
The regulations amend the 1981 Company and Business Names Regulations. They specify a number of expressions, and their Welsh equivalents, that include the term "chamber", which cannot be used in a company or business name without permission from the Secretary of State. These expressions cover the range of activities that would be expected of a chamber. They include chamber of business, chamber of commerce, chamber of training and enterprise, and their Welsh equivalents—which I shall gladly read out if anyone wants to challenge my Welsh pronunciation. The regulations provide that companies and businesses whose names include these expressions prior to their entry into force on 10th May will not be affected.
To set the regulations in context and explain their purpose, I shall set out briefly the statutory regime governing the use of certain sensitive expressions in a business or company name and then say a little about the 1999 Act.
Under the existing 1981 regulations, provided for in the Companies Act 1985 and the Business Names Act 1985, companies or businesses must seek permission from the Secretary of State or other relevant body before they can register or use any one of a number of prescribed words or expressions in their name. These include, for example, words which imply business pre-eminence or representative status such as "association", or "authority"; or words which imply specific functions such as "charity", "insurance" or "co-operative". The purpose of these safeguards is to ensure that companies and businesses cannot use names which might give a misleading impression of the nature of their business or of their stature.
The British Chambers of Commerce (BCC) expressed concern that business could be misled by rogue companies or businesses which used the name chamber of commerce but did not perform the functions that are commonly understood by the term. In answer to these concerns, the Company and Business Names (Chamber of Commerce, Etc.) Bill was introduced and was fully supported by the Government in acknowledgement of the role of the British Chambers of Commerce and the Scottish chamber in promoting public recognition of the title "chambers" as one which is synonymous with quality and integrity.
The 1999 Act ensures that the Secretary of State consults at least one representative body in determining whether expressions such as "chamber of commerce", "chamber of trade" and similar expressions may be used as part of a registered company or business name; it names the BCC and SCC as such bodies for the purposes of the Act; and it provides that the Secretary of State may issue guidance on the factors to be taken into account in considering applications for the use of such expressions.
The regulations we are considering today have the support of both the BCC and the SCC, which have been fully consulted on them and on their impact on business. They believe that both the 1999 Act and these implementing regulations will protect business from those organisations which might seek to pass themselves off as bona fide Chambers but who not represent their interests.
To assist those companies that wish to use any of the expressions listed in the regulations, guidance has been prepared on the factors which the Secretary of State will take into account in considering applications for use in a name. These include the body's purpose and constitution, its independence, representative nature and geographical location. The Government undertook that the BCC and SCC would be fully consulted on the guidance and both have confirmed that they agree with what is proposed. A copy of the guidance has been placed in the Library.
The regulations will contribute to the BCC's and SCC's wider efforts to build confidence in and maintain the integrity of the chamber movement. I commend the regulations to the House. I beg to move.
Moved, That the draft regulations laid before the House on 2nd February be approved [6th Report from the Joint Committee].—(Lord McIntosh of Haringey.)
Lord Higgins: My Lords, we on this side of the House most certainly support these regulations. As the Minister pointed out, there was very broad agreement—indeed, I believe, total unanimity—in another place when the primary legislation went through. I believe that that was also the case with the regulations when they were debated in the other place—at least, that was virtually so. Everyone seemed to be on the same side, though, if that had really happened, there would not have been a debate. Nevertheless, the debate was helpful.

585
The proposals now before us are especially important to chambers of trade. I was rather glad to see that the scope of the wording includes chambers of trade and of commerce and industry, which are forms that many of these organisations adopt. I shall not provoke the noble Lord into pronouncing the various Welsh words. I never agreed with the remarks made by the late Lord Hill, who used to say of the Welsh and English traffic signs in Wales that they were in Welsh for national prestige and in English so that people knew where they were going. When I have had the pleasure of visiting Wales, I have been greatly impressed with the extent to which Welsh is a living language. However, I am a little doubtful about the proposals in this context as Wales has gained so much from inward investment—not least from Japanese electronic and other companies. I am not sure that having the chamber of trade named in Welsh, unless it were placed side by side with the English name, would be very helpful.
I have but one question for the Minister. These organisations are normally limited by guarantee; in other words, they are not profit-making organisations. It would seem that the intention is to protect the position of non-profit organisations. Can the noble
586
Lord say whether any of these organisations will be profit making? Alternatively, will they all he limited by guarantee?
Lord Goodhart: My Lords, I have nothing to add to what has been said both by the Minister and by the noble Lord, Lord Higgins. That is probably just as well because I rather take the view that, if I did have any comments to make, I ought to make them in English and Welsh. Unfortunately, I do not speak Welsh, so that is another reason for my saying nothing.
Lord McIntosh of Haringey: My Lords, the normal practice in Wales would be for such signs to be in both English and Welsh. I can tell the noble Lord, Lord Higgins, that none of the chambers about which we are talking is a for-profit organisation; we are talking about companies limited by guarantee. But the protection provided by the regulations also covers companies limited by shares; in other words, companies for profit. I commend the regulations to the House.
On Question, Motion agreed to.
House adjourned at eighteen minutes before nine o'clock.

  Independent Football Commission
  Independent Football Commission
  Nigerian State Funds: Requests to Freeze
  Nigerian State Funds: Requests to Freeze
  National Asylum Support Service
  National Asylum Support Service
  Asylum Seekers: Detention at Oakington Reception Centre
  Asylum Seekers: Detention at Oakington Reception Centre
  Criminal Injuries Compensation Scheme
  Criminal Injuries Compensation Scheme
  Overseas Electors: Rolling Registration
  Overseas Electors: Rolling Registration
  Police Recruit Training: Re-Coursing
  Police Recruit Training: Re-Coursing
  Fixed Penalty System: Extension
  Fixed Penalty System: Extension
  Terrorism Act 2000: Proscribed Organisations
  Terrorism Act 2000: Proscribed Organisations
  European Cohesion Fund: Beneficiary States
  European Cohesion Fund: Beneficiary States
  UN Conference Against Racism
  UN Conference Against Racism
  Mr Sirdar Tanis and Mr Ebubekir Deniz
  Mr Sirdar Tanis and Mr Ebubekir Deniz
  European Security and Defence Policy
  European Security and Defence Policy
  Foreign and Commonwealth Office: Expenditure Limits
  Foreign and Commonwealth Office: Expenditure Limits
  Motorways and Trunk Roads: Litter Clearance
  Motorways and Trunk Roads: Litter Clearance
  M.11 and A.12 Roadworks
  M.11 and A.12 Roadworks
  Habitats Directive and Planning Permission
  Habitats Directive and Planning Permission
  Vehicle Number Plates
  Vehicle Number Plates
  London Underground: Performance Indicators
  London Underground: Performance Indicators
  Bus Fare Concessions for Elderly and Disabled People
  Bus Fare Concessions for Elderly and Disabled People
  Northern Ireland Human Rights Commission
  Northern Ireland Human Rights Commission
  Disqualifications Act 2000: Irish Government Support
  Disqualifications Act 2000: Irish Government Support
  RUC Widows' Compensation Payments: Tax
  RUC Widows' Compensation Payments: Tax
  Northern Ireland Security Policy: South Armagh Watch Towers
  Northern Ireland Security Policy: South Armagh Watch Towers
  Farmers: Suicides
  Farmers: Suicides
  Arable Area Payments: Outstanding Claims
  Arable Area Payments: Outstanding Claims