Sitting of 12 September 2003

Preamble
The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Peterborough.

Business of the House: Standing Order 47
The Lord President of the Council (Lord Williams of Mostyn): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order 47 (No two stages of a Bill to be taken on one day) be dispensed with on Monday next to allow the Northern Ireland (Monitoring Commission etc.) Bill to be taken through its remaining stages that day.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.

Dealing in Cultural Objects (Offences) Bill
11.6 a.m.
Lord Redesdale: My Lords, I beg to move that this Bill be now read a second time.
I realise that it will take less time to read the Bill than it will to deliver my speech today, so I apologise to the House for that, but it is probably because this is a well-focused Bill with clear intentions. Those are set out in the Long Title:
"To provide for an offence of acquiring. disposing of, importing or exporting tainted cultural objects, or agreeing or arranging to do so; and for connected purposes".
It may be helpful if I examine each clause. That is not possible in many Second Reading speeches, but as there are only five clauses it might be helpful.
Clause 1 relates to the offence of dealing in tainted cultural objects. It sets a high hurdle for prosecution under the Bill and rightly so. It was the subject of amendment in another place, where it was questioned whether someone would knowingly deal in tainted objects. I believe that the matter was dealt with in another place and that the present wording is clear and unambiguous.
Clause 2 relates to the meaning of "tainted cultural object". It was the subject of the other amendment in another place dealing with the meaning of "cultural object". A clear distinction has been made.
Clause 3 relates to the meaning of "deals in" and to those who conduct the trade. Museums are also included in this clause, although the code of practice strongly prohibits dealing in unprovenanced artefacts. However, it means that museums must once again revisit and upgrade their standards on acquiring objects.
An area which was not dealt with in another place and is also dealt with in Clause 3 is the trade in artefacts over the Internet. That has been overlooked,
544
but it is one of the major ways of disposing of objects, especially those found by metal detectorists illegally—those whom we call "nighthawks"—who sell them over the Internet. It would be wrong for them to say that they did not know the provenance of these objects because they can be placed geographically and the fact that they are being sold in dollars clearly indicates that they are trying to find an overseas market for them.
Clause 4 deals with Customs and Excise prosecutions. Obviously, they can prosecute under other powers, but the Bill sets out their roles.
Clause 5 deals with offences by bodies corporate. I return to the Internet because we may need to consider the position. Those who run Internet sites must in future look closely at their responsibilities in dealing in such objects. That means that they must understand the Bill and their obligations under it.
Clause 6 relates to the Short Title, commencement and extent. It means that, given a fair wind, the Bill will be law before Christmas.
I want to disabuse the House of two issues because particular questions have often been asked about the Bill. The Parthenon marbles are not included in it. The Bill will not be retrospective and therefore the Parthenon marbles are not covered under it. Secondly, although human remains could be covered under the Bill, they are already covered under certain other laws.
What is the need for the Bill? It will come as no surprise to your Lordships that the genesis for the Bill and the reason it was given so much publicity in another place—perhaps more than any other Private Member's Bill—was the horrendous looting which took place not just in the Baghdad Museum but all over Iraq. However, not only is Iraq suffering from the loss of its cultural artefacts, both sites in Afghanistan, South America, Cambodia and local sites in this country are regularly pillaged by nighthawks. Some of them have used violence when approached and attempts have been made to apprehend them.
Local churches have been robbed. Recently, medieval brasses, often used for brass rubbings, have been removed from churches in order to sell them. Stately homes have been affected, too. Many noble Lords might have watched the recent excellent television series, "Restoration", which has shown a number of such buildings. One, a listed building, until recently had many fine architectural features in place. However, when the programme was shot, it showed that the entire contents of the building had been gutted by those wishing to sell the architectural salvage.
The aim of the Bill is to stop that trade, and the way to do so is to strangle the market in illicit antiquities. There is a large legal market in antiquities and it is not the aim of the Bill to destroy that. However, its aim is to stop illegal trade in the main markets—one of the main ones being London; the other two being New York and Rome.
Nor should we underestimate the value of this market, which has been seen as being worth millions of pounds. It has been linked to organised crime and

545
directly linked to terrorism. It has been seen as a national threat to security through its link to terrorism and the use of terrorists to launder money.
The Bill was formulated as a result of the Ministerial Advisory Panel on the Illicit Trade in Cultural Objects report in 2000, which recommended a new law. I thank all those who have been involved in ensuring that the Bill becomes law. Specifically, I want to thank my honourable friend in another place, Richard Allan, MP, Professor Palmer and all the members of ITAP, which includes the noble Lord, Lord Renfrew. I thank those at the DCMS, including, in particular, those in the Cultural Property Unit, and all members of the All-Party Parliamentary Archaelogical Group, who have taken an interest in the Bill. Indeed, the APPAG report, which was published earlier this year, made a recommendation that this law should be brought forward as swiftly as possible.
The importance of the Bill has been underlined by the situation in Iraq. Perhaps we should not underestimate the seriousness of the situation. In Baghdad Museum alone, Colonel Matthew Bogdanos told a press conference in London in July that 30 objects were still missing from the museum's display cases; 169 from the restoration storeroom; 236 from the heritage room; 2,703 from the ground-floor storeroom; and 9,666 from the basement store, comprising 4,795 cylinder seals—the entire collection of cylinder seals which were in the Baghdad Museum. In addition, there were 4,997 small finds, such as necklaces and amulets, and 545 items of ceramic, bronze or glass.
That is just in the Baghdad Museum. Vast numbers of sites around Iraq are being looted. Recently it has been shown that very few artefacts are coming from Cambodia, which was a rich source for the illegal market. That is not because few artefacts are being stolen from Cambodia but because systematic thieving in Cambodia over the years means that there is very little left to take.
When we talk about the theft of artefacts, we often say that we should attack people such as looters on the ground. But that is not where the real damage is being done. The looters on the ground receive very small amounts of money and they usually act through economic necessity. The purpose of the Bill is to target the trade, where the money is being made and which generates the activity in the first place. Local looters receive a pittance for the destruction that they cause to their national heritage. It is the large illicit art market on which we should concentrate and, ironically, the individuals, who should be aware of the actions they undertake.
I end with a rather ironic story. Only one arrest has been made in connection with the theft of Iraqi cultural objects, that of the American writer, Joseph Braude, author of The New Iraq: Rebuilding the Country for Its People, the Middle East, and the World, who was stopped in New York and found to be carrying three cylinder seals marked with Iraq museum inventory numbers, which he said he bought for 200 dollars. I commend the Bill to the House.
Moved, that the Bill be now read a second time.—(Lord Redesdale.)
11.17 a.m.
Lord Brooke of Sutton Mandeville: My Lords, I am delighted to follow the noble Lord, Lord Redesdale, with whom I have had several helpful opportunities to discuss the Bill during its progress through the Commons. I congratulate him on the way in which he set out the Bill. I also salute Richard Allan, MP, for introducing the Bill in the other place. Like the noble Lord, I am aware of the impetus that events in Baghdad have given to the Bill. I have always enjoyed the definition of "pre-history" as being a cross between Sir Leonard Woolley's Ur and Sir Rider Haggard's She.
I should initially declare an interest as president of the British Antique Dealers' Association, which I have been since 1995, and of the British Art Market Federation, which I have been since 1996. More by their wish than my own, I receive a small retainer from both of them. In the case of the first retainer from the British Antique Dealers' Association, it is purely potable and, indeed, the case is in the singular.
The British Antique Dealers' Association, or BADA, has been in existence since the 1920s. The British Art Market Federation, or BAMF, which embraces both auctioneers and dealers, was created in 1996 at the request of the then government to provide a single conduit for representations by the art market to government departments—notably the DCMS, the DTI and Customs and Excise. Those arrangements have worked extremely well, and BAMF has made clear on a series of occasions, both in Parliament and outside, its appreciation for the effective collaboration between the trade and the administration of the day in the national interest.
The art market takes extremely seriously the principles and issues that underlie the Bill. Criminal activity damages the reputation of the legitimate art market on which many jobs depend. Britain has the second largest art market in the world, and ours is by far the largest in Europe.
Last year just under £2 billion-worth of art and antiques were imported into the UK from outside the European Union according to Customs and Excise statistics. The market provides employment for 37,000 people and generates further employment in related services, such as accountancy, advertising, insurance, conservation and restoration, security, shipping and packing, and so forth. The sales turnover of the British art market totalled over £4 billion in 2001 and the market is also a powerful attraction for overseas visitors to the UK. A survey in 1995 showed that expenditure by foreign visitors who regarded the art market as an important reason for their visit amounted to nearly £3 billion.
This successful sector of the British economy has a global reputation for expertise. It is acutely aware of the damage that the black market can do to this reputation and for that reason has gone to great lengths to work closely with our own authorities to

547
introduce measures to eradicate criminal activity without at the same time damaging the competitiveness of the legitimate market. I cannot coin a phrase for the art market to match the analogous one that every good policeman hates a bent copper, but the same principle applies. A bent dealer deals a poor hand to every good dealer and a dodgy auctioneer has first to dodge the rest of the trade. Everyone in the trade is potentially besmirched by a single individual's wrongdoing.
BAMF has played a leading role in the inquiry set up under the chairmanship of Professor Norman Palmer—to which the noble Lord, Lord Redesdale, referred—by the Minister for the Arts in 2000. The Illicit Trade Advisory Panel is made up of archaeologists, including my noble friend Lord Renfrew, art market representatives, museum curators and academics. It was charged with investigating the extent of the international black market in art and antiquities and the extent of the UK's involvement in that market and with suggesting measures to prohibit it. Its report contained a number of recommendations, which included the creation of the new criminal offence contained in the Bill. The Minister accepted the panel's recommendations.
BAMF has been closely involved with the drafting of the Bill. It has from the beginning fully supported the Bill's aims. However, it was also concerned that the Bill should focus unambiguously on criminal activity and not give rise to unintended difficulties for those working in the legitimate marketplace. There were some original drafting difficulties, which gave cause for such concern and, happily, those have now been remedied by two amendments in the Commons to which the noble Lord, Lord Redesdale, referred. I am sorry that in some quarters the market's desire for changes to the Bill's wording was misinterpreted as an attempt to delay or frustrate the Bill. That was not the case and I know how grateful the representatives of the art market are to the Bill's sponsor, Mr Allan, for the sympathetic way in which he was prepared to listen to and understand the real difficulties that some of the original drafting might have caused.
The lessons of this are clear. It is vital to involve the art market in proposals aimed at stamping out criminal activity as the market has a common interest in seeing that that is done. It is also important to ensure that measures taken to bear down on illicit activity do not add a regulatory burden to the legitimate market. The British market is aware of its responsibilities, which are summarised in BAMF's guidelines of practice, published in the Illicit Trade Advisory Panel's report. The international art market is highly competitive and it is vital that we maintain a balanced and reasonable regulatory environment here if we are to prevent this thriving market from disappearing abroad.
I would not be true to myself if I did not add that other recommendations of the Illicit Trade Advisory Panel have made less progress, to the frustration of the art market; in particular, the recommendation for databases of stolen art and antiques and of the cultural laws of other countries. Those will be urgently
548
required if the present Bill is to be affected. It is unreasonable to place obligations on the legitimate art market without providing the information that it needs if it is to avoid inadvertently handling tainted objects. It is noticeable that the House of Commons Culture, Media and Sport Select Committee has also called for such a database and it is regrettable that no progress so far appears to have been made towards achieving that objective.
I realise that the matter I have just raised is business for another day, but it would be sad if efforts to get the Bill on to the statute book so expeditiously were not followed up by further measures to make it wholly effective. In the mean time and on behalf of the federation I welcome and support the Bill unreservedly.
11.24 a.m.
Lord Stewartby: My Lords, I begin by declaring an interest, or what is a potential interest, although I had some difficulty in working out how exactly it would operate. I have been a coin collector for more than 60 years and should like to raise a number of points and questions as to how the Bill will affect coins and the numismatic trade. I should mention that I was chairman of the Treasure Trove Reviewing Committee and its successor, the Treasure Valuation Committee, for five years during the time when a transition was made from the treasure trove regime to the new system under the Treasure Act, which has worked very well. I was glad to have been able to contribute to that.
The Explanatory Notes point out that the British Numismatic Trade Association is one of the three trade bodies primarily affected, like the British Antique Dealers Association, on whose behalf my noble friend Lord Brooke so elegantly spoke. I strongly support the broad purpose of the Bill. The situation in Iraq has brought home to people the desecration of valuable buildings and historical areas that can happen in a most dramatic way. However, it is far more widespread than that. Legislation to deal with this subject is urgently needed.
I should like to mention a number of matters which are puzzling. Clause 1 refers to dishonestly dealing in tainted cultural objects. I am not clear how one could deal honestly in such objects. It may be that the word "dishonestly" is not needed. However, if it means something, I should be interested to know what is excluded by honesty in such dealing.
My second main point is to ask how coins are covered by the Bill. Many coin hoards are found frequently in this country each year. They are not normally found in or associated with buildings. There are some dramatic examples of where they have been, such as Corbridge on Hadrian's Wall, but as a general rule they tend to be found more in open country, often by metal-detectorists but also often in the course of natural activities. Ploughing and farming have produced quite a harvest of coins over the years.

549
The Treasure Act lays down the procedure for dealing with coin hoards in this country. I am acutely conscious of the amount of information which can be lost if the procedures under the Treasure Act are not properly followed. A few years ago there was a major hoard buried in the reign of Canute, probably from Cambridgeshire. That never came through the correct treasure trove route and coins from that hoard, or which one can assume came from it, have been filtering on to the market for several years. It has been said that archaeological objects out of context are valueless and meaningless. However, the contents of that hoard, even though one did not know where it had come from, would be extremely valuable to numismatic studies.
Why is such a hoard not declared? It could be that it came from an archaeological site. Certainly, that is one possible explanation, but there are others. For example, the detectorists who found it may well not have had permission from the landowner or there may have been disputes between groups of finders. Therefore, unless the provenance of coin hoards is known, one cannot assume that they would be tainted under this legislation.
In the case of coins from abroad the situation is more difficult. The Mediterranean countries throw up an enormous number of coins each year. There are not hundreds of thousands but probably millions in existence. That number is being added to continually. A number of those parcels reached the London market. Here there is a slight dilemma because if they come to respectable dealers they may very well be shown to students who can publish and provide important information on them even though they do not know precisely where they were found. If, as a result of this legislation, dealers feel that they should not handle material of that kind, I fear the consequence will be that they will go to the less respectable end of the trade for more gradual dispersal. Even that knowledge will then be lost.
So I should be grateful if the noble Lord, Lord Redesdale, whom I congratulate on bringing the Bill before the House, or the noble Lord, Lord McIntosh, could comment on what is the actual assumption. If a dealer does not know from where something has come, does he have to assume that it comes from a dishonest source? It is an open question. It could be an honest source. After all, objects come to London because it is a good place to sell them and their price may be a good deal better than that in a local country. So it is not necessarily the case that they have been handled illegally or dishonestly.
As my noble friend Lord Brooke said, there are many reliable and honest dealers in antiques, as there are in coins. It would be a pity if one of the consequences of the implementation of the Act—as I hope it will soon become—was to drive trade away from those who are likely to handle it in the most honourable and respectable way.
Despite those concerns, I strongly support the Bill. I hope that it will soon be on the statute book. I should be very grateful for any illumination on the points that I have raised.
11.32 a.m.
Lord Renfrew of Kaimsthorn: My Lords, several years ago I asked at Question Time in your Lordships' House, whether the Minister could confirm that it is not an offence in this country for a dealer openly to offer for sale an antiquity which is known to have been illicitly excavated overseas and illegally exported from its country of origin to this country. My noble friend Lord Inglewood—for this was still in the era of the Major Government—confirmed that such was indeed the case. It is in the light of that scandalous situation and of observations made subsequently during the investigation into the illicit traffic undertaken by the Culture, Media and Sport Committee of the House of Commons, that the then Minister for the Arts, the right honourable Alan Howarth, set up the Ministerial Advisory Panel on Illicit Trade—known as ITAP—
under the chairmanship of Professor Norman Palmer, on which I have the honour to serve.
In its report in December 2000, the first two recommendations were:
"1. We advise that the other measures referred to in this Report satisfy the UNESCO Convention … and that the UK should therefore accede to it.
2. We propose that, to the extent it is not covered by existing criminal law, it be a criminal offence dishonestly to import, deal in or be in possession of any cultural object, knowing or believing that the object was stolen, or illegally excavated, or removed from any monument or wreck contrary to local law".
The United Kingdom formally acceded to the 1970 UNESCO Convention in October 2002. So that was the first recommendation. The present Private Member's Bill, introduced in another place by Richard Allan MP and admirably and skilfully argued and presented by him during its passage there, will very effectively enact the second recommendation.
The noble Lord, Lord Redesdale, in presenting the Bill to your Lordships, has lucidly summarised its main points. The Bill will very effectively close the loophole in our present legislation which allows illicit antiquities originating overseas openly to be sold in this country, as well as some that are actually looted here. Its passage is a matter of urgency in view of the very widespread destruction of archaeological sites world-wide to provide antiquities for the illicit market. What matters above all is the loss of information resulting from the looting process and the consequent threat to our understanding of the human past. Our entire understanding of early pre-history and history is at risk in this process.
As the noble Lord, Lord Redesdale, has stressed, the Bill is not retroactive; it applies only to antiquities which are dug up illicitly—and so become "tainted"—
after the date of enactment. Moreover, there is no risk that, after that date, the innocent and unsuspecting buyer may unwittingly commit a criminal offence by purchasing an object which he or she does not realise is tainted; for an offence is committed only if the purchaser knows or believes that the object is indeed tainted. That, however, should be enough to incriminate some of the dodgy dealers in illicit cultural goods who are so damaging to the otherwise good reputation of the British art trade.

551
The Bill is indeed welcomed by respectable members of the art and antiquities trade, who are often embarrassed by the behaviour of those who deal in illicit antiquities, as my noble friend Lord Brooke has already mentioned in the course of this debate. The reputable trade is very effectively represented on the ITAP panel, as we have heard, which supports the Bill, as of course does the entire archaeological community and indeed the All-Party Parliamentary Group for Archaeology, of which the noble Lord, Lord Redesdale, is the energetic secretary. The Bill has been scrutinised in another place and has had clarifying amendments, so I very much hope that it will find support on all sides of your Lordships' House today.
To make the Act work effectively, the ITAP panel recommended that there should be prepared both a database of international legislation, which it is hoped UNESCO may undertake, and a database of unlawfully removed cultural objects. My understanding is that the Home Office has made no headway whatever with this proposal and that the Department for Culture, Media and Sport has made effectively zero impact on the Home Office and has taken, so far, no practical steps of its own to set up such a database. Perhaps the Minister, when he replies, could indicate whether any progress has been made beyond vaguely worded expressions of good intent.
It is a matter for satisfaction that British antiquities as well as those of overseas origin will be protected by the Bill. And of course British antiquities of precious metal have been protected since 1996 by the Treasure Act, and indeed before, as my noble friend Lord Stewartby has indicated. It is particularly to be welcomed that the Department for Culture, Media and Sport facilitated the establishment of the Portable Antiquities Scheme with 14 liaison officers, and that the scheme has now been expanded to cover the whole of England and Wales with a grant from the Heritage Lottery Fund funding a further 32 liaison officers, thereby establishing a national network.
In this way Britain can be said to be playing its part in countering the illicit trade in antiquities, so far as antiquities originating here are concerned. But it is known that the Heritage Lottery Fund grant ends on 31st March 2006 and that it will not be repeated from that source. Can the Minister confirm that the department will undertake the necessary long-term funding of this essential service when the Heritage Lottery Fund payments come to the end of their term in 2006?
The Statement made to this House on 10th October 2002 that the Government,
"will give active thought to the question of the long-term sustainability of the scheme".—[Official Report, 10/10/02; col. 495.]
is welcome, but after a year of "active thought" the time may now be ripe for some concrete planning and indeed budgeting.
Perhaps I may remind the House, however, that in relation to the Bill the responsible collector, the responsible dealer and the responsible museum will need to employ a much higher standard of diligence
552
than that implied by the avoidance of committing an offence under the new Act. For it is in fact quite difficult to establish—as I believe my noble friend Lord Stewartby was indicating—that a cultural object such as an antiquity or indeed a coin is "tainted", for instance through being illegally and clandestinely excavated and illegally exported.
The whole problem with the illicit and clandestine trade is that it is indeed clandestine, and looted objects rarely come with a label informing you that they have been looted. That means that whenever one buys an antiquity which has no specific and documented provenance—an unprovenanced antiquity—there is the serious risk that it indeed comes from an illicit excavation, perhaps a very recent one. That was the serious issue with the Sevso treasure, which we have sometimes discussed in your Lordships' House, and it is the problem with many antiquities which come on to the market. For that reason. in the exercise of due diligence, it is desirable that collectors, dealers and museums should simply not purchase recently unprovenanced antiquities.
I think that everyone accepts that antiquities which left their country of origin many years ago—in the 19th century—may respectably be acquired. The year of 1970, the year of the UNESCO convention, is frequently taken as a watershed in the matter. Since 1998, that has been the position adopted by the trustees of the British Museum, who have stated:
"Wherever possible the Trustees will only acquire those objects that have documentation to show that they were exported from their country of origin before 1970, and this policy will apply to all objects of major importance".
A similar position has been taken by the National Art Collections Fund in relation to support of acquisitions.
I invite the Minister to confirm that a comparable criterion will be included among the tests applied when antiquities are being considered for acceptance by the state under the in lieu scheme in place of what used to be called death duties. For it would indeed be an anomaly if looted or recently unprovenanced antiquities were used to generate tax benefits. Can we seek to ensure that the same logic is applied to any tax benefits which might arise from other charitable donations or transfers?
We have all been dismayed by the events in Iraq, to which reference has been made this morning, including the thefts from the Baghdad Museum and the continuing looting of archaeological sites there on a very large scale. The illicit trade in such artefacts is already covered by the Security Council resolutions, and it is satisfactory to know that they will continue to be covered by the Bill even when United Nations sanctions are lifted. But what consideration are the Government giving to the longer-term support for the heritage and archaeology of Iraq? The Minister will be aware that the British School of Archaeology in Iraq went into understandable decline following the first Gulf War, and is no longer effectively funded by the Government through the British Academy. Will the Minister undertake to investigate the possibility that the mission of the British School of Archaeology in

553
Iraq could be reactivated in the months to come, and that the Government might make additional resources available to the British Academy to make that possible?
In conclusion, may I say what a pleasure it is that the noble Lord, Lord McIntosh of Haringey, will reply for the Government? We have all had the opportunity to admire the breadth of his knowledge on cultural and heritage matters while he spoke from the Dispatch Box as a Government Whip. As the Minister responsible for heritage, he will speak to us with comparable erudition but with even greater authority, which is much to be welcomed.
I have much pleasure in supporting this useful Bill and commend it to the House.
11.43 a.m.
Baroness Hooper: My Lords, I also welcome the Bill, which extends and reinforces the powers of the police authorities and Customs and Excise and plugs a gap which was to the discredit of everyone involved in the area. As has been said, the United Kingdom has a particular need to be seen to act in this area as a major market centre for the international art trade and, heretofore, with a high reputation which we must ensure is fully maintained.
It is sometimes tempting when faced with a short Bill to think that it should be embroidered a little and go further, but I recognise that in order to be enforceable and effective, it must be kept simple and focused, so I congratulate the noble Lord, Lord Redesdale, on his part in introducing the Bill.
The need for the Bill has been emphasised by every speaker so far in the debate. To the examples of Iraq, Afghanistan and others, I would add those of Ethiopia, with the loss of Lalibela's healing cross, and of Burkina Faso, where the three famous thefts of the Kurumba Mamio fertility statuette, the Pog-Neree mask from Tigundamba—Africa is not my country of speciality, so I hope that I am pronouncing these correctly—and the Bobo butterfly mask. The two first have been recovered by international co-operation; the last is still missing. Those examples and many others were raised at a hearing that I attended in March, a colloquy organised in Paris by the Committee on Culture and Education of the Council of Europe's Parliamentary Assembly, in collaboration with the French Senate, at which we focused especially on the issue in relation to African countries.
I fully agree with all those who have said that prevention is the best solution and in that regard international co-operation and co-ordination are as essential as the implementation of rules such as those introduced by the Bill. It is clearly key in all such cases that the fullest possible information is available at source, so that we know what objects that contribute to our world culture exist and where they are kept. Any support that can be given to countries to build up inventories—or, as my noble friend Lord Renfrew said, the database approach supported by UNESCO—must also receive the full co-operation and commitment of the British Government.
554
UNESCO is clearly a leading organisation drawing attention to the need for international co-ordination and co-operation, as is the International Council of Museums. The Council of Europe's Convention on the Protection of the Archaeological Heritage, to which the United Kingdom is a signatory also lays down guidance and rules, which we must play our full part in fulfilling and observing. I therefore ask the Government and the noble Lord, Lord Redesdale, when he responds to the debate, to tell us what international bodies—both intergovernmental and non-governmental—it is planned to work with to carry through the Bill's provisions. I also ask which other countries have similar legislation to the Bill, so that we can know with which countries we can best co-operate.
Having said that, I feel sure that the Bill will receive the support of your Lordships. I wish it a fair wind and speedy implementation.
11.49 a.m.
Lord Avebury: My Lords, perhaps I may add a word of congratulation to my noble friend on the Bill. In doing so, I place a footnote to the remarks of the noble Lord, Lord Renfrew, about rebuilding the capacity of Iraq to safeguard its own cultural heritage. We have a particular interest in helping Iraq to do that, because it was a brilliant citizen of this country, Gertrude Bell, who started the Department of Antiquities in Iraq and who left £50,000 in her will to be spent on its development. She excavated many of the important sites in Iraq. She was effectively number two to Sir Percy Cox, the Bremer of his day. He played a significant role in the construction of Iraq in 1921 and afterwards.
As a result of our close association with Iraq over the years, I hope that the Minister will listen to the pleas from all sides of the House. Almost every noble Lord who spoke has entered a plea that we give additional support. The noble Lord, Lord Brooke, remarked that we need further measures to make the Bill wholly effective. I am not sure whether what has been said can be done within the framework of the Bill. But a strong message has been given to the Government that this House would like to see further money and resources given to enable the Iraqis to rebuild their capacity to look after their own antiquities.
11.51 a.m.
Baroness Buscombe: My Lords, I thank the noble Lord, Lord Redesdale, for introducing this important Bill in your Lordships' House, following its introduction by his honourable friend Richard Allan in another place. I thank the noble Lord for including me in helpful discussions on the Bill with the Department for Culture, Media and Sport earlier this year.
We welcome the Bill. It has had a rocky ride, with its passage through the Commons, so we are very pleased that it was revived and made its way to your Lordships' House. I am particularly pleased for, and

555
grateful to, my noble friend Lord Renfrew for his tenacity and commitment to these important measures. It is hard sometimes to understand the hit-and-miss process of Private Members' Bills, given the immense amount of usually personal, passionate commitment that goes into their drafting. This Bill is certainly a case in point. So I will say straightaway that we want to see this Private Member's Bill in statute this Session.
It is an important measure that seeks to make it an offence if, knowing or believing a cultural object to be tainted, a person acquires or disposes of it, imports or exports it, agrees or arranges to do so. It aims to combat traffic in unlawfully removed cultural objects and to assist in maintaining the integrity of buildings, structures and monuments, including wrecks, by removing the commercial incentive to loot. The offence is irrespective of the origin of the object.
The Bill is an important contribution to heritage legislation. It shows that we care for the culture of other countries as well as our own. It sets a good example and is a non-contentious Bill that we strongly support. It also seeks to protect the interests of the many honourable dealers, bearing in mind the point made by my noble friend Lord Brooke of Sutton Mandeville that everyone in the trade is besmirched by an individual's wrongdoing. Further to the reference by the noble Lord, Lord Redesdale, to the American author caught with three seals labelled "Museum of Baghdad", which he bought for the princely sum of 200 dollars, are the Government aware of any other related fines? The database referred to by my noble friend Lord Renfrew would greatly assist in the detection of these important cultural objects.
My noble friend Lord Renfrew has said that the Bill is a matter of urgency, so I shall discuss some of the concerns and problems raised during the passage of the Bill.
First, on the burden of proof in Clause 1, my honourable friend Tim Loughton MP stated in another place that we are,
"concerned that the provisions need to be tested in the courts. It is important that we do not get the balance in relation to the burden of proof wrong. We do not want to legislate in haste only to build up problems later".—[Official Report, Commons Standing Committee F, 14/5/03; col. 5.]
I am pleased to confirm that that problem was resolved in Committee in another place.
Concerns have also been expressed about expected levels of prosecution. A regulatory impact assessment stated that the level of prosecution is estimated to be no more than one every two to three years. My honourable friend Tim Loughton questioned that and hoped there would be more. That remains a concern. It is surprising, given the right importance now attached to the Bill, that so few prosecutions are envisaged.
On a separate issue, we were alerted by the British Art Market Federation to the practical difficulties with the definition of a tainted cultural object as originally drafted. In response, in Committee in another place on Clause 2, my honourable friend Tim
556
Loughton's amendment tried to concentrate the clause on the illegality of the circumstances in which the object was removed thus avoiding its use where the offence has a limited connection. Although that amendment was withdrawn, the concern was dealt with by amending the Bill on Report.
Although the term "tainted cultural object" has been tightened, the definition of "cultural object" is not tight. Admittedly, it is very difficult to define. A discussion of whether an object was a cultural object would therefore precede a decision on whether the object was tainted, particularly in architectural salvage.
A further issue vital to the life of the Bill has been the need to clarify the scope of the material that the Bill intends to incorporate. Adding "the fabric of' before "the building or structure" in Clause 2(4) alleviates concerns that the Bill might cover portable furnishings.
I hope that the Government can respond to the questions raised today, including those raised by my noble friend Lord Stewartby on coins. Our focus has been very much on the conflict in Iraq and the resultant desecration of the National Museum of Baghdad. As my noble friend Lady Hooper pointed out, this has been an ongoing problem for many years. We should take note of the examples that my noble friend has used—for example, Ethiopia. I wish the Bill well.
11.57 a.m.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, the Government are very grateful to the noble Lord, Lord Redesdale, for bringing forward the Bill. I assure him that it has our support. We are also grateful to Mr Richard Allan, who took the Bill through quite lengthy proceedings in the House of Commons. Like other noble Lords, we are grateful to Professor Palmer and ITAP, with the distinguished membership of the noble Lord, Lord Renfrew.
It is important to realise that the Bill is only part of a series of government measures designed to help, protect and sustain our own and the international historical environment. Inevitably, as it is a Private Members' Bill and must therefore be framed by consensus, it is a compromise Bill.
The interests of the art market and those of the archaeological community are not necessarily the same. However, in the widest sense it is in the interests of the archaeological community and the vast bulk of the legitimate art market that there should not be an illegitimate trade. Nevertheless, the pressures that have existed between the archaeological community and the art market in the framing of the Bill must be recognised. I was very pleased to see that the noble Lord, Lord Brooke, in particular, and the noble Lord, Lord Stewartby, in speaking about the interests of the art market, and the noble Lords, Lord Renfrew and Lord Redesdale, in speaking about the interests of the archaeological community, have reached the consensus necessary for the Bill to proceed.

557
I say explicitly that we are now in the middle of September, and the time available before the end of the Session is quite limited, so it is important that no amendments be carried against the Bill. I urge those who might be tempted to table amendments not to do so.
I spoke of the Bill as part of a range of measures designed to help protect and sustain our own and the international historic environment. Noble Lords will know that DCMS and the then Department for Transport, Local Government and the Regions published, in 2001, a document called The Historic Environment: A Force for our Future, which dealt specifically with those issues.
The problem is that there has been asset stripping on an industrial scale, as we have seen recently in Afghanistan and Iraq—and also, as has been said, in this country. That is why we need this new legislation. The primary objective of the Bill is to strangle the black market in antiquities and protect a finite resource for future generations: one which offers the best hope of a sustainable economic future to many communities, both in this country and around the world. Let nobody think that looting antiquities brings even short-term benefits to the people who actually do the looting. They get paid a pittance and the dealers make a fortune. That is the way it works.
The Bill is not retrospective, which would have been very difficult to achieve, but it will make it an offence to deal dishonestly in unlawfully removed cultural property from these regions or from any other area in the world. The noble Lord, Lord Stewartby, asked about the word "dishonesty". We have included the requirement for dishonesty in the Bill to ensure that those with a purely innocent motive are not caught. For example, someone may acquire an object intending to return it to its source. Without the dishonesty requirement, such a person might be technically guilty of an offence. The penalties on the illicit trade will act as a disincentive to the damage and looting of sites and monuments for commercial gain.
As I said, throughout the proceedings of the Illicit Trade Advisory Panel, this Bill has had the support of both the heritage community and the legitimate art and antiquities trade. That is what gives the Bill its strength. It criminalises an activity that does so much damage to the world's heritage and threatens the business interests of thousands of legitimate dealers.
What else is being done? Last October, the United Kingdom signed the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import and Transfer of Ownership of Cultural Property. That sent out a powerful signal to the international community that we are serious about playing our part in the collective effort to stamp out this trade. We now have 100 countries, including the United Kingdom, and, in recent months, Sweden and Japan, that have adopted the UNESCO convention, which enhances its value as a means of protecting the cultural heritage of the United Kingdom and other signatory countries.
558
There has been discussion of due diligence and a due diligence database. There have been voluntary codes of due diligence developed by dealers associations. However, they had a limited effect on the criminal element in the trade, because, clearly, that element does not adopt the codes. Therefore, the legitimate art trade recognises that the Bill will help to eliminate the activities of dishonest dealers who pose a threat to its business.
It has been rightly said that we now need an open national database of stolen and unlawfully removed cultural objects. The Select Committee on Culture, Media and Sport recommended that, as did ITAP in 2000. The noble Lords, Lord Brooke and Lord Renfrew, spoke powerfully about that. The noble Baroness, Lady Hooper, reminded us that such a database is important in fulfilling our new obligations under the 1970 UNESCO convention, especially those articles covering inventories and publicity regarding the disappearance of stolen items. The law enforcement agencies see that as an important element.
We have been accused of lack of progress on the due diligence database. It is an ambitious project that needs extensive consultation among policy makers in other Government departments and law enforcement agencies. The Home Office has asked us to prepare an outline business case for the database, which analyses the administrative arrangements, the budgets required and the operational security and access issues. We are working on that and if there is any further news, I will try to find the opportunity to report back to the House. I recognise that the issue is an important and urgent one and that what has happened in Afghanistan and Iraq has increased the urgency. The measures are needed by the trade, by law enforcement agencies, customs and the museums.
The noble Baroness, Lady Buscombe, among others, referred to the changes made to the Bill in Committee in the House of Commons. We welcome those, because they have been important in achieving the consensus that we all need.
Reference has been made to the cultural heritage crisis in Iraq, quite rightly. It is true that the orgy of looting that took place in Iraq earlier this year and which has taken place in Afghanistan, will not be covered by the Bill, because it is not retrospective. However, although we may have only one prosecution every two or three years, I hope that there will be a spate at the beginning, as the impact of the Bill first becomes known. Internet service providers, for example, who provide a facility for trade in illegal antiquities could be prosecuted. The measures will make a difference, and make those who propose to sell or trade in illegal objects, even though they are not formally covered by the Bill, think again. Ideally, the Bill would drive such people out of business.
With a Private Members' Bill, as the regulatory assessment says, it is important that we do not impose significant burdens on anyone. Instead, we should be encouraging those who are not complying with industry-approved standards to come on board. The

559
benefit of this Bill, especially to legitimate small businesses, vastly outweighs any possible disadvantage.
The noble Lord, Lord Stewartby, referred to the problem relating to the trade in ancient coins. He rightly said that the difficulty with coins is that their provenance is much more difficult to establish. Many come from farming or metal detectors, and have no connection with any particular site. However, we cannot make exceptions for the dishonest dealing in coins or hoards of coins that can be demonstrated to have been removed from their place of origin. Although it is true that not all coins have the provenance that Corbridge provided, we should remember that this Bill concerns maintaining the integrity of archaeological sites. Coins are no exception to the general rule.
I have spoken about the anticipated level of prosecutions. I was asked about the actions that we had taken in Iraq to protect and conserve Iraq's cultural heritage. We have sent experienced and expert staff as part of the first tranche of civilian administrators sent to Iraq after the war. We have supported new legislation to clamp down on the black market in looted cultural objects—this legislation. We have worked with Interpol, UNESCO, and the International Council of Museums to ensure that items looted from Iraq are apprehended if they come on to the art market. We have worked with the provisional authority in Iraq, helping to assess the situation and support the Iraqis in setting up their own cultural administration to determine priority. We have created a data base of offers of help from the UK heritage community, and we are grateful to all those who have taken part.
I shall briefly make one point that was not made. The Bill does not apply to Scotland because it relates to a devolved matter. From the Dispatch Box, I express the hope that the Scottish Parliament will think fit to pass comparable legislation.
I was asked about portable antiquities by the noble Lord, Lord Renfrew of Kaimsthorn. On 8th July, the Secretary of State said to the Select Committee on Culture, Media and Sport that,
"we ought to try to ensure that we can fund it"—
the portable antiquities scheme—
"in the long term".
That was the thrust of the noble Lord's point. Obviously, we will have to take that issue seriously in the next spending round. The noble Lord asked me about the acceptance in lieu panel and about the related provenance issues. As the Illicit Trade Advisory Panel said, nothing should be accepted in lieu unless it has full and acceptable provenance.
The noble Lord asked me about the British School of Archaeology in Iraq. We welcome the efforts of the school in assisting the national board of antiquities after the conflict. We log offers of help from the British archaeological community, and we will discuss strategies for protecting the Iraqis' cultural heritage with the school—we are one of their expert advisers—when there is more security in the area.
560
In conclusion, I thank the noble Lord, Lord Redesdale, for introducing the Bill. It has the endorsement of all who spoke today and of all working in the museum and heritage community and the art and antiquities trade. I am pleased, on behalf of the Government, to commend it to the House.
12.13 p.m.
Lord Redesdale: My Lords, I thank the Minister for that welcome for the Bill. I also welcome him to his new role at the DCMS. It is a pleasure to know, after all the years of dealing with the noble Lord in so many different guises—from the Treasury through to just about every other department—that his strength and skill will now be directed to the benefit of the DCMS. I also took on board what the Minister said about the Bill being a small-focus Bill and about the need, perhaps, for more archaeology legislation. It is just a pipedream that there might be a special archaeology Bill in the Queen's Speech, but we can dream on.
I also thank the noble Lords who spoke. The noble Lord, Lord Brooke of Sutton Mandeville, spoke on behalf of the British Art Market Federation. The federation's past work, its acceptance of the Bill arid its future work to make sure that the Bill works successfully will, I hope, help strangle the illegal market that causes so many problems for the legitimate market. It should not be allowed to do so.
The noble Lord, Lord Stewartby, asked some questions concerning coin collection—I use that term because I have difficulty with the word "numismatics". The noble Lord asked why the word "dishonestly" was used. The word is, perhaps, particularly apt for coin collection because of the activities of nighthawks specifically looking for coins. He asked whether the dealer should have to act as policeman. I say, "Yes". The dealers have the knowledge. Coins are traded because they are valuable, and their value is based specifically on their provenance and knowledge of their rarity value. It is due to that trade that certain sites, such as Yeavering Bell in Northumberland, have been ransacked. Holes have been dug illegally during the night all over such sites.
The noble Lord mentioned buildings. The Bill does not just cover buildings in which coins could be found, it covers any archaeological site, monument or offshore wreck, thus including coins found at sea. The noble Lord said that coins could be found in fields. That is an important point. As the Minister helpfully pointed out, the portable antiquities scheme, which is the backbone of the system for listing small finds throughout the country, is essential. We hope that coins will be presented to the finds liaison officers supported by the scheme. I hope that money can be found to support the scheme. The Secretary of State's comments on the future of the scheme were welcome. I also hope that there will not be only one receptacle for such coins; namely, into the trade and into private collections. There are more valuable places in which such coins could be deposited: local museums. The coins are part of local heritage.

561
The noble Lord, Lord Stewartby, also mentioned hoards of overseas coins. One of the aims of the Bill is to stop the breaking of other countries' laws by strangling the market in illicit antiquities. If people dig up coins illicitly overseas, they will not be able to get round the law by trying to trade them in this country.
In an excellent speech, the noble Lord, Lord Renfrew of Kaimsthorn, raised the issue of a database. I thank the Minister for his comments about that. A database would be helpful, and I hope that it can be set up in the short term. The noble Baroness, Lady Hooper, mentioned further work along those lines. The UNESCO convention, although ratified, will need legislation. I hope that it will be introduced as soon as possible. I am sure that all members of the All-Party Parliamentary Archaeological Group will do all that they can to help the Government to make sure that it becomes part of our law.
The noble Baroness, Lady Buscombe, raised the issue of prosecutions, which was raised by the honourable Member for East Worthing and Shoreham, Tim Loughton, in another place. Like the Minister, I hope that there are very few prosecutions when the scheme is up and running. We hope that, if there is a large number of prosecutions when the scheme comes into effect, the market will clean up its act, so that there will be fewer prosecutions. One of the reasons why we have such a thriving trade is that there have been no laws strong enough to bring about prosecutions. The Bill will, I hope, change that situation.
It is a short Bill. I hope that it will have a major effect on the illicit trade in antiquities and have the knock-on effect of quelling the vast amount of plundering done on archaeological sites.
On Question, Bill read a second time and committed to a Committee of the Whole House.

Legal Deposit Libraries Bill
12.19 p.m.
Lord Tope: My Lords, I beg to move that this Bill be now read a second time. It gives me great pleasure to do so. If enacted, the Bill will benefit the nation for generations to come. I am pleased to play my part in promoting it.
The purpose of the Bill is to extend the existing system of legal deposit. Under the system a copy of every printed book published in the United Kingdom is deposited in the British Library and, on request, to five other deposit libraries. The Bill extends that principle to the non-print world. By this means, it will secure the role of the national archive into the future, allowing it to reflect more fully the changing world we live in today. As we are all too aware, the intellectual and commercial output of this nation is no longer confined to the printed page. It is important that legislation reflects that.
562
I shall explain the Bill briefly, although it is slightly longer than my noble friend's Bill, which we previously debated. Clause 1 imposes a duty on publishers to deposit, stating that non-print publications will be required to be deposited only when regulations have been made relating to them. Printed works will continue to be deposited as they are now. The Bill does not apply to sound or film, or to work where film or sound are the primary purpose, although, appropriately, it allows multimedia to be deposited.
Clause 2 considers the issue of duplication. It spells out what happens when a work is published in more than one medium and on more than one occasion. Works judged to be "substantially the same" as works already published and deposited in the UK will not need to be deposited again. It will be up to the Secretary of State for Culture, Media and Sport to decide what constitutes "substantially the same" and in which medium publications should be deposited.
Clause 3 relates to enforcement, detailing the measures that will be in place should publishers act in transgression of their duties under the Bill. Although I do not wish to suggest that publishers may not meet their obligations to deposit—especially as those in the non-print area can be drawn up only after consultation and consideration of the impact on publishers, as I shall explain later—the Bill needs to provide a mechanism for enforcement should there be a problem.
In such cases, deposit libraries may apply to the county court, or to the sheriff's court in Scotland, for an order requiring deposit. In instances where an order is not deemed appropriate, the court is able to make an order requiring the publisher to make a payment equivalent to the cost of making good the failure, which may represent the cost of obtaining the material elsewhere, or less.
Clauses 4 and 5 cover the deposit of printed material only. It was always the intention to preserve the print system that has served us well. The clauses restate the relevant provisions of the Copyright Act 1911. The Bill entitles the British Library to a copy of every work published in print in the United Kingdom. It specifies when a work must be deposited and the quality of copies to be deposited. There is also an obligation on the British Library to give a written receipt.
Clause 5 enables the other deposit libraries to request a copy of any printed publication published in the United Kingdom and states the timing of deposit and the quality of work to be deposited. Clause 6 is the first clause that wholly addresses the issue of non-print publications. The Bill does not, in itself, require the deposit of non-print material. Instead, it sets out powers that the Secretary of State for Culture, Media and Sport can use in making regulations. It is these regulations which will set out publishers' duties to deposit.
It is felt that, given the constantly evolving technology, as well as the complex nature of the non-print publishing world, regulations would offer the flexibility required to avoid the .need constantly to revisit the legislation, while providing an enduring and

563
balanced structure. The clause sets out the types of regulations that the Secretary of State can make in relation to the deposit of non-print material. Subsection (1) gives the Secretary of State powers to make regulations regarding the duty to deposit non-print material.
Subsection (2) spells out what may be included in the regulations: namely, the deposit libraries, which will be entitled to the deposit of the particular class of material and the time at which it must be deposited, thereby allowing sales thresholds to be met before deposit is required; the software required to reserve and access the publication may also be deposited, along with the publication; the length of time allowable for deposit; the allowance for a deposit by electronic means; the specification of which version should be deposited when a work is published in different versions; the specification of which format should be deposited when the work is published in more than one format; the provision of what constitutes a UK publication; and the specification of the medium in which a work published online should be deposited.
Clause 7 sets out the restrictions on what can be done with deposited material once it is held by the deposit libraries. Subsection (1) clarifies that only prescribed activities may be undertaken with legally deposited material. Subsection (2) lists the eligible activities, which would have clear limitations. Deposit libraries would be able to undertake these activities only after regulations have been made.
Under subsection (4) regulations can be made to determine the purposes for which material may be used or copied; the time at which the reader can first access legally deposited material, thereby enabling embargoes to be imposed on the material; the description of the readers who can access the deposited material; and the limitations on the numbers of readers who can access the material at any one time.
Clause 7 addresses how the provisions will be enforced and how deposit libraries will be brought into account if they contravene them. It also allows for the Faculty of Advocates in Scotland to continue to act as a legal deposit library for the purposes of legal documents published in Scotland.
Clause 8 states that activities authorised by regulations made under Clause 7 will not infringe copyright or database right. It also gives power to the Secretary of State for Trade and Industry to make regulations that would limit the application of any exceptions to copyright to deposited material where, for example, such application gives rise to access that is more generous than that permitted for the same material that other libraries have had to purchase under a contract.
Clause 9 relates to issues of contract that have emerged as a concern for publishers. It ensures that any publisher complying with the duty to deposit, as laid down in Clause 1, will not be in breach of any UK contract nor infringe any copyright, database right or patent right existing in the UK.
564
Clause 10 relates specifically to areas of liability and sets up the means to address liability for defamation, in particular. It sets up differing responsibilities in relation to defamatory material and resolves the issues in relation to publishers and deposit libraries. It states that deposit libraries will be liable for defamation only in cases relating to deposited material accessed in the libraries when they know, or ought to know, that the material is defamatory and have had sufficient opportunity to prevent its use.
The clause extends similar protection to the publishers. They will he liable only for material that they have deposited and which is accessed in the libraries when they are aware, or ought to be aware, that it is defamatory and have failed to inform the libraries of that fact. Each of these provisions relates not only to deposited material, but also to any software deposited along with the published work.
Subsection (5) makes provision for deposit libraries collecting direct from the Internet, or "web-harvesting", as it is colloquially described in the context of the Bill. It states that where deposit libraries copy from the Internet, in accordance with the conditions set out in this clause, the restrictions and exemptions covered in Clauses 7 and 8 and subsection (6) of Clause 10, will apply. Regulations relating to web-harvesting will describe which works can be copied and the conditions imposed upon copying. By that means the Bill provides options for acquiring works either by deposit or by harvesting. Both publishers and deposit libraries are content for these options to co-exist.
Subsection (6) of Clause 10 states that only the deposit libraries can be liable for defamation arising from work that is copied. They will be liable only in the same circumstances as for material that is deposited. To ensure that publishers do not incur any liabilities in addition to defamation as a result of deposit, subsection (8) enables the Secretary of State to make specific regulations to extend exemptions to other liabilities.
Clause 11 elucidates the general conditions for making regulations under the Bill and procedure. It states that these regulations can be made for different provisions for different purposes, different media, different descriptions of work, different deposit libraries and areas, and can allow for regulations to apply only in some cases or be subject to exceptions. Regulations under the Bill can also be made for classes of material to be deposited and particular classes can be subject to specified exemptions.
Subsection (2) imposes a statutory obligation to consult. No regulations under the Bill can be made unless the Secretary of State has consulted the deposit libraries and the publishers that will be affected by the regulations under discussion. Subsection (3) states that there will be no retrospective requirement to deposit. Regulations made under the Bill requiring deposit will apply only to publications published after regulations are made.
Subsections (4) and (5) create an obligation to consider specifically the economic impact of regulations made under the Bill. They also make it

565
clear that no regulations under the Bill may be made where the cost of deposit incurred by the publishers is disproportionate to the benefit to the nation of deposit. Regulations under the Bill will also not be made where the interests of the publishers are unreasonably prejudiced through deposit. Subsection (6) confirms that all regulations made as a result of the Bill are made by an affirmative statutory instrument laid and debated before both Houses.
I feel that the measures laid down in this clause offer sufficient and clear protection in response to those who may feel apprehensive, as I often do, about generic legislation and the concern that it encourages government to regulate with impunity.
Clause 12 considers devolved matters. Under the Bill, no regulations can be made without the consent of the National Assembly for Wales or Scottish Ministers when regulations are being made which do not confer or remove an entitlement on either of those devolved administrations. In addition, the National Assembly for Wales and Scottish Ministers will be consulted on all other regulations made.
Special provision has been made in Clause 13 to take account of imposing a duty on publishers to deposit in a library outside the United Kingdom. Under the clause, publishers will not be required to deposit any non-print publication at Trinity College, Dublin, unless there are protections in place there that are at least equal to the protections that exist for deposited material in the United Kingdom. Clauses 14, 15 and 16 are technical provisions and I am sure that noble Lords will be pleased if I do not spell them out in detail.
This Bill presents a unique opportunity. Its implementation will no doubt be complex and incremental, but its impact will be profound, harnessing the national memory for the benefit of future generations. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Tope.)
12.34 p.m.
Lord Eatwell: My Lords, I begin by declaring a very direct interest in this Bill. I am chairman of the British Library, an institution that will be one of the direct beneficiaries of the passage of this measure. Indeed, the British Library has taken the lead for the legal deposit libraries in the thorough negotiations that have produced the measure before us today.
Perhaps I may also pay tribute to my honourable friend Chris Mole, the Member for Ipswich, who so ably guided this measure through another place, and I thank the noble Lord, Lord Tope, for introducing it in your Lordships' House.
The concept of legal deposit is fundamental to the creation of the national archive, and the national archive is a cornerstone of the social and economic life of the nation. For the national archive is not a museum. It is the memory of the nation—the core of its information system—and an indispensable building block of the modern knowledge economy. It is
566
therefore a matter of vital national interest that the collections should be comprehensive and preserved in perpetuity.
But today our national collections are being compromised by the development of new methods of publication, notably, of course, electronic publication; methods that lie outside the terms of the great Copyright Act 1911. That Act, as we have heard from the noble Lord, Lord Tope, referred only to publication in printed form. Without this Bill a substantial proportion of non-print published material will inevitably be lost. The great advances of modern information technology will, paradoxically, have led to the creation of an aching void at the heart of the nation's information system.
For the past three years, that void has been partially filled by a voluntary system of deposit for non-print publications established by the publishers and the legal deposit libraries. The scheme has been reasonably successful. None the less, it is estimated that over half of all online publications and around one quarter of so-called hand-held electronic publications, such as CD-ROMs and DVDs, are not sent to the legal deposit libraries and are therefore in danger of being lost for ever. In addition, the web has not been systematically archived thus far and a significant amount of valuable content has already been lost.
That is why the working party established in 1998 by the Department for Culture, Media and Sport to consider the question of non-printed publications concluded that,
"only a system of legal deposit will be adequate to secure a comprehensive national published archive".
The then Secretary of State, Chris Smith, agreed. He said that,
"the report makes a convincing case for moving towards legislation for the legal deposit of non-print publications on the basis of minimum burden on publishers and minimum loss of sales".
It is around that latter phrase that debates about copyright and legal deposit have, from the very beginning, always swirled. How are the legitimate commercial interests of the publishers to be made consistent with the vital national interest in a comprehensive archive?
From the beginning, the concept of copyright first appeared as a rule of the Stationers' Company, formulated in 1556 in the reign of Queen Mary, requiring members to present to the wardens a copy of every publication. This rule infuriated the publishers. A barely satirical critique of the measure referred to it as,
"an admirable scheme, this new Spanish-English press inquisition. Queen Mary burnt the authors and the Stationers' Company burnt the books".
I am glad to report that the negotiations between the deposit libraries and the publishers over the Bill did not generate such fiery rhetoric.
Yet the controversy remains. The grant of copyright is a privilege in return for which the publisher agrees to legal deposit. But there is no doubt that the objective of the British Library to collect comprehensively and

567
to make the world's knowledge readily accessible to all may sometimes be at odds with the publisher's goal of securing the full value of publication.
The libraries and the publishers have worked hard to resolve these issues, and have laid a solid foundation for the success of this Bill. For example, they jointly commissioned and signed off the research study that was the principal input to the regulatory impact assessment. And, reflecting the extensive potential applicability of the measure, the dialogue with the publishers has been broadened during the past six months to include a wide range of online publishers, represented by the Digital Content Forum. I am delighted to report that a very good working relationship has been established between the libraries and the Digital Content Forum, building on the collaborative spirit of the earlier voluntary scheme.
The practical success of the Bill will depend upon a partnership between the libraries and the publishers, working to safeguard a comprehensive national archive while being sensitive to legitimate economic interests. Working together, the libraries and the publishers are in the best position to advise the Government on the shaping of the regulations and on the pace of implementation. For in this complex and ever-changing world, it is impossible to solve all the issues in primary legislation and that is why the subsequent regulations will be so important.
That is also why the advisory panel that the Government propose to establish is so important. The libraries and the publishers are already developing a shared understanding of the optimal membership and terms of reference of this advisory panel and are keen to assist the Government in setting it up. I hope that the Minister will be able to give an assurance that this will be done quickly. It is the institutional key to success.
The Bill establishes a principle for posterity—that this House commits itself to maintaining the integrity of the national archive. On this—I was going to say "sunny" but it is not quite so sunny—September morning, in supporting this short Bill, the House will be securing a crucial component of Britain's future.
12.41 p.m.
Lord Brooke of Sutton Mandeville: My Lords, it is a pleasure to follow the noble Lord, Lord Eatwell, and to thank him publicly, as I have already done privately, for alerting me during the Recess to the imminence, the timeousness arid the importance of the Bill.
I welcome and support the Bill but, before I speak to it, I must declare an unusual non-financial interest. When I served as Secretary of State for the Department of National Heritage, the predecessor department of DCMS, I was arraigned before the Commons Select Committee on National Heritage, notably chaired, then as now, by Mr Gerald Kaufman MP, on the subject of the construction of the British Library which, to put it neutrally, had been a little dilatory. Towards the end of my examination Mr Kaufman said. not unreasonably, that someone must be responsible for these delays and that I should name
568
the guilty party. Although I had only taken office 70 per cent of the way through the elapsed time the construction eventually took, I knew that any answer which named anyone other than myself would simply prolong the examination, no doubt in terms of rising exasperation, and so I replied that the chairman would know that any Secretary of State should always carry the responsibility and that I was content unhesitatingly to do so. This answer, as I had surmised, curtailed the length of subsequent proceedings.
It was some time later that I read the book that the noble Lord, Lord Barnett, wrote about his time as Chief Secretary to the Treasury in an administration in which Mr Kaufman had also served. In a passage about his negotiations, concluded in 1978, with the noble Baroness, Lady Williams of Crosby, as she then was not, about the arrangements for building the British Library, the noble Lord, Lord Barnett. said that the Treasury had so buttoned-up the details that if the British economy suffered even the mildest setback thereafter it would be a miracle if the British Library was completed before the end of the century. I left office in 1994, but the library about which I had been arraigned was completed before the end of the century and was, I think, opened in 1998.
Thus by a marginal exercise in moral courage in asserting responsibility before Mr Kaufman's committee, I had by the same token acquired the credit four years later for a miracle in the eyes of the noble Lord, Lord Barnett. By such stumbling footsteps is history made, but it has necessarily given me vicariously a disproportionate emotional interest in the welfare of the British Library, hence my support for the Bill.
The Minister responding for the Government on the Bill, the noble Lord, Lord Evans of Temple Guiting, has reminded me that I was also responsible while in office for conceiving the Library and Information Commission, of which he in turn was the first chairman. Let it not be said that the old Department of National Heritage was partisan in its appointments. At any rate, the Library and Information Commission, and thus the Minister, can in turn claim intellectual property rights in the Bill before us today.
I shall not rehearse in detail the history of legal deposit libraries in which the developments enshrined in the Bill are but the latest step, as the noble Lord, Lord Eatwell, said. Suffice it to say that three centuries passed between Sir Thomas Bodley's initiatives and agreements with the Stationers' Company in 1610 and the Copyright Act 1911, but there was further intervening legislation in the 18th century and three successive legislative changes in the first half of the 19th century. It is admirable that further change should be envisaged so early in the new millennium.
The noble Lord, Lord Tope, explained with admirable comprehensiveness the purpose of the Bill. I have only two things to add, one in commendation and one of inquiry. My commendation is directed towards both publishers and the DCMS. I can understand the apprehensions of publishers about the new obligations inherent in the Bill and I congratulate

569
them on the way they have responded to the demands nurtured by new technology. I congratulate the DCMS likewise, not only on having wooed the publishers into their present co-operation but also on having framed the Bill in so genuinely consultative a mode and on having avoided an unduly prescriptive text when technology is moving so quickly. I hope that these attitudes on both sides, including, of course, the deposit libraries, will be maintained when the Bill becomes an Act, as I am confident it will.
My query is to the Minister. I in no way resile from my just stated praise for both parties—indeed, all parties—but the Minister will be particularly aware of the passage of time since the inception of the Library and Information Commission and the Second Reading of the Bill within your Lordships' House. I am conscious, as the noble Lord, Lord Eatwell, said, that a voluntary code has been in existence and that a code of practice was introduced as an interim measure. But I am also conscious that 60,000 non-print items were published in the United Kingdom last year, and that it is thought that this figure could reach as much as 300,000 by 2005. My query to the Minister—which does not, he will be reassured to hear, require an answer today—is how large a cultural deficit will we have built up in the legal deposit libraries before the Bill becomes law in terms of the early stages of the technological developments to which the noble Lord. Lord Eatwell, referred?
In the meantime, I hope fervently that this Bill can—and, in particular, unamended—reach the statute book before this parliamentary Session is concluded.
12.47 p.m.
Lord Strabolgi: My Lords, I am sure that we are grateful to the noble Lord, Lord Tope, for so ably introducing the Bill and taking us through the clauses. It was, I understand, supported by all parties in another place.
As has been said, the 1911 Act does not cover non-print publications such as CD-ROMs and online resources. How could it? These had not been invented at that time. These are covered by a voluntary system, which I gather has been working well up to a point. But it is not infallible and some non-print material is being lost to the national archive, as my noble friend Lord Eatwell said.
As the noble Lord, Lord Brooke, said, some 60,000 non-print items were published last year and this figure is predicted to grow to 300,000 items in about two years' time. So the matter is therefore urgent.
Following the government Green Paper, a working group was set up by Ministers which concluded, in July 1998, that only a system of legal deposit would secure a comprehensive national published archive.
There is a further reason why I support the Bill, to which I should like to speak briefly. These non-print publications will have a further advantage, which will increase during the 21st century. This is because of the short life of modern paper, particularly newsprint. Paper for books used to be made, as your Lordships
570
will know, from rags. Now it is produced from wood pulp. A 17th-century book, if it has been cared for, is as fresh and strong as when it was first printed. In contrast, some paperbacks published only 50 years ago are literally crumbling to pieces. We all know what happens to a newspaper cutting after several years—it goes brown and becomes increasingly unreadable. This must be a great cause for worry to librarians, particularly the librarian of the newspaper library. The increase in non-print publications is therefore to be welcomed, as clearly the huge amount of publications today prevents us from going back to rag paper.
For all these reasons, I support the Bill and I hope your Lordships will give it a Second Reading.
12.50 p.m.
Lord Quinton: My Lords, I had better declare a very marginal interest: I receive a very modest—but very welcome—pension from the British Library, where I held the same position as the noble Lord, Lord Eatwell, a number of years ago.
I should like to mention three things, the first of which is cost. When I was first involved in the British Library, I had the belief that the legal deposit system was an enormous advantage. It was not so much that it regularised a flow of new publications into the library, but that it saved it an enormous amount of money. Well, by individual private budget standards, it did, but perhaps not all that much.
About 50,000 books a year which get published fall under the heading of legally despositable. If we take them at a wholesale price—it would be ridiculous to put on postage, packing and insurance—of half their cover price, it comes to about half a million pounds a year. That is a nice fat sum from some points of view but from the point of view of an institution whose annual turnover is larger than £100 million, it is welcome but not a reason for enormous excitement. It is not, therefore, primarily the financial advantage that is significant in the institution of legal deposit.
The noble Lord, Lord Eatwell, mentioned the worries of publishers about the possible loss accruing to them from extending legal deposit, but it is not clear to me what the loss would be. There would the actual loss of sale of the items deposited, which would be trivial in relation to the number of volumes or copies of the same thing that publishers will dish out to persons who might be interested and give it a fair wind, if it is the sort of thing that will get reviewed. Any reproduction rights can be retained and need not be forfeited. I am not clear what the big financial problem is for publishers, but that may be rather slow witted of me.
We need to consider what sort of material will be covered by the Secretary of State's regulations. There is an enormous quantity of non-printed stuff floating about. Perhaps the word "publication" is the relevant factor. There will have to be some selectivity, as some of this stuff is of no conceivable interest. It is notable that deposit libraries other than the British Library merely get books they request—they do not have the whole lot sent in in trucks. So selection already

571
operates in the other legal deposit libraries and, with increasing quantities, it seems inevitable that something like selection ought to occur in the British Library.
Then another point comes up: what will be the essential type of content of the material that the Secretary of State will include in the scope of the legislation? The first thing that occurs to me is reference books. They seem to be uniquely suited to this mode of publication, much more so than works of imaginative literature, which are individually read over protracted periods in a comfortably seated position, rather than by sitting at a desk with one's eyes stuck to a terminal. For reference purposes, non-print publication is absolutely wonderful. A large quantity of reference material is published. I am thinking particularly of bibliographies in various learned fields which need constantly to he updated and therefore involve an enormous amount of superfluous cost. They could be updated very quickly in non-print form.
The production costs of CDs are very low. We have been hearing a lot of news lately about the menace to music recording companies of brisk, technologically advanced adolescents downloading the latest hits on a CD blank which they can get for 5p or something, thus avoiding the music stores' cost of £7.99, or whatever they would have to pay. The physical cost of constructing a CD-ROM is very small as far as each unit is concerned. That is why I am not too worried about the direct loss to the publishers of saleable stuff. It seems incomparably less than what they incur by sending around in review copies, presents, things for the author's aunt and goodness knows what. It is a quite trivial, marginal element in their output, except in the case of some amazing object, of which there are only 10 copies. I do not know what one does about that, but I do not think it is a terribly common sort of publication.
I was reflecting earlier on the cost benefit to the library of legal deposit, and it is really the opposite of cost benefit—it is a cost disadvantage to take everything. It is like getting married. It is quite easy to go through, in the old-fashioned style—there is the cost of an engagement ring and a few bunches of flowers. Then there you are, married, and that is when the trouble begins. That is when the real monetary haemorrhage starts.
It is similar with a library—the actual acquisition of a book is a trivial part of the expenditure. Next comes the entering or creating of a professional, high toned bibliographic record. That would probably be more than the shop cost of the book. Space has to be created for it. That space has to be adequately heated or chilled; it must be neither too damp nor too dry, although I do not know whether it matters if it is dry. So the atmosphere in the space must be controlled. All this is particularly expensive with books.
It might seem that if an enormous amount of non-print material comes into the British Library there will be a vast increase in such expenses, but this is where the good fairy technology comes into play. The storage of non-print material, while still creating a bibliographic
572
problem, does not provide the same problems as the storage of books. As the noble Lord, Lord Strabolgi said, there is not the problem of the thing falling to pieces, like one's paperback J.B. Priestley, bought in 1938.
We are at an important point in the history of human communication. It started with language, which made us human. Then there was writing, which made us civilised, and then came print, which made us clever, so to speak. No, that is not quite right—it was writing that made us clever. There was no mathematics until there was writing, except "more than those, less than that". For anything more complicated, mathematics has to require writing, and all sciences pretty well require mathematics at various levels of sophistication. So the whole area of learning requires writing. A lot of the humanities were always conducted orally—Homer was an oral poet—until the material was finally written down, some years after the poet's death.
As I said, language makes us human and writing makes us civilised. Fortunately, since we had alphabetic writing in this part of the world, the coming of print ensured that writing became universally available. The acquisition of literacy was not a special, high-toned skill, as it was in the middle ages for various reasons, and as it remained until very recent times in China. It meant that mass literacy could develop, with all the enhancement of human capacity that followed.
I am not a prophet, and I have no idea what the effects of the new revolution in storing communicable thought will be, but it seems pretty obvious that they will be very important. It is essential that our national archive should contain them, so I hope no one feels that the Bill should be resisted.
1 p.m.
Lord Prys-Davies: My Lords, it is a great pleasure to follow the noble Lord, Lord Quinton. I, too, wish to support strongly this important Bill, for the reasons that other noble Lords have given, and especially for the reasons given by my noble friend Lord Eatwell. The House, and indeed future generations, will be grateful to the noble Lord, Lord Tope, and my friend Mr Chris Mole, the honourable Member for Ipswich, for their contributions, if the Bill is enacted, as I trust that it will be.
The Bill has been prepared against the historical background spelt out by my noble friend Lord Eat well and which I shall not repeat, and the sheer volume and pace of change in non-print material, of which we have heard so much. Given the pace of change and the difficulty of changing a statute once it is on the book, I believe that the Bill's approach to the problem is appropriate. It is an enabling Bill that empowers the Secretary of State to make regulations to meet the changing conditions, subject to the consultation before they are made, and subject to the affirmative resolution of both Houses.
I have read the debates on the Bill in another place, and it was enormously improved in the course of those debates. After reading those debates, it is clear that

573
there is a high degree of political consensus on the need for this important Bill. I am aware that some publishers, especially those with contracts with international business, at one stage expressed certain reservations about some aspects of the Bill. I also know that, at the Third Reading on 4th July, the Secretary of State took account of those concerns and gave important undertakings about the consultations before the regulations are made and the requirement for a vigorous impact assessment, which will examine the potential costs of a deposit for all parties. She also confirmed that an independent advisory panel would be set up to assist in drawing up the regulations. I hope that those important assurances will have reassured the industry.
I was particularly interested in and pleased with the speech of the noble Lord, Lord Brooke, who is a member of the Select Committee on Delegated Powers. I have read the committee's report and I note that it does not recommend any specific amendment be made to the Bill, although it invites the Government to give enlightenment on one or two matters. When my noble friend the Minister speaks, I would be interested to learn whether he is able to offer some words of comfort on those issues.
There would be a serious problem if the Bill were to be amended in your Lordships' House. The department's memorandum to the Delegated Powers Select Committee informed the committee that this Private Member's Bill would not be allocated further time in the House of Commons. Therefore, if the Bill were amended in your Lordships' House, the practical effect would be to defeat the Bill. Faced with that consequence, your Lordships' House has a very heavy burden of responsibility indeed. The great importance of the Bill and its high degree of support suggests strongly that noble Lords should not put the Bill at risk of failing to pass into law.
Finally, I pay tribute to the staff of the six deposit libraries for their contribution.
1.5 p.m.
Baroness Buscombe: My Lords, I congratulate the noble Lord, Lord Tope, on introducing this important Bill in your Lordships' House. I also thank the Minister for some very helpful discussions prior to this debate, and the British Library, and in particular its chairman, the noble Lord, Lord Eatwell, for affording me a very useful meeting to introduce me to some of the key aspects of the Bill. I also thank the Director of the British Library, Dr Clive Field, for a tour of the library. It served as an inspiring reminder of one of those, shall I say uncommon, opportunities to thank the French, and in particular the vision of Francois I who, in 1537, issued a decree requiring every printer in France to deposit one copy of each book produced in his printing office—known as the Ordonnance de Montpellier.
Noble Lords were reminded today by my noble friend Lord Brooke of Sutton Mandeville that a legal deposit mechanism was put in place in Great Britain in
574
1610, when Sir Thomas Bodley made an agreement with the Stationer's Company. Over the years, and in various countries, legal deposit has served different purposes: apart from providing the monarch with a well equipped library, legal deposit has also been connected with censorship, being an effective political instrument, as it has given rulers the opportunity to control and prevent the dissemination of publications representing a differing moral or political opinion.
Today, the primary purpose of legal deposit is to preserve the nation's cultural heritage. However, it can also be seen in a broader perspective of freedom of information. Arguably, without free access to what has been published, the individual's right to form a free and independent opinion on a subject is limited and incomplete.
As the noble Lord, Lord Eatwell, warned us today, the British Library estimates that well over 50 per cent of electronically delivered publications and around 25 per cent of handheld publications such as CD-ROMs are not being received by the legal deposit libraries. This Bill is to ensure that non-print formats are included within legal deposit, thus preserving our intellectual heritage and allowing businesses and education to benefit from the widest possible collections of research material both now and in the future. I hear what my noble friend Lord Quinton says with regard to the possible need for some form of selection; perhaps, as he suggested, the word "publication" could assist in that regard.
The Bill builds on the good work of the voluntary scheme administered by the Joint Committee on Voluntary Deposit set up in 2000. Consulted groups, and we on these Benches, agree that new legislation should be generic to ensure that new formats and information carriers can be included by order as they become widely used. The Bill has been significantly improved during its progress through the Commons, but there are still areas that are cause for concern. It becomes increasingly clear as one looks into the whole subject that the needs of the digital publishing world are sometimes quite distinct and complex, in which case what may have served, and will serve in the future, the printed word will not necessarily apply to digital publishing. However, while there are concerns, we on these Benches are keen to do all we can to ensure that the Bill becomes law in this Session.
The publishers have expressed frustration about the hasty compilation of the Bill. There is a feeling that, given they do not want the Bill to fall and we are nearing the end of this parliamentary Session, the publishers must take the status quo or leave it. That is not, I think we would all agree, satisfactory. Indeed, I will highlight some concerns which I understand the Department for Culture, Media and Sport has sought to overcome with the publishing industry since the Bill left another place. I am also very aware that discussions have now taken place with the department and Ministers right up until yesterday. So it is very much hoped that the Minister will be able today to give many of the assurances that are sought.

575
For example, with regard to the potential for breach of copyright of highly valuable material deposited in the libraries by publishers, the publishing industry is seeking a guarantee that adequate measures will be put in place to safeguard their publications from piracy and copyright infringement. Concerns also remain about definitions of "publishers" and, in particular, the definition of "UK publication" in relation to online publishing. Those and other definitions are not in the Bill and will be dealt with in the fine print of regulations. Can the Minister reassure us today that there will be consultation with all interested parties on these matters and others subject to secondary legislation?
On a separate note, it is hoped that the Government can also give reassurances in relation to the cost of compliance for low volumes of published product; that is, publications with a narrow commercial window. It was the honourable Member for South Derbyshire, Mr Todd MP, who said in another place,
"those who publish very low volumes of a product have to give a copy to a deposit library, which makes it available relatively freely, they will find their market completely destroyed".—[Official Report, Commons Standing Committee F, 4/6/03; cols. 7–8.]
I understand that this issue is as important for libraries as for publishers.
Moving on to the proposal for a technical advisory committee, this was welcomed in another place. The Minister did not believe that it should be a part of the primary legislation but reaffirmed a commitment to establish such a committee. Will the Minister confirm today whether there is a clear timetable for setting that proposal in motion, and how will the committee sit with the Joint Committee on Voluntary Deposits? Will the former supersede the latter, and what will be the relationship between the Secretary of State and the advisory panel?
There is no doubt that the quality of the advisory committee and its chairman will be crucial. I have already referred to some of the areas pertinent to online publishing, and I believe that it will be important to ensure that the committee and most particularly its chairman understand electronic publishing, are visionary and are able to help solve some of the complex problems that are bound to arise in the future.
I turn to a separate matter: contracts with overseas suppliers. A new clause added at Report stage in another place covered a publisher being in breach of contract with a third party for depositing material with the legal libraries but does not seem to offer protection for contracts with overseas suppliers under the laws of other countries. This is a complex issue and we understand that recent discussions have taken place between the DCMS and the digital publishing community on this matter. Can the Minister therefore confirm today, for the avoidance of doubt, that any consultation with government and the publishing industry prior to regulations being made would give due regard to potential depositors' overseas contracts and, further, that regulations will not be made if
576
depositing publications would seriously prejudice the economic interests of the publishers in relation to these contracts?
Finally, with regard to liability for defamation, some concern remains that new Clause 2 does not go far enough in that other categories of liability need to be addressed. Will the Minister therefore make clear that it is not intended that publishers should incur additional liability by virtue of access in legal deposit libraries? We understand that Clause 10(8) allows the possibility of making regulations which extend protections beyond those relating to defamation in the Bill. I note that the Select Committee on Delegated Powers and Regulatory Reform, in its 24th Report, dated 10th September 2003, states:
"We suggest the House may wish to invite the Government to provide a fuller account of why the provision in clause 10(8) is needed and of the circumstances in which the power might be used".
Well, my Lords, I am doing just that.
In conclusion, it is important to stress that this Bill is enabling legislation. The Government remain, alongside Parliament, as the conduit for these important measures, while leaving the implementation of their measures to libraries and publishers, working together to ensure the safe deposit of material for the future, thereby affording the proper protection of our publishing heritage, which, as the noble Lord, Lord Eatwell, said, is the memory of the nation.
1.15 p.m.
Lord Evans of Temple Guiting: My Lords, as my noble friend Lord McIntosh makes his way to Italy for a conference, it is a great pleasure for me to be here to state the Government's view on this very important Bill. I join everyone else in congratulating the noble Lord, Lord Tope, on introducing the Bill to the House. Until recently I was a book publisher, and in the past few years I spent a great deal of time grappling with the problems and indeed tensions raised and implicit in this Bill. In addition, as the noble Lord, Lord Brooke, kindly mentioned, I was the first chairman of the Library and Information Commission—his brainchild, on which I should like retrospectively to thank him. That commission also spent time discussing these complicated but vitally important issues.
I should like today to put on record in this House the assurances that the Government wish to give the publishing industry and the deposit libraries concerning this Bill. The Bill's passage through the other place involved intensive debate. The Government have listened and, as noble Lords have heard, made very many amendments. The Bill is now a more effective and robust piece of legislation. The Government are grateful for the active involvement of publishers and deposit libraries. Government departments, publishers and deposit libraries have worked hard together to forge a Bill that can accomplish what was intended for it.
As has been said, the Bill is enabling legislation. However, that does not mean that it is unduly permissive. Assurances have been given in the other

577
place, and the Bill now includes clauses that ensure a balance of responsibilities and that all the appropriate safeguards can, and will, be put in place through secondary legislation.
Prior to any regulations being made concerning specific classes of online or off-line publications, statutory consultation will be carried out and regulatory impact assessments undertaken. Regulations will not be made where there is clear evidence, as would emerge during consultation, that the cost of deposit would be disproportionate or that deposit would unreasonably prejudice the interests of publishers.
During the drafting of the Bill, the need to minimise impact on the deposit libraries and the publishers has been foremost in the Government's agenda. The Bill will be implemented slowly and incrementally, recording a balance of views.
A key role is, therefore, that of the advisory panel. This panel will continue the work of the publishers and libraries which have contributed to the crafting of the Bill, both prior to and during the parliamentary process. The Government are considering the terms of reference and composition of the advisory panel. We will be consulting all interested parties on the advisory panel after the Bill has received Royal Assent. The panel will be very influential, advising the Secretary of State on the drafting, scope and implementation of regulations, as well as considering their impact on all stakeholders. The advisory panel may also have an interest in the legal deposit of print. We believe that publishers and libraries would be in favour of that.
The Legal Deposit Libraries Bill has prompted discussion of some aspects of the print system. The print system is not being revised. However, the Government recognise that a number of publishers have concerns about the costs of compliance in respect of print publications which have limited circulation but are produced at high cost. A number of publishers are in active dialogue with the British Library to enable the development of a set of protocols on low-circulation/high-value print material that can reconcile the economic concerns of publishers within the framework of legal deposit. The Government welcome these moves.
The non-print publishing world is an ever-changing environment. The Government have repeatedly acknowledged this fact, and this Bill comes to this House able to manage complex implementation issues because it affords flexibility while offering numerous safeguards.
For off-line products, regulations will draw heavily on the model of the voluntary deposit system already in existence and working well. However, it is clear that prior to regulating for on-line publications there is a need for a substantial and in-depth consultation process. This fact is fully understood by Government, and this level of consultation fully intended. No regulations for on-line material will be made prior to this detailed consultation. Consequently, the initial set of regulations will be restricted to off-line publications.
578
During its passage through the other place the Bill was discussed in the light of three issues in particular: the definition of UK publications; different types of liability; and contracts governed by foreign laws—issues raised in the interesting debate today. These are all of particular concern to the non-print publishers. I should like to give assurance now on these issues on behalf of the Government.
The issue of determining UK publication within the context of the on-line world is multifaceted. The Government intend to work with the publishing industry in order to develop a full and satisfactory definition of "UK publications" in secondary legislation. This definition will, of course, be subject to consultation and involve all stakeholders. As was mentioned in the other place, the usefulness of the E-Commerce Directive will be assessed as part of this process.
Let me confirm, however, that it is not intended to impose deposit requirements on works which have no connection with the UK, or where deposit would present a significant risk to the depositor's business, for example risking termination of business or unsustainable costs. The Government are also keenly aware that publishers are concerned about liabilities other than defamation.
It is not intended that publishers should incur additional liability by virtue of access in legal deposit libraries. Clause 10 addresses the issue of liability in relation to defamation but in addition subsection 8 of Clause 10 allows the possibility of making regulations which extend protections beyond those relating to defamation which are stated in the Bill. This will certainly be reviewed at the appropriate time.
The issue of contracts with overseas parties is complex and has been debated in the other place. The Government have had substantial discussions with the digital publishing community on this matter and have benefited greatly in their understanding of the issues. The Government appreciate publishers' concerns and intend that any consultation prior to regulations being made would give due regard to potential depositors' overseas contracts. Regulations will not be made if depositing publications would seriously prejudice the economic interests of the publishers in relation to these overseas contracts. These issues arise particularly for publishers of aggregated material, an area where the UK excels, and where much content originates from overseas. The Government would like to reassure this sector.
There is substantial doubt that on-line aggregation services providing access, paid or otherwise, to collections of material published elsewhere and in other media would be eligible for deposit. This is because the content of UK relevance would be substantially the same as material already published and deposited. Deposit would in these circumstances result in unnecessary duplication.
In addition we do not consider that secure information provided on-line to a restricted number of private customers constitutes a publication as it is not, in effect, "issued to the public".

579
These issues can, and will, be further addressed, with advice and during the exhaustive consultation on online publications, and then further prior to making future regulations.
As I said, there is no doubt that this Bill has been greatly improved as a consequence of the intense dialogue that has taken place with all interested parties during its passage through the other place. The Government have actively listened and responded and will continue to do so. The Bill is much improved. Let me assure your Lordships, however, that there is no intent to bring these discussions to an end; they will be a fundamental part of getting the regulations right in the future and of creating an effective advisory panel.
Through the advisory panel, consultation and economic assessment regulations will be shaped to ensure the progressive construction of a national resource, one which will inevitably be selective, not comprehensive, as is consistent with the density of the on-line world. These regulations will be drafted in a legal context that will always insist that the concerns of stakeholders—deposit libraries and publishers—are fully taken into account. Here I should like to mention authors. I have not heard that word mentioned this morning. If it were not for authors—this is stating the obvious—books in whatever form and libraries would not exist. They, too, are important stakeholders in this matter. It is important that future regulations are effective, and this can be achieved only with the assistance and advice of stakeholders.
Three issues were raised in the debate which I should like to deal with briefly. The noble Lord, Lord Brooke, made an interesting point about the cultural deficit. The noble Lord, Lord Eatwell, thought that 50 per cent of electronic material was not deposited. We have an interesting problem here. As noble Lords will have heard, I have talked about consultation with the publishing industry. At the same time we wish to move with some speed and set up the advisory panel to address the problem that the noble Lord, Lord Brooke, raised. We have to balance moving with great speed with consultation. My noble friend Lord Prys-Davies raised the important issue contained in the report of the Select Committee on Delegated Powers and Regulatory Reform that was issued yesterday. I reassure my noble friend that everything will be all right. However, with his permission, I should like to write to him and send a copy of the letter to all noble Lords present because to deal with that question properly would take another 10 minutes or so.
The noble Baroness, Lady Buscombe, raised the question of the advisory committee and asked about the timetable. I return to the answer that I have just given to the noble Lord, Lord Brooke. We are aware that the advisory committee is crucial. I absolutely agree with the noble Baroness, Lady Buscombe, that it must be of a very high quality. However, we must consult on it. As I said to the noble Lord, Lord Brooke, we shall try to balance speed with the absolute necessity of getting an effective committee up and running.
580
I should like to thank all those who have been involved up to now. I hope that the Government can rely on their continued guidance and support. On behalf of the Government I commend the Bill to the House.
1.28 p.m.
Lord Tope: My Lords, I am extremely grateful to all noble Lords who took part in the debate and for the generous support that the measure has received on all sides of the House. Not unusually in this House we have heard much of the history of legal deposit over the past nearly 400 years. The Bill looks to the future. As the noble Lord, Lord Strabolgi, commented, the 1911 Act made no reference to non-print material—how could it? I venture to suggest that we have even less idea what the next 100 or even 10 years will bring. That is why the Bill is enabling.
Many noble Lords expressed concern, which I certainly share, about the amount of non-print material that is already lost to the national archive and urged speed in dealing with this issue. I share that view. As has been said, during its passage through another place the Bill was subject to enormous discussion and consultation and emerged from there in a very different and much improved form from that in which it started. That process has continued, with consultation and discussion continuing fairly intensively, but is now moving much more to look to the regulations that will flow from the Bill when it is enacted and the establishment of the advisory panel, as is right.
If the wish expressed on both sides of the House that we move quickly on the matter is to be made good, it is important that the Bill has a smooth and speedy passage through the House. In the confident knowledge that that view is shared in all parts of the House, I commend the Bill to the House again.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Northern Ireland (Monitoring Commission etc.) Bill [H.L.]
1.31 p.m.
Lord Williams of Mostyn: My Lords, I beg to move that this Bill be now read a second time.
On 1st May, in the light of discussions with parties at Hillsborough, three documents were published which set out what we saw as the way forward. As your Lordships know, the May elections that were intended to be held in Northern Ireland were postponed. There was no prospect, without cross-community support, of the institutions being able to be returned on a stable and inclusive footing.
Since then, much work has been done with a view to setting in place conditions for progress, and in particular elections as soon as possible to stable devolved institutions. With our colleagues in the Irish Government, we have pledged to continue the implementation of the Good Friday agreement,

581
including those elements of the Hillsborough package that are not conditional on an end to paramilitary activity.
One key element of the proposals, as noble Lords know, is the subject of the Bill, which was described in the agreement on monitoring and compliance published with the joint declaration. It was agreed at Hillsborough to establish an independent body to monitor commitments given in respect of paramilitary activity and the stability of the institutions, and the progress of any programme of further security normalisation undertaken by the British Government. We believe very firmly that there are compelling reasons to press on now with the establishment of the regime for monitoring and promoting compliance with commitments. The scheme will have an important role in sustaining the confidence that is needed for politics to work in Northern Ireland in the longer term. The establishment of the international commission cannot of itself create that confidence.
I should say a word or two about the role of the independent monitoring commission. It will be set up by an agreement between the British and Irish Governments. That is because it is there to make assessments about fundamental requirements of the Good Friday agreement to which we are both parties, and because such an agreement allows the commission to report on activity in relation to Northern Ireland in both British and Irish jurisdictions.
The draft agreement has been made available to your Lordships. We intend that it should be signed and formally ratified following the appropriate procedures here and in the Dail. As noble Lords have seen, it sets out the functions of the commission and the requirements placed on it in line with the text agreed between the two governments at Hillsborough.
The provisions of the Bill relate in part to practical arrangements for establishing the commission which need to be enshrined in legislation. The main objective is to set in place the other element of the Hillsborough package in relation to the monitoring, by amending the Northern Ireland Act 1998 to provide the necessary powers for the Northern Ireland Assembly and the British Government to respond to the commission's recommendations.
There are four members of the commission, two appointed by Her Majesty's Government—one of whom is from Northern Ireland—one appointed by the Irish Government, and one appointed by the two governments but on the nomination of the United States Government. Your Lordships know the names and, I think, the history, experience and expertise of those four persons. We have been extremely fortunate in securing the services of such highly qualified and respected persons.
In line with the Hillsborough scheme, the body will have three functions, the first of which is to examine and report on paramilitary activity. Its remit covers every aspect of such activity, including all those set out in paragraph 13 of the joint declaration. We undertake to provide the commission with all the support that we
582
can in this but of course the body, being independent, will reach its own conclusions. It will have a remit to consider progress with security normalisation. That also is for many in Northern Ireland a key element of the Good Friday agreement. I believe that we have so far done all that we sensibly and prudently could, commensurate with the security position, to give effect to our commitment.
As noble Lords know, we were prepared to go ahead with a substantial programme of security normalisation in the event that necessary commitments were made on an end to paramilitary activity, and in the light of our continuing assessment of the threat. Many of your Lordships—in fact, I think that it is the unanimous view, and I express it fairly—feel that one cannot expect to have the fruits of democratic elections and the benefits of democracy while continuing behind the scenes and in the shadows with paramilitary activity. Noble Lords—not least the noble Baroness, Lady Park of Monmouth, whom we are all very pleased to see back in her place to assist us today—have made that plain on many occasions.
The international agreement makes it clear that the commission cannot begin to monitor a programme of security normalisation until it is set under way by the British Government. That will not take place until satisfactory commitments have been given on an end to paramilitary activity. However, the commission will, at the request of Her Majesty's Government, be able to prepare an account of normalisation activity that has taken place in recent years. We intend to ask it to begin work on that at an early stage, alongside the vital task of reviewing paramilitary activity.
The body will further be responsible for investigating conduct in the political field. As I said a moment ago, that is regarded as an important guarantee of political stability. So if allegations are made by an Assembly party that another party or a Minister is in breach of commitments in the pledge of office, the commission may investigate those complaints.
I need to make it plain that we have been careful in drawing up the international agreement not to breach the convention that the operations of the internal institutions of Northern Ireland, established in strand one of the Good Friday agreement, are an internal matter for the United Kingdom. The noble Lord, Lord Glentoran, particularly urged that view to me in our conversations before the publication of the agreement, and I hope that he is reassured by looking at Articles 6.2 and 10.1. a of the agreement, which make it plain that strand one matters are to be dealt with as I have indicated. I was grateful to him for expressing his views so vigorously to me. The agreement therefore fully respects that position.
Complaints made to the commission concerning the operation in the internal institutions of Northern Ireland will be considered only—I repeat—by those two members of the commission appointed by the British Government. The other two members will not be concerned with those matters at any stage of their consideration.

583
In respect of both paramilitary activity and investigations into political breaches, the commission—or in some instances, as I said, the two British members—will be required to report its findings, and, where it considers it appropriate, to recommend what measures it envisages that the Assembly might consider taking in response to those findings. Again, the noble Lord, Lord Glentoran, urged on me some time ago that it needed to be plain that the commission was purely advisory. Your Lordships will see that that is the position, and I am again grateful for his giving his thoughts to me.
In advance of formal ratification of the international agreement, we anticipate that the commission will want to meet to plan its work ahead.
I now turn briefly to the Bill. The first three clauses concern themselves with a number of practical aspects of the commission's establishment and requirements relating to its reports. Clause 1 gives the Secretary of State powers to confer immunity from suit and legal process on the body—essential to guard against the disclosure through court proceedings of sensitive information it has received in confidence—and to fund the body. Clause 2 places on the commission a duty in carrying out its functions not to do anything that might prejudice national security, put life at risk or prejudice legal proceedings. Clause 3 places a duty on the Secretary of State to lay a copy of the IMC reports before Parliament.
Clauses 4 to 8 are concerned with amendments to the regime set out in the Northern Ireland Act 1998 for the Assembly to take measures against individual Ministers or parties whom it does not believe are committed to peaceful or democratic means, or any other terms of the pledge of office.
The Hillsborough text made it plain that there would be a broader range of measures available to the Assembly than in the existing Act. It also described a range of discussions in the light of any finding by the IMC that a party or Assembly member was in breach and recommending consequential measures. Those discussions would involve the implementation group, of which the pro-agreement parties in Northern Ireland are members. If the group recommended that a Motion should be put before the Assembly for the taking of such measures, the Secretary of State would exercise his powers requiring the Motion to be moved.
Accordingly, provision is made for the Northern Ireland Act 1998 to be amended to give the Assembly powers to exclude individual Ministers or Assembly parties from holding ministerial office in Northern Ireland for a range of periods, of between three and 12 and six and 12 months respectively, rather than the 12 months which was the only option under the 1998 Act. They would also be able to withhold pay and party allowances and pass Motions of censure. Provision is further made to allow the Assembly to extend the duration of such measures.
In taking any of these steps, the Assembly would, as with exclusion Motions now, need to make its decisions with cross-community support. We believe
584
that that is right, and consistent with the Good Friday agreement: these are decisions that may be absolutely fundamental to the future of the devolved system.
The Hillsborough text made it plain that where an Assembly Motion following an IMC report had failed to achieve cross-community support, or the implementation group had failed to agree any course of action, it would be for the British Government, in consultation with the Irish Government and the parties, to resolve the matter in a manner consistent with the report of the commission.
Therefore, the Secretary of State will have the power to impose exclusions and reductions in pay and party allowances of the same order as those available to the Assembly. That power becomes available to the Secretary of State only in the event that the IMC has recommended that a particular type of measure be taken, and the Assembly has attempted, but failed, to impose such a measure by cross-community vote. The exercise of the power would be discretionary. I should underline that, as the Hillsborough text makes clear, we would of course consult the Irish Government, as co-guarantor of the Good Friday agreement, in considering the exercise of that power.
We believe that this approach is the right one. I hope it will commend itself to your Lordships on the basis that Northern Ireland politicians should have the chance to manage their own affairs. It has been a long time—many of us think, unfortunately, too long a time—and there is a serious dangerous danger, many of us would feel across the Benches in this House, that people will become accustomed in Northern Ireland to a situation where they do not have the powers of a devolved Assembly. That would be a great misfortune. The Secretary of State's powers are cast deliberately as a last resort to deal with a situation which we all hope will not arise.
Clause 9 provides that the Secretary of State's powers of direction should be subject to the draft affirmative procedure, with urgency procedure available should circumstances require it. Not for the first time, I am very grateful to the Delegated Powers and Deregulation Committee, chaired so ably by the noble Lord, Lord Dahrendorf. The committee has discharged its duties with immaculate speed and efficiency. Your Lordships will have seen the statement, but I draw it formally to your attention, in terms. The committee states:
"There is nothing in the delegated powers in this Bill to which the Committee wishes to draw the attention of the House".
So that august and respected committee is content with the scheme that we have put forward, in so far as it was within its remit to comment. The clause also makes provision to deal with the effects if Parliament were subsequently to vote down a direction given under the urgency provisions. The intention is to restore, as far as possible, the position that existed before the direction was given. Clause 10 provides a power for the Secretary of State to repeal those elements of the Bill contingent on the existence of the IMC at the point at which that body is wound up.

585
Perhaps inevitably, the Bill looks slightly complex. We have all fallen into the habit of producing legislation which in these circumstances inevitably refers to other items of legislation—which is why I have attempted to outline the scheme in the way that I have.
The purpose is quite straightforward. We want to meet our Hillsborough commitment to putting in place the IMC. We want to expand the range of measures available to the Assembly and the Secretary of State to respond to its recommendations. What we are looking for is the generation of the necessary prerequisite trust and confidence for the early elections which I know we all want to see. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Williams of Mostyn.)
1.44 p.m.
Baroness Park of Monmouth: My Lords, I find myself in a very unaccustomed place on the list of speakers. I thank the noble and learned Lord formally for his kind words. Although I have been greatly reassured by what he has just said, I apologise for the fact, and I hope that the House will forgive me, that I shall still say what I had intended to say. Some of it may sound a little curmudgeonly, but it cannot be said too often.
I have lost count of the special commissions which have been spawned in Northern Ireland in the past five years. Without gathering together all the relevant documents (the Lord President of the Council has done that for us as well)—the agreement establishing the monitoring commission; the agreement between the British and Irish Governments of April 2003 (and the proposals promising legislation in relating to the on-the-runs which appeared with it); and the Joint Declaration by the British and Irish Governments, also in April 2003—it is impossible to understand the full significance of this Bill, which all these months later is being rushed through the House in two days, and at such short notice that many noble Lords with a proper and natural interest in the issue cannot be present.
I am heartened, as we all must be, that the commission's functions are to include monitoring activity by paramilitary groups, as set out in Clause 1(1)(a), although large sections of it seem to deal rather with the very nebulous prospect of getting a political group to agree that it has failed to honour the Belfast agreement.
I am much less happy that in regard to the other function, set out in Clause 1(1)(b)—monitoring security normalisation—no hint is given that action on Clause 1(1)(b) must depend on results from Clause 1(1)(a). I recognise, however, that the Government, in their earlier statements on acts of completion have made that clear—but it could have been made clearer still. The agreement does indeed discuss briefly the acts of completion without which it will not be possible to restore the devolved institutions. It also mentions the
586
evils of paramilitarism, sectarian violence and criminality, intimidation and the practice of exiling members of the community. I hope that Her Majesty's Government remember that Martin McGuinness publicly stated, earlier this year, that the return of exiles—as distinct of course from the on-the-runs who are to be provided for—is not acceptable to Sinn Fein.
Whereas these issues are quite briefly discussed and no precise targets are set for action, the agreement has a detailed three-page annexe on security normalisation. In that annexe, on the basis,
"of the historic leap forward by the IRA"—
presumably this refers to its derisory dealing with the decommissioning commission—the monitoring commission is to monitor security normalisation which will virtually eliminate the power of the police and the Armed Forces to protect the community. Dates are set for this: so much by the end of 2003—only three months off—another tranche by 2004, and another by 2005. Yet we still have so-called dissident groups actively preparing to attack the state and the community. No such precise timetable or targets are proposed for the paramilitaries and the sectarian thugs, who both fund their political masters by their criminal activities and act for them politically. Equally, there are many further concessions, none to the advantage of the ordinary man in the street who is a victim, in the fields of justice and,
"a human rights culture in the criminal rights system in Northern Ireland"—
code, I suggest, for abolishing, for instance, the Diplock courts.
I very much hope that we can do something to ensure that while the commission may propose, it will be the Secretary of State, who is ultimately responsible for law, order, justice and the protection of the public, who disposes.
I hope, too, that throughout the Bill every effort will be made to ensure that normalisation follows, not precedes, the acts of completion. We are entitled to expect lasting and tangible proof that men, women and children will no longer be at the mercy of the party thugs of whichever persuasion without being able to appeal to the state for effective protection, that they should not be required to live their lives among drug dealers, and that decent citizens can join the new police force without being threatened with death and, not least, can bear witness without fear against such men as Martin McGuinness—as they dare not do now.
My other concern is where the commission will get its information. It can usefully learn from the excellent work of the Organised Crime Task Force, and I can see that that is an excellent precedent to set. But how in practice are these four commissioners to learn what is going on on the streets of Belfast in terms of intimidation, beatings, etc? Are they expecting people to come and tell them? If the police cannot get victims to talk or to go to court in their own defence, will the commission be able to do so? Will steps be taken to ensure that, as has happened in the field of so-called restorative justice, and indeed at Stormont, the commission's own staff is not infiltrated by members

587
of the IRA? Remember, the IRA are past masters at entryism and have penetrated and manipulated several of the many well-meaning, and very well-funded, organisations set up to help victims.
I should like to see some amendments to the Bill which would have the effect of ensuring that security normalisation comes after, not before, tangible proof that Sinn Fein/IRA for one no longer have any links with, or political control over, the PIRA thugs on the streets and will actually behave like good citizens and enable the police to operate against them for their criminal rather than any political activity. The end of drugs and corruption would save a lot of money for both the Republic of Ireland and Northern Ireland.
Further, if Sinn Fein/IRA are genuinely concerned to dissociate themselves from the so-called dissident groups, the Real and Continuity IRA, they should recognise that normalisation cannot proceed too fast. I here interject that we have had reassurances on that from the noble and learned Lord. However, I do not place much faith in the possibility that Sinn Fein/IRA will see it in that way. Both Gerry Adams and Martin McGuinness, when the people of Omagh appealed to them after the atrocity there, said that the PIRA was not involved, and the people thought that they might therefore be prepared to let it be known in the republican community that witnesses could safely speak. They refused to do that on the grounds that they did not recognise British justice or British courts. Interestingly, though, they have been quite happy for us to spend over £90 million so far on the Savile inquiry, which presumably is in a British court.
I welcome the fact that this Bill offers a way to monitor and report the scandal of sectarian violence and what it is costing the country and the people, but I neither wish it to become yet another source of reports and a substitute for action, nor do I wish it to be invested with powers which should be those of the Secretary of State. There is in Article V an ominous parallel with what is going on in the draft EU convention in that an international body without accountability could derogate from the power and responsibility of an elected Minister of the Crown.
If this commission is given proper powers to establish the facts and report them, but the action is taken by Her Majesty's Government, then that is good news. In the light of the noble and learned Lord's speech, I am reassured on that issue.
I look forward to the first report from an interesting group of commissioners and wish them well. Not least, I hope that the Government will keep their nerve and take no action, even in the face of the need to get on with elections, on any recommendations relating to normalisation which have been recommended before action is taken on acts of completion.
1.52 p.m.
Lord Fitt: My Lords, the noble Baroness, Lady Park, has given expression to many of the reservations which I hold in relation to the Bill. I certainly support the Bill, but I want to be fully assured that it will be an effective instrument in monitoring the activities of paramilitary organisations.
588
I remember the debates in this House on the decommissioning measures, which were set up under the decommissioning commission with General de Chastelain as its head. He was supposed to look into the decommissioning that was taking place with the paramilitaries and then report back. I do not exaggerate in saying that many people in Northern Ireland right across the communities—loyalists and nationalists but certainly not republicans—stand back and wonder just how effective that commission has been in the decommissioning which the IRA is allegedly carrying out.
It seems to me and to many people to whom I have spoken during the past two months in Northern Ireland that no one knows what the commission has been doing. No one knows how often it has met or what it has discussed. Then we read in a local newspaper that P O'Neill of the IRA has issued some statement in relation to decommissioning and that General de Chastelain has flown in from Canada to sit on the decommissioning commission and give his opinion on what has been happening.
That is not good enough for Northern Ireland. One hopes that such commissions, which have been set up in an attempt to deal with the terrorism that has taken place over the past 30 years, will in some way be effective. The noble Baroness, Lady Park, questioned the remit of the new commission that is to be set up. First, it is a monitoring commission. How will it monitor what it has allegedly been given the power to monitor? Will it wait until a report appears in the Irish News or the Newsletter that a person has been found in a back entry with his kneecaps blown off; or that there is an internecine war between different factions of the loyalists or the IRA? How will it receive the information which will enable it to give an opinion on what it has been given the power to do?
Will it be able to co-operate with the police and the security forces in Northern Ireland? Without the commission being able to co-operate with people on the ground, who see and know what is happening with the paramilitaries, it might not be able to give an opinion that will be fully acceptable to the community in Northern Ireland. That is a big question that must be answered before the conclusion of these debates. How will the commission monitor the activities of paramilitary organisations? What powers will it be given?
One can envisage the situation. If the commission gives an opinion that is contrary to the wishes of the paramilitary organisations, the next thing we will see will be another inquiry—and we have already had the experience of the Bloody Sunday inquiry. Unless specific powers are given to the commission which will enable us to determine what it will do and which route it will go down to monitor the activities of the paramilitaries, people will have less faith than they are entitled to have.
I continually read in the newspapers here that meetings have taken place in Downing Street with representatives of paramilitary organisations. The elected representatives in Northern Ireland—and I am

589
conscious that we in this House are not elected—must read in the newspapers the Government's ideas on bringing the legislation to the House. This is so important that it must not be seen to be sticking plaster over a gaping wound in Northern Ireland.
If we are to be totally honest and do away with all the complex wording that has been referred to by the Lord Privy Seal, I will say that the legislation has been necessary to assure the Unionist population that the activities of the IRA are coming to an end. Without legislation such as this, the Unionist population in Northern Ireland would never have entertained the idea of returning to an Assembly which we hope will be recreated in the near future. So the legislation has been put forward in order to assure the Unionists that the Government are fully behind and understand their reservations.
The Lord Privy Seal also mentioned paragraph 13 of the Joint Declaration. To me, that is the most important paragraph in the declaration. It states in understandable terms which cannot be contradicted that unless the acts of completion are brought about by the paramilitary organisations—it does not refer specifically to the IRA because one must be always conscious of the fact that in the background there are other loyalist organisations—there is no hope of Stormont being reassembled. I have said at many private meetings and elsewhere that unless paragraph 13 is fully implemented and accepted by the paramilitaries in Northern Ireland, no further legislation should be brought here to recreate Stormont. Stormont should not be recreated unless paragraph 13 of the Joint Declaration is fully implemented.
I turn to another important point. There is a nationalist community and a Unionist community. Sinn Fein is on one side with the SDLP and, on the other, the DUP and the official Unionist Party. As has been said many times here and at the other end of the building, politics being what they are, none of those parties will vote for the exclusion of another party because they are looking over their shoulders all the time at their electors. I have said many times and I repeat: there is never any possibility of the SDLP voting to exclude Sinn Fein. Its members are aware that an election is coming up and both parties are competing for the nationalist vote.
Therefore, I say to the Secretary of State for Northern Ireland—whoever he may be—that if, in the final analysis, having received information from the monitoring commission, it is necessary to exclude any individual or party from the recreated Stormont Assembly, it is important that that power should lie with him. He should not be dependent on the ramifications from, or the advice that he will be given by, political parties in Northern Ireland. I believe it is far more important for the paramilitaries to recognise that, if it has to be taken—one hopes that it does not—such a decision will be taken by the Secretary of State for Northern Ireland.
590
Therefore, I support the Bill, and I do not believe that anyone in this House will reject its provisions. We want to see any steps—no matter how tentatively taken—which can lead to a resumption of devolution in Northern Ireland. I believe it is up to the paramilitaries in Northern Ireland—the Unionists and the republicans—to take this legislation as opening up for them an opportunity to keep their rightful place as elected representatives in a devolved government in Northern Ireland.
2.2 p.m.
Lord Maginnis of Drumglass: My Lords, first, I welcome the Bill as a necessary, and perhaps overdue, step towards, it is hoped, stabilising the new democratic procedures and processes in Northern Ireland.
It might have been hoped that such provisions as are contained within the Bill would not have been necessary. But most of us recognise that it is virtually impossible to divorce—overnight, so to speak—from their past and from the malign influences that still exist those who have been terrorists and associated with terrorism for 30 years.
That is one sad reality. There are also those of zealous political outlook who say that that risk should not have been created in the first place. But, if we adopt this self-righteous stance, how can we ever expect to break the cycle of reliance on violence?
In Northern Ireland, we failed 40 years ago. That was not the fault of Unionism alone, despite its self-satisfaction that nationalists were boycotting the institutions of government and that they could get on with matters unhindered. Nor was it solely northern nationalists, with their sense of being a "discarded rump" after the treaty. But we have all paid the price for mistrust and disaffection.
Today, we are where we are—with, potentially. Northern Ireland's future in the hands of its elected representatives. But that is not enough. "Transition" must be set about by such practices as will ensure the emergence of a community prepared to accommodate. respect and safeguard all our civic rights and cultural traditions.
That is why the Bill is necessary. Violence in Northern Ireland did not abate until world opinion understood that, however it had been portrayed, 30 years of bloodshed was unjustified. Hence, I expect a monitoring commission to counter locally, nationally and internationally the danger that our new democratic processes may be distorted and corrupted by those who are new to democratic procedures, by those who misunderstand or by those who are maligned.
The commission must also contend with those who, flaunting unachievable political wish-lists, want us to disregard reality, demographic trends and the potential for greater tragedy, should we fail to put reliance on violence behind us. The objective is to build truly democratic structures. The monitoring commission's task will not be easy.

591
I now turn briefly to the relationship between government and the monitoring commission. I acknowledge the wise advice that the noble Baroness, Lady Park. and the noble Lord, Lord Fitt, have given in this respect. I am, in common with most of my colleagues, against the modern tendency that implies that a quango is the answer to every problem we face. I am someone who believes that, while it can contribute to solutions, committee consideration can also be a hindrance to effective decision-making.
In other words, this commission must not usurp the power and authority of government, the Secretary of State for Northern Ireland or Parliament. I refer to Clause 5, concerning the Secretary of State's powers in relation to exclusion, Clause 6 in relation to reduction of remuneration, and Clause 7, which concerns resolutions and the reduction of financial assistance to political parties.
In that respect, the Ulster Unionist Party will table amendments to make it more certain that, while the work of the commission will be appreciated, respected and considered carefully, decisions by the Secretary of State will not become solely conditional on the temper of the commission.
The existence of a genuine power to enable the Secretary of State to deal with any contingency will be a necessary step towards building confidence among Unionists. They have risked much and, without that confidence, there will be little hope of progress in the near future.
I hope that in Committee and on Report I shall have the opportunity to enlarge on that point, and I intend to table appropriate amendments. I shall be attempting not to change the spirit of the Bill, which I welcome, but to ensure only that the democratic procedures of Parliament and of government are not constrained.
2.8 P.m.
Lord Kilclooney: My Lords, I thank the Lord President of the Council for introducing the Bill. Once again, he makes what is a particularly controversial issue appear somewhat innocuous. We must remind ourselves why we are in this position today. It is simply because the Assembly, the devolved institution at Stormont, has not been sitting for almost one year. Politics has not been working in Northern Ireland. Why? Because terrorists have continued to be active and the existing procedures for the expulsion of Members of the Northern Ireland Assembly have failed. That meant that the present Assembly of Northern Ireland lost the confidence of the majority of people in Northern Ireland.
So the Bill is today a measure by the Government to try to overcome the failures of their previous proposals. The Lord President of the Council made it clear that today's Bill is based upon the talks in Hillsborough in April 2003. Although the word "spin" is now removed from the vocabulary of Her Majesty's Government, he did somewhat skilfully imply that as well as the two governments, the other political parties were involved in the proposals published in May 2003.
592
He is right; the parties were consulted, but the document which emerged, the British/Irish agreement, in May 2003 was an agreement between two sovereign governments and did not have the approval of the Ulster Unionist Party, nor its representatives at those talks at Hillsborough. If it had, why then was the Ulster Unionist Party, like the noble Lord, Lord Glentoran, endeavouring to have those proposals changed throughout the past few months? They have been changed and progress has been made.
We now have a Bill before us about the suspension or expulsion of Members of the Northern Ireland Assembly or—the Liberal Democrats may be particularly interested in this—the reduction in salaries of Members of the Northern Ireland Assembly. Those three measures are in the Bill, but the Bill itself is not the most important issue. It is the background that brings about the need for the Bill which is the divisive issue in Northern Ireland today. As the noble Baroness, Lady Park, mentioned, we have only two or three Back-Benchers participating in this late Friday afternoon debate. However, the Bill, and the reasons for it, is one of the most divisive issues in Northern Ireland today. There may be little interest here but there is substantial interest right across Northern Ireland in all communities.
Sometimes I think that Parliament is out of touch with reality in Northern Ireland. I fear I have expressed that previously. I warned a year ago in this House that the Northern Ireland Assembly would probably collapse, and it did. I am afraid that the present Bill is somewhat misleading. I was one of those three Members of the Ulster Unionist Party who negotiated the Belfast agreement in 1998. As the Lord President of the Council said, there were three strands: strand one, strand two, and strand three. The Bill relates to strand one.
In the talks at Stormont in 1998, the southern Irish Government were totally excluded from all talks relating to strand one. They were not allowed in the room. Strand one was primarily a matter between Her Majesty's Government and the Northern Ireland political parties—Sinn Fein, SDLP, the Ulster Unionist Party, the Alliance Party or whatever—because we were discussing the creation of an elected body within the United Kingdom, of no concern to foreign people, be they in the United States, the Republic of Ireland or elsewhere.
Then we had the document in May 2003, which clearly stated that this independent international commission would be appointed by both Her Majesty's Government and the Dublin Government and that at the conclusion of its work the British Government—in other words, the Secretary of State for Northern Ireland—in consultation with the Irish Government, would resolve any matter consistent with the recommendation of the independent monitoring body.
Have things really changed? Not really, because when one reads the speech of the Lord President of the Council one sees that he precisely confirmed that the

593
Secretary of State for Northern Ireland was not really independent because he would take no action without prior consultation with the Irish Government.
So there still remains this proviso that Her Majesty's Government are not sovereign on this issue. But the legislation will proceed through this Parliament, on the recommendation of the Secretary of State for Northern Ireland, only after consultation with the Irish Government. To that extent the Irish Government remain involved in strand one of the Belfast agreement of 1998. Therefore, this is a clear breach of the agreement which we worked so hard to establish in 1998.
I can go further, and this is what really concerns me. It has been stated by Her Majesty's Government, during the past few weeks since these documents were made available, that in fact the Secretary of State will have the final say; he is totally independent; and that he will not be subject to anyone else's influence. I have already pointed out how the Lord President of the Council himself has confirmed that the Secretary of State can act only after consultation with the Irish Government. But I go further and refer to the Explanatory Notes that accompany this Bill. Paragraph 23 provides that,
"the Secretary of State may only exercise his power to exclude if: the Commission"—
this is the commission comprising foreigners as well as two British members—
"makes a report under the terms of the Treaty which contains a recommendation about the steps that the Assembly might consider taking".
Incidentally Ireland and America were the two countries that gave most financial support to Irish terrorism throughout 30 years—the Americans more so than the Irish indeed—until 9/11 2000. The four representatives will make a recommendation and the Secretary of State for Northern Ireland is restricted in his freedom to act. He must act in accordance with the recommendations of that commission.
I believe that the Bill is a breach of the Belfast agreement of 1998. Yet again it involves the rather clumsy requirements of cross-community support which were the reason why the existing provisions failed. I fear that I am one of those who reflect a broad view across Northern Ireland who feel that this Bill is unnecessary; that the way forward was for Her Majesty's Government to exercise sovereign authority over the United Kingdom; and for the Secretary of State to be free to make his own decisions about the suitability of persons in a Northern Ireland Assembly on the advice of the new Police Service of Northern Ireland. In fact I believe this to be somewhat of a slap of the face of the police in Northern Ireland. The Secretary of State will not be acting upon their advice, but the advice of a commission comprising people from other countries. Therefore, with regret, I oppose the Bill.
2.18 p.m.
Lord Smith of Clifton: I thank the noble and learned Lord the Lord President of the Council for his characteristically instructive introduction to this Second Reading. I endorse his welcome back of the noble Baroness, Lady Park of Monmouth, to her usual place and with her vigorous thought.
The Bill is essentially yet another confidence-building measure that is seemingly necessary as a prelude to calling elections to the Northern Ireland Assembly this autumn. We welcome the creation of the Monitoring Commission and, equally importantly, the announcement of the appointment of the four commissioners. By background and experience, as the Minister said, they comprise a high-quality blend of skills that will be necessary to give the commission the right kind of authority and respect to execute its tasks effectively.
In an ideal world of course we would all hope that it would have a very light agenda indeed. However, if there is a serious crisis over the behaviour or beliefs of a member of the Assembly or any political party group within the Assembly, it will be reassuring to know that this will be investigated by such distinguished commissioners. I congratulate the Government on acquiring their services. I would make only one qualification, which is that gender balance seems to be totally absent!
I very much welcome the fact that the independent monitoring commission is to work,
"with a view to promoting the transition to a peaceful society and stable and inclusive devolved government in Northern Ireland".
That, of course, is its very raison d'être. It is an extensive remit to monitor the activity of paramilitary groups both on a regular basis and, if necessary, on an ad hoc basis if requested by the two Governments or if the commission itself decides it would be appropriate so to do.
I notice that in the draft agreement between the two Governments, it is stated that the commission will produce its regular reports every six months, but that desirable provision does not appear in the Bill. Will the noble and learned Lord please explain the reasons for that omission?
The commission is also charged with the duty to invigilate the extent and rate of progress of security normalisation, which was an integral element in the Good Friday Agreement. Thus, the Unionist community can be reassured that paramilitary activity and any connection with political activity will be subject to constant scrutiny, while the nationalist community can be assured that security normalisation will be constantly examined in equal measure.
I shall probably be prefacing remarks to be made by the noble Lord, Lord Glentoran, when I say that there is also a lacuna in the Bill regarding both the budget and the methodology of the monitoring commission. Other noble Lords have referred to that. As to costs, I appreciate that it is difficult to be precise because they will depend on its workload. That means that it is difficult to estimate an upper limit. But could the noble and learned Lord provide some forecast of the

595
minimum costs that will be incurred even if, as we all hope, it will not have much, if anything, to do? That is to say, what will be the tick-over costs on a care and maintenance basis?
The second question is: how is it envisaged that the commission will go about its work? Other noble Lords have raised that question. What staff will it have at its disposal? It would be helpful to have some elucidation of how the commission will operate.
In broadly welcoming the Bill, as we on these Benches do, we want to ensure that the functions and standing of the commission set out in the Bill are in no degree compromised. As the noble Lord, Lord Maginnis, said, amendments may be tabled by other parties seeking further to strengthen the powers of the Secretary of State and his freedom to act. The Liberal Democrats will oppose any such amendments if they are pressed to a Division. Such amendments would go far too far, in our view, and would seriously undermine the role of the monitoring commission.
However, we recognise that there is something of a gap in the Bill as it stands that needs to be plugged in order fully to ensure confidence in the proposals. We can envisage that in exceptional circumstances speedy action will be required. Accordingly, I have tabled an amendment that would authorise the Secretary of State temporarily to suspend a Minister or junior Minister for up to two weeks. In that period, it is to be assumed, either the commission or the Assembly, or both, would have sufficient time to consider the matter.
If such a decision to suspend a Minister or junior Minister is made by the Secretary of State, it will be immediately laid before Parliament for consideration by both Houses. In the unlikely event that the commission was unable to report because of internal disagreement or some other reason, and that the Assembly was unable to attract sufficient cross-community support to pass a resolution, the issue would revert to the Secretary of State, as provided for under the Bill as drafted. We believe that that amendment should satisfy any remaining doubts about effectively and speedily dealing with a serious breach of a ministerial pledge to forsake all violent activity and to be committed to peaceful and democratic means for resolving disputes.
Finally, the reason that we are considering this Bill so hastily is because it would greatly assist in the process of holding elections to the Assembly as soon as possible, and not later than the end of the year, 2003. That is vital if a return to devolved democratic government is to come about. There cannot be further delay. As I have warned before in your Lordships' House, any more procrastination is highly likely to be fatal to the re-establishment of devolved democratic government. On almost all occasions, the Liberal Democrats have supported fully the Government's endeavours in Northern Ireland. In the case of postponing elections to the Assembly, we have done so with extreme reluctance.
Echoing remarks made by my honourable friend the Member for Orkney and Shetland in another place, if a decision is made to postpone elections still further, we
596
could not support it, except in circumstances that are extremely difficult to imagine at this stage. Elections must be held and mandates renewed. It was good to read press reports this morning that satisfactory progress is being made and that there are now grounds for optimism that Assembly elections will be held in the near future. The passage of the Bill will facilitate the calling of those elections.
2.25 p.m.
Lord Glentoran: My Lords, I thank the noble and learned Lord the Lord President of the Council for his very generous help and support in finding out more about the Bill in early August, when it was first discussed by the Whips. I ask him to convey my thanks to officials in the Northern Ireland Office who at times had my rather irate and impatient voice on the other end of the telephone trying to find out more about this mysterious Bill, which was printed only on Tuesday. I also thank the noble and learned Lord for setting out the main provisions of the Bill in the way that he did and the context in which it has been introduced to your Lordships' House.
For the Opposition, that context is very clear. Despite somewhat heightened expectations of a breakthrough in March and April, it is the almost complete paralysis in the political process in Northern Ireland since the then Secretary of State was forced to suspend devolution following the Stormontgate crisis nearly a year ago. That paralysis was reflected in the Government's decision to postpone the Assembly elections originally scheduled to be held on 1st May this year. First, they were put back a month and then indefinitely when it became clear by mid-April that a basis for restoring the Assembly had not been found.
I know that it is the Government's stated intention to hold the elections some time this autumn. We hope that that remains their position and that they will take place. It is both depressing and highly regrettable that, five and a half years after the Belfast agreement was signed to near-universal acclaim, we must debate yet another piece of Northern Ireland legislation designed to breathe life back into the Province's political process.
Since the referendum on the agreement in May 1998, we have lurched from crisis to crisis, with the result that we have had longer periods of direct rule from Westminster than we have had devolved government at Stormont. It is all the more tragic when one considers that during the periods when devolution has operated for any length of time—as it did between November 2001 and October 2002—it has generally been considered a success.
Like the Government, therefore, we are anxious to see devolution restored at the earliest opportunity. Given the difficulties we have experienced since 1998, however, we must ask whether the Belfast agreement remains the only, or indeed the best, means of achieving that.
The Conservative Party believes that the agreement continues to offer the best means of delivering the stable, peaceful and prosperous future that the

597
overwhelming majority of the people of Northern Ireland want. But it will deliver only if we return to the agreement that the people of Northern Ireland and the Irish Republic voted to endorse in 1998, not the one that is constantly being reinterpreted. It will succeed only if there is an end to the policy of one-sided concessions, sometimes even involving measures not in the agreement at all. That has characterised the approach of Her Majesty's Government since 1998. This was classically illustrated at Weston Park in 2001 and again at Hillsborough in March when concessions on watchtowers were given without any movement from republicans in return.
At the heart of the agreement was a basic deal: in return for an end to paramilitarism and a commitment to exclusively democratic and peaceful means, inclusive power-sharing institutions with a cross-border element would be established. That was certainly the basis on which the Prime Minister sold the agreement back in 1998. However, it has not yet happened. Paramilitary activity of the kind set out in paragraph 13 of the British/Irish joint declaration to which the noble Lord, Lord Fitt, referred, remains an almost daily feature of life for people in many parts of Northern Ireland. As a result, the trust and confidence that is absolutely crucial if this process is going to succeed is at its lowest possible ebb.
The Government claim that the Bill before the House this afternoon is one of the steps designed to rebuild trust and confidence, paving the way for elections and the re-establishment of the institutions. Yet it is clear that the Bill would not be necessary at all had the republican movement—Sinn Fein/IRA—fulfilled its obligations under the agreement and honoured the commitment to exclusively democratic and peaceful means. Instead of that, we have had the paramilitary activities that we all understand so well, plus the Stormontgate spy ring at the heart of government, and only two acts of decommissioning. That is despite the fact that decommissioning was supposed to have been completed by May 2000—three and a half years ago.
Let us be clear. It is the republican movement that aspires to be a part of the government of Northern Ireland while retaining a private army. It is the republican movement that refuses to take what the Prime Minister called the fork in the road away from violence to the one marked democracy, and it is the leader of that movement, Gerry Adams, who still refuses to answer satisfactorily the question put to him by the Prime Minister, who asked, "In the context of the full implementation of the agreement will all forms of paramilitary activity end?"
Until we have a clear and unambiguous answer to that question, rather than the ritual republican torturing of the English language, the prospects of restoring devolved government, at least one that includes Sinn Fein, is remote. Unionists will continue to refuse to share power with a party that still refuses to abide by the same basic democratic rules as everybody else. In my view they would be right.
598
That leads me directly to the Bill itself. We do not oppose the establishment of an advisory commission to cast an independent eye over breaches of the agreement in general and the paramilitaries in particular. Indeed, there have been times over the past five years when we have been exasperated by the unwillingness of the Government to take action—especially where Sinn Fein is concerned. Nor have we been entirely happy with the one blunt instrument at the disposal of the Government to deal with successive crises—the Northern Ireland Act 2000, or the so-called Mandelson Act, by which devolution is suspended.
Noble Lords will recall the then Secretary of State, John Reid, in his Statement of July 2002, in which he promised that any further breaches of the ceasefire would be followed by effective sanctions. Of course when the Stormontgate crisis followed in October, he did no such thing. He took the easy option and simply invoked the 2000 Act, suspending the institutions and thereby punishing the innocent along with the guilty. That episode also highlighted the weakness of the existing exclusion mechanism contained in the Northern Ireland Act 1998. Under that legislation an individual or party can only be excluded from office following a vote supported by majorities of both designated unionists and nationalists in the Assembly. In our view it has always been an unlikely prospect that the SDLP would side with unionists to expel or exclude Sinn Fein from office—a point clearly made by the noble Lord, Lord Fitt, this afternoon.
It is for those reasons that the Opposition, along with the Ulster Unionists, have called, since at least 2001, for the Secretary of State to take on the power here at Westminster to exclude any party or individual in breach of the agreement. That followed a commitment given by the Prime Minister in a letter to David Trimble on Good Friday 1998, in which he said that, if the existing exclusion mechanism were ineffective, he—the Prime Minister—would review the situation.
Given that background, the Opposition should be welcoming the Bill, as it provides the Secretary of State with the power for which we have called. Yet, as drafted, the Bill is seriously defective. Under the Bill, the Secretary of State will be able to exercise the power only if that has been specifically recommended by the independent commission, certainly not on his own initiative. That is unacceptable. It compromises the freedom of action of the Secretary of State and, effectively, hands the trigger mechanism to exclude an individual or party from a devolved legislature in the United Kingdom to two members of the commission, neither of whom is accountable to the Assembly or to Parliament. Noble Lords will be aware that the international agreement states that only the two members appointed by the British Government can take any part in recommendations affecting strand one.
The Secretary of State should have freedom of action. He should, of course, take into account the reports of the commission but, ultimately, it should be for him to decide whether the recommendations of the commission are, in certain cases, too weak or, in other

599
cases, too strong. The Secretary of State, who is accountable to this Parliament, should take those decisions. That is why we have tabled amendments to that affect for the Committee and Report stages. The noble Lord, Lord Smith of Clifton, referred to those amendments, and noble Lords will understand that we have also discussed them outside the House, as we have done with the noble and learned Lord the Lord President of the Council.
I wish to raise briefly one or two other issues, some of which were raised by the noble Lords, Lord Smith of Clifton and Lord Fitt, and by my noble friend Lady Park of Monmouth. Can the noble and learned Lord give us some indication of the expected cost of the commission? What permanent staff is it likely to have? Can he say more about how the commission will compile its reports? Will it, for example, have access to national intelligence? If not, how credible will be the information on which it bases its recommendations? What relationship will the commission have with the Chief Constable, the GOC, the head of the Garda Siochana and others in the intelligence world? Finally, I thank the noble and learned Lord for placing it firmly on record that there were no circumstances in which the representatives from Dublin and Washington would be involved in so-called strand one matters relating to the internal affairs of Northern Ireland.
It ought to have been a Bill to which the Opposition could give their full-hearted support. On the surface, it does something for which we have called. Regrettably, though, the Government have missed an opportunity, possibly because of their attempts to pacify republicans by binding the hands of the Secretary of State. For the reasons that I have explained, the Opposition cannot back the Bill in its present form. We hope, though, that, during the remaining stages, the Government will listen to our reasoned arguments and amendments, so that we can send a Bill to the other place that has the backing of all parts of the House.
2.39 p.m.
Lord Williams of Mostyn: My Lords, I am grateful for the scrutiny given to the Bill. It would not be fair to say that we have rushed our consideration of it. Obviously, a good deal of informed scrutiny has been expressed by your Lordships. The noble Baroness, Lady Park, said that this was yet another commission, which is true. I am sure that most of us long for a life without advisory commissions. As we all know, patience in Northern Ireland is not simply a virtue, it is a necessary duty.
I take issue with the noble Baroness's comment that there is nothing in the Bill, proposals or draft international agreement that would be to the advantage of the man in the street. I respectfully dissent. It is designed to produce for the man in the street exactly what the noble Lord, Lord Smith of Clifton, said is wanted; namely, order, stability and security in a civil society.
A number of your Lordships, including the noble Baroness, Lady Park, and the noble Lords, Lord Fitt, Lord Kilclooney, Lord Smith of Clifton and Lord
600
Glentoran, asked a number of precise questions about the flow of information to the IMC; it will be open and accessible to all interested parties. As I said in my opening, the two governments are clear that it must be provided with the information it needs to do its work.
There is no question of a slap in the face for the Police Service of Northern Ireland, to use the words of the noble Lord, Lord Kilclooney. I remind your Lordships that the Chief Constable—this was raised specifically—remains and will remain the principal security advisor to the Secretary of State. Therefore, the IMC will have access to the Chief Constable and any reports which he thinks appropriate. Incidentally, I do not think that it would be appropriate, if this is what the noble Lord, Lord Kilclooney, intended, that a police service should be making recommendations or decisions about the functions of an assembly. That would be inappropriate in a democratic society, but he must have his appropriate input.
Lord Kilclooney: My Lords, in case there is any misunderstanding, I was suggesting that, as would be normal, the police service should give recommendations to the Secretary of State for Northern Ireland.
Lord Williams of Mostyn: My Lords, I am obliged for that correction, if it was my misunderstanding. But I repeat that this IMC will have access to the Chief Constable; it will have access to the GOC; it will have access— specifically now in answer to the questions asked by the noble Lord, Lord Glentoran, and others—to other agencies with law enforcement and security roles in Northern Ireland. It will be able to receive information—the particular point raised by the noble Lord, Lord Glentoran—from all relevant sources in the Republic of Ireland. It will receive material drawn from intelligence. I think that those are all the specific questions about the flow of information to the IMC. Of course, when the IMC publishes its reports, it will be obliged to bear in mind that the duties in Clause 2 are not breached. Self-evidently, that is simply a prudent requirement for obvious reasons.
As I said, the noble Lord, Lord Fitt, spoke particularly of these matters. But before I come to his queries, the noble Baroness, Lady Park, also asked a question about Article 5 of the international agreement: does this mean that normalisation is expected to be completed by April 2005? The timetable set out, which she pointed to accurately, is illustrative. It is set out on the basis that appropriate acts of completion will have occurred.
As Article 15 of the agreement I hope makes plain, the programme of security normalisation and the timetable associated with it will be determined only when Her Majesty's Government are satisfied that appropriate commitments have been given on an end to paramilitary activity. The noble Lord, Lord Fitt, specifically asked about the reports of the IMC. I hope that the agreement makes it clear that the IMC will report its findings on paramilitary activity every six months. However, I stress that ad hoc reports can also be prepared at shorter intervals.

601
The noble Lord, Lord Maginnis, who I know has put himself to considerable personal inconvenience to be here today, made a statesmanlike speech. I was very grateful for his general support. I agree with him that we would all have hoped that this would not be necessary, but it is a necessary requirement so that we can move forward.
I shall not go into the detail of the proposed amendments because we shall be holding our focused debates on Monday. But I have to say that I would be extremely reluctant to accept any amendment which, by necessary implication, sought to devalue the work of the commission before it has started its work. It seems intellectually inconsistent to set up a body of this quality and then to say, "By the way, we may well ignore all your findings or substitute our own". I have to say that I see no consistency in that. So it is unlikely that I shall accept on behalf of the Government the wider amendments referred to by the noble Lord, Lord Glentoran, and other noble Lords.
I accept the reminder made by the noble Lord, Lord Kilclooney, that for almost one year there has been a vacuum in terms of democratic institutions in Northern Ireland. The noble Lord also raised a particular question about paragraph 23 of the Explanatory Notes. I hope to be able to offer him some reassurance. He is quite right to say that the paragraph refers to the commission making a report but, as was pointed out by, I think, the noble Lord, Lord Smith of Clifton, and reiterated by the noble Lord, Lord Glentoran, so far as concerns strand one, that report can be made only by the two members identified by the noble Lord, Lord Glentoran. I hope that that gives a degree of reassurance—
Lord Kilclooney: My Lords, would the noble and learned Lord further clarify that point, because it is helpful? So far as paramilitary organisations are concerned, the entire commission will discuss their activities and the implications, therefore, for Members of the Northern Ireland Assembly. Does that not mean that the entire commission will comment on the role of the Members of the Northern Ireland Assembly and thus be involved in strand one?
Lord Williams of Mostyn: My Lords, I do not come to that conclusion. Let us turn to the draft agreement, which I touched on briefly in my opening remarks. Article 6(1) set out on page 4 states:
"The Commission may consider a claim by any party represented in the Northern Ireland Assembly".
Article 6(1)(b) deals with further particulars, while Article 6(2) refers back to Article 6(1)(b) and states:
"Insofar as a claim under paragraph 1(b) relates to the operation of the institutional arrangements under Strand One…the claim shall be considered only by those members of the Commission appointed by the British Government under Article 10(1)(a)".
The noble Lord, Lord Glentoran, pointed out that Article 10(1)(a) states,
"two members, one of whom shall be from Northern Ireland…appointed by the Government of the United Kingdom of Great Britain and Northern Ireland".
602
Perhaps I may deal generally with the further questions put by the noble Lord, Lord Glentoran, and others. We have been doing some work on the practical arrangements and we hope that the commission will be able to meet during September to begin to plan its work. We had to be cautious about how far we went because we could not pre-empt your Lordships' consideration of the Bill today, nor that of the Commons next Wednesday. We did not want to bind the IMC too precisely because it will need to think about its own arrangements, but I can give some of the logistical details.
Accommodation is in place. During the interim period, a retired senior civil servant from the Home Office is working with the commission. Administrative support is in place. Inevitably, staffing levels will develop on the basis of the amount of work for the commission, how it sets the parameters of its working methods and, indeed, in the light of further experience. So in the nature of things I do not think that I could reasonably be expected to be more precise than that.
Turning to costs, we estimate that the costs per year will be in the order of £2 million, and we look to the Irish Government for a contribution towards them. The Irish Government will also provide accommodation and a staffer, but of course the precise details will be a matter for that government.
I am grateful to the noble Lord, Lord Smith of Clifton, for expressing his general support. He and his party have faithfully been entirely non-partisan and supportive. I take his cautionary remarks about elections. Every noble Lord who has spoken in the debate today has said that we wish for early elections. The Secretary of State repeated that in the past few days and, on his behalf, in my opening remarks I referred to that sentiment in the same terms. However, I note and take seriously the noble Lord's observation about the difficulty of continued support if elections are not on the relatively immediate horizon.
The noble Lord, Lord Glentoran, was very generous in his tribute to the Northern Ireland Office officials, which I entirely endorse. I notice that he did not oppose the commission in principle but said that he would bring forward amendments on Monday. I look forward to our discussions then. I cannot give any indication that I am likely to accept his amendments but, as always, I shall pay careful attention to the arguments that are put.
Lord Glentoran: My Lords, before the noble and learned Lord sits down, perhaps I may ask one question which I omitted. Will the members of the commission be bound by the Official Secrets Act?
Lord Williams of Mostyn: Yes, my Lords. They will have to comply with the particular duties under Clause 2 to exercise caution about what they put in a report. I know your Lordships will be pleased to see that the reports will have to be presented to Parliament.
I look at the names and I remind myself of their CVs. One is dealing with people who are public servants in the best tradition of that phrase. They are not

603
irresponsible people. I take two at random: Mr Kerr from the United States, a deputy director of the CIA in the past, and former Commander Grieve. I do not believe that either of them is likely to be derelict about their duties. Nor indeed is Mr Brosnan from the Irish Republic, with his background, and certainly not the noble Lord, Lord Alderdice, our colleague in the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Sustainable Energy Bill
2.51 p.m.
Baroness Maddock: My Lords, I beg to move that this Bill be now read a second time.
I am delighted to present the Sustainable Energy Bill to the House. It has been skilfully steered through another place by Brian White MP. Having sponsored a predecessor to the Bill—the Home Energy Conservation Act 1995—I know what is involved in the process. I congratulate him on his hard work and tenacity in seeing it through to this stage.
Those who are not familiar with the problems of guiding a Private Member's Bill through another place will gain some insight if I set out the clauses and how we have arrived at them as they now stand in the Bill. In order that people may have some idea of what we are talking about, the Long Title of the Bill is to,
"Make provision about the development and promotion of a sustainable energy policy; to amend the Utilities Act 2000; and for connected purposes.
Clause 1 places a duty on the Secretary of State to publish an annual sustainable energy report on the progress that has been made towards the following: cutting the United Kingdom's carbon emissions; maintaining the reliability of the United Kingdom's energy supplies, a matter that is important considering recent events; promoting competitive energy markets; and reducing the number of people living in fuel poverty in the United Kingdom. These are the four overarching goals of the United Kingdom's energy policy as set out in the government White Paper.
It is very useful to have these provisions on the face of the Bill, but there is no commitment to a timescale; there is no commitment to the amount of progress or improvement to be made; and there is no requirement to report on the progress of combined heat and power, renewables or energy efficiency. This is despite the fact that such reporting commitments are contained in the energy White Paper.
Nevertheless, during the passage of the Bill in another place—first, by the then energy Minister, Brian Wilson, at the first Committee session on 11th June; and, secondly, by his successor, Stephen Timms, at another Committee session on 24th June—we received some reassurances that the Government would use the annual sustainable energy report to report on progress towards the achievement of all of the 135 commitments in the White Paper. There seems
604
to be some confusion about how many commitments there are in that they seem to have become 139 in some other places these days.
I hope that the Minister will today confirm that the annual report will include reports on progress delivering all the aims and objectives set out in the energy White Paper. I refer to the generation of 20 per cent of electricity from renewable resources by 2020; the generation of 10 gigawatts of electricity by combined heat and power by 2010; reductions in emissions of carbon dioxide of 60 per cent, based on 1990 levels, by 2050; and reductions in emissions of carbon dioxide of 20 per cent based on 1990 levels by 2010. The last objective is particularly important and we will refer to it later. I hope the Government are committed to it because, in some places where they have talked to other bodies, this commitment has changed.
Clauses 2 and 3 concern the energy efficiency of residential accommodation. They particularly concern the duties of the Secretary of State and the National Assembly for Wales. As originally published, the Bill contained a clause requiring the Government to take reasonable steps to achieve a 20 per cent improvement in domestic energy efficiency by 2010, based on 2002 levels. This was recommended not only in the White Paper but in the Performance and Innovation Unit's energy review.
After much negotiation, the sponsor of the Bill reluctantly agreed to the two clauses on the face of the Bill, which were written by the Government. These clauses place a duty on the Secretary of State and the Welsh Assembly to designate and take reasonable steps to achieve at least one published energy efficiency aim for residential accommodation. Although those supporting the Bill and, I suspect, those following me in this debate, will feel that this does not go as far as they would like, it is a significant step forward. as long as the energy efficiency aim set pursuant to the Bill is meaningful—for example, the achievements of the carbon savings specified in the White Paper.
When pressed on this on the 24th June, the Energy Minister, Stephen Timms, said:
"Our aims [in relation to energy efficiency] are set out fully in chapter 3 of the White Paper. It is my job to deliver those aims".—[Official Report, Commons Standing Committee C, 24/6/03; col.58]
I hope, therefore, that the noble Lord, Lord Evans of Temple Guiting, can confirm that it is still the Government's intention to set an energy efficiency aim to achieve 5 megatonnes of carbon savings from household energy efficiency by 2010 and a further 4 to 6 megatonnes by 2020, as set out in the White Paper.
I am seeking clarification on this because, in communication with the Environmental Audit Committee, this was omitted by the Government. It looked as though only 4 to 6 megatonnes were to be saved by 2020. On the original website of the Sustainable Energy Policy Network, this figure was also omitted. However, it appears to be on the latest website, and I hope the Minister can confirm that the Government's accurate position is to achieve

605
improvements in household energy efficiency of 5 megatonnes of carbon by 2010 and a further 4 to 6 megatonnes by 2020.
Clause 4 deals with the duties of energy conservation authorities, again with regard to energy efficiency of residential accommodation. As the sponsor of the Home Energy Conservation Act 1995, I know only too well that the lack of statutory targets for energy conservation on the face of that Act has led to very patchy performance by councils in their energy conservation work. Many local authorities have done extremely well but a significant proportion have reported domestic energy efficiency improvements of only I or 2 per cent in the eight years since the Act was passed.
This clause is based on one in a home energy conservation Bill which failed to get through last year. It was tabled by the then Environment Minister, the right honourable Michael Meacher, Member for Oldham West and Royton. Perhaps having so many different Environment Ministers is one of the problems in trying to drive forward these issues. The clause gives a lever to give higher priority to, and obtain more resources for, local authorities' home energy conservation work. Specifically, it provides the power for the Secretary of State in England and the Welsh Assembly in Wales, after consultation with their respective local government associations, to give an energy efficiency direction to one or more energy conservation authorities. If such a direction is given, the relevant authorities will then have to take steps as they consider to be practical and cost-effective to achieve the improvement specified in that direction.
More than 100 local authorities have pledged their support for the Bill. Many authorities have home energy conservation officers, and they are also very anxious for the provision to be in the Bill. However, it is true to say that the Local Government Association was concerned—and rightly so, as it wants to protect its members—that the clause might place new duties on local authorities without them receiving necessary funding to undertake them. That was never the intention of the Bill but, for the avoidance of doubt, assurances were sought in another place. In Standing Committee on 24th June, the Energy Minister Stephen Timms gave categoric assurances that the,
"Government do not want to place new burdens on authorities without offering funding to meet them in full, so we would not issue directions until the necessary funding could be made available. Until that time, there will be no new financial burdens on authorities".—[Official Report, Commons Standing Committee C, 24/6/03; co1.56.]
If the Government were to use the discretion given by the clause, it would mean more money for local authorities to undertake vital energy conservation work.
In addition, subsection (6) requires energy conservation authorities, when carrying out their duties under the clause, to "give preference to measures" that they consider would contribute to achieving the fuel poverty objective contained in the Warm Homes and Energy Conservation Act 2000.
606
That will make a considerable contribution to the fight against fuel poverty and will help to ensure proper coordination between local and national efforts to achieve the target that was set out in the 2000 Act to end fuel poverty by 2016. That is an issue that we as a nation should be very ashamed about—that people are still dying in the winter because they cannot afford to keep their homes warm.
Many noble Lords will have had a briefing from the LGA on behalf of local authorities. I hope that I have addressed some of their concerns over finance. I hope that the Government recognise that different local authorities are at different stages and that the situation differs between areas. I hope that everyone agrees that Clause 4 strikes a delicate balance between the role of a government to achieve their national priorities and the rights and influences of local authorities.
Another issue raised by the LGA was the funding of home energy conservation officers. When I proposed the original Bill in another place, I said that it should create jobs, and I am pleased to say that it certainly did so in local government. The authorities that have had specific officers to deal with the HECA 1995 have made the best progress, so there is merit in ensuring that local authorities have enough money to fund them. It is not the fault of myself, or of anyone else who has been involved with the Bill, that that is not included in the scope of the Bill. Unfortunately, Defra did not feel that it could support such a proposal. However, in the light of what I have said, perhaps the Minister could think again or persuade his colleagues to think again.
Clause 5 deals with combined heat and power targets. I should declare an interest here, as I am a non-executive director of a heating company that is involved in combined heat and power. As originally published—a phrase that, unfortunately, I could use when talking about almost every clause—the Bill contained a clause to amend the Electricity Act 1989 as amended by the Utilities Act 2000 to exempt suppliers of combined heat and power from the renewables obligation. Many noble Lords may know that the combined heat and power industry is facing huge difficulties, and that exemption would have given a real boost to combined heat and power suppliers.
Unfortunately, the Government opposed the original clause. They believed that it would reduce the renewables market by as much as 13 per cent, while producing few benefits for the CHP industry. I and others—most notably the Combined Heat and Power Association and the Association for the Conservation of Energy—I know that my noble friend Lord Ezra, who will speak later, did not really agree with this—have a different clause. Our clause places a duty on the Government to specify, before the end of 2003, one or more combined heat and power targets for central government. One of those must be for the year 2010, the year to which the Government have committed themselves in their White Paper to achieving the target of installing 10 gigawatts of good-quality combined heat and power capacity. This clause therefore gives a small but significant boost to the combined heat and power industry.

607
Clause 6 is a slightly happier story. In their energy White Paper, the Government declared their intention to seek an early legislative opportunity to provide statutory backing for Ofgem's existing informal commitment to produce regulatory impact studies including environmental assessments for all significant new policies. The promoter of the Bill made it clear to the Government that he would welcome their using the Bill as an opportunity to fulfil that obligation. I am pleased to say that Clause 6 is the result. It imposes such a duty on Ofgem, and I believe that it will help to keep environmental and sustainability considerations at the forefront of Ofgem's activities.
Clause 7 deals with money—always useful in this area; there is not enough of it about—specifically the use of certain money held by the Gas and Electricity Markets Authority. It gives the Government a legal basis for using surplus funds in the fossil fuel levy, up to a maximum of £60 million, to promote renewable energy schemes. I believe that other speakers will address those issues. If noble Lords would like further detail on the money, it is well laid out in the Explanatory Notes accompanying the Bill.
It has probably been made clear in my comments that this is not a Bill which I and others sponsoring it would have wanted to see in its present form. Nevertheless, it is progress. If the Government chose and were committed to it, it could lead to very considerable progress. I hope that the Minister will assure us on the points that I have made. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Baroness Maddock.)
3.7 p.m.
The Earl of Liverpool: My Lords, I am very pleased to follow the noble Baroness, Lady Maddock. I congratulate her on giving such a clear explanation of the aims and objectives of the Bill, which she is sponsoring in your Lordships' House. She is extremely well placed to do so. As she reminded us, some years ago, she sponsored the Home Energy Conservation Bill. I read that she is also vice-president of the Neighbourhood Energy Action and a trustee of the National Energy Foundation. I must confess that I had considerable sympathy with her when she expressed disappointment at the way in which the Government have prevailed on Mr Brian White MP to water down his original Bill. Nevertheless, I suppose that half a loaf is better than no loaf at all, and so I support the Bill.
So many opportunities for moving towards sustainable and clean energy are now available to us. As I suspect that most of them, if not all that I am about to list, will be known to your Lordships, I hope that I do not prevail on your patience. I should like to list a few which spring to mind—including offshore tidal power generation, photovoltaics, and solar heating, the technology of which is always advancing. Hydrogen fuel produced by means of photovoltaics is completely pollution free both at the point of manufacture and the point of utilisation. Geothermal
608
heat-pump technology is another example. I should also cite wind farms and the much smaller wind generators with contra-rotating propellers for domestic use. As for combined heat and power—CHP—I am particularly interested in micro-CHP plants for use in private homes. Great strides are being made in that direction. We must also not overlook the very real contribution that biofuels and biomass could make.
Other noble Lords will no doubt speak with far greater authority than I on some of these points; and indeed I do not believe that my list is exhaustive. But the point is that there is a large number of rich seams we could and should be tapping into.
We probably have a once in a lifetime opportunity to take advantage of these technologies. We are already embarked on a massive building programme including hospitals, schools, prisons and homes. Time is of the essence and we must not lose a moment in concentrating our efforts to reduce our dependency on fossil fuels.
Earlier I mentioned tidal power and I should like to spend a few moments elaborating on this potential power source. We have the second largest tidal range in the world and we also have the technology to harness it. The generating source is free, entirely predictable and, correctly harnessed, is capable of producing 8,000 megawatts of power by 2010, as I read on the Internet this morning. That equates to 10 per cent of our entire energy needs and would achieve the Government's targets for renewable energy in one fell swoop.
Things have moved on a long way from the days when the only way to harness this power was to build a huge barrage across an entire river estuary with all the navigational and ecological problems that would cause. The new generation of tidal power generation is achieved by building offshore impoundment lagoons built of rock, sand and gravel. They would be approximately one mile offshore at the nearest point and would hardly be visible from land. They are environmentally friendly as these large lagoons create habitats and enhance biodiversity for marine and bird life. They create no noise pollution and no CO2 emissions.
A company in this country has developed that concept and is working on two projects off the Welsh coast at Swansea and North Wales. I do not know exactly what stage its development is at as I was unable to contact it before coming to the Chamber today but I know that its aim is to be privately funded, so there would be no burden on the taxpayer. I hope that the Government will give very careful thought to that energy source and support the schemes.
Apart from publishing annual reports on progress towards sustainable energy aims, the Secretary of State will be required to come up with one big idea or aim for energy efficiency in residential homes each year. I wish her well in arriving at that decision. There are so many opportunities to be grasped and we shall await her decision with great interest.
3.12 p.m.
Lord Palmer: My Lords, I, too, warmly support this important Bill. I am a strong supporter of sustainable energy and we need this Bill to help us along the way to delivering that objective. I hope that the Bill succeeds and I shall do all I can to assist my friend and neighbour, the noble Baroness, Lady Maddock. I am delighted that my noble kinsman Lord Hunt of Chesterton will be following me in the gap.
It is, though, more with sorrow than anger that I wish to make the following comments. There is, I am afraid, a serious omission from this Bill. It covers annual reports on progress towards sustainable energy on a number of fronts but is entirely silent on road transport fuels. I would, indeed, like to ask why this is. As usual, I feel I must declare an interest as a farmer and the unpaid president of the British Association for Biofuels and Oils. I do, however, believe that I do not just speak for that organisation; just about everybody I have spoken to cannot understand the Government's reluctance to give a steer in the right direction on this matter. If I may be allowed, I shall explain the situation.
We now have EU Directive 2003/30/EC on liquid biofuels. I commend it to your Lordships as one of the more useful pieces of EU legislation. Article 3.1 gives indicative EU targets of biofuel usage for road transport of 2 per cent by December 2010. Member states are required to give the Commission their own national target for December 2005 by July next year, and it seems to me that the Bill would have been a sensible place to incorporate that legally binding law into UK law. I would very much like to know why that has not been done.
As a farmer, I first became aware of the unsatisfactory situation that we are in regarding biofuels when I discovered that all my oilseed rape, grown and nurtured in Scotland, was sent to Austria and Germany for conversion into biodiesel. Why do we have so little of that industry here, an industry that could not only help the environment but provide vital rural jobs? The UK has virtually no liquid biofuel industry, in contrast to other EU countries such as Germany, France, Spain, Italy and Austria, where combined production comfortably exceeds 1 million tonnes a year. With new capacity coming on-stream, that is set to increase greatly. At 2 per cent usage over the existing EU members, the requirement will be for 10 million tonnes of biofuels by 2006, a massive new market. UK production this last year, all of which came, unfortunately, from recycled cooking oil, is unlikely to exceed the modest total of 10,000 tonnes.
The DfT policy has been to promote the fossil gas fuels with grants and publicity, and persuade the Treasury to provide a duty rebate of some 40p per litre. Yet the biofuels, which show major energy savings over fossil petrol and diesel, have only the 20p per litre rebate. That also applies to bioethanol. The provision does not come into force until January 2005. I would very much like to know why the Department for Transport has not done at least as much to promote the energy-efficient biofuels. I would also like to ask if
610
the Government's silence over sustainable energy in the transport sector is one of embarrassment over the failure over the years to give any worthwhile encouragement to biofuels.
I would like to give a simple illustration of the energy-saving potential of biodiesel, and the same principles apply to bioethanol. On a full life-cycle basis, for each unit of energy put into the biodiesel process, not less than two units of energy is produced through the absorption of solar energy by the green plants grown to make the fuel. If the efficient agricultural practice of minimal tillage is followed and the by-product straw is burned to produce electricity, more than five units of energy is produced. Existing fossil energy can be made to go between two and five times further if used to produce liquid biofuels. Surely those facts should play a crucial part in government thinking on energy, and I ask again what has prevented liquid biofuels featuring in the Bill.
Some half a million hectares of land in the UK are unproductive under "set aside". That land could provide up to 1 million tonnes of biodiesel for road transport. Most years, we export around 3 million tonnes of wheat. If all that were retained in the United Kingdom, it would produce a further 1 million tonnes of bioethanol, and thus 2 million tonnes of energy-saving biofuels are potentially available from British farms.
This represents more than 5 per cent of total UK road fuel usage (the EU target is 5.7 per cent by 2010) and would result in major energy savings on a sustainable basis. One unit of fossil energy could in this way be made to provide between two and five units of transport fuel energy through the natural action of the sun providing the fuel for energy producing photosynthesis in the biofuel feedstock plants such as wheat, oilseeds and beet.
The omission from this Bill of any reference to the major energy saving potential of liquid biofuels is unfortunate, as is the failure to refer to the mandatory requirement for the UK to set its December 2005 biofuel target on or before July next year. The development of a liquid biofuel industry in the UK would make a useful addition to our sustainable energy policy and provide a useful new role for the rural economy. This is a very important factor. If one looks at the Government's own words in the box at paragraph 5.15 on page 69 of the recent Energy White Paper:
"Biofuels can potentially deliver bigger carbon savings and wider environmental, farming and rural employment benefits".
So why are we not developing that potential? Perhaps we could try to rectify the situation to some extent at least.
In another place, Mr Brian Wilson assured Standing Committee C on 11th June that Clause 1 of the Bill would have wide effect. He said that,
"as part of the overall reporting progress, we shall report on the 135 specific commitments in the White Paper".—[Official Report, Commons Standing Committee C; 11/6/03; col. 7.]
Well, in March next year the Government are, according to their Sustainable Energy Policy Network website, committed to publishing a hydrogen and

611
biofuel assessment. And by July this has to result in a national target under our obligations in EU legislation.
So my question to the Minister is simple: can he now assure the House that the reporting under this Bill on "all commitments" will include reporting on measures taken and proposed, and on progress made towards achieving the .commitments and the targets set for biofuels?
A simple "yes" to those questions would not, unfortunately, set the industry alight—but it would give those of us producing biofuel crops a strong signal that our role in a sustainable energy policy was being taken as seriously as the other limbs of that policy. In short, it would help the industry. A "no", however, will further depress the industry and continue the export of crops to Austria and Germany, with the resulting adverse effect on rural job creation.
I feel that my brief contribution has been highly technical and that I have quoted too many figures. But I ask for the Minister's assurance for a boost to the industry that will also greatly help the environment, farming and rural jobs.
3.23 p.m.
Lord Hunt of Chesterton: My Lords, I should like to speak in the gap, after my noble kinsman Lord Palmer. I apologise to the House that my name appeared earlier on the list of speakers, due to some confusion.
I welcome the Bill and add my congratulations to the noble Baroness, Lady Maddock, on introducing the debate on this important step in sustainable energy. For sustainable development, especially in a period of climate change, we need to act on both mitigation and adaptation. Housing and planning are capable of contributing to both objectives: reducing the contribution of greenhouse gases by residential accommodation, and by ensuring that the lives of people, especially those living in cities and old people, are bearable in the accommodation and the environment available to them as the climate changes. This summer was a lesson in these problems.
Sustainable housing has to be more efficient for keeping people warm in winter and cool in summer, and, in an increasing number of places, to enable recovery from flooding. The landscape is also an important part of planning and an essential part of sustainable communities.
I support the legislation for setting targets and for helping the leadership of local authorities which are already making an important contribution. I have two main points to make which might be incorporated into the Bill.
As German colleagues have pointed out, information is most effective in influencing people's behaviour when making decisions—in this case about their house purchases or when buying equipment for their house. The energy efficiency of every house should be known to every house purchaser together with the steps that have been taken by the previous
612
owners in improving them. This would obviously have some impact on the economic value of the house. It could be a national or local authority obligation.
My second point refers to the important Clauses 5 and 6 and the role of combined heat and power and electricity authorities. CHP and renewable energy have enabled one or two local authorities in the UK already to make substantial reductions in energy consumption. The borough of Woking reduced its energy consumption by 40 per cent, but that has required it to develop its own electrical grid; in other words, to move off the national grid. Perhaps the Minister can explain whether Clause 6(2)(b) will enable and help other local authorities to develop more of such effective arrangements in this somewhat unusual way. I declare an interest as chair of CERC Limited, which undertakes consulting in wind energy.
3.26 p.m.
Lord Ezra: My Lords, I want, first, to congratulate Mr Brian White on introducing the original Bill last March in another place. I extend those congratulations to my noble friend Lady Maddock, who introduced the present Bill and was responsible for the important Home Energy Conservation Act 1995.
The purpose of this Bill is to give legislative backing to the Government's energy policy White Paper of February this year and to fill in some of the gaps; notably the lack of a specific target for energy saving. However, as previous speakers have pointed out, during the course of the Bill in another place, particularly in Committee, the Government insisted on major changes, which seriously reduced the impact of the Bill.
We are presented here with a special difficulty. I understand that if we were to proceed to propose amendments in Committee, the Bill would risk falling. That is the last thing we want to happen. Would it therefore be possible either on this occasion or on a future occasion to avoid that unfortunate situation?
Lord Roper: My Lords, I thank my noble friend for giving way. I have been concerned in the debate on a number of Private Members' Bills which we have been considering—the Fireworks Bill a few days ago and one of the Bills we debated today—about the unsatisfactory situation which occurs in this House when Bills reach us from the other place in this way. My late noble friend, Lord Harris, when he was the Liberal Democrat Chief Whip, was equally concerned about the problem.
It is a most unsatisfactory situation when we are presented with Bills in the same way as we are presented with affirmative resolutions—we can take them or leave them. But whereas in the case of an affirmative resolution the Government can immediately reintroduce the measure, in this case if we amend the Bill it falls.

613
In those circumstances, I believe that there is a serious procedural matter to which the usual channels must give consideration, including the possibility of carrying over Private Members' Bills which we could otherwise not amend.
Baroness Farrington of Ribbleton: My Lords, I understand the strength of feeling expressed by the Liberal Democrat Chief Whip and I will ensure that the usual channels are aware of the concern. I know that he does not expect me to comment on any possible solution to the problem.
Lord Ezra: My Lords, I am obliged to my noble friend for his very positive intervention and for the response from the Government Benches.
Unfortunately, on reading the original version of the Bill and then the reports of the Committee and Third Reading debates in the other place, one could not avoid coming to the conclusion that the Government might be wishing to draw back from some of their commitments entered into in the White Paper. Looking at the Bill as such, and leaving aside for a moment the assurances given by Ministers during the debates in another place, that view is supported by the specific amendments introduced in the various clauses. For example, in Clause 1 the Government pressed for the omission of targets mentioned in the White Paper—targets to which Ministers had frequently and vigorously reaffirmed their commitment. It is a source of surprise to us that the Government should have wished those targets, which seem to be writ firmly in the hearts of Ministers, not to be confirmed in the Bill. No doubt the noble Lord will explain to us why.
There is also the omission of the detailed points which were intended to be covered in the annual report. These points would have dealt with many of the issues raised by the noble Earl, Lord Liverpool, and the noble Lord, Lord Palmer. It is unfortunate that those points—all of which are referred to in the White Paper—should have been omitted from Clause 1 of the Bill and replaced by very general phrasing. Therefore, whether or not those issues will be dealt with specifically remains to be seen.
In Clauses 2 and 3, in place of the home energy efficiency target of 20 per cent by 2010, which, we understand, although not specified in the White Paper, is, indeed, the Government's objective, they have proposed the designation of,
"at least one energy efficiency aim".
Precisely what does that mean? It could mean that they will reinstate reference to the 20 per cent target, in which case all would be well. But it could mean simply an exhortation to people to turn off the lights when they leave the room. That seems to give the Government the unending capability of either supporting the commitments they entered into in the White Paper or of going back on them. I find that a very unsatisfactory situation.
614
We really must have a confirmation of the commitment to a 20 per cent improvement in energy efficiency in domestic dwellings by the year 2010. That is where we are failing as a nation. Indeed, the EST—the Energy Saving Trust—has gone further than that. This organisation, set up by government, has asked for a further 20 per cent saving up to the year 2020. Therefore, I should be very glad to hear what the Minister has to say about that.
Clause 5 deals with combined heat and power. I declare an interest here as chairman of Micropower, which is promoting micro-CHP. This is an area which the Government strongly support, and that support has been reiterated very clearly in the White Paper. The Government regard combined heat and power as one of the prime ways in which efficiency can be improved in terms of energy production and usage. The many obstacles currently standing in the way of CHP development have been referred to by noble Lords who have already spoken.
This would have been an opportunity for the Government to restate their intention of supporting CHP and alleviating the present problem, which is certainly likely to lead to under-achievement of the Government's target of 10 gigawatts by the year 2010. But, instead, the Government have replaced that with an obligation on the Secretary of State to introduce a target for the Government's own usage of CHP. That really seems to me to be de minimis.
The Government have been long committed to supporting CHP. In fact, there is a major scheme in Whitehall, introduced by the Government some years ago. We did not need a restatement of that. We wanted to know what they were going to do about CHP as a whole. Were they going to move in and try to overcome the present difficulties and, in particular, were they going to accept the proposal, which they have not, of ensuring that CHP installations were not subject to the renewables obligation as they are at present? Those are areas where we must raise question marks about the Government's intentions.
Indeed, it is regrettable that, faced as we are with so many serious energy issues, including growing import dependence, the security and reliability of electricity supplies and climate change risks, the Government should not have seized the opportunity presented by the Bill of reaffirming their commitment to solve these problems. As time has gone by, that commitment seems to have become progressively weaker.
The PIU report of February 2002 clearly set out a number of targets and objectives to deal with prospective energy difficulties. Some of those were included in the White Paper but some were replaced with aspirations. Now, in the Bill, the Government have insisted on the withdrawal of any reference to energy targets. If this situation were to be dramatised and converted into a television play, a title for it could be, "The Case of the Vanishing Targets". As time has gone by, the targets have diminished until they have disappeared altogether in formal documentation.
There have been assurances by Ministers in another place that the commitments calculated as amounting to 135—I am glad that Ministers have totted them up;

615
the rest of us have not done so—from the White Paper will stand. We shall need a great deal of reassurance in this House that that is indeed the position; that the Government remain at least committed to the targets and aspirations contained in the White Paper and that they will render a detailed annual account of progress towards their achievement.
3.37 p.m.
Baroness Miller of Hendon: My Lords, like other noble Lords, I too not only congratulate the noble Baroness, Lady Maddock, but thank her for the clear and interesting way in which she introduced the Bill.
"We agree that there is a need to report progress on policy goals, as required by clause 1…and we are willing for that to become a legal requirement". [Official Report, Commons, 28/3/03: col. 599.]
Those are not my words but part of the opening remarks of the Parliamentary Under-Secretary for State for Trade and Industry when the Bill was debated at Second Reading in the other place on 28th March. Clause 1, to which the Minister referred, was Clause 1 of the Bill as originally presented to the other place and not the Clause 1, nor indeed the Bill, that we now have before us.
Despite those fine, warm words from the Minister, what the Government proceeded to do in Standing Committee was, in the words of my honourable friend the Member for Christchurch, to fillet the Bill of all of its important targets, an example of the usual practice of this Government of very fine words but no delivery and in this case announcing as soundbites ambitious targets and then preparing excuses in advance for failing to meet them. Usually, government targets are downgraded in the event to mere aspirations, but I notice in this case the Minister used the new and even more ambiguous phrase of "policy goals".
The object of the Bill, when introduced by the honourable Member for Milton Keynes North East, Mr Brian White, a former energy Minister, was to hold the Government to account for their energy policy targets. One can feel enormous sympathy for the honourable gentleman who, having won a high place in the Private Member's Bill lottery, and having produced a carefully drafted Bill, which had full cross-party support, found it ostensibly supported by the Government on the one hand while on the other, to repeat the phrase, they took a filleting knife to it.
For the benefit of those noble Lords who did not have the opportunity of studying that Bill as originally presented, and which the Government said they supported, the key Clause 1 was replaced by a completely new Clause 1. Clauses 2 and 6 were replaced by new Clauses 8, 9 and 10, and Clause 3 was replaced by new Clause 11. I simply cannot imagine what the Government would have done to the draft Bill if they really had not liked it.
In the end, at Third Reading in the other place, the sponsor was reduced to conceding that what he called the "stringent targets" in his Bill were changed by what he called "a long series of negotiations" to "a generalised proposal". For "a long series of
616
negotiations" read "serious arm-twisting by the Government" and for "a generalised proposal" read empty rhetoric.
In the final stages in the other place my honourable friend the Member for Christchurch was persuaded by the Bill sponsor from pressing an amendment to restore some of the original teeth to the Bill because it was clear that the Bill would be lost.
However, it is our intention in Committee to reintroduce provisions deleted in the other place, to enable the Government to have the opportunity simply to persuade your Lordships' House both of the appropriateness of their wholesale redrafting of the Bill and to repeat to your Lordships, on the record, the assurances given to a handful of honourable Members attending Standing Committee. It is right that this House should actually hear what happened.
I say at once that I understand the Bill would be lost if we were to pass any of the amendments. If our understanding is correct—and I know it to he so—I would act very responsibly. But I believe that the House is entitled to hear the reasons for the change and that the Government should give them. I notice this point was made very strongly by the Chief Whip for the Liberal Democrat Opposition and by the noble Lord, Lord Ezra, and I am very grateful for the remarks made by the noble Baroness. Lady Farrington, about ensuring that the appropriate people knew the views.
I hasten to say that the reason I would do that is certainly not because for one minute do I doubt the Minister's word on the assurances being given in the other place, but because of what the Parliamentary Under-Secretary of State said at Second Reading which I partially quoted in my opening paragraph. He said:
"The Government have committed ourselves to producing an annual progress report, and we are willing for that to become a legal requirement".—[Official Report, Commons, 28/3/03; col. 599.]
We want not only to hold the Government to that commitment, but to ensure that the annual report is about real progress on real, firm, binding and achievable targets and not about vague and woolly "policy goals".
The Labour Party in various manifestos has set ambitious targets for renewables and combined heat and power. Since the Second Reading debate in the other place when the Government said one thing and then proceeded to do another, and since "the long series of negotiations" to which the Bill's sponsor was subjected, the Select Committee on Science and Technology has published its fourth report. I want to quote from it. It said:
"There is no prospect of achieving the target of 10 per cent renewable generation by 2010 or the aspiration of 20 per cent by 2020. There is no chance of meeting the Government's targets for CO2 reductions if current policies and market conditions remain in place".
Let me stress that: there is no prospect either as regards government targets or aspirations. I suppose, ipso facto, that will also apply to mere policy goals.

617
The problem with the Government's energy policy is that there does not seem to be a coherent one. There is a plethora of confusing and contradictory schemes being pursued by the Government which rely on literally dozens of separate policy instruments. That is why it is essential that the Government must be obliged to set proper targets and to account to Parliament annually about their success—or possibly their failure—to meet them.
Let us look at some of the failed energy policies which the Government are understandingly coy about being required to report about every year. It is currently presiding over the third annual rise in CO2 emissions; an increase in electricity generation from plants not equipped with clean coal technology; and the collapse of CHP generation.
There is some talk about the wholesale construction of wind farms. But when we debated it previously, I said that I thought it would mean building 22 new ones a week. The Minister challenged that by saying that he did not know where I got my figures. It was from the Government's own Performance and Innovations Unit. But whether those figures are right or wrong, the White Paper reports that 250 megawatts offshore wind capacity has been installed worldwide, but only 4 megawatts of that in the United Kingdom waters.
While the fact that the Government have entered into agreements with developers for a further 1,400 megawatts capacity is of course to be welcomed, when will this actually be built? This same industry claims that a further 3,000 to 4,000 megawatts can be built by 2010. They say, "Can be built", but the question is: will they?
Apart from the capital costs of creating wind farms and the environmental aspects of their siting, there is the unreliability of the source—namely, the wind itself in our climate—which means that it can be only a supplement to other sources and requires substantial back-up. The Government acknowledge the serious problem of what they call intermittency in such sources as wind and wave power. A source cited in the White Paper claims that we have more wind off our coast than anywhere else in Europe. That may be so but, last month, we had hardly a breath of air in this country. That is the problem. When he challenged my figures about wind farms, the Minister referred to other renewable sources, such as biomass, landfill gas and photovoltaics, which, he said,
"can contribute to our goals in 2010 and 2020".—[Official Report, 24/2/03; col. 54.]
However, I notice that he did not refer to coal mine methane or hydroelectricity. Of course, there is a vast difference between "can contribute" and "will contribute". That is why the Bill as originally drafted was so important.
The White Paper also referred to the problems faced by smaller generators due to red tape. I read with great interest the letter from the noble Lord, Lord Ezra, in The Times, in which he advocated the stimulation of localised generation of electricity by small-scale plant to relieve pressure on the grid, which in turn would
618
make use of waste heat. In the same edition of The Times, the president of the Combustion Engineering Association, who of course has a particular axe to grind, complained of "cloud cuckoo land" in the White Paper.
However, his letter, written in the light—or perhaps the dark—of last month's north-east American blackout, calls on the Government to encourage more clean projects such as Coalpower's proposed integrated gasification plant and the use of clean fossil fuels with carbon capture which produce no harmful emissions. He also called for the removal of obstacles to undersea storage of CO2 and planning for further nuclear stations.
The fact is that the looming gap in our electricity supplies which is arising from the depletion and shortly the exhaustion of our North Sea gas supplies and the fast-approaching obsolescence of our existing nuclear power plants cannot be bridged in the short term by renewable sources, even if the necessary technology existed on a commercial scale. Unquestionably, we will be forced to rely on overseas sources from such places as the Caspian Sea, North Africa and France. Apart from the political implications, there will be a further enormous effect on our already huge balance of payments deficit.
The object of my remarks is not to revisit the debate on the very inadequate White Paper entitled, "Creating a Low Carbon Economy". We discussed that on 24th February. We also touched on one of the problems when we discussed the Electricity (Miscellaneous Provisions) Bill between 3rd March and 3rd April and we discussed clean coal and disposal of CO2 in the debate on coal mining introduced by the noble Lord, Lord Hardy of Wath, on 9th April.
The White Paper, after stating the problems, of which we are all only too well aware, states what the Government believe to be the solutions—of which we are also well aware. Further than that, on the very day that the White Paper was published—no doubt just by coincidence—the Prime Minister made a statement to the Sustainable Development Commission in which, after challenging the anti-environment stance of the United States of America, he admitted that:
"Britain is not meeting the scale of the challenge".
The purpose of Mr Brian White's admirable Bill was to concentrate the Government's mind both on actual firm targets, not mere aspirations or policy goals, and to hold the Government to account on an annual basis for their achievement or otherwise of them. The government amendments to the Bill have been completely to emasculate it and to make it another piece of window-dressing to give a semblance of credibility to the White Paper.
By the time the Bill leaves your Lordships' House, we hope that the Government will consider restoring some provisions to meet the original intentions of its promoter; namely, to make the Government supplement their words with real action and to compel them to face the music if they do not.
3.49 p.m.
Lord Evans of Temple Guiting: My Lords, my noble friend Lord Whitty has taken a great deal of interest in the Bill during its passage in another place, but he is unfortunately unable to be with us today. That is why I am delighted to be appearing in his place.
First, I join other noble Lords in congratulating the noble Baroness, Lady Maddock, on her able introduction of the Bill. We know that she has a strong personal interest in the issues that it addresses, through her championing, in an earlier career and in another place, of the Home Energy Conservation Act. I am sure that she will guide the Bill through its remaining stages with equal skill and determination.
Sustainable energy policy is of great importance to everyone in this House, the Government and particularly the wider community. The energy White Paper, Our energy future: creating a low carbon economy, published and discussed on 24th February this year, was the first comprehensive forward-looking statement of energy policy for more than 20 years. It reflects and reinforces this Government's commitment to sustainable development, and its scope reflects the enormity of the challenges that we face.
The Bill builds on that White Paper and its commitments—some 135 of them. Some noble Lords expressed reservations about the Government's commitment to the policy and the Bill. I will return to those issues in a moment. The Bill enables us to deliver on some of those commitments earlier than we might otherwise have hoped, and we very much welcome that.
Several noble Lords have expressed, with force and eloquence, disappointment that the Bill does not address particular issues, or that it does not go far enough for their liking in some respects. It is not a panacea. Implementing fully our sustainable energy policy is a task that will take years, not months. We are committed to bringing forward major legislation on a number of issues at the appropriate time.
However, we are making progress. We have established the sustainable energy policy network and published details of an ambitious work programme to deliver our White Paper commitments. For example, we have announced the competition for a second round of offshore wind farm leases, we have issued revised social and environmental guidance for Ofgem for consultation, we have set out a detailed timetable for implementing the EU emissions trading scheme and we have announced a £268 million budget for programmes to support energy efficiency and fuel poverty.
Briefly, given the time, I shall deal with some of the questions raised. If I fail to deal with any question, I promise to respond in writing. The noble Baroness, Lady Maddock, and other noble Lords have doubted the Government's commitment to the White Paper. I can confirm that the Government are enthusiastic about the paper and intend to deliver on it. To use the words of the noble Lord, Lord Ezra, there will be no drawing back.
620
We will report on progress towards achieving all 135 commitments in the White Paper, on our future commitments, on current and future targets and goals, and on the policies that we propose to deliver them. I assure noble Lords that the Government will work to achieve all 135 commitments.
The noble Baroness, Lady Maddock, asked about HECA officers. Under the use of the power, money would be allocated to meet the direction. It would be up to local authorities to decide how the money is best spent to meet their commitments.
I reiterate the Government's commitment to this policy. I wish to lay to rest the notion that, having supported the Bill, the Government will try to draw back from implementing both the letter and the spirit of it.
The noble Lord, Lord Palmer, was kind enough to warn me of the difficult question that he asked. He said that he would like a "yes" or "no" answer. I cannot give that, but I can give an answer that I am quite convinced he will be happy with. In Standing Committee C on 11th June, Brian Wilson said:
"Every commitment in the White Paper about reporting will be met. There are no ifs and buts".—[Official Report, Commons Standing Committee C, 11/6/03; col. 007.]
Crucially, the White Paper included a commitment that the Government would produce an assessment of the overall energy implications of both a hydrogen economy and of large-scale use of biomass-based fuels in transport. Work has started on that assessment and it will be published early next year.
The noble Lord, Lord Ezra, asked about targets and why the Government appear to be rather coy about them. We will report on the progress towards achieving all 135 targets, as I have already said, but it is not appropriate to enshrine a particular set of current numerical targets or aspirations in statute, or to require continued reporting on them in perpetuity. It is essential to monitor progress towards our goals, and we will. But it is essential that we retain the flexibility to adjust policies and programmes in the light of experience.
On the energy efficiency targets, we believe that improved energy efficiency can contribute about half of the 15 million to 25 million tonnes of carbon saving that we are likely to need to meet by 2020 to put ourselves on the right path towards 60 per cent cuts in carbon dioxide emissions by 2050. Improvements in residential energy efficiency could deliver about 4 million to 6 million tonnes of annual carbon saving towards that needed beyond 2010.
These clauses are therefore very much in line with our policy on energy efficiency and our wider climate change objectives. We are already working with key stakeholders to develop an implementation plan for the strategy set out in the White Paper, which we will issue by February next year. We therefore envisage designating—
Lord Ezra: My Lords, will Minister clarify the position on the energy efficiency targets for domestic dwellings? He referred to the 4 million to 6 million

621
tonnes of carbon saving. Translated into targets, would that represent a 20 per cent saving by 2010, and a further 20 per cent by 2020? Those are the targets put out by the Energy Saving Trust, which I presume represent government policy.
Lord Evans of Temple Guiting: My Lords, I cannot do the calculation in my head to see whether it is possible to come to that percentage. I realise that the noble Lord, Lord Ezra, asked that question and I will ensure that he gets a proper answer. As it is obviously a rather fundamental issue, I will arrange for all noble Lords who have taken part in this debate to receive a copy of that letter.
To complete the paragraph on energy efficiency targets, we therefore envisage designating one or more aims in that plan under these clauses.
A fundamental point was made that I should answer—that the government amendments in the other place seriously weakened the Bill. We take the contrary view. The Government have supported the Bill since it was first introduced in the other place. We have worked closely and consistently with the Bill's sponsors to get the detail right and reach a deal that can—and so far has—secured cross-party support.
The energy White Paper sets out a framework for a sustainable energy policy for the next 50 years—a strategy for the short, medium, and long-term. We intend to deliver on our White Paper commitments, as I have said a number of times already, and this Bill is a worthwhile piece of legislation that will help us to do so. It made an important contribution to delivering the vision that we have set out and we will report fully and transparently on its progress.
The noble Lord, Lord Ezra, said that he was concerned that we would not deliver the CHP targets. We recognise the difficult market conditions faced by the CHP industry. The White Paper set out several additional measures to assist that will be incorporated into the final CHP strategy, due to be published later this year. We remain committed to the target of 10 gigawatts good quality CHP installed capacity by 2010. Through the target for use of CHP electricity in the central government estate, addressed in Clause 5, we feel that we are leading by example.
I hope that I have got the message across that the Government totally support the Bill. We will not, in any way, draw back. We give it our support, and we hope that the cross-party support that it has enjoyed to date will continue.
The Earl of Liverpool: My Lords, I know that the noble Lord said that he would write to all noble Lords who took part in the debate on issues to which he had not referred, but I spent quite a long time discussing tidal power and the new technologies that are available. Are the Government aware of the progress
622
that has been made? Do they see it, in principle, as a realistic sustainable and non-polluting source of energy for the future?
Lord Evans of Temple Guiting: My Lords, I shall, if necessary, write to the noble Earl, but, as it is not a government Bill, I shall be interested to hear what the noble Baroness, Lady Maddock, says on the issue.
4.2 p.m.
Baroness Maddock: My Lords, I thank all noble Lords who took part in the debate for their valuable contributions. There was a common theme running through many of the contributions.
The noble Earl, Lord Liverpool, talked, in particular, about tidal power, and the Minister threw the issue back to me. It would be nice to be in the position of a Minister, able to do something about it. My understanding, from what the Minister and the Government have said, is that they will consider the matter. However, history shows that, when it comes to putting money into such things, governments think that something is a good idea one minute and not the next. I have been on the end of that.
I cannot really say what the Government will do about the matter. As far as we are concerned, people who care about sustainability will include tidal power as an issue. I know that the issue has moved on. The noble Earl also pointed out the golden opportunity that the Government have, with all the building programmes that are going on—hospitals, schools and housing—to put their money where their mouth is in that respect.
As always, the noble Lord, Lord Palmer, demonstrated his wide knowledge of the issue of biofuels with his usual enthusiasm. The noble Lord posed a question, at which point the Minister nodded at me, although, actually, he partly answered it himself. The noble Lord asked about the areas covered by the Bill. That question has been answered by the points that have been raised about how one gets a Private Member's Bill through the House. The wider the area covered by the Bill, the more difficult it is to deal with departments. Dealing with Defra and the DTI is difficult, with the Treasury hovering in the background. Trying to deal with transport as well would have been a bit of a nightmare. Nevertheless, the Minister showed that the Government do care about that issue. It is certainly something that the proposers of the Bill care about, and Brian White talked about it in another place.
I am grateful to the noble Lord, Lord Hunt of Chesterton, for finding time to join in our debate. He made a valuable point about housing and what happens when houses change hands. It is my understanding that the Government intend to address this issue in the housing Bill; it is in the draft housing Bill. We shall see. I hope that in the Queen's Speech there will be a housing Bill. I totally agree with the noble Lord.
He also touched on what happens in other parts of Europe, which we do not have time to go into today. That is a great disappointment to me. I first became

623
interested in this issue more than 30 years ago when I lived in Scandinavia, where I realised what it was to live in a properly insulated house. I taught English to pensioners who did not know what it was to have arthritis or to be cold. Here we are, all these years later, and what are we doing? Private Members' Bills, not government Bills, are addressing this issue.
As usual, my noble friend Lord Ezra was perceptive about every aspect of the Bill. Indeed, the Minister was forced to reply to many of his points.
I am grateful to those who raised the problems in relation to getting Private Members' Bills through. The noble Baroness, Lady Miller of Hendon, again explained how we all feel so cross about—to use her very good phrase—the filleting of the Bill and said that the Government have a lot of good intentions. But where are the actions to follow up those intentions?
I was slightly worried by some of her comments. I certainly hope that we do not risk losing the Bill through lack of time. One comment I should like to make is perhaps not quite so friendly. The noble Baroness spoke about the Government not wanting to put targets in the Bill. When I was trying to get my Bill through, her own government resisted to the end putting targets in the Bill. So that is something that happens.
The Minister gave quite a full answer to the issues raised. He reassured us that the Government are committed to the Bill, which would enable them to build on "some of their commitments". I thought that was a rather telling phrase. That is the problem; it is building on "some of their commitments". We wanted them to build on rather more. However, the Minister promised major legislation. He did not say when. If pressed, I suspect we would receive the time-honoured phrase, "when parliamentary time permits". We shall see.
However, he also said that the Government are about to produce an implementation programme. We look forward to that. It is eight years since the Home Energy Conservation Act. Virtually all legislation in this area has been driven by people outside this House, driving some of us within the House to bring forward legislation on these matters. The Minister asked why we question or doubt the Government's commitment. From the speeches that have been made today, if he cannot see why we doubt the Government's commitment, well, I am very sorry. It is blindingly obvious. When a Bill comes forward based on matters on which the Government have given promises but have not backed up what they said they would do, is it any wonder that we doubt their commitment?
However, it was good to obtain the reassurances that we did today, particularly on combined heat and power. I fail to understand why the Government seem to be going forward and then going back. There is a great deal of plant out there. It is a wonderful opportunity to use our energy much more efficiently.
624
This Bill has been supported by many organisations, from the Women's Institute to trade unions and, of course, local authorities.
Lord Evans of Temple Guiting: My Lords, I am sorry to intervene. Before the noble Baroness sits down, I should like to say for the record that I do not think said that we are intent on implementing "some" of our policies. What I actually said was that implementing fully our sustainable energy policy is a task t hat will take years, not months.
Baroness Maddock: The phrase I wrote down was: the Bill would "enable us to build on some of the commitments" we have made. I may be wrong, but we shall see what is on the record. That was my point. However, I am grateful to the Minister for intervening on that point.
We have made very slow progress on fuel poverty. It is unheard of in other parts of western Europe. We get many good words and intentions from the Government, but not much money and not much legislation with teeth. This is a small step forward, but we need to do better for those who still die of cold in their homes, for those living in cold and damp homes, for the stewardship of our planet, for our children and for future generations.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Household Waste Recycling Bill
4.10 p.m.
Baroness Gale: My Lords, I beg to move that this Bill be now read a second time.
I am pleased to be able to introduce this debate on a Bill that, despite being short in length and proposing only a simple change in the law, could make a dramatic difference to the way we deal with waste.
Dealing with waste is one of the most serious environmental problems we face in this country. Without action, we face a waste crisis. The total amount of rubbish thrown away by households in this country continues to grow every year and communities do not want new incinerators or landfill sites. Existing landfill sites are running out of space in some areas of the country, and even where we still have space, EU law—the landfill directive—requires the United Kingdom to make swingeing cuts in the amount of material landfilled each year. This is the most obvious aspect of the problem: not having anywhere to put the rubbish we generate. But failure to recycle causes other problems too.
The need to find new materials to replace the various things that are thrown into landfill or incinerated also damages our environment. For example, in Iceland a wilderness area vitally important to Icelandic reindeer, seals and pink-footed geese which spend the winters in this country, is threatened by the construction of a huge aluminium smelter and the hydro-electric dams

625
required to power it. In parts of Scandinavia, wildlife-rich, old-growth forests have been logged and replaced with mono-crop forests to make paper, yet every day tonnes of paper and aluminium are thrown away when they could be reused.
There is a further problem. By not recycling and instead acquiring and processing fresh raw materials, we are wasting energy. Every time we recycle a glass bottle rather than make a new one from raw materials, we save enough energy to power a 100-watt light bulb for one hour. Saving energy means that recycling also helps to prevent climate change, and this could make an enormous contribution. The United States Environmental Protection Agency created a model to determine the flow of climate change gases. Applying the model to the UK waste stream suggests that every year we could save 4.5 million tonnes of carbon dioxide emissions through recycling. That is equivalent to the energy that would be saved by a 12 per cent reduction in traffic. So to reduce the pressure on our landfill sites and to stop the need for new incinerators, to reduce our need to dig up or clear-cut wildlife sites, and to prevent climate change, this Bill will of course be a great help.
The UK has lagged far behind other countries in terms of its recycling. In its report of October 2002, the Green Alliance compared UK policies and performance with seven other countries or regions in a report called Creative policy packages for waste: lessons for the UK. The report found that the UK had in place fewer legislative and incentive-based measures to encourage recycling than most of the other countries studied. It had only three measures, compared with eight in Denmark and in the Flanders region of Belgium, seven in Sweden, and six in Switzerland and the Netherlands. We also recycle less than other countries, managing at the time of the report to recycle just 11 per cent of municipal solid waste compared with 62 per cent in Flanders, 45 per cent in Switzerland and the Netherlands and 38 per cent in Sweden.
Survey after survey has found that recycling is popular. People will take part if they are provided with the facilities to recycle. The Government's own strategy unit commissioned MORI polling to inform its report and it found that the demand for kerbside collection services is high. Three out of four people said that they would recycle more if the facility were available to them.
The initial evidence suggests that this claim is borne out in reality. In London there is a correlation between the availability of kerb-side collection and self-supporting levels of recycling, which have more than doubled relative to those that do not have a collection service.
Qualitative evidence suggests that access to a collection service also plays a role in catalysing wider environmental awareness, even though many initially only used the service because it was available. The act of participation itself seems to foster a greater sense of environmental responsibility. In May 2002, the Environmental Agency carried out similar polling and
626
found that nine out of 10 people would be very likely to separate their rubbish if provided with the facilities to do so.
That is the background against which the Bill has been drawn and is no doubt the reason that it made good progress in the other place. It is clear that recycling has major environmental benefits; that the UK is far worse at recycling than we should be; and that improving our performance would be very popular.
Before taking your Lordships briefly through the Bill, I should acknowledge the help given by various people in getting the Bill this far. The honourable Member for Lewisham Deptford deserves particular thanks as it was her decision to adopt the Bill after being drawn in the Private Members' ballot that provided Parliament with the opportunity to debate it. She piloted the Bill skilfully through the other place and I owe her great thanks.
Similarly, the Ministers who responded positively to her efforts deserve thanks. Both the former and current environmental Ministers played an important role. It is also important to pay tribute to the Opposition parties in another place that have supported the Bill. The Conservative and Liberal Democrat Front Bench spokespersons have enthusiastically backed the Bill, meaning that it is a real cross-party proposal to improve our environment. The Bill has also received support from hundreds of organisations.
It will perhaps be helpful if I briefly explain the terms of the Bill and the thinking behind them. The Bill seeks to add to Section 45 of the Environmental Protection Act 1990. This is the section that puts a duty on local authorities to collect waste from households in their area. Clause 1 of the Bill inserts, after Section 45, a new section that requires English waste collection authorities to ensure that arrangements are in place by the end of 2010 to collect at least two recyclable materials separately from the remaining waste.
Waste collection authorities can avoid this duty if they are satisfied either that the cost is unreasonably high or that comparable alternative arrangements are in place. Concern has been expressed that these two provisions could become opt outs allowing councils to get out of providing the separate recycling collections we want. However, I have been encouraged by the Government's commitment, given in debate in another place, that the opt outs are narrow, a commitment which I hope will be repeated here today.
On costs, I accept that in a very small number of places it does not make sense to recycle. In fact, the current law allows such exemptions from very remote households that may not even get their rubbish collected. My view is that if a council is going to a house to collect rubbish, there is no reason why it cannot collect recycling. Split-bodied collection vehicles can allow both collections to be made at the same time in a single trip. Alternating rubbish collections, so that rubbish is collected one week and recycling the next, has also been used successfully.

627
Successful recycling projects already operate in two areas where cost is often quoted as being prohibitive—rural areas and tower blocks. I therefore think it is hard for existing councils to argue that these schemes could be very expensive. Such an argument was put to the Minister in Committee in another place by the honourable Member for Mid-Bedfordshire, who asked:
"Would the Minister accept that if a local authority can produce a good recycling scheme that is economic, there is no adequate excuse for another local authority that is not able to do as well?".—[Official Report, Commons Standing Committee F, 10/6/03; col. 22.]
I was encouraged by the Minister's reply of "I entirely agree".
As to what will be considered "comparable services", I see no problem with a provision of extremely high density collection points. I can envisage a new housing development where a point was built for the recycling and dustbins of perhaps 10 to 12 surrounding homes, for example, as matching a doorstep scheme—and perhaps even more convenient for the householders, who would not need to keep recycling boxes in the home.
However, any council trying to argue that a few extra bottle banks provided a "comparable service" should certainly be prevented from getting away with that. This argument was put to the Minister in Committee in another place. The honourable Member for Bexhill and Battle tabled an amendment requiring any "comparable facilities" must allow householders to recycle within 100 metres of their home. Although the amendment was not pushed to a vote, it led the Minister to say:
"We want to put in place the best arrangements. In relation to a bring-site, 100 m is quite a long way—perhaps it should be rather closer than that".—[Official Report, Commons Standing Committee F, 10/6/03; col. 21.]
I am therefore content that Clause 1 provides a reasonable balance and will result in almost every if not quite every home having a recycling service that is as convenient as it can be for them.
There are two other aspects in this part of the Bill on which I should like to comment. First is the number of materials to be collected. Various supporters of the Bill have argued for the collection of four materials to be required rather than two. I sympathise with that view. There is also evidence that increasing the number of materials recycled makes people better at remembering to separate their waste. However, those backing the Bill accepted two materials—and let me point out that the Bill refers to "at least" two materials—as a compromise, so that we could take an important step forward with Government support. I hope the Government can give advice to councils to ensure that the scheme they set up can be cost-effectively upgraded to collect more materials in the future.
Finally, there is an option in subsection (5) of new Section 45A for the Secretary of State to allow up to an extra five years to meet the requirements of the Bill. I confess I would prefer the Bill without that option,
628
and I hope it will not be used. I know my noble friend the Minister may not be able to promise this today, but I hope she will go as far as she can in that direction.
Clause 2 allows the same power that Clause 1 places on English waste authorities to be applied to Welsh authorities if the Welsh Assembly deems that appropriate. Coming from Wales, I am very pleased that the Welsh Assembly now wishes to have this power if it needs to use it. Waste is a devolved issue in Wales, so should Wales wish to follow England in requiring doorstep collections, it would require changes in primary legislation that are beyond the Assembly's powers. This clause gives them the necessary powers.
Clause 3 requires a report to be made by the Secretary of State no later than October 2004 detailing progress on recycling. I think that is a sensible requirement, as it allows us to see how we are making progress and will, it is to be hoped, focus minds on meeting the challenge set out in the Bill.
The remaining provisions are, I hope, self-explanatory. They give definitions, make minor drafting amendments required to keep the earlier 1990 Act consistent and give the Title and the extent.
The Bill is not complicated, and would make a huge difference. Recycling provisions have been increasing recently, but we still have a long way to go. This country has a bad record for missing the recycling targets that it has set itself. Indeed, as far back as 1990, we set a target to recycle 25 per cent of our waste by 2000. The latest figures show that in 2001–2 we managed less than half that amount—just 12.4 per cent. At the current rate of increase, we would meet our 1999 target in about 2014. We need to break the cycle of failure, and I believe that the Bill would play a huge part in achieving that. I beg to move.
Moved, That the Bill be now read a second time.—(Baroness Gale.)
4.26 p.m.
Baroness Hooper: My Lords, my interest in this subject stems from the days when I was a Member of the European Parliament and vice-chairman of the European Parliament's environment committee. I also, at that time, had the fascinating task of preparing a report on containers of liquid for human consumption, more generally known as the beverage containers directive. Therefore, I was very much involved in all issues of reuse and recycling of household waste.
However, the main reason for my contribution today is that I am currently the longstanding president of Waste Watch, the national agency that works together with local authorities and other organisations to advise, support and encourage better management of household waste and which has been involved in developing many imaginative and successful projects. Waste Watch operates under the slogan, "Reduce, Reuse and"—only then—"Recycle"; in other words, recycle only after considering other forms of disposal.

629
We were involved in the consultations leading to the drafting of the Bill and were very much behind the original Bill.
I recognise the need for the Bill, as outlined by the noble Baroness, Lady Gale. Therefore, I feel able to welcome it and to congratulate the noble Baroness on presenting it as she has to your Lordships' House. I understand that this is her first Private Member's Bill, and I am sure that it will be the first of many.
It is disappointing that there are not more speakers today, as there is no doubt that the subject is very important and that many members of the population take a great interest in it. Anyone who has been to a local authority recycling centre, particularly at weekends, will know what hives of activity those centres can be. I am constantly astounded at the quantities of materials that people are willing to separate and prepare for recycling.
To diverge for a moment from the main theme, I am not really surprised at how few people put their names down for the debate. The new electronic system that has replaced the time-honoured fashion in which we could put our names down to speak in debates has given rise to some confusion.
As for the provisions of the Bill, and the amendments that were made in another place, I would have preferred there to be percentage-based targets to encourage local authorities to move beyond the targets provided by the landfill Act. I should also have provided at least four materials to be collected separately as a consequence of the Bill. Nevertheless, as the noble Baroness said in presenting the Bill, the fact that it provides for kerbside collection of at least two separate materials means that we can build on that in future. I trust that, from the start, many waste authorities will see the advantage of going beyond the minimum of two. I think that part of the problem in this respect is that, with only two materials being collected separately, it will tend to be the heavier materials, or garden waste, which are collected. It will not encourage the recycling of plastics, for example, but I believe that that is essential.
I have a few questions, the first of which I direct to the Minister. Can she reassure me that the Government believe that the Bill, when enacted, will enable local authorities to achieve and improve on the targets provided by the landfill Act? Secondly, in relation to the kerbside collection of separate materials and any future possible increase in the number of materials, will the Government be prepared to issue guidance—to which I think the noble Baroness, Lady Gale, referred—so as to encourage local authorities to prepare for an increase in number, so that any vehicles they may be purchasing, for example, can be adapted to collect more than the minimum number of materials? Thirdly—and this is directed either to the Minister or to the noble Baroness, Lady Gale—as the Bill refers only to England and Wales, what will happen in Scotland and Northern Ireland?
Again, I welcome the Bill. I wish it good speed through your Lordships' House and an early implementation.
4.31 p.m.
Baroness Maddock: My Lords, in introducing the Bill, the noble Baroness, Lady Gale, pointed out that it has all-party support. That is true on so many environmental issues. We on these Benches are very pleased to continue the support of our colleagues in another place.
The noble Baroness referred to the problem of landfill. It is not a new problem. I am sure that the European Parliament was talking about it when the noble Baroness, Lady Hooper, was a Member. It has long been talked about, but we in this country have been very slow to realise the size of the problem. She also pointed out that we are way behind other countries in this regard. In speaking to another environmental Bill, I referred to the time many years ago when I lived in a Scandinavian country—a consequence of which is that I still frequently visit Scandinavia. As noble Lords may know, on trains in Norway, for example, one is able to recycle goods in the refuse bins. One is continually reminded everywhere in Scandinavia of how to sort one's rubbish.
In examining this issue we have to be careful about how we establish facilities and deal with recyclables. The noble Baroness touched on that point when introducing the Bill. We need to ensure that we recycle the items that are most profitable to recycle, and I am talking about profitability in the wider sense. Energy is required to collect, transport and reprocess recyclables. I am sure that the previous speakers will agree that even before we reach the recycling stage, we need to reduce the number or reuse the items used. That will make recycling a more reasonable proposition.
The noble Baroness, Lady Gale, talked about the problem of tower blocks. Last year almost to the week, I was in Sweden looking at regeneration projects, including those involving blocks of flats built when I was living there 30 years ago. In those days, blocks of flats usually had a chute in which to put bags of kitchen rubbish. As part of the regeneration, however, all the chutes were closed and—just as the noble Baroness said—there was a site containing many tubes in which people could put their recyclables. Such an arrangement is certainly possible.
The noble Baroness did not mention the important role played by composting. It is particularly important now that so many people wish to have an allotment and grow their own vegetables so that they can have a guarantee of what is put on them.
We are trying to tackle recycling when we have an ageing population. To illustrate the point I refer to the system in Berwick, where I live. It is difficult for elderly people to carry items to recycling centres. That is why kerbside recycling is so important. As with energy efficiency that we discussed earlier, implementation of recycling measures varies hugely among local authorities. The Bill's purpose, which these Benches support, is to try to give a bit of oomph to those authorities that are not taking recycling sufficiently seriously in terms of trying to educate people to recycle where they can.

631
I am pleased to say that the borough of Berwick-upon-Tweed where I live has instigated a two bin collection. It has not been going for very long but it is successful. We have a blue bin collection. The noble Baroness, Lady Hooper, discussed which recyclable items would be recycled in a second collection. Once every fortnight I get rid of the rubbish that I think can be recycled. There is a list of the things that can be recycled and put in the blue bin. The system appears to work well. I was amazed that some people became upset because they thought their rubbish would be collected once a fortnight. However, there is still a weekly rubbish collection, although it may take place at a different time. Such a system concentrates the mind. It certainly concentrated my mind in terms of composting. I am much more committed to taking my compost down the garden—so much so that I managed to lock myself out one day.
One of the biggest problems in taking forward recycling is finance. Grants are available to local authorities, particularly for set-up costs. I refer to timescale, as did the noble Baroness, Lady Gale. It is unfortunate that in Britain, one of the wealthiest nations in the world, we still need a Private Member's Bill to improve our recycling effort. I give the Bill my full support.
4.37 p.m.
Lord Dixon-Smith: My Lords, like every other speaker, I join in congratulating the noble Baroness, Lady Gale, on bringing the Bill forward. Private Member's Bill or not, it is at least a Bill and it is at least coming forward. We do not have a particularly good legislative record in this field, not that legislation should be necessary. People are convinced that recycling is necessary and they ought to be able to persuade their local authorities to take the necessary action. That is happening. We should acknowledge the good work that is done in some communities and some local authorities.
The Bill is welcomed by all parties. However, we should not duck the fact that it is not the Bill that was introduced in the Commons. Earlier my noble friend Lady Miller of Hendon spoke on the Sustainable Energy Bill. That Bill chimes very neatly with the one we are discussing. They could almost form one debate; that would not he inappropriate. My noble friend Lady Miller said that the filleting knife had been taken to the Sustainable Energy Bill. The filleting knife has been taken to the Bill we are discussing. As I say, it is very different from the Bill that was originally introduced in the Commons. That does not mean that it is unwelcome, but instead of being a strong Bill it is now a rather unambitious Bill. However, it is somewhat better than nothing.
I have two questions. I hope that the noble Baroness, Lady Farrington, will be able to reply to them. The first relates to the Waste and Emissions Trading Bill which we considered in this House some months ago and sent to the other place. That was largely directed to dealing with the problems of biodegradable municipal waste, but that waste constitutes a large part of the problem that we are
632
discussing. There is therefore a clear and distinct relationship. That Bill has not come back. The Commons has considered it in part, and has certainly not finished its consideration. It would be rather interesting to know, if the noble Baroness could tell us, when it will return to us. I do not dare ask in what form it might return to us, as I suspect that it may well have been filleted a little as well.
In due course, we face a barrage of orders to enable this country to comply fully with the latest European directive on the subject. It would be interesting to know, if the noble Baroness were able to tell us, whether any of those orders is likely to overtake or come into conflict with anything in the Bill. That may be asking for advance information that she is not able to give, but I for one would be most grateful to receive any indications.
I have a question for the noble Baroness, Lady Gale. For the arrangements for separate collection of recyclable waste, new Section 45A(3) states:
"The arrangements are arrangements for the collection of at least two types of recyclable waste together or individually separated".
I can understand two types of recyclable waste individually separated, but two types together may be a problem.
Baroness Maddock: My Lords, I mentioned in my short speech that in our area there are two collections, one for non-recyclable and one for recyclable waste. The recyclables are all muddled and then sorted at another stage. That is the answer to the noble Lord's question.
Lord Dixon-Smith: My Lords, indeed that is the answer, but one can put together what I would call compatible waste, which can be separated easily. or one can put together incompatible waste such as plastic and paper and create an almost insoluble problem. Will the noble Baroness consider whether we need to think about that at later stages of the Bill? If we make the job technically difficult for the waste collection authorities, there ceases to be a good point in doing anything. That is a simple technical question on the Bill. I commend the rest of the Bill.
We do not have a good record on how we handle waste in this country, and in particular on how we recycle it. The European directive targets, which will be the targets that this country will adopt for 2010 and onwards, are not those originally proposed for the Bill, which were rather more ambitious. None the less, they are better than nothing, and there seem to he some indications that we shall have difficulty hitting those targets. I hope that that is not the case. This is an area where the Community is very keen to move rapidly. As I said, authorities can and will take action.
The question of finance was raised by, I think, the noble Baroness, Lady Maddock. The one fact that we should remember, although it may not be happening to a sufficient degree, is that we have a landfill tax. That ought to be totally and automatically recycled into the waste collection business for the corning decade or more, to ensure the necessary investment

633
both to make recycling realistic and, more importantly, to make sure that we deal with the disposal of waste that cannot be recycled in a way that is environmentally protective. We have to face the fact that such systems are expensive to introduce. Simply incinerating waste is no longer acceptable. If the investment is to come forward, some pump priming will be necessary. I have always thought that the tax generated as a result of waste disposal using landfill ought to be the investment source for curing the problem.
The Bill is welcome. It could have been better, but it is certainly better than nothing.
4.45 p.m.
Baroness Farrington of Ribbleton: My Lords, I join other noble Lords who have taken part in the debate in congratulating my noble friend Lady Gale on introducing the Bill in this House. I am certain that noble Lords who have heard, and many more who will read, the way in which she did so will recognise that she will be called upon on many occasions to perform the same task in other areas.
This has been an informed and informative debate and on behalf of the Government I welcome the principles of the Bill. I congratulate the sponsor in another place and my noble friend Lady Gale on getting the Bill this far so rapidly. We support the Bill and hope that it will help local authorities to meet their recycling targets.
In 2001–02, 58 per cent of households already received some sort of kerbside collection of recyclates—a figure increased from 51 per cent the previous year. This Bill will ensure that by 2010, in just seven years, nearly all households in England will receive that service.
In supporting the Bill, the Government are not moving away from the waste hierarchy, but underlining it. Clearly, the preference is, as the noble Baroness, Lady Hooper, said, that waste is not created in the first place. However, once waste has been created, it is far more sustainable to reuse and recycle it rather than to put it into landfill sites where it will remain forever.
The noble Baroness, Lady Hooper, also raised the issue of Scotland. The Bill concentrates on England and gives enabling powers to the Welsh Assembly because the matter has been delegated in Scotland.
The noble Lord, Lord Dixon-Smith, raised the issue of EU directives. Officials are unaware of any EU directives which directly cover doorstep collection of recyclable materials. It is true, as the noble Lord recognised, that the drivers of the EU landfill directive, and our own governmental targets to increase the recycling and composting of municipal waste, will be pushing local authorities to increase. We believe that this Bill will be an important step in pressing that forward.
The noble Lord, Lord Dixon-Smith, also asked about progress with regard to the Waste and Emissions Trading Bill in the House of Commons. A
634
date has not yet been given for the Report stage and Third Reading. The Committee stage was completed in April. The two amendments to the Bill added in your Lordships' House concerning composting and two-tier local authority issues have been overturned. However, the Government have expressed a commitment to bring forward an alternative amendment to cover the two-tier issue at the Report stage. It is not therefore known when the Bill will return here.
All noble Lords referred to separation and whether there ought to be a minimum of two, three or four types of waste. I have waited some time to be able to say this. As a citizen of Preston City, I am delighted to announce that there is a fortnightly collection of normal and compostable waste. There is also a third collection, during the same week in which the compost waste is collected, of a blue box into which paper, tins and glass can be placed. It is a superb, comprehensive collection.
I appreciate that noble Lords are suspicious. The Bill allows for comparable alternative arrangements to be employed. We welcome this not as a get-out clause, but, as noble Lords have recognised, there are particular issues in particular localities; for instance, the timing of buying new collection vehicles and so forth. Therefore, there needs to be a reasonable balance between urgency and proper local authority planning time.
I was asked about guidance. There will, of course, be guidance but, as the noble Lord, Lord Dixon-Smith, knows only too well, the Local Government Association gives the very good service of letting other local authorities know about good practice.
We welcome the principles of the Bill and hope that it will increase the recycling rate in England. I am grateful for the quality of noble Lords' speeches, if not for the quantity of noble Lords who took part. But I am sure your Lordships will agree that a large number of noble Lords speaking at length does not necessarily ensure either quality or progress. I wish the Bill well.
4.50 p.m.
Baroness Gale: My Lords, first, I thank everyone who has taken part in the debate this afternoon and I thank them very much for their support of the Bill. I believe I have been fortunate in that my noble friend Lady Farrington answered most of the questions that were directed at the Government.
However, I shall mention a point raised by the noble Baroness, Lady Hooper, in relation to Scotland. The Scottish Parliament has legislative powers through primary legislation which the Welsh Assembly does not have. Therefore, the Assembly has asked the UK Government to put provisions into the Bill so that it can, if it wishes, implement them. However, in Scotland the situation is totally different and the Parliament has its own policy. I believe that Northern Ireland also has its own strategy for dealing with recycling. I hope that that answer satisfies the noble Baroness.

635
I thank the noble Baroness, Lady Maddock, for answering another question on my behalf and for all the very good points that she made in her contribution. I also thank the noble Lord, Lord Dixon-Smith, for his contribution. I believe that he raised one point which required my response. He asked whether we should consider the incompatibility of the different wastes that are placed together. I believe that that point was covered by the answer given by the noble Baroness, Lady Maddock. However, if the noble Lord requires a further explanation, perhaps I may provide it later.
Lord Dixon-Smith: My Lords, I thank the noble Baroness for picking up that issue. My point was whether we should consider the matter at a later stage in the Bill. I can ensure that that happens but the noble Baroness is now forewarned.
Baroness Gale: My Lords, I thank the noble Lord and I shall certainly consider his point.
With that, I have only to thank the Government and my noble friend Lady Farrington for her support of the Bill. I thank her for the way that she has dealt with it and, in particular, for answering all the questions, thus saving me the need to do so. Again, I thank everyone for their support.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Female Genital Mutilation Bill
4.53 p.m.
Baroness Rendell of Babergh: My Lords, I beg to move that this Bill be now read a second time.
I am delighted to have the honour of taking this important piece of legislation through your Lordships' House. Female genital mutilation is a cruel and unnecessary practice which I have long opposed and which I am keen to see eradicated.
The main purpose of the Bill is to close what has been seen for some time as a loophole in the Prohibition of Female Circumcision Act 1985. It was introduced in another place by my honourable friend the Member for Cynon Valley, Ann Clwyd, who ably steered it through its various stages. The Bill received strong support from all sides in another place. I hope that it will do so here.
The 1985 Act made clear beyond doubt that the practice of female genital mutilation or FGM would not be tolerated in this country but it does not prevent people from taking children abroad to have the procedure performed.
We cannot turn a blind eye to the fact that people are evading our law in this way. It is right that the UK should take all appropriate legislative measures to protect our children and young women from this dreadful practice, both here and abroad. The physical and psychological effects on them of FGM are enormous and a terrible violation of their human rights.
636
The Bill therefore seeks to ensure that people with a substantial connection to the United Kingdom who take girls abroad for FGM can be prosecuted on their return. At the same time it increases substantially the maximum penalty for FGM and describes the prohibited acts for what they are: mutilation.
FGM is a collective term for a range of procedures, which include the partial or total removal of or other injury to the external female genitalia. It is an age-old practice, which is perpetuated in many communities around the world simply because it is customary. Its origins are unknown. The practice is medically unnecessary, extremely painful and poses severe health risks, both at the time when the mutilation is carried out and in later life. It has no possible physical advantages; is not called for in any religion and is not limited to any religious group.
Typically, FGM is performed on girls between the ages of four and 13 but also in some cases on new-born infants or on young women prior to marriage or pregnancy. The practice is particularly prevalent in Africa and occurs to a lesser extent in the Middle East and Asia. However, those who have undergone or are at risk of undergoing FGM are increasingly found in Western Europe and other developed countries, primarily among immigrants and refugee communities.
Estimates of the number of women and girls who have undergone FGM world-wide range from 130 million to 150 million, with an estimated 2 million at risk each year. The extent to which FGM is practised in the UK is not known but there are thought to be 74,000 first-generation African immigrant women in the UK who have undergone FGM and as many as 7,000 girls under 16 within the practising communities who are at risk of undergoing it.
In countries where female genital mutilation is prevalent the conditions in which it is carried out are often unhygienic and the instruments used crude and unsterilised kitchen knives, razor blades, broken glass and even sharp stones are the tools of the trade. Worse still is the fact that in most cases no anaesthetic is used. Children are simply held down while the procedure is performed. A recent Channel 4 documentary about FGM, "The Day I Will Never Forget", showed two young Somali girls undergoing the procedure and made harrowing viewing.
The severe health consequences of FGM cannot he underestimated. Immediate consequences include severe pain, haemorrhage, shock, infection, septicaemia or even death. Longer-term consequences include difficulty in menstruating and passing urine, infertility and sexual dysfunction. FGM also greatly increases the risk to women in pregnancy and childbirth. Women who have been mutilated are twice as likely to die in childbirth and three or four times as likely to have a stillborn child. It is unlikely that FGM was ever legal in this country. Even before the Prohibition of Female Circumcision Act came into force, it could almost certainly have been prosecuted as an offence against the person. The purpose of the

637
1985 Act was to remove any uncertainty about the legality of the practice and to make it clear that such a barbaric custom has no place in our society.
The Act was a result of a Private Member's Bill introduced in another place by the Member for Broxbourne, Marion Roe, and supported by the government of the day. As one of the first pieces of legislation on FGM in the world, it broke new ground. So too does this Bill.
Like some other countries, which have specific laws against FGM, the UK has seen no prosecutions since the 1985 Act came into force. Research carried out by the All-Party Parliamentary Group on Population Development and Reproductive Health prior to the hearing that it held on FGM in May 2000 suggested that it is most often pressure from the family or community to remain silent which leads to offences going unreported. Many victims may be too young and vulnerable or too afraid to report them. Lack of awareness of the law and fear of cultural sensitivities are also factors.
As a member of the panel at the FGM hearings in 2000, I am particularly pleased that this Bill gives effect to a number of our recommendations for changes in the existing law. First, it substitutes the term "genital mutilations" for "circumcision". The term "circumcision" in this context is misleading, not least because FGM is not in any way comparable to the accepted practice of male circumcision. The Long Title of the Bill removes any doubt as to the acceptability of this dreadful practice. It describes the prohibited acts for exactly what they are—mutilations.
Secondly, and most importantly, the Bill gives extraterritorial effect to the existing provisions. This means that any of the prohibited acts done outside the UK by a UK national or permanent UK residents will be offences under domestic law and triable in the courts of England, Wales and Northern Ireland. That is a significant and ground-breaking extension of the present law.
Permanent UK residents are people who ordinarily live in this country without being subject under the immigration laws to any restriction on the period for which they may remain. The Bill will therefore catch those with a substantial connection to the UK but not those who are here temporarily—for example, foreign students or visitors.
Concern was expressed in another place that the extraterritorial provision should apply to all UK residents who commit the prohibited acts; in particular, those seeking asylum from countries where FGM is endemic. But there is a limit as to how far the UK can go in protecting children from and prosecuting people for offences of FGM committed outside our jurisdiction. We cannot legislate to protect all victims outside our jurisdiction, nor can we prosecute everyone and anyone who has committed FGM abroad and who happens to have touched our shores.
638
The people that the extraterritorial provisions are intended to catch are those who take children abroad for FGM and then return to—and can thus be tried in—the UK. Those who have permanent residence here are free to leave and return to the UK at will and are thus more likely to be able to do this than those who do not.
Asylum seekers, on the other hand, are much less likely to leave the UK for FGM-related or, indeed, any other reasons. An asylum application still under consideration by the Home Office is regarded as withdrawn at the time of departure if the applicant leaves the UK; and an asylum appeal pending in the UK will be treated as abandoned if the appellant leaves.
It is important to emphasise too that the Bill, like the 1985 Act, covers anyone, including foreign students and visitors who commits a prohibited act in this country. It is only when the acts are committed overseas that the restrictions as to nationality or residence apply.
Thirdly, the Bill increases the maximum penalty for FGM from five to 14 years' imprisonment. Other than life imprisonment, that is the highest sentence that can be imposed. It was argued in another place that increased prison terms will not have any effect if people are not prosecuted, but the higher penalty may have a greater deterrent effect. Someone prepared to risk five years' imprisonment may think twice before risking 14.
That covers how this Bill will change the present law. Otherwise, it simply re-enacts the provisions of the 1985 Act. Nevertheless, 18 years on, re-enactment has provided a valuable opportunity for debate on these provisions. In particular, on the saving that is provided for necessary surgical operations.
Necessary surgical operations are those that are necessary for physical or mental health. But Clause 1(5) of the Bill specifically provides that in assessing mental health, no account is taken of any belief,
"that the operation is needed as a matter of custom or ritual".
So FGM could not legally occur on the ground that a woman's mental health would suffer if she did not conform with the prevailing custom of her community.
Concern was expressed in another place about the need for and potential misuse of the savings of those surgical operations that are necessary for mental health. This is particularly in the context of so-called "designer vagina" operations where women undergo a voluntary procedure to improve appearance or enhance sexual pleasure. Anecdotal evidence suggests that that is a growing trend.
When the 1985 Act was passed, it was not Parliament's intention to place any statutory limitation on operations that are genuinely necessary; nor is it the intention of the Bill. Such operations may well be rare, but they do occur, and it would be wrong to criminalise them. But unless they are medically necessary, any operations involving mutilation of the external genitalia—"designer vagina" or otherwise—are already illegal if carried out by a person in the UK. Under the Bill's provisions, they will also be illegal if

639
carried out by a UK national or permanent UK resident outside the UK. That will be the case even if the woman on whom the operation is carried out consents.
The climate in which we are debating the Bill today is very different from that in 1985. There is now much greater awareness of the practice of FGM and people are perhaps less inclined to believe that cultural beliefs are sacrosanct. We must of course respect other cultures and traditions, but that does not mean accepting the unacceptable. FGM is a brutal practice. It cannot be supported on cultural, medical or other grounds.
Of course, legislation alone will not bring an end to this abhorrent violation of women's bodies. Much still needs to be done both here and abroad to educate the practising communities about the serious health consequences and persuade them to abandon mutilation. I hope that the Government will continue to support those organisations which already do such valuable work with the practising communities. But the Bill sends a powerful message. It is a reflection of the seriousness with which the problem of FGM is viewed and is a welcome step in the right direction. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Baroness Rendell of Babergh.)
5.7 p.m.
Baroness Gould of Potternewton: My Lords, I must first declare an interest as the president of FORWARD, one of the organisations to which my noble friend Lady Rendell referred, which works in the field. Secondly, I should like to thank her for promoting the Bill in the House and for the way in which she has presented it today. I should also like to thank the Government for their support for the Bill.
I have one regret, which is that all the speakers in this debate are women. It is important that men take part in this issue. When I introduced a debate in your Lordships' House in November 1998, I was extremely gratified that half of the speakers were men. It is a pity that that is not the case today. Nevertheless, I know that we have their support in what we are trying to do.
When I introduced the Bill in November 1998, it was an attempt to see how far we had gone to implement the Prohibition of Female Circumcision Act 1985—an Act which was passed due to the persistence of some Members of your Lordships' House.
I was prompted to revisit the subject after listening to Waris Dirie, a UN special ambassador on the subject, at a meeting organised by the All-Party Group for Population, Development and Reproductive Health. Waris is a model born in Somalia. She described how she was subject to the ordeal at the age of five and promised in marriage to a man aged 60 and how she then fled the village at the age of 14 and sought refuge in Britain. She said of the campaign to outlaw all female genital mutilation:
"I have seen girls suffer and die from FGM. I was strong enough to survive and I want to make the difference. I can talk because I have experienced the pain".
640
The Bill is a step in her campaign to bring to justice those who help to perform such terrible acts.
Credit must also be given to the all-party group for, as my noble friend said, holding a series of hearings on the subject after listening to Waris Dirie. I was also a member of the panel on those hearings. Its crucial recommendation was that the title of any new Act should refer to female genital mutilation, not to female circumcision. My noble friend was right in saying that it was a very important change, because the reality is mutilation. It in no way compares to male circumcision; nor, as suggested by Germaine Greer, is it a form of cosmetic surgery.
Clause 1 provides a definition of FGM, but the details given by my noble friend express more clearly the reality and show how grim the act is. Although the health consequences vary depending on the procedure used, they are usually serious. They range from damage to the external reproductive system to psychological scars. The practice can leave a lasting mark on the life and mind of the girl who has undergone such a trauma. Such psychological complications may be submerged deep in a child's subconscious and can cause behavioural problems. Girls hold on to their secret, feeling guilty and isolated, and grow up suffering from a feeling of incompleteness, anxiety and depression. It is important for those girls that the public debate continues and that it takes place out of the shadows.
What are the justifications for carrying out the barbaric practice of unnecessary painful mutilation of the body, euphemistically known as "cutting the rose"? It is believed to ensure virginity until marriage, to maintain family honour and to ensure a sense of belonging to the group that the girl comes from. It is a control of women's sexuality, keeping them subordinate to men. Women are made to believe that it will increase their husband's enjoyment of the sexual act, irrespective of the fact that it is extremely painful.
My noble friend referred to the 130 million girls at risk of undergoing the practice in some form. Most girls and women affected live in Africa, but, as she said, FGM is increasingly practised in western Europe. With the movement of people to Europe from countries where the practice is endemic, the practice comes with them. It is a cultural practice that people may hold on to as a perceived important part of their identity once they leave the country. We must consider that very seriously when we negotiate with communities and discuss the dangers of the practice that they are undertaking.
As my noble friend also said, the exact number of refugees and immigrants from practising countries and in communities in the UK is not known. Based on figures extrapolated from the 1999 Labour Force Survey, FORWARD estimates that around 6,500 girls under the age of 16 are at risk from FGM. One of the causes has been the ability to take girls out of the

641
country. It is therefore encouraging that the Bill agrees fundamentally with the recommendation of the all-party group when it said:
"UK residents who take girls abroad for FGM can be prosecuted under the UK law on their return, regardless of the legal status of FGM in the country where the mutilation took place".
That is of crucial importance.
Equally, it was necessary to know whether the extradition legislation currently going through the House would apply. For that reason, during the passage of the Extradition Bill, the noble Lord, Lord Hodgson, the noble Baroness, Lady Anelay, who will speak later, and I took the opportunity to get clarification from the Government of their attitude to the extradition of persons who have committed offences under the Bill. We felt it was important that there be extradition to the UK after conviction if a sentence had been imposed for a crime in the UK under the Act.
The amendment that we tabled identified FGM as a specific offence which should be classified as conduct that constitutes an extraditable offence if it occurs in the UK. Furthermore, it identified that if the offence of FGM occurred outside the country, it would still amount to an extraditable offence. The important question was asked as to whether the powers available under the Extradition Bill would be used in practice. We were quite encouraged by the Minister's response. He said:
"We hope that the police will pursue such matters vigorously. As with any extradition case, there can be no guarantee that the request will be successful. However, that is not a reason not to have the power in statute to allow us to pursue it. The penalties that FGM already attracts mean that it is always extraditable".—[Official Report, 10/17/03; GC 138.]
That was encouraging and very good news indeed, partly because of the point made by my noble friend about there having been no prosecutions in this country under the 1985 Act. Legal action against FGM is also possible under the Children's Act 1980, so the courts could, if they wished, prevent the removal of a child from the UK for the purposes of carrying out the mutilation abroad. I appreciate that one cause of inaction was the difficulty of getting evidence, but the other cause was the loophole in the previous Bill.
FGM is a fundamental human rights issue with adverse health and social implications. It violates the rights of women and girls to bodily integrity. It is vital for those at risk that the new law is fully implemented and that the Government, the police and the agencies involved work together to ensure that that happens and that this abhorrent practice is eliminated.
5.16 p.m.
Baroness Finlay of Llandaff: My Lords, the Medical Women's Federation, of which I am a past president, has for many years called for action to prevent female genital mutilation. I feel humbled to follow the noble Baroness, Lady Rendell of Babergh, and the noble Baroness, Lady Gould of Potternewton, who has
642
campaigned to outlaw this barbaric practice for many years and to try to safeguard the girls in Britain who are at risk of female genital mutilation.
Female genital mutilation is just that—it is excessively mutilating. I have thought long and hard about whether to outline what happens. I feel that, as a doctor, not to do so would be to comply with the myth that has sustained denial about how terrible female genital mutilation really is. However, I sympathise with Hansard who have to transcribe our words.
The girls, usually between seven and nine years of age, are subjected to forcible restraint and, without any anaesthesia, have their genitalia operated on. Do not forget that, anatomically, this area is highly innervated with sensory nerve endings, so the pain is excruciating. Girls have died from the force of being restrained. The same blade is often used on girl after girl. There is no aseptic technique and there are deaths in Africa from infection, including from gas gangrene. Since HIV in children is now increasing through vertical transmission, cross infection must also now be considered a risk.
The mutilation ranges from cutting off the skin over the top of the clitoris, to completely cutting off the labia minora and even the middle third of the labia majora—the inner and outer lips of the vagina—and stitching and/or clamping the vaginal wall closed around a piece of wood, so that just urine and menstrual blood can escape, although stagnant pools of blood often remain behind the scars. If the girl does not die at the time from haemorrhage or infection, the scarring is horrible. When pregnant, these women have terrible labours, with the risk of major tears and the resulting incontinence of faeces.
Cutting the clitoris is done to reduce the woman's sexual desire and, hence, to ensure her virginity until she is married. The more extensive operations involve stitching the vagina and have the same aim of ensuring chastity until marriage. The reduction in the size of the vaginal opening is supposed to increase the husband's enjoyment of the sexual act. It does not. Penetration may be difficult and very painful for both partners, if possible at all. Sometimes, these couples present as infertile, but actually penetration has never occurred.
From the family's point of view, social and religious pressures mean that the operation ensures a satisfactory bride price. An eligible man would not consider marrying a girl who had not had the operation. The practice is widespread in Africa, especially in Somalia, among all communities, not only the Muslim groups. By and large, female genital mutilation is carried out in Western countries among immigrants from African countries. Conservative estimates in the UK published in the British Medical Journal suggest that about 10,000 girls are currently at risk or have been mutilated. Yet, no prosecutions have been brought, as the previous speakers have said. That demonstrates that, sadly, the previous legislation proved impotent.
It is estimated that about 32,000 to 42,000 girls are at risk in France and possibly 168,000 in the United States. It is not a minor problem. The operation can be

643
regarded as an exercise in male supremacy for purported sexual pleasure. Many genitally mutilated women who have had their daughters mutilated to make them marriageable report bitterly regretting it.
This is a major issue for male education to alter men's attitudes and to safeguard the lives of girls. For too long, our society has been cowardly in addressing just how terrible female genital mutilation is. The Bill should act as a template for other governments. It must move unhindered and with speed.
5.20 p.m.
Baroness Gibson of Market Rasen: My Lords, I am pleased to support the Bill. I congratulate my noble friend Lady Rendell of Babergh on piloting it through the House.
I decided to speak in the debate because I can still remember my reaction to learning about female genital mutilation over 30 years ago. At that time, I worked in the equality department at the TUC. It was one of my jobs, as a new assistant, to open the post and pass on the most important letters to the head of department. One morning, I opened an envelope to see a circular that had obviously been typed on an old-fashioned typewriter and had been badly reproduced. My first instinct was to put it on one side. As I glanced at it, the words "female genital mutilation" caught my eye, and I read it.
I could not believe what I read. I could not believe that such mutilations took place. I was shaken to the core to learn not only that they took place but that female relatives of those who were mutilated took part in the proceedings. Such was my naivety at that time. My head of department told me that she had first learnt about the practice at international conferences of women. She told me that it was often difficult to discuss the issue because many women from the countries in which it was practised defended it as being part of their culture and nothing to do with other nations and other cultures.
Since that time, I have discussed the issue on many occasions. One occasion sticks in my mind. I met a young African woman at a women's international conference in Geneva. She was a professional woman in her late 20s, and she told me of her personal experiences. She had been born and brought up in a village in which female genital mutilation was the norm for the girls and women living there. She remembered vividly the agony and the bewilderment that she had felt during and after the mutilation. Her bewilderment came about because her mother and her aunt assisted in the excruciating process. She had many health problems throughout her teens because of the mutilation.
In her early 20s, she became a teacher, moved to a town and met and married a teacher from the first school in which she taught. They had two daughters and were determined that no form of female genital mutilation would be performed on them. When the girls were six and eight, they went to stay with their maternal grandmother during the school holidays. After a few days, the parents went to bring them home.
644
They found two little girls with faces swollen from crying. The grandmother, with others, had performed the mutilation on the children, despite being fully aware of the parents' wishes. The young woman told me that she could not forgive her mother for what she had done, although she recognised that her mother genuinely believed that it was necessary for the girls because, otherwise, their prospects of marriage would be nil.
I tell your Lordships that story to illustrate how female genital mutilation is perpetrated in some communities and because many women and girls from the same community as the young African woman to whom I spoke now live permanently in this country.
I know that we already have laws to cover these practices, but they obviously need strengthening. This Bill does that. As my noble friend said, the Bill alone will not be sufficient. It must be accompanied by education and explanation of why it is necessary, especially aimed at the immigrant communities who practise the mutilations. The Minister in the other place said:
"Educating them about the dangers and unacceptability of such a brutal practice is the best way to break the cycle of mutilation … Between Royal Assent and the legislation's being brought into force, health professionals and others will work with those communities that practise FGM in order that they become aware of its provisions".—[Official Report, Commons, 11/7/03; col. 1563.]
I believe that that is the way forward. I support and welcome the Bill.
5.25 p.m.
Baroness Trumpington: My Lords, if one speaks in the gap, I believe it is de rigueur to ask a question. I assure your Lordships that I have one. Before I ask it—I am not going to make a speech even on a subject about which I feel passionately—perhaps I may go down memory lane to 1985 when the Prohibition of Female Circumcision Act, sponsored by the noble Baroness, Lady Masham, became law. I am sad that the noble Baroness could not be here today. Incidentally, the noble Baroness, Lady Gould, may be interested to know that several men spoke in the course of that Bill. Lord Kennett twice introduced a Bill, which, through no fault of his, failed to get through before the Bill sponsored by the noble Baroness. Lady Masham, was successful.
The noble Baroness, Lady Masham, received full support from the government of the day. Today, as a Member of Her Majesty's loyal Opposition, I should like to congratulate the noble Baroness, Lady Rendell, on raising this delicate subject. Having re-read the Third Reading of the 1985 Bill, with which I was associated, I am amazed that it was such a scratchy, bad tempered affair. However, there were some excellent speeches displaying real knowledge of the subject, both in this country and elsewhere. Those speeches are as relevant today as they were then. I wish this important Bill every success. My only question is: why is Scotland excluded?
5.27 p.m.
Baroness Thomas of Walliswood: My Lords, first, I should like to thank the noble Baroness, Lady Rendell of Babergh, for introducing this useful Bill today. She is a doughty campaigner and champion of the cause of ending this noxious practice, which the noble Baroness, Lady Finlay of Llandaff, described so vividly and painfully to us. As the noble Baroness said, the Bill puts right some defects in existing legislation as regards the horrific and totally unacceptable practice of female genital mutilation.
First, the Bill changes the description of the practice from female circumcision to female genital mutilation. I thoroughly support that. The medical value of circumcision for boys may be debatable. But, as a physical intervention, it cannot be compared to the practice of cutting, partial removal and/or sewing up of the external female genitalia, which is what is meant by the ostensibly benign phrase, "female circumcision". In this case, it is highly desirable that the law should call a spade a spade.
Secondly, the Bill removes a loophole in existing legislation. It enables people who take their children abroad to obtain genital mutilation to be prosecuted in this country, whether or not it is an offence in the country in which the mutilation takes place. As the noble Baroness, Lady Rendell, said, this is an extension of the principle of territoriality. One may be against extra-territoriality in some cases, but this is a case in which it is justified.
As my honourable friend Sandra Gidley put it in a debate on this Bill in another place, female genital mutilation is subjugation of the female to the male. It is also child abuse. I do not accept that there should be any reluctance to take the action necessary to eradicate this practice, even though I can easily understand that some professionals may be afraid to intervene because such action could lay them open to charges of racism.
Thirdly, I support the provision to increase the maximum penalty provided for the offences of procuring or carrying out female genital mutilation. This additional, extended penalty emphasises the seriousness of the offence in the eyes of the law and of citizens in the United Kingdom.
In sum, we support the Bill and will do nothing to impede its progress through the House. However, there are some other considerations slightly beyond the remit of the Bill itself which I wish to raise briefly in the hope that the Minister may be able to respond to them positively when she intervenes in the debate.
I turn to the lack of prosecutions brought under the Prohibition of Female Circumcision Act 1985, to which several other speakers have referred. This failure to implement the existing legislation has led to suggestions that there is little sense in increasing penalties for crimes which are never brought to court. It may be that the broadening of the scope of the legislation proposed in this Bill will in itself make prosecution more likely because of the greater difficulty of procuring genital mutilation abroad. Alternatively, the increase in penalties may bring
646
home to people society's total condemnation of this disgraceful practice and thus act as a deterrent. I am sure we all hope that this will be the case.
On the other hand it seems that attitudes differ from country to country in their attitude towards the prosecution of those who procure or practise female genital mutilation. The practice is most widespread in Africa and, to a lesser extent, in some Arabic countries and parts of south-east Asia. There is a growing movement within affected nations, encouraged by the international community, including the United Kingdom, to try and stamp it out, with a target date for eradication of 2010.
Several of the countries in which the practice is prevalent have already introduced legislation to make female genital mutilation illegal. So have a number of developed countries, into which the practice has been introduced as a result of population migration driven by war, internal disturbance, starvation or other causes. These countries include Australia, Canada, New Zealand, Norway, Sweden and the United States, as well as the United Kingdom. Interestingly, while no prosecutions have been brought in any of those developed countries, prosecutions or arrests have taken place in Burkina Faso, Mali, Egypt, Ghana and Senegal. Further, in France, which has no specific legislation outlawing female genital mutilation, successful prosecutions have been brought under existing laws prohibiting acts of violence against children.
My first request to the Minister is that she should ensure that good codes of practice are developed and training programmes set up to encourage and enable the police, social services and the judicial system to tackle this kind of violence against children exactly as they would any other form of violence; namely, with the seriousness which it deserves.
Bearing in mind the efforts being made in other parts of the world to change hearts and minds, my second request is for the Minister to tell us when an effective outreach programme will be in place to persuade people in affected communities in this country to abandon this terrible practice. It is a crime against human rights, including the rights of the child, as well as against United Kingdom law.
I am old enough to remember being taught about the terrible practice of foot binding in China. Like female genital mutilation, this was a crime against the rights of the woman and of the child, and a cultural practice undertaken to please men. It was not fully abandoned until the Communist revolution in China. I hope that this Government, along with employees in all the relevant areas of the public services, will now do all in their power to eradicate this practice in our country. That would be the best way to make the Bill as effective as its promoters and supporters would wish.
5.35 p.m.
Baroness Anelay of St Johns: My Lords, I welcome the opportunity to debate this important issue. I offer my personal and my party's congratulations to the

647
noble Baroness, Lady Rendell, on her sponsorship of the Bill. I should also like to put on the record my appreciation of the important work on this issue that has been carried out over several years by the noble Baroness. Lady Gould of Potternewton. As she mentioned. in earlier debates she tabled amendments to the Extradition Bill, together with my noble friend Lord Hodgson and myself—but she was very much the leading light—which gave us the opportunity to debate these issues. It should be noted that in that debate not a single voice was raised in opposition to the objectives of this Bill. Like the noble Baroness, Lady Gould, I should also like to put on the record my thanks for the thoughtful way in which the Minister, the noble Lord, Lord Filkin, responded to the amendments on behalf of the Government.
Like others who have spoken today, I recognise the sensitivity of the issue, given that we are talking about some deeply held, traditional cultural practices which affect some of the most vulnerable groups in society. We are all in agreement that FGM is a serious problem demanding an effective multi-agency response.
All forms of FGM are mutilating and carry serious health risks. However, the immediate and long-term health consequences of FGM vary according to the type and severity of the procedure performed. Immediate and short-term health implications, as we have heard, include severe pain and shock, tetanus and other infections, extensive damage to the external reproductive system, vaginal and pelvic infections, and even immediate fatal haemorrhaging. Last but not least, as we have heard, there can be lasting psychological damage.
We have also heard how FGM can cause complications later on in life in pregnancy and childbirth. including an increased risk of stillbirth or haemorrhaging from internal tearing. It doubles the risk of the mother's death in childbirth and increases by three or four times the risk of the child being stillborn.
The roots of FGM are indeed complex and numerous. Indeed, it has not even been possible to determine when or where the tradition originated. However, I agree with earlier speakers that it is definitely not, as is sometimes stated, an Islamic issue. The practice of FGM crosses religious, ethnic and cultural lines. In cultures where it is an accepted norm, it is practised by followers of all religious beliefs, as well as by animists and non-believers.
As we have heard, FGM is carried out for sociological reasons, such as initiating girls into womanhood in their society, and sometimes for misguided religious reasons. It is carried out for dangerously misunderstood hygiene and aesthetic reasons; to lower female sexual desire; to maintain chastity and virginity before marriage; and allegedly to increase male sexual pleasure. Ironically, it may also be believed by some, we are told, to enhance fertility and chances of child survival, which is the exact opposite of what is really the case. What is clear is that those varied reasons stem from traditional power inequalities and ensuring the compliance of women to the dictates of their communities.
648
But above all else, as noble Lords have made clear, this is an issue about children. FGM, with its serious and sometimes devastating consequences, is carried out on children from when they are only a few days old into adolescence. We have heard moving stories today from the noble Baroness, Lady Gibson of Market Rasen.
Let us not doubt that FGM is child abuse. As such, it requires carefully planned and sensitive interventions into the family situation. Health practitioners and the organisation Forward, to which the noble Baroness, Lady Gould, referred, do valuable work in campaigning against this practice among African communities in Britain. However, they believe that FGM is still a significant and growing problem within the United Kingdom and that we will fail to tackle it unless we ensure that our agencies are equipped to deal with the problem here in our own backyard.
Mention has been made of the fact that in 1985 Parliament legislated to outlaw FGM, although it was referred to as female circumcision at that time. I am pleased that my noble friend Lady Trumpington spoke in the gap today to remind us of the fact that great support was given to that Bill by the noble Baroness, Lady Masham, and that it was supported by the then Conservative government, just as I am delighted to see that this Bill is supported by the present Labour Government.
The question we have to ask—it has been posed today—is whether the Bill will increase the likelihood of successful prosecutions for FGM in Britain. It is a mark of sorrow for all of us that no prosecution has been brought, although we know that FGM has occurred.
We have to recognise that there are already great difficulties in communicating the law to immigrant communities, and there are further difficulties in taking action to protect girls from this practice. An increase in the maximum penalty could be academic if knowledge of the offence is poor and prosecution remains impossible.
I agree wholeheartedly with the noble Baronesses, Lady Rendell and Lady Gibson of Market Rasen, that the Bill must be accompanied by work with communities to explain the law and address their knowledge and beliefs. When we strengthen provisions against people who carry out FGM, we must also ensure that community-based local strategies provide education and support. Several grass-roots community organisations and interest groups such as Forward are best placed to deliver those strategies. I invite the Minister to pledge her support for those organisations and to reaffirm the need to address underlying cultural attitudes if the law is to have a role in promoting change.
The Bill also seeks to address the issue of UK-based families organising to send girls abroad so that FGM can be performed on them. Under the Criminal Justice (Terrorism and Conspiracy) Act 1998, it is an offence for parents to take their daughters abroad to have them mutilated if FGM is also an offence in the

649
country to which they are travelling. However, sadly, the Act is of no use where FGM is not illegal in the destination country. We need to remember that.
The measures we are debating are vital in that they introduce a new offence of assisting a non-UK person to mutilate a girl's genitalia overseas. The noble Baroness, Lady Gibson, referred graphically to a situation in which a family resident in the UK finds that a girl has been mutilated overseas. That case, sadly, would still fall outwith the Bill because the parents did not arrange for the girl to go overseas with that objective. However, the Bill will stop persons who are resident here being able with impunity to send a child overseas to have FGM performed, as they will face a penalty.
It has, I hope, been clear from my speech that I welcome the Bill as a whole. It is a valuable opportunity to improve the protection of girls and women in the United Kingdom from FGM. It is a welcome reflection of the importance of this issue and the seriousness with which it deserves to be treated. I hope that it may be helpful to the noble Baroness, Lady Rendell, if I make it clear that I have no intention of tabling any amendments to the Bill. I wish it the speediest of journeys on to the statute book.
5.42 p.m.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, it is a great pleasure to follow the noble Baroness; we have had unanimity of voice in this House.
In the spirit of the debate so far, I begin by congratulating the noble Baroness, Lady Rendell, on her sponsorship of the Bill. It is an extremely worthwhile piece of legislation, which has the Government's full support. If I may, I should like to comment on the sentiments expressed by the noble Baroness, Lady Gould, when she noted that we are few in number. Notwithstanding the fact that we are few, we are many in sentiment and we few, we happy few, we band of sisters, are able to have our voices heard.
I would particularly like to take the opportunity to pay tribute to my honourable friend Ann Clwyd for giving priority to this important issue in another place, and to all those who have contributed to the successful passage of the Prohibition of Female Circumcision Act 1985, not least, as has already been said, the honourable Marion Roe in the other place, who was the driving force behind it. It is a testament to their combined efforts that we are able to bring forward these measures today in an atmosphere of much less opposition.
Sadly, some of the noble Lords concerned are no longer with us but they, and others, particularly the noble Baronesses, Lady Masham and Lady Trumpington, laid the foundation for what we are doing today. I am particularly delighted that the noble Baroness, Lady Trumpington, is in her place and that she took the opportunity to speak in the gap.
The noble Baroness asked, "What about Scotland"—to which I can say, "I am here". The criminal law has been devolved to Scotland and, in the
650
past-devolution era, the convention is that we should not legislate for Scotland in devolved areas of the law, unless the Scottish Parliament passes a Sewel Motion allowing us to do so. We understand that the Scottish Parliament intends to introduce similar legislation of its own on this matter. I hope that gives the noble Baroness some comfort.
I also acknowledge the work of colleagues of all parties from the All-Party Parliamentary Group on Population, Development and Reproductive Health. The group has done much to raise the profile of female genital mutilation. Indeed, some of its recommendations led to this very Bill.
I endorse wholeheartedly and without reservation, and I pledge my support as the noble Baroness, Lady Anelay, invited me to do, in relation to all matters in relation to this debate. Female genital mutilation is an extremely painful and harmful practice that has no religious significant whatever. It was graphically and almost painfully described by the noble Baroness, Lady Finlay of Llandff, in her medical exposition of what the practice entails. It is indeed horrific.
The Government roundly condemn the practice and want to see it eradicated once and for all, both in this country and abroad. It is wholly unacceptable that we should allow a practice that can have such devastating consequences for the health of a young girl throughout her life. The mutilation and impairment of young girls and women can have no place in modern society, where equality is prized.
We all recognise that female genital mutilation may be deeply steeped in the culture and tradition of those communities that practise it. Several noble Baronesses have mentioned that today. However, respect for other cultures does not include condoning or ignoring such a terrible violation of human rights—in particular, the right of the child to enjoy the highest attainable standard of health, as set out in Article 24 of the United Nations Convention on the Rights of the Child, and the right of women under the Convention on the Elimination of All Forms of Discrimination Against Women not to be discriminated against because of their gender.
I shall confine myself to the questions asked by the noble Baronesses, Lady Thomas of Walliswood and Lady Anelay. The 1985 Act, which was one of the first in the world to make female genital mutilation explicitly illegal, was an important and necessary step in the fight to eradicate this abhorrent practice. But in the light of what we now know—that parents of some communities are deliberately evading our law by taking girls abroad for female genital mutilation—it does not go far enough. It is essential that the law is strengthened to protect girls from mutilation, even beyond these shores. I hope that the noble Baroness, Lady Thomas, can see it as a positive that people are removing their children from this country, as it shows an appreciation that they cannot do it with ease here.
Some of those who have debated the provisions in another place, together with the noble Baronesses, Lady Thomas of Walliswood and Lady Anelay, question the wisdom of strengthening legislation that

651
has yet to result in a prosecution. As we have heard, among the countries that have specific laws against female genital mutilation, the UK is not alone, regrettably, in having no prosecutions. One reason may be that people can evade our law by going abroad, which is what the Bill seeks to address.
The nature of the offence, the vulnerability of its young victims and the conspiracy of silence within the practising communities are also barriers to prosecution. In practice, prosecution can occur only if an offence is reported to the police, a referral is made to the Crown Prosecution Service and there is sufficient evidence to bring criminal proceedings. The willingness of victims and others to come forward to give evidence in court is crucial. We need to create a climate in which victims will feel able to come forward and receive the help and support they need to give their best evidence.
Above all, we need to change the way in which people think about female genital mutilation. It is a sad fact that, as the noble Baroness, Lady Gibson, so graphically described, older women who themselves are victims of female genital mutilation are often the strongest advocates for the continuance of the practice. Such attitudes are deeply ingrained and it will take more than legislation to change them. That is why, as noble Lords have said, legislation must be accompanied by raising awareness of the law and a continuous programme of education aimed at the grassroots level.
On the domestic front, the Home Office and the Department of Health already help to fund two of the voluntary organizations—which have already been mentioned—that do such valuable work to combat female genital mutilation: the Foundation for Women's Health Research and Development (FORWARD) and the Agency for Culture and Change Management. Both organisations work closely with health, education and child protection agencies and of course with the practising communities themselves to promote understanding and encourage solutions to the problem.
Our stand against female genital mutilation is supported by the major bodies in the medical profession, which have issued guidance or position statements on FGM. Women and girls from the FGM-practising communities have the same right of access to NHS services as everyone else ordinarily resident in the UK. It is important that they are treated sympathetically. Health professionals have a particular role to play in dealing with FGM—which is why I was so glad to hear the comments by the noble Baroness, Lady Finlay. However, it also involves all professionals looking at this issue together.
Internationally, many are working in a large number of countries, particularly Africa, to eradicate female genital mutilation and to provide adequate healthcare for girls and women affected by it. We are supporting their work. The Department for International Development seeks to reduce the incidence and consequences of FGM by ensuring worldwide awareness of the practice, funding research
652
and supporting activities and projects designed to change behaviour in the long term. The Foreign and Commonwealth Office is also working through our bilateral programmes and the UN and other international bodies to encourage countries which have not done so to ratify the Convention on the Rights of the Child and the Convention for the Elimination of Discrimination Against Women and to implement the agreements made at the 1995 Beijing and the 2000 Beijing + 5 Women's Conferences.
In short, the Government believe that educating the practising communities, both here and abroad, to abandon FGM is the best way forward in breaking the cycle of mutilation. We do not underestimate the difficulties of ending centuries of a practice that is deeply ingrained in the social fabric of those communities. However, I should like to reassure all noble Lords that the professions and the agencies are determined to look at this practice, and we now have many more and much better tools with which to do so. I, too, wish the Bill Godspeed.
5.53 p.m.
Baroness Rendell of Babergh: My Lords, I am profoundly grateful to all noble Lords—perhaps I should say all noble Baronesses—who have spoken this afternoon and to my noble friend the Minister who was, as always, gracious, eloquent and supportive. The speakers are all distinguished Members of this House and they made interesting, informed and above all compassionate speeches. I appreciate my noble friend the Minister's reference to us as a band of sisters.
I should like particularly to single out the contribution of my noble friend Lady Gould, who has been an untiring campaigner over several years towards this further FGM Bill. It is a subject dear to her heart. She regretted the absence of male speakers, and there I am afraid that I must agree with her.
As a doctor, the noble Baroness, Lady Finlay, gave a detailed description of these harrowing procedures and outlined familial traditions which lead to them. My noble friend Lady Gibson gave a vivid picture of her own reaction when she first learned what FGM was and told a typically horrible story to illustrate it. The noble Baroness, Lady Trumpington, who was a Minister during the passage of the 1985 Bill, spoke eloquently about the Bill. The noble Baroness, Lady Thomas of Walliswood, made a point of supporting the proposed severe penalty and asked some pertinent questions to which my noble friend the Minister has replied.
A cogent contribution was made by the noble Baroness, Lady Anelay of St Johns, when she underlined the horrible consequences of genital mutilation and pointed out that FGM is not an Islamic practice. She stressed its child abuse aspect.
Time is getting on and we are running late. I shall not detain noble Lords any longer. We have had a fruitful and, I think, unusual debate. When this Bill finally goes through, those who have supported it will, let us hope, have the satisfaction of seeing a large

653
number of women, hitherto helpless victims, saved from a wretched fate and a lifetime of pain and discomfort.
I ask the House to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Patients' Protection Bill [H.L.]
5.56 p.m.
Read a third time.
Clause 1 [Offence]:
Baroness Knight of Collingtreemoved Amendment No. 1:
Page 1, line 5, leave out "consultant" and insert "doctor"
The noble Baroness said: My Lords, much time has been taken previously with very careful debate on all the amendments. I have no wish to detain the House longer than is absolutely essential. I merely say that this amendment came into being as it was pointed out that a patient may be looked after by a doctor rather than a consultant. That is the top and the bottom of the argument for the amendment. I beg to move.
Baroness Farrington of Ribbleton: My Lords, this subject is extremely controversial and has raised difficult ethical questions for noble Lords of all parties. The Government continue to give careful consideration to the issues involved and welcome the public debate but we have no plans to change the current law. My noble friend Lady Andrews, who is unable to be here today due to family illness, made that clear throughout the debate on the Bill. She also commented on specific problems with its drafting. The amendment does not address the internal inconsistency in the Bill about whom it is directed at. The offence in Clause 1 applies to,
"any person responsible for the care of a patient",
but the duty of care in Clause 3 applies to,
"all those providing nursing care for a patient".
The amendment obliges only the doctor in charge to record relevant decisions in the notes.
Baroness Knight of Collingtree: My Lords, I merely say to the noble Baroness that the matter is perfectly clear in other amendments to the Bill which mention the need for those who are looking after the patient to be sure that food is administered. The whole purport of what we are trying to do is perfectly clear. I ask the House to accept Amendment No. 1.
On Question, amendment agreed to.
Clause 2 [Exceptions to section]:
Baroness Finlay of Llandaffmoved Amendment No. 2:
Page 2, line 8, leave out subsection (4) and insert—
"(4) For the purposes of subsection (3), a patient lacks capacity in relation to the withdrawing or withholding of sustenance if at the material time in relation to the withdrawing or withholding of
654
sustenance he is unable to make a decision for himself because of an impairment or disturbance in the functioning of the mind or brain.
(5) It does not matter whether the impairment or disturbance is permanent or temporary.
(6) For the purposes of subsection (4), a person is unable to make a decision to withdraw or withhold sustenance for himself if—

(a) he is unable to understand the information relevant to the decision,

(b) he is unable to retain the information relevant to the decision,

(c) he is unable to use the information relevant to the decision as part of the process of making the decision, or

(d) he is unable to communicate the decision (whether by talking, using sign language or any other means).

(7) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(8) A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success.
(9) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(10) The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a) deciding one way or another, or

(b) failing to make the decision."

The noble Baroness said: My Lords, there has indeed been much discussion on the wording of the Bill, particularly relating to competence. I do not wish to detain the House further. I beg to move.
Baroness Farrington of Ribbleton: My Lords, it may help the House if I speak to Amendments Nos. 2 and 3 which both deal with the area on which I wish to comment. The Mental Incapacity Bill is currently going through pre-legislative scrutiny. This amendment seeks to introduce a statutory definition of capacity and incapacity without allowing due parliamentary scrutiny in the widest context. It also strays into new legal territory.
My comments also apply to Amendment No. 3.
Lord Swinfen: My Lords, surely parliamentary scrutiny of the amendment is taking place at this very moment.
6 p.m.
Baroness Farrington of Ribbleton: My Lords, I am sure that the noble Lord, with his wide knowledge of legislative matters, will agree that due parliamentary scrutiny may not necessarily be achieved within the context of one small debate when Parliament is giving the whole process of pre-legislative scrutiny to this very issue.
Baroness Finlay of Llandaff: My Lords, I tried to ascertain prior to the debate that, should the wording prove at variance with the decisions on the Mental Incapacity Bill, a clause would be inserted to amend the wording of this Bill. As a relative newcomer to legislation and someone without legal training per se,

655
I was hoping to receive some reassurances before the debate. The timing is certainly unfortunate, but that is the timetable for us to look at legislation in this House.
On Question, amendment agreed to.
Baroness Knight of Collingtree Baroness Knight of Collingtree moved Amendment No. 3:
After Clause 2, insert the following new clause—
"PRESUMPTION AGAINST LACK OF CAPACITY
( ) For the purposes of this Act, a person must be assumed to have capacity unless it is established that he lacks capacity.
( ) Any question in any proceedings, under this or any other Act, as to whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities."
The noble Baroness said: My Lords, there is nothing reprehensible about advance guessing of what may become law in other parts of the legislative system. There are people trying to frame the draft Mental Incapacity Bill, which is not easy. I sit on the Select Committee studying that matter. I see absolutely nothing wrong in suggesting that a person must be assumed to have capacity unless it is established that he lacks capacity, simply because that is what the future Mental Incapacity Bill might say once it is through the Select Committee and follows the normal process of getting on to the House's agenda to be debated further.
Unless there is seriously something wrong with the amendment, I urge the House to accept it. I beg to move.
Lord Elton: My Lords, I do not want to detain noble Lords for more than a moment, but I wanted to observe that the noble Baroness, Lady Finlay of Llandaff, had put her finger on it. It would be perfectly possible, when the Bill that is being considered by the Joint Committee comes before the House, to include a clause amending this Bill. In the meantime, this Bill does not have a tremendous future but it provides a useful template to be considered when the time comes.
On Question, amendment agreed to.
Clause 3 [Duty of care]:
Baroness Finlay of Llandaffmoved Amendment No. 4:
Page 2, line 13, leave out "offer appropriate sustenance to the patient" and insert "ensure the patient has access to appropriate sustenance"
The noble Baroness said: My Lords, in speaking very briefly to the amendment, I would like to pay tribute to the contributions throughout our debates from the noble Baroness, Lady Andrews, who is
656
unfortunately not here today. Her comments, both in the Chamber and outside it, have been extremely helpful. She has taken an inordinate amount of time to provide very sound and wise advice. The amendment was drafted in the light of that advice. It is not her wording but that of the noble Baroness, Lady Knight of Collingtree, and myself.
The discussions have gone on. I hope that the amendment is acceptable to the House. I beg to move.
Lord Swinfen: My Lords, I have one question for the noble Baroness. Does her amendment cover circumstances in which a patient needs to by physically assisted with feeding?
Baroness Farrington of Ribbleton: My Lords, with regard to Amendment No. 4, I make it absolutely clear that the Government fully agree that any neglect of patients is totally unacceptable. They believe it is important to maintain the "best interest" principle as the basis for making decisions about the treatment of patients who lack capacity. It is unclear whether the definition of "appropriate sustenance" in the amendment will be the same as what is in the patient's best interest. It is also unclear who will decide what sustenance is appropriate.
We believe there is a problem here which we understand the amendment seeks to resolve. We are not satisfied that it resolves the issue.
Baroness Finlay of Llandaff: My Lords, I am grateful to the noble Baroness, Lady Farrington, for her comments. I have discussed the matter with members of my profession. Their understanding is that all situations will be covered. Nothing can ever be passed into legislation that will decrease any obligation to provide the best of care to any patient, however vulnerable, in any situation. That is completely in line with the Government's intentions throughout all they have delivered into the NHS. I commend the amendment.
On Question, amendment agreed to.
Baroness Knight of Collingtree: My Lords, I want to reiterate the thanks that have already been given. Many thousands of people outside this House are praying that the Bill will become law. I am most grateful to the House for the consideration that has been given. I beg to move that this Bill do now pass.
On Question, Bill passed, and sent to the Commons.
House adjourned at eight minutes past six o'clock.

  Council Tax and Housing Benefits
  Council Tax and Housing Benefits
  Small Businesses: Regulatory Burden
  Small Businesses: Regulatory Burden
  Employment
  Employment
  Iraq: Costs of Military Campaign
  Iraq: Costs of Military Campaign