Sitting of 23 February 2004

Preamble
The House met at half-past Two o'clock
PRAYERS
[MR. SPEAKER in the Chair]
Oral Answers to Questions
  HOME DEPARTMENT
  The Secretary of State was asked
  HOME DEPARTMENT

    Victims of Crime
    Sue Doughty: What plans he has to widen access to compensation for victims of crime. [155743]
    The Minister for Crime Reduction, Policing and Community Safety(Ms Hazel Blears): On 12 January we issued a consultation paper, "Compensation and Support for Victims of Crime", which invites views on proposals for amending the criminal injuries compensation scheme and for encouraging the wider and more effective use of compensation orders made by the criminal courts in the victims' favour. We will consider how best to proceed when all the responses to the public consultation have been carefully analysed.
    Sue Doughty: I thank the Minister for her response. Does she agree, however, that proposals to link
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    punishment and compensation with driving offences are particularly unfair on drivers who may not commit other crimes, and that it would be better to link punishment and compensation with the crimes that take place? It is unfair to fine motorists for the purposes of compensation in respect of other kinds of criminal activity.
    Ms Blears: The hon. Lady raises an issue that has been the subject of much speculation. I can reassure her that motorists are not singled out in our proposals. In setting up a victims' fund, we have to ensure that we strike the right balance between the taxpayer and the offender. Speeding is connected to some 1,100 deaths a year in this country, so it is a significant problem. It may well be appropriate to ask motorists, together with other people who commit criminal offences, to make a small payment towards the establishment of a victims' fund that can provide much better services for victims.
    Mr. Lindsay Hoyle: Will my hon. Friend consider ensuring that people who are guilty of committing crimes contribute more, instead of relying on the state to fund those poor victims who have suffered? That would be one way to ensure that we get fairness and justice for the victims of crime.
    Ms Blears: My hon. Friend makes an important point. As he will know, restorative justice is an important thrust of Government policy: we want to ensure that those who commit offences have to make reparation to their victims and thereby have a stake in the system. Our criminal injuries compensation scheme is the most generous in the whole of Europe. We pay out more compensation than all the other EU member states added together—last year, we paid out £232 million. As my hon. Friend suggests, we must try to strike the right balance between funding by the taxpayer and what is contributed by offenders.
    Mr. Mark Oaten: Can the Minister confirm that under the Government's new

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    arrangements for compensating victims, police and other public sector workers will still be able to make claims in respect of injury at work? Last year, more than 3,000 such claims were made, many as a result of very grave actions. What would happen to those individuals under the Government's new scheme?
    Ms Blears: As the hon. Gentleman will be aware, this is a consultation document and we are consulting employers, the insurance industry and a whole range of people with an interest in the matter. People in employment can obtain compensation in three ways: they can get a compensation order from the court; they can, and always have been able to, sue for civil damages for personal injuries caused as a result of such incidents; or they can get an award through the Criminal Injuries Compensation Authority. Through the consultation process, we are exploring the right balance between contributions from employers and from offenders, as well as the right to pursue civil damages through the court system. It is a complex area. Of course we want to ensure that people who are injured in the course of their duties have the maximum amount of protection, but it may well be appropriate for employers to play a bigger role in future.

    Asylum Applications
    John Robertson: If he will make a statement on the backlog in processing applications for asylum. [155744]
    The Minister for Citizenship and Immigration(Beverley Hughes): We continue to make good progress. At the end of September 2003, the latest date for which published data are available, the number of asylum applications awaiting an initial decision had fallen to 29,100—the lowest for a decade—and I anticipate that the asylum statistics that are to be published tomorrow will demonstrate further progress. We are determined to reduce the number of outstanding applications to normal work-in-progress levels and, at current intake and output levels, we expect to do so during the course of this year.
    John Robertson: My right hon. Friend will be aware of the three asylum seekers in Glasgow who stitched up their mouths and went on hunger strike. Their applications for asylum were rejected, yet they have still not been sent back to Iran. These are not the first cases of that type, so what does my right hon. Friend intend to do about such people?
    Beverley Hughes: I am aware of the case that my hon. Friend raises. Of course, like him. I very much regret the action that the men have taken. He will understand, however, that if a person's claim has been refused and, as in this case, subsequently refused at independent appeal, they are not eligible to remain in the UK and must return home. Clearly, there are difficulties in returning people forcibly to some countries, Iran being one of them, although that does not mean that they cannot go home voluntarily. We are working hard to open up returns agreements with several countries,
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    including Iran—indeed, we are the only country so far to have returns agreements with India, Afghanistan and Sri Lanka—and we are making very good progress.
    David Davis: While we welcome the Minister's announcement of the reduction in the asylum backlog, does it not result partly from a Government policy of deliberately ignoring illegal immigrants who would otherwise claim asylum? Is she aware of reports in the national press last year that stated that an immigration service directive was in operation, calling on officials to soft-pedal on investigations into illegal immigrants?
    An immigration officer told one newspaper:
    "The message from senior bosses was that we should not 'look for illegals'. When we asked why, we were told that once they were detained, they would simply ask for asylum and we would be making their job easier."
    Can the Minister state categorically that she is confident that such a memo does not exist?
    Mr. Speaker: Before the Minister replies, I should stress that although I am reluctant to say this to Front-Bench Members, I have often told Ministers to he brief in their responses. I also expect brief questions.
    Beverley Hughes: I am glad that the right hon. Member for Haltemprice and Howden (David Davis) acknowledges that the figure of 29,000—I am sure that it will be lower by tomorrow—is much lower than 54,500, which represented the Conservative party's backlog in 1997. I categorically reject the assertion that we have asked staff to soft-pedal on illegal immigration to protect the asylum target. If the right hon. Gentleman had done his homework more thoroughly, he would realise that the evidence does not support that claim.
    Non-asylum removals have increased from 3,500 in 1997 to more than 8,000 in 2002—the latest date for published figures. Operation Reflex is co-ordinating operations against organised criminal activity and immigration and has disrupted 60 criminal groups. The number of staff in immigration enforcement and removal has increased from 1,670 to 2,500 and the budget has increased by £40 million. The question that the right hon. Gentleman has to answer is whether he can commit the necessary resources—
    Mr. Speaker: Order. I call David Davis.
    David Davis:
    Thank you, Mr. Speaker. You will have noticed that I did not get an answer—long or short—to my question. In view of that, let me ask the Minister another. After the Morecambe tragedy, the hon. Member for Morecambe and Lunesdale (Geraldine Smith) called for an inquiry into inaccurate and misleading information that the Home Office had given her. Will the right hon. Lady authorise that inquiry? Furthermore, will she empower it to determine whether the memos that I cited earlier exist? She did not answer my question about them. Are there any other policies of soft-pedalling action on illegal immigration?
    Beverley Hughes: There is already an investigation, which I have authorised, into allegations about the information. I am grateful to my hon. Friend the

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    Member for Morecambe and Lunesdale (Geraldine Smith) for accepting that I faithfully reported to her the information that I was given. However, we will check for any disparity.
    Again, I reject the allegation that there has been any ministerial instruction to soft-pedal on illegal immigration. Such an instruction would be completely counterproductive. Clearly, the way in which operational managers choose to deploy resources and make operational decisions about where need is greatest is for them. However, the overall picture shows that resources, operations and removals of illegal immigrants have increased. That is more than the right hon. Gentleman can say for the Conservative Government's record.
    Kate Hoey: My right hon. Friend will know that many Zimbabweans are seeking asylum in this country. Is she aware of the concern that some of them, who have travelled here on South African passports, are being fast-tracked back to South Africa, where they are clearly not safe because of the Zimbabwean intelligence at work there? Will she assure us that no Zimbabwean will be sent back to either Zimbabwe or South Africa?
    Beverley Hughes: No, I cannot give my hon. Friend that assurance. Clearly, if someone claims asylum here as a Zimbabwean but does so falsely on a false passport and is really South African, that person should be returned to South Africa.[Interruption]I am afraid that that is happening in some cases. Conservative Members like to talk tough to the media about asylum and what they would do, but at every opportunity during the passage of legislation on undocumented and inadequately documented passengers that we want to introduce, they fail to support such measures. Indeed, all they have done is try to dilute them.
    Norman Baker: May I suggest that the processes for dealing with people who arrive unexpectedly in our country leave something to be desired? Is the Minister aware of the front page of the Brighton evening edition of The Argus, which℄[Laughter.] Well, she ought to be, because it reported on two stowaways who arrived at Newhaven port in my constituency and were apprehended by the police and handed to immigration. The immigration service, apparently because it did not have enough staff, took the stowaways to Newhaven Harbour station and invited them to get on the train to Gatwick, changing at Lewes. Surprise, surprise—they are now anywhere but at Gatwick. Will the Minister look into that incident and find out why levels of immigration staff are so low at Newhaven, and why two people who were apprehended by the police were urged to escape into the country?
    Beverley Hughes: On the face of what the hon. Gentleman has said, that incident appears unacceptable. However, I shall qualify that. Despite the substantial additional resources that we have put in, which I have just outlined and which mean that the immigration service can take on a large number of additional operations and is now removing more people than ever before, the service must also make decisions on the effective distribution of those resources between
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    competing priorities. I do not know whether, at the time of that particular case, another operation was going on that was likely to yield many more illegal immigrants than those two. The immigration service has to make such operational decisions. However, I shall investigate the case that the hon. Gentleman raises and write to him on it.

    Shopwatch (Warrington)
    Helen Jones: If he will make a statement on the role of shopwatch schemes in Warrington in combating retail crime. [1557451]
    The Parliamentary Under-Secretary of State for the Home Department(Caroline Flint): The Home Office has provided more than £29,000 to assist retailers in the Warrington area, half of it to provide walkie-talkie radios for the Fearnhead and Poulton shopwatch project. There has been a 41 per cent. reduction in thefts from shops involved in that partnership. I congratulate my hon. Friend and those involved in the scheme.
    Helen Jones: I am grateful to my hon. Friend for that answer. I am sure that she will agree with me that one of the scheme's main benefits is the protection and security that it provides for those who work in shops, and I therefore invite her to respond positively to the "Freedom from Fear" campaign run by the Union of Shop, Distributive and Allied Workers—USDAW—by looking at how such schemes can be extended and how further funding can be provided. Given that she has said that she would like to visit my local scheme, may I ask for her good offices in securing an early date for that visit so that she can see how well it is working, and discuss with the local police how it could be extended?
    Caroline Flint: My hon. Friend is absolutely right. Violence against shop workers is very worrying, and USDAW has played an enormously important part in bringing that issue to public attention. My right hon. Friend the Home Secretary attended a conference organised by USDAW last year, and my hon. Friend the Member for Warrington, North (Helen Jones) is involved in the issue. My hon. Friend the Minister for Crime Reduction, Policing and Community Safety has met representatives of USDAW, and Baroness Scotland is due to meet the general secretary of USDAW very shortly. We are working with retailers and employees' representatives to try to deal with the situation, which is totally unacceptable. That is why we are putting £900,000 into creating a national association to develop more partnerships on the ground, as extensions of those that we have already funded.

    Antisocial Behaviour
    Huw Irranca-Davies: What guidance he has issued on the use of antisocial behaviour orders and related powers to tackle nuisance behaviour. [155746]
    The Secretary of State for the Home Department(Mr. David Blunkett): In January, we issued new guidance on the Anti-social Behaviour Act 2003. We have also set up the "together" action line, and we are establishing the

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    "together" academy to provide face-to-face training. We will ensure that in every part of the country—in every region, including in Wales—training and support will be available.
    Huw Irranca-Davies: I thank my right hon. Friend for that answer. In the two years during which I have been a Member, the greatest bane of my life has been constantly trying to persuade local agencies, authorities and divisional commanders to use ASBOs and related powers. Will my right hon. Friend undertake to write to those people in my area to ensure that there is at least some use of those powers? In the past two years, there has been none whatever.
    Mr. Blunkett: I can do even better than that. On Thursday, I am sending Baroness Scotland to engage in the big conversation in my hon. Friend's constituency: how to activate and use the new legislation against antisocial behaviour.
    Miss Anne McIntosh: Does the Home Secretary share my concern that ASBOs, and the new contracts that are used prior to them, do not cover noise pollution and antisocial behaviour in public car parks? The provisions on noise pollution would cover such an incident on a private drive but not in a public car park. Will the Home Secretary use his good offices to review that, and make such incidents subject to ASBOs?
    Mr. Blunkett: I am happy to investigate how environmental health powers could be used in such cases, and how more general noise nuisance provisions could be applied to sources of nuisance in car parks—for example where a local pub or club was not properly controlling or supervising what was taking place. I am happy to write to the hon. Lady on that.
    Mr. Adrian Bailey: I thank my right hon. Friend for his replies. My own local authority, Sandwell, has pioneered ASBOs, having issued 16 to date with another nine in the pipeline. Its assessment is that they make a very positive contribution to tackling antisocial behaviour in the area. Has my right hon. Friend made an assessment of the percentage of ASBOs that are adhered to, and the percentage of those that are breached and result in custodial action, which is itself beneficial to the local community?
    Mr. Blunkett: I am happy to do that. We have now reached agreement with the Magistrates Association on a code of guidance relating to breaches of antisocial behaviour orders. This will be very important because, as I have said before, if people get the message that they can get away with it, they will get will get away with it, but if the message is that breaches will be treated very severely, with up to a five-year custodial sentence, people will stop breaching those orders.

    Gloucestershire Police Authority
    Mr. Laurence Robertson: What discussions he has had with the Gloucestershire police authority about its budget for the forthcoming year. [155748]
    The Minister for Crime Reduction, Policing and Community Safety(Ms Hazel Blears): I have not had any formal discussions with Gloucestershire police authority about its final budget for next year. I understand that it has now set a final budget of £92 million for 2004–05, an increase of 6 per cent. over this year.
    Mr. Robertson: I am grateful to the Minister for that reply, but my office spoke to the chief constable this morning and he told us that the increase in the precept of four times the rate of inflation that the authority is having to introduce will not prevent him from having to transfer serving police officers into civilian work, in order to cover tasks relating to the new police complaints procedure, the Freedom of Information Act 2000 and so forth. The Government might increase the grant to the Gloucestershire constabulary, but the amount of extra work that they are asking it to do means that the chief constable has to take serving police officers off the streets and keep them in offices.
    Ms Blears: The hon. Gentleman will know that there has been a significant increase in support for the police over the past three years—in fact, a 30 per cent. increase for policing in this country, and a 17 per cent. increase in real terms. If the formula had been applied this year in regard to the hon. Gentleman's own authority, it would have received only £56.9 million, but because there is a flat-rate allocation, it has actually received £58.9 million, which is an extra £2 million. It has also been allocated a range of specific grants, and has done particularly well out of the Airwave grant that has been made available. I am also pleased to be able to tell him that I have written today to his colleague, the hon. Member for Cotswold (Mr. Clifton-Brown), to outline a further payment of special grant in relation to the policing of RAF Fairford, which I am sure will be gratefully received.
    Mr. James PaiceNow that Gloucestershire has set its budget, which comes on top of an increase in precept of more than 90 per cent. in the past three years, when will the Government sort themselves out and stop giving conflicting messages over the capping criteria? Should Gloucestershire and the other 42 police authorities listen to the Minister for Local Government, Regional Governance and Fire, who has threatened to cap rises of more than 5 per cent., or to the Home Secretary, who has apparently said that he will be concerned only about rises of more than 15 per cent? Now that we are in the last week of February and police authorities up and down the country are setting their budgets for next year, is it not time that they knew what the capping criteria were? Is it not time that we had joined-up government?
    Ms Blears: That is exactly what we have. The hon. Gentleman will know that we have been working extremely closely with the Office of the Deputy Prime Minister, and that we have been speaking with one voice in saying to local government and police authorities that we expect them to make reasonable, justified and prudent decisions in consultation with their local communities. In the case of Gloucestershire, we are looking at an increase of 27p a week on a band D

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    property in relation to policing in that area. The hon. Gentleman will also know that we are trying to ensure that local police authorities take into account the views of their local community, and that we have asked them to set proper prudent budgets that they can justify to the community.

    Internet Pornography
    Mr. Andrew Mackay: What plans he has to review the operation of the Obscene Publications Acts of 1959 and 1964 in the light of internet pornography. [155749]
    The Parliamentary Under-Secretary of State for the Home Department(Paul Goggins): Operators of internet sites who knowingly host illegal material in the UK can already be prosecuted under the Obscene Publications Acts. While the Government support effective action in relation to sites hosted in other countries, we believe that this can be achieved only through international co-operation. In addition to seeking such co-operation at European and global levels, we will continue to keep all the relevant domestic law under review.
    Mr. Mackay: I thank the Minister for that response. We dare not be complacent, however, as we have seen in relation to the recent Graham Coutts is murder conviction and the increase in international paedophile websites. Can I press him further, and say that there must be much more international co-operation to ensure that action is taken? Otherwise, there will be a terrific amount of child abuse as well as other problems. Can we have further guarantees that there will not be complacency?
    Paul Goggins: I concur entirely with the remarks of the right hon. Gentleman in relation to the horrific murder of Jane Longhurst. I assure him and the whole House that there will be no complacency in respect of this issue. On his specific question about international co-operation, I assure him that we will continue to pursue this matter. I can confirm that my right hon. Friend the Home Secretary will raise this issue when he meets John Ashcroft in the United States in the near future.
    Mr. Stephen Pound: Among the expressions that I never thought I would utter in this Chamber is, "Can I advise my hon. Friend the Minister to have a word with The Mail on Sunday?" That newspaper appears to have closed down two of the most foul, sadistic brutal sites by impacting on people's ability to subscribe to them. I am loth to do so, but, in view of the greater good, I ask him respectfully to examine this option, which appears to have worked in the case of that newspaper.
    Paul Goggins: I join my hon. Friend in thanking The Mail on Sunday for the campaign that it initiated. Any organisation, service provider or newspaper that can help in fighting this battle is to be applauded. What we need, however, is concerted international action, from Governments in particular, to make sure that we have a consistent approach right across the globe.

    Prisoners (Education)
    Mr. Kelvin Hopkins: What action he is taking to improve educational opportunities for prisoners. [155751]
    The Parliamentary Under-Secretary of State for the Home Department(Fiona Mactaggart): We have increased substantially our investment in learning opportunities and funding will continue to rise—from £97 million this year to £137 million in two years' time. Prisoners have gained more than 100,000 qualifications in literacy and numeracy since April 2001 and are set to exceed targets again this year.
    Mr. Hopkins: I thank my hon. Friend for her answer to my question. I recently had the interesting experience of visiting a prison for the first time— [Interruption.] I was a guest, not an inmate. I was impressed by the quality and commitment of the staff, and was most interested by conversations with inmates. They said that while they appreciated the opportunities for education, what they really wanted was skills training, particularly in construction trades, which would give them real alternatives to crime as and when they were released from prison.
    Fiona Mactaggart: I am pleased to be able to reassure my hon. Friend that not only have we exceeded our targets in terms of achieving basic skills qualifications, but we have succeeded in increasing resources and achievements in vocational skills for prisoners. On work-related learning targets, in the first nine months of 2003–04 prisoners achieved more than 80,000 work-related qualifications against a target of 60,800
    Angela Watkinson: Does the Minister agree that successful rehabilitation of offenders through education and training while they are in custody depends on their having employment opportunities when they have finished their sentences? What discussions has she had with trade, industry and commerce on providing those employment opportunities to prevent reoffending?
    Fiona Mactaggart: The hon. Lady will be aware that under this Government there are more employment opportunities for everybody as a result of our effective economic policies. Part of that process, through jobcentres and so on, is to provide appropriate support for ex-offenders to get into jobs.
    Mr. Huw Edwards: I invite my hon. Friend to come and see the success of the education and training programme at Usk prison in my constituency, and at the Prescoed centre nearby. When I last visited the prison, I was particularly impressed to hear prison officers admit that they first came into the job as hard-nosed screws but are now involved in literacy programmes, as they recognise that if prisoners are not to offend again they need the skills to be able to apply for jobs, keep jobs and have the sense not to reoffend.
    Fiona Mactaggart: My hon. Friend is right to recognise the sense of personal reward that many prison officers gain from contributing to the learning of

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    offenders—because, I believe, they realise that by improving offenders' qualifications they can ensure that they do not see them again. That, in the Prison Service, is a mark of success.

    Prisoners (Police Cells)
    Gregory Barker: How many prisoners are being held in police cells. [155752]
    The Parliamentary Under-Secretary of State for the Home Department(Caroline Flint): As at 22 February 2004, there are no prisoners held in police cells under Operation Safeguard and no prisoners held overnight as lock-outs.
    Gregory Barker: Can the Minister ensure that when prisoners are held in police cells, as they have been in the past, they are in the care of police officers who have been properly trained in looking after prisoners, especially the vulnerable and those on suicide watch? We cannot rule out the possibility of prisoners being held in police cells again.
    Caroline Flint: Operation Safeguard is an arrangement between the Prison Service and the police. Senior police officers and senior Prison Service representatives must ensure that, as far as possible, provision is adequate, and that includes training. Fortunately, Operation Safeguard has not been used since 20 December 2002.
    Mrs. Cheryl Gillan: The Minister is being disingenuous. Because of the rapid rise in the jail population, the Prison Service is in crisis, and—according to the service—there are only 600 places left. The Minister says that Operation Safeguard was last used in 2002, but it cost the taxpayer more than £10 million. Each place cost £363 a night, which is more than three times the cost of a high-security prison place or a de luxe room at Claridge's. Will the Minister confirm that several police forces are now on standby to reintroduce Operation Safeguard to save the Home Office's bacon? Who will pay for this crisis? Will it be paid for by the Home Office or by hard-pressed police budgets?
    Caroline Flint: We are dealing with the issue of capacity in the Prison Service by providing 3,000 more places and building two more prisons that will provide 1,290 places. We constantly review the management of prison places, but we must also think of the future. The national offender management system will offer a scheme providing more places for serious, violent and dangerous offenders, as well as using other forms of sentence, such as community sentences, to deal with short-term prisoners.
    The hon. Lady talks about more resources. The shadow Chancellor's standstill Budget would mean a loss of £669 million to the Home Office. Just how would the Opposition pay for the Prison Service—
    Mr. Speaker: Order. I call Mr. Dismore.

    Nationality, Immigration and Asylum Act
    Mr. Andrew Dismore: How many individuals have had (a) nationality and (b) indefinite leave to remain removed under the Nationality Immigration and Asylum Act 2002; and if he will make a statement. [155753]
    The Minister for Citizenship and Immigration(Beverley Hughes): The Home Secretary has exercised his right under the Nationality, Immigration and Asylum Act 2002 to remove citizenship from one individual. That individual has appealed, and the case is currently awaiting a hearing by the Special Immigration Appeals Commission.
    We are not currently aware that the provisions to revoke indefinite leave to remain under section 76 of the Act have been used. Both measures were passed by Parliament to be used by Ministers sparingly and, in relation to section 76, in the special circumstances in which we could not deport someone. However, where removal is possible, indefinite leave to remain is invalidated automatically as part of the removals process.
    Mr. Dismore: Is there not a serious loophole? A year on, Abu Hamza's appeal still has not been heard and his lawyers are threatening a seven-year legal battle. Every terrorist suspect so far, from the shoe bomber to the ricin plotters, has left a trail of slime leading back to Hamza. The British people, including most Muslims, cannot understand and do not accept the fact that Hamza is allowed to block the road every Friday to spout his anti-semitism, holocaust denial and hatred of our country and our society, from Her Majesty the Queen downwards. Why has he not been put behind bars, thrown out or extradited to the Yemen to stand trial for his terrorist offences there? When will we deal with this evil influence in our society and get rid of him once and for all?
    Beverley Hughes: I share my hon. Friend's frustration, but the timing of the appeal is in the hands of the Special Immigration Appeals Commission, which is the court, and not in the hands of the Home Office. SIAC is keen to make early progress. The funding was in the hands of the Legal Services Commission. We are not at liberty to interfere in either the funding or the court process. However, I assure him that any opportunity to prosecute this individual will be taken and that the local police are monitoring him very closely, including outside the mosques on Friday, and are currently investigating allegations in a newspaper about one recent sermon.
    Mr. David Cameron: Is the Minister personally content with the current powers that she and the Home Secretary have to expel people they believe may pose a risk to this country? Yes or no?
    Beverley Hughes: We have taken the powers that are available to us, but in the implementation and exercising of those powers we have to give people rights of appeal, which exposes them to court processes, over which—rightly, many would argue—we have no jurisdiction.

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    That is the position in this case: it is in the appeals process, and we must allow SIAC to determine the outcome. I hope that it will do so as soon as possible.
    Mr. Humfrey Malins: Will the Asylum and Immigration (Treatment of Claimants, etc.) Bill enable a person wrongly deprived of citizenship or indefinite leave to remain to appeal to the courts against that deprivation on a point of law?
    Beverley Hughes: The Bill has very little bearing on that question, as it deals with arrangements to translate into a single tier appeals processes arising from asylum and other applications. The SIAC process is separate from that, and is confined to this kind of case. As the hon. Gentleman knows, there is the opportunity outside SIAC, with permission, for people to go to higher courts.

    Terrorism
    Vera Baird: What plans he has for changing the standards of (a) proof and (b) evidence in criminal cases believed to involve terrorism. [155754]
    The Secretary of State for the Home Department(Mr. David Blunkett): On Wednesday, at 9 o'clock in the morning, so that right hon. and hon. Members will have the opportunity to read it before the debate, I intend to publish a discussion document on the challenges laid down by the Newton Committee, and the challenges that were posed to us when we, as a Parliament, originally passed the Anti-terrorism, Crime and Security Act 2001.
    Vera Baird: I acknowledge the difficult task that my right hon. Friend has in protecting the public from British people whom he believes to be a terrorist threat, when, almost by definition, the intelligence that informs him of that is not admissible in court, but I ask him to bear it in mind that there is a whole range of powers currently in statute that have not yet been brought into force, which could help, including in particular, in the Criminal Justice Act 2003, the admissibility of hearsay, which can be second-hand, third-hand or written evidence from abroad. Using that provision could transform the picture. If what is said in the press this weekend is right, I encourage him enormously to pursue the course that he appears to have embarked on, and allow the admission of phone-tap material in court as quickly as possible.
    Mr. Blunkett: My hon. and learned Friend is right, in that we want a sensible, balanced approach that protects the rights of the innocent and retains the long-standing presumption of innocence, acknowledging that all of us in the House are committed to maintaining those historic rights, while allowing us to admit evidence in a way that is acceptable. The current review of intercept is an important part of that debate. I appeal to everyone—and I will do so on Wednesday—to address these very difficult issues in a spirit that presumes that even the Home Secretary is innocent until proven guilty.
    Mr. Elfyn Llwyd: What the Home Secretary said about the presumption
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    of innocence is most welcome, but I urge him also not to interfere with the standard of proof, which would, unfortunately, undermine respect for the rule of law.
    Mr. Blunkett: In the lecture that I gave to human rights lawyers and members of the supreme court in New Delhi, I did not suggest that we were intending to alter the standard of proof wholesale. I said, and my hon. and learned Friend has just said, that there are other ways forward. When I publish the paper, hon. Members will see that we are trying genuinely to find the right ways, with a lengthy consultation that will avoid anybody being bounced into any solution. All I want is that people come up with solutions, not with objections, because in the end the primary duty of Government is to protect our citizens from the undermining of their freedoms and democracy by those who know no bounds and have no understanding of the issues of punishment or prosecution when they take the lives of others through suicide bombing.
    David Winnick: Is my right hon. Friend aware that the interpretation of his remarks was bound to cause concern that there could be a weakening of the rule of law? At the same time, will he accept that those who have concerns and reservations about what he said—or what he is alleged to have said—recognise that 9/11 was not meant to be a one-off in respect of attacks on western democracies and that this country is no less under attack than it was immediately after 9/11?
    Mr. Blunkett: It is precisely for that reason that I am initiating this discussion, but I do not accept the first premise of my hon. Friend's question. I did not expect a noble Baroness or, for that matter, a solicitor whom I remember well from joining in battle with her when she was defending the Militant Tendency, to be the ones whose pronouncements were reflected on, rather than the speech I actually gave in New Delhi.
    Mr. Douglas Hogg: May I remind the Home Secretary that one of the other purposes of the Home Secretary's office is to ensure that justice is done, and that many of us who are involved in the criminal courts are concerned with the proposition that, as regards the standard or burden of proof or the admissibility of evidence, those who are alleged to be guilty of terrorist offences should be treated differently from those alleged to be guilty of other serious offences?
    Mr. Blunkett: When we established the Special Immigration Appeals Commission as a superior court of record chaired by a High Court judge, we did so first because of the immigration rules under which we were unable to remove people from our country whom we intended to remove; and, secondly, in recognition of the difficulty of dealing with such cases through the normal criminal justice system. It must be clearly said, however, that we have dealt with very many cases through that system since 11 September 2001. The presumption, as during the debate at that time, is that we should continue to do so. I only ask right hon. and hon. Members to come up with their way of squaring the circle and making it possible to deal with people—on the evidence base and in the light of the difficulties that we face—through the normal courts.

    Community Policing
    Gareth Thomas: If he will make a statement on the effect of community policing on the reduction of crime. [155755]
    The Minister for Crime Reduction, Policing and Community Safety(Ms Hazel Blears): There is a growing body of evidence that community policing can have a positive effect on crime levels. Community policing, however, is not just about crime reduction, but is fundamental to the future direction of the police service.
    Gareth Thomas: I thank my hon. Friend for her reply. Does she agree that CCTV has a role in improving the effectiveness of community policing? Will she agree to meet me and representatives of North Wales police and Denbighshire county council to assess proposals for a CCTV scheme for rural communities within the Vale of Clwyd?
    Ms Blears: I am more than happy to accede to my hon. Friend's request and I am delighted to be able to highlight the excellent work of North Wales police on community policing. They have recently introduced a system of community beat managers under which police officers give a three-year commitment to being the local police officers in their community. They get to know the local people and report back to them, which is having significant results. I would be delighted to meet my hon. Friend to see how we can do even better in north Wales.
    Mr. Peter Pike: Does my hon. Friend agree that community policing and working with neighbourhood wardens is reassuring many people that a minority will not be allowed to destroy the lives of the majority? Will she give an assurance that we will continue to see further development of both community policing and neighbourhood warden schemes?
    Ms Blears: My hon. Friend makes an extremely important point and he knows that we now have record numbers of police officers—more than ever before in this country—out on our streets. There are also about 3,000 community support officers now patrolling, and increasing numbers of neighbourhood wardens, some of them funded not only by local authorities but by housing associations, so we are beginning to see a real partnership of people who can reassure communities and tackle the problems of antisocial behaviour. They are on the side of the decent law-abiding majority in this country, helping to ensure that antisocial behaviour is properly tackled wherever it arises.

    Criminal Records Bureau
    Mrs. Louise Ellman: What progress is being made in implementing the action plan for the Criminal Records Bureau in Liverpool. [155756]
    The Minister for Crime Reduction, Policing and Community Safety(Ms Hazel Blears): The Criminal Records Bureau is now reliably delivering more than twice the number of checks undertaken by the police
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    under the old arrangements. Furthermore, since June 2003, 92 per cent. of applications for standard and enhanced disclosures have been processed within two and four weeks respectively. That substantial improvement in performance has recently been acknowledged by the National Audit Office. Significant progress has also been made in implementing the recommendations of the independent review team.
    Mrs. Ellman: Those employed at the Criminal Records Bureau in Liverpool are dedicated and work hard, but we were told that Capita would be a good private sector partner. How much has Capita been penalised for failing to deliver, and how much extra finance has been awarded to it, in addition to the amount agreed when it won the tender contract?
    Ms Blears: My hon. Friend will know that the contract was initially evaluated properly by an independent team, that there was little to determine the difference between the Capita bid and the other bids, and that it was deemed at the time that the contract was very good value for money. She will also know that a settlement has been reached in relation to Capita's previous performance—in the sum, I believe, of about £3.5 million; I can provide my hon. Friend with further details of the payments that have been made. We now have a contract that will in future start to deliver significantly more and better value for money, and more productivity, in the important process of carrying out criminal records checks.

    Asylum Applications
    14. Jim Dobbin: What progress has been made in meeting the target to reduce asylum applications by half. [155757]
    The Minister for Citizenship and Immigration (Beverley Hughes): My hon. Friend will know that the benchmark that we took was the monthly figure for October 2002—the period immediately before the introduction of the Nationality, Immigration and Asylum Act 2002. In September 2003—the latest month for which data are available—there were 4,225 applications for asylum. That figure is 52 per cent. lower than the number in October 2002. We have therefore met the Prime Minister's 50 per cent. pledge, which is very encouraging. However, we are not complacent and we continue to look into ways of reducing the number of asylum claims further.
    Jim Dobbin: In those figures I am sure that there will be a number of families with children. Can my right hon. Friend assure me that their rights regarding housing, health and education will be protected during the whole asylum process?
    Beverley Hughes: Yes. While an asylum claim is ongoing, until it is finally completed, individuals and families, including children, have access to health and education as well as asylum support and housing through the National Asylum Support Service process. Of course, if and when a claim is refused and the appeal rights are exhausted, we expect failed applicants. including families with children, to return home. My

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    hon. Friend will know that there are measures in the Asylum and Immigration (Treatment of Claimants, etc.) Bill, which is currently before the House, to ensure that they do so, and that we do not carry on supporting people once their claim has been refused.
    Dr. Vincent Cable: Is the Minister aware that because of the emphasis on the asylum backlog. routine visa applications such as those connected with marriage are inordinately delayed, often for years? Why does the Home Office not adopt the simple policy of copying travel documents once they have been verified, and releasing them so that people can get on with their lives while they are waiting?
    Beverley Hughes: I agree with the spirit of what the hon. Gentleman proposes; that is exactly what we are trying to do. In some cases, for various important reasons, it is not possible, but I agree that in general, documents can be copied and sent back, and we have asked the immigration and nationality directorate to implement that process in future.
    Mr. John Denham: I welcome the considerable success that the Government have had in reducing the number of asylum applications, but does my right hon. Friend accept that there is a danger that some people who might have applied for asylum will be drawn into illegal working in this country? Will she take this opportunity to say that she would welcome the use of the Proceeds of the Crime Act 2002 against employers who knowingly employ illegal labour?
    Beverley Hughes: That is a suggestion that my right hon. Friend made a little while ago in the context of the Home Affairs Committee inquiry and, as I shall indicate in my response to the most recent inquiry, we are looking at it in great detail. I shall be happy to provide him with further information once we have undertaken that investigation.

    Gun Crime
    Mrs. Ann Cryer: What measures he is taking to support communities in the fight against gun crime. [155758]
    The Parliamentary Under-Secretary of State for the Home Department(Caroline Flint): We need effective legislation and enforcement. but we also need to harness the support of local communities in tackling gun crime. That is why we have provided support for the Disarm Trust to work directly with affected communities and community groups, and have allocated £1.2 million of recovered assets money to support community action in the most affected areas. In January this year, we held a very good conference in Birmingham, involving more than 200 community organisations, individuals and young people, to identify better ways to work together in the future and to stimulate more ideas for action.
    Mrs. Cryer: I thank my hon. Friend for that helpful reply. Does she appreciate that in my constituency,
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    during a period of about a year, two young Keighley men were killed and a violent street battle took place in an otherwise peaceful and law-abiding area? The common thread in all three incidents was that they related to turf wars between drug dealers, firearms were used and the police had great difficulty in bringing prosecutions owing to the intimidation of potential witnesses. How can we move forward?
    Caroline Flint: I am aware of the incident to which my hon. Friend refers. She is right to draw attention to the links between gun crime and other organised criminal activities, especially drugs. The serious organised crime agency will look into such issues and that will be helpful for the future, but we also have to ensure that there are operations on the ground to deal with them effectively. The Bradford district is taking a proactive approach to gun crime and over the next six weeks it will launch a media campaign to make local people aware of what it is doing and to encourage them to come forward with information. We are seriously looking into how we can further improve witness protection nationally. We need to attend to that very serious issue.

    Immigration and Nationality Directorate
    16. Keith Vaz: What plans he has to tackle the backlog of cases at the immigration and nationality directorate. [155759]
    The Minister for Citizenship and Immigration (Beverley Hughes):We are committed to reducing the numbers of outstanding cases in all areas of the immigration and nationality directorate to a steady state of frictional levels of work in progress and we have allocated dedicated resources to achieving that. As I have already mentioned today, the number of outstanding asylum cases awaiting an initial decision had fallen to 29,100 in September 2003—the lowest level for a decade. The number of outstanding asylum appeals is being reduced by 1,500 cases a month. We expect to clear outstanding leave to remain work by spring 2004 and nationality work by autumn 2004.
    Keith Vaz:I welcome the Minister's commitment and the news that she has announced today; however, the fact remains that there is still a substantial backlog. A constituent who came to my surgery last Friday has been waiting for two and a half years for a letter from the IND. Will my right hon. Friend look in particular into the fact that Home Office presentation officers do not attend immigration tribunal cases? A third of all such officers simply do not attend and that must have an impact on the backlog. Will she make a commitment to ensure that there is better attendance by those officers at the hearings?
    Beverley Hughes: I acknowledge that the availability of presentation officers has been a problem, especially in London where there has been a shortage. However, I am happy to tell my hon. Friend that we have already taken action and that 65 additional officers are being appointed. The process is far advanced and I expect them to be in post by March this year. I am sure that, as my hon. Friend says, that will have a discernible impact on the problem that he outlined.
    Mr. James Clappison: The Minister has told us that the backlog stands at 29,000. Can she tell us how many asylum seekers have benefited from the relaxed criteria introduced by the Government in their backlog clearance exercises? How many?
    Beverley Hughes: If the hon. Gentleman is talking about the indefinite leave to remain exercise announced at the end of last year, the process of identifying people who meet the criteria is still going on-as I made clear when we made the announcement. People have to be checked, both as to whether they meet the criteria and, for example, whether they have committed any criminal offences in the meantime. We expect to conclude the whole exercise by April or May this year.

    Neighbourhood Watch Schemes
    Derek Wyatt: If he will fund neighbourhood watch schemes; and if he will make a statement. [155760]
    The Parliamentary Under-Secretary of State for the Home Department(Fiona Mactaggart): The Home Office provided a grant to the National Neighbourhood Watch Association of £150,000 in 2002–03 and of £200,000 in 2003–04. The National Neighbourhood Watch Association provides guidance and training to local neighbourhood watch associations. Local neighbourhood watch schemes are independent and largely self-financing. They are supported by police forces with which they work closely.
    Mr. Wyatt: I commend to the Minister a scheme in San Jose, California by which each neighbourhood watch is funded. When graffiti appears, telephones and microwave systems are used, and graffiti can be removed within 24 hours. Those neighbourhood watches make neighbourhoods safer, and they are funded at a very low level. There are more than 700 neighbourhood watch schemes in my patch, and I would love to enable them further because they are so successful.
    Fiona Mactaggart: We recognise that neighbourhood watch schemes are vital partners for the police in preventing and reporting crime and in supporting witnesses. The US scheme that my hon. Friend describes is interesting. Neighbourhood watch schemes and other community groups can work with the police to try to tackle such issues. In America, however, local community associations and local government are less vital than in the UK. Perhaps Americans depend on neighbourhood watch schemes where we have other resources, but I will examine the scheme that he describes.
    Bob Russell: Will the Minister concentrate on neighbourhood watch schemes in this country? Does she agree that, alongside Crimestoppers, community policing and neighbourhood wardens, the neighbourhood watch is an important part of the jigsaw that provides safety in our communities? Although national funding for neighbourhood watch schemes should he recognised and appreciated, does she agree that much more could be done locally if there were core funding for back-up administration?
    Fiona Mactaggart: We recognise the vital role of neighbourhood watch schemes, which was laid out for the first time in statute in the Crime and Disorder Act 1998, demonstrating the value that we place on them. The hon. Gentleman rightly says that neighbourhood watch schemes play a practical local role, which is why we work to ensure that they are closely involved in crime and disorder reduction partnerships and that they can work closely with the police. We have not ruled out considering providing them with resources, which is often best done locally. We see them as partners in part of our police reform programme, in part of our crime and disorder reduction programme and in tackling antisocial behaviour and crime in neighbourhoods up and down the country.

    Criminal Procedure and Investigations Act 1996
    Mr. Tam Dalyell: What representations he has received from the National Union of Journalists on the requirement on journalists to reveal their sources under the Criminal Procedure and Investigations Act 1996. [155762]
    The Secretary of State for the Home Department(Mr. David Blunkett): To the best of my knowledge, none—I thought about approaching the NUJ to see whether I could access any of its sources of information from my Department, which would enormously reduce my blood pressure on a Sunday morning.
    Mr. Dalyell: I want to declare a personal interest, of which I have informed a senior official at the Home Office: I am under pressure from defence lawyers and West Mercia police in relation to the revelation of sources on the brutal and callous murder of the Shrewsbury rose-grower, Hilda Murrell. What is the Home Secretary's general attitude to the use of the 1996 Act to put pressure on people to reveal sources?
    Mr. Blunkett: My attitude is clear: it is not the job of the Government or the police to bring pressure to bear on MPs or other citizens to reveal their sources, but it is their duty to investigate and find out the facts. Investigation involves interrogating people, and it is open to the individual to reveal what they believe would be helpful in finding the truth—I hope that we are moving to find the truth in that historic case.

    Leicestershire Police Authority
    Mr. Andrew Robathan: If he will make a statement on funding to the Leicestershire police authority. [155766]
    The Minister for Crime Reduction, Policing and Community Safety(Ms Hazel Blears): Leicestershire police authority will receive general grant funding of £102 million in 2004–05, an increase of £3.2 million or 3.25 per cent. over this year. In addition to that, it will receive more than £10 million for targeted programmes and capital provision. I understand that Leicestershire police authority has set a final budget of £138.1 million for next year-an increase of 6.1 per cent.
    Mr. Robathan: The Minister will know that the authority has had to increase its budget because it received some £4 million to £5 million less than it expected from the Government. The result has been an increase in council tax. Perhaps, the Minister could explain to her colleagues in the Office of the Deputy Prime Minister why council tax will have to go up in Leicestershire as a result of the mean-minded funding for the police by this Government.
    Ms Blears: The hon. Gentleman would have known, had he been in his place earlier, that the police have
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    received generous funding settlements in the past three years of some 30 per cent. Leicestershire will receive an increase of 3.25 per cent. this year, as well as a whole range of specific grants. The hon. Gentleman will know that his local force now has a record number of police officers out on the streets, with 45 more than in March last year and 210 more than in March 1997. It also has record numbers of police staff. I am sure that he welcomes those increases in policing and in reassurance for his local community.

EU Enlargement (Free Movement of Workers)
3.31 pm
The Secretary of State for the Home Department(Mr. David Blunkett): I wish to make a statement on the Government's approach to the accession of 10 countries to the European Union from 1 May. EU enlargement is extremely welcome to, and important for, our country. It is something to be celebrated. All parties in this House are in favour of enlargement. John Major played an important role in launching the process. My right hon. Friend the Prime Minister was instrumental in calling for early accession of the 10 countries.
After 1 May, citizens of accession states will be free to travel across all EU borders. Our position has always been clear—that the UK would benefit from all new EU citizens working legally, paying taxes and national insurance. That is an alternative to illegal working, which would fuel the sub-economy and undermine existing conditions of work. But we will take every step to ensure that our benefit system is not open to abuse. We have already tackled benefit tourism by tightening the habitual residence test. Today, we are building on that by announcing measures that will ensure that those who come here from the accession countries but do not work will not be able to claim benefits.
It is important to remember the positive aspects of migration. The UK is already benefiting from more than 20,000 accession nationals who have been granted work permits in the last two years. From 1 May, that requirement will be replaced by a workers registration scheme.
The United Kingdom has one of the most dynamic and successful economies in the world. Since 1997, our economy has experienced growth and prosperity greater than any other large state. Growth has been higher, we have created more sustainable jobs and we have lower levels of unemployment—almost half the levels of France and Germany—which is a tribute to my right hon. Friend the Chancellor, and to the creativity and flexibility of the British labour market. We currently have more than 500,000 vacancies and will benefit from the skills, flexibility and willingness to work of those new migrant workers, as we have in the past.
To say that we will welcome legal migrants is not new. We set out our policy in our White Paper "Secure Borders, Safe Havens" two years ago. We have consistently developed legitimate and legal routes for managed migration, including issuing 175,000 work permits this year, compared with 40,000 in 1997. At the same time, we have balanced that by taking tough measures to clamp down on illegal working, abuse of the asylum system and clandestine entry into our economy.
We have radically overhauled the asylum system. Over 80 per cent. of asylum claims are now processed in under eight weeks. We now have the lowest asylum backlog for a decade—half the level that we inherited in 1997. We have halved the number of asylum claims from its peak in October 2002. We are removing record numbers of failed asylum seekers and illegal migrants. That balanced approach enables us to make the positive case for legal, managed migration.
The accession of new countries into the European Union opens up new opportunities for trade and labour market flexibility. That is why all EU countries and all
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political parties in the House welcomed expansion. That is why I am confirming today our decision to allow workers from the accession states access to our labour market, subject to certain sensible conditions.
When we first set out our position, only those countries with high levels of unemployment were planning to introduce restrictions on work for accession nationals. Since then, other countries have changed their stance. It clearly makes sense for us to ensure that our approach does not leave us exposed.
We will therefore introduce a new workers registration scheme to replace work permits for accession nationals. That will place an obligation on all accession nationals to register where they are working and for whom. Their right to work in the UK will depend on their being issued with a registration certificate. It will be incumbent on the employer to check that the employee has registered. That will provide a platform for the national identity card scheme under which, in time, all non-UK nationals will be required to register. That will help us to determine accurately how many new workers are in Britain, and in which sectors and types of employment. It will also assist with enforcement and inspection and enable us to react immediately if, against all the odds, there are destabilising effects on the labour market.
It is important to emphasise that the Government retain full discretion to remove all or part of the concessions at any time. We will not hesitate to do so if necessary. We will in any case tighten controls and deal with those who evade their responsibility by the employment of clandestine workers. I know that all decent employers will want to join with us in cooperating and rooting out those who exploit.
We will put before Parliament a set of affirmative regulations that will allow access to the labour market, while ensuring that our benefits system is not open to abuse.
This is a coherent and sensible package of measures that builds on the principles and policies laid out by the Government over the past three years. We believe that proper, legal, managed migration is good for Britain and fair to genuine workers from the accession countries. Whether they are plumbers or paediatricians, they are welcome if they come here openly to work and contribute. At the same time, it is clearly not right that people should be able to come here, fail to get a job and then enjoy access to the full range of public services and social security benefits.
Therefore, the second element of the package that we are announcing today is that those who wrongly believe that they can move here to claim benefits without working should be in no doubt that they cannot do so. They cannot draw benefits without themselves contributing to the rights and entitlements that should go hand in hand with the responsibilities and duties. For two years, possibly longer, we will require accession nationals to be able to support themselves. If they are unable to do so, they will lose any right of residence and will have to return to their own country.
My right hon. Friend the Secretary of State for Work and Pensions will bring forward regulations to prevent access to benefits for those not working, and my right hon. Friend the Paymaster General will bring forward

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regulations to prevent them from claiming child benefit. We will also restrict access to other benefits such as social housing.
This package reinforces the balanced approach to immigration that I have spoken about within a clear set of rules. I reiterate that we welcome people, as we have throughout the centuries, to come to our country to work, to contribute and to be part of our society. We reject those from wherever they come who exploit our hospitality. This approach takes account of the simple reality that, under the treaty of accession, no EU member state has the right to interfere with freedom of movement. The issue. therefore, is on what basis people come to our country.
By taking these measures, we will ensure that those arriving in Britain can work for their living openly and honestly and are not drawn into the sub-economy. Those who wish to find a job will be free to do so; those who come for short periods will have the means to do so. In this way, we avoid any expensive bureaucracy and, at the same time, protect ourselves against clandestine work and the exploitation of the sub-economy. This is the right approach for Britain in the 21st century—fair on ourselves, fair on our new partners and tough on those who would abuse the system. I commend the new approach to the House.
David Davis: I thank the Home Secretary for early sight of his statement although, frankly, I wish I had seen it even earlier six months earlier to be precise. The enlargement of the European Union is not a concept that has suddenly emerged in the past six weeks. It has been on the agenda for years.
Britain's strategy for the free movement of labour, which impacts on British jobs and our public services, should have been clear, consistent and planned well in advance. Yet in the past few weeks, we have witnessed the astonishing spectacle of the Prime Minister inventing policy at the Dispatch Box, being contradicted by his official spokesman within hours, being put in his place by the Home Secretary and being blatantly ignored by the Minister for Europe. We have seen Ministers rushing to crisis meetings in Downing street to hammer out plans just weeks before enlargement takes place.
Nevertheless, the Government have, at last, recognised that there is a problem albeit that they have misdiagnosed it and come up with a bureaucratic solution that carries unnecessary risks. The problems created by enlargement result from the massive differences in wages between the accession states and the United Kingdom. That is why the Home Office's predictions on new immigrants arc wrong and have been challenged, not least by the Home Secretary's own advisers. A large number of people will come to Britain—some as benefit tourists, but most seeking work. That will put huge pressure on housing and our public services. The most straightforward and fair method of dealing with this is to use the work permit system, which allows us to control month by month how many people come in and the skills they bring.
Today, the Home Secretary has announced that, instead, he is toughening benefit rules by tightening the habitual residence test and access to benefits. We agree
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that benefit tourism needs to be stopped. Indeed, a Conservative Government introduced the habitual residence test under much criticism from the Labour party at the time. However, is he entirely satisfied that the provisions are compatible with our obligations under EC law? Is he confident that they will be sustainable in the British courts? What will the Government do if people from accession countries come to the UK—as they are perfectly entitled to do but have no employment? Will they deport them? Their record on deportation has not been very successful so far. What will happen if people are left destitute? What if they have children? Will they be left to sleep on the streets? The legal position is unclear and the problem is compounded by the fact that we have only a few weeks before it can be tested.
Have the Government considered what impact large numbers of workers may have on our already overstretched public services? According to the Government's estimates, the UK already needs to build 39,000 more houses every year. Does the Home Secretary not therefore agree that mass migration may exacerbate the housing problem? Considering that London and the south-east is the preferred destination for two thirds of immigrants, has he assessed the impact on housing, health and education services?
Will the Home Secretary explain why he has decided not to use work permits? What are the advantages of reinventing the wheel through this clumsy and bureaucratic new registration scheme? How is it better than the proven, existing work permit scheme? Without any methods of enforcement, this is little more than another headline-grabbing initiative.
The Home Secretary said that it will be incumbent on the employer to check that the employee has registered with the scheme, but only eight people have ever been found guilty of employing an illegal immigrant. Who is going to enforce this system? He doubtless hopes that identity cards for immigrants will give him a tough-sounding headline, but the crux of the problem will arise in the next two years, and it will start in two months. When will his ID card system bite? Not, I warrant, in two months, or even in two years.
If the Government are right in saying that only 13,000 people from accession countries will come to work in Britain, the work permit system would cope perfectly well. After all, in 2002 Britain granted more than 120,000 work permits—`as the Home Secretary said, the figure for this year is 175,000—including almost 14,000 to people from countries in eastern Europe. In other words, we already process 1,000 more eastern Europeans than the Government are forecasting will come here.
A policy of work permits would not mean slamming the door on migration but would allow us to control exactly how many people come to the UK, and what skills they bring, on a month-by-month basis. Why are work permits good enough for Sweden and the rest of Europe, but not for us? Have we not simply adopted the lesser of two options not on the ground of what is best for Britain, but to avoid the accusation of a U-turn or climbdown? Is that not what happens when crucial decisions are taken in crisis meetings at the last minute?

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This is not so much a policy of closing the stable door after the horse has bolted, as opening it to see whether the horse wants to run. Yet again, the British people have been badly served by this Government. The shambles that we have witnessed surrounding this policy sums up why Britain deserves better.
Mr. Blunkett: I am genuinely bewildered as to whether the hon. Gentleman—[HON. MEMBERS: "The right hon. Gentleman."] I must get it right. I am genuinely bewildered as to whether the right hon. Gentleman is in favour of allowing people to come here to work, or not. Listening to him, there seems to be one difference between us: whether there should be a pre-entry system of work permits, or a post-entry registration scheme. The CBI, the TUC and the British Chambers of Commerce favour the post-entry registration scheme that we propose. The director general of the BCC is on record as saying:
"We will not support a work permit scheme if it means greater administrative and regulatory burdens".
That is clearly what it would mean, and for the reasons that I am about to spell out.
The existing work permit scheme is for those who do not have automatic right of entry to the United Kingdom. They have to apply and to have a preordained job before they come here, and the employer has to apply to the work permit system—it is based in my own city—to obtain a permit to get the person in. That costs the individual a great deal of money, and the employer a great deal of time. Doing that for those who have right of entry—those who can come into the economy and work legally—would simply push them into the sub-economy, where they would be exploited by the worst employers. The minimum wage and working conditions for existing employees would be undercut, and national insurance and tax would not be paid. What sort of economy is that? What sort of politics is that?
It is the politics of despair and immorality because it pushes employers and individuals into an immoral situation in which, in order to compete, they start to undercut the rate by employing clandestine workers. Our policy is to clamp down on clandestine working and allow those who have access to come freely into our country to work freely, but they should do so openly, pay their dues and be entitled to their residency.
Under the residency rules, we should be able to apply stringent tests to avoid people claiming benefits because there can be only two reasons why people wish to come here: to work to earn their living, or to draw down on services. If we are stopping people drawing down on services and benefits yet allowing them to work legally, what on earth are the Opposition talking about? What could be the risk? I have never said that there would be only 13,000 people.
David Davis: Yes, you did.
Mr. Blunkett: No, I have not. We published independent research on the website last summer, with its methodology. The figure of 13,000 has never crossed my lips. We will not know the situation until people apply for the vacancies that exist in our economy,
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including, it must be said, in construction. Building houses requires construction workers, and if we get construction workers to fill vacancies, we will actually be able to build houses—that is also a simple economic reality.
Conservative Members preach flexibility, free movement of capital and labour and an economy of balance in which labour market forces balance out those who want jobs with the jobs available. They say that that is good for Britain, but the minute we do it, they are against it on purely opportunistic grounds. Well, not all of them, because the hon. Member for Woking (Mr. Malins), who is sitting on the Opposition Front Bench—
The Parliamentary Under-Secretary of State for the Home Department(Caroline Flint): He has gone.
Mr. Blunkett: No wonder, because the hon. Gentleman must have known that I would quote what he said on this morning's "Today" programme. He said:
"if you and I wanted to go to Slovakia or Slovenia to work, that's fine, but if we were to go there and simply claim benefits, most normal, sensible people would say 'that's wrong'."
I agree entirely with him. If people want to come and work in Britain openly and legally, that is right. If they want to come and claim our benefits, that is wrong. I commend to the House what we have done.
Mr. Mark Oaten: I thank the Home Secretary for advance notice of his statement, but I hope that he will at least acknowledge that the Government have left it very late in the day to resolve these critical issues. With just weeks before the accession countries join, today's announcement is either the result of bad planning, a panic response to tabloid pressure or the sign of a disagreement in the Cabinet. While I welcome the positive language that he used on migration, why has he decided to introduce the measures from 1 May? He acknowledged that he was not sure of the figures involved, so would it not have made more sense to wait and base the policy on fact rather than prediction and to review the situation in six months to determine whether there really is a difficulty with migration and benefit abuse?
With that in mind, will the Home Secretary take it upon himself to produce a quarterly report on migration figures from the new countries so that we can see the facts? When deciding on work registration certificates, will he clarify whether restrictions will be imposed on issuing certificates in areas with job shortages? What right of appeal will individuals claiming those certificates or benefits have if they are refused?
Finally, does not the whole episode show two things? On Europe, the Government must decide if they really want a full Europe or a two-tier Europe, and, on immigration, they must decide whether they want a policy based on facts or on tabloid fiction.
Mr. Blunkett: I did not think that I had announced anything this afternoon that was tabloid fiction. I thought that I had enunciated a policy that we set out two years ago in the White Paper to which I referred and that I have been following ever since. There has been no disagreement between the Prime Minister and me on the

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Matter— none. We are agreed that we want people to come here to work, and we are agreed that we do not want people to exploit our benefits and social services. That is simple, straightforward and everyone can understand it.
We will not need an appeals system under the rules. If people have a job and are registered, they will be entitled to benefits. If they do not have a job and are not registered, we will be able to disqualify them from benefits under the European accession rules. Those are the rules that we are laying down. My right hon. Friends the Secretary of State for Work and Pensions and the Paymaster General will together lay the necessary orders to enforce that.
I am happy to publish the number of those who register, as we do the number of those who are granted work permits, so that people can see how many people have come to our country and are working. There will be no need for a bureaucratic system forbidding registration in particular parts of the country. A labour market is a labour market: if people can get a job, they get a job, and employers have the opportunity to take them on. My only appeal is that people who do not have a job at the moment in this country are willing to be as flexible and as prepared to move and to work as those who come from other parts of the European Union. In that way, we would ensure that people who can work and who have no disability that precludes them from working get a job instead of being dependent on benefit. To be honest, that has been our policy all the time: welfare to work, make work pay, ensure that people are welcome to work and have an honest, open debate about it.
Mr. Kevin McNamara: Is my right hon. Friend aware that many editors of tabloid newspapers will very much regret what he said in his statement? He has refused to rise to the bait of the scare stories and race hatred stories that they have published over the past few weeks and produced a reasonably balanced statement. However, what will the position be for immigrant workers who have a work permit and are registered and in employment? Surely they and their families will be entitled to the day-to-day benefits of the national health service, education for their children and so on once they begin to pay taxation and national insurance. Will he confirm that they will not be excluded from that?
Mr. Blunkett: I am not going to speculate on what the morning papers will say, except to say that a number of tabloids that do not take our political point of view are strongly in favour of honest work and of people declaring that they are working and paying their taxes and national insurance. I look forward to them backing what we are doing wholeheartedly and being totally against clandestine exploitation.
On my hon. Friend's second point, I can confirm that that is the case. When someone has worked consistently for 12 months and paid national insurance and taxes, they will be entitled to those benefits.
Sir Teddy Taylor: Will the Home Secretary say for how long the European Union will allow him to apply the restrictions on benefit entitlement? Is he wholly satisfied that they are legally sound?
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People who come here and secure a job will be entitled to housing benefit and, of course, to use the health service. Will that not create major problems in areas such as seaside towns, which already have a major problem? Will the right hon. Gentleman look into that? Finally, as the average income in eastern Europe is one third of what it is in the European Union, does he not genuinely think that the problem could be much greater than he anticipates?
Mr. Blunkett: On the first question, the answer is initially for two years, which is renewable. On people drawing down housing benefit, I have made it clear that social housing will not be available to anyone who is not working. It will not automatically be available to those who are working because they have to take their turn in the queue. However, I expect people who are earning their living to want to live here sensibly and respectably, and to be able to rent accordingly in the private sector. We would want them to do that.
On the hon. Gentleman's third question, I remember people saying exactly the same thing when Portugal, Spain and Greece acceded to the EU. The disparity in comparative wage levels when Portugal and Greece, in particular, entered the European Union was very similar to that which exists now between employment and wage levels here and in the accession countries. That is why we are confident that what we are doing is sensible for both the British economy and our society.
Andrew Mackinlay: The press and politicians are preoccupied with the lower-wage end of the market, but on the other side of the coin, will the Home Secretary and the Secretary of State for Work and Pensions deal with some of the professional bodies and royal colleges which are putting obstructions in the way of people with a profession coming here who can meet an unmet need? For instance, there is a surfeit of dentists in Poland, and I want them to be able to come here.
What discussions has my right hon. Friend had with his opposite number in the Irish Republic, bearing in mind our common travel area? Their problems are ours, and vice versa, and if we do not deal with the British Isles, rather than the United Kingdom, these and other measures relating to the control of immigration will not work.
Mr. Blunkett: I said "plumbers or paediatricians"; I should have said "dustmen or dentists", but we are not allowed to say "dustmen" any more. Where there is a market or a shortage, and people have the relevant skills, I am in favour of them coming here, earning their living openly and being able to contribute. I agree entirely with my hon. Friend that that is sensible.
Andrew Mackinlay: The Irish Republic?
Mr. Blunkett: We have of course been in touch with our opposite numbers in Ireland, and they are considering today whether they want to replicate the measures that we are taking.
Mr. Peter Lilley: I welcome the Home Secretary's belated conversion to the habitual residence test, which he and his party so

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vehemently opposed when I introduced it. However, is he aware that, according to the House of Commons Library brief, the accession treaty contains a standstill clause that ensures that rights to access to the labour market prevailing at the time of accession may not be subsequently further restricted? He says that the Government retain full discretion to remove all or part of the concessions at any time, which clearly is untrue beyond 2007. Is there any truth in his statement or in the Library's statement? If the Library is incorrect, what restrictions would he propose subsequently to introduce if the numbers proved excessive?
Mr. Blunkett: There is a right to withdraw the concession within the time scale to which the right hon. Gentleman refers, because it is a concession.
Mr. Lilley: What about the standstill clause?
Mr. Blunkett: Well, our legal advice is very clear, and we believe that we are not bound from 1 May. We do not believe that there will be a difficulty, but if there were, we could return to the issue and consider it anew. What might be open to us is to do as the Germans propose—I am totally opposed to this—and allow people free entry, which they have to do, not allow them to work, but be prepared to countenance their working in the sub-economy. That is both dishonest and dangerous.
Kate Hoey: Will the Home Secretary clarify again the position on social housing? If a properly registered worker enters the country with his family and comes to stay in the borough of Lambeth, where there are thousands of people on the waiting list and people have been told that they must wait seven years for any chance of moving from a two-bedroom to a three-bedroom property, what exactly will be their position?
Mr. Blunkett: The position is as my hon. Friend has just spelled it out: people are likely to wait in excess of seven years to get anywhere near a property, by which time they will have paid plenty of taxes and national insurance and they will be long-standing and valued members of her community.
Mr. Elfyn LIwyd: Does the Home Secretary agree that the whole argument may be a little overblown? His own figures show that last year 78,000 people from the EU managed to claim habitual residence status in this country. which has a working population of 29 million. Does he also agree that any perceived influx would in any event be shortlived, as the eastern European economies picked up?
Mr. Blunkett: That is exactly the point of all parties and all politicians in the House having welcomed accession. The whole intention was to provide a trade area, lifting the standard of living and increasing the interchange of trade of people between countries that are, mainly, former communist states, and that is what we are doing. The EU has accepted that Malta and Cyprus, with which we have tremendous historical
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connections, have freedom across the board in every country for both work and benefits and support, as we do.
I take the hon. Gentleman's point entirely.
On the habitual residence test, it is worth reflecting on the fact that that was tightened by this Government in the Nationality, Immigration and Asylum Act 2002 and in regulations precisely to prevent non-EU nationals resident in the EU from coming here to exploit our system.
Mr. Neil Gerrard: I welcome my right hon. Friend's refusal to bow to the hysteria about large numbers of people coming here and adoption of a sensibly system of allowing people to work here legally. I am sure that he agrees, however, that if it is to work he will have to crack down on employers who are prepared to employ people illegally. Employers who do not bother to check up on people under the current system will not bother to check whether they are registered under the new scheme, but will continue to employ people illegally, to pay less than the minimum wage, to fail to pay national insurance and so on. We have not had a good record in dealing with those employers, so I urge that he take that extremely seriously. We should target people who employ illegal workers to ensure that significantly more are prosecuted.
Mr. Blunkett: I agree that we should step up our inspection and enforcement system. Good employers, including those represented through the TUC, British Chambers of Commerce and the Federation of Small Businesses, are in favour of that. My right hon. Friend the Minister for Citizenship and Immigration chairs an intergovernmental working group to consider how we can improve on section 8 of the Asylum and Immigration Act 1996. That regulatory framework, which was introduced by a former Home Secretary who is now Leader of the Opposition, has signally failed—it never worked and will need radical updating.
Mrs. Gillian Shephard: Officers of Breckland district council, part of whose area I represent, calculate that some 15,000 migrant workers have arrived in the past two to three years. Some are here legally, but some are here illegally, with, in some cases, the obvious consequences of appalling exploitation and pressures on health and other public services. Does the Home Secretary accept that he has left somewhat late his response to what will happen as a result of the European directive? Can he give the House any idea of the numbers he expects to arrive; and can he reassure the House that the pressures on local services, about which I have warned him, his Department and other Departments for at least two years, will be avoided when we have large numbers of additional people in these islands?
Mr. Blunkett: I know the right hon. Lady well, and I know that she will welcome those people coming to Norfolk legally, rather than illegally; their being registered, rather than unregistered; and their being monitored, rather than left to sink in the sub-economy. Through that regulation and monitoring, we will be able to plan for the requirements that she spells out, avoid

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the unwarranted pressures to which she rightly draws attention, and ensure that we have a degree of sensible planning within this flexible market system.
On numbers, I cannot give the right hon. Lady a definitive figure. Last June, we published the figures that have been mentioned. We do not intend to be held to those figures. Neither my right hon. Friend the Minister for Citizenship and Immigration nor I have ever used them—although the Department clearly has, because it funded the research. I have no intention of being held to the 13,000 figure: if I had, I would be a very foolish politician, because in future the only issue raised in this House would not be whether those people were good for our country or had paid their tax or national insurance, but whether I had got the figure wrong.
Mr. Gwyn Prosser: I welcome my right hon. Friend's statement and support his balanced approach. That will also be welcomed in areas and constituencies that have experienced large flows of people from eastern Europe—most seeking asylum and most with unfounded claims. However, does he agree that it is important to raise the issue in those eastern European countries and send a signal that people will be welcome to come to seek work but that there will be difficulties for and restrictions on those who want to abuse the system? What measures will he take to get that message across?
Mr. Blunkett: We spelled out our intention some time ago, but I reiterate it this afternoon: we will spend resources on ensuring that the message is clear, especially in those countries where there is misinformation about people's likely entitlements if they reach our shores. That is fair to them, so that they do not trail themselves and often their children across Europe only to find that they are not entitled to benefit, and fair to us to ensure that those people do not make the attempt to exploit a system that we are now closing down.
Miss Ann Widdecombe: Does the Home Secretary accept that the best word that can be applied to the measure is "dilatory"? Does he recall that his predecessor announced that the Government would not implement the measures that we had introduced against illegal working in 1996 and then two years later had to admit they were wrong? Now, some two years after that, they have managed to prosecute no more than one person—in 2001—for employing people illegally. They have known for a long time that this particular problem was about to arise, and that it is bound to increase the amount of illegal working, because people will have —
Mr. Malcolm Savidge: What is the question?
Miss Widdecombe:The question was, does the Home Secretary accept that the applicable word is "dilatory"? Does the right hon. Gentleman accept—
Mr. Speaker: Order. That should be enough.
Mr. Blunkett: I am tempted to say simply that the answer is no. The applicable term is "common sense".
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Many countries in Europe have not laid regulations or spelled them out in detail. The Germans have done that, but many countries have not set out precisely what they will do. Since I have spelled out precisely the policy that I have enunciated for two years, I can hardly be described as dilatory or contradictory.
Mrs. Ann Cryer: I appreciate everything that my right hon. Friend said in the statement. I want to ask him about the comment that the proposals would provide a platform for a national ID card scheme, under which, in time, all non-UK nationals would be required to register. How will we know who are non-UK nationals if we depend on employers, such as the gangmaster who allowed the men to die in Morecambe bay, to be in charge of registering? Are we reaching the point where we may have to move towards a national ID scheme for us all?
Mr. Blunkett: We are moving towards an ID scheme for us all, as I said at the end of last year. We will introduce a draft Bill in the spring for prior consideration and scrutiny and present it for the House to decide whether it wants to go ahead with the scheme that is being recommended and is now agreed by the Cabinet. Yes, we need to toughen up on gangmasters and ensure that any ID card scheme that commences with overseas nationals takes account of the terrible exploitation of clandestines that I am trying to avoid, through the measures announced this afternoon.
Mr. Andrew Mackay: Is the Home Secretary comfortable about being so out of step with our European Union partners? Is it possible that Sweden, Denmark, Germany, Belgium, Holland, France, Austria, Spain, Portugal, Italy and Greece are all wrong?
Mr. Blunkett: Not all of them are wrong. However, some have decided to adopt bureaucratic methods of achieving the same goal. The British Chambers of Commerce has condemned those methods and the Confederation of British Industry has not welcomed them. I have avoided the massive bureaucracy involved in trying to stop people getting in-in the first place by providing for them to register when they arrive and have a job to do. That is a commonsense approach, which I hoped hon. Members of all parties would welcome.
Keith Vaz: What has happened in the past few weeks to make the Home Secretary renege on a commitment to which the Government proudly held in the past seven years as the champion of enlargement? He has presented no evidence to suggest either that benefit tourists will come here for those purposes or that the Home Office will be able to cope with the new registration scheme. We have already heard about the backlog. On 1 May, surely we should warmly welcome the new members of the EU rather than rip away the welcome mat from under them.
Mr. Blunkett: You see, Mr. Speaker. the dilemmas amid which we walk. I shall just ask my hon. Friend to consider the way in which we maintain community and race relations in this country, the way in which we have

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been able to open up a new work permit system and legal, managed migration, and the way in which we shall become able, during the next few weeks, to welcome people openly as asylum seekers to this country, via the United Nations route, rather than in the back of lorries. Those methods are precisely to ensure that people in this country do not believe that their taxes and national insurance contributions are exploited by those who have no entitlement, have not contributed and would come to this country to draw on one of the most generous welfare state systems in the world. That is the balance that I have achieved right across the board in asylum and immigration, and that is what I am seeking to achieve this afternoon. It is not only common sense; it is absolutely critical to the maintenance of decent race relations in Britain.
Mr. David Cameron: Further to the question asked by my right hon. Friend the Member for Hitchin and Harpenden (Mr. Lilley), if the standstill clause in the accession treaties does not mean that restrictions cannot be introduced after accession, will the Home Secretary explain what he thinks it does mean? Will he make it absolutely clear that he had specific legal advice on the part of his statement that said that
"the Government retain full discretion to remove all or part of the concessions at any time"?
Did he have legal advice on that point?
Mr. Blunkett: That is what I said, and that is what I meant.
Mike Gapes: The Home Secretary said that accession country nationals will have to be able to support themselves for two years. Does that mean a change to the habitual residence test for British-born citizens who have chosen to move to an EU country or to the United States, which would make it more difficult for people to return to this country from working abroad? I should be grateful if he clarified that.
Mr. Blunkett: The statement applies to accession country nationals, not to British nationals returning from overseas. Their entitlement remains the same.
Andrew Selous: On access to social housing, can the Home Secretary confirm whether the restrictions that he spoke of earlier will apply purely to members of the accession countries, or whether they will apply to members of existing EU countries as well?
Mr. Blunkett: The changes that we are bringing about in benefits and housing apply to accession countries, but the restrictions that I have already described relate to those who are not working, rather than to those who are working. On that basis, what we are doing in relation to EU nationals as a whole is consistent.
Ms Diane AbbottThe Home Secretary is to be
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congratulated on his clear defence of legal, managed migration in the face of much media hysteria; but on the question of clandestine, illegal, exploited labour, the consequences of which we saw in the Morecombe bay deaths, may I again stress the importance of bringing pressure to bear on employers? If my right hon. Friend is looking again at the 1996 Act, will he look at how the law bears down not just on employers, but on those who employ the subcontractors and gangmasters who employ illegal labour? Those subcontractors could not tender successfully without their reliance on cheap, unregistered labour.
Mr. Blunkett: Yes, we will certainly do that, which is why we are backing the Gangmaster (Licensing) Bill of my hon. Friend the Member for West Renfrewshire (Jim Sheridan), which will be debated in the House on Friday. We shall give that Bill every support, and good passage.
Mr. Henry Bellingham: Further to the question asked by my right hon. Friend the Member for South-West Norfolk (Mrs. Shephard), is the Home Secretary aware that officers of Kings Lynn and West Norfolk borough council, which covers all of my constituency and part of that of my right hon. Friend, have estimated that last summer there were roughly 2,500 illegal immigrants in Norfolk, many of them in the west of the county? Does the Home Secretary agree that as many of those were probably working in a clandestine manner and being exploited in a sub-economy, it is crucial that he stick to his word and back tighter measures against the ruthless gangmasters who are exploiting those people?
Mr. Blunkett: Yes, and if any of those 2,500 people are from the eight accession countries affected by my statement, we will ask them to come forward to declare themselves and be registered openly and properly, so that they will be entitled to the rights that go with that.
Paul Flynn: My right hon. Friend is right not to overreact to the tabloid hyperbole on this subject. Does he agree that there has been abuse? From the Czech Republic over a five-year period, there were 6,000 so-called asylum seekers, less than 20 of whom were judged to have well founded cases. One of those came to my constituency after a long career in crime in Czechoslovakia. He came with a warrant out for his arrest, and he committed a dreadful crime in my constituency for which he is serving a long sentence now. Can we say that under this new balanced policy people with those intentions will not be allowed to abuse the system in future?
Mr. Blunkett: Certainly, committing crime will not be eligible for registration under the scheme, if I may lighten the tone for a moment. In response to my hon. Friend's question, yes, the scheme will enable us to do so, and we will be able to cross-reference in relation to registration, which will be helpful in that regard.

Expert Witnesses (Family Court Cases)
4.20 pm
The Minister for Children(Margaret Hodge): I share the deep concern that has been expressed both in this House and by the wider public following the Court of Appeal's judgment in the appeal against the conviction of Angela Cannings.
This has been a tragic case and we recognise that there may well be other cases in which parents and children have been wrongly separated. With the passage of time, it is extremely hard to put right past wrongs. When such wrongs are identified, however, we must do what we can. At the same time, it is important to acknowledge that there are cases in which children have properly been separated from parents who have harmed them, or their brothers and sisters—cases in which intervention has served to safeguard the children.
Child abuse is a real issue, which can lead to injury and death. It is essential that we maintain our vigilance as a society in responding to this wrong. We must acknowledge the important contributions of all those professionals—paediatricians, social workers, police officers and others—who work to safeguard vulnerable children. I pay tribute to the vital work that those professionals undertake on our behalf.
The judgment of the Court of Appeal, however, made it clear that in relation to sudden unexplained infant deaths in which the outcome of a criminal trial depends exclusively, or almost exclusively, on a serious disagreement between distinguished and reputable experts, it will often be unsafe to proceed. I therefore welcomed the announcement by the Attorney-General on 19 January of his intention to consider 258 past convictions for the murder, manslaughter or infanticide of children under two, in order to ascertain whether the court decision may have been unsafe. The intention is that such cases might then be looked at further by the Criminal Cases Review Commission or be the subject of an appeal.
Since the Court of Appeal judgment, I have given careful consideration to its consequences for cases dealt with by the family courts. The implications are not straightforward. In a criminal case, the court is concerned only with the guilt or innocence of the accused. If there is any reasonable doubt about the guilt of the accused, he or she should go free. By contrast, in care and adoption cases, the best interests of the child are made paramount.
Although it is ultimately a matter for the courts to determine individual cases that come before them, it is right for me to give proper guidance to local authorities as to how they should proceed. I will therefore write shortly to councils with social services responsibilities to ask them to take the following action. First, I will ask them to consider those cases that are affected by the Attorney-General's review. In those cases, councils should stand ready to act in the light of the outcome of that review.
Secondly, within the next four weeks, councils with social services responsibilities should identify and review current cases. Those are cases in which they have commenced proceedings in relation to a child and in which the court has not yet made a final order. In those cases, councils should consider with their lawyers the implications for those proceedings of the Court of Appeal's judgment in the Cannings case.
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Thirdly, within the next 12 weeks, social services departments should, together with their lawyers, identify cases in which a final care order was made in the past which involved harm to the child or a sibling, and in which the grounds for the making of an order depended exclusively, or almost exclusively, on a serious disagreement between medical experts about the cause of the harm. In such cases councils should again consider, with their lawyers, whether there are now doubts about the reliability of the expert medical evidence. If that is so, they should—bearing in mind the child's current circumstances and current best interests—consider whether to apply to the court for the care order to be discharged, or whether to support any application that may be made by the parents or the child. When reviewing cases, councils will also need to take into account any fresh case law judgments from the Appeal Court that may be relevant.
The number of cases falling in the category that I am asking councils to review is likely to be manageable, although I do not intend to speculate about the precise number. Our best estimate is that it may number no more than the low hundreds, rather than thousands. I am not suggesting that it will be appropriate in every case, following a review, to apply for the discharge of the original care order. The decision must depend entirely on the circumstances of each case.
Councils already have a duty to review the cases of children who are the subjects of care orders at least every six months. Given the range of public concerns that have been raised, it would not be right to impose an arbitrary limit on the types of case that should be reviewed. The key determining factor is that the making of the care order depended exclusively, or almost exclusively, on a dispute between medical experts.
When applications are made to the court, whether by the local authority, the parents or the child, it will be for the court to decide in all cases whether the care order should be discharged. The president of the family division has set out the arrangements to be followed by family court judges in the light of the judgment in the Cannings case. When applications are made, cases are to be listed as soon as possible for directions before a High Court judge in the family division.
Let me now consider cases in which a child has been adopted. There will be cases in which children taken into care in those circumstances have since been adopted. We all accept that adoption is the best option for many looked-after children who cannot live with their birth families. In the overwhelming majority of cases, adoption gives a child the chance to be part of a loving family for life. I recognise that following the Appeal Court's judgment, there will be concerns in cases in which an adoption order followed a care order that had been made on the basis of disputed expert medical evidence. As I have said, however, the position in civil cases is quite different from that in criminal cases.
After adoption has taken place there are, of course, the paramount interests of the child to consider, and the interests of the adoptive parents, as well as those of the birth parents. The whole basis of adoption is that it ensures permanence and finality for all parties. For that reason, only in the most exceptional circumstances have courts been prepared to set aside an adoption order. It is not for me, or for any of us, to say whether any of the cases with which we are concerned would fall into this category. These are very complex issues, and are of course a matter for individuals and the courts.

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It would be wrong of me today to give a false impression of the scope for reopening existing adoption cases, when in truth it is extremely rare. That would give false hope to those who might wish to argue that the original adoption was based on flawed evidence. It would risk causing distress to adoptive families where children are happily settled.
If birth parents are worried, they should take their own legal advice and that of a number of organisations that provide support for such parents. If adoptive parents are worried, they should get in touch with the agency that arranged the adoption to seek further information and support. If adopted children are worried, they should talk first to their adoptive parents or. if that is difficult, to another responsible adult.
Under the Government's new adoption support regulations, which came into force last October, every local authority is required to have an adoption support services adviser, which may be an appropriate point of first contact.
These are difficult and sensitive issues, and there are no easy answers. I have set out a route forward for the period ahead, within the limits of my ability to act. With this review, and with the current and forthcoming judgments in both care proceedings and appeal cases in the courts, we will ensure that we are acting in the best way possible to protect the interests of children, both today and in the future.
Mr. Dominic Grieve: First, I thank the Minister for the advance copy of her statement and for the opportunity that she gave me, and doubtless others, to discuss these matters before she came to the Dispatch Box. She is right when she says that this is a very serious matter, and I welcome the decision to facilitate the local authority review and provide an indication to local authorities of how it should be carried out. It remains a matter of huge public concern. and it relates to what could be one of the worst miscarriages of justice seen in this country for a very long time.
The Minister said that the number of cases is likely to be in the few hundreds, but it is clear from her statement that that relates specifically to cases in which the medical evidence was contested by other medical evidence. Can she give us any indication of how many cases in all there might he that depended on the medical evidence of Sir Roy Meadow, even if that evidence was not challenged? Is she aware that, in many cases—I have this on good anecdotal evidence from within my profession as a barrister—and especially cases heard outside London, when an eminent expert such as Sir Roy Meadow was involved. the Children and Family Court Advisory and Support Service commissioned joint reports from that expert with local authorities, and individual solicitors representing families did not feel readily able to challenge, or to go about the process of finding somebody to challenge, his opinions?
That is evidenced by the fact that in the answers given to the questions of my noble Friend Lord Howe on 12 February, it was pointed out that Sir Roy Meadow was the preferred lecturer of choice at the Judicial Studies Board for nominated child care judges between 1997 and 2001, and his opinion was taken as gospel. Is there
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not therefore a danger that we may be overlooking a large number of cases that still require consideration? I say that mindful of the difficulty and of the Minister's relying only on contested medical cases—but I believe that there may be others. Can she assure us that, by not fettering the type of case that can be considered, which she specifically said in her statement, we can allow local authorities to consider other cases, in which the medical evidence was not disputed by other medical evidence?
Concerning the mechanics, the Minister said that local authorities are required to make an informed criticism of their own past actions—that is clearly implicit in the process that she has set in train.
While I hope that they will be able to do so, my experience in representing local authorities in care proceedings and appearing against them suggests that bureaucracies are often ill placed to review their own past assumptions and the errors flowing from them. I appreciate that the Minister can only give a steer in these matters, but should there not be some mechanism for an independent review of the process, particularly if the numbers are as small as the Minister hopes they will be? As I understand it, CAFCASS, as the guardian of the child's interest in court proceedings, would be involved only if the case went back to court. Should there not be a mechanism for enabling its earlier involvement if that were appropriate?
What resources will be made available to local authorities to carry out the review? I am mindful—I am sure the Minister is mindful—of the fact that local authority social services are enormously stretched. Services are often dependent on locum social workers and often come in for criticism because they are so stretched. Will further resources be made available to local authorities that have to carry out this delicate and self-searching process to ensure that they reach the right decision on whether to return to court?
In reviews of cases where a final care order has been made and an adoption may be imminent, can the Minister give the House an assurance that the adoption process will be frozen until the review is completed? The same applies, to some extent, where current care proceedings cases are pending, but it is much easier to deal with them than cases where the date of the formal adoption may lie at the end of the next week.
It is likely that the review will lead—perfectly properly in some cases—to local authorities taking the decision not to reopen some cases. In those circumstances, what notification will families be given of the basis on which the decision was arrived at? Clearly, in some cases, families may wish to challenge the decision, and I am sure that the Minister would acknowledge that, before they embark on what may be harrowing and difficult litigation, it is important that those families have some idea of the reasoning behind the local authority's decision not to go back to court. Will the Minister give an assurance that proper notification of the background reasons for a local authority decision will he given? Will there be an opportunity for legal aid to be made readily available to families wanting to go to court?
Finally, in cases where adoption has taken place, there may be circumstances in which there is no going back, even though a court might otherwise have wanted to reopen proceedings. However, that inevitably raises the possibility that claims for compensation will be

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made at some later date. I mention that because I urge the Minister to examine that matter now, rather than to let it slide to some later date. If compensation turns out to be payable to families that have been unjustly deprived of children, it is much better to resolve matters in an amicable fashion than to have prolonged litigation over years to come.
When the Solicitor-General made her statement in respect of criminal cases, I said that this is not a party-political issue. It is, however, an issue of great seriousness for the Government, who have to ensure that good government is carried out, and for Parliament, because we have to ensure that injustices are righted. I look forward to continuing to co-operate with the Minister to achieve that end.
Margaret Hodge: I thank the hon. Gentleman for his contribution and I assure him that I also view this as an extremely serious matter, in which the House has huge interest and concern. I shall report back as regularly as is appropriate, as I fully intend to keep the matter under review in the forthcoming period.
The hon. Gentleman asked about cases where the evidence was not disputed and the sole basis for undertaking care proceedings for a child was the conduct of a particular individual. He asked whether there would be a review of those cane proceedings and he will know that all care cases are reviewed every six months. I have no doubt that in cases where one particular individual was the sole expert in the proceedings, local authorities will act in a sensible and rational manner and review them.
I also draw to the hon. Gentleman's attention a fact that, as someone who has practised in that field, he will already know—that on the whole, when care proceedings are taken, although medical evidence is one of the issues on which the decision is based, the best interests of the child are seen in the round, and the courts have regard to many other factors before coming to a decision.
In asking local authorities to review cases, I am mindful of the fact that the Cannings judgment and what has arisen from it do not constitute a criticism of local authorities' conduct of care proceedings. New information has come to light, and it is in the context of that new information that we are asking local authorities to proceed as they have done in the past in reviewing the cases of children who are subject to care orders. The issue is therefore not a challenge to the local authority process or procedures. The hon. Gentleman will also know that in every local authority review process, an independent review officer will have a role to play in determining how to go forward with a case, and I think that that provides sufficient independence to give us confidence in the procedure.
The hon. Gentleman asked about local authority resources, and we shall watch that issue closely, because we have always said that we would compensate local authorities for new burdens. What happens will depend on the extent to which additional work falls on local authority departments, especially social services departments. We shall have to keep the matter under constant review.
The hon. Gentleman also asked whether, when an adoption was imminent, a decision to adopt would be held, subject to the completion of the review. Of course
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that is the sensible way forward, and I can give him that assurance. He also asked whether families would be notified about why local authorities had taken particular decisions in reviewing particular cases. Again, that is a sensible idea, and we would encourage local authorities to do that as they come to the conclusions of their reviews.
The hon. Gentleman asked whether legal aid would be available for families. The answer is yes, on the usual means and merits tests that exist for current civil proceedings. He also asked whether we had thought about claims for compensation. We have considered that matter, and I entirely agree that we must keep it under close review, so that should such action be taken by individuals against particular local authorities, it would come as no surprise.
Mr. Tam Dalyell: Frankly, my question is based on gossip—but it may be informed gossip. Were there points at which the Government machine raised the proverbial eyebrow at the decisions of Sir Roy Meadow, given the fact that many people could not swallow the figure of one in 73 million? Why on earth one in 73 million? Small oddities often reveal bigger oddities, so my question is: were there warnings inside the Department, as there certainly were with other cases in the Scotland Office, about that so-called medical expertise? I am not challenging the medical expertise, but we must ask questions about anybody who could be so silly, statistically.
Margaret Hodge: Whether there is credibility in the evidence given by a particular individual is a matter not for the Department but for the courts. The issues with which we have to deal are incredibly difficult. With judgments in relation to child proceedings in the courts there is often disputed medical evidence, and it is difficult to say that the science is certain. Furthermore, as our understanding of the science proceeds, matters change. There is increased understanding of the issues surrounding the unexplained deaths of children, which has led to review by the courts, and to the decisions of the courts on which we are now acting.
Mrs. Annette L. Brooke: I, too, thank the Minister for her courtesy in providing an early discussion, and for making her statement available in advance. I associate myself with her comments about the tragic cases and extend my sympathy to all those involved. I also associate myself with the comments of the hon. Member for Beaconsfield (Mr. Grieve), which I shall not repeat.
I accept that each case is individual, but people will want reassurance that all councils are following the same procedures. For example, the phrase "best efforts" occurs in the statement, but what monitoring will there be to establish the performance of councils reviewing current cases over the next four weeks? What monitoring will there be across councils to establish uniformity of approach as a result of the review both of current cases and of those cases where a final care order has been made?
Many people face uncertainty—birth parents, adoptive parents and adopted children—so will the Minister consider setting up a national helpline for the first point of contact, with clear routes for further advice?

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Has there been, or will there be, any research into child deaths that have occurred after an adoption that itself took place because the natural parent was judged to have Munchausen syndrome by proxy? That might shed further light in respect of expert witnesses.
What discussions has the Minister held with colleagues in the Department for Constitutional Affairs and the Home Office in the light of the review of the coroner service and the lack of paediatric pathologists? What efforts are being made to fill the vacant paediatric co-ordinator positions in regions throughout the country? It is important that people are not deterred from applying for those vital positions.
Finally, does the Minister agree that, despite the great concern that we are expressing today, if justice is to prevail, the police, social services and other professionals must not be discouraged from fully investigating all cases of suspected child abuse?
Margaret Hodge: I welcome the hon. Lady to her new position as the Liberal Democrat representative on children's affairs. I concur entirely with her final statement: it is extremely important, in the prevailing climate, to re-state our commitment to all the professionals who work in the extremely difficult field of trying to detect and prevent child abuse and who have responsibility for safeguarding children. Indeed, one of my concerns throughout the process has been to support many of the paediatricians who work in that field, who feel vulnerable and threatened by much of the criticism that has been levelled against them. There are difficulties in recruiting high-quality paediatricians to support the work of safeguarding children. We cannot tolerate that, and we want to support the profession in recruiting and keeping high-quality individuals to work in that field.
The hon. Lady asked whether councils would do as we asked. We are issuing guidance and that will form the basis of the requirement that they act as we have asked them to do. She asked whether we would establish a national helpline. We considered that, but, as a range of support agencies is in situ, we decided that it was better to work through the helplines and organisations that already exist. All local authorities have adoption support facilities and a number of national organisations offer support to all the groups of people who might be involved. Such organisations include NORCAP—the National Organisation for the Counselling of Adoptees and Parents—the Family Rights Group, After Adoption and the Post-Adoption centre. There is a whole range of such groups and we thought it better to work through them.
Any child death, whenever it occurs, will of course be investigated, so I did not quite get the point that the hon. Lady was making about that. Any child death will be the subject of investigation by the relevant professionals. With that, I think that I have dealt with most of the hon. Lady's questions.
Mr. Hilton Dawson: I commend my right hon. Friend for a balanced and wise response to a very difficult situation. Will she assure me that the independent reviewing officers, who have a crucial role in chairing the six-monthly statutory reviews
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of children in care, will play a full part in the process? Can she confirm that those officials will have a direct line to CAFCASS if they feel it is necessary in defence of children's rights?
Such situations may involve children who are settled and who cannot possibly be disturbed, but given that care situations and adoptive placements are more open these days, will she assure me that the president of the family division and her colleagues will look more sympathetically upon applications for contact from parents who have been placed in such dreadful and tragic situations?
Margaret Hodge: First, I acknowledge my hon. Friend's important role in supporting social workers in their work of safeguarding and protecting children and the wide professional experience that he brings to the House.
Secondly, I confirm that the independent reviewing officer will play a key role. My hon. Friend knows that we are developing advocacy support arrangements in all local authorities—some arrangements are more developed than others—so that the child's interest and voice are heard in difficult proceedings. There are also a number of national organisations and children's rights officers in local authorities. I hope that the National Youth Advocacy Service and others will play their part—ChildLine is, of course, the first port of call for many young children
Finally, my hon. Friend raised the issue of contact for adopted children, where it may be appropriate for them to re-establish contact with a birth parent. Again, the matter is for the courts, where children's cases may be taken. I am sure that the courts will examine such situations sympathetically where it is appropriate to do so.
Sir Patrick Cormack: May I press the Minister on the matter of Sir Roy Meadow? Will she assure the House that every case in which he has been an expert witness will be re-examined? There is wide public disquiet.
Margaret Hodge: The hon. Gentleman probably knows that we do not keep central records of local authority care proceedings, so there is no way to detect the number of cases in which the advice of one particular individual was used. It would be inappropriate for me, or indeed for him, to pass judgment on all the cases in which Sir Roy Meadow gave evidence, and in particular those involving children, before the General Medical Council has examined Sir Roy Meadow's professional competence and his evidence—Sir Roy Meadow is currently subject to GMC proceedings. I assure the hon. Gentleman that under the guidance that I am publishing, local authorities will review cases in which the decision to take a child into care rested wholly or mainly on disputed medical evidence and make sure that the child's best interest is promoted and protected.
Vera Baird: I compliment my right hon. Friend on the care that she has taken over the weeks to ensure that this difficult matter is dealt with correctly and fairly. Will she consider this possible further step? The local authorities that are being guided

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to review such cases were, of course, adversarial opponents of parents in cases that relied upon such evidence—they will, of course act with integrity now. None the less, it would perhaps be wise to communicate with the Law Society's family law practitioner group, which is certain to have acted for parents. In cases where such evidence was given, local authorities should perhaps examine their old files and consider whether there is further advice that they should proffer to parents, so that parents are fully apprised of their position straight away. On ascertaining the cases in which Professor Meadow has appeared, it would be a good idea to ask him for his tax records.
Margaret Hodge: I compliment my hon. and learned Friend on the work that she has done on this difficult issue and the positive contribution she has made to the deliberations on how to move forward on these complex matters. I will certainly consider her suggestion of asking the Law Society family practitioners group to give advice to parents and I will come back to her on that point. We will keep under review her suggestion that we should take further action in relation to one particular individual and his expert witness activities.
Mr. Robert Key: In anticipation of the Minister's welcome statement, I spoke not two hours ago to Councillor Judy Seager, the cabinet member responsible for social services for Wiltshire county council. She raised the important issue of what happens when a case has to be reviewed but the evidence was heard in camera. What guidance would the Minister give in those circumstances?
Margaret Hodge: We have considered such difficulties and the best advice is that in reviewing whether a care order should be revoked or amended—which is the focus of the review—individual social service authorities will have to look back at the best record they have of the evidence given. I recognise that there is not always a full record of the proceedings, but we can trust the professionals engaged in this review to take a commonsense approach to the matter, to review the reasons why a care order was made and decide whether, in the interests of the child, they should review it and refer it back to the courts.
Mr. Michael Jabez Foster: As the father of two adopted sons who are now far too old to be involved in this issue, I am conscious of the concern, distress and apprehension felt by many adoptive parents about what might happen. Would my right hon. Friend be prepared to say that it would be unusual for adoption orders to be overturned or revoked? However, it is important to have some process by which a wrong can be righted, perhaps by a declaration of some kind. Has she given some thought to how the record may be put straight without necessarily overturning adoption orders?
Margaret Hodge: My hon. Friend is right to say that it would be unusual for adoptions to be overturned. I hope that I made that clear in my original statement. Whether a declaration could be made in relation to particular birth or adoptive parents is a matter for the courts, and that is why my advice would be for individuals to seek legal advice and return to the courts if appropriate.
Mr. George Osborne: The statement by the Minister anticipates the debate that I have been granted in Westminster Hall on this very subject tomorrow. Will she return to the point that my hon. Friend the Member for Beaconsfield (Mr. Grieve) raised and say why she is restricting the guidance to disputed cases? Why did she feel unable to issue guidance to local authorities about cases with just one piece of evidence about sudden infant death, given what we now know about the Court of Appeal's verdict in the Angela Cannings case and the case of Sally Clark, my constituent?
Margaret Hodge: I was mindful of the Cannings judgment, which was very narrow indeed and related to disputed evidence in respect of just one category in which care proceedings and possible adoption proceedings could take place, where an unexplained infant death or multiple deaths had taken place. We broadened that very narrow category to provide for the review of all cases in which an instance of disputed medical evidence was the only or main reason for referring them to court.
I shall simply reiterate what I told the hon. Member for Beaconsfield (Mr. Grieve), which is that in most care cases where only one medical expert has given evidence, the courts and social services departments will have considered other issues in looking at the best interests of the child in the round. We have to trust the common sense of social services departments to ensure that, in their statutory six-monthly review of all care orders, they will have regard to the sort of evidence that led to a care order being instigated in the first instance.
I think we have got things about right in this difficult policy area, but I assure the hon. Gentleman that, if that proves not be the case over time, I will return to the House with further proposals.
Ms Sally Keeble: I welcome my right hon. Friend's statement. She has referred to the lack of centralised information. In view of the public concern and the serious public policy issues, will she consider publishing some of the results of the reviews that local authorities have undertaken and ensure that the best practice from those reviews is captured and disseminated widely across social services? I hope that, as a result, improved procedures would work through local authorities and not only apply to cases that come under the present review, but improve arrangements for children in care on a much wider basis.
Margaret Hodge: We must beware of giving publicity to individuals. This is a very difficult area, and publicising details about how individual cases have been considered is extremely difficult. In dealing with the situation that arises from the Cannings judgment, there has been no criticism of the way that local authorities have conducted the reviews and taken the decisions about whether or not to proceed with action in the courts in relation to individual children. What has happened is that, because of the new knowledge and evidence and because of the judgment of the courts, local authorities must now have regard to the new information that is available to them and consider each child's interests in the light of that new judgment. It is in no way a criticism of local authorities that has led me to make my statement today or has caused local authorities to undertake the review that I am asking them to undertake.

Point of Order
5.3 pm
Mr. Owen Paterson: On a point of order, Madam Deputy Speaker. The Dairy Crest site in Ellesmere in my constituency has lain derelict for 15 years. A proposal to develop it has the support of the town council, North Shropshire district council, Shropshire county council and the regional development agency and was passed with flying colours by the Deputy Prime Minister's inspector last March. It therefore caused total consternation in the town when the Deputy Prime Minister threw out the proposal—a decision that was seen to be arbitrary and capricious. I wrote to him on 3 February, asking that I be allowed to bring a delegation of local councillors and other parties to meet him. He has refused to see me on the grounds that he has a judicial role in the matter. I have also been told that I cannot see any of his other Ministers. What advice do you have for me, as the elected representative of the public of Ellesmere, whose town will be blighted for a generation unless that proposal goes through? How can I represent my constituents' interests when the Deputy Prime Minister and his fellow Ministers flatly refuse to see me?
Madam Deputy Speaker (Sylvia Heal): I am grateful to the hon. Gentleman for giving notice of his point or order. If he consults the Table Office, I am sure that he will be able to find a way to raise his concerns with a Minister in the House.

Orders of the Day

  Gender Recognition Bill
  Order for Second Reading read
  5.4 pm
  The Parliamentary Under-Secretary of State for Constitutional Affairs(Mr. David Lammy): I beg to move, That the Bill be now read a Second time.
  The Department for Constitutional Affairs was created in June last year to spearhead across government a coherent programme of constitutional reform. This programme is designed to improve the credibility and effectiveness of our constitutional arrangements, engage citizens in decision making and enhance trust in our public institutions.
  The Bill is part of the Government's commitment to reforming the constitution so that it better meets the needs of all people. It reflects, too, our commitment to social inclusion. Transsexual people are a small and vulnerable minority in our society and the Bill addresses one of the key problems that they face. It is essential that no one is left behind as we create the conditions for a credible and effective modern democracy.
  There is a strong tradition of legislation in this country that has sought to respond to the concerns and needs of minority groups—whether they have been ethnic minorities, people who are disabled or, with this Bill, transsexual people. As you know, Madam Deputy Speaker, the Government intend to introduce legislation this Session that will enable same-sex partners to acquire a legal status for their relationships. I believe that the reformist tradition behind such measures is one that the country can be proud of. We, as a Government, are committed to continuing that tradition.
  The Bill provides transsexual people with the opportunity to gain the rights and responsibilities appropriate to the gender in which they are now living. At present, transsexual people live in a state of limbo. Their birth gender determines their legal status.
  Kali Mountford: My hon. Friend has now referred at least twice to transsexual people and once to gender dysphoria. Will he clarify whether the definition, for the purposes of this Bill, includes people who were born with ambiguous genitalia and whose proper gender could not he identified at birth, or does it cover only people who are identified by the medical profession as having gender dysphoria?
  Mr. Lammy: I know that my hon. Friend has taken a keen interest in these issues. The Bill does not specifically deal with people who are born with ambiguous genitalia. They are, of course, already able to re-register their birth certificates with the general registrar after having the appropriate medical assessment. The Bill deals specifically with people with gender dysphoria who present themselves as having acquired a new gender because they are driven to that by the medical condition surrounding gender dysphoria. I shall come to that point, but I am grateful to my hon. Friend for raising it.

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  The Bill provides transsexual people with the opportunity to gain the rights and responsibilities appropriate to the gender in which they are now living.
  Mr. Frank Field: We will be discussing the Pensions Bill next week, and although my hon. Friend may not be able to reply to this point now I hope that he will consider it before this Bill reaches Report. He is stressing the rights and duties of transsexual people, but we must also consider the rights of the people who were their partners. Will he therefore consider carefully what might happen to the pension rights of women who, under the Bill, may lose not only their rights to the company pensions that they expected as partners or perhaps as widows, but their national insurance pension rights?
  Mr. Lammy: I know that my right hon. Friend has much experience of this issue, and I inform him that we are examining pension arrangements closely. He will understand that many of those arrangements relate to the pension arrangements for same-sex couples, and we will introduce our civil partnership legislation in that regard. We are considering the matter closely, and I suspect that there will be much debate about it in Committee.
  Mr. Field: The question of pensions for same-sex partnerships will be about extending pension rights. However, the concern of some wives in this situation is that they will lose pension rights.
  Mr. Lammy: In a sense, the issue of people in same-sex relationships has arisen in the same context, and I have certainly received correspondence from transsexual people who will find themselves in same-sex relationships. I accept the point that my right hon. Friend makes, and I am sure that we will look closely at this complex issue in our debates in Committee and on Report.
  Mrs. Gwyneth Dunwoody: My hon. Friend is being very tolerant in giving way. This issue is very important, because a decision officially to change a gender could wipe out the entitlement of a previous wife and family, who were not involved in the decision in any way, through no fault of their own. That is very unfair and will have a direct impact on many people's lives.
  Mr. Lammy: Of course, there is choice—the Government are not requiring transsexual people to apply for a gender recognition certificate. They will look at the choices available to them, and different pension companies will take a view on these matters. But my hon. Friend is right: some very important pension issues arise. We are looking at them closely, both for same-sex couples and for existing couples who will be in opposite sex relationships.
  Sir Patrick Cormack rose—
  Mr. John Bercow: Will the hon. Gentleman give way?
  Mr. Lammy: No, I shall make progress, if I may.
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  At the moment, transsexual people live in a state of limbo. Their birth gender determines their legal status, even though they may have lived fully in the opposite gender for many years.
  Sir Patrick Cormack rose—
  Mr. Bercow: Will the hon. Gentleman give way?
  Mr. Lammy: If I may, I shall make some progress. [Interruption.]
  Madam Deputy Speaker (Sylvia Heal): Order. The hon. Gentleman will indicate when he is prepared to give way.
  Mr. Lammy: Without legal recognition of their acquired gender, transsexual people face a wide range of problems. Frankly, there may be few other matters that are quite so personal, yet because of the disjuncture between their birth gender and the gender in which they are now living, transsexual people may have to describe their gender history to complete strangers when they seek insurance or employment, or when they visit their child's school. The Gender Recognition Bill will ensure that this intensely private matter remains private.
  More than that, transsexual people currently have no access to the legal rights and responsibilities of their acquired gender. Although a person may have lived as a man for many years, for example, because his legal status remains that of a woman he is entitled to marry only another man—he may not marry a woman. After a proper process of transition under medical supervision, and after the determination of the judicial panels that this Bill provides for, we think it right that transsexual people should have access to the rights and responsibilities of the acquired gender.
  Mr. Bercow: I am grateful to the Minister for giving way. In fact, I am trying to be helpful to him. I support this Bill. It is fair-minded, it should certainly get a Second Reading and I hope that it progresses successfully through the House, but may I politely point out that it would probably help at this stage if the Minister were able—in response to the right hon. Member for Birkenhead (Mr. Field) and others who are quizzical on the point—to confirm that in advancing the rights of transsexuals, which the Bill correctly does, he will guarantee that the rights of other people who could be affected in the process will not suffer in any way? That is the only assurance that the Minister need give.
  Mr. Lammy: I think that I have said that the Bill is also a matter of choice for people when considering carefully whether they want to go forward with these matters. That is clearly a decision that transsexual people will take with their partners and think about carefully.
  Sir Patrick Cormack: Will the hon. Gentleman give way?
  Mr. Lammy: I shall make some progress, if I may.
  The Bill has a long history. It has emerged from about 20 hours of scrutiny in another place and is the product of much prior thought and consultation with

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  stakeholders—we were determined to get it right. The Government have been working on issues affecting transsexual people since 1999. The interdepartmental working group on transsexual people published its report in April 2000 and was reconvened in 2002 to resolve finally the many difficult technical issues involved in changing a person's legal status. That work led to our announcement on 13 December 2002 that legislation would he introduced, and to the publication of a draft Bill on 11 July 2003.
  Sir Patrick Cormack: I am grateful that the hon. Gentleman has at last given way. If the Government have been working on the Bill for all these years, why can he not answer clearly and unequivocally the question put by the right hon. Member for Birkenhead (Mr. Field) and the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), from his side of the House, and by his sympathetic supporter, my hon. Friend the Member for Buckingham (Mr. Bercow), from this side of the House?
  Mr. Lammy: On pension rights, I said that specific issues arise for same-sex couples in civil partnerships. Specific issues arise for a person who was previously a woman and would have been required to retire at 60, but who would be required to retire at 65 after acquiring the new gender of a man. There are, quite properly, matters that a family will have to consider when deciding whether to go forward with gender recognition, which, of course, will pertain to pension rights that exist under specific policies. Those matters will properly be debated in Committee, but, if I may, I shall make more progress.
  Lynne Jones: May I try to be helpful to my hon. Friend? I understand that it is the intention that if there is a marriage in which both partners wish to continue their relationship and the transsexual person wishes to have full recognition, it should be possible for the marriage to be dissolved and for a new same-sex partnership to be created in the same day. Therefore, should it not also be possible for pension rights to be transferred?
  Lammy: That is something that the Government should quite properly consider in line with the civil partnership legislation that we hope to introduce in this Session. In that sense, I do not want to prejudge the debate that we will have on that matter, but I am grateful to my hon. Friend for raising an important issue.
  The draft Bill was considered by the Joint Committee on Human Rights. Although differences of opinion remain between the Committee and the Government, after a period of detailed scrutiny and receiving 47 separate submissions, it was on the whole satisfied that the Bill would bring the UK into compliance with its obligations under the European convention on human rights. I should say something about those obligations because they underline the importance of having UK legislation in this area. The European Court of Human Rights interpreted the convention, which is now a part of UK law, in the case of Goodwin v. UK, and its judgment stated that a system for recognising
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  transsexual people in their acquired gender must exist and that transsexual people must be granted their rights under article 8, the right to respect for private life, and article 12, the right to marry. The Law Lords, in the case of Bellinger, concurred with the view that transsexual people ought to have a means of marrying in their acquired gender. Their lordships stated that transsexual people do not have that right at present and that legislation would be required to ensure that they do.
  The Bill proposes to provide legal recognition in the acquired gender to those transsexual people who have taken decisive steps to live fully and permanently in that gender. The effect of legal recognition will be that a transsexual person gains the legal rights and responsibilities appropriate to the acquired gender.
  Tim Loughton: As we have not made much progress on the thorny issue of pension rights, may I ask the Minister about another practical implication of the Bill? Will prisoners be liable to apply for a gender change certificate if they started that exercise before they became prisoners? If so and they are granted a certificate, what will be the accommodation arrangements for that prisoner? Will he or she have to be moved, or is this something else that the Government need to think about but have not, as with pension rights?
  Mr. Lammy: Prisoners can apply and that person will be subject to prison arrangements for their new acquired gender. We are talking about a very small group of people and the hon. Gentleman knows that that situation would arise in limited circumstances.
  Miss Ann Widdecombe: I am grateful to the Minister for giving way; I appreciate that he is taking many interventions.
  If a woman who has lived her life as a woman, has been registered at birth as a woman and has borne children decides that she wishes to change gender to become fully a man, and the birth certificate is rewritten to reflect that, who is the legal mother of those children?
  Mr. Lammy: She is the parent of those children and she has acquired a new gender, but the right hon. Lady should let me describe the terms under which the panel will make that decision.
  The specific provisions are divided into three sections. The first makes provision for applications for a gender recognition certificate. The second sets out the consequences of the issue of a gender recognition certificate. The third deals with supplementary matters.
  The first section sets out the criteria for application and the process by which applications will be determined. That process must be robust, credible and sustainable. That is why the Bill proposes the establishment of gender recognition panels to determine all applications. The panels will consist of legally and medically qualified members. Schedule I sets out some of the detail of the proposed practice and procedure of the panels. We will continue to work with the professional medical bodies to ensure that the panels consider only medical evidence that comes from reputable sources. We will also continue to work with

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  groups representing the transsexual community to ensure that the process does not place undue demands on applicants.
  An application for recognition in the acquired gender will be considered according to three criteria set out in clause 2. The person must have or have had gender dysphoria, the recognised medical condition that drives the transsexual person to live in the opposite gender. A person must have lived in the acquired gender throughout the preceding two years and must intend to continue to do so until death.
  Mr. Andrew Robathan: I have been listening with great care. I do not applaud the Bill. I think it is the most arrant nonsense. However, will the Minister explain what happens if, after someone has acquired a new gender, they decide that they wish to go back to their previous gender?
  Mr. Lammy: I am sorry that the hon. Gentleman does not support legislation that attempts to support a vulnerable group of people. However, he is right that a very small minority of people wish to return to their existing gender. The panel will be able to consider that request.
  Mr. Mark Oaten: Does the Bill provide the opportunity for an individual to appeal against the panel's decision, and, if so, how does that work?
  Mr. Lammy: Individuals will have the opportunity to return to the panel six months later to request that the decision be reconsidered.
  The criteria are designed to establish whether a person has taken decisive steps to live fully and permanently in their acquired gender. That must be the test for legal recognition in the acquired gender, not whether the person's physiology fully conforms to the acquired gender and not whether they "look the part". Such tests are inappropriate and inconsistent with our broader ambition to respond to the needs and concerns of a small minority group.
  The Bill must also account for the situation of the relatively small number of transsexual people who are in existing marriages. After recognition in the acquired gender such couples will become same-sex couples, and marriage is of course an institution for opposite-sex couples. It has always been so, and the Government intend it to remain that way. That means that existing marriages will have to end. We acknowledge that that will have emotional and practical repercussions.
  The decision to require existing marriages to end was not taken lightly. Ultimately we believe that these same-sex couples should be treated in the same way as other same-sex couples and should therefore have access to the civil partnerships that the Government propose to make available for same-sex couples, but marriage should remain an institution for opposite-sex couples.
  Angela Watkinson: I thank the Minister for giving way; he has taken an inordinately large number of interventions. The explanatory notes say that if somebody who is married acquires a new gender and an interim gender recognition certification, the marriage is voidable, but they also state:
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  "Proceedings for dissolution on this basis must be begun within six months of the issue of the interim certificate."
  Does that mean that after the six months have elapsed the spouse loses the right to have the marriage voided on those grounds?
  Mr. Lammy: It is our intention to make this process as swift and easy for the applicant as possible. We would like the process to take place in a day, but six months is the period within which we have mandated that that decision should be made.
  Mr. David Rendel: Will the Minister give way?
  Mr. Lammy: If the hon. Gentleman will forgive me, I will make some progress. I have taken a number of interventions, and if I can make progress we can then have a full debate.
  In short, although the marriage will have to end, there is no impediment to the continuation of the relationship, and, should civil partnership legislation be enacted, it will be possible for the relationship to regain a legal status and for there to be mutual rights and responsibilities.
  On how the marriage is to end, we are concerned to leave the individual in control of the process and to tackle the practical difficulties that ending an existing marriage may create. If a married individual applies and is successful, he or she will receive an interim gender recognition certificate, which will provide the basis, in schedule 2, for a new ground for dissolution of the marriage. On dissolving the marriage, the court will substitute a full gender recognition certificate for the interim one. In that way, the Bill proposes to avoid the situation where a married applicant first has to end his or her marriage and only then learns whether his or her application meets the criteria. The process provided in the Bill eliminates the potential for that vulnerability and allows a person to plan his or her affairs. When dissolving the marriage the court will also be able to deal with practical matters such as the sharing of pensions or making provision for children of the family.
  The Government will also introduce during this Session legislation on same-sex civil partnerships. Should that legislation be enacted, a couple who have to end their marriage to allow one party to gain recognition in the acquired gender will be able to enter into a civil partnership. After the recognition of the acquired gender, they will he a same-sex couple like any other, and will have access to the rights of a same-sex couple. The effect of that is that the couple will be able again to acquire a legal status for their relationship, with legal rights and responsibilities. We plan to make it possible for a couple to end their marriage, for the full gender recognition certificate to be issued, and for a civil partnership to be formed, all on the same day.
  The second section of the Bill outlines the consequences of issuing a gender recognition certificate. The consequences are largely straightforward. The two main principles are stated in general terms in clause 9. Once a certificate has been granted, a person's gender becomes in law the acquired gender. The Bill proposes to provide transsexual people with access to the rights and responsibilities that are appropriate to their

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  acquired gender. This change of gender is, however, prospective only—the Bill does not seek to rewrite history.
  Clause 10 and schedule 3 are critically important. Following a successful application for recognition, the panel will issue a gender recognition certificate. The appropriate Registrar General, depending on whether the individual's birth was initially registered in England and Wales, Northern Ireland or Scotland, will then create a new record on the individual in the gender recognition register. A birth certificate in the new name and gender recorded on the gender recognition certificate can then be issued from the new record. The link between that new birth certificate and the original birth certificate will be confidential. I want to make one thing very clear. The original birth record will not, and should not, be erased, because it is a record of a historical fact. The original birth record will remain in existence, and any person who has the original birth details will have access to a certified copy of that record. The point of issuing a new birth certificate is to allow the transsexual person privacy by not revealing their gender history in a public document. We feel that this is a reasonable safeguard for that small group of people.
  I shall mention one vital aspect of the third section of the Bill. Clause 22 prohibits the disclosure of information about a person's application for gender recognition or about a successful applicant's gender history. That information is to be protected whenever it has been acquired in an official capacity. Changing gender is a difficult process. It is difficult in terms of the person's own identity and in terms of their relationships with others. Recognising the change of gender in law will produce benefits for transsexual people. Those benefits will be undermined if there remains open access to, and open disclosure of, the fact that the person was once of the other gender.
  Gender dysphoria is, after all, a medical condition whereby a person feels driven to live in the opposite gender. To be reminded of the original gender, to be regularly confronted by it, and to have others knowing that one suffers from that medical condition and to know that they might be talking about it is not conducive to feeling secure and it makes it very difficult to live in the acquired gender in dignity. We do not believe, as a Government, that we are able to, or should seek to, prevent all rumour and gossip—that would require too great an encroachment into the private sphere—but we do believe that those with access to information about a person's gender history in an official capacity should play no part in any such activity. Clause 22 seeks to achieve that.
  There will be instances of the individual's previous identity being relevant. All human rights legislation should try to balance the rights of one set of individuals with the rights and interests of others. To that end, clause 22 sets out the limited circumstances in which disclosure is permissible, for example, for prevention or detection of a crime or in pursuance of a statutory duty.
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  I should like to add to the theme of respecting the rights and interests of third parties. Schedule 4 contains a conscience clause for ministers of the Church of England and the Church in Wales.
  Lynne Jones: I wish to take my hon. Friend back to clause 21, which covers foreign gender change and marriage. I apologise for not intervening at the appropriate time. Why is it necessary for transsexual people who have full legal recognition abroad to apply to the panel for recognition here? What would be the status of marriages that take place abroad? Would it not simply be possible to recognise countries that grant legal status and accept that status in this country, provided that we have approved the process, just as we accept a passport from another country as a valid document?
  Mr. Lammy: Let me say to my hon. Friend that we [Interruption.]
  Madam Deputy Speaker: Order. Perhaps we could hold only one debate in the Chamber.
  Mr. Lammy: We want to ensure that the standards in other countries are the same as those that we apply here. We also want to make sure that we do not create a position whereby people who cannot get the gender recognition certificate here apply abroad to fulfil the criteria. That is why we believe that it is right for the panel to consider applications. My hon. Friend will understand that the applications are essentially considered on the papers and that, over time, the panel will build up expertise on the criteria and standards in other countries.
  Schedule 4 contains a conscience clause for ministers of the Church of England and the Church in Wales.
  Donald Anderson: My hon. Friend is about to deal with the conscience clause and the exemption for the Church of England and the Church in Wales. I hope that he agrees that members of other Churches, including the free Churches, also have consciences. Will he guarantee that the proposed legislation does not mean that Churches in other denominations will experience expensive litigation because of deeply held views of conscience? My hon. Friend will know of a case in south Wales in which an individual took a free Church to court unsuccessfully under the Sex Discrimination Act 1975. It could have been liable to expensive litigation. What exemption is he prepared to give those free Churches—probably a small minority—that, because of their religious views, will not wish to accept the Bill?
  Mr. Lammy: The Church of England and the Church in Wales have a specific exemption because of their obligations to solemnise marriages. That does not pertain to free Churches. The Bill does not extend the law on equal rights and equal opportunities in human rights or other legislation and it therefore places no extra duties on the free Churches. Doubtless the transsexual person who applies will be minded of the understanding of the priest or clergyman of those matters.

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  However, it is important to make the distinction between the specific status of the Church of England and the Church in Wales, which have obligations when someone asks for a marriage to be solemnised, and that of other Churches
  Donald Anderson: What about the very real danger of Churches being put to expensive litigation because of activists in this field, and of being bankrupted on grounds of conscience?
  Mr. Lammy: That does not arise, in that the Bill does not make provisions in relation to equality in any new fields, beyond our existing arrangements. My right hon. Friend might know that when the Joint Committee on Human Rights considered the matter, there was some discussion on extending discrimination, and hon. Members might well seek to take those arguments forward later in this debate, but the Government's view is that this Bill is specifically about gender recognition. It is not about wider issues of discrimination relating to transsexual people, which might well pertain to the issue that my right hon. Friend raises and lead to new powers and legislation.
  There was considerable discussion in another place of the interests of family members of applicants. We clarified that the gender recognition panels will be able to take evidence from immediate family members and that, in the case of a spouse or partner, we would expect them to do so. That will be pertinent to the criteria in the Bill.
  The Bill seeks to provide transsexual people with the opportunity to enjoy the rights and responsibilities appropriate to their acquired gender, and to leave behind the vulnerable position—the limbo between two genders—that they currently have to endure. However, it also has a wider impact. It, affirms the values of tolerance, inclusion and social justice that are we as a country embody, and that we as a Labour Government are committed to fostering.
  5.42 pm
  Mr. Tim Boswell: I am grateful to the Minister for his attempts to explain the Bill. Given that he has run into considerable difficulty with questions from both sides of the Chamber for the past 40 minutes, it would be fair and charitable for me to say that I attribute at least some of those difficulties to the Bill's inherent complexity, rather than to any deficiency on his part. Indeed, to give a rare compliment, it is a little unusual for the present Government to take such trouble over the details of legislation.
  It is possible to read the clauses, if not the schedules, with a degree of understanding, which reflects the history of the Bill's creation, including the preparatory studies of the interdepartmental working group on transsexual people—which the Minister's Department reconvened, with an extended remit, to consider the implications of the Goodwin judgment—and the wise publication of a draft Bill last summer. There were then the observations of the Joint Committee on Human Rights and the Bill's introduction in substance in another place, which led to some thorough and lively debates. I sense that those might continue in this place.
  The Joint Committee and others have declared the issues complex and delicate, and I thoroughly endorse that comment and share the Committee's concern. I
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  want to approach the subject not with political triumphalism—we saw some signs of that from the Minister—but with a degree of humility and in a spirit of honest inquiry. It seems that there is scope in this matter for the proper expert input of at least three learned professions, although of course they never agree with each other on such matters. They are theology, the law and medicine. I practise none of those, but I take advice from those who do.
  We can certainly agree that Parliament now has an opportunity to tackle this matter definitively, and I believe strongly that, in the interests of everyone, we had better get it as right as is humanly possible, if not absolutely perfectly right. I should make it clear at this stage that the official Opposition will allow their Members a free vote on this issue tonight. This reflects not only the sensitivities to which I have already referred, but the clear reservations of principle that have already surfaced in debate, particularly, although not exclusively, from people of faith. I should also record that the opinions of people of faith are not unanimous. At this point, I should perhaps make it clear for the Minister's comfort that I shall support the Bill.
  We often find that we learn from our constituents on these issues. I have a constituent who is a male-to-female transsexual, and who has been discussing the issues with me and briefing me on the matter over the number of years in which I have taken an interest in it. She is a former senior official, and as such is well aware of the processes of legislation. She has taught me a great deal about the problems that transsexuals face, particularly people in a situation such as hers, as she is legally married to a woman.
  To borrow from a literary reference from a Roman historian, the unknown is often magnified in circumstances such as these. If people could come to terms with some of the difficulties that some of our citizens encounter, they might take a more sympathetic view—although not, as I hope to show, a completely uncritical one—of the issues.
  To move from the particular to the general, I believe that I echo the spirit of the Minister's remarks when I say that Parliament has a long and entirely decent tradition of legislating to meet the deeply felt concerns of even quite small numbers of individuals about their status. That status could well be defensible under some principle of law; equally, however, it could have arisen from some long-past concern or controversy so deeply buried in history that we do not even remember why it was originally introduced. I am thinking, for example, of the intense debates that were held in this place a century ago during the passage of the Deceased Wife's Sister's Marriage Act 1907, or the minor but remarkable and commendable legislation passed half a century ago to correct the position in which foundlings had to have a special birth certificate labelled "foundling", which must have deeply offensive to them.
  Issues such as these are not generally a matter of political weight. With great respect to the 5,000 transsexual people in this country—I think that we would all wish to show that—they are extremely unlikely to turn the result of the next general election. However, that imposes a duty on us collectively to try to be as helpful to individuals as we properly may.

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  In this case, as the Minister has said, there is also a European dimension, and I am personally exercised that British law is harsher on transsexuals than most of its European counterparts. The Liberty submission suggested that only four other countries were equally harsh, and that only Britain and Ireland refused transsexuals any rights such as these at all. As the Minister has implied, however, the impact of the recent judgment of the European Court of Human Rights and the Bellinger judgment in the UK must be tackled.
  I should stress that we are, by definition, contemplating a change in the operation of the civil law—no more, no less. At least since Hardwicke's Marriage Act 1753, Parliament has taken an interest in matters that have a clear ecclesiastical and theological interface, such as provisions regulating marriage. That Act, as a matter of interest—this bears on some of the concerns of the faith communities—regulated the conduct of the clergy in the matter of marriage, and, I understand, imposed extremely severe penalties, up to and including capital punishment, on transgressors.
  As to the theology, over which we can all pass briefly and tentatively, I hope that the Minister will appreciate it if I confine myself to the argument in the Acts of the Apostles of the wise Gamaliel, who told the Jewish council that God would ultimately be the judge of the worth of what was being done, and that, in effect, we could do no more than offer our good faith in the matter. We need to acknowledge that good faith and good will may be necessary conditions for legislating but are not necessarily sufficient. We therefore need to tackle the difficulties, too.
  I genuinely accept the sincerity and intensity of views of those on the other side of the argument and of those who may wish to oppose the legislation in the Lobby. In some cases—not always—those counter arguments start with objections of intrinsic principle. For example, in the debates in another place, the Lord Bishop of Winchester referred to the biblical text,
  "male and female created he them",
  and pointed out that that is an intrinsic part of the beliefs of Christians, Jews and Muslims alike. I note that a number of objectors in another place took sex as a given at birth. Even then, however, some genuine doubt existed as to the uniqueness of the criteria to be employed, whether the definition of sex was simply a chromosomal definition the hon. Member for Colne Valley (Kali Mountford) has mentioned the separate issue of intersex people—and in certain cases whether even the chromosomal definition could be ambiguous in determining sex. I was impressed by some of the medical comments made by learned peers on that matter. Whether or not there is or could be a precise, conclusive definition of sex, it is clear to me, modestly, that the defining characteristic of transsexuals is that they are in the real world deeply unhappy with their birth gender. That is the issue that, after due process, the Bill would change.
  Mr. Bercow: My hon. Friend is making a characteristically judicious speech. Notwithstanding his reference to the speech in the other place, may I put it to him that religion is neither the only nor an essential basis
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  of civil obligation of just law? I further put it to him that what saddens some of us who support the principles of this Bill, and who intend to vote for it, is the way in which ghoulish images are conjured up whereby protecting the rights of a minority is somehow interpreted as a great threat to everybody else, which it is not.
  Mr. Boswell: I am grateful for my hon. Friend's comments and for his implied support for the legislation. Everybody who has a faith and a set of principles must form their own judgment. I start from the basis of saying, 'Is there a problem for individuals, our colleagues and fellow citizens? Is that something that we can address without disrupting some other basic principle that we all hold dear?" I agree with my hon. Friend to the extent that the operation of the civil law, which I have emphasised that this legislation will be part of, is binding across the whole population irrespective of their faith. An important distinction therefore exists, which we need to secure through the legislation, between the general operation of the law in relation to marriage, gender or whatever. and the specific ability of faith communities to impose their own conditions on their members.
  Mrs. Dunwoody: With the hon. Gentleman's normal inherent good sense, he is picking his way gingerly through this maze of complex situations. Does he not accept, however, that there may be a good reason to bring this Bill to the House because a genuine problem exists, even if it affects only a small number of people, but that it would be equally wrong were the House to allow flawed legislation to go ahead without considering with extraordinary care the effects on others who may be influenced and damaged by decisions taken in which they have no standing and, frequently, on which they have no influence?
  Mr. Boswell: I agree passionately with the hon. Lady's comment. It is terribly important that we do not consider this issue in a vacuum. We should not seek to solve the problems of one group of people, however intensely felt, at the expense of another group. The Government do not intend to do that, and the detailed work and consideration of amendments that we must do in Committee, with great respect to the other place, which has looked at many of these issues including the broad sweep, is intended to ensure that the Bill does not have repercussive effects. If the hon. Lady will allow me to proceed, she will see that I am sensitive to her points.
  On the general issue, it is interesting, and impressive in relation to my argument, that the chief medical officer and the bulk of medical opinion—although not all, as that is never the case—sanction the diagnosis of gender dysphoria as a real disease or condition and the provision of public funds for its treatment.
  That leaves a number of serious matters to be considered, and I am anxious to make progress so that other Members can make their points. First, there is the issue of birth records. Some Members feel that we are in some way conniving at a lie in permitting the issue of a certificate recording the amended gender. It would be practically impossible. however, to permit someone to

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  change gender in law without the conversion of that basic record, provided that the original records are maintained and can be accessed.
  Sir Patrick Cormack: Does not my hon. Friend accept, however, that we are obliging registrars to connive at an untruth, and no clause in the Bill gives them the right to object conscientiously as ministers of religion can do?
  Mr. Boswell: I am interested in my hon. Friend's comments, and what he says is true not only of registrars in relation to birth certificates but in relation to any duties that they might have as marriage registrars, and I have some thoughts about amendments on that matter. In this particularly difficult situation, however, we are entitled to consider the relief of the individual, even at the expense of parading the original and full record. That is a judgment that we must make. If we do not do it, we run the risk of continuing to treat transsexual people as second-class citizens, or as the organisation Press for Change would argue, as non-people.
  Miss Widdecombe: Please may I follow the question that has just been asked? Ministers of religion can say no, either because they have no legal obligations anyway or because they have been exempted under the conscience clauses in the Bill. Registrars, however, may not say no. Is my hon. Friend content with that?
  Mr. Boswell: I am content, provided that it is sanctioned by the law and that we have taken the decision in Parliament that if a gender recognition certificate is to be issued by a registrar—and he will know that he is issuing it—it is a different legal document from the original birth record. It is a difficulty, and my right hon. and hon. Friends are right to raise it.
  Donald Anderson: Cannot that difficulty be met by some form of clause that preserves the right of those registrars to cite conscience, and ensures that there is no termination of employment owing to the failure of a registrar to proceed with this matter?
  Mr. Boswell: This little exchange has been useful in drawing out the concerns about this issue, which is properly an issue that Members may want to raise in Committee, and I hope that the Government will have an answer. I now want to make some progress.
  For married people in particular, the procedure in relation to the issue of an interim certificate, followed by its conversion to a full certificate, looks cumbersome. I am satisfied, however, that it strikes the right balance between the integrity of the original records and the new requirements of the Bill.
  When we come to the specific issue of people who apply for the certificate when they are married, we come to the most difficult situation of all. We do so in support of marriage itself: I think that that principle is agreed across the Chamber. Those who take what I might call the principled view that no sex change is possible would not wish to break marriages on grounds of gender change. I ask them to reflect, however, on the fact that they would ipso facto allow—or even encourage—two persons who are legally married to continue in that legal
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  state, if they wish to do so, although to the outside world they might for all practical purposes be living as two persons of the same gender. One would have changed gender, and they would still be married to each other.
  Angela Watkinson: I asked earlier about the six-month period during which a marriage can be voided on the basis of one partner's having changed gender. Does my hon. Friend foresee circumstances in which a partner imagined at the time that he or she could tolerate the new situation, but found after the six months that it was intolerable, and had then lost the opportunity for the marriage to be voided on those grounds?
  Mr. Boswell: I did not find the Minister's response on that entirely convincing. My own view is that it would be better to allow a longer period of reflection. Members of the transgender community have told us in briefing that they would rather not feel that a pistol was being held to their heads forcing them to make an immediate decision. I think that there is everything to be said for allowing the interim certificate to remain in force for longer. The Minister may say that it will be possible to apply for another certificate, but that seems to me unnecessarily cumbersome.
  Those of us who are sympathetic to the Bill are faced with a dilemma. We could permit what is in fact a marriage between two persons of the same sex, one being transgendered, to continue in the name of marriage, although I think that in the future it would be a kind of legal fiction. Alternatively, we could force it to be annulled on the principle of not allowing same-sex marriage even when both partners genuinely wish to continue the relationship. I think it right in principle to maintain the fundamental rule that marriage is between a man and a woman. That, in my opinion, makes it essential for legislation facilitating civil partnerships to be enacted and dovetailed with this Bill in its future operation.
  Mr. Rendel rose—
  Hugh Bayley rose—
  Mr. Boswell: I will give way to the hon. Gentleman and my hon. Friend, but I must then make progress.
  Mr. Rendel: Is there not a further difficulty involving those who wish to remain married, although one has changed sex, because some entitlements—for instance, pension rights—may depend on the date on which the partnership began? If two partners have been forced apart and then reunite by means of a civil partnership, there may be a considerable effect on pension rights.
  Mr. Boswell: Indeed. The issue is set out exhaustively in the schedule, and I have a feeling that we shall need to deal with a number of such matters in Committee.
  I now give way to a former social security Minister.
  Hugh Bayley: I may discuss some of the pension issues if I catch your eye later, Mr. Deputy Speaker.
  The Joint Committee on Human Rights examined these matters closely, and recommended that existing marriages should not have to end for a full and final

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  gender recognition certificate to he issued. Does the hon. Gentleman, speaking for the Opposition, agree with the Committee?
  Mr. Boswell: With huge respect, I must point out that I am speaking for the Opposition, and that I have made it clear that this is a free-vote issue for my party; but personally, on this particular matter, I agree with the Government on the logic of pursuing what I consider the overriding principle of marriage being between persons of different genders, and only that. This does, however, give rise to the need to dovetail with the arrangements for civil partnerships.
  Beyond these issues of deep principle are many practical concerns. First, will the Bill work as it is intended to, in the interests of transgendered people? Aspects of that question have already been discussed. Secondly, will it have knock-on effects on aspects of our law or practice that could have unintended consequences, or damage the interests of other people? Thirdly, while most people benefiting from the Bill will be content to take its changes in their legal status quietly and without fuss—I do not ask for their generosity, because I think they have been badly treated over the years, but they may well bank the changes and be glad that at last Parliament has acknowledged their existence—is there a danger that someone will seek to make a point by flaunting exaggerated behaviour? That might have consequences in terms of the way in which people behave in public places, for instance.
  Perhaps more subtly, is there a danger that test cases may be triggered? That worried the right hon. Member for Swansea, East (Donald Anderson). Cases involving, say, equality of employment law could embarrass members of the population, or a section of it such as a faith community, who have certain views that are deeply and honestly held. The Evangelical Alliance, like any decent group, signals to its members the importance of tolerating and accepting individual transsexual people, but is reluctant to accept the concept of the Bill, fearing that its ministers may be placed in an unacceptable position.
  Many of the issues—both practical issues involving such things as sport, and issues of principle—were well rehearsed in another place. I pay tribute to those who tackled them there, notably some of my noble Friends. We should bear in mind, however, that in this instance ours is the revising Chamber. I assure Ministers that, although I support the Bill in principle, I am determined to probe and seek further assurances in Committee.
  This is a Bill about the legal status of transgender people; it is in no sense about the general conduct of those or any other individuals, let alone about individual sexual behaviour. Let us dismiss that idea immediately. If the Bill is to help such people, it must not strain its acceptability to those who come into contact with them, or are more closely related to them—their families, or faith or other interest groups. Nor must it have repercussions for cherished general principles, notably the integrity of marriage. Anything that we do in Committee or thereafter must be aimed at balancing those principles, and anything that we say should take account of the sensitivities of all involved, even if the issues are really challenging.
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  I suspect that, left to themselves, the Government might have been content to let the issue lie, but the European judgment has compelled them to act. In any event, I personally believe that it is right to do so now, and to remedy a long-held and deep sense of injustice among a small number of our blameless citizens. It will not be a painless process, and others may in good conscience reject it; but I believe that today we can make a belated start.
  6.8 pm
  Lynne Jones: This is a big day for me: we are about to approve legislation for which I have campaigned for more than 10 years. The Parliamentary Forum on Transsexualism was established 10 years ago almost to the day, in February 1994, with the support of members of both main political parties. I pay tribute to the former Conservative Member of Parliament for Chislehurst, Roger Sims, and the former Member for Montgomery, Alex Carlile, who is now in the other place and who has participated actively in the Bill's progress there. We set up the forum to campaign for civil rights for transsexual people who were being subjected to appalling discrimination and anxiety.
  This issue first came to my attention in 1993. Like the hon. Member for Daventry (Mr. Boswell), I became involved largely through learning of the personal experience of constituents and, subsequently, other transsexual people with whom I came into contact over the years.
  The transwoman who came to see me was so nervous about seeing a Member of Parliament and admitting that she had transitioned from male to female that she sent her male partner to sus me out first, to see whether her secret, as she saw it, would be safe with me. I had not thought about that issue before, and very much had the idea that people who went through this mutilating process must be disordered or seeking sexual gratification. I had not given it much thought, but as I came to meet people and talk to them, I learned more about the syndrome and realised that it was not a matter over which people had control. It was not a choice: they were living in the wrong body, and their brain identity was different from their chromosomal and genitalia identity—although sometimes there are further complexities.
  Andrew Selous: I am listening to the hon. Lady with great interest. I accept that there are some physiological factors, but what does she say, in relation to the question of choice, about those people— I gather it may be up to 25 per cent. —`who subsequently change back to their original gender, or wish to do so?
  Lynne Jones: Not 25 per cent.
  Andrew Selous: Let us not argue about the percentage; unequivocally, there are some people who change back, which seems to belie the hon. Lady's argument that there is no choice involved
  Lynne Jones: Such cases are extremely rare, and 95 per cent. of transitions are very successful. It is a

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  recognised, successful medical procedure for a recognised medical condition. There is evidence that the aetiology of the condition is that. in the uterus, the foetus is subjected to abnormal hormonal influence, so that the brain develops in the opposite sex to the gonads and the chromosomes. Lord Winston talked about chromosomes varying. as in Turner's syndrome and other syndromes. People can also be mosaic, with some female cells and some cells with Y chromosomes. It is a complex matter, but in the majority of cases gender reassignment is a very successful medical procedure, and the majority of people who go through it subsequently live a much happier and more successful life.
  The Bill is about recognising that, after transition, people are in what they see as their correct gender. It gives them full civil rights so that, although they can still be discriminated against in terms of the supply of goods and services, and other matter that I hope the Government will legislate on later, their correct gender is recognised under the law, allowing them to have a new birth certificate and to marry and enjoy all the rights of other members of their sex.
  Sir Patrick Cormack: I do not for a moment question the hon. Lady's sincerity, but will she accept, as it is on the record, that a very large percentage of these people undergo no physical changes or surgery, and remain physically exactly what they are, male or female?
  Lynne Jones: Again, I would dispute that. The majority of transsexual people want to undergo a medical process that will leave them physically as congruent as possible with their gender identity. This has nothing to do with sexuality. Exactly like other people, transmen and women can he straight, lesbian or gay. The condition is not associated with a particular form of sexuality: indeed, many such people have a lower libido, often as a result of the medical treatment that they have to undergo.
  On occasions, for medical reasons, it is not possible for people to have the full transition. There have been great medical advances, and treatment is much more sophisticated than it used to be. In the past, men in particular could not always have a new penis constructed. There was the famous case of Mark Rees, who for many years identified himself as and was a man, but did not have a penis, and who later, as the techniques developed, underwent the surgery. There was an interesting and moving television documentary about his experiences.
  It is true, however, that the Bill does not require there to have been surgery but requires the individual to demonstrate that they have lived in that role for two years. There are good reasons for that. It may not always be medically possible for people to have the full reassignment surgery, but in my experience, the majority of transsexual people want to undergo the full transition.
  The constituent who came to see me lived in great anxiety about being asked to show her birth certificate. She was worried about employment and told me that she had had to forgo promotion because of her unwillingness to show the certificate. She could not marry her partner. Unfortunately, she had also been raped, and at that time it was not recognised that a
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  transsexual woman could be raped, but I am pleased to say that that was put right in the Sexual Offences Act 2004. It was her experience that led me to take an interest in this issue. She was unwilling to be public about her situation, but I am pleased that she put me in touch with many members of the trans community who, extremely bravely, were willing to come out as having undergone reassignment.
  I pay particular tribute to those people, who did a very difficult thing. Their bravery has, in many ways, been responsible for the sea change in public opinion that has happened over the past 10 or 11 years. We organised our first fringe meetings at the party conferences in 1995. I pay tribute in particular to Christine Burns, who is vice-president of Press for Change, because she spoke at fringe meetings at the Conservative party conference, as she was an active member of the Conservative party at that time.
  When we had the first fringe meeting at the Labour conference, I remember being in the lift with two journalists who had come to witness what they thought would be a freak show. The remarks that I overheard them making were, frankly, disgraceful. We still see evidence of such attitudes in some articles in the press, but I am pleased to say that that is slowly changing. It was wonderful to see the faces of those two female journalists drop when they saw the person who was there to talk about her experience as a transsexual.
  Roger Sims talked about this in 1996 in the discussion of Alex Carlile's Gender Identity (Registration and Civil Status) Bill, a private Member's Bill that did not get very far in the House. He said that he had attended a fringe meeting organised by a lady representative, who was branch chairman and typical of the ladies whom many of my hon. Friends know in their constituencies—yet her birth certificate showed her as a man, so she could not legally marry. He went on to describe how he, too, was impressed by the way in which Christine Burns spoke about her experiences. I am sure that, if hon. Members who have doubts about the legislation met some of the wonderful people who have campaigned through organisations such as Press for Change and others—`I single out the Gender Identity Research and Education Society—they would realise how important the Bill is to them.
  The Bill is not about discriminating against other people. We all want to ensure that others do not suffer. Many transsexual people continue with their relationship in marriage, but in many cases the marriages end when someone undergoes a gender reassignment. It is a very difficult issue, which will arise again in Committee.
  I welcome the changes in the other place, particularly on the establishment of a fast-track process for those who have lived in role for six years or more. Initially, that was to be allowed only for the first six months after the Bill's enactment. It will now be extended to two years, which I welcome. I should also like to highlight the fact that, in the draft Bill, there was no expiry date on the interim gender recognition certificate, and I wonder why the Government subsequently imposed the six-month time limit. Will the Minister explain in his winding-up speech why it is necessary to have such a time limit?

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  This is a good Bill, and it will mean a lot to a very small number of people. I greatly hope that it will have a fair wind in the House and that transsexual people will soon be able to enjoy the legal recognition that they deserve.
  6.22 pm
  Mr. Mark Oaten: I am pleased to have the opportunity to say a few words about the Bill. I profess straight away that I do not claim to be an expert on the issues, but I have listened carefully to the remarks of the Government and Opposition Front Benchers and of the hon. Member for Birmingham, Selly Oak (Lynne Jones), and I have been taken by the degree of consensus on the matter. The Liberal Democrats certainly want to give the Bill a fair hearing and we hope that it proceeds to its next parliamentary stages.
  I say that in acknowledgement of the fact that there are real concerns, particularly on the part of those holding strong religious beliefs, who struggle with the matter and have serious difficulties with the Bill. I read with interest the contribution of the Bishop of Winchester, whom I know well, in the other place. There comes a point, frankly, where one can argue as much as one likes, but people simply have to agree to differ on some of the issues because they are approached from a wholly different perspective. Little can be gained from getting into endless arguments on narrow points, when there are fundamental differences.
  We support the measures in the Bill. largely because of the tradition in the House whereby we eventually—perhaps not as fast as some would like—catch up with social changes and reflect how society is moving. Sometimes we are ahead; other times we lag behind. On this particular issue, we have lagged behind, but it is a tradition, as I said, that the House acknowledges what is happening in the real world outside of both Houses. There is also an important tradition whereby we do all we can to protect minorities out there, many of whom are persecuted because of their position or beliefs. As ever, we politicians should protect those people's rights. The Bill recognises that we needed to catch up and put those rights in place. It is important to recognise that transsexuals have rights and I hope that, as the Bill proceeds, we are also aware, as other hon. Members have said, of the impact that conferring them could have on other individuals' rights.
  Mr. Rendel: Does my hon. Friend accept that those who have undergone the process are almost unanimously in favour of the Bill? I have a letter from the chair of the Gender Trust—the largest organisation working for transsexual and transgender people. She urged me
  "to support this Bill on behalf of transsexual people in general.. The Bill meets our needs and is vital in allowing transsexual people to integrate fully within society rather than forever remaining on the fringe attempting to live a 'stealth' existence."
  Mr. Oaten: I certainly agree with that point and I congratulate those transsexuals. including some of my hon. Friend's constituents, who have persistently raised the issues in Parliament. The hon. Member for
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  Birmingham, Selly Oak spoke about her constituents and people who have not been able to talk as openly as they would have liked about the issues. They will welcome our sensible and mature debate in Parliament today.
  The process of arriving at the present position was partly set by European legislation, which was once again ahead of us. We have had rulings from the European Court of Human Rights, but we have also had valuable pre-scrutiny in the work of the other place and of the Joint Committee on Human Rights, so no one can accuse us of rushing to this particular stage. Many of the issues have been thoroughly examined.
  The Bill has resolved several problems. The first, mentioned in the other place and in our earlier debate, is what I describe from a layman's view as the car insurance point. By that I mean the ridiculous circumstances under which someone who has changed sex can phone up and ask for car insurance under a woman's name—there is nothing wrong with that—but if an accident were to happen and a claim were made, that person would, as I understand it, be committing fraud on the basis that the person is really a male. That is daft, silly nonsense and it is the sort of problem that the Bill will help to sort out. We should all welcome that.
  I also welcome the Government's clear commitment to putting in place a new birth certificate. It is another sensible, practical measure for someone to have a piece of paper that is requisite for many forms of legal documentation, which does not cause awkwardness or embarrassment.
  Sir Patrick Cormack: The hon. Gentleman is a fair-minded man and recognises that some of us are not lacking in sympathy for this small group of people, but do not believe that the Bill is right. I accept that the Bill will be passed, but does he accept that it is important to build in a conscience clause for registrars and others who find it offensive to take part in what they would view, frankly, as issuing fraudulent documents?
  Mr. Oaten: My inclination is to agree because I respect the hon. Gentleman's views, but I have to say that I cannot agree on this occasion, because the job of a registrar is to implement the law. If we were to allow some form of waiver on this particular issue, on what other laws would a registrar be allowed the same thing? Although I could he persuaded that conscience opt-outs are appropriate in some circumstances, I could not accept that in respect of an individual whose job is to manage and register the law. I could not therefore agree with the hon. Gentleman on that point.
  The Bill also deals with access to pensions and benefits, and I believe that some of the measures will usefully tackle current problems. It is also important that individuals will have a right to marry under the new gender, which is wholly sensible and right
  Rev. Martin Smyth: On that point, have I been misinformed that under case law, a person could be divorced on the grounds that a marriage was void because the person was transsexual?
  Mr. Oaten: I am sorry, but I did not quite understand the point of the hon. Gentleman's intervention. Perhaps

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  I shall be able to answer it by moving on to my next point, which deals with the issue of how marriages currently stand. There is a problem there, and the Government have not moved far enough to deal with it. I hope that the Minister will reconsider the matter and not be so rigid about what happens to the tiny number of individuals—no more perhaps than 150 or 200— currently living in a marriage, who have undergone gender reassignment but want to continue to be married.
  I am not being pre-judgmental, but it strikes me that for a marriage to be able to survive in those circumstances, and for people to stay together, there must be an incredibly strong bond between them. Given that bond, that love and that affection—there may even be children involved—if everybody is comfortable and happy with the situation, there must be a way round the problem. The Government must be able to allow the marriage to continue. We are talking about a very small number of people, and we do not wish to create difficulty, tension and unhappiness where none existed.
  Even if it were not for that moral issue, I would still argue that there is a practical issue, which several hon. Members have raised—pension rights. Obviously, the ability to draw down a pension in such a partnership is dependent on whether, at a particular point, a marriage existed. If we require marriages to be dissolved, we could be jeopardising pension rights, so I hope that the Government will reconsider the issue.
  Peter Bottomley: Is not the way forward to accept that, except in cases of bigamy, which we are not discussing at the moment, marriages will not be put asunder in a civil sense unless someone applies for them to be ended in one way or another, or made void? Perhaps the Government could accept that without such an initiative, people could continue as they were.
  Mr. Oaten: Whether that would be legal is a complex and tricky question, and I would also have concerns about who might apply for the marriage to be broken up. It might be a way forward—but I am sure that when the detail is discussed in Committee, the issue will be revisited by Members who want to ensure that we get the balance right. When the Government get round to introducing the welcome legislation on civil partnerships, that may resolve some of the issues, but for the sake of those 150 or 200 people, I hope that they will think again now.
  I welcome the provisions on privacy, and the fact that the Minister said that he was concerned to ensure that in the context of documentation and birth certificates, an individual's privacy would be protected as much as possible. He also said, however, that despite that desire for some form of privacy, we would need to ensure that police records were maintained. That is important. Either now or in Committee, will the Minister tell us how far that provision will be extended?
  I am thinking in particular oft access to such material through the Criminal Records Bureau, an organisation not known for the effectiveness of its operations. I would like to know at what level the information will be made available. For example, if an individual is likely to be employed in a school, or as a care worker, some sensitive
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  issues will be raised. There will be information that could be made available, and some difficult judgments will have to be made about what information to release to a school governor or a head teacher—information that would completely take away someone's privacy. Will the school governing body suddenly have to judge whether it feels that gender recognition is an issue for it to deal with?
  I would want to be very clear about where information will be passed on. I understand the need to have it in police records, but if it became available through the Criminal Records Bureau, it could suddenly become widely known. We should be very careful about how it might be used.
  Mr. Bercow: I am grateful to the hon. Gentleman, who is making a typically decent speech on this subject, for giving way to me. It follows, does it not, that where improper disclosure takes place, any redress that may be secured will necessarily be after the event? It will be retrospective, and therefore rather modest compensation for the wrong done. Does the hon. Gentleman therefore agree that the question is not merely the level at which information is disclosed or exchanged, but the number of people in an organisation who should ever have access to it?
  Mr. Oaten: I entirely agree. The way in which information is passed on means that it will become available to many more people. In the climate of concern that currently surrounds many such appointments, one individual may feel unable to take a decision alone and may wish to share the responsibility with a wider group, for fear of getting it wrong. There is a real problem, which we need to look at as the Bill proceeds.
  I want to know how the panel will make its decisions. I intervened on the Minister earlier, but may I ask him again to consider the process of appeal carefully? I understand that at the moment the right of appeal will not come in for six months, but I hope that whoever winds up the debate will give more information about the way in which the Government envisage the appeal process working, and on what grounds an appeal could be based. Would those be purely issues of law or fact, or would somebody be able to put a stronger case and try to strengthen the arguments with which they had originally failed to convince the panel? I would be worried if an appeal could be based only on a point of law, because someone might want to try again to put across an emotional case to the panel.
  On a more sensitive and perhaps complex issue, there is some concern—to be honest, even I, as someone who supports the Bill, share that concern—about the need for clarity about whether a medical procedure has taken place. As I understand it, one of the arguments that has to be put to the panel, and which the panel has to consider, is whether a surgical procedure has taken place—but I think that the panel can also consider whether it is someone's intention to undergo a surgical procedure in future.
  I confess that I have not read the Bill in great detail, and I would like to know whether the timing is crucial. The panel's decision could be taken on the assumption that a surgical procedure will take place. Would the

  71
  certificate—the approval—apply only after the surgical procedure, especially if the panel had taken the decision on the assumption that that procedure would take place? If that had been the tipping point for the panel, there could he concern about whether the panel had checked whether the procedure had taken place. The timing is important, and as the Bill now stands, I do not think that there is enough detail in it to explain what would happen first, and at what point in the process.
  Mr. Eric Joyce: I think that it may help the hon. Gentleman if I tell him that I am fairly confident that the Bill says that there is no requirement for surgery to take place.
  Mr. Oaten: The Bill also says—or at least, when I read it through I understood it to say—that one of the issues that the panel will consider is whether a surgical procedure has taken place or will take place. I realise that that is not the only consideration, but it is one of the considerations. It seems to me that, in the context of making good law, if that had been the tipping point and the key consideration for the panel, there would be an issue about whether the procedure had happened or would happen. If somebody can be given a certificate because of a promise that in six months' time they will have a surgical procedure, the issue of timing must be clarified. I entirely recognise that that is not the only consideration, and that there is no requirement for a surgical procedure to take place, but it is one of the issues that the Committee will examine, and it would be helpful to know about the timing.
  There is also the question of foreign nationals. Can the Minister who will wind up the debate clarify whether other countries have similar Bills going through, or similar legislation already in place? Would not one way to overcome the difficulty that the Minister raised in his opening speech be to introduce a reciprocal arrangement? That would not only benefit transsexuals who come to this country, but make the procedure easier for transsexuals who wish to travel abroad and perhaps to live there. There may be barriers in the way of their doing that now, so a reciprocal procedure would make sense.
  Finally, in connection with the need to maintain some kind of privacy, I support the provisions covering birth certificates—but there are other certificates that people may be required to show more often than a birth certificate. I am thinking of public examination certificates—although I must confess that I have never been asked to show mine.
  Mr. Bercow: Let's see them.
  Mr. Oaten: It is probably a good thing that I have never been asked, because people probably presume that my results were better than they were. There may be a more practical day-to-day requirement for people to show certificates for public examinations, qualifications and training rather than birth certificates, and I imagine that there could be real embarrassment if somebody were suddenly required to do that.
  Have the Government given any thought to such issues, as they will probably have a bigger day-to-day impact than whether a person can have a new birth certificate?
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  A number of those questions will, I am sure, be resolved in Committee. I acknowledge the real doubts and concerns that individuals have expressed, but we shall have to agree to disagree. I welcome the measure; it is modern and it accepts and understands what is happening in society today. I hope that it will go some way to dealing with the real anxieties that the hon. Member for Birmingham, Selly Oak outlined earlier. There is hurt and real hardship for some individuals and I hope that the Bill will tackle some of those issues.
  6.40 pm
  Mr. Shaun Woodward: The Bill is very important; it is important because it will dramatically affect the lives of several thousand people in this country and because it will create a climate that will enable people who have experienced the issue in some way to feel more comfortable and more equal in our society in the future. The Bill does not give anybody special rights or special privileges; what it is doing—like so many things on what might be described as the equality or fairness agenda—is giving transsexual people in this country the same rights that everybody else is rightly free to enjoy.
  The Conservative party is to be congratulated on its decision to have a free vote on the measure, which is not something that we might realistically have imagined to be the case a few years ago. That decision genuinely represents a proper consideration of the need to address Britain as it is rather than Britain as some people might wish it to be.
  I rise partly as the Member of Parliament representing a constituent who wrote to me only a few weeks ago asking for my support on the Bill, saying:
  "I would like to point out that the likes of me just blend into the crowd'. I go to work, do my job, everybody likes me. I do not go around shouting for my rights on the radio and television, I just want to live a normal life which is in fact what I do on a daily basis."
  That person wrote to me because they have actually experienced difficulties. The person says:
  "I have worked for a major clearing bank for the last 38 years, and during that time they have supported me whole heartedly and covered for me when I had my operation, saying that I did not work for the bank when the press came after me, those days are now over, thankfully."
  When the Bill was being described earlier, the hon. Member for Blaby (Mr. Robathan) referred to it as nonsense. Hand on heart, charitably, I can only feel that the hon. Gentleman t as never met someone who has experienced such things. Had he done so, he could not describe the Bill as nonsense.
  I say that on behalf of my constituent and also on behalf of my sister, formerly my brother. I mention my sister not because I believe that it is a good idea to bring one's private life into the Chamber, but because when, four years ago, I made a certain political decision, certain parts of the media felt it incumbent on them to draw my sister into the argument. She was not drawn into the argument as a way of adducing factual information; certain tabloid newspapers and one broadsheet—one of whose sketch writers was in the Gallery earlier—felt it incumbent on them to refer to the fact that my sister "used to be a fella". She found herself plastered over the front pages of various newspapers whose aim was to "get" me.

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  There is a real need to recognise that in this country, sadly, this legislation is still really important. It is about changing climates and attitudes, and recognising that we actually have an opportunity to do something right. The Bill is not, as the hon. Member for Blaby said, nonsense; it is sensible and very, very important.
  Much work has gone into the Bill. As a member of the Joint Committee on Human Rights, I pay tribute to its officials and my colleagues on the Committee. I pay tremendous tribute to my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) who has done a huge amount. When my sister began to talk to me about the issue, she was extremely aware of the work of the hon. Lady and asked me particularly to pay tribute to her today. I am aware of the hard work and commitment of the officials in turning the draft Bill into the current Bill.
  However, the Government must look again at some issues, in our position as a revising Chamber for the other place.
  Andrew Selous: I share the hon. Gentleman's concern about the fact that the tabloid and other press often behave hurtfully and irresponsibly in the ways to which he has referred, but I should like him to explain why he thinks the Bill can help deal with that. I am worried that certain things in the Bill could engender more concern and opposition, and could encourage the sort of irresponsible behaviour that we both find distasteful.
  Mr. Woodward: I thank the hon. Gentleman for his comments. In this Chamber, we often broadly discuss matters of principle. Sometimes it helps to listen to the individuals who are affected by legislation, to find out whether we may be applying our own principles highhandedly and, as a consequence—often with the best intentions—doing more damage rather than what we intended. In the course of my speech, I shall adduce the comments of some of the individuals who have written to me about the issue. I hope that that will convince the hon. Gentleman that the Bill is the right thing to do and that, rather than preserving our current inequalities, pursuing equality is always a step forward.
  In relation to the Bill, I draw the Minister's attention to clause 22, on privacy. Will it do enough to protect individuals from the infringement of their right to a private life? That protection is needed because I am worried that we might continue to see gratuitous press intrusion, along the lines suggested by the hon. Member for South-West Bedfordshire (Andrew Selous), and, more specifically, the kind of thing that can easily happen unless people feel a duty to behave differently. I refer to my sister's experiences. She has received legal documents—for example, from a court—addressed to "Miss Lesley Woodward, formerly known as Mr. Leslie Woodward". That might seem a minor thing to hon. Members, but it is not to the individual concerned, and the Minister needs to be confident that those people are fully protected. Is he confident that there will be adequate protection in the future for people who have suffered that kind of thing? Will a duty of care be imposed on officials in such circumstances?
  The second point I want to raise with the Minister relates to discrimination. The Joint Committee considered whether the Government should go further in their protections against discrimination. The Committee's response was that it
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  "took the view that the most pressing need had been to amend the law in relation to employment and vocational training"
  It did not consider
  "that there was any evidence of a pressing need to protect transsexual people against discrimination in other fields".
  Housing is an extremely important field and the Minister should think carefully about whether the law will provide adequate protection. When many young people go through the experience of being transsexual it is coupled with psychiatric problems. In the most appalling circumstances, that can mean that the individual is ejected from their home and loses their job. Sometimes, they are destitute. A hostel, or somewhere to live, is critical at that point. It is thus essential that such an individual is not subject to the kind of discrimination whereby, because they may be presenting themselves as a woman, the person in charge at the hostel says, "I'm sorry you can't come here because really you are a man", or the other way around.
  I am slightly worried by the Government's explanation of why they do not need to move—they feel that the issue is too complex to sort out. I say to the Minister that that is not a good reason for not trying to address the matter, which it is still incumbent on the Department to re-examine. When the legislation is scrutinised in Committee, we must be confident that further injustices will not be done to the same people.
  Mr. Bill Wiggin: The hon. Gentleman is discussing the amendments that are likely to be tabled in Committee. Does he believe that the Government will take away some of the amendments introduced in the other place or will the Bill stay as it is today?
  Mr. Woodward: I have no idea what is in the Minister's mind, but he may indicate what will happen in his winding-up speech. Hon. Members can obviously table amendments in Committee, but on Second Reading it is important to introduce concerns for consideration today or in Committee that have been raised by constituents who will be directly affected by the legislation.
  During the debate a lot has been said about the Church. It is important to put on record comments by groups such as the Metropolitan Community Church of Manchester that wrote to the Joint Committee on Human Rights. It said how much it supports the Bill, which it does not regard as aberrant, wrong or nonsense. A particular member of that Christian community told the Committee:
  "On behalf of the Metropolitan Community Church of Manchester I am writing to indicate our broad support for the bill. This reform is long overdue and will be warmly welcomed by our members… Many of our members are transgendered and we know how difficult the current legal situation is for people with gender dysphoria. The introduction of this bill by the Government helps to rectify injustice and is very good news and long overdue.
  I hope you are aware that many Christians will be supportive of this bill. Some Christian organisations, like the Evangelical Alliance"—
  which was mentioned earlier—
  "and the Christian Institute, are very good at promulgating their views but they only represent one stream of Christian opinion. There are many churches and groups of Christians who are supportive of any and all moves towards justice and greater social inclusion and cohesion."
  Mr. Robathan: I am sorry that I was not present at the beginning of the hon. Gentleman's speech, but I was

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  watching the monitor and know that he mentioned me a couple of times. To avoid doubt, I assure him that I have met a transsexual. The hon. Gentleman says that the Bill is not nonsense, but why is he criticising it so much? I do not say that the Bill is nonsense because I lack sympathy for people in that difficult condition; I say that it is nonsense because I listened to the Minister's speech and he had no answers to the questions —indeed, he has no answers to the hon. Gentleman's questions.
  Mr. Woodward: The hon. Gentleman is right to qualify his position, but this is obviously an opportunity to say why he believes that the Bill is nonsense, in which case the Minister will answer his questions.
  The Church argument that tends to be adduced in relation to this matter concerns marriage. It must be said at the outset that marriages go wrong. Things sometimes happen through no fault of the individuals concerned—equally, things sometimes happen that are the fault of individuals—that make it right to dissolve a marriage. The particular point about which I am concerned does not involve a marriage having gone wrong. As a consequence of the Bill and not because their marriage has gone wrong, several hundred people will be faced with what can only be described as a terrible choice.
  I say to those hon. Members who perhaps think otherwise that it was not a matter of choice for my sister to take the gender that she felt herself to be. It was about putting something right that had gone wrong very early on; it was not a matter of choice. The Minister must consider whether it is appropriate to force people to dissolve marriages that may have lasted for 30 years or more to fulfil a legal obligation.
  It is interesting to consider the evidence submitted to the Joint Committee on Human Rights. One couple said:
  "For any marriage to survive, it takes a huge investment of emotion, energy and money, and a great deal of love. This bill, if passed as proposed, would ignore the realities of people like us in the cruellest possible way. We would be put in the invidious position of having to choose between a female birth certificate"
  for one partner
  "and our marriage. We cannot believe that someone has actually suggested that we should have to trade one set of rights for another."
  I pay tribute to the hon. Member for Sutton Coldfield (Mr. Mitchell) who has done a great deal of work with a couple who also came to see me—he took them to see the Minister concerned and presented their case. The couple, Joy and Christine, were written about sympathetically in The Daily Telegraph and have been married for 36 years. As one of them said:
  One of us is going to feel disappointed"
  if they make this choice, and one of them will feel absolutely wrecked. The couple do not want to divorce, they have children and they married in church.
  Their priest has written to them, and his comments are worth considering given the arguments adduced, He said that he had been thinking about this issue for some time, and that the character of their marriage vows—a lifelong and exclusive partnership for better or for worse—seemed uncompromised by their wish to remain
  together. He said:
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  "It seems to me that the intention at your marriage was for you to be together and explore the nature of love. Your marriage has survived (as you put it) and I don't think that voidance"—
  the word used in the Bill—
  "can be anything other than 'putting asunder', which is exactly what the state can't do … the state can sanction divorce where the 'love' has broken down, or 'annul' where there was not intention of lifelong commitment …. But here these characteristics of marriage remain. I don't think that the state"
  should
  "sanction either a divorce, or an annulment or a 'void' whilesoever you continue to maintain the 'character' of marriage."
  It is interesting to reflect on what the couple's priest says the Bill may unintentionally force them to do. The state is forcing them to wreck their marriage, which has nothing to do with their wishes, and break their commitment to each other and their love. They feel that the situation will damage their children. Sometimes it is right for marriages to be broken, but neither Labour nor Conservative Members are saying that that is the right thing to do in this case, and the couple do not want to do it. However, the Bill would force them to destroy their marriage. Some people may genuinely feel that it is still appropriate to break that marriage because the matter is too near to the question of same-sex marriage, which everybody is frightened to discuss, and it would be better not to frighten the horses. In some cases, we may be doing more than forcing a terrible choice.
  One couple wrote to me to say that about 15 years ago one of them came to accept that they were transgendered. They went on to say that the adopted policy was to put family first and gender considerations second and that this repression led to depression, resulting in failure to gain promotion and eventually in 1995 retirement on the grounds of ill health. The letter said that since then there had been a continued decline in the physical and mental health of one of them and that it became a choice between full gender reassignment or a very short life expectancy. They said that the problems seemed immense: their commitment to their children has meant that there has only ever been one income earner, and both of them now suffer health problems. Again, we are saying to such people, "Choose between your marriage and your certificate."
  Perhaps the choice is not that simple. It is sometimes incumbent on us to be a little less judgmental and a little more understanding.
  For those who may have experienced only one person coming to talk to then I about the issue, I simply say that thousands of people have experienced it, and perhaps we need to listen to them before we listen to our own prejudices.
  Andrew Selous: The hon. Gentleman mentioned the Evangelical Alliance and may have said that it was not a major part of the Church—[Interruption.] If I misheard him, I apologise, but I wish to make it clear for the record that the alliance has 1.2 million members and includes groups such as the Shaftesbury Society, the Tearfund and the Salvation Army. It is a large, well-respected organisation.
  Mr. Woodward: I am glad that the hon. Gentleman made his point, but it was not what I suggested. I simply represented the view of one Church group that felt it was

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  necessary to correct the impression that the Church only has one argument, such as that put forward by the Evangelical Alliance, which has been good—as instanced by the hon. Gentleman—at getting its point across. Other Church groups have not been quite so efficient at doing so.
  Mr. Bercow: The hon. Gentleman is making a powerful speech. I just wish to suggest that although constituents' representations are important, they should not be regarded as the overriding—still less, the only—criterion that should influence Members. I have not received a single representation from a constituent urging me to vote for the Bill. I will do so because its principles are right.
  Mr. Woodward: I congratulate the hon. Gentleman, but as we are also here to represent our constituents when they do write to us, we might be forgiven for doing so.
  My final point relates to pensions, which have been mentioned by several other hon. Members, including my right hon. Friend the Member for Birkenhead (Mr. Field). The Bill raises a serious issue that the Government need to think through. for two reasons. The first is the general point of principle and the second is the timing of the civil partnership Bill and the consequences if it is delayed for people adversely affected by this Bill. A case history may illustrate the problem.
  Let us take two people we will call Claire and Barbara. Claire was a committed police constable who loved her job but was forced to leave when she told her boss that she was transsexual and was transitioning. She would not have left her job if she had not been asked to go. She had a 10-year police service record and was entitled to a pension. Let us suppose that something should tragically happen to Claire. Where would that leave her partner, Barbara? The problem is that for Barbara to qualify for the survivor's pension under the Police and Firemen's Pensions Act 1997—this is just one example—the couple must have been married both at the point of Claire's retirement from the police and at the time of her death. So if they had to divorce as a consequence of the Bill, the partner would lose the rights to the pension.
  We need to look carefully at the issue in Committee. We do not need to delay the Bill, because it is important for everybody affected by the issue. However, the Government must recognise the problem and the need to review it. It may be necessary to appoint individuals in the Department as points of contact for members of the public who may be affected by the Bill. Those individuals might also discover serious problems caused by the Bill and we would then be able to rectify the matter at the first possible opportunity. It would be tragic if, for the best of reasons—and I believe that the Government have the best of reasons at heart—the Bill adversely affected the lives of people caught up in circumstances through no fault of their own and who suffered as a result. The Government clearly do not intend that anyone should suffer by the Bill: indeed, they want to make life fairer and more equal for everybody in our country. However, the pensions issue is very important and we need to be open-minded about it in Committee.
  7.5 pm
  Mr. David Atkinson: I support the Bill. As the Minister explained, because of a court ruling more than 30 years ago transsexual people in this country have been condemned to be always of the sex written in their birth certificate. That has sentenced them to a life of constant secrecy, fear and depression, at risk of suicide and self-mutilation. Their position in law prevents them from safeguarding themselves, their partners and their families. The Bill will do much to end that. I regret that it took five failed petitions to the European Court of Human Rights, before the two that succeeded, to bring forward the Bill.
  There are two reasons why I want to speak in support of the Bill. Like several hon. Members who have spoken, the first is the experience of a constituent who sought my help in my surgery two years ago, in 2002. She was 62 years old, a post-operative transsexual male to female. She had always known her birth certificate was wrong. She had a particularly tragic childhood. She had a terrible puberty. No one knew what gender she was, except herself. She married, but was compelled to divorce. She paid for her surgery and subsequent treatment herself. She lost her male partner because they were unable to marry in this country. She pursued a teaching career. When she reached 60, she was told that because she was a woman she had to retire, but because she had been a man she would have to wait five years for her pension. Understandably, she became ill as a result of the financial problems that caused and the stress she faced.
  In response to my representations, the then Minister of State, the right hon. Member for Makerfield (Mr. McCartney), confirmed that my constituent would not receive her pension until she reached the male age of retirement, 65. Of course, my constituent feels that she has been denied natural justice. By then, the European Court in Strasbourg had delivered its judgment in favour of Goodwin v United Kingdom. My constituent has rightly been pressing me for the legislation that is before us today.
  The experience of my constituent and my sympathy for her compels me to support the Bill. Will the Bill enable transsexuals in my constituent's situation—described as male on her birth certificate, now a female—to enjoy a woman's pension from the age of 60? If so, will the pension be backdated in her case?
  The second reason I support the Bill is that it is in response to the findings of the European Court of Human Rights in Strasbourg. It is as a member state of the Council of Europe that we are committed to the European convention on human rights. I accept that some of what the convention imposes and the ECHR finds is not always welcomed by Ministers, hon. Members or the public. For example, many hon. Members and the majority of the public do not accept the abolition of the death penalty. Home Secretaries cannot change sentences passed by the courts, despite outcry in the tabloids, because the ECHR says they may not. However, all of us, I believe, need to be reminded from time to time that the European convention on human rights, with its unique enforcement machinery of the ECHR, is a response to the genocide and discrimination that Europe experienced under the dictators. That discrimination, no doubt, applied to transsexuals.

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  Now, 50 years after the convention came into force, the rights of transsexuals in this country will also be protected by the Bill. Why has Britain been one of the only four Council of Europe member states that have until now refused permission for transsexuals to change the gender on their birth certificate?
  I hope that the example of the Bill will be followed by similar legislation in the other three countries—Albania, Andorra and the Irish Republic—without the necessity of their citizens petitioning the European Court of Human Rights.
  Given the existence of the Human Rights Act 1998, why were two findings of the European court in 2002 required to change the British law on rights for transsexuals? Surely the Act provides for such rights to be protected without further application to the court in Strasbourg.
  In conclusion, I regret that, of all the Churches, only the Evangelical Alliance has opposed the Bill, claiming that it will allow same-sex marriages—which, of course, it will not. I also regret that some in the Conservative party sought to oppose the Bill in the other place and that, from indications from my colleagues in the House, they will oppose it in this debate. I had hoped that the Conservative party today could accept human nature for what it is. Transsexual people are probably one of the smallest minority groups in this or any country. We have treated them atrociously these past 30 years. We should all give full support to the Bill, which will help to end their unhappy situation.
  7.11 pm
  Hugh Bayley: I welcome the Bill. It is a sensible and humane measure that will give transsexual people legal recognition of their acquired gender. It is right in its own terms, but it will also have the benefit of making UK law compliant with the ruling of the European Court of Human Rights.
  I have been approached by four constituents who either have undergone or are undergoing gender reassignment, all of whom support the Bill. In fact, one of the good things about the debate is how many Members have talked about constituents who have approached them. This really has been a representative Chamber during today's debate.
  I shall vote for the Bill on Second Reading. I agree with my hon. Friend the Member for St. Helens, South (Mr. Woodward) that the reservations that some people have expressed should not hold up its enactment. Nevertheless, I remain concerned about the Minister's lack of clarity on pension entitlements, and further attention needs to be given to the pension rights and financial security of transsexuals' spouses.
  I should like to describe to the Minister the dilemma faced by two of my constituents: one is a transsexual in the process of male to female gender reassignment; the other is the transsexual's wife. The couple have been married for 35 years, and they have three children. Since the first child was born 32 years ago, the wife has not worked full-time. Like many women, she has stayed at home to raise the children and relied on her husband to make pension contributions to provide her security in old age.
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  I understand why some wives, or husbands, of transsexuals cannot come to terms with their spouse's change of gender and seek divorce, but both my constituents are extremely clear that they wish to stay together and that they do not wish to divorce, and they have good reasons so to do. They care for, support and love each other, and they want the care and support that they mutually offer each other to continue in the years ahead. They want to keep their family together for their own sake and for the sake of their children. They recognise that they will be significantly better off financially if they stay married than if they divorce.
  The trouble is that the Bill's drafting creates a conflict of rights—a conflict between the rights of a wife to marriage and security in old age and the rights of her partner to legal recognition in a new gender. The conflict arises because the Bill will require a couple to divorce before the full gender recognition certificate and, therefore, the new birth certificate can be issued in the transsexual's new gender. If a divorce goes ahead, pension-splitting procedures will, of course, follow, but they are almost certain to reduce the pension entitlement of both partners. So I have two questions for the Minister, and I hope that he will listen carefully to them and reply in summing up the debate. I am not sure which Minister will respond I see that the Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for Shipley (Mr. Leslie) will do so.
  First, is it right that the state should require a couple to divorce so that one person—the transsexual member of the couple—can obtain the right to gender recognition if neither partner wants to divorce? Secondly, if it is the Government's intention that there should be such a conflict of rights, is it right that the decision about whether to put the right to marriage—which, as the Human Rights Committee stated in its report, flows from the right to private and family life under ECHR article 8—before the right to gender recognition for the transsexual, or vice versa, should rest with the transsexual partner in the relationship, rather than with his or her spouse, or with the couple jointly?
  In the case of my constituents, I suspect that they will jointly choose what to do if they face that dilemma, but the fact remains that the transsexual in the relationship has, in effect, the power to decide whether to put gender recognition before marriage, or vice versa, while the wife or husband of a transsexual person does not have the same right. My constituents would like the Bill to be amended to allow gender recognition for the transsexual, while allowing the marriage to continue. I recognise that that would give legal recognition to same-sex marriage in that specific circumstance. I believe that that would be the right thing to do, and I see no contradiction between the requirement that people have to be of different sexes when they marry and retaining a married relationship later if that situation alters because of gender change.
  If the Government are not prepared, in the light of what hon. Members on both sides of the Chamber have said, to agree to that single and extremely specific exception to the normal prohibition on same-sex marriage, they must create in the Bill a new relationship that would retain for couples of the type that we are talking about the same legal and financial rights and responsibilities to one another, including the same pension rights, that they had enjoyed hitherto in their

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  marriage, because the alternative would be to undermine the rights of the spouse, which are just as important as those of the transsexual person.
  I can think of no other circumstance in which the state tells a couple who are married and who wish to remain married that they must get divorced. If there is such a circumstance, I invite hon. Members to tell me about it, but I do not believe that there is one. I believe that it is fundamentally wrong for the state to tell a couple who are married and wish to remain married to divorce, so an amendment to the Bill is needed.
  I should like to put a final point to the Minister, which I hope is easier to deal with, about the gender recognition panel. Some of my constituents who are transsexuals have suggested that it is important that the membership of the panel should include transsexual people and partners of transsexual people. They suggest not that the panel should be comprised entirely of transsexual people and their partners, but that there should be some transsexual people and their partners among its members, so that it has the same experience as those in respect of whom it will adjudicate and knows what they have been through.
  7.20 pm
  Mr. Robert Key: I intend to vote in favour of the Bill. It is the sort of legislation that political parties do not like, but that Governments have to face. It is certainly not the sort of issue that any party would put in its manifesto before a general election nor campaign on with any zeal or the expectation of reaping electoral rewards.
  The Bill began its course through Parliament in another place and, on Second Reading there, Ministers justified it on the grounds of constitutional reform, social inclusion and developing a culture of rights. Last of all, they admitted that the Bill had been influenced by judgments of the European Court of Human Rights, which has ruled that a system recognising transsexual people in their acquired gender must exist and that transsexual people must be granted their rights under article 8 of the European convention on human rights—the right to respect for private life—and under article 12 on the right to marry. The Law lords in this country judged in the case of Bellinger that the law must be changed so that transsexual people have the right to marry in their acquired gender.
  The Government have therefore been forced to introduce the Bill, which was not in the Queen's Speech, but I make no complaint about that. Indeed, I welcome it. This is very difficult legislative territory and Members on both sides are on their own in deciding how to cast their votes. The Whips will tread on this piece of law at their peril.
  Andrew Selous: I think that my hon. Friend will find that Government Members are under a three-line Whip.
  Mr. Key: I bow to my hon. Friend's superior knowledge, but we shall see. If Labour Members are under a three-line Whip, that is legitimate. It is Government legislation, and there is no reason why they should not be. However, I would be very surprised if the Whips were up to their usual tricks with anyone who had a conscientious objection to the Bill.
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  A great deal of time during the Bill's passage through the other place was spent discussing sex and religion. However, I have read the debates and spoken in the past few days to a number of transsexual people, and I am in absolutely no doubt that the most important reason for supporting the Bill is because it is about justice. It is about the justice denied to a very small minority of people down the ages, the justice denied because of taboo, prejudice and incomprehension and the justice denied because business managers and Cabinets can always find less controversial and more pressing matters to deal with. Now, that injustice is finally being confronted by the rule of law.
  I go back a long way when it comes to issues of minority rights. When I was a student at university, the then Member of Parliament for Hampstead, Ben Whitaker, ran something called the Minority Rights Group and I read his reports avidly. As my hon. Friend the Member for Daventry (Mr. Boswell) said, the influence of constituents will always be important in our decisions.
  A member of a Christian transgender group to whom I spoke only yesterday wished me to stress the fact that, as far as she is concerned, same-sex marriage is not on, that civil partnerships are equitable and that most transsexuals get by nicely until something goes wrong, but that by far the most important issue is the simple justice at stake here. I beg the House to remember that we are not arguing about angels dancing on the heads of pins. We are debating run-of-the-mill, everyday issues such as motor insurance. A person born a male, registered as a male at birth, currently remains a male legally even though she has, in fact, changed gender. If she has a car accident, she risks prosecution for driving without insurance and for fraud. She will also be forced to reveal her gender history to officials who are complete strangers. This is humiliation up with which you, Mr. Deputy Speaker, or I would not put.
  Much reference has been made to pensions, which are an extremely important issue. I draw the House's attention to schedule 5. It deals not only with pensions but with state benefits, which are also at stake. It refers to the widowed mother's allowance, the widow's pension, the widowed parent's allowance, long-term incapacity benefit, the category A retirement pension and so on. The explanatory notes provided by the Department for that schedule are very revealing. Paragraph 112 on page 19 says:
  "In summary, these provisions ensure that a transsexual person who has been granted a full gender recognition certificate will be entitled to the state benefits which are appropriate to his or her acquired gender, and will no longer be entitled to a benefit or pension which is payable only to someone of his or her birth gender."
  I hope that my hon. Friends will pay great attention in Committee to paragraph 113. It says that
  "the Department is of the view that if there is any interference with the Article 8 rights of a transsexual person as a result of these provisions it is minimal, justified as a means of according full recognition to transsexual people in their acquired gender, and a proportionate means of obtaining that end."
  In other words, it is the Department's view that it is all right to have diminished pensions and to cut state benefits if transsexuals have their certificates because their object surely was to obtain their certificates. It is important that the Government listen to the view of Parliament and not just to the views of Department when it comes to these issues.

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  Clause 11 and schedule 4 raise important issues for all the Christian Churches and for other religions. Without going into the theology that might be more appropriate for Committee, let me say that I smiled quite broadly when the bishops lined up to vote against those Lords Temporal who thought themselves more religious than our Fathers in God. I am neither a theologian nor a clinician but, as a practising member of the Church of England, I take very seriously the teaching of Christian Churches on this issue. I have with me the excellent Church of England report on "Some issues in human sexuality" that was published last year with the authority of the Archbishops of York and Canterbury. I have read the report—as you can see, Mr. Deputy Speaker, it is quite well thumbed—and the good news is that we cannot blame the Bible. Paragraph 7.3.2. of the report says that
  "there is general acceptance that there are no biblical texts that can be seen as addressing transsexualism as such"
  There are those who believe that human beings are either male or female because of their God-given biology and that nothing a surgeon can do can alter that fact. They say that sex reassignment surgery can never make a man a woman or vice versa, but is it fair to blame God in this way?
  Others believe, as I do, that the existence of gender dysphoria is a consequence of the fact that we live in a fallen world and that it is right for us to take action to correct the consequences of our fallen state when God has given us the means for us to work out how to do it. My wife and I did not blame God when our first child died after a few days, more than 30 years ago. We did not blame anyone. We sought to find out what had happened, and whether it would happen again. We entered the world of genetics. We were told that he had a random, one in 8,000 genetic abnormality—a chromosome 13 partial monosomy. We assessed the risk; we took advice; and we now have three wonderful adult children all earning an honest living.
  I had always taken my sex and the sex of others for granted. It all seemed so obvious, but it is not. Perhaps the most enlightening debate in the other place, where the Bill started, took place on 3 February when an amendment to schedule 4 sought to prohibit marriage between two persons each possessing XX chromosomes or each possessing XY chromosomes, or each possessing genitalia appropriate to the same sex. "After all," it was argued, "that is the undoubted determinant of biological sex," but it is not. What about Turner's syndrome, which affects women with only one X chromosome? Is one X chromosome enough to count as a woman? What of Klinefelter's syndrome, which affects men who have two Xs and a Y? Should they be classified as men or women? They believe that they are men.
  Lord Turnberg also reminded their Lordships that many babies are
  "born with genitalia that are at variance with their chromosomes."
  Many of them have surgery to place them firmly in one gender or the other. If those genders do not coincide with their chromosomes and if those people marry and try to have children, they will sadly be infertile.
  As the hon. Member for Birmingham, Selly Oak (Lynne Jones) pointed out earlier, Lord Winston reminded us that
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  "even in the case of Turner's Syndrome…it is possible to have an XY mosaic, with some of the cells carrying a Y chromosome and some having a deleted X chromosome."
  Therefore, such people
  "may have varying degrees of masculinity or femininity."
  He also said that most geneticists would
  "describe sex on six, totally separate, definitions."
  They can be chromosomal, but they are also genetic. He pointed out that
  "genes on the Y chromosome are not the only genes that define sex. Although the SRY gene is by far the most common and important, there are genes on chromosome 17, chromosome 11, chromosome 10, chromosome 6 and chromosome 3 that …can determine sex of various, kinds. Those people can carry on a completely normal life."
  I am indebted to Shaun Fountain, of the Salisbury Fertility Centre, for taking time out from yesterday's Ireland versus Wales rugby match to explain to me about 46 XX males, who lack a single Y chromosome, and about 46 XY females, who have testicles and no uterus because of androgen insensitivity, and cannot respond to testosterone. So in addition to genetic sex and chromosomal sex, there is hormonal sex. Some people produce hormones that will tend to feminise them, while others will be masculinised. That can happen in utero. Serious medical evidence exists that some people who become transsexuals in later life have been exposed to an abnormal surge of either male or female hormones during pregnancy, which has caused them to have a psychological sex that is different from their genital sex.
  As Lord Winston told the other place, we should be very cautious about defining sex in terms of chromosomal, genital or any other simple definition. He said:
  "It simply is not medically just, and I am sure that it would produce bad law".—[Official Report, House of Lords, 3 February 2004; Vol. 657, c. 620.]
  That is why the Government are right to establish in this Bill a system to recognise acquired gender in law, through the determination of an application for a gender recognition certificate. The original birth certificate will not be destroyed, but superseded. We are dealing here with the most intimate secrets of a human being. I will take some convincing that the Bill should be amended to allow access to those secrets by any other person—by right, and against the will of the person concerned—in any circumstances other than those described in clause 22. In fact, I have my doubts about some of those circumstances.
  In recent weeks there has been correspondence about human gender in the columns of The Tablet.I end with the remarkable contribution of Dr. Bernard Ratigan, of Loughborough university, who is a psychoanalytic psychotherapist. On 7 February, he wrote:
  "Simply put, we are all both male and female, and the `physiological indicators' are only the surface markers but they are not the whole story. Given the vicissitudes of pre-natal and postpartum physical (and then psychological) development, the more experience I gain in the field of gender dysphoria the more I wonder at the mystery of human gender development. It is a triumph of nature that so many of us are secure in our gender and surprising, given the profound pressure to gender conformity, that so few suffer from gender dysphorias"
  In conclusion, I can do no better than echo the words of my noble Friend Baroness Buscombe, who said that because the Bill's measures involve some important

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  Principles of law, we must proceed with caution. That will be achieved in Committee. Indeed, as the Bill proceeds through all its stages, it is important that we approach the many issues with care and with compassion for those for whom the measures are intended.
  7.33 pm
  Kali Mountford: I want to begin where the hon. Member for Salisbury (Mr. Key) left off, and with the point that I made in my question to the Minister at the start of today's proceedings. None of us can be absolutely sure of who we are at any point, and there is nothing wrong with that My reading around this subject began in 1997, as a result of a constituent's case. I read about the question of where our gender identity comes from, and we certainly cannot find an answer by looking in medical books, because the arguments are many and varied. I am glad that the hon. Member for Salisbury discussed so thoroughly the various different conditions, as he has saved me the trouble of doing so. He is right: if we look in that direction for an answer, we might find no answer at all, or too many to come to a sensible and logical conclusion about who we are.
  In trying to devise laws so that we can act out our daily lives with a proper sense of reality, it is therefore sensible to look to those individuals who find that any definition of themselves does not fit with their own sense of self. It is not for us to insist, as a result of any test that we might be able to devise as time goes by, that a given person is someone with whom they do not themselves identify. To decide gender on the basis of an XY chromosome, for example, might be to go down a very tricky path indeed. It is therefore right for people to present for themselves what they perceive as a problem in their own lives.
  That leads us to the question of how to proceed sensibly from there. We have already made some progress on that front. By deciding that people can have treatment, with national health service support, that properly identifies their physical appearance, we go some way towards recognising gender dysphoria as a true and proper medical condition. That has taken some people a long way forward, but not nearly far enough. Nor will this Bill take us the entire way. Our society is in transition, as, indeed, is our medical profession and this House. And the same is true of some of the people whom we are talking about. In this period of transition, there are some specific issues that we need to address carefully.
  The issues that we face today will not be those that we face in future. We are discussing very complicated family relationships that have evolved because the recognition of somebody's gender has been decided on later in life. There are many reasons why people might want to conform to their physical appearance. We could debate that issue at length and it would not help us very much, but at this stage of our social maturity, people are presenting at a much later stage in life than might be the case in the future. That will change because social attitudes will change. We have had many debates on people's sexuality, but in generations to come, as people go through puberty their gender identity will not be so difficult to address. Indeed, such progress might not be that far into the future. During development in puberty
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  and early adult life, it might be more possible for people to say, "The person who you think I am is not who I really am after all." It might be possible to make such decisions much sooner, so that there are fewer complicated family relationships involving marriage. That will be a natural social progression.
  But we are in a different place at the moment. Complicated family relationships already exist, and they will exist whether or not we legislate. The fact remains that marriages break down because of gender identity. They do not break down as a result of the state; they dissolve because the differences between the people involved are irreconcilable, and they feel that they cannot go on. It is also true that some people can overcome apparently irreconcilable differences and carry on with a relationship that they have developed over 20 or 30 years. They do not stay together simply because the financial situation is easier that way, or because it is easier to manage their family; they do so because they truly believe that they are meant to be together.
  Those whom I have met the same is true for many other Members of this House find that their life together is incredibly difficult. There is no easy solution. My hon. Friend the Member for City of York (Hugh Bayley) pointed out some of the very painful decisions that people will be required to take. I agree with him entirely, but I am not sure that this legislation will be the end of the matter. I hope that, over time, the House will develop other solutions that might not fall within the Bill's parameters. It is difficult to make such choices, but the fact is that people make difficult choices throughout their lives. Even as things stand, the choice between staying together and divorcing is a painful and difficult one for families.
  The choice between staying together or divorcing—the decision to put gender before marriage—will be difficult, but the question is: are we ready to accept same-sex marriages? I am—the prospect does not trouble me at all—but I can see that there would be substantially greater opposition to the Bill if I were to insist on such marriages forming part of it. So I look at the situation pragmatically, and ask myself what it is that I can accept. I must also recognise that some of my constituents will not agree with me. Some will think that I am taking a step too far, while others will say, "Kali, I really need you to go a lot further than this. Please support more such measures. Please think about my life."
  I have to offset one set of concerns against another. I have reached the view that the Bill might be about right for where we are, but I do not think that the situation will remain static because things will have to be addressed as a result of changes to relationships after it is enacted.
  We must consider how complicated family relationships will affect people's finances. Pension rights, which have been addressed by several hon. Members, clearly present a difficult problem. The Minister could not give unequivocal answers about what will happen as a result of future partnership arrangements, but the Government have made significant moves to give an indication of what we can expect. We will not simply ask people to divorce, accept their new gender and have their birth certificate as they wish it to be, and then leave them in a void with nothing

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  in place. We must ensure that the legislation that we expect to be introduced in this Session dovetails properly with the Bill; otherwise the system will not work.
  Measures on people's benefit rights, entitlements and pensions have already been introduced that provide for more equality between the genders so that men's rights are now more similar to women's rights and vice versa. That was achieved especially by the consideration of the rights of widows and widowers. Now that men have the same rights as widowers that widows used to have, we have made progress toward ensuring that men and women have similar support.
  Mr. Bercow rose—
  Kali Mountford: I see that the hon. Gentleman is eager to speak; I give way to him.
  Mr. Bercow: The issue of obligatory divorce, which was highlighted by the hon. Members for St. Helens, South (Mr. Woodward) and for City of York (Hugh Bayley), is of the first importance and should surely be decided on its merits. The hon. Lady would always be the first to stand up for what is right rather than what is simply convenient. Does she honestly think—I am listening closely to her argument—that the opposition to the Bill would be that much greater if it were amended in the terms that the hon. Gentlemen suggested? It does not seem to me that it would make much difference—those who are against the Bill are just again it, full stop.
  Kali Mountford: I understand what the hon. Gentleman is trying to say, and I think that that would be true of several hon. Members who have debated the matter. However, I am not sure that it is true of all my constituents or many communities in my constituency. For some people, the question of a man and women being married—with that being the nature of marriage—is so fundamental that they cannot see around it. As I have already said, that is not a problem for me. I do not feel troubled by it, and I would not have been troubled if such a measure were in the Bill. I hope that there will be a time when the matter is not an issue in society, but we must accept that it is an issue now. Many more people would have hammered down my door to oppose the Bill if it had included such a measure. I, and many transsexual people whom I know, expected a much more heated debate than we have had. As there is compromise on both sides of the debate, we have found a position in which people may find consensus.
  Mr. Woodward: Just as a point of clarification—my hon. Friend and I certainly do not disagree on these matters—it is essential to recognise that the question is not about something to be promoted for the future. We are dealing with a situation with happily married people who married in good faith and wish to stay together after something has happened in that context. We will be saying, "You now have to divorce so that you can be recognised as being yourself." If we presented the argument to our constituents in the context of forcing existing couples to divorce, I wonder whether, if the House really came together on the issue, it would be that
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  hard to convince them that we were doing the right thing by enabling couples who want to stay together to be together.
  Kali Mountford: My hon. Friend makes a valid point, but I would then expect other people to come to me and say, "What is so inequitable about my relationship that I must have a civil partnership registered yet I cannot marry?" That would be a reasonable position for people to take and if we reached that situation, we would have to accept that we were entering a new form of marriage. Many people currently think that that would be a step too far. It is not a step too far for me to accept that, but I appreciate that it would be for other people. I am trying to find a way to set complex moral values against actual situations to try to make sense of people's lives and allow them to make reasonable decisions.
  Hugh Bayley: If, for reasons of pragmatism rather than conscience, my hon. Friend cannot go along with my view that there should be one clearly defined and specific circumstance in which same-sex marriage could be permitted, will she go along with the alternative that I put to the Minister: we should construct within the Bill a legal relationship that would preserve for a formerly married couple who had to divorce because of the Bill all financial and legal rights between each other, including pension rights, that they had when they were married?
  Kali Mountford: My hon. Friend makes the right point—that is what I would like to be preserved. There is no great strength in arguments about whether we recognise relationships in one way or another under law—or before God, if that is people's preferred way of recognising their relationships. However, when making legislation, it is important to ensure that we do not disrupt people's lives in such a way that a decision becomes impossible. That is why we want the measures that we hope will be contained in pension legislation and, most importantly, the Bill to recognise same-sex relationships in a civil manner because the dovetailing of the Bill with new legislation will be absolutely crucial. We will make decisions on the Bill today and in Committee in the light of suspicions about legislation to come, but without any guarantee of that. That is always a difficulty, but is not life always like that?
  Friends of mine. Who, are in the same situations as the constituents of my hon. Friend the Member for City of York, are faced with the abhorrent decision of whether to stay together or for the gender of one of them to be recognised as she believes herself to be. That is difficult, but there are difficult choices to make in marriages and all relationships. Some people will choose to stay married—that is their choice. It is not for the House to say to them, "You must put asunder what you have always had." However, we propose that they should at least have a choice that has not been available to them before. That choice will be paramount for some people.
  We have heard about relationships that have survived for 35 years through all sorts of ups and downs—not least of which being the gender of each partner. Such people have relationships in which those matters may be discussed. I suggest that people without such a relationship probably parted many moons ago, so the Bill will help them not one bit. The way in which society views marriage and gender is in transition—it is

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  changing quickly over time. It has changed more quickly over the past 10 years than it did during the 50 years of my life so far. There have been amazing changes that I thought that I would never see when I was young, but that are now considered to be mundane and ordinary. Although television programmes are made about people's actual lives, transsexual people now turn up all over the place in soaps and dramas without people flickering an eyelid about how odd that might be.
  Society is moving faster than legislation in some ways, but it is moving slower in other ways. There is a conflict in social opinion between those individuals people know and recognise and what they feel about institutions. We need to get a balance between those real people's lives and attitudes to institutions. That is the situation we encounter when we discuss the institution of marriage in the light of the decision by a small number of people to stay together irrespective of their gender. That is a difficult problem to conjure with, but the Bill will take us a long way towards changing people's actual lives. There will be difficulties for some people, but others will benefit hugely from the Bill.
  I talked to some of my friends about deciding between gender recognition and marriage. The big step forward in opinion, legislation and people's rights has been of such benefit to them that although they might decide that they cannot make use of the legislation now, which will be seriously distressing for them, they will accept that many others will benefit because the Bill will change social attitudes so much and so quickly—even more quickly than changes experienced so far—that the benefits for future generations will be immense. The Bill's contents place it in the middle of enormous social change.
  Another set of relationships is vital and has only been touched on. It is difficult to legislate for the relationship between parent and child in the best of circumstances, but it is even more difficult in the circumstances that we are discussing. It behoves us to ensure that if the relationship can be maintained, it should be supported in every way. To decide on the title of a parent post-change is not very helpful. We need to ensure that the relationship between the parent and the child is maintained in law and maintained financially. I know the Bill does not deal with that, but we need to mention that the child should be supported through the Child Support Agency in the same way as he or she would be should the parents decide to part. It is crucial that if the child decides to break contact with a parent because of family circumstances, that child's support is at least maintained. I hope that social structures can be changed over time so that the proper relationship between parents and child can be properly maintained.
  In the cases of the people I know, children found it difficult when one parent changed gender, but the love and bond between parent and child was so strong that it was not changed for ever and the good, close, loving relationships continued. Sadly, however, that is not always the case. We need assurances that support for children will be maintained. I have not detected anything in the Bill that makes me think that it will not be, but it needs to be mentioned so that people are clear, when reading the debate, that we are not overlooking children and their basic need for contact with their parents.
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  I want to pay a couple of tributes. The first is to the House for its maturity. My friends who advised me on speaking in the debate said that I could expect to encounter terrible hostility and cruel and harsh words. I hope, on watching the debate, that they will be relieved that their particular relationships have been held in regard by the House. That will be of some comfort. The debate has been mature and it reflects the maturity of society at large.
  In particular, I pay tribute to my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) whose fortitude and persistence over the years deserves recognition. Some of my constituents who are members of Press for Change have written to her a number of times. They think that our debate is largely, if not entirely, a result of her hard work over many years. The House owes her a great debt of gratitude.
  I hope that the House will continue in its mature vein in the years to come.
  7.54 pm
  Andrew Selous: I very much hope that the tone of the debate will continue. I think we would all agree that we have had a measured and reasonable discussion of the subject. I especially hope that that mood will continue, given that I am probably going to be the only Member who expresses a view that is contrary to those expressed so far.
  When we talk about the issue it is tremendously important that we express both sympathy and compassion for those who suffer gender dysphoria and that we do all in our power to help people in that condition with some of the practical everyday problems that they face in their lives. At the same time, however, it is important that we are rigorously intellectually honest with what we are about to ask the House to do. My fear is that we are not being as rigorously intellectually honest as we should be.
  I ask the House to pause and consider exactly what it is that we are planning to do when we are prepared to say that someone born a biological man will be regarded, with the full force of the law, as a woman, and vice versa. That has profound implications for our Parliament and we should reflect on that. My feeling is that we are not going about the Bill's sensible ambitions to deal with practical problems, which we all want addressed, in the right way and are not applying the right, the appropriate or the really honest solutions.
  We heard a bit about the medical background as to what causes gender dysphoria, such as the genetics before people are born. As parliamentarians we have to accept that we are not experts in the field and should defer to those in the medical profession who have studied the subject. I note, however, that when the Government were under pressure and in difficulty in the other place when the medical matters were discussed, it appeared to a number of commentators that Lord Winston was brought in to help them out. I have the greatest respect for Lord Winston. He is an eminent fertility expert who trained as a gynaecologist and an obstetrician, but even he would say that he is not an expert or trained in gender dysphoria. The people who are expert on gender dysphoria are psychiatrists. If hon. Members had taken the trouble to contact the Royal

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  College of Psychiatrists, its past presidents and others, they would have heard a different take from the one proposed by Lord Winston in the other place on the question of whether sex was conditioned before birth.
  Lynne Jones: I draw the hon. Gentleman's attention to a document produced by the parliamentary forum on the medical view of the aetiology of transsexualism. There is a link to that report on my website, and work is being done to update that view. The forum is attended by the people who are most expert in the condition and it is advised by them. It is not correct to say that the Royal College of Psychiatrists takes that view. Its lead member on its panel attends and advises the forum.
  Andrew Selous: I hear what the hon. Lady says, but I challenge her and any other hon. Member to produce a list of experts in the field who genuinely believe that the matters are absolutely predetermined physiologically and genetically. I am not saying that there is no physiological element. However, a number of the doctors at the two main centres in this country which deal with the condition—the unit at the Charing Cross hospital and the Portman clinic—have gone into print, and have suffered considerable hostility as a result, saying that they do not share that view. Even research undertaken in the Netherlands is not accepted as conclusive.
  Mr. Woodward: Does the hon. Gentleman appreciate that the logic of what he is saying is effectively to reduce all the surgeons who carry out this work to nothing more than cosmetic surgeons, doing it because somebody comes along and says, "Well, I just fancy changing my gender"? That is not what happens. Years of work lie behind such operations, some of it very distressing to the individuals. After having counselling and living in the other gender, there is then a big decision to be made about the operation. The hon. Gentleman must bear it in mind that no doctor would undertake that work as a flight of fancy. It is not a cosmetic procedure; it is a very serious procedure. The hon. Gentleman must reflect on what he is suggesting doctors are doing in these cases because, in my view, they think that they are providing a necessary medical remedy.
  Andrew Selous: I take the hon. Gentleman's sensible point that this is a major, serious operation. There are provisions in the Bill to ensure that gender change cannot happen in a short period, as it currently does in some cases, which causes concern.
  I am simply making a general point that a range of factors cause gender dysphoria, and they are principally psychiatric conditions. Reference has been made to the fact that in every case people who want to change their gender have been preconditioned genetically and physiologically so to do. I am not questioning their right to do so or the fact that they face discrimination. I am merely making the point, which I think a large number of clinicians and others accept, that this is a psychiatric matter as much as it is a matter of genetics or is in any way preordained.
  I have not yet heard in the debate a proper answer to the case of those transsexuals who move from one gender to the other and then back again. That supports
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  my case that these matters are not inherently determined in people's genes. People who choose to go back to their original gender do exist, and the Bill will have to cope with those circumstances. As I said, I do not want to get bogged down in a medical argument because I do not think that we are the right people for that, but it is important to make those general points.
  It is important also to note that we are not discussing intersex conditions—a point that the hon. Member for Colne Valley (Kali Mountford) established early on in a useful intervention on the Minister. Those are a separate category from the transsexual issues that we are discussing.
  If the Bill is enacted in its current form it will very much affect marriage, as it will, in effect, legalise same-sex marriage. We should be concerned about that. These points were made by the Bishop of Winchester in the other place, as the hon. Member for Winchester (Mr. Oaten) made clear, and he accepts that he has a difference with the Bishop of Winchester on the matter. We have to accept that if we pass the Bill we will be allowing two men or two women to marry. I have sympathy with the point made by a number of Labour Members that when a married person wants to adopt a different gender the couple should not be forced to dissolve their marriage: I think that they should be able to stay together. I know that the Government are trying to support the principle that marriage applies purely to a man and a woman, but they are going about it the wrong way and putting gender before sex. As the plaque on every registrar's wall says:
  "Marriage according to the law of this country is a union of one man with one woman".
  Kali Mountford: I am grateful to the hon. Gentleman for advancing the argument about same-sex marriages, which I expected to hear in this debate but had not yet heard. Those are explicitly excluded from the Bill. A moment ago, the hon. Gentleman said that this is a problem to which the Bill is not the answer. Perhaps he would like to tell the House what the answer is.
  Andrew Selous: I shall deal with those two points in turn. The hon. Lady says that same-sex marriage is excluded from the Bill. I disagree. I think that it is same-gender marriage that is not included, because I come from the premise that one cannot change the biological make-up of a human being. I accept that people may want to adopt a different gender, and we have heard movingly from the hon. Member for St. Helens, South (Mr. Woodward) about his sister. I am not denying that people should have the opportunity to do that if they so choose. However, if one accepts that a human being has a unique biological make-up, which any law made in this House cannot change, we are talking about the ability of a man to marry another man and of a woman to marry another woman. There cannot be any dispute about that.
  The hon. Lady asked what other means we could use to prevent some of the problems that transsexuals face. We could deal with employment problems by using employment legislation to ensure that there could be no discrimination. Insurance has been mentioned a number of times, and there are ways of dealing with that. I think that I may be the only chartered insurer who is a Member of the House—I am certainly one of very few.

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  Believe it or not, underwriters are reasonable, understanding people, and I am sure that separate arrangements could be made with insurance companies.[Interruption.] Perhaps not all hon. Members are prepared to accept that, but having been a member of the underwriting community for a while I contend that they are.
  Lynne Jones: Will the hon. Gentleman give way?
  Andrew Selous:In a moment.
  We should be very keen to stop any form of harassment. We have legislation to stop race-hate and homophobic bullying, and I would be very much in favour of legislation to make sure that transsexual people were not harassed or intimidated.
  Mr. Bercow: Will my hon. Friend give way?
  Andrew Selous: I said that I would give way to the hon. Member for Birmingham, Selly Oak (Lynne Jones).
  Lynne Jones: I just wanted to inform the hon. Gentleman that there is legislation preventing discrimination in employment: the Sex Discrimination (Gender Reassignment) Regulations 1999. That provides guidelines but it does not deal with cases in which employers require to see birth certificates, so people often censor themselves in applying for jobs and promotion. That problem cannot be overcome other than by full legal recognition, enabling transsexual people to have a reissued birth certificate.
  Andrew Selous: The hon. Lady makes a practical point, and one way to get round it might be to say that a gender recognition certificate could be used in place of a birth certificate.[Interruption.] The hon. Lady shakes her head but I see no reason why that would not work while we were looking at practical alternatives. I now give way to my hon. Friend the Member for Buckingham (Mr. Bercow).
  Mr. Bercow: I admire my hon. Friend's courage and principle in standing up for that in which he believes. I put to him two simple questions. First, would he acknowledge that at heart his motivation for opposing the Bill is a religious one, which may be convincing to him, but is not necessarily convincing, or a basis for legislation, in the minds of many others?
  Secondly, I put it to him that his opposition to discrimination, harassment and ill treatment would probably sound more convincing if he had argued for practical equality before the law prior to the Second Reading of this Bill.
  Andrew Selous: I shall deal in turn with those points raised by my hon. Friend and parliamentary neighbour. First, I speak today, as do several hon. Members, from personal religious conviction. However, I have received letters from constituents who are worried about the Bill but do not have a personal faith. People of all faiths and none will be concerned that Parliament is being asked to legislate to create a legal case for something that I do not believe to be valid in terms of biology and physiology.
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  I do not quite understand my hon. Friend's second point. I am on the record as having expressed concerns about homophobic bullying, race harassment and so on, and I repeat that I would not want that to happen to transsexual people.
  Mr. Bercow: My hon. Friend has been very fair, and it is right that I should clarify my second question for the avoidance of doubt. I do not dispute that he is opposed to harassment and violence. My question is this: if he believes that transsexuals experience day-to-day discrimination and disadvantage, and he has long been conscious of that, why did he not argue for reform of the law before, instead of declaring a willingness to consider the matter on Second Reading of this Bill, to which he is explaining that he is opposed?
  Andrew Selous: I plead guilty as charged to not having taken the course of action that my hon. Friend urges upon me. Indeed, there are probably many other worthy causes that I have not taken up owing to insufficient time or interest. However, that does not invalidate my basic point, which is that through the Bill we are legislating to enshrine secrecy and to put into law the case that someone's sex is other than that which has been biologically determined.
  As I said, that has implications for marriage. It also affects many other groups of people. First among those would be the families of those affected, by whom I mean the spouse, partner, children or wider family members. I was pleased that the Minister said that those family members will have the chance to be represented on the gender recognition panel, and I hope that the Under-Secretary of State for Constitutional Affairs, the hon. Member for Shipley (Mr. Leslie), will give the House more detail about that.
  The Parliamentary Under-Secretary of State for Work and Pensions (Maria Eagle)indicated dissent.
  Andrew Selous: The Minister's colleague is shaking her head. Perhaps I am confused, but I thought that he said that family members will be fully represented on the gender recognition panel. That is tremendously important, because large numbers of people are affected by someone's decision to change their gender. We exist not as individuals, or as atomised beings who are on our own in society, but in relationships with other people as families and communities. Of course, such decisions have profound and personal consequences for the individual concerned, but so too do they for their wider families and for many other people. If those people really care for that individual, they should be able to appear before the gender recognition panel to make any points that they wish—especially given that some transsexuals move from their original gender to an adopted gender, then back again.
  As regards registrars, I have to disagree with the comments made by the hon. Member for Winchester in response to my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack). Of course I agree that public officials have a general duty to obey the law, but this is surely a matter of conscience involving issues of principle about which people may feel strongly. There have recently been comparable cases in which social workers have lost their jobs over adoption decisions

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  following the recent change in the law in that area. Hon. Members will have to be mindful of the position of registrars who, for the highest motives, find themselves having to make a genuinely difficult personal decision.
  Hugh Bayley: I recognise that the hon. Gentleman is arguing against the Bill. However, if it passes into law and a transsexual is able to apply for a birth certificate in their acquired gender, how on earth would the registrar know that the person was a transsexual who had changed gender? When applying for marriage, they would simply use their birth certificate.
  Andrew Selous: I am talking about the specific circumstance whereby a registrar is asked to provide a different birth certificate to change a male birth certificate to a female one, or vice versa, which may well give rise to issues of conscience. The hon. Gentleman may have thought of wider examples that I have not considered.
  Many Churches are worried that they will find themselves open to legal challenge on this matter. That may occur purely in relation to pastoral arrangements—for example, the senior minister may want to share some information with other members of the pastoral team and find that he or she is unable to do so. There is also the worry that malicious legal action may take place. I remind the Minister that the former Home Secretary, who is now Foreign Secretary, said unequivocally in this House on 20 May 1998 that Churches act as public authorities when they conduct a marriage. I hope that people's fears are unfounded and that they can be allayed during the progress of the Bill. However, I have a copy of a letter that a Church recently received in which it was threatened with legal action and told that it would find itself in a more difficult legal position once the Bill becomes law. Churches should not be looking to exclude transsexuals, who should be able fully to involve themselves in the life of a Church.
  However, there are concerns about vindictive legislation that will cost Churches a great deal of cash that they can ill afford. I therefore hope that the Minister can reassure us about that; I can assure him that it is an issue of concern.
  Pension rights were mentioned earlier. We have not received proper answers to the points made about that. I hope that in Committee we will get some proper answers.
  Mr. Boswell: With the leave of the House—
  Miss Widdecombe rose—
  Mr. Boswell: I shall let my right hon. Friend speak.
  8.20 pm
  Miss Ann Widdecombe: I apologise to my hon. Friend the Member for Daventry (Mr. Boswell); I believe that we were called simultaneously. It was undeniably my fault for not being quick enough on my feet, and I thank you for calling me, Madam Deputy Speaker.
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  Even if the Bill were the most perfect measure, I could not vote for it on the ground of conscience. However, the measure should cause everybody, even those who support its principle, to pause for thought. It is muddled and a legal quagmire. Despite the fact that it has been through the other place, there are massive, important questions that the Minister could not answer today. I do not say that abusively; he simply could not answer them.
  No man or woman is an island. When we try to rectify an injustice, we must examine the impact on others and on society. Until we have managed to answer the questions that are raised in that examination, we should not rush into passing the Bill. Again, I stress that even if one accepts the principle—and I make no bones about the fact that I do not —this is a bad Bill.
  Kali Mountford: Will the right hon. Lady give way?
  Miss Widdecombe: Let me make some progress and I shall.
  First, the subject of pensions has been raised time and again. My hon. Friend the Member for Salisbury (Mr. Key) pointed to schedule 5. The issue is not the individual's rights to a pension but those of dependants, especially in circumstances in which the state has enforced a divorce as a result of the Bill, and the impact on the former spouse. That has not been worked through. It must be done, and I do not believe that Committee is the appropriate place in which to do it. The issue is of such fundamental underlying importance—[Interruption] I can see the hon. Member for Colne Valley (Kali Mountford) getting agitated; I will not sit down without giving way.
  The Minister must deal with the important issue that I mentioned quite separately from civil registration because, as a result of the Bill, the state will force a divorce on some people who will not wish to stay with the former spouse in a civil relationship. They will therefore become separate entities whose pension needs require tackling and clarifying. They need a guarantee that they will not suffer loss.
  Secondly, I made a point earlier about the identity of the legal mother of a child in specific circumstances. If the Minister had said that, from the moment that a surgical procedure and a sex change takes place and someone is recognised as being legally of another gender, rights accrue, the Bill would at least be more coherent, although I would still disapprove. The problem arises in rewriting history and in the state establishing a life so that a birth certificate has to be issued that provides a name and a gender that were not given at birth. History is thus rewritten.
  Elements of the Bill are farcical, including not providing information about the past. If one has a sex change, everyone from the past knows about it. Everybody knows one as the person one was; they played games at school with David not Davina. Former employers who are asked for references know people only in the gender that they had when they were in that employment. It is nonsense to try to throw a veil of secrecy, enshrined in law, over the past, suggesting that one can rewrite it or wipe it out.
  Changes in life do not mean that the past is rewritten. A marriage can be dissolved but nobody says that it did not exist, that that period of one's life, however unhappy

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  or difficult, did not happen. Rewriting history causes many of the measure's problems. I shall now honour my promise to give way to the hon. Member for Colne Valley.
  Kali Mountford: In the light of the right hon. Lady's clear compassion for people who will be affected by the Bill, how does she believe that their treatment will be worse as a result of the measure? Given that people already assign their gender in a new way, the Bill is simply a matter of recognising that and the consequent choices.
  Miss Widdecombe: There is a difference between allowing something to happen and institutionalising it, with all the legal consequences that flow from that. When someone changes gender, there is a great difference between simply recognising that and saying that it has always been so, with all the resultant implications, for families, financial organisations, responsibilities and, in some instances, employers.
  The Bill is appalling. It is a muddle and a quagmire. It is nonsense. I uphold the views of my hon. Friend the Member for Blaby (Mr. Robathan). I shall not pretend that, if it were the most brilliant Bill on earth, I would not oppose it. However, the measure should give everybody pause for thought. In our desire to rectify a wrong, we should not create more wrongs in its place.
  8.27 pm
  Mr. Boswell: For the second time, with the leave of the House, I am grateful for hon. Members' indulgence in allowing me to respond briefly. The debate has spoken for itself and I need only pick up one or two points briefly.
  We have heard nine passionate speeches, which were clustered in an interesting way. Let me begin by topping and tailing the debate. I was grateful to the hon. Member for Birmingham, Selly Oak (Lynne Jones). It was clear from several contributions, including mine, that hon. Members felt that her work in converting her constituents' concerns into a campaign that is within a whisker of bearing fruit was praiseworthy. As she knows from my earlier remarks, I am personally in sympathy with the campaign.
  However, I also believe that hon. Members should be grateful for the contributions of my hon. Friend the Member for South-West Bedfordshire (Andrew Selous) and of my right hon. Friend the Member for Maidstone—
  Miss Widdecombe: And the Weald.
  Mr. Boswell: I meant my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe). We would do no service to anybody, transgendered or not, if we pretended that the issues were easy and that there were no debate to be had.
  I derive encouragement from the conduct of the debate. As the hon. Member for Colne Valley (Kali Mountford) said, it was not characterised by the sort of heat and nastiness that it could have been. That does us credit. We should not rest on our laurels; we should sometimes take such an issue and debate it properly. We have done our best to do that. That applies to all
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  Members who have contributed, including my hon. Friends the Members for Bournemouth, East (Mr. Atkinson) and for Salisbury (Mr. Key), who supported my line on the Bill, and Labour Members who spoke from personal experience or their experience of, for example, the social security system and developed a position. Occasionally, therefore, we can come away with a sense of a worthwhile debate that was well conducted.
  On such a subject, about which views differ, it would be impossible to hammer out consensus. Indeed, it would not be sensible. However, it is possible to light on several themes that will be germane to the Committee stage.
  There is a very strong concern in principle. The Minister knows that I am on his side, and not that of certain others, over the implications for continuing marriages. We must have a firm debate on that in Committee, and consider any other possible procedures in relation to the transition to civil partnerships, or whether there are other assurances that can be given on that. That matter relates to legal status, and leads to the important issue of pensions. One or two comments that have been made on that are possibly not wholly fair to the Government. Anyone who reads schedule3—I recommend it for insomnia—will realise that it addresses many issues. It might not always be congenial to people, because the basic principle on which the Government are operating is that if a person changes gender, everything else follows from that and there will be no other advantage. However, the consequences to which my right hon. Friend the Member for Maidstone and The Weald referred could well flow from a divorce that took place with no reference at all to transgender issues. We will certainly need to consider that matter.
  The hon. Member for Winchester (Mr. Oaten) made some interesting points, especially on confidentiality issues. I can just imagine the difficulties if someone asked for a person's GCSE certificate, and it had not been changed because no one was under a legal duty to change it or to consider that matter. We will want to look at such situations.
  We have had a debate, if not of consensus, involving a remarkable consensus of tone. That is a good start, working on the assumption that the Bill receives a Second Reading, but it is not sufficient in itself. I am passionately committed to trying to get the legislation as right as I can—although that is sometimes a little difficult for a lay person—and I give Ministers and the House genteel notice that I intend to table amendments, as and when the Bill has received a Second Reading, precisely so that they can form part of the debate. I hope that other hon. Members, if they are prepared to participate in the Committee, will feel that they, too, can do that. It is greatly to our benefit to debate amendments thoroughly and properly, and I hope that we will not be rushed in doing so.
  I have picked up from my hon. Friends their real concern that in their view, because they feel that the change of gender cannot have taken place, the Bill would allow two men or two women to marry. All I would say in response is that there are essential difficulties in this field. I might throw back to them the situation that can arise now in which a man and a woman are legally married but, because one of them has changed gender, the marriage now exists between two

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  people of the same gender. In the same way, on registration and certification, if someone's birth certificate declares that they are a man, but for all practical purposes they are now living as a woman, I am not sure whether it is happier or more honest to say, "That's a man", or to recognise the fact that that person is now a woman. Then there are all the confusions, difficulties and ambiguities over the medical evidence. Perhaps my hon. Friends have realised that these issues are not straightforward. Some of them feel that they cannot live with the Bill, which I can understand, but equally, aspects of the status quo are not comfortable either.
  That suggests that we need to proceed with a delicate balance. My hon. Friend the Member for Salisbury quoted our noble Friend the Baroness Buscombe as having said in another place that we need to proceed with caution—I am sure that that is right, because the law must be got right—but he then added the rider that we must also proceed with compassion. That is the right balance. In my view, if in doubt—this will drive my support for the Bill—we should look at the people concerned and the problems that they face, and try, if we humanly can, although not regardless of any other implication, to meet their needs. The Bill is not perfect, but it is a lot better for the long process of debate and discussion that has already taken place. We can have a further go at improving it, and we intend to do so.
  8.34 pm
  The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie): May I say how impressed I am by the conduct of the debate? In my time in Parliament, I have not been involved in such a thorough, sensible and calm debate, which has brought out many of the important issues at the nub of the Bill. I feel privileged to have taken some part in today's debate. It was particularly marked that the hon. Member for Daventry (Mr. Boswell) had such a constructive approach, which I welcome. That constructive attitude will be brought to Committee, and my hon. Friends the Ministers who will take the Bill through Committee—the Under-Secretary of State for Affairs, my hon. Friend the Member for Tottenham (Mr. Lammy) and the Under-Secretary of State for Work and Pensions, my hon. Friend the Member for Liverpool, Garston (Maria Eagle)—are no doubt looking forward to that experience.
  My hon. Friend the Member for Colne Valley (Kali Mountford) commented on the nature of gender dysphoria and said that the way in which some individuals define themselves and see their identity is a critical, and very personal, issue. It is important to recap what we are talking about. Transsexual people feel a deep conviction of the need to present themselves in the appearance of the opposite sex, changing their names and identities to live in the acquired gender. Some take hormones and have cosmetic treatment to alter their physical appearance, and some undergo surgery to change their bodies to conform more to their acquired gender. However, the medical condition whereby an individual born to one gender feels adamantly that they are in fact of a different gender is known as gender dysphoria. It is a real phenomenon, albeit one that
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  affects only an estimated 5,000 people in the United Kingdom. Those individuals sometimes feel so strongly that they are of a different gender that they seek gender reassignment socially, hormonally or even surgically.
  The hon. Member for Winchester (Mr. Oaten) stated that when we debate those issues and try to find solutions, which the Government have genuinely tried to do with the Bill, a point comes at which we have to take a view on the principles that we hold. The Bill enables such a decision to be made, although I realise that there will be different opinions.
  The basic principles behind the Bill are clear. Although it concerns a minority, the test of how civilised a society is rests in part on the care and respect that it gives to minorities. Tolerance and respect are important, and recognition of difference is a key ingredient of that. Giving legal recognition to transsexual people is one step towards removing a sense of exclusion from society for a minority in our community—so there is an important principle at stake. That was the point that my hon. Friend the Member for St. Helens, South (Mr Woodward) made in a powerful and moving speech as many Members heard. The Government believe, as does he, that all people should be entitled to basic rights and allowed to live their lives freely and legitimately, as they determine. If some people lack legal status or recognition, that can inhibit their freedom and their ability to take part in society at large.
  Even if that problem affects only a small number of people, it is our duty to address it and to find solutions where we can. My hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones), as several hon. Members noted, has campaigned strenuously over a long period for many if not the bulk, of the provisions in the Bill. She made her points exceptionally strongly, and I pay tribute to her for her contribution.
  Basic rights to legal recognition are needed to allow transsexual people the right to privacy, without the need continually to describe their gender history to complete strangers in the course of their daily lives. That is another specific reason why this reform is necessary. Of course, the Bill will also enable us to meet our international obligations and honour various rulings of the European Court of Human Rights. The time has come to join a number of European and other states in giving legal recognition to transsexual people. We acknowledge that that will involve changing significant parts of our legislation, and that we need to begin to recognise more fully the human rights of that group in our society.
  The hon. Member for Daventry said that we often come to understand these issues through listening to the views expressed by our constituents. Indeed, many hon. Members have mentioned hearing such views.
  Mr. Alex Salmond: Will the Minister say a little more about the schedule relating to exceptions for clergymen in England and Wales in regard to their obligation to solemnise a marriage? How will a clergyman know whether he is in a position to exercise such an exception? Why are such exceptions not

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  necessary in Scotland and Northern Ireland? I know why they are not necessary, but it might be helpful if the Minister answered that question for the record.
  Mr. Leslie: As the hon. Gentleman knows, various Sewel motion activities and other Scottish Parliament implications exist in relation to extending some of the UK provisions to Scotland, and I shall deal with some of the exemptions shortly, including what has been termed the conscience clause. That proposes that those in the established Church who are under a legal obligation to solemnise a marriage when a person requests them to do so will have the ability effectively to opt out of that legal obligation. That provision has been put in place to allow those clergymen and women to have that opt-out, and it is now part of the Bill.
  The determinants of gender are important, and the hon. Member for Salisbury (Mr. Key) quoted a number of sources in that regard. In the Court of Appeal, Lord Justice Thorpe concluded in the Bellinger case that:
  "The test that is confined to physiological factors, whilst attractive for its simplicity and apparent certainty of outcome, is manifestly incomplete. There is no logic or principle in excluding one vital component of personality, the psyche."
  That is an important point. This involves not only physiological issues; psychological considerations are important, too. There is a growing body of medical opinion in this field, including practitioners and chartered psychologists. The Bill has been discussed with the British Medical Association, the General Medical Council, the Royal College of General Practitioners, the Royal College of Psychiatrists and the British Psychological Society. No objections were raised about the general principles of the Bill.
  The hon. Member for South-West Bedfordshire (Andrew Selous) said that hon. M embers should defer to those with medical qualifications and experience in these matters. The chief medical officer himself has informed Government thinking and concluded that gender dysphoria is a medical condition that needs to be addressed. We must face up to these problems and issues, and not bury our head in the sand and pretend that there are no issues to be addressed.
  The Bill has already undergone detailed scrutiny, not least in the other place, and it had its genesis in the interdepartmental working group back in 2000. The Joint Committee on Human Rights has considered the draft Bill. The noble Lord Filkin has taken a great interest in the formulation of the Bill, and I would also like to pay my own tribute to the Minister of State, Department of Health, my hon. Friend the Member for Doncaster, Central (Ms Winterton), for her part in devising and framing it when she was a Minister in the then Lord Chancellor's Department.
  The Bill contains a number of specific proposals. A panel of lawyers and doctors or chartered psychologists will be established and will be capable of issuing gender recognition certificates to individuals who are assessed as having the medical condition of gender dysphoria. My hon. Friend the Member for City of York (Hugh Bayley) pressed for hon. Members to include transsexual persons on the panels, but that requirement is not in the Bill and we have no plans to go down that particular avenue. The panel will be set up to take evidence from a wide number of experts, family
  102
  members and others, and that will be the manner in which it will be informed of relevant experience and expertise, rather than by trying to break down the composition of the panel. However, I understand where my hon. Friend is coming from on this issue.
  The medical condition assessment will require the applicant to provide evidence of a diagnosis of gender dysphoria, details of any treatment undergone for gender dysphoria and of whether the applicant has, in practice, lived in their acquired gender for at least two years—family evidence of this will be an important factor, as the hon. Member for South-West Bedfordshire pointed out—and whether they intend to continue to do so permanently. Evidence of treatment will not solely relate to surgical treatment. Although most transsexual people have had surgery, some have not and should not—perhaps for other health reasons. The key test will be whether a person has taken decisive steps to live fully and permanently in the acquired gender, as the hon. Member for Winchester observed.
  The issue of a new birth certificate will overcome a number of problems currently encountered by transsexual people. The hon. Member for Winchester highlighted the point about insurance, which was a good example. Insurance can be taken out in the acquired gender once a new birth certificate has been issued, so that, in the event of an accident, there would no longer be a risk of prosecution for fraud or driving without insurance, as legal recognition would remove the discrepancy between what the insurance documents record and the reality of how a person presents to the wider world.
  My hon. Friend the Member for Birmingham, Selly Oak mentioned the interim gender recognition certificates, and asked why a six-month time limit had been decided upon. The only purpose of the interim certificate will be to allow the dissolution of an existing marriage, and six months was felt to provide sufficient time for those proceedings to begin. As the interim certificate provides grounds for ending a marriage, allowing unlimited time would create too much uncertainty for the other partner. It is therefore only fair to limit its use to six months. I am sure, however, that this issue will come up in Committee.
  A number of hon. Members have mentioned the provisions in clause 22 on disclosure of information. It is clear from the approach that the Government have taken in respect of the issuing and recording of birth certificates that we have tried hard to strike a fair balance in the Bill between protecting the privacy of transsexual people and preventing disclosure by public authorities, while not acting excessively and criminalising all aspects of disclosure. For example, when a person acquires information about a person's gender history in the course of official duties, this will be regarded as protected information, and disclosure would be an offence.
  However, there are exemptions that will allow disclosure for valid public policy reasons, such as preventing or investigating crime—as mentioned by the hon. Member for Winchester—and there will be no prohibition on disclosure if information is acquired in a private capacity. If the individual is not identifiable, disclosing protected information will not be an offence—for example, in the use of information for statistical reporting purposes. The Government believe

  103
  that this approach strikes the right balance between protecting the privacy of individuals and safeguarding the public interest. My hon. Friend the Member for St. Helens, South asked whether officials would be bound to have a duty of care in regard to the use of protected information. My understanding of the Bill is that that will be the case, because they will be covered by the tightly defined offence involving the misuse of protected information. I believe that it is right to have that provision in the legislation.
  The issue of marriage was raised by several hon. Members. Transsexual persons will be able to marry persons of the opposite sex. These would not be same-sex marriages—as the hon. Member for South-West Bedfordshire wrongly asserted—as the change of gender would allow a valid marriage to proceed between a male and a female in law. That is the principle that we have followed.
  Andrew Selous: I feel that the Minister is falling into a slight confusion between sex and gender. One could argue that it would be same-sex marriage. His case is that it would be marriage between people of different genders, but it is not the case that it would not be same-sex marriage.
  Mr. Leslie: I do not think that the hon. Gentleman has understood our proposal for the use of the gender recognition certificate to acknowledge, on behalf of society, that individuals have been reassigned by their own volition and have acquired their gender—men and women, as defined by the panel on gender recognition.
  Mr. David Heath: May I bring the Minister back to information held by public bodies? He has not made it clear whether provision exists for a requirement on public bodies to amend registers that they hold, perhaps on professional or academic qualifications. Does he anticipate any change on that basis within the legislation?
  Mr. Leslie: The only core change that the Bill proposes is in respect of the issuing of a new birth certificate through the gender recognition register. That is the main register that will effectively be created by the Bill. No specific consequential series of changes will be made to public information held elsewhere, and, as was said, there will be no attempt to rewrite history. The original birth certificate will remain on record, with the new birth certificate on the gender recognition register. I take the hon. Gentleman's point about wider public information, however, and those are the sorts of issues that we will need to consider in Committee.
  The Government intend to introduce separate civil partnership legislation in this Session following consultation about a framework for the legal recognition of same-sex couples. Indeed, 83 per cent. of respondents to the consultation supported the principle of a civil partnership scheme. That is an entirely different issue, which is unaffected by this legislation, but it is important to bear it in mind that the Government are attempting to address some of the other questions in different pieces of primary legislation.
  104
  The issue of pre-existing marriages is a difficult one, about which the right hon. Member for Maidstone and The Weald (Miss Widdecombe) and my hon. Friends the Members for St. Helens, South and for City of York were asking. Pre-existing marriages would need to be dissolved in order for legal recognition for a newly acquired gender for married persons to be achieved: marriage in the UK is between a man and a woman, and the panel would therefore issue only an interim gender recognition certificate, which would be grounds for dissolving the marriage, at which point the court would issue a full gender recognition certificate. That is because marriage is an institution distinctly for opposite-sex couples. I accept, however, that careful consideration of this matter is needed, and my hon. Friend the Member for Colne Valley expressed carefully and pragmatically the difficult judgments that come into play on this issue.
  On the complicated question of pensions and benefits, my hon. Friend the Member for City of York asked two specific questions and made several other comments, as did the hon. Member for Bournemouth, East (Mr. Atkinson), the right hon. Member for Maidstone and The Weald, the hon. Member for Salisbury and others. The basic principle that we are following is that pensions and benefits follow the entitlement for the new acquired gender. A male-to-female transsexual person, say, aged 62, will gain state pension eligibility from the date of that gender recognition certificate. It will not be backdated, because we do not have retrospective legislation.
  My hon. Friend the Member for City of York raised a specific example of a case in which an individual whom we will call Y is a male-to-female transsexual person, and X is the wife of that original male individual. Were Y to apply for a gender recognition certificate, but is married to his wife, X, they will have their marriage dissolved. While X will lose her category B married woman's pension, the court will be able to institute a pension sharing order for occupational and other pension sharing rights, and X will be entitled to some category A state pension based in part on the national insurance contributions record of the former husband, Y, or on X's national insurance contributions record.
  My hon. Friend asked whether it was right to require a couple to divorce in order to obtain recognition if neither party wanted to do so. As I said, marriage is an institution between persons of the opposite sex, and that is part of the essential nature of a marriage contract and the marriage legislation. We must look towards some sense of consistency in our legislation. He then asked whether it was fair to put the right to marriage, in some sense, before the right to gender recognition, and to give that spouse less power in the relationship. That is a difficult judgment to make, and we are trying to resolve some of these problems, not least through the civil partnership legislation. which needs to be considered in tandem with this Bill
  Hugh Bayley: I thank my hon. Friend for his full and thoughtful response to my question. My follow-up question relates to the occupational pension entitlement of the spouse—the wife, in this instance—rather than entitlement to the state pension. If my hon. Friend intends not to change his mind on the question of dissolving the marriage, would the Government be

  105
  prepared to table an amendment requiring the supplier of the occupational pension to treat the wife as she would have been treated had the marriage not been dissolved—in other words, to protect the rights of the partner?
  Mr. Leslie: That is an important point, but, I suspect, a point of detail that the Committee would be better placed to address.
  I believe that the test of a civilised society is its approach to minorities and the respect that we have for their rights. Transsexual people face obstacles and legal problems on a day-to-day basis, quite unnecessarily. They have human rights that need defending, and freedoms that deserve respect. The Bill will right a wrong that currently exists, and I commend it to the House.
  Question put,That the Bill be now read a Second time:—
  The House divided: Ayes 335, Noes 26.

  Division No. 55]

  [8:56 pm

  AYES

  Abbott, Ms Diane

  Caborn, rh Richard

  Ainger, Nick

  Cairns, David

  Ainsworth, Bob (Cov'try NE)

  Campbell, Alan (Tynemouth)

  Alexander, Douglas

  Campbell, Mrs Anne (C'bridge)

  Allen, Graham

  Carmichael, Alistair

  Anderson, rh Donald (Swansea E)

  Casale, Roger

  Anderson, Janet (Rossendale &

  Caton, Martin

  Darwen)

  Challen Colin

  Arbuthnot, rh James

  Chayton David

  Armstrong, rh Ms Hilary

  Chidgey, David

  Atkins, Charlotte

  Clapham, Michael

  Atkinson, David (Bour'mth E)

  Clark, Mrs Helen (Peterborough)

  Bailey, Adrian

  Clark, Dr. Lynda (Edinburgh

  Baird, Vera

  Pentlands)

  Banks, Tony

  Clark, Paul (Gillingham)

  Barker, Gregory

  Clarke, Tony (Northampton S)

  Barnes, Harry

  Clelland, David

  Barron, rh Kevin

  Clwyd, Ann (Cynon V)

  Battle, John

  Coaker, Vernon

  Bayley, Hugh

  Cohen, Harry

  Beard, Nigel

  Coleman, Iain

  Beckett, rh Margaret

  Connarty, Michael

  Begg, Miss Anne

  Cook, Frank (Stockton N)

  Bell, Sir Stuart

  Corbyn Jeremy

  Benn, rh Hilary

  Cousins, Jim

  Bercow, John

  Crausby, David

  Berry, Roger

  Cruddas, Jon

  Best, Harold

  Cryer, Ann (Keighley)

  Betts, Clive

  Cummings, John

  Blackman, Liz

  Cunningham, Tony (Workington)

  Blears, Ms Hazel

  Darling, rh Alistair

  Blizzard, Bob

  Davey, Valerie (Bristol W)

  Blunt, Crispin

  David, Wayne

  Boswell, Tim

  Davies, rh Denzil (Llanelli)

  Bottomley, Peter (Worthing W)

  Davies, Geraint (Croydon C)

  Bradley, rh Keith (Withington)

  Dawson, Hilton

  Bradley, Peter (The Wrekin)

  Dean, Mrs Janet

  Bradshaw, Ben

  Denham, rh John

  Brennan, Kevin

  Dhanda, Parmjit

  Brooke, Mrs Annette L.

  Dismore, Andrew

  Brown, Russell (Dumfries)

  Dobson, rh Frank

  Browne, Desmond

  Donohoe, Brian H.

  Bryant, Chris

  Doran, Frank

  Buck, Ms Karen

  Dowd, Jim (Lewisham W)

  Burden, Richard

  Dunwoody, Mrs Gwyneth

  Burgon, Colin

  Eagle Angela (Wallasey)

  Burnett, John

  Eagle Maria (L'pool Garston)

  Burnham, Andy

  Edwards, Huw

  106

  Efford, Clive

  Jones, Kevan (N Durham)

  Ellman, Mrs Louise

  Jones, Lynne (Selly Oak)

  Ennis, Jeff (Barnsley E)

  Jones, Martyn (Clwyd S)

  Farrelly, Paul

  Joyce, Eric (Falkirk W)

  Field, Mark (Cities of London &

  Kaufman, rh Gerald

  Westminster)

  Keeble, Ms Sally

  Fisher, Mark

  Keen, Alan (Feltham)

  Fitzsimons, Mrs Lorna

  Kemp, Fraser

  Flint, Caroline

  Key, Robert (Salisbury)

  Flynn, Paul (Newport W)

  Kilfoyle, Peter

  Foster, Michael (Worcester)

  Kirkbride, Miss Julie

  Foster, Michael Jabez (Hastings

  Kirkwood, Sir Archy

  &Rye)

  Knight, Jim (S Dorset)

  Francis, Dr. Hywel

  Kumar, Dr. Ashok

  Gapes, Mike (llford S)

  Ladyman, Dr. Stephen

  Gardiner, Barry

  Lammy, David

  Garnier, Edward

  Lawrence, Mrs Jackie

  George, rh Bruce (Walsall S)

  Laws, David (Yeovil)

  Gerrard, Neil

  Leslie, Christopher

  Gibb, Nick (Bognor Regis)

  Levitt, Tom (High Peak)

  Gibson, Dr. Ian

  Llwyd, Elfyn

  Gidley, Sandra

  Love, Andrew

  Gilroy, Linda

  Lucas, Ian (Wrexham)

  Godsiff, Roger

  Luke, Iain (Dundee E)

  Goggins, Paul

  McAvoy, Thomas

  Greenway, John

  McCabe, Stephen

  Griffiths, Jane (Reading E)

  McCafferty, Chris

  Griffiths, Win (Bridgend)

  McDonagh, Siobhain

  Grogan, John

  MacDougall, John

  Hall, Mike (Weaver Vale)

  Mclsaac, Shona

  Hall, Patrick (Bedford)

  Mackay, rh Andrew

  Hamilton, David (Midlothian)

  McKechin, Ann

  Hamilton, Fabian (Leeds NE)

  McKenna, Rosemary

  Hancock, Mike

  Mackinlay, Andrew

  Hanson, David

  McNulty, Tony

  Harris, Dr. Evan (Oxford W &

  Mactaggart, Fiona

  Abingdon)

  McWalter, Tony

  Harris, Tom (Glasgow Cathcart)

  Mahmood, Khalid

  Havard, Dai (Merthyr Tydfil &

  Mahon, Mrs Alice

  Rhymney)

  Mallaber, Judy

  Healey, John

  Mandelson, rh Peter

  Heath, David

  Marris, Rob (Wolverh'ton SW)

  Henderson, Doug (Newcastle N)

  Marsden, Gordon (Blackpool S)

  Henderson, Ivan (Harwich)

  Marshall, David (Glasgow

  Hepburn, Stephen

  Shettleston)

  Hesford, Stephen

  Marshall-Andrews, Robert

  Heyes, David

  Martlew, Eric

  Hill, Keith (Streatham)

  Meale, Alan (Mansfield)

  Hinchliffe, David

  Mercer, Patrick

  Hodge, Margaret

  Miliband, David

  Hoey, Kate (Vauxhall)

  Miller, Andrew

  Hood, Jimmy (Clydesdale)

  Moffatt, Laura

  Hoon, rh Geoffrey

  Moore, Michael

  Hope, Phil (Corby)

  Moran, Margaret

  Howarth, rh Alan (Newport E)

  Morley, Elliot

  Howarth, George (Knowsley N &

  Moss, Malcolm

  Sefton E)

  Mountford, Kali

  Hoyle, Lindsay

  Mudie, George

  Hughes, Beverley (Stretford &

  Munn, Ms Meg

  Urmston)

  Murphy, Denis (Wansbeck)

  Hughes, Kevin (Doncaster N)

  Murphy, Jim (Eastwood)

  Humble, Mrs Joan

  Naysmith, Dr. Doug

  Hurst, Alan (Braintree)

  Oaten, Mark (Winchester)

  Iddon, Dr. Brian

  O'Brien, Mike (N Warks)

  Illsley, Eric

  O'Brien, Stephen (Eddisbury)

  Irranca-Davies, Huw

  O'Hara, Edward

  Jackson, Glenda (Hampstead &

  Olner, Bill

  Highgate)

  O'Neill, Martin

  Jackson, Helen (Hillsborough)

  Osborne, Sandra (Ayr)

  Jamieson, David

  Ottaway, Richard

  Jenkins, Brian

  Owen, Albert

  Johnson, Alan (Hull W)

  Palmer, Dr. Nick

  Johnson, Miss Melanie (Welwyn

  Perham, Linda

  Hatfield)

  Picking, Anne

  Jones, Helen (Warrington N)

  Plaskitt, James

  Jones, Jon Owen (Cardiff C)

  Pollard, Kerry

  107

  Pope, Greg (Hyndburn)

  Steinberg, Gerry

  Pound, Stephen

  Stevenson, George

  Prentice, Ms Bridget (Lewisham

  Stewart, David (Inverness E &

  E)

  Lochaber)

  Prescott, rh John

  Stewart, Ian (Eccles)

  Price, Adam (E Carmarthen &

  Stinchcombe, Paul

  Dinefwr)

  Stoate, Dr. Howard

  Primarolo, rh Dawn

  Strang, rh Dr. Gavin

  Prosser, Gwyn

  Straw, rh Jack

  Purchase, Ken

  Stringer, Graham

  Quin, rh Joyce

  Stuart, Ms Gisela

  Quinn, Lawrie

  Sutcliffe, Gerry

  Randall, John

  Taylor, rh Ann (Dewsbury)

  Rapson, Syd (Portsmouth N)

  Taylor, Dari (Stockton S)

  Raynsford, rh Nick

  Taylor, David (NW Leics)

  Reed, Andy (Loughborough)

  Thomas, Gareth (Clwyd W)

  Reid, rh Dr. John (Hamilton N &

  Thomas, Simon (Ceredigion)

  Bellshill)

  Thurso, John

  Rendel, David

  Timms, Stephen

  Robertson, Angus (Moray)

  Todd, Mark (S Derbyshire)

  Robertson, Hugh (Faversham &)

  Touhig, Don (Islwyn)

  M-Kent)

  Trickett, Jon

  Robinson, Geoffrey (Coventry

  Truswell, Paul

  NW)

  Turner, Dennis (Wolverh'ton SE)

  Roche, Mrs Barbara

  Turner, Dr. Desmond (Brighton

  Rooney, Terry

  Kemptown)

  Ross, Ernie (Dundee W)

  Turner, Neil (Wigan)

  Roy, Frank (Motherwell)

  Twigg, Derek (Halton)

  Ruane, Chris

  Tyrie, Andrew

  Russell, Bob (Colchester)

  Vaz, Keith (Leicester E)

  Vis Dr Rudi

  Russell, Ms Christine (City of

  Ward, Claire

  Chester)

  Wareing, Robert N.

  Ryan, Joan (Enfield N)

  Watson, Tom (W Bromwich E)

  Salmond, Alex

  Watts, David

  Sanders, Adrian

  Weir, Michael

  Sarwar, Mohammad

  White, Brian

  Savidge, Malcolm

  Whitehead, Dr. Alan

  Sawford, Phil

  Wicks, Malcolm

  Sedgemore, Brian

  Wiggin, Bill

  Shaw, Jonathan

  Williams, Betty (Conwy)

  Shephard, rh Mrs Gillian

  Williams, Hywel (Caernarfon)

  Sheridan, Jim

  Winnick, David

  Skinner, Dennis

  Winterton, Ms Rosie (Doncaster

  Smith, rh Andrew (Oxford E)

  C)

  Smith, Angela (Basildon)

  Wishart, Pete

  Smith, rh Chris (Islington S &

  Woodward, Shaun

  Finsbury)

  Woolas, Phil

  Smith, Geraldine (Morecambe &

  Worthington, Tony

  Lunesdale)

  Wright, Anthony D. (Gt

  Smith, Jacqui (Redditch)

  Yarmouth)

  Smith, Llew (Blaenau Gwent)

  Wright, David (Telford)

  Smith, Sir Robert (W Ab'd'ns &

  Wright, Tony (Cannock)

  Kincardine)

  Wyatt, Derek

  Soley, Clive

  Spink, Bob (Castle Point)

  Tellers for the Ayes:

  Starkey, Dr. Phyllis

  Mr. John Heppell and

  Steen, Anthony

  Jim Fitzpatrick

  NOES

  Beresford, Sir Paul

  Rosindell, Andrew

  Burnside, David

  Selous, Andrew

  Chope, Christopher

  Syms, Robert

  Cormack, Sir Patrick

  Taylor, Sir Teddy

  Djanogly, Jonathan

  Trimble, rh David

  Dodds, Nigel Forth, rh Eric

  Turner, Andrew (Isle of Wight)

  Grieve, Dominic

  Watkinson, Angela

  Hunter, Andrew

  Wilshire, David

  Leigh, Edward

  Winterton, Ann (Congleton)

  Lilley, rh Peter

  Winterton, Sir Nicholas

  Loughton, Tim

  (Macclesfield)

  Mclntosh, Miss Anne

  Paisley, Rev. Ian

  Tellers for the Noes:

  Robertson, Laurence (Tewk'b'ry)

  Miss Ann Widdecombe and

  Robinson, Peter (Belfast E)

  Mr. Anderw Robathan

  Question accordingly agreed to.
  Bill read a Second time.

  GENDER RECOGNITION BILL [LORDS] (PROGRAMME)
  Motion made, and Question put forthwith, pursuant to Orders [28 June 2001 and 6 November 2003],
  That the following provisions shall apply to the Gender Recognition Bill [Lords]:
  committal
  1.The Bill shall be committed to a Standing Committee.
  Proceedings in Standing Committee

  2.Proceedings in the Standing Committee shall (so far as not previously concluded) be brought to a conclusion on 16th March 2004.

  3.The Standing Committee shall have leave to sit twice on the first day on which it meets.

  Consideration and Third Reading

  4.Proceedings on consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.

  5.Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day

  6.Sessional Order B (programming committees) made by the House on 28th June 2001 shall not apply to proceedings on consideration and Third Reading.

  Other proceedings
  7.Any other proceedings on the Bill (including any proceedings on consideration of Lords amendments or on any further message from the Lords) may be programmed.—[Ms Bridget Prentice.]
  Question agreed to.

  GENDER RECOGNITION BILL [LORDS] [MONEY]
  Queen's recommendation having been signified—
  Motion made, and Question put forthwith, pursuant to Standing Order No. 52(1)(a) (Money resolutions and ways and means resolutions in connection with Bills),
  That, for the purposes of any Act resulting from the Gender Recognition Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of—

  (a)any expenditure of the Secretary of State under that Act, and

  (b)any increase attributable to that Act in the sums payable under any other Act out of money so provided. —[Ms Bridget Prentice.]

  Question agreed to.

  DELEGATED LEGISLATION
  Madam Deputy Speaker(Sylvia Heal): I shall put together the two motions on employment and training.
  Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),

  DELEGATED LEGISLATION

    EMPLOYMENT AND TRAINING
    That the draft Industrial Training Levy (Construction Board) Order 2004, which was laid before this House on 18th December, be approved.
    That the draft Industrial Training Levy (Engineering Construction Board) Order 2004, which was laid before this House on 8th January, be approved. —[Ms Bridget Prentice.]
    Question agreed to.

    INDUSTRIAL ORGANISATION AND DEVELOPMENT
    Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation)
    That the draft Milk Development Council (Amendment) Order 2004, which was laid before this House on 26th January, be approved. —[Ms Bridget Prentice.]
    Question agreed to.

    EUROPEAN UNION DOCUMENTS
    Motion made, and Question put forthwith, pursuant to Standing Order No 119(9) (European Standing Committees),

    EUROPEAN SPACE POLICY
    That this House takes note of European Union Document No. 14886/03 + ADD1, the Commission White Paper on European Space Policy; and supports the Government's aim of engaging with European partners and the Commission to encourage the formulation of policies that offer clear commercial and scientific benefits targeted at the Union's wider aims. —[Ms Bridget Prentice.]
    Question agreed to.

  Seroxat
  Motion made, and Question proposed, That this House do now adjourn.—[Ms Bridget Prentice.]
  9.11 pm
  Paul Flynn: The Seroxat scandal is one of gigantic proportions, which affects millions of people. There has been over-prescribing and misprescribing of this antidepressant on a scale equalled only by the over-prescription of tranquillisers 40 years ago. It is likely that the legacy—[Interruption.]
  Madam Deputy Speaker(Sylvia Heal): Order. Will Members please leave the Chamber as quickly and quietly as possible?
  Paul Flynn: Thank you, Madam Deputy Speaker.
  It is likely that the legacy of the misery created by what has happened with antidepressants will be at least as severe as what happened with tranquillisers.
  The pharmaceutical industry has achieved miracles in disease control and elimination in the past century. It is not my intention to attack the science of that industry, but it is my intention to attack the spin, the marketing and the propaganda, all aimed at maximising profits, and the ineffective regulatory control that has failed to protect the public. GlaxoSmithKline, the manufacturer of Seroxat, has been exposed as duplicitous, profit-driven and irresponsible over the 14 years for which the drug has been available. It prizes its profits above the health of its customers.
  Where there should have been scientific objectivity there has been voodoo medicine; patients who have sought care have had their trust abused. Seroxat has turned mild stress into suicidal despair, and in many cases a passing anxiety has become a lifelong addiction, leading to self-harm, suicide and even murder. Those who have long questioned the safety and efficacy of Seroxat were ridiculed and undermined by the pharmaceutical giant GlaxoSmithKline.
  That company is the villain in those tragedies, but happily there are heroes— those who fought to expose the truth about the dangers, addictiveness and ineffectiveness of Seroxat. The heroes include Dr. David Healy, professor of psychiatry at the university of Wales, Bangor; the "Panorama" programme, which produced two splendid accounts about the effects of the drug; Sarah Boseley of the The Guardian; the charity Mind, one of the few charities that takes no money from the pharmaceutical industry—a significant point in this case—The Citizen,a local Gloucester newspaper which is to be congratulated on conducting a campaign with national results; and my hon. Friends the Members for Gloucester (Mr. Dhanda). for Dundee, East (Mr. Luke) and for Edinburgh, North and Leith (Mr. Lazarowicz) who have also been involved.
  Seroxat is a selective serotonin reuptake inhibitor. The drug appeared only in the 1990s and took over from the tricyclic antidepressants that had been available since the 1940s. I believe that need for the drug is based on a great myth: the idea that we can go through our entire life in a state of continuous euphoria and that if we suffer a moment of discomfort, pain, boredom, grief or anxiety we should be classified as ill and in need of

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  medicine. If any of our loved ones feel similar unhappiness, we are supposed to feel guilty unless we provide them with a pill. If we are sadder today than we were yesterday, there must be something wrong with us. Humankind has progressed through many millennia without using antidepressants, yet the myth has been perpetrated and we are conditioned to believe it.
  I wrote to GlaxoSmithKline more than a week ago to tell the company what I planned to say in the debate and asked for its comments. It has not had the courtesy to reply although I have received a number of letters from it over the last four years. The company has expressed the view that antidepressants should be taken by half the female population of the United Kingdom and a third of the male population; it wants to see 25 million people on antidepressant drugs. That is certainly not the number of people who suffer from the type of depression that needs medical intervention—serious, pathological, clinical depression. I do not want to minimise the effects of that dangerous illness, which can lead to self-loathing or self-destruction and certainly requires the attention of the medical profession.
  We have been conditioned to believe that we need those drugs, but there are far better alternatives. For example, counselling does not involve chemical drugs; it is over-prescribed at present, but if people are looking for a way out of the hell of clinical depression, they would be well advised to study the work of Dr. Dorothy Rowe, who has written a splendid book about clinical depression, Depression: the Way Out of Your Prison". She gives vivid descriptions of people's reaction to deep depression—their feelings of hopelessness, of being locked inside a room and that no one can help them. She offers practical ways of dealing with depression through self-knowledge, meditation and exercise, which is very much in line with current Government thinking. Having spent the better part of my life ignoring exercise, I am a late convert to its joys. After discovering the great pleasure of endorphin-releasing exercise, I can go along with what is said about it.
  The effect of Seroxat is not to free people from the prison of depression, but to create a new prison wall around them; that wall is all-encompassing and often encloses them in a prison of addiction. At the heart of the debate is ensuring that the Government do two things: the benefits of new medical discoveries should be enjoyed by all who need them, but the public should be guarded against the serious side-effects that such drugs can often cause.
  We do not want to return to the terrible scandals of the past such as tranquillisers, thalidomide, Eraldin, Opren and others that have resulted in wasted lives. The charge against GlaxoSmithKline could not be graver: it has deliberately suppressed information on the danger of Seroxat and its lack of utility.
  Two years ago, GlaxoSmithKline wrote me a letter that contains very little that is truthful apart from the date. We know that its spokesmen made preposterous claims on "Panorama", and the letter states:
  "The safety and efficacy profile of Seroxat has been confirmed through clinical trials involving thousands of individuals and the experience of tens of millions of patients over the 10 years the medicine has been available."
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  The letter does not mention the number of reports that GlaxoSmithKline has disregarded, ignored or, as happened recently, actually suppressed.
  The issue is not new, but we learned about the worst case very recently. Studies have been conducted that prove that Seroxat is no more effective than a placebo, and that in many cases it is less effective. Such claims have been around for a long time, but in spite of that Seroxat was increasingly prescribed, and it overtook Prozac as the No. 1 antidepressant in the UK, with four million prescriptions a year at one time, and now that figure has greatly increased.
  It is difficult to get precise figures about how many prescriptions are issued and how many people are on Seroxat, but, as with many things, we are following the United States line. We know that there are 3 million children on antidepressants in Canada and that there are 10 million children on antidepressants in the United States. Dr. Healy says
  "There is probably no area of medicine in which the academic literature is so at odds with raw data."
  After many denials, a particular report, headed "Confidential. For internal use only", has been revealed. It was prepared not a couple of weeks ago, although that is when it was published, but in October 1998. It refers to studies conducted in 1993 and 1996 of children and adolescents who were given courses of either Seroxat or a placebo. In one trial, there was no beneficial difference in the outcome between the placebo and Seroxat; in the other, the placebo produced superior results, which was not unexpected. The studies demonstrated that there is no beneficial effect in treating adolescents with Seroxat.
  One difference was noticed in children: suicidal behaviour was 1.5 to.3.2 times higher on Seroxat than on a placebo. It was not until 2003 that the body responsible for regulating medicine, the Medicines and Healthcare products Regulatory Agency, issued guidance to doctors that Seroxat should not be prescribed to people under 18.
  However, a parliamentary answer that I have received in the last half an hour says that the Government do not intend to change the rules on prescribing unlicensed drugs to children. The Government seem to say that, if a drug works for adults, it should work for children. If so, it must also be true that, if there are increased suicidal tendencies among children, there is a similar effect on adults. Dr. David Healy reports that GlaxoSmithKline had evidence that approximately one in every 60 adults on Seroxat made a suicide attempt, while the figure for those on the placebo was one in 550 adults. That is an extraordinary difference.
  David Healy gave evidence to the regulatory body, when it investigated Seroxat last year, and there is a rather bizarre story to tell about what happened. About nine months before, Dr. Healy had applied for a meeting with the regulatory body. When the meeting eventually took place, he was surprised that no one questioned the evidence that he gave to the regulatory body, although he was a long-time critic. Although some agreed minutes were supposed to be prepared, they were never sent out because many of the members of that committee had financial and other interests in GlaxoSmithKline and in other selective serotonin reuptake inhibitors. That is a deplorable situation.
  I am sure that the Minister will say—it was said at the time—that the body is beyond suspicion and that those professional people will act in a disinterested way and

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  reach conclusions. That may be so. but it is unlikely that the public will trust such a body, when so many of those who judge the safety of medicines have dual interests of that kind, as well as an alternative duty as a regulatory body to ensure the success of the British pharmaceutical industry. If we are to have full trust in our regulations on such matters, we need a body that has only one commitment: the safety of the public and those who take the drugs.
  GlaxoSmithKline has repeatedly failed to respond to patient reports of withdrawal difficulties and refused to publish reports that demonstrated that 85 per cent. of healthy volunteers in a controlled experiment suffered from agitation, abnormal dreams and insomnia, and there was one suicide. Let me make it clear what that shows: 85 per cent. of that control group of healthy people were not suffering from depression, even mild depression, but they experienced those problems. Time and again, we hear evidence of people whose behaviour is modified tragically by Seroxat.
  Last year, the Brecon coroner, Geraint Williams, wrote to the Secretary of State for Health to ask for an inquiry into the drug after one such case. The family wished people to know about that case because they hoped that some good might come from the tragedy that had engulfed them. The case involved a retired head teacher, Colin Whitfield, who took his life after he was prescribed Seroxat. His wife said in court that that was totally out of character and that she believed that his mind had been affected by the drug. The coroner said that he was profoundly disturbed by the effect that Seroxat had had on Mr. Whitfield, and he accepted expert opinion that Seroxat could induce agitation and lead to people having suicidal thoughts.
  Sadly, there are many cases of that kind. The Tobin case in America has become very well known. Again, the behaviour of a man who had taken just a few tablets changed in a way that his family said was completely uncharacteristic of him. He killed the three women in his life—the three people whom he loved the most—a wife, a mother and a granddaughter. He then killed himself. That was reported in the first "Panorama" programme on the subject.
  Another case, which emerged in the second programme, involved someone in this country who suffered a similar character change after taking a few tablets of Seroxat. He tried to take the lives of his wife and daughter. and he then tried to take his own life.
  It is difficult to see these cases as coincidental, because they are so similar. However, we must examine them and ask ourselves why such terrible tragedies have taken place. The clinical evidence suggests that the drug must take the blame.
  The defence put up by GlaxoSmithKline is that the people involved are depressed anyway and that there is a chance that their taking the drug may lead them to self-harm. When GlaxoSmithKline examines the results of the trials, it gives the credit for beneficial results to the use of Seroxat. However, when there is a bad result, that is blamed on the depression suffered by those involved. The company cannot have it both ways.
  Other side effects have been reported by the volunteers who took part in one of the trials. They reported difficulty in withdrawing from the drug and one peculiar effect of this drug and no other was electric
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  "zaps". They reported difficulty in walking, coordination problems, aggression, confusion, memory difficulties and lethargy. Yet the published account of that report never mentioned any of those things. The information was obtained because, in the court case in America, Dr. David Healy was allowed access to the files of GlaxoSmithKline, which did not include these results in its report.
  That contrasts with the response received by "Panorama" following the broadcast of its first programme on Seroxat. It received 67,000 phone calls and 1,400 e-mails, almost of all of which reported problems with side effects and difficulties of withdrawal. Among the cases reported were 16 of accomplished suicide and 47 of attempted suicide. Those responses came from just the group of people who happened to be watching BBC 1 on the Sunday evening when the programme was broadcast. A follow-up survey by Panorama and Mind of 229 people using Seroxat found that 83 per cent. experienced withdrawal symptoms. The symptoms were "intolerable" for 44 per cent. and "severe" for 32 per cent. Therefore the use of the drug did not succeed for 76 per cent.
  Seroxat heads the World Health Organisation's league table of drugs from which it is difficult to withdraw; it is higher than Valium. Our Department of Health agrees, and a reply that I received from one of the Minister's colleagues last year pointed out that, in her view, Seroxat makes the symptoms of depression more severe in the early stages. That point is widely recognised.
  In spite of that, GlaxoSmith Kline repeatedly failed to remove the words on the side of the packet that said in unambiguous terms:
  "These tablets are not addictive …You cannot become addicted to Seroxat".
  The company changed its mind, but only in April 2003, 13 years after the problems began to emerge. In the first television programme, it was adamant that the drug was not addictive; in the second one, it blamed the patients for not understanding the warning. However, it is hard to imagine words that could be more explicit or less unambiguous. To this day, the company still gives the same advice on dependency to doctors. It argues that Seroxat does not cause dependency, but it certainly does, as the World Health Organisation and our Government agree.
  The patient information leaflet that GlaxoSmithKline puts out now states that 25 per cent. of those taking Seroxat will suffer a withdrawal reaction. That is an extraordinary change when compared with what it previously said. It declared the figure to be 0.2 per cent. until 2002, but it then increased the figure to 0.7 per cent. Now it has decided, after years of misleading everyone, that the true rate for addiction is about 25 per cent.
  It is disappointing that the United Kingdom regulatory authority has failed to protect patients from the profiteering of GlaxoSmithKline. Even moves by the US Food and Drug Administration to warn patients about the potential problems associated with Seroxat amount to a slow reaction, and almost to a dereliction of duty. Patient complaints have been ignored by GlaxoSmithKline and by doctors, and by the regulatory body and its predecessors in this country. This is a familiar story.

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  One constituent wrote to me, saying that she reported a bad reaction to her doctor, who declined to report it under the existing yellow card scheme. That scheme, which was introduced after thalidomide, is ramshackle, does not work and is hopelessly ineffective. I remember receiving an answer from Gerry Malone, the then health Minister of a previous Government, in which he told me that the number of deaths arising from paracetamol in Britain were 46 in one year and 52 in another. I was astonished by that reply, because according to the coroner's report, there were between 500 and 600 deaths in each of those years. Mr. Malone was quoting the number of deaths reported through the yellow card system, but it understated the number; in fact, there were 12 times as many. Yet we are relying on that system to guide us on adverse reactions to drugs. It is no surprise that a system that is 40 years old is working in such an inadequate way. Only a tiny fraction of the reportable adverse effects are actually reported. It is nonsense to continue to rely on that system in this way. That is why there is a huge understating of adverse reactions, suicides and addictions. When the Minister sums up, I hope that she will say that we need to look seriously at any reliance that we place on the yellow card system.
  In the television programme to which I referred, Dr. David Healy said that the evidence shows that roughly one person in 60 who uses Seroxat makes a suicide attempt. On the same programme, a GlaxoSmithKline representative gave a transparently dishonest account of its position. We are talking about a drug that is probably ineffective. There are few reports to suggest that it achieves markedly better results than placebos. As we know, it is addictive, and I should also point out—this is an important factor for the Government—that it is ruinously expensive. There has been a huge increase in the prescription of antidepressants, and few people who spend long spells in hospital can escape the well-meaning attentions of hospital staff, who regularly come round with their medicine trays and announce that one has been prescribed this pill and that pill.
  A constituent of mine told me that when she was in hospital, she demanded to know what each of the types of pill that she was taking was. She was regularly told, "This is a painkiller", to which she replied, "Well, I'm not in pain, so I'm not taking it." On being told, "This is an anti-depressant", she said, "I'm not depressed either, so I'm not taking that." The excuse for prescribing such drugs is that one might well be in pain or become depressed later, so one must take them in anticipation of future pain or depression. Now that we know beyond any doubt that such pills are addictive, why on earth do we continue with this approach? Why do we still measure the efficiency of hospitals not by how much pain is relieved—admittedly, that is impossible to Measure—or how much depression is dealt with, but by how many pills are prescribed? That is an extremely ineffective method, and it is also extremely wasteful. One of the current problems is that although funding for the health service has gone up by 40 per cent., outcomes have increased by a much smaller percentage. One main reason for that is the extraordinary inflation of the drugs bill, which has increased at a far greater rate. Many of the drugs that are prescribed are probably useless or damaging.
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  Charles Medawer, the director of the medical research group Social Audit, said many years ago—before the latest announcement—that a study at the university of California's neuropsychiatric institute found that just over 50 per cent. of patients who were given Prozac, which is a similar drug, reported an improvement in their symptoms, but that an identical proportion of patients who were given a placebo drug reported the same results. That is nothing new because it has been known for a long time that SSRIs have a poor outcome for patients, so why on earth do we continue to espouse them and support their use?
  Twenty-six new SSRI drugs are under development, so they will come later. We are undertaking an extraordinary experiment with human beings on a massive scale. There are rightly complaints about the drug ecstasy because it is used recreationally. It disturbs the chemistry of the brain, and no one can say what the long-term effect of that on the mental health of those who take the drug will be. The argument is precisely the same for altering the serotonin levels of the brain in the way that SSRIs do. No one can say what the long-term effects will be after 40, 50 or 60 years. The experiment is being carried out for the long-term interests of drug companies' profits.
  I would like my hon. Friend the Minister to deal with several points. Although research is continuing, Charles Medawar says:
  "I see antidepressants as the biological equivalent of thumping a TV on the top to help improve the picture"—
  we know that that works, but we do not know how it works. However, in this case, we know that the drug does not work, but we still go on thumping. He said:
  "My belief is that in 30 years, our grandchildren will look at the way we treated depression in the 20th century with the same disbelief as we look at the way we prescribed tranquillisers 30 or 40 years ago".
  That is the position that we are in now.
  When will the inquiry on selective serotonin reuptake inhibitors that ended in such confusion be re-established, and when will it report its findings? What are my hon. Friend's proposals to restore full confidence in the Medicines and Healthcare products Regulatory Agency, which is, strangely enough, entirely funded by the drug companies—only two countries in the world are in that position? The Public Accounts Committee was critical of the situation last year, and said that stakeholders would have a lack of trust because the agency is entirely funded by the companies—that is like getting Arthur Anderson to audit Enron.
  What action does my hon. Friend propose to take to ensure that the pharmaceutical companies publish all results of their drug trials? We know that two trials took place that proved beyond doubt that the drugs had no utility and that Seroxat was useless. We also know that the results were not published, and the drug company made it clear why it was not publishing the results by saying:
  "it would be commercially unacceptable to include a statement that the efficacy had not been demonstrated, as this would undermine the profile of"

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  Seroxat. That is an indication—a confession—that the suppression of the truth of the report has nothing to do with health or safety; it was done only for commercial considerations.
  No one else is carrying out such trials on a similar scale. We give a free hand to the drug companies to carry out trials. If they do not like the results, perhaps because they are likely to reduce their profits, they suppress them and keep them secret. We must ensure that the regulatory bodies have the power to insist that the results of all trials are published. They might claim that they already have that power, and that may be the case, but the results of the trials, which finished in 1998, should be available; otherwise, there is no way of informing patients.
  Will the Minister act now to at least reduce the prescription of unlicensed drugs to children? That continuing scandal has gone on for a long time. I know there are many reasons for it, but some drugs are prescribed to children which are almost certainly harmful because of a child's different metabolism. Does she have proposals to end the under-reporting of the yellow card scheme? Will she consider developing a scheme to allow testimonies from patients to be considered along with those from doctors? Underreporting is serious, but when the patient whom I mentioned tried to persuade a doctor to report her problems, the doctor refused.
  Seroxat should be withdrawn from use, certainly for new prescriptions. That might cause difficulties for those who have been on it for a long time because of withdrawal symptoms. It would be cruel to take them off the drug to which they are addicted overnight, but for new patients it should be withdrawn. The evidence is there to support that. There should be an urgent review, not the relaxed leisurely review of the past two years, of Seroxat and the other SSRIs to determine their safety, the possibility of addiction and the other severe reactions that have taken place in a significant group of people, in particular those who have felt suicidal.
  There has been a major failure by the regulatory authorities, especially in the light of the fact that they refused to take patients' testimonies. The new MHRA should be far more proactive in seeking adverse reaction reports and establish further ways of using direct experience of medicines in drug safety monitoring. It was shocking to discover that the MHRA and its predecessor often only looked at summaries of conclusions rather than at the conclusions themselves. All those patients who are taking drugs need better information from manufacturers and doctors on possible side effects and withdrawal effects and need advice on how to manage and support withdrawal.
  There has been an immense scandal, involving many millions of people. Those patients who have gone on to Seroxat, who have sought solace and care, have been abused by the system and GlaxoSmithKline, and have been let down by us as parliamentarians and the regulatory authority.
  9.48 pm
  Mr. Parmjit Dhanda: I shall be brief, not least because my hon. Friend the Member for Newport. West (Paul Flynn) has done a thorough job,
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  and I congratulate him on his work on the drug, which he has done over many years. I am relatively new to the field, as someone who was elected in 2001, but I have become aware of the effects of Seroxat on many of my constituents. When I tabled early-day motion 238 last year, it took virtually no time to gather 100 signatures.
  I also ally myself with the congratulations and thanks that my hon. Friend paid to The Citizen for its work on the ground, to the BBC team that made the "Panorama" programme—I am mindful of its help and support—and to the Seroxat users group, which has done a great deal of work to raise the profile of some of the difficulties that our constituents have suffered as a consequence of the drug.
  As I highlighted in the early-day motion, side effects and withdrawal symptoms include muscle spasms, insomnia, anxiety, depression and, in some cases, aggression and violence.
  In addition, as my hon. Friend highlighted, there have been cases such as the one in America which resulted in the killing of the entire family of a user of Seroxat, or Paxil as it is known in the United States. That has led, among other things, to court rulings that mean that adverts for the drug are no longer shown in the US. In this country, more than 1,000 Seroxat users have taken legal action against the drug company. The World Health Organisation puts Seroxat at the top of its league table of drugs from which people have difficulty withdrawing.
  I am pleased to see the significant changes to the labelling of the drug which have been implemented as a consequence of the pressure applied by my hon. Friend and others, including The Citizen, "Panorama", Mind and the Seroxat users group. That took an awful lot of work, but it is important that people are aware of the side-effects that they are likely to experience if they take the drug. It is a shame that it took so much pressure for GlaxoSmithKline to accept that the drug has addictive qualities that go beyond the scientific definition of "addiction" and come under the definition understood by the rest of us, as lay people.
  I follow what my hon. Friend said with three questions for the Minister. These points have been made but need to be emphasised and re-emphasised. As my hon. Friend said, the expert working group on SSRIs has been reporting, or on the verge of reporting, for some time. It is important that we have a date for that. There have been problems with that review, and I ask the Minister to consider those that have occurred at a European level. Members who were part of that review were alleged to have had interests in the drug company and, indeed, reported to have acted on its behalf in legal matters affecting it in America.
  Perhaps most important is the transparency of trial data which is required. I shall not labour the point because my hon. Friend the Member for Newport, West has already made it effectively. At the moment we are totally reliant on drug companies for information about the drugs, and the only mechanism by which it comes into the public forum is the MHRA, so we need far greater transparency.
  To reiterate, the WHO puts Seroxat at the top of its league table of drugs from which people have difficulty withdrawing. At the very least, it needs to be monitored

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  far more closely, and I urge the Minister to heed what my hon. Friend said and do whatever is in her power to ensure that that happens.
  9.53 pm
  The Parliamentary Under-Secretary of State for Health(Miss Melanie Johnson): I congratulate my hon. Friend the Member for Newport, West (Paul Flynn) on securing this debate on an issue about which I know he and others feel very strongly. I welcome the support given to him by my hon. Friend the Member for Gloucester (Mr. Dhanda). I am well aware of the early-day motion on the subject and the questions that both Members have asked of Ministers.
  Before I say more, given earlier references to suicide, I would like to place on the record my heartfelt view that, whatever the circumstances, suicide is obviously a devastating event, and our thoughts go out to the families of those who have suffered as a result.
  The burden of depressive illness is felt at all levels of society and from the young to the elderly. One in three families suffer as a result of a member being diagnosed with depression, and sadly the toll of lives lost remains too high, with suicide claiming, on average, one person's life every two hours.
  The treatment of depression with the older tricyclic antidepressants is characterised by significant side effects and a high risk in overdose. The newer class of medicines, which are known as selective serotonin reuptake inhibitors, or SSRIs, of which Seroxat is one, have a different safety profile and, importantly, are less risky in overdose. Antidepressants, and SSRIs in particular, have undoubtedly saved many lives. However, all effective medicines are associated with side effects, and questions remain about the effects of SSRIs on some individuals. A great deal of interest has been expressed, both here and in the other place, about Seroxat and the wider class of SSRIs. This debate provides us with a welcome opportunity to update the House on recent developments, as well as to address the points raised by my hon. Friend the Member for Newport, West.
  The concerns expressed by patient groups and in the media over the safety of Seroxat and other related drugs have been taken very seriously and acted on. In response to concerns about withdrawal reactions and the question of an association of Seroxat with suicidal behaviour, an expert working group of the Committee on Safety of Medicines—CSM—was convened to examine the safety of Seroxat and related antidepressants. That group, through the committee, has already delivered important new advice, but it has more to do—I shall come to that in a moment.
  Seroxat was not, and never had been, licensed for use in those under 18, but it was used in that age group outside its licence. New data on Seroxat use in children under 18 years were evaluated promptly as soon as they became available and was considered by the CSM. Ministers accepted the committee's advice that the benefits of Seroxat in children for the treatment of depressive illness did not outweigh the risks, and that children under 18 years of age should not use Seroxat. Therefore, in a written statement to both Houses on 10
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  June last year, the Government announced new advice from the CSM advising against the use of Seroxat in children under the age of 18 for the treatment of depression. Since then, the balance of risks and benefits of Seroxat has been the subject of a referral to the European equivalent of the CSM—the Committee for Proprietary Medicinal Products, or CPMP—which is undertaking a further review of all the available evidence on Seroxat. In the United States, as hon. Members will be aware, the Food and Drug Administration has been considering the use of SSRIs in children and is considering what regulatory action is necessary.
  Thus in Europe and across the world, the UK has taken action ahead of other regulators to issue clear advice on the risks and benefits of treatment with Seroxat in the under-8 age group, and has gone further still to consider the remaining five drugs in the SSRI class and one that is related. Most recently, on 10 December last year, a full review of the remaining drugs in the class was published, again in a written statement to both Houses. Importantly, responding to feedback from clinicians and others, the Government took the unprecedented step of releasing summaries of the clinical trial data on which the advice was based to ensure total transparency for health care professionals, patients and the public.
  I hope that my hon. Friend the Member for Newport, West will join me in paying tribute to the rigorous approach that is being taken by the expert working group of the CSM. The group has completed the most comprehensive review yet undertaken of the safety of SSRIs in paediatric use, and is now focused on completing its task of reviewing all the data on the use of Seroxat and related drugs in adults.
  All lines of evidence are being examined, including a dedicated research study that uses the general practice research database to examine the evidence further, especially the difficult question about the age at which the benefits of treatment outweigh the risks.
  Paul Flynn: Does the general practice research database mean that my hon. Friend has evidence from doctors? We now know about the extraordinary underreporting by doctors, who have many things to do.
  It being Ten o'clock, the motion for the Adjournment of the House lapsed, without Question put.

  Motion made, and Question proposed, That this House do now adjourn.—[Ms Bridget Prentice.]
  Paul Flynn: Can my hon. Friend influence the body to accept evidence from the general public and not only from the medical profession? The Seroxat users association makes that complaint.
  Miss Johnson: I believe that that refers to the yellow card scheme, with which I shall deal shortly. My hon. Friend asked when the group was expected to complete its work. It is expected to report in the summer. I am sure that that is welcome news.
  At this time, CSM advice is that in adults, the benefits of treatment outweigh the risks. I am sure that both my hon. Friends agree that we need to be clear that patients who benefit from Seroxat or other SSRIs should not be frightened into stopping their medication. Indeed, my

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  hon. Friend the Member for Newport, West made a similar comment. Patients who experience side effects or are worried about their treatment should discuss that with their doctor.
  Following paediatric advice and taking on board patients' comments, the information to patients that accompanies Seroxat was revised to reflect patient reports more closely. My hon. Friend also made that point. The MHRA has issued a question and answer leaflet to form the basis of discussions between doctors and patients. That is also available on the MHRA website.
  On the resources available to support the group's work, the chairman of the MHRA has given us his personal assurance that the important work is being resourced as a priority. The team, which includes medical, professional, scientific and statistical expertise, has demonstrated considerable commitment to ensuring that the work is taken forward urgently.
  It is right that the expert group adapted its work programme to reflect new information on paediatric use, first on Seroxat and then on the other drugs, to prioritise consideration of other paediatric data. I know that the group is now keen to tackle the wider issues with all due speed, but they must also be tackled thoroughly and in a way that will stand up to scrutiny.
  Let us consider the alleged delay by GlaxoSmithKline in submitting data to the MHRA. The agency treats seriously any failure to comply with the law and has a statutory responsibility to enforce the requirements of both European and UK law. The obligations on marketing authorisation holders within the law are clearly set out and failure to comply with them properly is serious and potentially a criminal offence, with the penalty of fines or imprisonment.
  I am sure that hon. Members understand that, in those circumstances, I cannot make any statement that would prejudice the investigation or a potential prosecution of one or more parties. I can assure hon. Members that the issues will be pursued without fear or favour, but I cannot say more in public about the facts or what proof may or may not exist to suggest that a breach of the law has occurred.
  Let me deal with some of my hon. Friend's other points. I have already answered the question about the time frame for the inquiry reporting. He also asked about confidence in the MHRA and its relationship with the industry. I assure him that there are clear safeguards
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  in MHRA staffs terms and conditions, as with those of civil servants, to prevent any influence. Furthermore, the governance of the agencies is constituted to oversee its operations appropriately.
  There are clear powers in the medicines legislation to require the marketing authorisation holders to submit all data that bear on any risk or benefit to the producers. I can assure my hon. Friend that I do not share his concerns about the operation of the MHRA.
  In regard to the prescription of unlicensed drugs to children, we are clear that the use of such drugs is a matter for the individual responsibility of those who decide to prescribe them. As my hon. Friend will appreciate, this is generally a matter for the medical practitioners deciding to issue the prescription, as it would be for any other treatment issues between doctor and patient. We are working towards producing an effective strategy to deliver medicines to children, and towards ensuring that they are licensed pending new EU legislation that will become effective in 2006. There will therefore be a change in the arrangements, but it will not involve an end to the prescription of unlicensed drugs in relation to children, for the reasons that I have already given.
  The National Institute for Clinical Excellence is producing guidance on the effective management of depression, which should tackle the question of prescription and over-prescription in this area. We are currently reviewing the yellow card scheme and will be considering proposals to strengthen it. The reports from patients have been a valuable contribution to the SSRI review and, yes, the current independent review of the yellow card scheme will make proposals on patient reporting. I can therefore assure my hon. Friend that many of the issues that he has raised are either in hand or being taken forward very seriously.
  It has not been possible to address every issue that might arise out of this debate, but I hope that I have made clear the Government's actions to date, and our absolute determination to establish all the facts—as far as that is possible—and not to shrink from the action necessary to protect and promote public health by ensuring that Seroxat and the related antidepressants are used to maximum benefit and with minimum risk. The Government are committed to ensuring that that course of action is carried out efficiently and effectively.
  Question put and agreed to.
  Adjourned accordingly at eight minutes past Ten o 'clock.

WORK AND PENSIONS

  Workplace Health and Safety
  The Minister for Work (Mr. Desmond Browne):
  Today, the Health and Safety Commission (HSC) are launching a new strategy for workplace health and safety in Great Britain. We fully support this strategy, which is based on the experience of the last 30 years, evidence available now and extensive consultations with a wide range of stakeholders.

  The strategy represents a significant change of approach for the health and safety system as a whole and the role of the Health and Safety Executive (HSE) and local authorities within that system. It sets out HSE's ambition to be a modern regulator, responding to new issues in the changing world of work. It emphasises the focus on managing risks, not trying to eliminate them. The strategy also places a greater emphasis on seeking improvements in occupational health.

  To make the greatest impact, HSE and its partners will focus more resource on those areas of greatest need and less where the risks are well managed.

  The strategy recognises that HSE cannot achieve improvements on its own. The whole of the health and safety system needs to be involved. This means forming close partnerships with local authorities and other stakeholders.

  The strategy also recognises that the people best placed to make workplaces safe are the staff and managers who work in them. To support them there is a need to promote greater involvement of workers and to make accessible to them clearer and simpler advice and information.

  Over the last 30 years there have been significant improvements in workplace safety. We want to see similar improvements in occupational health. That will require working together with other health organisations.

  Improvements in occupational health have a close synergy with the wider Department for Work and Pensions agenda of preventing people from leaving work due to ill health and helping people move back into work. Preventing accidents and ill health at work plays a major role in this agenda, particularly in relation to occupational health issues such as stress and musculoskeletal disorders.

  The Government want to see occupational health and safety as a cornerstone of a civilised society and with that achieve a record of both health and safety that leads the world. Much has been done, but there is more to do. The strategy is needed to help us to tackle new issues, especially in occupational ill health and to ensure that workplace safety continues to improve.
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  We fully endorse the new strategy, which has been placed in the Library.

CULTURE, MEDIA AND SPORT

  Historic Environment
  The Minister for Sport and Tourism (Mr. Richard Caborn):
  I would like to update the House on the progress made on implementing the recommendations contained in the Government's statement on the historic environment, "A Force for Our Future", since March 2003.

  The statement, published in December 2001, articulates the Government's vision for the historic environment at the heart of national life and sets an agenda for unlocking its full potential. This programme of action emphasises the value of the historic environment as an educational resource, its relevance to all members of the community and how it can work as an economic and regenerative asset in urban and rural settings.

  The Government will continue to take this agenda forward in a number of ways, in particular through the review of heritage protection, English Heritage's annual state of the historic environment reports, the DCMS/ DfES Joint Committee on Built Environment Education and English Heritage's funding agreement, which is co-sponsored by DCMS, DEFRA and ODPM.

  Since March 2003 the following has been achieved:

  June 2003

  The Government historic estate unit published "Protocol for the Care of the Government Estate 2003" recommending its adoption by Government Departments who own and manage historic estate and providing a model of good practice for all publicly funded bodies.

  The Historic Houses Association launched www.historichousevenues.com, an online resource listing privately owned historic houses and gardens throughout Britain which offer exclusive facilities for pre-booked groups and individual visits, special events, catering and accommodation. The aim is to increase public access and develop commercial activity.

  July 2003

  English Heritage published "Streamlining Listed Building Consent: Lessons from the Use of Management Agreements", a report on the effectiveness of listed building consent management guidelines and their potential to streamline the listed building consent regime.

  The Architectural Heritage Fund, with support from English Heritage and Cadw, launched an online directory of sources of funding available for rescuing and restoring historic buildings at www.ffhb.org.uk

  English Heritage published "Managing Local Authority Heritage Assets—some guiding principles for decision-makers", promoting best practice in the management of council-owned heritage assets and high quality design in new work related to them, including public spaces.
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  The Minister for Media and Heritage launched "Protecting Our Historic Environment: Making the System Work Better", a consultation document aiming to improve and refocus the way in which England's historic environment receives statutory protection.

  The Government published its consultation "Historic Environment Records: Benchmarks for Good Practice", inviting views on how best to ensure that the rich resources currently held in sites and monuments records across the country can be developed and made available to professionals, schools and colleges as well as the wider public.

  English Heritage convened a series of meetings to develop and share best practice on access for people with disabilities to historic properties and sites.

  Agust 2003

  English Heritage published its consultation document "Local Authority Performance Indicators for Historic Environment Services", seeking views on developing a performance assessment framework for local authorities managing the historic environment.

  The Secretary of State for Culture, Media and Sport launched the DCMS/DfES Joint Advisory Committee on Built Environment Education, which will focus on how best to promote the built environment as an educational resource.

  September 2003

  Six new commissioners were appointed to the English Heritage Commission, including for the first time a commissioner responsible for access and outreach issues.
  Ministers in DCMS, ODPM and DEFRA signed an innovative joint funding agreement for English Heritage. This recognises for the first time the contribution English Heritage makes to the delivery of all three Departments' targets.

  Heritage open days 2003, organised by the Civic Trust with support from English Heritage, attracted over 800,000 visitors to 2,512 properties and activities. There was a significant increase in the number of participating properties and activities, local organisers and volunteers.

  The Historic Houses Association and English Heritage, with support from the Heritage Lottery Fund, launched a pilot scheme to assist private owners of historic houses to develop education programmes.

  October 2003

  Royal Assent was given to the Dealing in Cultural Objects (Offences) Bill.

  The UK signed a Co-operation Agreement with UNESCO, which will enable developing countries to benefit from UK heritage and conservation expertise. UK experts will assist developing countries with identifying world heritage sites and preparing management plans and conservation strategies for both cultural and natural world heritages sites.

  The Minister for Media and Heritage launched the National Heritage Training Group's business plan "Building on the Past: Training for the Future". It sets out the group's plans to tackle the skills deficit in traditional building crafts, including a traditional building crafts training plan.
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  November 2003

  "Heritage Counts", the second state of the historic environment report, was launched:
  Key themes covered were: historic environment assets; the economic value of the historic environment; outreach, knowledge and access; indicators, including a consultation on a framework for historic environment indicators.
  The report published MORI research commissioned by English Heritage, with funds from DCMS and the Heritage Lottery Fund, to establish who is not engaging with the historic environment and why.
  It also published research produced by Heritage Link into the contribution made by volunteers to the historic environment.

  English Heritage published "Easy Access to Historic Properties" for consultation. The publication gives guidance to those responsible for the historic environment on the provision of access for people with disabilities. The updated version takes into account the implementation of Part III of the Disability Discrimination Act 1995 and the updated Part M of the Building Regulations.

  December 2003

  The 2003 Pre-Budget Report confirmed that funding for the Listed Places of Worship grant scheme would continue until the end of March 2006.

  The Disability Rights Commission, in association with English Heritage, held a consultative conference on making historic buildings accessible to people with disabilities.

  The Dealing in Cultural Objects (Offences) Act came into effect.

HEALTH

  Nuffield Orthopaedic Centre NHS Trust
  The Minister of State, Department of Health (Mr. John Hutton)
  On 12 February my right hon. Friend the Secretary of State announced that he would support the Nuffield Orthopaedic Centre NHS trust in its bid to be part of the first wave of NHS foundation trusts. The NHS trust can now apply to the office of the Independent Regulator, chaired by Bill Moyes, for authorisation as an NHS foundation trust, and set up new governance arrangements including recruiting members and holding elections to the Board of Governors.

  The Nuffield Orthopaedic Centre NHS trust is now working towards authorisation as an NHS foundation trust along with 24 other NHS trusts.

HOME DEPARTMENT

  Race Relations (Amendment) Act
  The Minister for Citizenship and Immigration (Beverley Hughes)
  I have today made a technical amendment to the authorisation under section 19D of the Race Relations Act which enables immigration officers to prioritise arriving passengers for examination and immigration offenders for removal on the ground of nationality. The change is that nationalities will be
  5WS
  prioritised if adverse decisions and immigration breaches reach more than 50 in total and five of every 1,000 admitted persons of a particular nationality.

  The change is necessary to keep the system of prioritisation manageable in the light of improvements to data collection. We do not anticipate that this will make a significant difference to the number of nationalities prioritised and decisions will continue to be made on the individual merits of each case.

  The Minister for Citizenship and Immigration (Beverley Hughes)
  I have today made an authorisation under section 19D of the Race Relations Act 1976 (as amended) which will enable immigration officers to prioritise the examination of passengers of Somali national origin. For a period of three months this will allow such people to be examined more rigorously than would otherwise be the case.

  The purpose of this measure is to enable the immigration service to obtain information on the number and profiles of Somali-born passengers entering the UK. The aim of this measure is to establish how the large numbers of in-country asylum applicants claiming as Somali, apparently without documentation, enter the UK.

  The Minister for Citizenship and Immigration (Beverley Hughes)
  I have today made an authorisation under section 19D of the Race Relations Act 1976 as amended which enables the Home Office to implement measures targeting the top five nationalities in terms of third country/Dublin cases for additional examination on the grounds of nationality.

  This change will enable officials to compare the fingerprints of asylum seekers of these five nationalities against other governments' fingerprint databases of asylum seekers, failed asylum seekers and those granted some form of leave to remain.

  This change also allows officials to compare the details of asylum seekers from the five prioritised nationalities with the details of individuals originally from those countries but now holding a form of immigration status elsewhere who have been granted a visa to travel to the UK.

  The purpose of these measures is to identify individuals who have claimed asylum, are failed asylum seekers or absconders, or who already have some form of status in another country and who subsequently claim asylum in the UK.

  Iraq, Turkey, Iran, Somalia and Sudan were the top five nationalities subject to third country/Dublin action in the last six months of 2003. This means that other EU member states are properly responsible to consider the asylum claim of the individuals concerned.
  Any individuals identified under these processes may be returned to the safe third country identified as responsible for them under existing immigration law.
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  Any individuals identified under these processes may be returned to the safe third country identified as responsible for them under existing immigration law.

FOREIGN AND COMMONWEALTH AFFAIRS

  Hong Kong
  The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Bill Rammell):
  The latest report on the implementation of the Sino-British Joint Declaration on Hong Kong was published today and copies have been placed in the Library of the House. A copy of the report is also available on the Foreign and Commonwealth Office website www.fco.gove.uk. The report covers the period from 1 July to 31 December 2003 and includes a foreword by my right hon. Friend the Foreign Secretary. I commend the report to the House.

INTERNATIONAL DEVELOPMENT

  Iraq
  The Secretary of State for International Development (Hilary Benn)
  I have placed in the Libraries of both Houses a copy of DFID's interim country assistance plan for Iraq. It sets out how DFID aims to contribute to the reconstruction of Iraq in the period up to March 2006. I have also decided to make an initial contribution of £65 million-US$120 million—to the International Reconstruction Fund Facility for Iraq, managed by the World Bank and United Nations, out of the resources pledged by the United Kingdom for the reconstruction of Iraq at the Madrid donors conference in October 2003, which I outlined in my written statement of 14 October 2003, column 9-10 WS.

  Saddam Hussein's tyranny led to a significant increase in poverty and Iraq was isolated from the rest of the world, including its own region, for much of his rule. In many respects Iraq's social and economic indicators now resemble those of a low-income country rather than a major oil producer. But Iraq's abundant human and natural resources offer the potential for a rapid return to relative prosperity, if the right conditions are created in the short and medium term.

  Against this background, DFID's objectives for the next two years are to support: rapid, sustainable and equitable economic growth; effective and accountable governance; and social and political cohesion and stability.

  To work towards these goals DFID will focus on three levels:

  Internationally: by supporting the United Nations and World Bank International Reconstruction Fund Facility for Iraq (IRFFI), assisting the Ministry of Planning and Development Co-operation, and continuing dialogue with other donors on the coordination and effectiveness of assistance to Iraq.
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  Nationally: by funding projects which benefit the poor, promote an inclusive political process and economic reform, and strengthen public administration. Examples include helping the growth of small and medium-sized businesses; setting up a fund to support the participation of citizens, parties and interest groups in the political process; and technical assistance to Iraq's public administration system.

  In southern Iraq: by funding projects to reduce poverty and helping to restore the area's administrative and political links with Baghdad so that it can benefit from Iraq's national development efforts.

  At the Madrid donors conference, the United Kingdom pledged a total of £544 million for the period from April 2003 to March 2006, a significant proportion of which would be channelled through the International Reconstruction Fund Facility for Iraq (IRFFI). The allocation of our initial contribution between the UN and the World Bank Trust Funds will be decided shortly. Any further DFID contributions to the Funds will be considered in the light of the effectiveness of their operations and their need for additional funding.

  A total of over $32 billion was pledged to Iraq at the Madrid conference. These pledges, together with a substantial reduction in Iraq's debt, which should be negotiated this year, will provide a sound basis for the country's initial reconstruction. If the right steps are taken now, and the political situation in the country is stabilised, much of Iraq's longer term investment needs should be met by commercial loans, foreign direct investment and its own resources. Iraq's human capital, and its oil reserves of about $2,500 billion at current prices, should enable it to meet its future needs without significant external grant assistance.

  The country assistance plan is also available on the DFID website: www.dfid.gov.uk

DEFENCE

  Iraq (Campaign Medal)
  The Minister of State, Ministry of Defence (Mr. Adam Ingram):
  I am pleased to announce that Her Majesty has graciously approved the detailed qualifying criteria for the award of a Campaign Medal for recent operations in Iraq. I have laid the Command Paper instituting the Iraq Campaign Medal in Parliament today.

  Supplementary Estimates
  The Minister of State, Ministry of Defence (Mr. Adam Ingram): Subject to Parliamentary approval of any necessary supplementary estimate, the Ministry of Defence Departmental expenditure limits will be increased by £506,795,000 from £30,792,381,000 to £31,299,176,000. Within the DEL change, the impact on resources and capital are as set out in the following table:
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  1000s

  Change

  Voted

  New Del Non-voted

  Total

  Resource

  342,500

  31,866,919

  448,247

  32,315,166

  Capital

  -35,705

  6,401,972

  19,925

  6,421,897

  Depreciation1

  200,000

  -7,337,887

  -100,000

  -7,437,887

  Total

  506,795

  30,931,004

  368,172

  31,299,176

  1Depreciation, which forms part of Resource DEL, is excluded from the total DEL since capital DEL includes capital spending
  and to include depreciation of those assets would lead to double
  counting.

  The change in the resource element of the DEL arises from:
  The transfer of £ 116,550,000 from Capital to Resource DEL.
  An increase in RfR2 of £231 million Resource DEL for military operations.
  A transfer of £5 million Resource DEL from FCO in respect of the Global Conflict Prevention Pool.
  A transfer of £910,000 from DFID in respect of the Conflict Prevention Pool for programmes in sub-Saharan Africa.
  A transfer of £11,200,000 Resource DEL to the DTI in support of dual-use acro-engine technology programmes.
  A transfer of £305,000 Resource DEL from the DWP to the Veterans Agency relating to a change in allowances.
  A transfer of £120,000 Resource DEL to the Single Intelligence Account relating to electricity for a shared site.
  A transfer of £55,000 Resource DEL from the Home Office in respect of the Voluntary Opportunities Matched Funding Project.
  An increase in the Non-budget items of £147,541,000 arising from changes in provision values related to the change in the Treasury Discount Rate.
  An increase in Resource Appropriations in Aid of £157,579,000.
  The change in the capital element of the DEL arises from:
  A transfer of £116,550,000 from capital DEL to resource DEL as a result of budgetary re-balancing.
  An increase in RfR2 of £78 million capital DEL for military operations.
  A transfer of £5,500,000 capital DEL from the Home Office to MoD as payment for part of the former RAF Newton site.
  A reduction in Capital DEL of £2.655,000, as a result of repaying the funding provided from the reserve in FY01/02 which was brought forward from 2003–04 for op veritas urgent operational requirements.
  An increase in non-operating Appropriations in Aid of £134,613,000. A profit of £17,674.000 on the disposal of fixed assets.

  Ministry of Defence Votes A 2004–05
  The Minister of State, Ministry of Defence (Mr. Adam Ingram)
  The Ministry of Defence Votes A 2004–05 will be laid before the House on 23 February as HC 283. Votes A outlines the maximum numbers of personnel that can be retained for Service in the Armed Forces for financial year 2004–05.

  Copies of these reports will be laid in the Libraries of both Houses.

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

Literacy
Baroness Rendell of Babergh Baroness Rendell of Babergh asked Her Majesty's Government:
What proportion of the population of the United Kingdom is illiterate.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, last October, the department published the Skills for Life survey, which includes a survey of literacy skills. It shows that 5.2 million adults in England—16 per cent—have literacy skills below level 1; that is, lower than grade D to G at GCSE. The Government's Skills for Life strategy has already helped around 500,000 people to improve their literacy, numeracy or language skills and is working to improve the skills of 1.5 million adults by 2007.
Baroness Rendell of Babergh: My Lords, I thank my noble friend for her reply. Is she aware that, in one area of the United Kingdom, jobseeker's allowance may be withheld from unemployed people who refuse to take courses in literacy and numeracy and that, in another, those who take such courses are to be offered a monetary reward? Does my noble friend agree that it is essential that 14 year-olds taking two days off from school each week to take up apprenticeships should first be literate and numerate?
Baroness Ashton of Upholland: My Lords, I agree with my noble friend that it is important for all our
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14 year-olds to be literate and numerate. It is also important that we continue with a strategy to allow people to gain those skills at any point in life.
My noble friend is also right to say that the Department for Work and Pensions has a scheme that allows for individuals to be given an extra £10, in addition to their training allowance, to take up basic skills training and a £100 incentive payment, if they gain qualifications. There are also 12 pilot schemes examining the impact that the threat of benefit sanctions could have in ensuring that people take up the opportunity to get basic skills.
Lord Renton: My Lords, what proportion of the unfortunately large total of illiterate people are immigrants or the offspring of immigrants?
Baroness Ashton of Upholland: My Lords, I cannot give the noble Lord that specific figure. However, in considering the issue of those who are most in need of basic literacy and numeracy skills, we have targeted particular groups of people. Among those are people who do not have English as a first language and those who have other issues relating to their ability to speak English.
Baroness Walmsley: My Lords, does the Minister agree that one of the key issues is that children leaving primary school should have a sufficiently high level of literacy and numeracy to cope with the secondary curriculum? What percentage of children have that standard at that stage of their education? Given the failure to improve literacy standards at key stage 2 over the past two years, how confident is the Minister that further improvement will be achieved?
Baroness Ashton of Upholland: My Lords, the latest figures are that 73 per cent of 11 year-olds achieved what we call level 4 at key stage 2 in mathematics and 75 per cent in English. That answers the noble Baroness's point about those able to access the secondary curriculum.

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It is important that we do all that we can to continue to increase those figures. In part, it is about addressing the needs of children who have some form of special educational need and working closely with them. There is a large group of children at level 3, just below level 4. If we focus on them and do additional work with them—there is a great deal in the primary strategy on that—I am sure that we can help to ensure that they get an enriched secondary curriculum by being able to get access to it through literacy and numeracy.
Baroness Howe of Idlicote: My Lords, has the Minister any figures for the percentage of looked-after children who are illiterate, given that only 1 per cent, I believe, leave care with any qualifications? Might not that be a sensible area for urgent attention?
Baroness Ashton of Upholland: My Lords, as the noble Baroness rightly says, the educational achievement of looked-after children is an area that there is a great need to improve. In Every Child Matters, we specifically identified the need to ensure that our looked-after children had a good education and good opportunities. The noble Baroness is right: it should be a focal point of our work.
Lord Acton: My Lords, is my noble friend aware that there are 30,000 illiterate prisoners in England and Wales? The Shannon Trust has a successful scheme in which literate prisoners sponsor illiterate prisoners and teach them to read. Will the Government adopt that most imaginative idea and put it into practice throughout the prison system?
Baroness Ashton of Upholland: My Lords, I wholeheartedly agree with my noble friend: it is an important issue. About 50 per cent of offenders have low reading skills; 65 per cent have poor numeracy skills; and 80 per cent have poor writing skills. The Shannon Trust is a good example of peer mentoring, enabling those in prison who have a good education to pass on their skills to those who would benefit from literacy and numeracy. Such peer work is important, and I support it wholeheartedly.
Baroness Perry of Southwark: My Lords, does the Minister agree that it is important that schools go beyond the technical skills of reading, which have been rather over-emphasised in the literacy hour in primary schools? Schools should work to instil an enjoyment of reading that will ensure that children go on reading throughout their schooling and continue to do so in their adult life.
Baroness Ashton of Upholland: My Lords, I agree wholeheartedly. It is very important to instil the love of learning and the love of reading in every child. However, without the technical skills, it is not possible.
Lord Mackie of Benshie: My Lords, I am aware that the subject of education is devolved, but is there any reason why the Minister cannot answer the Question
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and tell us what the percentage of illiteracy is in Scotland? I do not think the Scottish Parliament would mind, particularly if the figure were better.
Baroness Ashton of Upholland: My Lords, I asked the question myself and the answer is that as it is a devolved matter, it is inappropriate for me to answer it. I am very happy, of course, to ask colleagues if they will provide the figures for the noble Lord, and put a copy in the Library.
The Earl of Listowel: My Lords Lords—
Lord Blaker:My Lords—
The Earl of Listowel: I am sorry, my Lords, but I think it is the turn of this side.
Noble Lords: Cross Bench!
The Earl of Listowel: My Lords, can the Minister say what role increasing mainstream school inclusion has on improving literacy rates, particularly literacy rates for children in public care, to which my noble friend referred earlier? Is the Minister aware that 67 per cent of children from Shaftesbury Homes and Arethusa received five GCSEs last year and that in 2001 only 7 per cent of children in residential care gained five GCSEs? That is an outstanding performance by Shaftesbury Homes and Arethusa. However, it had to start legal proceedings in seven cases against schools in order to achieve that very welcome outcome.
Baroness Ashton of Upholland: My Lords, I pay tribute to Shaftesbury Homes, although I do not know about the individual cases. It is very important to ensure that looked-after children have continuity of education, high-quality corporate parenting and real opportunity.
Baroness Massey of Darwen: My Lords—
Lord Blaker: My Lords—
The Lord President of the Council (Baroness Amos): My Lords, can we take a very quick question from the noble Lord, Lord Blaker?
Lord Blaker: My Lords, can the noble Baroness say how many people in this country are innumerate and whether they include the staff of the Department of Health? That department appears to have briefed a government spokesman last week to the effect that there are 900,000 obese people in this country receiving benefits and that the benefits amount to £70 million a week, whereas a subsequent statement said that the true figure is 900 people and that the benefits amount to £70,000 a week.
Baroness Ashton of Upholland: My Lords, the number of adults who have numeracy skills below level 1—below the level I described in my Answer—is 15 million.

Combined Heat and Power
2.45 p.m.
Lord Ezra: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest in the small-scale generation of electricity.
The Question was as follows:
To ask Her Majesty's Government what are the prospects of achieving 10 gigawatts of combined heat and power by 2010.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, before I answer this Question, I am reliably informed that today is the birthday of the noble Lord, Lord Ezra. I am sure he will ask this Question on subsequent birthdays up to 2010.
Although this is a challenging target, 10 gigawatts remains achievable, and we will set out our full range of measures in the Government's strategy for CHP to 2010, which we intend to publish after the Easter Recess.
Lord Ezra: My Lords, I thank the Minister for his kind remarks about my birthday. I shall certainly continue to ask Questions about CHP until the year 2010 and well beyond.
Noble Lords: Hear, hear!
Lord Ezra: My Lords, coming back to the present, is it not regrettable that in spite of the obvious benefits of combined heat and power in greater efficiency and reduced emissions compared with normal generation, the target set for the year 2000 of 5,000 megawatts, or 5 gigawatts, has still not yet been achieved? Is it not a fact that three or four reports prepared by well known economic establishments have estimated that there will be a shortfall by 2010 of some 2 to 3 gigawatts? In those circumstances, should the noble Lord not indicate to us in advance of what the Government may or may not say in due course what measures they intend to take to put this matter right, bearing in mind that at the recent discussions on the subject at the Committee stage of the Energy Bill, a number of proposals put forward by these Benches and the Conservative Benches were all turned down by the noble Lord? Is it not time that the Government came forward with their own proposals?
Lord Whitty: My Lords, I accept that the achievement on CHP has not been as rapid as originally hoped, although the latest estimates for 2010 indicate a central achievement of 8.1 gigawatts. Further measures, including those which were announced in the White Paper, in particular the emissions trading scheme, will raise that level further and make it closer to the 10gigawatts target. It is still a difficult target and the Government may need to introduce further measures, some of which may well be referred to in the statement after Easter that I mentioned.
Baroness Gardner of Parkes: My Lords, how many national health hospitals have introduced CHP? When asking the Minister a question on this subject on a previous occasion, I mentioned that some have. Has there been an increase in the number of hospitals introducing CHP, given the great financial saving that will result for the National Health Service as well as the provision of extra power?
Lord Whitty: My Lords, I regret that I cannot answer that question in numerical terms. I am aware that at least two hospital complexes in the past few years have introduced CHP. There is general encouragement of the National Health Service, as in other parts of government, to look positively at CHP installations.
Lord Woolmer of Leeds: My Lords, I declare an interest as the chair of the energy forum of the Yorkshire and Humber Regional Development Agency. Will my noble friend confirm that a major combined heat and power scheme is due to come onstream on Humberside next year? Further to the previous question, what is the Government's view on micro combined heat and power schemes, not only in hospitals but in commercial, industrial and, indeed, domestic, use?
Lord Whitty: My Lords, micro CHP is an exciting new technology that the Government wish to encourage. Field trials and tests are being carried out and we believe that micro CHP could, towards the end of the decade, make a significant contribution to the achievement of the target. On the major CHP installation coming on stream in the course of the coming year, the Conoco complex at Immingham will greatly raise these figures, which will therefore look better this time next year. However, there is still a challenging target to be met.
Lord Tanlaw: My Lords, what is the present output of CHP to the grid? In Energy 68, it is estimated that, in 2010, 20 gigawatts will be required and 6.5 gigawatts will be required for wind energy. Only 0.6 gigawatts of wind energy is available now, so it must be increased by the power of 10. What is the ratio for CHP? Is the Minister sure us that planning permission will be granted, even for the schemes that are the basis of Energy 68 programmes?
Lord Whitty: My Lords, the wind energy ratio of current generation compared with where we expect it to be in 2010 is somewhat higher than that for CHP—roughly a trebling of CHP generation by 2010. The noble Lord referred to planning permission. Although there have been some minor hiccups on CHP, planning permission for CHP installations has not generally been a problem. However, it is a live issue in some parts of the country in relation to wind farms.
Baroness Maddock: My Lords, perhaps I may press the Minister on the Government's targets for their own estate. He will remember that, during the passage of

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the Sustainable Energy Bill, the Government set targets for their own estate—the only target in the Bill. Why, since that time, has all the National Health Service estate been taken out of the government estate for the purposes of that Bill? How big is that proportion of the total that the Government promised in the Bill?
Lord Whitty: My Lords, the references in the energy White Paper and in the discussions on the Sustainable Energy Bill were to the central government estate. As the noble Baroness will know, the National Health Service is, by and large, an NHS trust rather than part of the central government estate. In response to the noble Baroness, Lady Gardner, I indicated that the NHS itself wishes to encourage the use of CHP, but that does not alter the commitment that we made in relation to the central government estate during deliberations on the Sustainable Energy Bill. The target has been announced and will no doubt be mentioned in the statement to which I referred in answer to the question asked by the noble Lord, Lord Ezra.
Baroness Platt of Writtle: My Lords, what arrangements are the Government making to allow for the CHP installations, which are small and will probably connect to the distribution system rather than the transmission system, sometimes to put power in and sometimes to take power out? That has not been the case in the distribution system in the past.
Lord Whitty: My Lords, I agree that it is important that CHP installations, which are primarily for local use, also have additional power to feed into the grid either through transmission or distribution. It is true that, at one point, the regulations were hostile and charges were a disincentive to CHP. The subsequent modifications that Ofgem has made in the regulations make them more neutral and therefore more favourable to CHP than was the case a couple of years ago. We need to see the full effect of those changes in encouraging such use of CHP.

EU Enlargement: Free Movement of Workers
2.54 p.m.
Lord Howell of Guildford Lord Howell of Guildford asked Her Majesty's Government:
What plans they now have for operating transitional restrictions on migrants from those nation states due to join the European Union on 1 May 2004, as permitted under the European Union (Accessions) Act 2003.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, my right honourable friend the Home Secretary will make a Statement at half-past three this afternoon in another place on EU enlargement: the free movement of workers. In
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accordance with convention, I do not feel that it would be proper to respond to the Question put by the noble Lord. Of course, I will be happy to answer any questions raised by your Lordships when I repeat the Statement for the benefit of this House later this afternoon.
Lord Howell of Guildford: My Lords, I appreciate that—by coincidence, I am sure—there is a sudden Statement from the Government on this issue this afternoon. However, will the Minister explain before we hear the Statement why there has been this abrupt change of policy? Is it because all the other EU member states except Ireland have now introduced sensible transitional restrictions to manage this issue in a careful and sensitive way, as they are allowed to do under the EU accession treaty? Perhaps the Government somehow forgot to join in this initiative and have got left behind. Is that the problem?
Baroness Scotland of Asthal: No, my Lords.
Lord Dholakia: My Lords, will the Minister confirm that, when Portugal, France and Greece joined the European Community, there was no mass movement of people from those countries to the United Kingdom? Will she also confirm that migrants take less out of social security and contribute more—to the tune of about £2.4 billion—to the British economy? Therefore, there is no need for a knee-jerk reaction of introducing legislation to prohibit the entry of people.
Baroness Scotland of Asthal: My Lords, I am happy to confirm those two statements. I will amplify any further answer when I have the pleasure of delighting your Lordships in about half an hour's time on this self-same issue.
Lord Lamont of Lerwick: My Lords, does the Minister recall that, when I raised this issue a year ago, she said that there was no problem? Will she also confirm that, on behalf of the Home Office, an agency has been placing advertisements in Slovak newspapers telling people that benefits here are not so wonderful and that life is not paved with gold?
Baroness Scotland of Asthal: My Lords, that is all true.
Lord Wallace of Saltaire: My Lords, does the Minister also recall that, in 1990, scare stories appeared in the British press and other newspapers predicting that somewhere between 5 million and 25 million people would flood from eastern Europe into western Europe? That did not happen either. We are conscious that some aspects of the British press have been running scare stories about this issue. Can we be assured that her Majesty's Government will stand up to inaccuracies reported in the tabloid press with the same vigour with which they stand up to the BBC?
Baroness Scotland of Asthal: My Lords, I make no comment about the noble Lord's last point, but there has been no influx as was predicted. I will be happy to amplify these answers more fully at the proper time later this afternoon.
Lord Tebbit: My Lords, since the Government say that they do not know how many migrants there are in this country—which appears to be the case—how can the Minister be so sure about the economic contribution that they make and the economic costs that are incurred?
Baroness Scotland of Asthal: My Lords, we have data, and information has been extracted from that data. The noble Lord, Lord Dholakia, accurately reflected the situation. I am looking forward with great anticipation to giving the noble Lord, Lord Tebbit, further clarity in due course.
Earl Russell: My Lords, the Government have been saying in the press that they intend to rely on the habitual residence test. Does the Minister appreciate that a key principle of European law is that one cannot discriminate between the nationals of one European country and another? Between now and half-past three, will she investigate how the Government can use the habitual residence test in this inherently discriminatory way? In particular, will she consult the noble Baroness, Lady Hollis of Heigham, on the implications of the Swaddling case in the European Court of Justice and tell us at half-past three what she will do about it?
Baroness Scotland of Asthal: My Lords, I am grateful for the noble Earl's confidence that I could do all that in half an hour.

EU Funding
2.59 p.m.
Baroness Noakes Baroness Noakes asked Her Majesty's Government:
What is their view of the European Commission's plans to increase European Union spending by 25 per cent.
Lord Davies of Oldham: My Lords, the Government do not support the Commission's proposals for large increases in EU budget expenditure over the period 2007–13, which the Commission presented on 10 February. The Prime Minister has made clear, in a joint letter sent to Commission President, Mr Prodi, on 15 December 2003, along with the heads of government of Austria, France, Germany, the Netherlands and Sweden, that average expenditure during the next financial perspective should be stabilised at around current expenditure levels and should not exceed 1 per cent of EU gross national income.
Baroness Noakes: My Lords, I thank the Minister for that response, which was encouraging. I have one specific question for him. Will he confirm that the Government will not allow the UK's rebate, which was so heroically negotiated by my noble friend Lady Thatcher some 20 years ago, to be reduced or limited, in the next EU budget round?
Lord Davies of Oldham: My Lords, I can confirm that position. As the noble Baroness knows, the UK gets the rebate because of its disproportionately low share in the receipts—about half the EU average—and above average contributions. We intend to defend that position.
Lord Tomlinson: My Lords, does my noble friend agree that, if the common agricultural policy was reformed—which so many of us have asked for, including noble Lords opposite—the rebate itself would disappear? It is as a consequence of that that we have a rebate.
In relation to the Question, does my noble friend also agree that in the Convention on the Future of Europe, the working group on future financing of the European Union specifically rejected the proposal to increase the budget, having noted that the present budget is substantially below the present budget ceiling?
Lord Davies of Oldham: My Lords. I thank my noble friend for both his helpful contributions. He is of course right that a principle area for reform is certainly the common agricultural policy, and he is also right in saying that it helps to create the situation in which we disproportionately contribute more and receive less. He is also right in saying that there is widespread anxiety throughout Europe, as reflected by the letter from the heads of government, that the Commission is proposing too large an increase in its future budget.
Lord Wallace of Saltaire: My Lords, when can we expect for debate the Government's response to the Commission paper, which is after all the first shot in negotiations on the next budgetary package from 2007–13? Does the Minister accept that some of the proposals in the Commission's paper—for example, that a larger share of the budget must go on external relations and that a great deal more should be spent on innovation and less on agriculture—are precisely the sort of thing that British governments should be in favour of?
Lord Davies of Oldham: My Lords, the noble Lord is right in saying that this is very much the opening skirmish in a protracted debate. The decisions do not have to be taken until the middle of next year. He is right that there are some sensible proposals from the Commission, but what stands out is a very substantial demand for an increase in budget, which we do not support while other crucial features of the EU budget remain unreformed.
Lord Stoddart of Swindon: My Lords, the assurance has been given that the Government would not agree to an increase in the 1 per cent ceiling and that they will resist—to the last, I hope—any suggestion that we should lose our rebate, which amounts to £3,600 million a year. Those assurances are welcome. However, can I have the further assurance that the Government will not yield to the blandishments or coercion of other member states, as they apparently have done over the European constitution?
Lord Davies of Oldham: My Lords, true to form, the noble Lord, Lord Stoddart, adds a further demand to his approval of the position that the Government have already taken up in two instances. However, he will recognise that when a letter is sent on behalf of the Prime Minister and other heads of state of significant countries in Europe, one can scarcely look on such a body of people, who represent such a substantial interest in Europe, as being subject to coercion by anyone.
Lord Watson of Richmond: My Lords, given the facts of the matter—that at the end of the day the balance of spending and the strategic direction of the budget will largely be determined by the Council of Ministers—why do Her Majesty's Government continue to be agnostic, or perhaps just undecided, on the future of voting inside the EU?
Lord Davies of Oldham: My Lords, the Government are never agnostic, as they always think deeply about their position, on the basis of known facts. However, it is clearly important that crucial issues with regard to constitutional change are clarified. When they are, the Government will announce their position.

Business
Lord Grocott: My Lords, my brief business statement has been heavily trailed, but I shall make it none the less. With permission, later this afternoon—probably after the first group of amendments on the European Parliamentary and Local Elections (Pilots) Bill—my noble friend Lady Scotland will repeat a Statement on EU Enlargement: Free Movement of Workers.

Business of the House: Standing Order 41
3.6 p.m.
Baroness Amos: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order 41 (Arrangement of the Order Paper) be dispensed with on 4 March to allow the Motion standing in the name of the Baroness Scotland of Asthal to be taken as first business.—(Baroness Amos.)
On Question, Motion agreed to.

Consolidation Bills
The Secretary of State for Constitutional Affairs and The Lord Chancellor (Lord Falconer of Thoroton): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, that, pursuant to Standing Order 52, the following Lords be appointed to join with a committee of the Commons as the Joint Committee on Consolidation Bills:

L. Acton,

L. Brightman,

L. Campbell of Alloway,

L. Christopher,

V. Colville of Culross,

E. Dundee,

B. Fookes,

L. Janner of Braunstone,

B. Mallalieu,

L. Phillips of Sudbury,

L. Razzall,

L. Rodger of Earlsferry;

That the committee have the power to agree with the committee of the Commons in the appointment of a chairman;
That the minutes of evidence taken before the committee shall, if the committee think fit, be printed; and
That a message be sent to the Commons to propose that the Joint Committee do meet on Monday 1 March at half-past four o'clock.—(Lord Falconer of Thoroton.)
Lord Renton: My Lords, while I welcome the appointment of 12 experienced Members of your Lordships' House to the committee, I ask the Lord Chancellor to bear in mind that there is a greater need for consolidation of statutes now than for many years, especially those statutes relating to criminal justice, of which there are about a dozen amending statutes. Will he therefore advise the Joint Committee, when it is appointed, of the need to get down to the consolidation work, especially in relation to criminal justice Acts?
Lord Falconer of Thoroton: My Lords, I am grateful to the noble Lord, Lord Renton, for that intervention. Of course, I shall pass on to the committee the points that he made. I also thoroughly agree with what he said in relation to the need to consolidation being urgent now and far more urgent than before.
On Question, Motion agreed to; and a message was ordered to be sent to the Commons to acquaint them therewith.

Planning and Compulsory Purchase Bill
Lord Grocott: My Lords, I beg to move the Motion standing in the name of my noble friend Lord Rooker on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 to 40,

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Schedule 1,

Clauses 41 to 54,

Schedule 2,

Clauses 55 to 78,

Schedule 3,

Clauses 79 to 88,

Schedule 4,

Clause 89

Schedule 5,

Clauses 90 to 117,

Schedules 6 and 7,

Clause 118,

Schedule 8,

Clause 119,

Schedule 9,

Clauses 120 to 124.—(Lord Grocott.)

On Question, Motion agreed to.

European Parliamentary and Local Elections (Pilots) Bill
3.10 p.m.
Report received.
Clause 1 [Piloting conduct at European and local elections]:
Baroness Hanham Baroness Hanham moved Amendment No. 1:
Page 1, line 19, leave out subsection (5) and insert—
"(5) An order under this section may only specify—

(a) the North East;

(b) the East Midlands; and

(c) any local authorities within those electoral regions which are due to hold elections on the same date."

The noble Baroness said: My Lords, in moving this amendment, I shall also speak to Amendment No. 3. Those amendments are included in a very large group of amendments that are being introduced by the Government. We have been backwards and forwards over this issue in Committee. Subsequently, I had a meeting with the Minister and I thank him for giving us the opportunity for further discussion. However, I do not think it will come as any great surprise to him that we are not convinced by the arguments that he has advocated for piloting in four regions.
We believe that there are fundamental reasons why we should stand firm on this point. First, we think that it is irresponsible to hold a pilot scheme in nearly half of all the regions that will be holding combined European parliamentary and local elections in June. They form a substantial part of the electorate of England and therefore it can only tendentiously be described as a "pilot". Pilot schemes are designed to generate evidence on a system of voting that is new and that is by no means guaranteed as secure. We have conceded that there may be merit in trialling all-postal voting on a regional basis in the combined regions. It has already been trialled on a local basis in other schemes. However, we draw the line at a trial in four regions.
Secondly, the Government are disregarding the evidence contained in the Electoral Commission's report. Its conclusion was that only two regions—the north-east and the east Midlands—could be recommended as ready and able to undertake these schemes. I asked why the Government intend to ignore the advice of the Electoral Commission and have received no satisfactory answer from the Minister. Extensive research has been carried out. The Electoral Commission is impartial. It is an independent body set up by the Government to advise them and it is now deemed to be expert in electoral matters. I am sure that other noble Lords will have received a letter from the Electoral Commission from which it is interesting to note that it says that it has been involved in no further discussions with the two extra regions proposed by the Government:
"The Commission was unable to make a positive recommendation in respect of those regions having assessed their suitability against the criteria we applied…We have not ourselves been involved in further discussions".
Then how have the Government assessed the suitability of the two extra regions?
Does the Minister, or his Secretary of State for Constitutional Affairs, believe that they know better than the commission? I think that the answer must be that they clearly do. In Committee, in relation to the Electoral Commission's advice, the Minister said:
"It has given us advice. We have not asked it to make the decision but to investigate the issues and give its analysis and reasons, and what underpinned its reasons. We have asked it to investigate, appraise and advise, not to decide".—[Official Report, 26/01/04; col. GC 18.]
I find this baffling. We have moved from a situation where the Government asked the Electoral Commission to put forward up to three best regions for piloting. The Electoral Commission said that it could only positively recommend two regions. Now there are four regions. The two additional regions are Yorkshire and the Humber and the north-west where there were issues with the unwillingness of the returning officers and the complex nature of some of the elections. They still remain. I know that from information that I have received since Committee. The strongest possible objections remain to all-postal pilots in these regions. That view has been made extremely clear to the Government, including by a motion passed by Bradford City Council in October of last year saying that it was opposed to the idea of piloting in these combined elections.
There is deep concern about fraud and security issues. In Committee, the noble Lord, Lord Greaves, drew our attention to the problems experienced in previous piloting. It is against this background that the Government are proposing to bludgeon two unwilling regions, and many unwilling local authority chief executives, into running a pilot vote.
The Minister made it clear that he does not believe that the lack of enthusiasm of returning officers, or the possibility of malpractice, should be impediments to piloting the all-postal scheme. The Electoral Commission clearly thought that they should. Our faith rests in the experts and we remain adamant that only the two original regions should pilot the election: the north-east and the east Midlands.
In response to our intention to limit the pilot to only these two regions, the Minister commented:
"Otherwise we are saying that we shall never have postal voting on a wider scale than in those areas where people are interested".—[Official Report. 26/1/04; col. GC 20.]
We do not believe this to be the case. These are pilot elections, trial schemes and experimentation. It seems sensible to have them in regions that are confident about using the all-postal system and that want to give it a try. If these prove successful, as I hope that they will, next time round it is likely that there will be more enthusiasm and confidence from other returning officers and the all-postal system can be widened to include more regions. Of course, that is unless the Government are going to try to bounce all-postal elections on other elections.
Despite what the Minister may feel about this, we are not trying to cause trouble. We feel that the Government are taking a big risk that is not justifiable in terms of a possible increase in turnout. We need to balance innovation against security and the safety of our democratic process.
Finally, I shall say a brief word about the detail of the two amendments that we have tabled. After our welcome meeting with the Minister, we thought that it was important to signal immediately our continued opposition to any more than two regions being on the face of the Bill and to do so by tabling the old amendment that we put down to Clause 1 in Committee. This is Amendment No. 1. However, we are willing to accept the Minister's argument that, if we decide to move on Amendment No. 1, it would mean that it would fall outside the scope of the restructuring of the Bill that the Minister is trying to do, which is to enable just one order to be laid, rather than two. Therefore, we have now put forward Amendment No. 3. If, having heard what the Minister has to say, I believe it to be necessary, that will be the amendment that we shall pursue. I beg to move.
3.15 p.m.
Lord Rennard: My Lords, I rise in support of Amendment No. 3. A number of your Lordships have expressed considerable reservations about all-postal voting or—compulsory voting by post, as I prefer to call it. I shall not dwell in detail on all those reservations but they fall into three broad areas. First, there are concerns about lack of secrecy and privacy in voting, which some people believe undermine the basic principles of the Secret Ballot Act of 1872. Secondly, there are considerable concerns about potential fraud with all-postal voting, particularly in relation to homes in multi-occupation where people are not at all sure who will receive the ballot papers that are put through the letter box and who will return them.
There are also concerns about the timing of all-postal voting mechanisms. We now understand that in these all-postal voting pilots in June, the ballot papers will be delivered between 25 and 29 May, some two weeks before the official polling day and two weeks before many people have made up their minds,
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considered the arguments put by the parties, seen the television news, and so on. I am concerned about people voting so far ahead of proper examination of the issues.
Notwithstanding all those reservations about some of the problems associated with postal voting, it seems to me right to consider that there should be an element of pilot experiments to see whether the concerns are valid. So perhaps the idea of having the two pilots in the north-east region and the east Midlands should be supported. However, I believe that no case whatever has been made for having more than two experiments. If there is a case for experimentation, why should it occur in more than two regions?
The Government have given us no explanation for their fundamental change of heart on the issue. Only a few months ago, their view was that there should be no all-postal pilot experiments and that the only experiment this June should be the combining of the local and the European elections. The Government's position then changed from no all-postal pilots to three all-postal pilots. They had to ask the independent Electoral Commission, given its expertise and various criteria, to recommend three regions for such experimentation. The Electoral Commission said that it could positively support only a proposal for two regions and that only that would be suitable. We therefore assumed that only two pilots would go forward. Now, however, the Government seem to be opting for four pilots. I believe that operating four pilots—effectively four of the eight regions in England, and almost half the local authorities that will vote in June—amounts to rolling out all-postal voting rather than "experimenting" with it. It is a fundamental change to voting mechanisms.
Of course, there is time for progress in deciding how voting mechanisms should be changed. However, if changes are to be made, they should not be made unilaterally by one party which imposes change on all the other parties without the support of the independent Electoral Commission—which itself was established to avoid accusations that parties were changing voting systems for purely partisan advantage.
The idea of four pilot regions plainly does not have the support of the Electoral Commission. I believe that the problems are such that it would be wrong to subject half of England and nearly half of local authorities to all-postal voting methods. A few hundred votes may not seem terribly important in European elections in which millions of votes are cast. However, a few hundred votes may make a great difference in many local authorities and in many wards. The problems associated with all-postal voting often occur in inner-city areas and houses in multiple occupation. I believe that a too widespread use of all-postal voting could cause a false result and make the difference in many areas.
There is a strong feeling that this is not just about legitimate experimentation; two pilots would have been sufficient to accomplish that. There is a strong suspicion that such widespread all-postal voting has been proposed to ensure that the overall national result is more palatable to the Government. The

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Government are rolling out compulsory postal voting and not explaining the necessity for four postal pilots, all of which are concentrated in areas where the Labour Party is fearful about turnout among its traditional supporters. They seem to be interfering in the mechanism as they should not be doing, in a way which the Electoral Commission was set up to avoid.
Lord Alton of Liverpool: My Lords, I support the amendments in the names of the noble Baroness, Lady Hanham, and the noble Lord, Lord Rennard. In their speeches at earlier stages of the Bill, they trenchantly set out as—they have done again today—the arguments why we should be cautious in proceeding to "roll out"—as the noble Lord, Lord Rennard, described it—these arrangements in many parts of the country.
The noble Lord, Lord Rennard, was given his first political appointment in 1983 when he acted as my agent in the general election of that year. Since then I have watched with considerable pleasure as he has honed his formidable skills and won just acclaim as one of the country's most knowledgeable commentators on electoral practice. I think that the House would do well to listen to the caution he urged in his remarks today. Those remarks are based on real practical experience of how elections are run.
Over the 25 years that I represented people in Liverpool both as a city councillor and as a Member of Parliament—and it is a city that the Minister knows very well—the election statistic that always interested me most after the size of the majority was the election turnout. In often keenly fought contests, the turnout in that constituency was always the highest in Liverpool and among the highest on Merseyside. Over the past decade, however, it has depressed and disturbed me to see declining turnouts and large-scale absenteeism at the polls. In one ward by-election in Liverpool, turnout was a paltry 6 per cent. When 94 per cent of the electorate decide to absent themselves from voting, grave doubt is cast on the legitimacy of the election and on our institutions as well. Where here is an electoral mandate? Where here is a commitment to civil society?
Nor was that an aberration. City-wide turnout in local elections in recent years has rarely seen more than one in five voting, and in the most recent general election the Liverpool Riverside constituency achieved one of the lowest turnouts in the UK, with a turnout of just 34.8 per cent. Voter alienation manifests itself in other ways as well—through, for instance, support for groups such as the British Movement in the Lancashire town of Burnley.
The answer to this alienation is to re-engage with the voters. The absence of direct political contact on a regular face-to-face, person-to-person basis is one of the reasons why voters have switched off. Instead of re-engagement, however, we tend to try to dream up ever more novel ways to enable a shrinking group of people to cast their votes. While I am not intrinsically opposed to the extension of postal voting, I am seriously concerned that this debate is simply a distraction from the more fundamental question of why people are disengaging from politics and from
18
their civic duty to vote. I am also extremely worried that the way in which this measure has been promoted will create more cynicism, rather than abate it.
I shall divide my remaining remarks into two questions on the principles and the practicalities.
The Electoral Commission has been right to argue for a guarded and cautious approach to postal voting. As we have heard, the commission recommended a pilot scheme to be conducted in areas geared up to dealing with potential abuse and fraud and then for an assessment and evaluation to be carried out before deciding whether to extend the scope of postal voting. The commission says that that could be a useful contribution in increasing participation, and certainly evidence from boroughs such as St Helens, where postal votes were used last year, would tend to bear that out. However, from an empirical point of view, what would be really useful is to know whether that is just a passing fancy—an aberration—or a long-term, solid achievement. Clearly such an evaluation would need to take place over several elections for that to become clear.
What we lose by the extension of that principle is the physical presence that voting at a polling station requires of each citizen. It takes only a few minutes each year to vote at a polling station. Noble Lords who have served in local authorities or in both Houses may not think it an enormous burden to give up a few minutes each year in order to be personally present to vote. It is part of living in a country with the privileges of freedom and liberty that we enjoy.
GK Chesterton's Edwardian poem "The Secret People" contains a famous admonition to politicians and a reminder of the electoral day of reckoning. He said:
"we are the people of England; and we have not spoken yet.
Smile at us, pay us, pass us. Rut do not quite forget".
If the voters are not to be seen asserting their rights and liberties through the ballot box, we will lose something special from our democracy, and perhaps the politicians will be more inclined to forget. It was Gladstone's first administration who provided for the secret ballot so that landowners could no longer evict their tenants and employers could no longer discriminate against their workers when voters exercised their franchise against their master's wishes. The safeguards in postal voting are nowhere near as great as those offered by being physically present to vote.
Another principle at stake is the contamination of the impartial process of elections themselves. When the two major opposition parties object to the arbitrary overturning of the Electoral Commission's recommendations, it breaks the consensus that should always be at the heart of how we organise elections. Charges of manipulation, partisan advantage, gerrymandering and the rest, damage the whole process and can be completely avoided by proceeding only when there is inter-party agreement. It is a very bad principle to ride roughshod over the safeguards. It casts a shadow over the process and risks undermining the legitimacy of the process itself.

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So much for the principles, but what about the practicalities? The Electoral Commission said that it was not able to make a positive recommendation that the north-west region was suitable to undertake a pilot scheme in 2004. If the commission cannot offer such a recommendation, how can the Government be in a position to do so?
I was looking at a table of comparative experience in organising postal voting. The number of authorities in the north-west is 43, and only 14 per cent—six of them—have any experience of all-postal pilots. By comparison, in the north-east, 65.2 per cent of authorities have that experience. Clearly, the north-east region is in a much better position to carry it out, which is why the Electoral Commission said what it did.
I have also been in correspondence with the leader of Liverpool City Council—Councillor Mike Storey. I put to him several questions about electoral fraud and multi-occupancy of properties, and his remarks bear out the need to proceed with caution. His letter referred to comments made by the Electoral Commission, which stated:
"There have been several allegations of electoral fraud in the North West in recent years. These have centred around interference with postal votes, or intimidatory procurement of proxy votes in conventional elections. Some of these investigations could proceed to court in early 2004. This would be likely to produce unfavourable publicity about the security of postal voting".
Again that will lead to the contamination and the undermining of the process. I also asked about the complexity of running such an election, and he said:
"An all out council election for the whole city, on new ward boundaries, which do not fit existing constituency boundaries, plus the Euro election at the same time, fills me with great concern about the effective organisation of such an exercise. This is especially so as time is short, and planning started later because the North West was specifically recommended not to be included in the pilot in the Commission's report of 8th December.
He continued:
"Given the Freepost for the Euro, as well as an all postal, I estimate that we are looking at 40–50 million additional items for the Post Office to deliver. I suspect it will be chaotic if this pilot goes ahead".
In cities such as Liverpool and Manchester there is the other issue of multi-occupancy. I well recall from my days as a Member of Parliament that multi-occupancy and vacant properties were frequently where fraudulent votes came from. I remember vividly a group of members of the Militant Tendency who had written on the back of their hands the names of voters whom they had come to the polling station to personate. I saw that with my own eyes and complained about it at the time, and the police were called. How much easier it will be to carry out such abuses using this measure.
There are principled and practical reasons why we should proceed with great caution before messing around with the electoral process. I commend the amendments to the House.
3.30 p.m.
Lord Greaves: My Lords, the noble Baroness, Lady Hanham, referred to some of the information that I provided in the Grand Committee about the allegation of widespread fraud involving postal voting in towns in the north of England. I shall not repeat it today as it is set out in Hansard and is available for people to read, but towns such as Bradford, Oldham, Bolton, Bury, Rochdale, Blackburn, Burnley and my own district of Pendle have all been involved.
Although there have been only a few prosecutions, some police investigations are still going on, and it is widely accepted among politicians of all parties that fraud has taken place, and that it is likely to happen if there is all-postal voting. I chaired a meeting last week, which was attended by many members of the Asian communities from the towns throughout the north-west. They expressed great concern that all-postal voting will lead to fraudulent activity and put a great deal of pressure on the Asian communities. It will be difficult for the political parties to stamp out fraud completely, although we shall do our best.
Secondly, I agree almost entirely with the noble Lord, Lord Alton, who made an excellent speech. Unlike the noble Lord, I am still active in party politics in the region. Since the Grand Committee, I have talked to election staff in the different authorities who have expressed great concern. I am referring not only to those authorities which will have all-out elections in new boundaries, where the whole process itself will be difficult, but to authorities such as Pendle, where we shall have ordinary local elections using the old boundaries. There is great concern that the region as a whole is not ready for such an experiment either administratively or in a practical way.
Thirdly, I reinforce what my noble friend Lord Rennard said. In the past fortnight, I have talked to people in the north-west from across the parties. They believe that the change is being made for two reasons: first, because it will improve the prospects of the Labour Party in these elections. I think that they are wrong and that the Government are wrong if that is their motivation behind it, but there is no doubt that that is widely believed within the Labour Party in the region. Secondly, it is believed that the measure will help to stop the BNP winning seats. As I said in the Grand Committee, I believe that they are wrong about that too. If it is possible to rig elections, there is no doubt that all-postal voting will make it much easier for unscrupulous people to rig elections. I would not put the BNP at the top of the list of the most scrupulous political parties in the country.
Lord Stoddart of Swindon: My Lords, I have taken part in more elections either as a candidate or an election agent than I care to remember. I am concerned that the Government and many others are blaming the electorate for apathy and alienation, whereas the fault lies with the political practitioners.
The fault does not lie with those who vote. If we want people to vote, we must give them something to vote on and enthuse and encourage them to do so. If people do not turn out to vote, it is the fault of political

21
parties and governments. The quarrel that I have with the proposition to have all-postal voting is that the electorate will lose touch with those who govern.
Going to the polling station, particularly for parliamentary elections, used to be a great occasion. People would get together; they discussed the issues; they voted at the polling station and felt that they had done their duty. They had done their duty collectively and felt good about it. I felt good the first time I voted. I do not know whether first-time voters feel as good as I did then. There is something about going to the polling station to take part in a collective act of duty to elect your government whom you will hold eventually to account.
Further, any candidate worth his salt will first of all want to identify his supporters. If he is to identify his supporters, he will have to go out and find them. He must talk to them on the doorstep, convince them that he is the man they should support and that he has the policies with which they agree that will make their life better. Door-to-door canvassing is one of the essences of real democracy—to meet the people who will be governed, to see how they want to be governed and to persuade them that you are the chap or the lady to do just that.
Having identified the relevant people, you get them to the polling station. But there is one problem with postal voting—this has already been identified— because the postal vote is sent out 10 days or a fortnight before the election. Anyone who has done any canvassing knows that, when well done, canvassing continues until midnight of the day of the election. What happens in that interregnum? Even if you canvass people on the postal voting system, you go to the door and they say, "We have voted. We have already done it a fortnight beforehand". Therefore, political parties have no chance to convince those people between the time that they receive their postal vote and the election. Elections are often won or lost in the last few days. I remember that well in 1970 when I was first elected to the House of Commons. It was expected then that the Wilson government would survive but there was a turning point on the Monday before the election and they lost. Big issues are involved here.
Moreover, having identified your voters, you then get them to the poll. There is great excitement. Many people are working together—the parties are also working together—to get the highest possible turnout. There is contact with the people to persuade them that it is not only their duty but also a pleasure to vote at the polling station. So far as I can see, that will all be completely sacrificed. The measure will make political parties become lazy. Indeed, having four-year elections instead of annual elections has already proved the point that in the interregnum period political parties become lazy and therefore lose contact with the people they are supposed to represent.
Enlarging the pilot scheme at this stage to cover nearly half the country seems to me completely absurd because the issue is not proven. I believe that it will be bad for our democratic system and bad for government as a whole.
3.45 p.m.
Baroness Park of Monmouth: My Lords, I hope that I may add one very brief point to the admirable speech of the noble Lord, Lord Alton. I feel very strongly that this measure threatens the secret ballot. Secrecy seems to me to be a most valuable and important thing that must be preserved. We know, alas, from Northern Ireland that there are infinite ways of rigging a postal ballot. The IRA was found to have a printing press in a cellar on which it turned out papers. That can happen. In many communities people will be required to vote in a certain way by certain people. We must preserve the secrecy of the ballot.
Lord Beaumont of Whitley: My Lords, I do not apologise for intervening in this Bill at this late stage. Until the Government see fit to give me a colleague, I am not necessarily able to take part in the earlier stages of every Bill. However, I have been lobbied fairly heavily both by members of the Green Party and by my old friends in the Liberal Party to support this amendment. They all say that, so far as they are concerned, the measure is not only open to abuse but also almost impossible to organise in one or two of the areas which are now thought likely to be included.
I believe that we should stick to the original recommendations. I take very strong account of the points made by the noble Lord, Lord Stoddart. As someone who was responsible for the organisation of the Liberal effort in two by-elections, both of which returned Liberal Members of Parliament to the House of Commons, I remember distinctly that about five days before polling day you suddenly felt that you had won. Others who have taken part in by-elections will have felt exactly the same. You suddenly know that there is a feeling in the air and your canvassing suddenly surges way ahead. People should be given the opportunity to register their votes right up to polling day. It is not a good thing to expand the postal votes. I sincerely hope that this amendment will be passed.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, I wish to speak to the Government's Amendment No. 2 and to respond to the discussion on Amendment No. 1, and, by association, Amendment No. 3. I agreed strongly with one point that the noble Lord, Lord Alton, made; namely, that no mechanism for voting will by itself solve the problem of disengagement from politics and one's concern about that issue. The noble Lord is right in that respect.
Without maintaining the tradition of making this a Second Reading debate, it is right that I mark why we are where we are. We are where we are because there has been such a reduction in turnout in local, European and national elections that any neutral political commentator has to be concerned about that issue. The noble Lord was right to say that postal voting by itself cannot constitute a total answer. However, turnout in elections where postal voting has been piloted has increased by some 15 per cent on average. When that 15 per cent is added to a turnout of some 30 per cent, many local authorities have found

23
that the number of the electorate who have voted has increased by 50 per cent. We would be foolish not to consider in a proportionate and thoughtful manner whether the sensible development of postal voting led to a permanent increase in engagement by our electorate, without pretending that it was a total or sufficient measure by itself.
I turn to the amendments before us today. As is apparent, the Government's amendment names our choice of regions on the face of the Bill and by so doing seeks to negate the need for a main order. I very much appreciate the discussion that I have had with both Opposition Front Benches in that respect. I also appreciate the recognition that although we are not at one regarding the relevant regions, there is a sensible and, I think, healthy consensus that in terms of efficient electoral administration the fact that Parliament itself designates the relevant regions in primary legislation provides certainty and allows the maximum time for preparation on the part of returning officers. I believe that we all consider that that is to the good. I thank noble Lords warmly for that.
Why four pilot regions? Piloting is about learning lessons. Within reason, the more data that we have, the more accurate the conclusions that we shall be able derive. So far, pilots have been small scale—we have always said that the Bill is about scaling up. The combined electorate of the four regions is more than 14 million people. The evidence that we shall gain from making pilots available on that scale will enormously help the Government and all parties that have a legitimate interest in the issues, including the Electoral Commission, in informing future decisions about whether to go further with postal voting.
In Committee I explained how we took the Electoral Commission's recommendations which were split broadly into three categories. I believe that in the debate there has been selective quoting from the Electoral Commission report. The Electoral Commission made three points. It had a first category of two regions which were definitely suitable for postal ballots; another four regions which the commission thought were clearly not suitable for a variety of reasons; and a middle category which was marked "potentially suitable", about which the commission was aware there were concerns.
In December the Government accepted those regions described as suitable and said so. We then worked through those described as "potentially suitable", in the order of ranking as set out by the commission. We considered Scotland, but we decided that Scotland was not a practical possibility because the returning officers in Scotland did not believe that they could deliver a safe election. Therefore, we would have been foolish to have gone ahead in that situation.
We took operational capability as our key criterion. As a consequence, we had discussions. My noble and learned friend Lord Falconer of Thoroton and Chris Leslie in another place met the regional returning officers from both the north-west and Yorkshire and Humberside and discussed with them their perspective on whether they could deliver successful pilots in their situations. To cut short the matter—I shall perhaps refer
24
to it later—both said that if they were chosen they could deliver successful pilots. It is true to say that the degree of enthusiasm differed between the north-west, which was very keen, and Yorkshire and Humberside, which was much less keen. Nevertheless, a key test from Yorkshire and Humberside's point of view was whether a successful pilot could be delivered.
As part of the process of testing we also discussed the issues of security and safety, which are proper issues of concern in this debate. I shall make it absolutely clear that in doing so, we have been operating completely within the terms of the Electoral Commission. It did not say that the four middle category of potentially suitable regions could not go ahead. It said that there were issues. To put that beyond doubt, the commission said, in the letter that it has distributed to the House for consideration on these amendments, that four regions were unsuitable, but named four regions as potentially suitable for an all-postal pilot. The commission believed that it was open to the Government to have further discussions with these four regions if they were minded to designate additional pilots. We had those discussions, which led us to believe that it was safe and sound for there to be a wider scale of piloting, which we believed to be desirable. To add emphasis to that, Sir Howard Bernstein, chief executive of Manchester City Council and regional returning officer for the north-west, a region that was quite rightly the focus of much of our discussions in Committee, said that,
"we convened a meeting of all LROs towards the end of last year to discuss the principle of a pilot, and everyone present (42 and 43 local authority areas) committed themselves to work to ensure a successful outcome."
That was not the Government bludgeoning local authorities into the situation. Similarly those in Yorkshire and Humberside made it clear that while it was not their preference, if they were asked to do it, they believed that they could deliver a successful pilot.
One further reason for having four rather than two pilot regions is the diversity in those areas. If one pilots the willing, one will always receive a slightly biased result, but life is not made up totally of the willing. Therefore, a significant advantage could be obtained in having pilots that are carried out in areas where people are not necessarily massively enthusiastic about them, or massively experienced in undertaking them. That would be real life. Diversity will help to maximise our experience.
Why the pilots should take place only in the north was touched on. Clearly London and the south-west were excluded. Additionally Wales, the eastern region and the south-east were all deemed not suitable by the commission and we did not feel that it was appropriate to go against its clear, direct advice nor did we wish to do so.
On the 50 per cent figure, a more accurate figure is that the pilot regions would see a turnout of about 31 per cent of the electorate. In 2003 the pilot regions saw a 22 per cent turnout of the local electorate; so, as a consequence, we are not talking about such a large scale increase.

25
Agreeing to the four pilot regions will give the matter certainty and will be enormously helpful to regional returning officers and to local authorities which, as a consequence, will be able to plan forward. This year marks the last chance for pilots on this scale until 2009. Therefore, I believe that we would be wise to learn from the ability to have a wider-scale pilot by having four rather than two.
I shall briefly refer to one or two points raised in the debate. I have signalled why this is not the arbitrary overturning of the Electoral Commission's report. I heard what the noble Lord, Lord Greaves, said about staff concerns. I would always expect that there would be staff concerns on something of this kind. I have also noted the many important points that he made in Committee on that point.
On the speech of the noble Lord, Lord Stoddart, clearly the problem is that the electorate is already partly out of touch with politics, which is one reason for trying to increase turn-out. Door-to-door canvassing will continue but in a different form, as we have seen.
I shall not weary the House longer, as we shall shortly have a Statement to deal with. We believe that there are good reasons for conducting four pilots. We believe that we shall learn more by having four pilot regions; that four pilots can be carried out successfully; and that the House should allow for four pilots to proceed on this basis so that, as a consequence, we can have early certainty and closure. I hope that the government amendments will be supported and that the opposition amendments will not be.
Lord Ampthill: My Lords, before the noble Lord sits down, he said that he was speaking only to Amendment No. 2. However, there are 47 amendments in this group, of which 42 are government amendments. Perhaps he could clarify that for the House.
Lord Filkin: My Lords, that is kind. A large number of consequential amendments follow on from the main government amendment, Amendment No. 2. I apologise. In an attempt to keep short what I said, I abbreviated my notes, which is always a mistake. All the other amendments are consequential amendments on Amendment No. 2, which enables one to remove the need for a general order so that there is only one order subsequent to Royal Assent rather than two.
Baroness Hanham: My Lords, I thank the Minister for his reply. I also thank very much those who took part in the debate—in particular, the noble Lords, Lord Alton and Lord Greaves, and my noble friend Lady Park. Their contributions underlined the concerns that we have had since the Bill began its passage. We made those concerns abundantly clear during the Committee stage but I am afraid that the Minister will probably know that they have not been allayed, even by what he said this afternoon.
It is true that piloting is all about learning lessons, but sometimes it is easier to learn lessons in small doses than in great swadges. While I accept the Minister's assertion that the electorate in the four pilot regions would account for 31 per cent of the total electorate,
26
that is still a very high proportion when one is working on a regional basis. Therefore, I believe that it would be better to carry out the test on a smaller scale. We know that regions, even if they are European electoral regions, have a habit of transmogrifying themselves into regions in general. Therefore, it would be better to carry out the pilot in a selected, small number of regions.
I believe that the Minister accused me of quoting selectively from the Electoral Commission. Perhaps I may return the compliment. It is true that, when I put forward my view, I cut out a little of what was said here and there. However, I did not cut out the part at the end, which I do not believe the Minister referred to, where the commission states:
"We have not ourselves been involved in further discussions";
namely, the discussions with the two additional regions, which the commission had already said it did not believe were ready or willing to take part in the pilot. Therefore, I do not accept that I misled the House. I believe that I was fairly clear and it is set out in the letter if anyone wants to check it.
I heard what the Minister said. I do not consider that we have discussed the government amendments in any depth. We shall deal with one or two of them later because other amendments relate to them. However, I may need to put on the record that I expect, or hope, that the order relating to the pilot will be an order of this House and that it will be debated in this House as well as in the other place so that, ultimately, we can see what it says. We carried out an enormous amount of work on this matter in Committee in order to put the practical aspects of the elections into place. We want to ensure that they are all in place before we go forward because, apart from nuances, there has been a little disagreement about them. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkin Lord Filkin moved Amendment No. 2:
Leave out Clause 1 and insert the following new clause—
"PILOTING CONDUCT AT EUROPEAN AND LOCAL ELECTIONS
(1) An election to which this section applies (a pilot election) must be held—

(a) only by postal voting, and (for that purpose)

(b) in accordance with provision made by the Secretary of State by order (a pilot order).

(2) These are the elections to which this section applies—

(a) the European Parliamentary general election of 2004 in a pilot region;

(b) a local government election in England and Wales if the poll at such an election is combined with the poll at an election mentioned in paragraph (a).

(3) These are the pilot regions—

(a) North East;

(b) East Midlands;

(c) Yorkshire and the Humber;

(d) North West.

(4) Postal voting is voting where no polling station is used and a person entitled to vote in person or by proxy must deliver the ballot paper by post or by such other means as is specified in a pilot order.
(5) A pilot order—

(a) may modify or disapply any provision made by or under a relevant enactment;

(b) may contain such consequential, incidental, supplementary or transitional provision or savings (including provision amending, replacing, suspending or revoking provision made by or under any enactment) as the Secretary of State thinks appropriate;

(c) may make different provision for different purposes."

The noble Lord said: My Lords, I beg to move.
Baroness Hanham Baroness Hanham moved, as an amendment to Amendment No. 2, Amendment No. 3:
Leave out lines 16 and 17.
The noble Baroness said: My Lords, I have heard what the Minister said, but I am not satisfied. Therefore, as I indicated earlier, I wish to test the opinion of the House.
4.2 p.m.
On Question, Whether Amendment No. 3, as an amendment to Amendment No. 2, shall be agreed to?
*Their Lordships divided: Contents, 169; Not-Contents, 110.

Division No. 1

CONTENTS

Addington, L.

Ezra, L.

Alderdice, L.

Falkland, V.

Allenby of Megiddo, V.

Feldman, L.

Alton of Liverpool, L.

Flather, B.

Ampthill, L.

Fookes, B.

Anelay of St Johns, B.

Forsyth of Drumlean, L.

Ashcroft, L.

Fowler, L.

Astor, V.

Freeman, L.

Astor of Hever, L.

Gardner of Parkes, B.

Attlee, E.

Glentoran, L.

Avebury, L.

Goodhart. L. [Teller]

Barker, B.

Goschen, V.

Beaumont of Whitley, L.

Gray of Contin, L.

Biffen, L.

Greaves, L.

Blaker, L.

Greenway, L.

Bowness, L.

Hamwee, B.

Bradshaw, L.

Hanham, B.

Bridgeman, V.

Hanningfield, L.

Brightman, L.

Harris of Richmond, B.

Brittan of Spennithorne, L.

Hayhoe, L.

Brooke of Sutton Mandeville, L.

Henley, L.

Brougham and Vaux, L.

Higgins, L.

Buscombe, B.

Hodgson of Astley Abbotts, L

Campbell of Alloway, L.

Holme of Cheltenham, L.

Carlile of Berriew, L.

Hooper, B.

Carlisle of Bucklow, L.

Hooson, L.

Carnegy of Lour, B.

Howe, E.

Chadlington, L.

Howe of Aberavon, L.

Clement-Jones, L.

Howe of Idlicote, B.

Cockfield, L.

Howell of Guildford. L.

Cope of Berkeley, L. [Teller]

Hurd of Westwell, L.

Craig of Radley, L.

Hylton, L.

Craigavon, V.

Jellicoe, E.

Dahrendorf, L.

Jenkin of Roding, L.

Deedes, L.

Kimball, L.

Denham, L.

King of Bridgwater, L.

Dholakia, L.

Lester of Herne Hill, L.

Dixon-Smith, L.

Livsey of Talgarth, L.

Elis-Thomas, L.

Lucas, L.

Elton, L.

Ludford, B.

28

Luke, L.

Redesdale, L.

Lyell, L.

Rennard, L.

McAlpine of West Green, L.

Renton, L.

McColl of Dulwich, L.

Roper, L.

MacGregor of Pulham Market, L.

Rotherwick, L.

Mackay of Clashfern, L.

Russell, E.

Mackie of Benshie, L.

Russell-Johnston, L.

Maclennan of Rogart, L.

St. John of Bletso, L.

McNally, L.

St John of Fawsley, L.

Maddock, B.

Saltoun of Abernethy, Ly.

Mar and Kellie, E.

Sandberg, L.

Marlesford, L.

Scott of Needham Market, B.

Marsh, L.

Seccombe, B.

Masham of Ilton, B.

Selborne, E.

Mayhew of Twysden, L.

Sharman, L.

Methuen, L.

Sharp of Guildford, B.

Michie of Gallanach, B.

Shaw of Northstead, L.

Miller of Chilthorne Domer, B.

Shutt of Greetland, L.

Miller of Hendon, B.

Smith of Clifton, L.

Monson, L.

Soulsby of Swaffham Prior, L.

Montrose, D.

Stevens of Ludgate, L.

Mowbray and Stourton, L.

Stewartby, L.

Moynihan, L.

Stoddart of Swindon, L.

Murton of Lindisfarne, L.

Strathclyde, L.

Naseby, L.

Swinfen, L.

Newby, L.

Tanlaw, L.

Newton of Brain tree, L.

Taverne, L.

Noakes, B.

Tebbit, L.

Northesk, E.

Thomas of Swynnerton, L.

Northover, B.

Thomson of Monifieth, L.

Norton of Louth, L.

Tope, L.

Oakeshott of Seagrove Bay, L.

Tordoff, L.

Oppenheim-Barnes, B.

Trumpington, B.

Palmer, L.

Waddington, L.

Park of Monmouth, B.

Wakeham, L.

Perry of Southwark, B.

Wallace of Saltaire, L.

Phillips of Sudbury, L.

Walmsley, B.

Pilkington of Oxenford, L.

Warnock, B.

Platt of Writtle, B.

Watson of Richmond, L.

Plummer of St. Marylebone, L.

Weatherill, L.

Quinton, L.

Wigoder, L.

Rawlings, B.

Wilcox, B.

Razzall, L.

Williams of Crosby, B.

Reay, L.

Windlesham, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Dubs, L.

Amos, B. (Lord Privy Seal)

Elder, L.

Andrews, B.

Falconer of Thoroton, L. (Lord Chancellor)

Archer of Sandwell, L.

Farrington of Ribbleton, B.

Ashton of Upholland, B.

Faulkner of Worcester, L.

Barnett, L.

Filkin, L.

Bassam of Brighton, L.

Finlay of Llandaff, B.

Berkeley, L.

Fyfe of Fairfield, L.

Bernstein of Craigweil, L.

Gale, B.

Blackstone, B.

Gavron, L.

Blood, B.

Golding, B.

Borrie, L.

Goldsmith, L.

Boston of Faversham, L.

Gordon of Strathblane, L.

Brooke of Alverthorpe, L.

Goudie, B.

Brookman, L.

Gould of Potternewton, B.

Burlison, L.

Graham of Edmonton, L.

Carter, L.

Greengross, B.

Christopher, L.

Gregson, L.

Clark of Windermere, L.

Grocott, L. [Teller]

Clarke of Hampstead, L.

Harrison, L.

Clinton-Davis, L.

Haskel, L.

Corbett of Castle Vale, L.

Hayman, B.

Crawley, B.

Hilton of Eggardon, B.

David, B.

Hogg of Cumbernauld, L.

Davies of Coity, L.

Hollis of Heigham, B.

Davies of Oldham, L. [Teller]

Howarth of Breckland, B.

Dean of Thornton-le-Fylde, B.

Howells of St. Davids, B.

Dixon, L.

29

Hughes of Woodside, L.

Randall of St. Budeaux, L.

Irvine of Lairg, L.

Rendell of Babergh, B.

Jeger, B.

Richard, L.

Jones, L.

Roll of Ipsden, L.

Judd, L.

Rooker, L.

King of West Bromwich, L.

Sainsbury of Turville, L.

Kirkhill, L.

Sawyer, L.

Lea of Crondall, L.

Scotland of Asthal, B.

Listowel, E.

Sheldon, L.

Lofthouse of Pontefract, L.

Simon, V.

Macdonald of Tradeston, L.

Slim, V.

McIntosh of Hudnall, B.

Smith of Leigh, L.

MacKenzie of Culkein, L.

Stallard, L.

Mallalieu, B.

Strabolgi, L.

Mason of Barnsley, L.

Strange, B.

Massey of Darwen, B.

Taylor of Blackburn, L.

Merlyn-Rees, L.

Tenby, V.

Mitchell, L,

Tomlinson, L.

Morgan, L.

Triesman, L.

Morris of Aberavon, L.

Turner of Camden, B.

Morris of Manchester, L.

Varley, L.

Murray of Epping Forest, L.

Warner, L.

Ouseley, L.

Wedderburn of Charlton, L

Patel of Blackburn, L.

Whitaker, B.

Pendry, L.

Whitty, L.

Pitkeathley, B.

Wilkins, B.

Plant of Highfield, L.

Williams of Elvel, L.

Prys-Davies, L.

Woolmer of Leeds, L.

[*See col. 50]
Resolved in the affirmative, and Amendment No. 3, as an amendment to Amendment No. 2, agreed to accordingly.
On Question, Amendment No. 2, as amended, agreed to.

EU Enlargement: Free Movement of Workers
4.14 p.m.
Baroness Scotland of Asthal: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"With permission, I wish to make a Statement on the Government's approach to the accession of 10 countries into the European Union from 1 May.
"EU enlargement is extremely welcome and important for our country. It is something to celebrate. All parties in this House are in favour of enlargement. John Major played an important role in launching the process. My right honourable friend the Prime Minister was instrumental in calling for early accession of the 10 countries.
"After 1 May, citizens of the accession states will be free to travel across all EU borders. Our position has always been clear—that the United Kingdom would benefit from all new EU citizens working legally, paying taxes and national insurance. This is an alternative to illegal working, which would fuel the sub-economy and undermine existing conditions of work. But we will take every step to ensure that our benefit system is not open to abuse.
"We have already tackled benefit tourism by tightening the habitual residence test. Today we are building on that by announcing measures which will
30
ensure that those who come here from the accession countries but do not work will not be able to claim benefits.
"It is important to remember the positive aspects of migration. The United Kingdom is already benefiting from more than 20,000 accession nationals who have been granted work permits in the past two years. From 1 May this requirement will be replaced by a workers registration scheme.
"The United Kingdom has one of the most dynamic and successful economies in the world. Since 1997 our economy has experienced growth and prosperity greater than any other large state. Growth has been higher, we have created more sustainable jobs, we have a lower level of unemployment—almost half the level of France and Germany—which is a tribute to my right honourable friend the Chancellor, and to the creativity and flexibility of the British labour market.
"We currently have more than half a million vacancies and will benefit from the skills, flexibility and willingness to work of these new migrant workers as we have in the past.
"To say that we welcome legal migration is not new. We set out our policy in our White Paper two years ago, Secure Borders, Safe Haven. We have consistently developed legitimate and legal routes for managed migration, including issuing 175,000 work permits this year, compared to 40,000 in 1997.
"At the same time we have balanced this by taking tough measures to clamp down on illegal working, abuse of the asylum system and clandestine entry into our economy.
"We have radically overhauled the asylum system. More than 80 per cent of asylum claims are now processed in under eight weeks. We now have the lowest asylum backlog for a decade—half the level we inherited in 1997. We have halved the number of asylum claims from its peak in October 2002. We are removing record numbers of failed asylum seekers and illegal migrants.
"This balanced approach enables us to make the positive case for legal, managed migration.
"The accession of countries into the EU opens up new opportunities for trade and for labour market flexibility. That is why all European Union countries and all political parties in this House welcomed this expansion.
"That is why I am confirming today our decision to allow workers from the accession states access to our labour market subject to certain sensible conditions.
"When we first set out our position, only those countries with high levels of unemployment were planning to introduce restrictions on work for accession nationals. Since then other countries have changed their stance.
"Clearly, it makes sense for us to ensure that our approach does not leave us exposed. We will therefore introduce a new workers' registration

31
scheme to replace work permits for accession nationals. This will place an obligation on all accession nationals to register where and for whom they are working. Their right to work in the UK will depend on their being issued with a registration certificate.
"It will be incumbent on the employer to check that the employee has registered. This will provide a platform for a national ID scheme under which, in time, all non-UK nationals will be required to register. This will help us accurately to determine how many new workers are in Britain, in which sectors and types of employment. It will also assist with enforcement and inspection and will enable us to react immediately if, against all the odds, there are destabilising effects on the labour market.
"It is important to emphasise that the Government retain full discretion to remove all or part of the concessions at any time. We will not hesitate to do so if necessary. We will in any case be tightening controls and dealing with those who evade their responsibility by the employment of clandestine workers. I know that all decent employers will want to join with us in co-operating and in rooting out those who exploit.
"We will be putting before Parliament a set of affirmative regulations which will allow access to the labour market while ensuring our benefits system is not open to abuse.
"This is a coherent and sensible package of measures, which builds on the principles and policies laid out by the Government over the past three years.
"We believe that proper, legal, managed migration is good for Britain and fair to genuine workers from the accession countries. Whether they are plumbers or paediatricians they are welcome if they come here openly to work and contribute. At the same time it is clearly not right that people should be able to come here, fail to get a job, and enjoy access to the full range of public services and social security benefits.
"Therefore, this is the second element of the package we are announcing today. Those wrongly believing that they can move here in order to claim benefits without working should be in no doubt that they cannot. They cannot draw down on benefits without contributing themselves to the rights and entitlements which should go hand in hand with the responsibilities and duties.
"For two years, and possibly longer, we will require accession nationals to be able to support themselves. If they are unable to do so, they will lose any right of residence and will have to return to their own country.
"My right honourable friend the Secretary of State for Work and Pensions will bring forward regulations to prevent access to benefits for those not working. My right honourable friend the Paymaster General will bring forward regulations to
32
prevent them from claiming child benefit. We will also restrict access to other benefits such as social housing.
"This package reinforces the balanced approach to migration that I have spoken about, within a clear set of rules.
"I reiterate: we welcome people, as we have throughout the centuries, to come to our country to work, to contribute and to be part of our society. We reject those, from wherever they come, who exploit our generosity.
"This approach takes account of the simple reality that under the treaty of accession, no EU member state has the right to interfere with freedom of movement. The issue therefore, is on what basis people come to our country.
"By taking these measures we will ensure that those arriving in Britain are able to work for their living, openly and honestly, not drawn into the sub-economy. Those who wish to find a job will be free to do so. Those who come for short periods of time will have the means to do so.
"In this way we avoid expensive bureaucracy and at the same time protect ourselves from clandestine work and the exploitation of the sub-economy. This is the right approach for Britain in the 21st century: fair on ourselves; fair to our new partners; and tough on those who would abuse the system. I commend this solution to the House."
My Lords, that concludes the Statement.
4.24 p.m.
Baroness Anelay of St Johns: My Lords, as this is the first occasion on which I have faced the Minister across the Dispatch Box since a recent television programme on Channel 4, perhaps I may offer her my warm congratulations on being elected by Channel 4 and the Hansard Society as Peer of the Year.
I turn to the Statement. I thank the Minister for repeating the Statement made by her right honourable friend in another place a short while ago. Earlier today the Minister was fastidious in not giving any teasing snippets of information to my noble friend Lord Howell of Guildford in answer to his Question on related issues which might properly have been answered without encroaching on the Statement. I make no criticism; the Minister was most careful, and properly so, in the Answer she gave. However, her right honourable friend the Prime Minister was not quite so fastidious, in that he pre-empted some of the core information in the Statement by answers that he gave earlier today in a BBC radio phone-in programme. That, of course, just whetted our appetite.
The enlargement of the European Union is, indeed, not a concept that suddenly emerged over the past six weeks. As the noble Baroness said, it has been on the agenda for years. Britain's strategy for the free movement of labour, which impacts on British jobs and our public services, should have been clear, consistent and planned in advance. The Government have failed to address that imperative until recently.

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Today we learnt that the Government have finally agreed to adopt a policy of registration for work for migrants from the new accession countries. I give a general welcome to that announcement. However, as always we shall have to look very closely at the orders that come before the House, especially those that restrict benefits and social housing to ensure that the Government's policy does not have unintended consequences, especially for those migrants who have families living here with them.
I have always recognised that there are serious labour shortages in some sectors of the UK economy and that when they are filled by legal migrant workers there is a benefit to the economy from tax and national insurance that they pay, apart from the part they also play, quite rightly, in society in general.
The Minister used alliterative examples of plumbers and paediatricians. In practice, it is the agriculture and hospitality sectors that probably benefit most from migrant employees. However, I have some questions for the Minister about how the measures she has announced will be implemented.
The Statement refers consistently to new countries. Are all accession countries thereby covered within these measures, including both Malta and Cyprus, which I had thought would be exempt?
What about those from the new accession countries who are already working here legally on work permits? Does the time they have spent here count towards the qualifying period before they can claim benefits or do they start from point zero when they register under the new system?
Referring briefly again to registration, I note that the Statement says that it will be incumbent on the employer to check that the employee has registered. The Minister is right to point out that employers will be very keen to co-operate with the Government to ensure that the system is properly managed. What will the penalty for an employer who fails to carry out that proper check? What will a proper check be defined as? What consultation has there been over the past week or so with the CBI on these matters? It will ensure that its members are disciplined properly but the CBI has great expertise which could have been fed into the Government in determining which systems can properly carry out such measures.
I am puzzled by the vagueness of the Government's policy, even at this stage, after the flurry of ministerial discussions last week. We are told in the Statement that for two years and possibly longer the Government will require accession nationals to be able to support themselves and not be eligible for social security benefits, child benefit and social housing. Why have the Government not yet determined the length of that period? What will influence their decision when they do let us know how long it will be?
The Prime Minister said this morning on the radio—and I quote the BBC quoting him:
"If they can't support themselves, they will be put out of the country".
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What is the legal basis for that compulsory expulsion? Who will pay for their expulsion—central or local government or the previous employer? Since the migrant is presumably destitute, one wonders how he or she might be expected to pay for it.
Finally, I notice that the Government bring ID cards into the equation. They say that the information given to employers will provide a platform for a national ID cards scheme. For my last two questions I ask the final and very obvious ones: how; and. when?
4.30 p.m.
Lord Wallace of Saltaire: My Lords, I suppose I should declare an interest as someone who was employed as a part-time university teacher in the Czech Republic and Hungary between 1993 and 1996. I am happy to say that they did not impose an ID card on me or any of the other things that are proposed for the other way around.
We on these Benches give a half welcome to this Statement. It is a useful defence of legal migration, but it slides down towards accepting tabloid press campaigns against the Roma and others. We would like to have seen some reference in a Statement of this kind to the contribution which Poles, Czechs and Slovaks have made to Britain over the past three generations. Those of us who have spent a lot of our time in the north of England know very well that those who were forced to come here after the War—being caught on the wrong side—had often fought for us in the Second World War and their grandchildren continue to make a major contribution to t he British economy.
It worries us that the press campaign against the Roma has produced such a response from the Government; and, as I suggested during Question Time earlier this afternoon, it continues to puzzle us that the Government are so robust in standing up to the BBC but so remarkably unrobust in their response to the Daily Mail, the Sun and others. I have noted the number of occasions in the past few weeks that the Daily Mail has picked out asylum seekers and others as being sources of social turmoil in Britain. That seems to be the kind of press campaign to which any Labour Government should be standing up, and I regret that the Prime Minister has failed to do so.
Do the Government have evidence on the scale of benefit abuse and benefit tourism, or is this an imagined problem—a small problem that has been blown up by the press into a large issue when the issue really is not there? Certainly, we may regret that many other European Union states have retreated from the principles of freedom of labour. We welcome the Government's reiteration that they are in favour of freedom of movement within the EU and the enlarged EU and that as these states join the EU, which we welcome, they should be entitled to freedom of movement as rapidly as possible.
I would love to ask the Government how they assess the net movement. We know very well of the large number of Poles, Czechs, Hungarians and others who come into Britain every year, work for short periods

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and go home again. That is not gross movement, it is net movement. Since we do not have very clear exit controls of people moving across the Channel, I am not clear how the Government will collect the figures.
However, what is new in the Statement is the workers registration scheme—a national identity card scheme for all non-UK nationals. Have the Government consulted about that? Will it apply to company directors, people working in banks or to university teachers? There are French, German and Greek nationals in my department at the London School of Economics where I teach. Will they need to have ID cards? Is this seen as the beginning of an extension of an ID card system to all people in employment in Britain? That seems to be the most significant part of the Statement; and it is that which we need to know most about.
4.34 p.m.
Baroness Scotland of Asthal: My Lords, I very warmly thank the noble Baroness, Lady Anelay, for her kind words. I should like to remind the House that two other noble Baronesses were nominated—the noble Baroness being one and the noble Baroness, Lady Williams, the other. I certainly celebrated that this House for the first time nominated three women on merit and not gender. So I very much congratulate noble Baroness on being among that band.
Perhaps I may now turn to the questions asked by the noble Baroness. I thank her for the warmth of her welcome in relation to the Statement. The issue of genuine workers being able to take advantage of work here is very important. In the few weeks before we broke for the break, it was clear just how bad some of the consequences can be where illegal workers are exploited in a quite improper way.
I can reassure the noble Baroness that Malta and Cyprus are not included in the list. They have been exempt. None of the 15 EU members states is imposing restrictions on free movement of workers from Malta and Cyprus. That is because of their wealth—they are the two richest members of the 10 accession states, with approximately 70 to 75 per cent of the EU GDP average—their small size, and their historical links with some existing EU member states. Malta and Cyprus are both Commonwealth members, as the noble Baroness knows.
The United Kingdom, by opening up its labour market to registered workers from the A8—unlike other EU member states—is ensuring that those who come here to work will do so legally rather than illegally, paying taxes and national insurance rather than working in the black economy. That is a matter about which I know the noble Baroness has spoken in the past and it is something that we are absolutely determined to eradicate. We also expect reciprocal rights for British workers to work in the new member states.
The noble Baroness mentioned the shortages and the availability of workers in the agricultural and hospitality sectors. That is why our approach is to
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allow workers from the EU accession countries to work in any sector they choose. We have consulted very widely. The noble Baroness may know that both the CBI and the TUC are very much in favour and support the decision to open the UK labour market. The British Chamber of Commerce did so also. They made it clear to us that they would not support an arrangement which would either put on a quota or would mean that people would have to apply before they arrived here. We listened very carefully to that advice. We were very grateful that both the CBI and the TUC gave their whole-hearted support.
The noble Baroness asked about the two years or longer mentioned in the Statement. She will know that the arrangements as a result of the accession treaty mean that in the first two years we will be able to make regulations under the national law. Those could be extended for another three years to make it five years and/or could be extended further—if there were specific specialised causes of concern—into the seven-year period. It is those two years to which we refer in that part of the system.
Those people who come here legitimately and work well will be in a position to take the benefits that accrue to them. That will be made clear. I absolutely understand that the noble Baroness will want to look very carefully at the regulations to make sure that they accord with what is right and proper.
On the issue of identity cards, the noble Baroness and the House will recall that the Government have made clear our approach in relation to the introduction of ID cards. This will be incremental and is part of the work that we have already indicated that we wish to see.
Perhaps I may turn now to the questions raised by the noble Lord, Lord Wallace of Saltaire. I take great pleasure in agreeing with him about the real contribution that has been made by migrant workers in the past but particularly the Poles, the Czechs and those who have come over the years from the eastern European bloc. The noble Lord will remember that we were at the forefront in welcoming enlargement as being of a positive benefit.
I also take pleasure in confirming many of the points that were alluded to at Question Time earlier this afternoon. Britain has benefited hugely from migration. UK employment is at a record high. It is up by 1.7 million since the spring of 1997; the UK ILO unemployment is down by 0.6 million since the spring of 1997; our long-term unemployment is down by more than three-quarters since April 1997; and we have the lowest ILO unemployment rate among the G7 countries. It is one of the lowest ILO unemployment rates in the EU, being almost half that of France and Germany. Approximately 15 per cent of the UK trend economic growth depends on migration. Migrants make up 8 per cent of the population but generate 10 per cent of our total wealth. Migrants are substantial net contributors to the Exchequer. Studies show that, in 1999–2000, they paid £2.5 billion more in taxes than they consumed in benefits and services. We are in no doubt that they are a positive benefit. The noble Lords opposite should be in no doubt that the children of migrants are of benefit because their

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leader is one such person. If we look around this House—I do not include myself as I was born British—we know that we have all benefited from the richness that comes from migration to this country.
I would like to reassure the noble Lord that the difficulty that we have experienced concerning this matter is not a change. We have had to be absolutely practical in the way in which we deal with it. For the first time our system could potentially be abused: benefits could become a draw. We have no legitimate way of identifying benefit abuse in the past, and we are simply making sure that that will not occur in the future. We are using the registration system as a means of identifying how many people come here, where they go to and what the migration flows are. There is no indication that that will cause a difficulty.
Earlier this afternoon, the noble Lord said that similar stories and concerns about accession have been bandied about. He was right. We do not believe that this will be a problem; we have taken the course that was necessary in order to make sure that we do not experience the adverse consequences that others have feared. I hope that the noble Lord will be reassured. We take delight in promoting the benefits that we have seen. The Government are unable to dictate what the tabloid press prints in response to what they say. If only it were otherwise. That is the position that we are in.
This is a rational and appropriate response to the problems that we now face, and I hope the noble Lord will feel that he is able to be wholly congratulatory now instead of only partially so.
4.43 pm
Lord Clinton-Davis: My Lords, what discussions have taken place with the Refugee Council and like organisations? What proposals do the Government have? If a persuasive case is advanced by any of them, will the Government consider what they have to say positively? Will they make appropriate changes to the proposals that she has outlined today, if necessary?
Baroness Scotland of Asthal: My Lords, of course we honour what the Refugee Council has said in the past. We take its recommendations and statements very seriously. On this occasion we are concentrating not on refugees but on legal migrants who are members of the eight accession countries. They have the right to come to this country and visit without restriction. I remind the House that migrant workers are able to come to all EU countries if they are self-employed. There is no restriction on any EU national travelling to any EU country and working there on a self-employed basis. That is good for industry and good for the economy. It will be welcomed by all EU countries.
Baroness Ludford: My Lords, are the proposed measures based on an evidence-based forecast, as opposed to reaction to press coverage?
Last year all parties were happy that this country would not take advantage of transitional measures. Is it not likely that the public will be confused by this
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schizophrenic reaction? On one hand, the Government speak about the welcome statistics of the benefits of migration, and employ lofty rhetoric to explain how enlargement would be welcomed; and yet the reality is that we are imposing restrictions and treating nationals of the new member states as second-class people. That was not what we promised them 15 years ago when we talked about accession to the EU.
The Government have mentioned the problem of hysteria. Are they aware that on the "Today" programme this morning there was an item on the rate of HIV infection in the new accession countries being the highest in the world? It turned out to be about Russia and the Ukraine, which are not accession countries.
The Minister talked openly about the worker registration scheme being part of the move towards a national ID scheme. Will that apply to all British nationals as well as foreigners? Does she think that the British public would welcome the worker registration scheme if they knew that it was a move towards a national ID scheme?
Baroness Scotland of Asthal: My Lords, I shall deal with the last point first. Noble Lords will remember that, when we set out our incremental proposals for ID registration, we made it clear that there would be an opportunity to consider whether they should be implemented more broadly. We discussed the biometric information that will go into a number of materials—passports, driving licences and so on. We have been absolutely open on where those issues are going. The report is not confused. We are not retracting or retrenching from what we said at the beginning.
My right honourable friend the Prime Minister was at the forefront of those who proposed enlargement. That was backed up by the statements made very openly and cogently by my right honourable friend Jack Straw, the Foreign Secretary, on 10 December 2002. Nothing has changed. We are not making the nationals from the new accession countries second-class citizens. We are opening our markets in a bold and proper way so that we can reap the benefits that we said would come from accession.
Lord Waddington: My Lords, did the noble Baroness say that those who come here and are unable to support themselves will lose their right to remain? If that is the case, what powers will the Government have to remove them in those circumstances? What reason is there to think that, in practice, they would be removed, given the Government's signal failure to remove immigrants at the present time?
Baroness Scotland of Asthal: My Lords, I must take issue with the noble Lord. Our level of removal has never been higher. We are getting better and better at removals.
Those who come to this country and work will be able to stay. Those who do not work will not be able to claim benefits. They may either be self-employed or support themselves. If they try to claim benefits improperly, that will be dealt with. It will be possible to remove those who behave improperly and seek to do that. However, those

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who come here and work and behave in a way that is conducive to increasing wealth for both themselves and ourselves will be able to continue to work here openly.
Lord Waddington: My Lords, I am not sure that the noble Baroness answered my specific question. What powers will be used by the Government to remove those who come here and are unable to support themselves?
Baroness Scotland of Asthal: My Lords, they will not be entitled to any benefit. If they infringe the new rules that we are about to bring in, we will be able to remove them. Your Lordships will know that in the case of EEA nationals who are no longer trying to get work, or no longer able to get work, we have appropriate rules that will make it possible for us to remove them. There will be similar rules in relation to this category.
Lord Hylton: My Lords, I welcome what the Minister said about legal, managed migration. However, will she confirm that registered migrant workers will be entitled to minimum wages without illegal deductions? That will be particularly important in catering, horticulture, cockle picking and other miscellaneous employment.
The noble Baroness went on to say that such registered workers would have to support themselves for two years. Is that not far too long? Would not six months be more appropriate? Hard cases are almost certain to emerge, involving, for example, people who suffer industrial accidents or people whose employers suddenly go bankrupt and lay them off. Will there be some kind of compassionate arrangement for dealing with such situations, given what the noble Baroness said about the tax surplus arising from migrant workers?
Baroness Scotland of Asthal: My Lords, the noble Lord's concerns about the minimum wage are already covered. In order for a worker to show that he is entitled to be registered, he must have evidence of a job, such as a letter from an employer or a contract of employment including details of the work. There must be evidence that he is being paid the minimum wage or more, along with a photograph, passport or ID card.
The two-year period to which I referred is the period from accession. The individual worker will have to demonstrate that he is in continuous employment for one year. If he loses his job during that year, he will not be entitled to benefit. However, he can apply for new registration when he gets another job. The important thing is that such people must work continuously for a year, before they would be entitled to claim any benefit. Work-related benefits may be available to them, but not if they are not working. Everything flows from work. Someone who is in work will get certain benefits; someone who is not in work is not entitled to claim any benefit at all.
Lord Tomlinson: My Lords, I thank my noble friend for repeating the Statement made in another place by the Home Secretary. In particular, I am grateful for the economic and social context in which she valued enlargement.
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There are two specific details of the Statement that I want to raise. I notice that there is no reference in the Statement to access to National Health Service treatment. Will my noble friend give me an indication of what is intended?
I hope that my noble friend can also reassure me on my doubts about access to social housing. On the basis of what she said, is it not a fact that an EU citizen in these circumstances could be in a worse relative position with regard to access to social housing than a non-EU migrant—legal or illegal—who presents himself or herself to the local authority for housing? Such a disparity between the EU migrant and the non-EU migrant, particularly if the non-EU migrant were illegal, would be hard to justify in equity or logic.
Baroness Scotland of Asthal: My Lords, I reassure my noble friend that workers from the accession countries will, if they are in work and paying tax and national insurance, be entitled to derive benefits from the National Health Service. We have tried to differentiate between those who are working and those who are not here for work. Either the individual can support himself without access to benefit or he is here working properly and openly and is able to get access to some assistance. That is the distinction that we have made, and we believe that it is a proper one.
Earl Russell: My Lords, we have read a good deal recently about benefit tourism. Can the Minister quote to us any year in the past 10 for which the Eurostat figures put our benefit levels above the third quartile? Until she can, will she agree that the phrase "benefit tourism" is grossly mistaken?
Am I right in believing that the central basis of EU law on migrant workers is that the right to benefits depends on someone actively seeking work, a principle well known to British law? The Minister now proposes to base it on success in obtaining work, which is not under the applicant's control. What thought has she given to the consequences for the applicant of that loss of entitlement to benefits? Will her department, in particular, examine the report published on 5 February by the Department for Work and Pensions on loss of benefit for breach of a community service order? It shows that, in return for a measly 1.8 per cent increase in compliance, there has been an increase in severe hardship and an increase in crime. Is not the attempt to ask people to live without benefit for two years likely to benefit no one but the gang masters of Morecambe Bay?
Baroness Scotland of Asthal: My Lords, several things have been conflated, if I may respectfully say so. First, noble Lords will know that the DWP report on loss of benefit for breach of a community service order relates to young people who have not addressed the orders appropriately. It cannot properly be relied on in this context. The noble Earl asked about years when we were above the third quarter. I do not know the answer to that, and I will have to write to the noble Earl. To be frank, I must say that I am not sure that I understood what the noble Earl was saying.

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We are making a distinction between the position of EEA members and the accession countries as regards rights under the actively seeking work principle. The derogation is in the accession treaty, and we are seeking to allow those who come here to work in a way that is open and fair.
Lord Forsyth of Drumlean: My Lords, I have a practical question for the Minister. What happens, if someone who comes from one of the accession countries—where, after all, the average wage is less than half our minimum wage, making the attraction of coming here clear—has an accident at work or loses his job after, say, a couple of months? He may have brought his family and may have three or four children. Is the Minister really saying that that family will be left destitute and that there will be some procedure by which they will be returned to their country? What happens while that procedure is going on? What view will the courts take of that? Will not the Government find that the courts have ruled that their policy is unacceptable?
I worry about the practicalities. I understand why the Minister is giving her response, but she should give some comfort to those of us who find it difficult to see how the system will work in practice.
Baroness Scotland of Asthal: My Lords, as the noble Lord appreciates, the way in which the scheme is to work will enable those from the A8 countries, which are accession countries, to come here and take advantage of the opportunities to work. The whole purpose is that they are able to do that; we are making no restrictions on them bringing their families. They will be able to take advantage of a number of the facilities available here in the UK which may not be available as easily in their host countries. But the hard fact is that if they are not, within that first 12 months, able to maintain themselves and their family, they will not be entitled to claim state benefit. They may be able to obtain assistance from the local authority in relation to going home again or some short-term respite, but they will not be entitled to state benefit as of right. I am sorry if that does not give the noble Lord the comfort he seeks, but that will be the position.
Lord Marlesford: My Lords, does the Minister remember that on 12 February she gave the Government's estimate that there are between 5 million and 7 million Roma people in the accession countries? Does she agree that the majority of these live in very miserable and often deprived conditions and that many of them are persecuted? Does she recognise that if only 5 per cent of those were to come here and have difficulty fitting in and getting jobs, at an average cost of benefit and services of some £10,000 a head—the sort of figure generally mentioned nationally—it would cost £2.5 billion to £3 billion a year, which is the entire GDP growth forecast for next year?
Baroness Scotland of Asthal: My Lords, I know that the main concentration of the debate seems,
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unfortunately, to have hinged on the Roma. We do not think that that is an appropriate way to look at these issues. We are making it absolutely clear to all those who wish to come to this country that if they come here and do not get work they will not be entitled to state benefits. We are saying very clearly that if it is their purpose to come to this country and not work, it will not work.
Lord Dholakia: My Lords, the Minister has already confirmed that more than 175,000 work permits were issued for the purpose of managed migration and, of those, about 20,000 were issued to EU nationals. Will she confirm that the people who come here from EU accession countries would have no consequential effect on the work permits issued to people from Commonwealth countries such as Australia and New Zealand in particular, and other parts of the world? Will she also confirm that at the end of the residential qualification period, both EU nationals and others would be entitled to British nationality?
Baroness Scotland of Asthal: My Lords, I can certainly confirm that they would be entitled to apply for British nationality. Whether they would be entitled to be granted it is, of course, another issue.
Let me make it absolutely clear that we see this as an opportunity for progressive change. Many people who come to this country are, regrettably, abused and taken advantage of because they cannot work legitimately. We are providing a clear way in which any of these individuals can come to this country and apply for work at the minimum wage or above, so that they will not be exploited and employers who seek to take advantage by oppressing or subjugating them will not have the opportunity to do so.
This is the best way of giving individuals a legitimate route to be here, to work hard and to contribute. If that succeeds, we will all be able to reap the benefit.
Lord Carlisle of Bucklow: My Lords, will the Minister now answer—
Lord Bassam of Brighton: My Lords, I draw noble Lords' attention to the clock.

European Parliamentary and Local Elections (Pilots) Bill
5.4 p.m.
Consideration of amendments on Report resumed.
Clause 2 [Pilot order]:
Lord Filkin Lord Filkin moved Amendment No. 4:
Page 2, line 5, leave out subsections (1) to (3) and insert—
"( 1) This section has effect in relation to a pilot order.
(2) A pilot order may make provision for conduct which differs from that provided for by or under a relevant enactment"
The noble Lord said: My Lords, in moving this amendment, I should like to give a word of explanation. This amendment, along with a number of others that we will come to during the course of our discussions this afternoon, is consequential on the amendment to Clause 1 that was made by the Government in their Amendment No. 2, as amended by the Opposition's Amendment No. 3. They simply make it clear that there will not be a need for a general order for the reasons that we gave in the earlier discussion. I beg to move.
The Deputy Speaker (Baroness Turner of Camden): My Lords, I should tell your Lordships that if this amendment is agreed, I cannot call Amendment No. 6 because of pre-emption.
On Question, amendment agreed to.
Lord Rennard Lord Rennard moved Amendment No. 5:
Page 2. line 6, at end insert—
"( ) The pilot order must provide that—

(a) all postal ballot papers must be accompanied by a declaration of identity, signed by the elector and by a witness, and containing in legible form the name and address of the witness;

(b) each elector who has returned a postal ballot paper is sent an acknowledgment by the returning officer."

The noble Lord said: My Lords, our earlier debate featured a number of serious concerns about voting by post. This amendment is about minimising those concerns where all postal vote pilots will still take place. I would be rather less concerned if they took place in two regions rather than four, but there are still important concerns about the possibilities of personation.
Postal vote fraud is a serious risk. Requiring a witness signature to accompany the vote could make a considerable difference in reducing problems, particularly in areas of multiple occupation homes and in inner cities.
Some people say that fraud in postal voting is very rare, but I do not believe we should open up the system to abuse. I can see how, with all-postal voting pilots in a number of areas, there could be extensive abuse.
On the whole, the Electoral Commission is of the view that so far there is not widespread abuse. It points to the fact that, generally, abuse in our political system is pretty rare. However, as a number of noble Lords have pointed out, there are abuses and examples of fraudulence in a number of places. The noble Lord, Lord Alton of Liverpool, referred to our experience in Liverpool in the 1980s. The noble Baroness, Lady Gould of Potternewton, was mindful of some of the tactics employed by the Militant Tendency in the 1980s regarding personation at the polling stations.
It is rather difficult in some places to go to the polling station and impersonate someone else; I suggest that it is very much easier if you simply collect in the postal votes. You could collect 10 postal votes put through one letterbox in a house and sign to the effect that you were those 10 people. If you had to require a witness signature to say that you were such and such a person, that would
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be a significant deterrent to abuse. People at the Electoral Commission, with whom I have discussed this in some detail, say that checks are not often made on these anyway. My point is that a check can be made, and it is a deterrent to someone claiming another's vote.
I know also that there may be some problems for deaf-blind people or other disabled people, but I suggest that postal voting with a witness signature is still easier for many than going to a polling station. If you apply to vote by post in the London elections in June and receive a postal vote, you will have to obtain a witness signature to say that you are the person voting in that way. I see no reason for suggesting that if an all-postal pilot takes place, in the east Midlands or the northern region, for example, that requirement should be abandoned.
I would say by way of comfort to people who are concerned that the witness signature requirement may reduce turnout slightly or make it slightly harder for some disabled people to vote that the solution will come in a few years, I hope, when there is individual registration of voters on the electoral register. At present, one person tends to fill in the form for everyone who lives in the household. That means that only one signature is kept by the returning officer, and it is impossible for other people on the electoral register in that household who return postal votes to have their self-certification signature checked because there is no other record of their signature.
Within a few years we will have a new system, I hope, whereby every individual will go on the electoral register, with a copy of their own signature. When we reach that point, there will be no need for a witness signature, but until then, I suggest this amendment is very necessary. I beg to move.
Baroness Hanham: My Lords, I rise to support the amendment moved by the noble Lord, Lord Rennard. There was a good deal of discussion in Grand Committee about the best way to ensure the validation of postal votes and how to ensure that there is no personation. We discussed several methods. Like the noble Lord, Lord Rennard, I believe that the best possible way is by witnessing postal ballots. Therefore, I support the amendment.
Lord Greaves: My Lords, this is one issue that we discussed in great detail in Grand Committee. While we were discussing these matters, we were told by the Minister—the noble Lord, Lord Filkin, and, on the second day, the noble Lord, Lord Evans of Temple Guiting—that we would be sent a draft policy paper or something of that kind. I understand that a 70-page document has been sent out, but I am afraid that I have not received it. I am not sure whether it is the draft pilot order—no, it is the policy paper.Hansard could provide many instances of when I was personally told that I would receive the information, but I have not. I should be grateful if I could have the information as quickly as possible, not least to dissuade me from tabling lots of amendments for Third Reading.
I strongly support the amendment moved by my noble friend. There is a real fear that widespread postal voting means the end of the secret ballot. That is the

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fundamental point of principle behind the concern about and opposition to postal voting. The Electoral Commission and the Government have examined ways of addressing the problem. I remain to be convinced that they have found a satisfactory solution. However, some of the measures in the policy paper—which I look forward to reading—will, we are told, seek to address this vital fundamental problem. We could have all the postal voting in the world, but if the fundamental principle of the secret ballot goes out of the window, that is the end of democracy as we know it. This is a crucial issue. As my noble friend said, the Electoral Commission suggests that individual registration is, in the long run, the best way to tackle the problem, but that cannot be included in the pilots this year.
I believe that it is wrong to do away with one of the safeguards that currently exist. There is no point in introducing new safeguards if, at the same time, we do away with the only one that ensures that the person filling in the ballot paper and sending it back is the person to whom it has been sent. That is the fundamental problem. Requiring a witness provides a safeguard. I have personal experience of looking into irregularities in a particular local election two years ago. It is possible for members of the public or representatives of the candidates to inspect the declaration of identity—as it is called at the moment—after the event. Inspecting declarations does not prove anything in a hard and fast way, but it gives one a very good idea of what has happened when people have gone out to rig an election. We found that several individuals had witnessed more than 100 postal votes each. That sets one on the trail of working out how that particular election may have been rigged—as there is no doubt that it was in Pendle two years ago. It is a crucial safeguard and a pointer to what happens.
Secondly, because witnesses use their own signatures, it is relatively easy to examine the signatures of the electors concerned and assess whether they have been forged by the person who witnessed the signature. Indeed, I have no doubt that that happened in Pendle two years ago. Therefore, this is almost the only safeguard that people have if they are examining allegations that a particular election has been rigged. Under the pilots, when the Government are looking for other safeguards to introduce to protect the secrecy of the postal vote, it would be wrong to remove the one safeguard that we have at the moment.
5.15 pm.
Earl Russell: My Lords, I declare an interest as President of the Electoral Reform Society. It will not surprise the House to find that I am in entire agreement with my noble friend Lord Rennard, who is a member of the council of that society. However, I feel that I owe it to the House to report some misgivings from well informed people, which I do not share, but on which the Minister should have a chance to comment. They come from among others the campaign manager of Scope, and from my son, who is parliamentary officer of the Royal National Institute for the Blind. They are concerned about the witness requirement. They fear that it may
46
infringe the secrecy of the ballot, discourage disabled turnout and create alarm and despondency. They fear that the requirement for a legible signature may have an adverse effect on disabled people. It is true that blind people have difficulty in producing a legible signature on occasion, but I hope that the Minister will confirm that the signature is that of the witness and not the voter.
This issue is one of the possibility of fraud. There is a real fear of fraud in the case of proxy voting. I know of several cases in which there has been a vehement suspicion of fraud in proxy votes, but it has not been proved beyond reasonable doubt— a point of some importance. Does the danger of fraud justify the need for a witness, and, if so, why? That answer would be worth having on the record before the Bill leaves this House.
Lord Filkin: My Lords, in rising to respond to these issues, I again put on record that, although we do not necessarily think that concerns about fraud are of the level signalled by the noble Lord, Lord Greaves, in Grand Committee, there is regrettably some fraud in our electoral practices. Neither of those statements implies that the Government are quiescent or passive about the importance of investigating and appraising whether, through further use of postal ballots, fraud increases or can be removed or reduced to the minimum possible level. I want to make that absolutely clear before I respond specifically to these issues.
Although we may not agree about the mechanisms or the quantum we certainly do agree about the importance of ensuring that, if postal balloting is taken further, we find effective ways of resisting, rebutting, and deterring fraudulent practices. For good reasons that I am sure will be shared throughout the House, that will be an essential component of such ballots having credibility in the future and therefore having the confidence of all electors and political parties.
We discussed this specific issue in Grand Committee and I made clear our intention to mandate within the pilot order that a ballot paper must be validated with a security statement signed by the elector. We do not intend, as this amendment suggests we should, additionally to require electors to obtain the signature of a witness. I will try to explain why. We have taken our lead on this issue from the Electoral Commission. In its report, The Shape of Elections to come, the commission identifies a number of reasons for utilising the security statement in place of the declaration of identity.
Those reasons are reiterated in a briefing the commission has produced specifically on the amendments under discussion today. They were; first, that the requirement to complete a declaration discourages some electors from voting as it could be difficult to find a witness. Secondly, the necessity of a witness could increase the risk of a breach of secrecy as the witness may see the elector's vote. Thirdly, the Electoral Commission said that involving another person in the voting process would create the potential for a breach of security, mitigating that as a safeguard against fraud. Fourthly, it said that there was a significant issue of a risk of disenfranchisement being increased. The commission was strongly concerned that paragraph (a) of the amendment would introduce a

47
feature that its previous evaluation of pilot schemes had indicated served little purpose in terms of fraud prevention and created real risks.
The commission recommended to the Government in September 2003 that in future all postal ballots should not require a witnessed declaration, for the reasons that I have given. Instanced in that was evidence from opinion polling and other sources, which showed that some potential voters in all-postal pilot schemes had been deterred from voting because of the difficulty or inconvenience of finding a suitable witness. The commission also said that a witness statement offered no guarantee of security, as there was no register of signatures. Therefore, it was perfectly possible for witness signatures also to be forged.
I shall give a further example from the piloting experience that the commission reported on in 2003. It noted that in Trafford, only 414 ballot papers were rejected out of a total return of about 84,000. In the previous year, with a declaration of identity, 2,164 ballot papers had to be rejected. The commission pointed out that that equated to 2.5 per cent of the total turnout. In other words, there is a much higher rate of invalid ballot papers as a consequence of the requirement. If we were to extrapolate those figures across the four pilot regions and assume, optimistically perhaps, that there was a 50 per cent turnout at those elections, the consequence would be that 175,000 people could be disenfranchised because invalid papers had been submitted.
In essence, we are taking the Electoral Commission's view and advice on the matter. That does not mean that we do not believe there to be an issue about fraud, but on the advice of the commission and in our own opinion, we do not believe that the proposal suggested by the amendment is the way to deal with it.
As the noble Earl, Lord Russell, said, there is considerable concern that such a measure might discriminate against those with disabilities. Officials in the department met representatives from Scope and RNIB last week, and a strong view was expressed that a witness requirement only added another obstacle barring many disabled people from voting in secret and at their convenience. Scope feels so strongly about the issue that it has written to two noble Lords expressing its views, saying:
"We are clear that requiring voters to have their ballot witnessed by another person not only increases the likelihood of people spoiling their ballot or returning them uncompleted but also puts many disabled and older voters, who are more likely to be more isolated or live alone, at a substantial disadvantage".
As I have said, the forgery of one signature does not preclude the forgery of a second signature.
Furthermore, it has been suggested that voters must be sent acknowledgement. I understand why that is suggested, but both our and the Electoral Commission's view is that that should not be done because it would substantially increase cost and bureaucracy. More importantly, it is not an effective anti-fraud measure. It is also doubtful whether it would really work. We have taken steps to reduce the risk in
48
situations such as houses in multiple occupation. An individual who is willing to accept the potential consequence of fraudulently taking an elector's vote is likely to put in place contingencies to accept any acknowledgement. Electors can ask whether a vote has been received, and returning officers will be able to give them that information.
Without more ado or delaying the House further, I reiterate that we agree on the importance of using the pilots as ways in which to identify whether fraud is taking place and effective ways in which to resist, rebut and deter it. However, we do not believe that the amendment is a good way in which to do that. For those reasons, I hope that the noble Lord will be minded to withdraw it.
Lord Rennard: My Lords, I thank the Minister for that reply. I understand the sincerity of his argument about various measures to overcome fraud with postal voting. However, I still believe that the witness signature on the declaration of identity is a necessary weapon in the armoury against fraud at this stage, until such time as there is individual voter registration.
I understand that there may be concerns about the secrecy of the ballot. However, as the ballot paper is inserted into one envelope and can be sealed and seen by nobody else and the declaration of identity then accompanies it, there should be no problem with secrecy. I accept that there may be some problems for some people in acquiring a witness to sign that they are who they say they are. However, we are now at a point at which the all-postal pilot votes may not require that, while in any other region in England, Scotland and Wales, if one votes by post on 10 June, one will require a declaration of identity. I do not see why there should be that difference. On that basis—
Lord Filkin: My Lords, I should like to make one response, which I omitted earlier, to the noble Lord, Lord Greaves, about the policy paper. He has my apologies if he has not received a copy. We believe that one was sent, but I shall try to ensure that one gets to him this afternoon.
Lord Rennard: My Lords, I should like to test the opinion of the House.
5.26 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 157; Not-Contents, 110.

Division No. 2

CONTENTS

Addington, L.

Beaumont of Whitley, L.

Alderdice, L.

Blaker, L.

Alton of Liverpool, L.

Bowness, L.

Ampthill, L.

Bradshaw, L.

Attlee, E.

Brittan of Spennithorne, L.

Avebury, L.

Brooke of Sutton Mandeville, L

Baker of Dorking, L.

Brougham and Vaux, L.

Barker, B.

Buscombe, B.

49

Campbell of Alloway, L.

Murton of Lindisfarne, L.

Carlisle of Bucklow, L.

Naseby, L.

Carnegy of Lour, B.

Newby, L.

Chadlington, L.

Newton of Braintree, L.

Clement-Jones, L.

Noakes, B.

Colville of Culross, V.

Northesk, E.

Colwyn, L.

Northover, B.

Cope of Berkeley, L.

Norton of Louth, L.

Craig of Radley, L.

Oakeshott of Seagrove Bay, L.

Craigavon, L.

O'Cathain, B.

Crickhowell, L.

Onslow, E.

Dahrendorf, L.

Palmer, L.

Denham, L.

Park of Monmouth, B.

Dholakia, L.

Patten, L.

Dixon-Smith, L.

Perry of Southwark, B.

Dundee, E.

Phillips of Sudbury, L.

Elis-Thomas, L.

Platt of Writtle, B.

Elton, L.

Rawlings, B.

Erroll, E.

Razzall, L.

Falkland, V.

Reay, L.

Finlay of Llandaff, B.

Redesdale, L.

Fookes, B.

Rennard, L.

Freeman, L.

Renton, L.

Gardner of Parkes, B.

Rogan, L.

Geraint, L.

Roper, L. [Teller]

Glentoran, L.

Rotherwick, L.

Goodhart, L.

Russell, E.

Greaves, L.

Russell-Johnston, L.

Hamwee, B.

St. John of Bletso, L.

Hanham, B.

St John of Fawsley, L.

Hanningfield, L.

Saltoun of Abernethy, Ly.

Harris of Richmond, B.

Sandberg, L.

Henley, L.

Scott of Needham Market, B.

Higgins, L.

Seccombe, B.

Hodgson of Astley Abbotts, L.

Selborne, E.

Holme of Cheltenham, L.

Sharman, L.

Hooper, B.

Sharp of Guildford, B.

Hooson, L.

Shaw of Northstead, L.

Howe, E.

Shutt of Greetland, L. [Teller]

Howe of Aberavon, L.

Simon of Glaisdale, L.

Howe of Idlicote, B.

Skelmersdale, L.

Howell of Guildford, L.

Smith of Clifton, L.

Hurd of Westwell, L.

Stevens of Ludgate, L.

Jellicoe, E.

Stewartby, L.

Kilclooney, L.

Stoddart of Swindon, L.

Kingsland, L.

Strange, B.

Laird, L.

Strathclyde, L.

Lawson of Blaby, L.

Swinfen, L.

Lester of Herne Hill, L.

Taverne, L.

Liverpool, E.

Tebbit, L.

Livsey of Talgarth, L.

Thomas of Gresford, L.

Ludford, B.

Thomson of Monifieth, L.

Luke, L.

Tope, L.

Lyell, L.

Tordoff, L.

McAlpine of West Green, L.

Trefgarne, L.

McColl of Dulwich, L.

Tugendhat, L.

MacGregor of Pulham Market, L

Ullswater, V.

Mackay of Clashfern, L.

Waddington, L.

Mackie of Benshie, L.

Wakeham, L.

Maclennan of Rogart, L.

Wallace of Saltaire, L.

McNally, L.

Walmsley, B.

Maddock, B.

Watson of Richmond, L.

Mancroft, L.

Weatherill, L.

Mar and Kellie, E.

Wilcox, B.

Marlesford, L.

Williams of Crosby, B.

Marsh, L.

Windlesham, L.

Mayhew of Twysden, L.

Methuen, L.

Michie of Gallanach, B.

Miller of Chilthorne Domer, B.

Miller of Hendon, B.

Monson, L.

Montrose, D.

Mowbray and Stourton, L.

Moynihan, L.

50

NOT-CONTENTS

Acton, L.

Howells of St. Davids, B.

Amos, B. (Lord Privy Seal)

Hoyle, L.

Andrews, B.

Hughes of Woodside, L.

Archer of Sandwell, L.

Hunt of Chesterton, L.

Barnett, L.

Irvine of Lairg, L.

Bassam of Brighton, L.

Janner of Braunstone, L.

Berkeley, L.

Jones, L.

Bernstein of Craigweil, L.

Judd, L.

Blackstone, B.

Kennedy of The Shaws, B.

Blood, B.

King of West Bromwich, L.

Borrie, L.

Kirkhill, L.

Brooke of Alverthorpe, L.

Lea of Crondall, L.

Brookman, L.

Lofthouse of Pontefract, L.

Brooks of Tremorfa, L.

Macdonald of Tradeston, L.

Burlison, L.

McIntosh of Hudnall, B.

Campbell-Savours, L.

MacKenzie of Culkein, L.

Carter, L.

Mackenzie of Framwellgate, L.

Chandos, V.

Mallalieu, B.

Christopher, L.

Mason of Barnsley, L.

Clark of Windermere, L.

Massey of Darwen, B.

Clarke of Hampstead, L.

Merlyn-Rees, L.

Clinton-Davis, L.

Mitchell, L.

Cohen of Pimlico, B.

Morgan, L.

Corbett of Castle Vale, L.

Morris of Aberavon, L.

Crawley, B.

Murray of Epping Forest, L.

David, B.

Orme, L.

Davies of Coity, L.

Pendry, L.

Davies of Oldham, L. [Teller]

Pitkeathley, B.

Dixon, L.

Plant of Highfield, L.

Eatwell, L.

Prys-Davies, L.

Elder, L.

Ramsay of Cartvale, B.

Evans of Parkside, L.

Randall of St. Budeaux, L.

Falconer of Thoroton, L. (Lord Chancellor)

Rea, L.

Farrington of Ribbleton, B.

Rendell of Babergh, B.

Faulkner of Worcester, L.

Rooker, L.

Filkin, L.

Sawyer, L.

Fyfe of Fairfield, L.

Scotland of Asthal, B.

Gale, B.

Sheldon, L.

Gavron, L.

Simon, V.

Golding, B.

Smith of Leigh, L.

Goldsmith, L.

Stallard, L.

Gordon of Strathblane, L.

Stone of Blackheath, L.

Goudie, B.

Taylor of Blackburn, L.

Gould of Potternewton, B.

Thornton, B.

Graham of Edmonton, L.

Tomlinson, L.

Grantchester, L.

Triesman, L.

Greengross, B.

Turner of Camden, B.

Grocott, L.[Teller]

Varley, L.

Harris of Haringey, L.

Warner, L.

Harrison, L.

Warwick of Undercliffe, B.

Haskel, L.

Wedderburn of Charlton, L.

Hayman, B.

Whitaker, B.

Hilton of Eggardon, B.

Whitty, L.

Hogg of Cumbernauld, L.

Williams of Elvel, L.

Howarth of Breckland, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
[Amendment No. 6 not moved.]
5.38 p.m.
The Deputy Speaker (Viscount Simon): My Lords, I must inform the House that in the first Division this afternoon, the number voting "Not-Content" was 111 and not 110, as previously announced.
I call Amendment No. 7.
Lord Cope of Berkeley: My Lords, before the noble Lord, Lord Goodhart, speaks to his amendment, I

51
draw to the attention of those of your Lordships who did not notice the fact that the Division Bells failed to function in the last Division. The Division was therefore extended to 10 minutes from the conventional eight minutes. If the Division Bells cannot be repaired, we may need to give further thought to how we proceed in future Divisions. Obviously, in this particular case we were caught short, as it were, by the failure of the equipment. Let us hope that it can be repaired.
Lord Goodhart Lord Goodhart moved Amendment No. 7:
Page 2, line 14, at end insert—
"( ) The pilot order must make provision for including in the count of votes any postal ballot paper received by the returning officer through the post on the day following the day appointed for the poll (or, where more than one day has been appointed, the last of such days)."
The noble Lord said: My Lords, as one of the tellers for the "Not-Contents" in the first Division this afternoon, I feel a certain sense of guilt about the correction that has just been made.
I tabled this amendment because I think it is essential to allow postal voters to vote on polling day, which would be the effect of this amendment. It is wrong in principle to say that postal voters in pilot regions must vote a day earlier than voters in the regions that have conventional polling. It is true, of course, that most recipients of postal ballots are likely to vote quite shortly after receipt of a ballot. That is not necessarily a good thing, but that is what seems to happen in practice. Surely, however, they should have the right to delay their vote until polling day. As has been said, people change their minds as a result of events which may happen at a very late stage during the poll. So it seems right that it should be possible to vote by post on the polling day itself.
When I originally tabled the amendment I had assumed that postal votes cast on a Thursday would be delivered to the returning officer on Friday morning and that postal votes cast on Friday would be delivered until Saturday, with the result that votes received on the Friday would be votes cast on the Thursday—assuming that to have been the polling day—and that they should therefore be counted. I recognise that it is possible under the Government's proposal for people to go to a supported delivery point, but that is likely to be inconvenient in a great majority of the cases and impracticable in a substantial number of them. If there are one, two or, at most, three supported delivery points in each constituency, a journey of many miles may be required to reach them in rural areas. Even in urban areas, supported delivery points may be located in places where parking is difficult or impossible. They may be beyond easy walking distance and involve the voter having to use and pay for public transport.
It now appears from the policy paper published by the Government—I am very grateful for having been sent a copy of it—that I may have been wrong to assume that ballots posted on polling day will not be collected and delivered on that day. Section 6 of the paper states:
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"Royal Mail will be offering a specialised service for these elections which will provide for all electoral mail collected on the day of poll, up to the last collection from post boxes within the local authority area, to be sorted out and made available to electoral administrators at a time that ensures the ballots are available for the close of poll … It will ensure that ballots put into post boxes within the local authority area up until the time of last collection (usually between 4.00 pm and 6.00 pm) on the day of the poll are collected and made available for the count.
The policy paper goes on to say:
"Electoral administrators should make it clear in elections materials that ballots should be posted no later than midday on the day before the date of the poll or otherwise to return completed ballots at a SDP. The 'day of poll sweep' will act as a contingency to catch ballots where electors do not heed this advice".
So far, so good; that means that postal voters will be able to vote by post on Thursday. At the same time, however, it appears that voters will be told not that they can vote on the Thursday, but that they must vote by Wednesday, even though they will in fact have been able to vote by post on the Thursday. If that is the position, then that seems very unsatisfactory. Surely the official election literature must accurately tell the voters the true position. It is entirely legitimate for them to be encouraged to post not later than the day before polling day. However, surely they must be told that ballots posted before the last collection on polling day will in fact be delivered and counted. Can the Minister confirm that that will be the case? I beg to move.
5.45 p.m.
Baroness Hanham: My Lords, as I think the Liberal Democrats appreciate, although we exactly understand the situation, we are not totally in support of the amendment, mainly because we think that without a poll closing time it will be very difficult to decide the time by which a ballot has to be received in order for it to be counted. What will the election literature specify as the time by which a ballot must be posted to ensure that it is counted? To some extent it will depend on the Royal Mail. However, we need to know a little more clearly what the Royal Mail is intending to do. We shall come to that point in a later amendment.
When we spoke to the Minister in a meeting a week or so ago, there was some confusion between the time at which the Royal Mail would make the final collection of ballot papers—between 4 p.m. and 6 p.m. on the day of the poll—and the time by which it would be advisable to post the completed ballot as stated in the election literature. The point may have been covered in the policy paper, but the policy paper will have to be turned into something else, which I presume will be the pilot order. The point will have to be covered in that.
I was pleased to see included in the policy paper a commitment that the number of votes received after the close of poll will be counted to inform an evaluation by the Electoral Commission on the reliability of the system.
Lord Filkin: My Lords, we explored this issue in Committee and in a meeting between Committee and Report stages. I should set down a number of

53
foundation principles. It is absolutely critical that there should clearly be a time when polling ceases. That time is, and it will be, 10 o'clock on the day itself. Both we and the Electoral Commission think that it would be quite wrong to have any confusion about that at all.
As the noble Lord, Lord Goodhart, indicated, we are minded to include in the advice that electoral officers should provide the advice that, if people in the polling areas are intending to post their vote rather than go to an SDP, they should post it by 12 o'clock on the day before. I think that that is sound and good advice because doing that will minimise the risk that one's vote does not arrive in time. In practice, the elector will have had not only the previous day but the previous two weeks to decide whether to vote by post and to post their ballot. The evidence from many places is that, for fairly obvious reasons, people tend to do it fairly early; if they are going to vote they tend to get on with it and do so. So the position is that most people will vote well before the final day. The advice will be that, if they are going to post their ballot, they should do so no later than 12 o'clock on the day before. If they wish to vote on the day itself, they can always go to a supported delivery point to vote in person.
That brings us to the final question about what the Royal Mail will seek to do. The Royal Mail has said that it will seek to scour the post boxes and sorting offices within the pilot regions between four o'clock and six o'clock on the day of posting. It seems perfectly sensible for the Royal Mail to do that—to try to maximise the likelihood that votes will count in cases where there has been a failure to collect a vote from a box if someone has voted the day before, or where someone has inadvertently and unadvisedly voted on the day itself. However, that will not change the clear advice that one should vote on the day before or, preferably, several weeks before. That is an opportunity that the postal voting system seeks to allow.
That is the Government's position and I hope that the House will agree that it is reasonable. We have seen an impressive commitment by the Royal Mail to the process of trying to ensure that we reduce the risk of not admitting votes that have been cast.
Lord Goodhart: My Lords, will the Minister say whether the election literature will refer to the fact that a sweep will be made between 4 o'clock and 6 o'clock on polling day? It is surely essential that potential voters should be told the position. If, for example, someone wakes up and realises on polling day that he has not put his ballot into the postbox, he should know of the option of posting it that morning rather than having to go to what may be a highly inconvenient supported delivery point, which he may decide not to do.
Lord Filkin: My Lords, I do not wish to be abrupt, but that information would cloud and confuse the issue in a way that would increase risk. The best advice is to vote early if not often. Clearly, the advice is to get the vote in at the earliest possible opportunity. One may want to leave it until the last minute, and vote the
54
day before, but why so? I do not wish to be pig headed about it, but while the Royal Mail will seek to reduce the risk of lost votes, one cannot be confident that it will always in all circumstances be able to sweep every post-box in such a limited time on the day. That may be difficult in some rural areas, for example, although it intends to try to do so.
The policy guidance made it clear that we were talking about post-boxes within the regions themselves. If someone puts a vote in a postbox outside the region on the day before, it should be included and counted. But there is no possibility that the Post Office could scan all the post-boxes in London on the day of polling. Therefore, to put out advice that voters might get away with it if they vote on the day and if they make sure that they do so in a certain region would lead to a risky situation and confuse the public.
Baroness Hanham: My Lords, I wish to clarify my remark about votes following polling clay. I understand from the policy paper—and welcome the fact—that the Electoral Commission will be asked to do a random selection test of the voting papers following the election to test for personation and fraud. Is that what page 15 of the policy paper means when it states that,
"the Electoral Commission will look at the number of votes received after close of poll so it will he important for electoral administrators to keep records"?
Lord Filkin: My Lords, with great sorrow, I regret that we may be taking a compliment that we do not deserve. I shall have to get a copy of the policy paper, but my recollection on this issue is that we shall want to track the number of ballot papers that did not count because they came after the time of closing. That is the point to which we are referring now. It is for a good reason; we want to see who did not get their votes in on time.
Lord Norton of Louth: My Lords, if I may assist the Minister, I presume that that refers to Amendment No. 34.
Lord Filkin: My Lords, I am sure that the noble Lord is right.
Lord Goodhart: My Lords, in the circumstances it is apparent that my Amendment No. 7 is based on the false assumption that the delivery of votes posted on Thursday would be handled by the normal postal delivery system and would therefore not arrive until Friday morning. As that assumption now appears to be false, I do not intend to press the amendment.
I accept that this does not apply to ballots posted outside the pilot regions, but it is deeply unsatisfactory that people will not be told that a ballot posted within a pilot region before last post—before 4 o'clock in the afternoon—on polling day is likely to be delivered through the post on the day, and therefore will be included in the count. We do not seem to be giving

55
voters full information that they can use to make up their minds about deferring posting their ballot paper until polling day.
Lord Filkin: My Lords, I am grateful to the noble Lord for allowing me to intervene. It is not about being unreasonable to the public, but about avoiding taking them into risk. The likelihood of a ballot failing to arrive on time would be substantially greater if we were to put out such advice. Therefore, we would be irresponsible to do so. At the same time, we need to try to ensure that if someone is misguided, mistaken or confused, his ballot will still count, if possible. There is nothing contradictory in those two positions.
Lord Goodhart: My Lords, I still think that that does not solve the problem. Of course it is right that people should be told that there is a risk and that their vote may not be delivered if they leave it until polling day. But someone may have been away from home; he may arrive back late on Wednesday evening, having missed the last collection on Wednesday, and would be prepared to take that risk. He may not be prepared to go to a supported delivery point.
Having said that, there is nothing further that I can do. However, I regard it as highly undesirable that people should not be given the whole picture, including the risk of non-delivery if they leave it until the last possible day. As I said, it is clear from the policy paper that the amendment is based on a false assumption, so I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Earl Attlee Earl Attlee moved Amendment No. 8:
Page 2, line 14, at end insert—
"( ) The pilot order must make provision to ensure—

(a) that all information provided is in a simple form, easily accessible to the elderly and disabled, and

(b) that those with disabilities are able to exercise their vote independently and in secret."

The noble Earl said: In moving Amendment No. 8, I shall speak also to Amendment No. 32. Both amendments focus on ensuring that provisions are in place to allow disabled people to participate easily in an all-postal election.
First, we still think it imperative to have an assurance on the face of the Bill that the details of the pilot order will state that information on voting will be in simple form and easily accessible to those with disabilities. The pilot order should also make it clear that those with disabilities can exercise their vote independently and in secret.
Secondly, it is equally important that in Clause 4, which covers the report produced by the Electoral Commission, there is a specific duty on the commission to assess the extent to which the manner of elections facilitated voting for those with disabilities, having consulted such organisations or individuals representing disabled people as the commission considers appropriate.
There was much discussion on those issues in Committee, and I was encouraged by the Minister's commitment to ensure that all necessary provisions would be made to allow those with disabilities to vote in an all-postal ballot. It is clear that there has been extensive consultation between the Government, the Disability Rights Commission and the RNIB. Both organisations set out a detailed briefing specifying their minimum requirements for providing for those with disabilities.
They proposed that all electoral information must comply with RNIB's clear print guidelines. Information and instructions should be in a minimum of 14 point in plain English with clear information about access arrangements. Returning officers must be in a position to provide formats in large print, tape, Easy Read, Braille, disc and e-mail. The ballot paper must be compatible with the tactile voting device. Home visits or one-to-one assistance must be provided to disabled voters on request. Signature guides and other aids are to be provided to assist voters to sign the declaration of identity, and staffed delivery points must be accessible to disabled voters.
There are many detailed requirements, and I thank the Minister for his letter of 6 February giving some commitment to meet the majority of those specifications. I thought that it might, however, be of benefit if the Minister could let us know whether there has been any further progress in facilitating voting for those with disabilities. For instance, there are several provisions mentioned in the policy paper—notably on page 18—which it would be helpful to have on record.
We know that all-postal voting is an evolutionary process. It is designed to generate evidence and to test the waters to see if the method works. We therefore fully believe that our amendment, which specifies that the Electoral Commission must have regard to the accessibility of the election for those with disabilities, is vital in promoting best practice and gathering feedback from groups who represent disabled voters. I am sure that the Minister will assure us that this will go without saying. However, I prefer that it should be specified on the face of the Bill. I beg to move.
6 p.m.
Lord Goodhart: My Lords, my noble friend Lord Rennard and I have added our names to Amendments Nos. 8 and 32 which we fully support.
We welcome the fact that the Government have gone some considerable way to meeting the requirements of the Disability Rights Commission and the RNIB. However, a number of outstanding questions remain. Certainly, the Disability Rights Commission considers that it is necessary to have clarity regarding the requirements for accessible information. It is imperative to get effective publicity arrangements in place.
I refer to a number of specific points. The Disability Rights Commission is very concerned about the minimum of one supported delivery point per local authority area. That is not good enough given the mobility and transport barriers for many disabled

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people. It is good that SDP staff will be trained, but will they be adequately trained in disability access? Will there be a single helpline number with text phone and e-mail options? There is concern about the colour of the ballot forms. The Disability Rights Commission contends that the ballot forms should not only be coloured but should have the words, "white, lilac, grey" printed on them. It is also very concerned that one of the colours involved is grey, which as I understand it is a particularly difficult colour for people with some degree of visual impairment.
The Government have said that election information will be made available in alternative formats which will definitely include tape and e-mail, and Braille on request. The Disability Rights Commission says that large print must also be available, that the expense of providing information in Braille on request is not great and should not be subject to an expense limit, and that clarification is needed on whether ballot papers will be available in anything other than large print. As I understand it, a number of unanswered questions still remain. I hope that the Minister will be able to deal with some of them, if not today at any rate before Third Reading.
Lord Filkin: My Lords, I shall do my best but I suspect that I shall need to take advantage of the latter suggestion of the noble Lord, Lord Goodhart. I thank both Front Benches for acknowledging that we have worked with disability groups representing the interests of the disabled.
Clearly, ensuring that an all-postal ballot is accessible to those with disabilities is of real importance to the Government and to the House. There is reasonable evidence that many if not all disabled people find postal balloting advantageous. I shall not discuss that point at length but the Polls Apart survey showed that 96 per cent thought that postal balloting was either convenient or very convenient—however, the survey covered a relatively small number of people—that some 91 per cent thought that it was either easy or very easy to use, that 75 per cent thought that it was a better system and that 82 per cent, given a choice, would prefer to vote by that method in the future.
However, the fact that postal balloting appeals to many disabled people does not detract from the fact that one must work hard to make it as right as one can. The information has to be in a simple format. We spoke about that at some length in Committee. The pilots are concerned with making voting easier and therefore the information must be comprehensible to disabled people. Where we differ concerns the degree to which we specify exactly how to fulfil that objective. We believe that we must look to returning officers to follow good principles and good advice on how they do that. The Electoral Commission recently produced guidance on that issue entitled Equal access to electoral procedures. We believe that electoral administrators will utilise that guidance and we shall re-emphasise the importance of their doing so.
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As has been signalled, we distributed our policy paper, if not universally, which referred to disability issues. I wish to read into the record some of the relevant points in the policy paper which set out our position. Supported delivery points must be accessible for the disabled. It would be a nonsense for a building with the traditional 15 flights of town hall steps to be used as a supported delivery point. That would clearly discriminate against disabled people. Therefore, I want to put it beyond doubt that such buildings must meet adequately and fully the requirements of legislation on access for the disabled, or they should not be used.
Electors will be able to request assistance with voting at an agreed place. For example, if a disabled person wants assistance, he or she can set up an appointment for that. Electoral administrators will make arrangements to deliver a tactile voting device to a blind or partially sighted elector to enable them to vote in private. Electoral administrators may, if requested, provide assistance, including marking ballot papers, for a disabled person at a supported delivery point. I shall consider whether the word "may" should be slightly stronger as it seems to me that it should be possible to assist disabled people in that way at an SDP. However, I make no commitment in that regard without reflecting on the matter. SDPs must have a large-scale version of the ballot paper available for voters to refer to.
We are working hard to try to ensure that these measures are accessible for disabled people. We met representatives of SCOPE and the RNIB last week and we are certainly happy to continue an active discussion with disability groups. I shall write to the noble Lord, Lord Goodhart, on the points that I have not covered.
Amendment No. 32 would require the Electoral Commission to report on the extent to which pilots facilitated voting for those with disabilities. I totally agree with the noble Baroness, Lady Hanham, that that should be done. However, both we and the Electoral Commission believe that that is already captured by Clause 4(6)(a) of the Bill which requires the commission to report on the extent to which the pilots facilitated voting at elections. The Electoral Commission has made it clear that it interprets that provision as it should do; namely, that it includes reporting on accessibility and convenience for those with disabilities, and that it will so report. Therefore, it is already charged with a statutory duty that addresses this issue and it has furthermore confirmed that it understands and interprets the measure as it should do.
Although we do not agree with the letter of the amendment moved by the noble Earl, Lord Attlee, we totally agree with the spirit of it and we believe that we shall give effect to it through the means that I specified. For those reasons I hope that the noble Earl will feel minded to withdraw the amendment.
Earl Attlee: My Lords, I am grateful to the noble Lord, Lord Goodhart, for his support. He asked a number of pertinent questions on which the Minister agreed to write to him. I hope that I and my noble friend Lady Hanham will receive a copy of the letter.

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The Minister said that postal voting has advantages for disabled people. By inference that comment applies to those with mobility challenges but we are concerned at the moment with those with sensory disabilities. The Minister appears to have taken on board our concerns for which I am grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanham Baroness Hanham moved Amendment No. 9:
Page 2, line 14, at end insert—
"( ) The pilot order must make provision for postal ballot papers relating to houses of multiple occupation (as defined in section 345 of the Housing Act 1985 (c. 68) (meaning of "multiple occupation")) to be hand-delivered by an officer of the local authority who must make reasonable efforts to ensure that those to whom the votes are delivered are still in occupation on the premises."
The noble Baroness said: My Lords, Amendment No. 9 focuses on the problem of delivering ballot papers to houses in multiple occupation (HIMO), a matter on which we dwelt at length in Committee and which has already been touched on today. Several examples have been given, especially by the noble Lord, Lord Greaves, of abusers of votes that have been delivered to houses in multiple occupation. Since Committee stage I have had a number of representations made to me on the same basis, that it is an easy, open door to fraud.
I emphasise that when we talk about houses in multiple occupation, we use the description defined in Section 345 of the Housing Act 1985 which covers a large range of communal living establishments: homes, residential homes, student halls and so on. We are very concerned about the possibility in such places of a number of ballot papers being posted through the door, collected up by one person and filled out, either without the knowledge of those to whom the postal ballot was sent, or for people who no longer reside in the house in multiple occupation. If there is one place where the population turns over quickly, it is in a house in multiple occupation. There are many examples of a 50 per cent change over between the electoral register being created and the election taking place. It is not a simple problem but a significant one.
In care homes for the sick or elderly or in student accommodation, people may be completely unaware that any elections are taking place in which they have a right to vote. If their voting papers vanish in the interim, they will be more unaware and the papers will be of no use to them. I was pleased to hear the Minister say in Committee that he would consider the matter further before Report and that he understood the concern surrounding it. However, the noble Lord said that our approach was too much of a burden administratively, it gave no assurance that fraud would not take place and it was too prescriptive. Instead, he advocated leaving the issue up to the discretion of the local regional returning officers.
Nevertheless, despite such caveats, on page 17 of the policy paper some encouraging comments appear. Having said that, as I mentioned when speaking to the
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Liberal Democrat amendment, we are grateful to the Government for picking up some of our suggestions and putting them in the policy paper. However, here the matter is to be left to the discretion of the regional returning officers and it will not be a mandatory provision that they provide a hand-delivered service.
The Government have clearly conceded in principle that hand delivery would be one way of tightening up the procedures. We would like that to be compulsory for all the reasons that I have given. If left to the discretion of the regional returning officers, the worry is that they will try to justify the risk as not very great, and therefore not put in place provisions to implement the suggestion. The timescale is short and we know that the returning officers will be rushed to put in place all the necessary provisions for the election, but one or two examples of voting going wrong in HIMOs will be enough to put a question mark over the whole postal voting system. Therefore, I believe that it would be appropriate for there to be a mandatory requirement that the papers had to be hand-delivered to the premises and at least some check made that they were delivered to people who still lived there. I beg to move.
Lord Alton of Liverpool: My Lords, I support the amendment moved by the noble Baroness and corroborate what she said about the practicalities of houses in multiple occupation. Unlike a house with one family in residence, if 10 or 15 people live in a house in multiple occupation, the turnover is very great. Electoral registers are regularly out of date before they have even been printed because people move on. Many itinerants and drifters tend to migrate in and out of houses in multiple occupation.
The danger of the theft of mail in such properties is one that was regularly drawn to my attention when I represented an inner-city area. Theft of mail was a regular occurrence. Mail would just be pushed through the door of a house in multiple occupation or there could be lots of pigeon holes and boxes inside where letters could be left so that anyone would be free to walk into those properties and simply take away all the correspondence that had been placed there. Sometimes if money were sent through the post, that could lead to people being financially much worse off.
I believe that there is a real danger that the situation could be open to abuse by those who want to manipulate or to distort the outcome of an election. They could simply raid the communal boxes or take the mail that may be strewn across the doorstep, which is regularly the case when one walks into a house in multiple occupation, walk off with the ballot papers and commit the kind of fraud to which the noble Baroness, Lady Hanham, has referred.
The amendment is very reasonable and I wish that it went slightly further. The noble Baroness has framed it in a moderate way. She is asking for the ballot papers to be hand delivered and the amendment refers to,
"reasonable efforts to ensure that those to whom the votes are delivered",
actually receive them. One could go further than that. I believe that there should be a way of verifying, such as signing a form, that people have received the ballot,

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so that it is known that ballot papers have arrived in the hands of those for whom they are intended. I hope that between now and Third Reading the Minister will reflect on the matter. It is a very proper concern and one that the Government should take seriously.
6.15 p.m.
Lord Filkin: My Lords, I agree that, like previous issues with which we have dealt today, this is important. It goes to the heart of ensuring that there is confidence in the postal balloting system on which we are conducting the pilots. Before noble Lords get too excited that I am about to make some major concession, I shall explain why we think that what the Electoral Commission has advised, with which we agree, is right.
Essentially the commission has advised that the returning officers should be charged, in their local situations, with the responsibility of seeing how best to manage the potential for risk in houses in multiple occupation. That is for a good reason rather than being just a "they say it's all right, leave it to them" type of approach. Two sets of issues intersect at the same time on this matter. We are talking about situations in which common mail is delivered through a front door and it sits in a common place until people pick it up. I was reflecting that my London residence has just such a system. That may or may not be a HIMO. There can be some HIMOs—if I can use that slang—as defined in the Act mentioned by the noble Baroness, Lady Hanham. In some situations, flats are in HIMOs and yet the postal delivery is secure.
A further point is that not all houses in multiple occupation automatically have high turnovers, but many do, such as the kind about which we are talking, the classic lodging house situations mentioned by the noble Lord, Lord Alton, or where there is a large churning of people and therefore the risk of a large amount of voting literature being around. In other HIMOs there can be a stable population; for example, long-term homes for the elderly where facilities are shared.
There are a number of different situations. As I do not believe that it makes sense for the Government or even the Electoral Commission to specify a rule that would apply across those different situations, the proper approach is to look clearly at the guidance that we and the Electoral Commission are putting out, make clear the potential of risk, and make clear the responsibility to try to manage risk by thinking about the issue. If anything, I shall look at the guidance to see whether that is clear or not in what it says about the management of risk in local situations. I believe that is what we are talking about.
Further, as we signalled previously, this will highlight what the post-election research must consider and whether there are problems of abuse that have not been trapped. I suggest, with respect, that that is the proper way to try to manage the risks, without in any sense implying that we are not treating the issue seriously.
Baroness Hanham: My Lords, I thank the Minister for that response. I remain concerned about his reply, but I
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shall not take the matter any further at this stage. However, because the Electoral Commission is beginning to develop its guidance, it would be helpful to see at least some of it before we progress to a later stage. There are two matters that will be fundamental to the consequences of the Bill: first, the contents of the pilot order; and, secondly, the Electoral Commission's guidance.
Both now and in Committee we have raised real and practical concerns, based on other peoples'—and partly our own—knowledge of what can cause an election to be flawed. I would be grateful to see what is proposed and to have an opportunity to comment. I accept that making a returning officer deliver ballot papers by hand may be too onerous, but I shall look at the matter again before the next stage. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanham Baroness Hanham moved Amendment No. 10:
Page 2, line 14, at end insert—
"( ) The pilot order must make provision for the electors in each relevant European electoral region and associate local government regions to have easy access to supported delivery points."
The noble Baroness said: My Lords, the amendment is about how many supported delivery points there are in a region holding a pilot election. The Government will be pleased to see that we have dropped our original amendment incorporated in our new clause in Committee on the administration of the pilot election. There we endeavoured to specify that there should be an obligation on local authorities and returning officers to ensure that any elector who wished to do so could vote in the traditional way in a ballot box at a polling station on 10 June. We have listened to the Government's detailed description on the proposed supported delivery points and we thank the Minister for the extra detail spelt out in the policy paper on pages 12 and 13.
We are happy in principle with the current proposals. We have been told by the Government that,
"at a supported delivery point it will be possible to return a completed ballot paper; complete a ballot paper in a private area—with some form of assistance if required; and view the explanatory literature about the elections".
Our concerns focus on how many SDPs will be provided. In Committee we specified in an amendment that every local government ward in each region piloting the elections should have a facility for posting a ballot form in person on the main day of polling. We have had a rethink after reading the Minister's response to that amendment and the subsequent comments of other noble Lords during the debate. Somehow we wish to channel the discretion of the electoral administrators in the number of delivery points that there should be in each local government area.
We know that at least one SDP will be provided in each principal local government area, but with the ability for electoral administrators to provide more at their discretion. That is intended to cover those local government areas where transport links are poor

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or the area is particularly large. As the noble Lord, Lord Goodhart, pointed out perceptively in Committee,
"it is not very likely that local authorities will incur the expense of doing that".—[Official Report, 26/1/04; col. GC46.]
It is further emphasised by the comments in the policy paper on page 13:
"In considering the number and opening hours of delivery points, electoral administrators will need to take into account that delivery points in the local government all-postal pilots were only used by a very small minority of the electorate … and that a strong case will need to be made before the costs of additional delivery points are paid".
I fear that it is unlikely that such a "strong case" will be made and that there may be failure by local authorities to exercise that discretion to provide extra delivery points.
Will the Minister comment on that discretion? Is there any recourse to demand more than one delivery point in particular local government areas? Can the Minister clarify the idea behind the comment in the policy paper that, at least,
"one SDP will be open in each local authority area on the day of the poll"?
If a number of SDPs were made available after ballot papers were sent out, would not confusion be caused if only one was available on polling day?
The amendment would place an obligation on electoral administrators to make sure that all voters in the pilot elections had "easy access" to a delivery point. That may be a subjective turn of phrase, but it makes the point that electoral administrators have a responsibility to ensure that there are sufficient points. It would then be possible under Clause 4 for the Electoral Commission to examine whether that was the case and if not, why not. That would focus the efforts of the electoral administrators in each local government area to examine properly the convenience of the location of the delivery points—and thereby the convenience for the electorate. I beg to move.
Lord Rennard: My Lords, the supported delivery points are important and will be of assistance to a number of voters. Lack of privacy is among the concerns that we have had about people voting by post. In some cases people might prefer to enjoy the spirit of going along to the polling station and perhaps feeling that they can vote in privacy without other members of the household seeing how they are casting their vote. The problem with the amendment is over how one defines "easy access".
I have already made my own representations about the order, with some suggestions that may be helpful. Providing one supported delivery point in each council area may not be nearly sufficient. For example, that would mean that if there was a pilot in Manchester there would be only one supported delivery point in the whole city. Perhaps in Newcastle, where we now think that the proposals will happen, the appropriate number of SDPs may be one per local government ward. In a principal local authority the order could say that there should be one special delivery point per local
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government ward. Beyond that we might leave the decision to the returning officer's discretion, but at least it would provide more guidance on the number of points that would be appropriate.
Lord Filkin: My Lords, this is again one of those classic debates that we have, whichever party is in government, about the degree to which one specifies the means as well as the ends. The House will be aware of our broad position on the matter—that a balance has to be struck between ensuring that at least one supported delivery point is provided in each principal local government area and giving discretion to electoral administrators to provide more when they believe that that is sensible and desirable.
Clearly we are talking about all-postal ballots, not dual running. We are not talking about having both, but at what level we need to have a facility for those who wish physically to cast a vote in person, for any reason, or to vote late on the last day—or for any other reason. It is germane that extremely limited use has been made of supported delivery points in previous pilots. Our evidence from the survey has been that the average was that about 2 per cent of electors used a supported delivery point. The highest case was in Darlington, where 3.7 per cent of electors chose to use the SDP. It is particularly interesting that there has been no correlation between the number of SDPs provided and the number of people who used them, which is slightly counter-intuitive.
In Guildford, four delivery points were provided in a previous local government pilot postal election and 2.2 per cent of electors chose to use them. By comparison, in Gateshead 16 delivery points were provided, yet the number of electors who chose to use them remained at just 2.2 per cent. In Doncaster, 21 delivery points were used by only 1.93 per cent. That is a variation which shows that while we are right to say that such a facilities must be provided, it is hardly the most persuasive case for the Government to prescribe how many should be set up.
I shall take on board the issue raised by the noble Baroness, Lady Hanham, concerning point 10.4 of the guidance. I believe that we need to reflect on whether confusion arises as a result of some SDPs being open on the day and some not. I do not wish to raise excitement on that point but, if a local authority has more than one SDP, we may need to reflect on the level of burden involved in keeping it open on the day rather than shutting it beforehand. However, perhaps I may reflect on that matter without giving a commitment.
At heart, we feel that responsibility for deciding on the level of additional SDPs to be provided should be placed on returning officers. I do not believe that we can easily specify that with a rule from government. Certainly, as I believe I signalled at earlier stages to the noble Lord, Lord Rennard, it would be very burdensome to specify that there should be one for every electoral ward. For those reasons, I hope that, at least for now, the noble Baroness will be minded to withdraw the amendment.
6.30 p.m.
Baroness Hanham: My Lords, I thank the Minister very much. I want to question one figure. With regard to the pilot that has already taken place, did he refer to no more than 2 or 3 per cent of the electorate or 2 or 3 per cent of those voting? We really need to know the answer to that.
Lord Filkin: My Lords, the noble Baroness's hearing was as acute as ever. I referred to the electorate entitled to vote. Therefore, the proportion of those who voted would obviously be higher.
Baroness Hanham: My Lords, I believe that that is slightly more significant. If there is a 30 per cent turnout and one or two in 30 voters use the delivery point, that amounts to many more people than I believe was being suggested or than the figure which was sliding under the radar as the Minister was talking.
Lord Filkin: My Lords, the noble Baroness is right that it makes a difference but it is not a massive difference. We are talking about 2 per cent of the electorate who use the SDPs and about 4 per cent of those casting votes. Therefore, it makes a difference but we are still talking about very small proportions.
Baroness Hanham: My Lords, I shall not trade mathematics with the Minister across the Table. However, I calculate that, with a turnout of 30 per cent, about 6 per cent of voters would use the SDPs. I believe that shows that there is probably sufficient demand to ensure more than one SDP in any given local government area.
I also believe that one should be careful about where the supported delivery points are placed. In some areas, people will have to travel a long way to use them. They need to be as local as they can be to a substantial part of the electorate—I say "electorate" and not necessarily those voting.
I shall not push this matter further but I believe that the point must be understood. We must stop using the word "electorate" in terms of these percentages and revert to talking about the percentage of those who vote because that presents an entirely different picture. For the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker: My Lords, in calling Amendment No. 11, I must inform your Lordships that, if it is agreed to, I cannot call Amendments Nos. 12 and 13.
Lord Norton of Louth Lord Norton of Louth moved Amendment No. 11:
Page 2, line 15, leave out subsections (4) to (6).
The noble Lord said: My Lords, this amendment stems from the discussion in Committee on clause stand part. On that occasion I raised the issue of whether or not providing polling progress information to political parties, as required under subsection (4), was compatible with the European convention.
The Minister will be aware that the Electoral Commission sought counsel's opinion on the provision to the parties of a marked register. The advice was that disclosing information in the way intended altered the balance between the party and the elector to the extent that it might constitute an invasion of privacy. The provision may thus amount to a disproportionate infringement of Article 8 and/or Article 3 of Protocol I of the convention.
I appreciate that the Government have taken advice. The noble Lord, Lord Filkin, included some details in his letter to my noble friend Lady Hanham on 6 February. That advice is that postal voting is compatible with the convention. I have no difficulty with that. The issue here is not postal voting but the provision to political parties of a marked register. The issue is specific and independent of the method of voting. Indeed, the opinion provided to the Electoral Commission raises a question about the post-election accessibility of a marked register under the existing arrangements.
The nub of the problem can be put very briefly. Under the traditional method of voting—voting in person at a polling booth—a voter can refuse to disclose his or her identity to party tellers standing outside the polling booth. Under the provisions of this clause, the voters have no right to withhold their identity. The information is disclosed by virtue of subsection (4). Electors could, of course, opt to cast a ballot in person at an SDP on polling day, but that does not solve the problem: it will already have been disclosed to the parties that they have not voted.
At Second Reading, the noble Lord, Lord Filkin, suggested that voting is a public act. I appreciate that point. However, as I pointed out in Committee, if postal voting is a public act, then so, too, is voting in person at a polling booth. The rights exercised by voters must be the same in both situations.
There is therefore a problem. I fully appreciate why this provision was introduced. I recognise the convenience to political parties of acquiring such information in fulfilling their vital role in the electoral process. We should be doing what we can to assist political parties as essential actors in the political process. However, doing so in this way may fall foul of the provisions of the convention.
The solution, as the advice given to the Electoral Commission indicates, is either to prohibit access to the marked register before the close of poll or to introduce safeguards. In Committee, the noble Lord, Lord Greaves, wondered why the register was marked in advance of polling day. I think it would be helpful to know why this practice has been introduced. Prohibiting access would be one solution; not recording who has voted prior to polling day would, of course, ensure that such access was impossible. In terms of safeguards, one option is to provide for an opt-out for those who do not wish to be solicited by political parties.
I tend to go for the clean option, as I did when we discussed the sale of the electoral register to commercial concerns. The noble Lord, Lord Bassam

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of Brighton, may have many recollections of our debates on that topic. I favoured banning its sale. Instead, we ended up with the somewhat messy option of an opt-out. If we are to go down the route of providing polling progress information, I fear we shall end up with another opt-out provision.
However, providing for such an opt-out will be difficult in relation to the June elections. It is too late for electors to indicate an opt-out preference on the electoral registration form. I suppose that it might just be possible to have an opt-out provision for those elections by giving electors the right to inform the electoral registration officer that their names are to be annotated in the register to show that whether or not they have voted is not to be disclosed to the parties, although the annotation would be. That might just meet the point but it would require amendments to the Bill.
In short, the provision for providing polling progress information is potentially flawed. I believe that the safest course of action, which would not undermine the purpose of the Bill, would be to remove this particular provision. As I say, I appreciate why it was introduced but I think that, having been put in, the wisest course may be to take it out. I beg to move.
Lord Rennard: My Lords, a number of our debates have dwelt on the issue of turnout and have brought up the controversy about whether or not to have more postal voting in order to improve turnout. Here, we are dealing with a measure which may or may not assist political parties in encouraging turnout in the elections. There is something of an irony in that. If we are trying to encourage participation in the democratic process, on balance I feel that the parties must have that information if they are to encourage people to participate and send back their votes.
I note the concerns of the noble Lord, Lord Norton of Louth, in relation to privacy. However, it seems to me that many people are unaware that the list of those who have voted in a normal public election at a polling station is made available to the parties afterwards. That may not be commonly known, but if that list is available to the parties some time after the election, I do not see why there should be a problem in making available to the parties, before postal voting takes place in a pilot, the list of the people who have voted thus far so that they can chase up those who have not voted.
Compared with information on polling day, the noble Lord, Lord Norton, refers to how people may not choose to give to a party teller at the polling station their voting number or their address. But short of wearing a disguise, many people are actually recognised at the polling station when they go to vote. If they walk into a polling station in the normal election it is known whether they have voted and therefore someone has noted that they have not been so far in the day and they may get a call from the party at a later stage on polling day asking them to vote.
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A number of safeguards may be necessary. I am concerned about how we might protect privacy. It seems very important that the parties provided with this information treat it with the same degree of confidentiality as they do the electoral register. Three or four years ago we added safeguards to the Political Parties, Elections and Referendums Act to prevent commercial organisations acquiring the electoral register. A coach and horses would be driven through those provisions if anybody was able to get hold of a list of who has voted by post so far, who has not, and make use of those lists. Safeguards must be built in. It is generally assumed that the parties will not pass this information on: that is a safeguard that voters probably generally need to have.
Lord Greaves: My Lords, I should like to add a point to what my noble friend has just said. The marked register in a normal polling station election is not available to political parties. It is available to anybody who wants to avail themselves of that facility. They may be representing political parties on 99 per cent of occasions, but anybody can inspect the marked register and obtain copies of it; not all candidates belong to political parties.
There is a crucial issue of principle here as to whether the act of voting is and should be a private act. I argue that it is not a private act; it should not be a private act, and if it ever became a private act that would be another blow to the integrity of the ballot.
Before the Ballot Act 1872, you had to turn up in person to vote and declare how you were voting. Either you declared it on the hustings or it was written in a register, which was then published. The ballot was not secret. But the second part of the integrity of the ballot, in addition to secrecy, is that the person voting is the person to whom the vote is allocated, who appears on the electoral register and who is entitled to cast that vote. Unless a list is available, at least after the election, of who actually voted, it is impossible to check whether fraud or personation took place, whether somebody tried to rig the election, or whether an individual tried to cast a vote, for whatever reason, which he was not entitled to cast.
All the talk of the Human Rights Act and so on interfering with the process is potentially disastrous. It is absolutely essential once the election has taken place that we can find out who purported to vote. If you cannot do that there is no way you can start making complaints and no way that you can really investigate close elections that might have been rigged in some way.
The issue here is that on a normal polling day, at a polling station, a political party is perfectly entitled to appoint polling agents who are entitled to keep their own marked register while they sit inside the polling station. So the political party itself, or rather the representative of a candidate at the election, is entitled at the close of poll at 9 p.m. or 10 p.m. to walk out with a marked register. What they are not entitled to do—and what is an election offence—is to tell people who has and has not voted during the hours of poll. That is why I am concerned that what is proposed for postal

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elections and what has happened in some of the postal elections so far is different from the practice in a polling station.
I am not saying which is right or wrong, although we have to think what we will all be doing during those two weeks after the postal votes are posted out and received by people. When I say "what we are all doing", perhaps I am not speaking for everybody in your Lordships' House, but I am certainly speaking for myself and I am sure for some of my noble friends. We will be chasing up those electors whom we believe were voting for us, and whom we believe have not returned their ballot papers. That is what we will spend a fortnight doing. It may be a foolish way to spend a fortnight but the Government want the polling day to be a fortnight and not a day, so what we do normally during the hours of polling on polling day we will do over two weeks—if we get all-postal elections in our areas. It is in that context that this issue has to be looked at.
On balance the Government are probably right to want to issue a list of who has voted at a particular stage, simply because if they do not a lot of people will be bothered by frantic politicians, not just for two or three hours in the evening of polling day, but for a fortnight, which is not good. There is a real problem here. The Government in the longer term—if all-postal ballots become more frequent and the marked register during the campaign becomes an accepted fact—must look at polling day legislation and see whether the rules on polling day ought to be changed and whether there is any good reason why who has voted during the day on polling day should continue to remain secret.
Baroness Hanham: My Lords, I was not going to intervene but this has stirred up my recollection of what the noble Lord, Lord Stoddart, said earlier. He gave a very graphic description of what would happen if all-postal votes became a generality. He said that there would he a disconnection between the candidates and the electorate. It is one of the reasons why, although we see some of the difficulties, we do think that it is important to have access to the list of people who have voted. It is absolutely clear that that does not mean a description of how they voted—they may have spoilt their ballot paper within the envelope—but the mere fact that they have voted means that candidates can concentrate on those who have not voted.
It may be that all electors will be thrilled to bits that nobody calls on them ever again—neither rings them up nor has a go at them, but it is not what our system allows for. As long as we have a party political system where candidates are trying to present their manifestos and themselves to the electorate then it seems perfectly proper that there is some way of knowing when and at what time people return their ballot papers, or whether they have returned them at a given stage. I see that the policy paper allows for that—it suggests that the political parties within each area should come to a
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conclusion with the electoral officer as to how they want that information to be presented. That seems fair and reasonable.
Lord Filkin: My Lords, there has been an extremely interesting debate on this amendment. We know why it is an issue. Strong representations were made by political parties in the other place that a marked register should be distributed during the period of the election campaign. That was in part for a party political reason but also for a good reason, that reason being that by so doing it was more likely that more people would be encouraged, assisted and persuaded to vote. The problem for the political parties is the fact that you can lobby and take someone to the polling station, but that does not necessarily mean that they will vote for you as a consequence. Nevertheless, there is a good intent which goes beyond party politics that sits beneath this and since this issue is above all about trying to increase the electorate's participation in elections it is in alignment with that central thrust.
What is interesting in what the noble Lord, Lord Norton, advanced is the question of ECHR compliance. I want to reflect on that point; I do not want to busk at the Dispatch Box on it. But if it were thought that the right to privacy might be infringed, one could well see that what was given as the advice on all-postal balloting would apply also; in other words, that it was balanced by the wider benefit of increasing the electoral turnover. Perhaps I may reflect on that and send a letter to the noble Lord before Third Reading, with a copy, as usual, to the Opposition Front Benches. Clearly, if we think that it is compliant I shall just set out in the letter why we consider it to be so.
The second issue raised by the noble Lord is whether, if there is a risk of infringement of privacy, there is a way around that which does not frustrate the legitimate ambition of the political parties to have a marked register. Essentially he asked whether it would be possible to have an opt-out at the time of the register which would replicate that which takes place outside a polling station; that is, when someone is asked "What is your name and have you voted?", for the person to be able to say, "No, I shan't tell you".
The noble Lord is right that it would be impossible to do that in time for the June election. However, perhaps we should reflect on that without implying that we shall concede the point. I believe that was the nub of the point raised; namely, whether there is a way which does not frustrate the ability of political parties to affect turn-out but which allows an elector to have privacy. For the reasons I have given, apart from promising to send the noble Lord a letter before Third Reading, I do not believe that we should accept the amendment. As stated by the noble Lords, Lord Rennard and Lord Greaves, there is a good reason for the marked register being issued to political parties. I believe that that outweighs the other interests advanced by the noble Lord, Lord Norton. With that explanation, I hope that he will be minded to withdraw the amendment.
Lord Norton of Louth: My Lords, perhaps I may begin by agreeing with the Minister that this has been

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an interesting albeit short debate which raised relevant points. I shall make three brief points in response. First, the noble Lord, Lord Rennard, is right; at the heart of this matter is the question of getting the balance right. The Minister recognised that in agreeing to reflect on this in the light of the convention. I very much welcome his comments in that regard.
Secondly, the noble Lords, Lord Rennard and Lord Greaves, raised important issues concerning access to the marked register, including the present arrangements, which take us beyond what is at the heart of my amendment. There is a much wider issue on which we should reflect in respect of that which is independent of the Bill.
Thirdly, nothing which was said undermines the provision of a safeguard, for example in the form of an opt-out. I appreciate that the Minister cannot make any commitment on that. As he said, in effect one is looking to the future, although I suspect very much that we shall end up at that point. However, I am grateful for what the Minister said and for what he has promised to do. In the light of that I have no hesitation in begging leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkin Lord Filkin moved Amendments Nos. 12 to 19 en bloc:
: Page 2, line 15, leave out first "The" and insert "A"
Page 2, line 16, leave out "the election" and insert "a pilot election"
Page 2, line 26, leave out second "the" and insert "a"
Page 2, line 26, after "order" insert "relating to a pilot region"
Page 2, line 27, leave out "a region specified in the main order" and insert "the region"
Page 2, line 30, leave out "each region specified in the main order" and insert "the region"
Page 2, line 32, leave out first "the" and insert "a"
Page 2, line 34, leave out subsection (10) and insert—
"( ) The Secretary of State must not make a pilot order unless he first consults the Electoral Commission.
( ) It is immaterial whether such consultation occurs before or after the passing of this Act."
The noble Lord said: My Lords, Amendments Nos.12 to 19 are consequential to Amendment No. 3 tabled by the noble Baroness, Lady Hanham, which amends government Amendment No. 2. I beg to move.
On Question, amendments agreed to.
Baroness Hanham Baroness Hanham moved Amendment No. 20:
After Clause 2, insert the following new clause—
"ADDITIONAL PROVISIONS IN RESPECT OF POSTAL VOTING

(1) The Secretary of State may not make any order under section 2 unless the chief executive of each of the postal authorities involved has made a written statement that he has made alternative arrangements for the delivery and return of postal ballots in the event of a postal service being suspended for whatever reason.

(2) The Secretary of State must place a copy of each statement made in pursuance of subsection (1) in the Library of the House of Commons not less than two months before the election."

The noble Baroness said: My Lords, we return to the technicalities of postal voting in terms of the role of the Royal Mail. We tabled this amendment in Committee to try to provide an assurance from the Royal Mail that all necessary provisions had been undertaken in relation to all-postal ballots.
At Second Reading a lot of scepticism was voiced by noble Lords from all sides of the House and in another place about the ability of the Royal Mail to handle an all-postal vote on such a large scale. Subsequently, we have seen the policy paper which I understand was the result of talks between the Royal Mail and the Electoral Commission. I was heartened initially by the amount of detail in the policy paper on the formatting of envelopes containing ballots and how the return process will work with special envelopes, barcodes and postcodes to assist the Royal Mail for easy identification during the sorting process. That helped to alleviate some of my concern over the possibility of ballot papers getting lost in the post.
However, I still have considerable unease about the contingency plans were there to be a strike or some other disruption to the Royal Mail service. As I understand the policy paper, the process would be to find any electoral post within the system and return that to the electoral administrators and then to seal up post boxes and provide instead ordinary delivery points. It is that second stage on which I wish to probe the Minister. We hear that the returning officers may use their discretion to employ ordinary delivery points (ODPs); that such ODPs must provide a delivery/drop off/ballot box that is securely stored and monitored but without an area to complete ballot papers in private or staff to provide assistance. Moreover, the way in which these ODPs are to be publicised is unclear as are the staffing provisions. Can the Minister shed any more light on those provisions? I am concerned primarily about the vagueness of whether an ODP is to be a delivery or drop-off point or a ballot box. Which is it to be? Also, where will they be located? Will there be the same amount as conventional postboxes? How will they be advertised?
I am afraid to say that the contingency plans are not sufficient to assure me at present that the Royal Mail can guarantee delivery of votes in the case of a strike or other disruption. I have just seen the letter which was sent to the Minister by the Royal Mail and I am bound to say that it is about as woolly as I would not have wished. It is not at all clear. It simply states that the Post Office has contingency arrangements and that it will endeavour to try to deliver all the postal ballots to the returning officer.
Trying and endeavouring to deliver ballot papers simply is not good enough. If people vote—unless they vote late and that is their fault—they expect their ballot papers to be with the returning officer. We all know that from time to time there are localised skirmish strikes. That happens in all kinds of industries. It is crucial that the Royal Mail has a robust provision for dealing with that. I can see that it may not want particularly to say what that is because that would give the hand away. However, we have to move the Royal Mail from a spirit of "endeavour" to a spirit of guarantee. The letter which I saw was completely insufficient in that regard. What is even more salient is that it was originally sent to the

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Government in December and could have been made available to us at a far earlier stage so that we could discuss it in detail.
I remain extremely concerned about the contingency provisions of the Royal Mail to deliver in the face of a crisis. We have amended the Bill to cover two circumstances so we are probably reducing the area of concern and impact. However, this must not go wrong. If the Royal Mail is to do this job, it must be in a position to ensure that every ballot paper posted on time is returned to the returning officer. After all, that is what happens when people put their votes into a ballot box; they are guaranteed to arrive. We should not expect any less from a postal ballot. I beg to move.
7 p.m.
Lord Filkin: My Lords, I am happy to return to this issue which we discussed in Committee. First, one should mark that we are talking about low risk. That does not mean that there is no risk, but we are talking about a low-risk situation of industrial action either nationwide or in some of the returning areas concerned in the June pilot. Clearly, there is currently a risk—it does not happen that often but it is perfectly conceivable—that local authority staff could strike. That, in itself, could cause problems for an election. Such things have happened.
We have sought to ensure that, for what are low risks, contingency plans are put in place which are as robust as possible. In Grand Committee we passed on a commitment by Adam Crozier, the chief executive of the Royal Mail, to write giving his assurance that robust contingency plans are being put in place for postal arrangements. That letter, as has been signalled by the noble Baroness, Lady Hanham, has now been copied, I trust, to the Front Benches.
This issue is clearly one of credibility for the Royal Mail. One could not have an issue more damaging to its reputation if it fails to deliver the election in these regions. That consequence would be such a contradiction of our democratic process. The Royal Mail is well seized of the importance of fulfilling the expectations. We are confident that it has treated the issue with the level of management and chief executive and chairman attention that one would expect in the situation.
Local plans will be drawn up for every local authority area. The plans will include the local returning officer, the local Royal Mail management and Royal Mail customer operations managers to address how they would deal with risk in those situations.
All such plans, as the noble Baroness, Lady Hanham, said, will not be publicised—for reasons I think she respects—but they will be quality assured by the central Royal Mail team to see whether they look robust. There will be a further oversight of the process by a project board, which includes senior DCA and ODPM officials and other senior stakeholders. So I believe that we, the Royal Mail and the returning officers are going a long way to try to ensure that there are very strong contingency plans in the event of industrial action.
The noble Baroness raised a number of points about ordinary delivery points, on which I may have to write to her. But I would expect that the ordinary delivery points
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would be mostly dropping-off points where one can post one's ballot paper rather than being like SDPs where, in the usual case, one could go and vote. I am sure that that would be the likelihood, but I should like to give the noble Baroness more information on that point and will do so via a letter.
We have sought, both by the processes that we have put in place prior to Committee and the Bill and by giving a fairly public commitment from the chief executive of Royal Mail about how seriously this issue is being taken, to demonstrate that there is some very serious contingency planning, albeit for a small risk. While I may not have totally satisfied the noble Baroness, Lady Hanham, on this issue, I hope that she recognises that it is treated extremely seriously by returning officers and the Royal Mail.
Baroness Hanham: I thank the Minister for that reply. There is not much point in taking the matter any further at this stage. I shall obviously want to re-read the letter from the Royal Mail, which I saw very briefly. I am still slightly concerned that the facilities are not robust enough, but we shall have to look at that further. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Electoral Commission report]:
Lord Filkin Lord Filkin moved Amendment No. 21:
Page 3, line 3, leave out subsection (1) and insert—
"(1) After a pilot election has been held, the Electoral Commission must prepare a report in relation to it."
The noble Lord said: Amendment No. 21 is another consequential amendment. We spoke to it previously. I beg to move.
On Question, amendment agreed to.
The Deputy Speaker (Baroness Fookes): If Amendment No. 22 is passed, I cannot call Amendment No. 23 by reason of pre-emption.
Lord Filkin Lord Filkin moved Amendment No. 22:
Page 3, line 8, leave out subsection (2) and insert—
"( ) For the purposes of subsection (1) the Electoral Commission must consult the council for every county and district in the region in which the pilot election was held."
The noble Lord said: Government Amendment No. 22 is essentially an alternative drafting of Amendment No. 23, tabled by the noble Baroness, Lady Hanham, the noble Earl, Lord Attlee and the noble Lord, Lord Norton of Louth. It would ensure that, when producing its report, the Electoral Commission had a duty to consult all district or county councils in a pilot region. The discretion with regard to other tiers of local government would remain in place, although this will now be implicit rather than explicitly stated.
An amendment was tabled in Grand Committee that would have compelled the Electoral Commission to consult all local authorities in a pilot region. That was resisted on the basis that in some areas it would involve consulting perhaps hundreds and hundreds of parish councils. I am sure that that was not the intent behind it. Therefore, we have tabled this amendment

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to address the issue and to put it beyond doubt that the obligation will be to consult principal authorities. I beg to move.
Baroness Hanham: My Lords, I merely thank the Minister for the amendment. It takes account almost entirely of the amendment that we moved in Grand Committee and, indeed, that which we have put down today as Amendment No. 23. It is a sensible outcome. Many of the other relevant authorities of course are within the local pilot areas, but I am satisfied that sufficient account will be taken of everyone who has taken part in the pilot to ensure that we get a report that matches up to what we would expect and that gives us an opportunity to see for the future how things have worked. Having said that, I clearly will not take Amendment No. 23 any further because I will not be allowed to.
On Question, amendment agreed to.
[Amendment No. 23 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 24:
Page 3. line 16, leave out "elections" and insert "election"
On Question, amendment agreed to.
Earl Attlee Earl Attlee moved Amendment No. 25:
Page 3. line 18, at end insert—
"( ) making arrangements for the inspection of a sample of ballot papers to ascertain whether there is evidence (even where no allegation has been made to that effect) of personation or other electoral offences or malpractice"
The noble Earl said: In moving Amendment No. 25, I shall speak also to Amendment No. 33. We decided to return to this amendment, which we debated during Grand Committee. At that stage we received some positive answers from the Minister, but nothing that we believed was sufficient to set our minds at ease concerning the issues of fraud and malpractice.
The greater potential for electoral fraud and malpractice which all-postal voting creates is evident to noble Lords. We have conceded that, despite these potential abuses, it is worthwhile trying out a system of all-postal voting in European parliamentary and local government elections.
However, it would be irresponsible to do so without trying to set out as many safeguards as possible on the face of the Bill and in the pilot order to try to minimise such abuses. That is one issue that the Government are indeed taking seriously. We can see from the policy paper that they have put forward a number of suggestions about how fraud can be countered. These include extending the penalties for personation, providing security at SDPs and in the processing of ballots and so on.
Our question, however, is how we know whether this is successful in stopping electoral malpractice. What of the coercion, intimidation or selling of votes that we know occasionally happens? What of the shared households where ballot papers could simply
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be scooped up and returned by one person? We need not only to guard against that sort of behaviour, but also to know how prevalent it was in the election.
Our amendment picks up that point. It focuses on Clause 4—the report that the Electoral Commission draws up on how the pilot went. There are a number of criteria, which explain who must be consulted and what kind of things should be contained in the report. Subsection (3) obliges the local authorities in the region to assist the commission in preparing its report. Subsection (4) explains that this assistance may include asking the electors their views on the administration of the elections. Paragraph (b) refers to,
"reporting to the Commission allegations of personation and of other electoral offences or malpractice".
Our amendment would insert a further manner of assistance as paragraph (c):
"making arrangements for the inspection of a sample of ballot papers to ascertain whether there is evidence (even where no allegation has been made to that effect) of personation or other electoral offences or malpractice".
The basis for our amendment is straightforward. We do not think that the local authority should merely report allegations which it has received about personation, but it should be obliged to do spot checks to ascertain whether malpractice has taken place.
The process should be proactive, not merely a case of reacting to allegations. That is clearly a vital part in collating evidence to see whether the all-postal voting system works on balance. It is designed to encourage voter participation. But if that is at the expense of a far greater increase in malpractice, either more protections need to be put in place or we need to think again about using it as a system for elections.
Research has to be done into whether the type of electoral malpractice that I mentioned earlier—the bullying, intimidation, vote buying or vote usurpation in houses in multiple occupation—is taking place. Anyone who is a victim of such malpractice is probably unlikely to report it. We need a duty on the local electoral administrators to go out into the community and ask a random sample of those who have voted whether they were party to any malpractice.
The policy paper which the Government have put out accepts the rationale behind our amendments. Paragraph 14.3 on page 16 mentions further provisions to tackle fraud which, we learn,
"may be included within a pilot order or may be provided in the discretion of the RROs".
One of those, paragraph 14.3.4, mentions,
"checks with a sample of people marked as having returned a ballot paper to check that they did send in the papers and were not coerced in the process of completing and returning them".
It appears that the Government can see the sense in our proposed amendment. Many of our concerns are covered by their Amendment No. 34. Our only difference is that we make it an explicit duty of every local authority that co-operates with the Electoral Commission in gathering the evidence on the success or otherwise of the election.
Spot checks or random sampling is the only means by which it is possible to get any representative idea of how common electoral malpractice is, or is not.
Amendment No. 33 deals with the issue of secrecy. We have had several discussions during the debate today and in Grand Committee on the problems of secrecy in all-postal voting. I will not rehearse them all again now, but will outline where our thinking has got to since our discussions in Grand Committee. As a newcomer to this area of policy, the contribution during Committee of the noble Lord, Lord Greaves, was very helpful to me in understanding how important secrecy in the ballot is.
We know that the Government are taking this issue very seriously. I was gladdened to see several references to secrecy in paragraph 14 of the policy paper. Paragraph 14.3.5 mentions the,
"inclusion of secrecy warnings on voting and proxy voting literature".
Paragraph 14.3.7 proposes,
"extending the scope of secrecy rules to cover all postal provisions to require those serving in a delivery place, and those providing assistance, and observers to abide by the secrecy rules".
We are pleased to see that these are both intended to be mandatory provisions.
While these proposals on secrecy are a positive step forward, we still believe that there is a need for something more specific in the Bill. We are therefore grateful for the last line of government Amendment No. 34, which will require the Electoral Commission to include in its report an assessment of whether the piloted system undermined,
"the secrecy of the ballot".
Given the many ECHR concerns in relation to secrecy which were discussed in Committee and today, it is vital that secrecy is included as a separate point for consideration.
Liberal Democrat Amendment No. 35 lies within this group. That would require the Electoral Commission to carry out something like a market research exercise after the elections to research whether personation or electoral offences had taken place. It may be necessary because some might feel that such research techniques might contravene the principle of secrecy without legislative authority.
From the Minister's comments at cols. GC208–09 of Hansard for 29 January, the Government may concede on this amendment now it has been revised since Committee stage.
We support the amendment entirely. I beg to move.
7.15 pm
Lord Goodhart: My Lords, may I start by returning the compliment to the noble Earl, Lord Attlee, in saying that while he supports our Amendment No. 35, we equally support his Amendments Nos. 25 and 33.
It is important that the Electoral Commission should look carefully—and in as much detail as possible—into the question of possible personation and electoral fraud in all-postal voting regions. As we have made clear—particularly my noble friend Lord Greaves—this is potentially a very serious problem indeed. So far, the Electoral Commission has relied to a large extent on the
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evidence of complaints about fraud in the course of postal voting which have been submitted to the authorities. The Electoral Commission should be more proactive than that, and not only ask electors about their attitudes to the use of postal voting—which they have already done—but ask questions designed to extract their views and knowledge about the incidence of fraud. They also need to take into account any complaints and investigations by the police. It is essential that the Electoral Commission should do that.
I recognise that the second subsection that is to be introduced by Amendment No.34 goes a long way to meeting the issues raised by Amendment No. 35. I hope that the Government expect and will request the commission to use a sampling by polling a representative group of electors as one of the methods by which they will aim to achieve that objective. I appreciate that they cannot give orders to the Electoral Commission as it is an independent public body.
Lord Norton of Louth: My Lords, I find merit in every amendment in the grouping.
I suspect that the Minister will argue that Amendment No. 34 subsumes the other amendments that are being discussed. I see merit in it and welcome its provisions. There is a distinction to be drawn between the government amendment and Amendments Nos. 25 and 35. As the noble Lord, Lord Goodhart, was indicating, they impose a requirement on the Electoral Commission to be proactive. That was the point developed by the noble Lord, Lord Rennard, in Committee when he moved an amendment to that effect. Today, he has brought forward an amendment that meets points that were raised in Committee, both by myself and by the noble Lord, Lord Evans of Temple Guiting.
The thrust of Amendment No. 35 is very important in requiring the commission to be proactive, and I welcome the changes that have been made to it. I support them. If the matter is left too much to discretion, there is a danger that not enough work will be undertaken to find out if there has been any fraud or any undermining the secrecy of the ballot. In the context of these pilots that is extra ordinarily important.
Lord Filkin: My Lords, that is an important issue that we have referred to a number of times, and have come back to several times during our consideration in Grand Committee.
In Grand Committee I signalled that I was sympathetic to the view that as one moves from smaller-scale piloting to larger-scale—if there were the potential for all other tests to be met—then that issue is of considerable importance. I signalled my sympathy. It is not just a matter of looking at reports of malpractice, as that would, by definition, identify only what had been reported and would not identify malpractices that had taken place, but for whatever malign reason had not been reported because they were not known, or for any other reason.

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I said that it was important that the Electoral Commission should find an appropriate mechanism for identifying what was happening, as well as what was reported. The Bill does that. It provides that the Electoral Commission must assess the extent to which the pilots affected personation and other offences and malpractices. In order to fulfil its duties without us telling it how to go about its job, the commission will have to collect information from returning officers, local authorities and electors. It will have to talk to the police and the Crown Prosecution Service, without in any way impinging on the responsibilities of the police to investigate malpractice under the Act.
The issue of spot checks of ballot papers was raised. Such checks do not take place in traditional arrangements, for the important reason that the secrecy of the ballot must be maintained. It is right and proper that documents such as security statements may be inspected, but the ballot papers are sealed after an election and are inspected only on the order of a court, if the court has found that there is good reason to do so.
As we said in Committee, the Electoral Commission can attend the verification of ballot papers, the counting of votes and proceedings on opening of postal ballot papers. Such provisions will remain in the pilots. In addition, the commission will report on specific issues of fraud, if it identifies causes to do so. The Bill obliges it to assess the extent to which postal voting affects the incidence of personation or other electoral offences. That is exactly what is being requested.
The commission would not wish to be put in the position of looking at ballot papers after the close of the poll, and I do not think that local authorities would either. Currently, all such investigations are done under the supervision of the court. On a related issue, the noble Lord, Lord Greaves, asked in Grand Committee whether the time for which electoral materials were kept would be extended to match the extension of time for prosecutions under Clause 7. He was right to do so. I can confirm that that is the case and will be provided for in the pilot order.
Government Amendments Nos. 34 and 38 are a response to Amendment No. 35, tabled by the noble Lords, Lord Rennard and Lord Goodhart, the noble Earl, Lord Attlee, and the noble Baroness, Lady Hanham. They seek to address some of the concerns expressed during our discussion of Amendment No. 7. As part of a wider assessment of whether pilots increase fraud or other offences, the amendments will ensure that the commission assesses whether electors feel that the pilot was secure from fraud and offered proper security. In that sense, we are looking at the perception of fraud. The amendments specifically allow the commission some discretion about how it proceeds. In 2003, MORI was commissioned. The government amendments will allow that to happen again and allow electors to be asked about their experiences and perceptions of all-postal voting in the pilots.
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We tabled Amendment No. 34 after reflecting on what was said in Committee. It has been suggested that the commission should do more than simply consider complaints, and I have signalled my sympathy for that view. However, we should leave details of how it will go about it to the commission. The other part of the amendment is a response to Amendment No. 7. We do not accept the case for Amendment No. 7, but the first part of Amendment No. 34 is on a related issue, and I hope that that will be recognised. The amendment is intended to ensure that the Electoral Commission reports on the number of ballot envelopes received after the close of poll.
Amendment No. 33, tabled by the noble Baroness, Lady Hanham, and the noble Earl, Lord Attlee, would require the commission to report on the extent to which the manner in which the elections were conducted undermined the secrecy of the ballot. As my noble friend Lord Evans of Temple Guiting said in Committee, the commission is already required by Clause 4(6)(c) to report on how the pilots affected the incidence of electoral offences or malpractices. That covers all electoral malpractices and offences. If there are breaches of secrecy even though no offence is committed or if there is no breach of secrecy but there is a perception that postal voting makes it more difficult to vote in privacy, it will be picked up by the opinion polling provided for by Amendments Nos. 34 and 38.
We think that we have struck the right balance by setting out a clear expectation that not only should the commission investigate reported malpractice or the perception of malpractice but it should also identify the reality of malpractice that might not have come to the surface. We would not want to go any further in telling the commission how to do its job.
The commission will set up a call centre to receive complaints and will refer to administrators any allegations of fraud. The CPS will provide channels for reporting matters of concern. The list of provisions and options open to administrators is included in the policy paper that was referred to earlier.
I hope that Amendments No. 25 will be withdrawn and the others not moved and that Amendments Nos. 34 and 38 will be supported.
Earl Attlee: My Lords, once again, I am grateful for the support of the noble Lord, Lord Goodhart.
Amendment No. 34 meets nearly all our concerns. Certainly, it has its attractions, as outlined by the Minister. I repeat that I am attracted to Amendment No. 35, which would give legal authority to market research, but the Government have moved a long way towards meeting our concerns, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkin Lord Filkin moved Amendment No. 26:
Page 3, line 19, leave out "orders made under sections 1 and 2" and insert "pilot order"
The noble Lord said: My Lords, these amendments are consequential to the previous amendment that we debated. I beg to move.
On Question, amendment agreed to.
Lord Filkin Lord Filkin moved Amendments Nos. 27 to 31:
Page 3, line 20. leave out from "which" to end of line 21 and insert "postal voting and provision made by the pilot order—"
Page 3, line 22, leave out "elections" and insert "election"
Page 3, line 23, leave out "elections" and insert "election"
Page 3, line 26, leave out "elections" and insert "election"
Page 3, line 28, leave out "elections" and insert "election"
On Question, amendments agreed to.
[Amendments Nos. 32 and 33 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 34:
Page 3, line 28, at end insert—
"( ) For the purposes of subsection (6)(a) the report must include a statement of the number of ballot papers which appear to the returning officer to have been delivered to him during the period of one week starting with the day after the date on which the poll closed.
( ) For the purposes of subsection (6)(c) the Commission must ascertain by such means as it thinks appropriate and report on the views of electors as to whether postal voting and provision made by the pilot order—

(a) provided sufficient safeguards against fraud;

(b) provided appropriate protection for the secrecy of the ballot."

The noble Lord said: My Lords, the amendment is consequential. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 35 and 36 not moved.]
Lord Filkin Lord Filkin moved Amendments Nos. 37 and 38:
Page 4, line 2, leave out subsection (10).
Page 4, line 2, at end insert—
"( ) The returning officer is the person who is described as such in the pilot order."
On Question, amendments agreed to.
Clause 5 [Revision of procedures in light of report]:
Lord Filkin Lord Filkin moved Amendment No. 39:
Page 4, line 13, leave out from "by" to "for" and insert "a pilot order'
On Question, amendment agreed to.
Clause 6 [Personation: arrestable offence]:
Lord Filkin Lord Filkin moved Amendments Nos. 40 to 43:
Page 4, line 22, leave out "In relation to England and Wales,"
Page 4, line 23, leave out "order under section 2" and insert "a pilot order"
Page 4, line 28, leave out subsection (2).
Page 4, line 33, leave out "Subsections (1) and (2) do" and insert "Subsection (1) does"
On Question, amendments agreed to.
Clause 7 [Time limit for prosecution of offences]:
Lord Filkin Lord Filkin moved Amendments Nos. 44 to 49:
Page 4, line 38, leave out "order under section 2" and insert "a pilot order"
Page 4, line 39, leave out "or (in Scotland) the sheriff"
Page 4, line 40, leave out "or he (as the case may be)"
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Page 4, line 40, leave out "appropriate application" and insert "application by a constable or Crown Prosecutor"
Page 5, line 3, leave out "or the sheriff (as the case may be)"
Page 5, line 8, leave out subsection (4).
On Question, amendments agreed to.
Clause 8 [Other elections, etc]:
Lord Filkin Lord Filkin moved Amendment No. 50:
Page 5, line 16, leave out "An order under section 1" and insert "A pilot order"
On Question, amendment agreed to.
Clause 9 [Interpretation]:
Lord Filkin Lord Filkin moved Amendments Nos. 51 to 55:
Page 5, line 26, leave out subsection (3) and insert—
"( ) A pilot order is an order made under section (Piloting conduct at European and local elections).
( ) Pilot region must be construed in accordance with section (Piloting conduct at European and local elections)(3)."
Page 5, line 33, leave out "in relation to England,"
Page 5, line 33, leave out "the Council of the Isles of Scilly"
Page 5, line 36, leave out paragraphs (b) and (c).
Page 5, line 40, at end insert—
"( ) Postal voting must be construed in accordance with section (Piloting conduct at European and local elections.)(4)."
On Question, amendments agreed to.
Clause 10 [Orders]:
Lord Filkin Lord Filkin moved Amendment No. 56:
Leave out Clause 10.
The noble Lord said: My Lords, I beg to move.
Baroness Hanham: My Lords, Amendment No. 56 will withdraw Clause 10 in its entirety. Clause 10 gives details about the laying of the orders before both Houses of Parliament. Noble Lords will forgive me if I am wrong, but I have not noticed that commitment being maintained by any other amendment.
I appreciate that we are now down to one order, but that order will contain the nuts and bolts of what is being proposed, and it seems inescapable that it must come for affirmative agreement by both Houses. The removal of Clause 10 will remove the possibility of an order coming to the House, or have I missed that somewhere?
Lord Filkin: My Lords, the noble Baroness gave me a Gypsy's warning, if I can use that expression respectfully, that she wanted to make that point. I shall write to her and to the noble Lords, Lord Rennard and Lord Goodhart, but my recollection is that our position is that there is no need for the resolution process that she talks about. The order will be such an administrative and technical one that we cannot see that it will require parliamentary scrutiny. That is part of the reason why we were keen to share the policy paper with the Front Benches. It has helped to inform scrutiny of the Bill, and it gives a clear signal of the direction in which we are moving.
The hour is late, however, so I shall write to the noble Baroness, Lady Hanham, setting out our argument. It will not give her an opportunity to come back on it, I realise, but I recollect that we felt that the

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second order had always been of such a technical nature that we could see no issues that required parliamentary scrutiny. I am busking on this, but I do not think that the statutory instrument committee marked it as requiring such scrutiny. That is correct.
Lord Goodhart: My Lords, is it not correct that the Delegated Powers Committee took the view that, in that case, it would not insist on a form of parliamentary procedure for the pilots order, not because it was unimportant but because it was assumed at that point that it applied only to two regions of the United Kingdom and only for one election? That order was to cease to have effect after 10 June. I think there is a strong case for using, at any rate, the negative procedure. I am not sure I would go quite as far as the noble Baroness, Lady Hanham, in saying that it would be appropriate here to have the affirmative procedure, but perhaps that could be considered at Third Reading.
7.30 p.m.
Lord Filkin: My Lords, the noble Lord, Lord Goodhart, is correct that the Delegated Powers and Regulatory Reform Committee did not think there was a need for parliamentary scrutiny, partly, I think, because the Bill is a one-off event. That is the normal situation. This Bill, despite the effort we have put into it, ceases to have effect after the June elections. It falls away, so what happens subsequently is open.
Given that point, buttressed by what the Delegated Powers and Regulatory Reform Committee said, we do not think there is a need for parliamentary scrutiny of these issues. Whether anything like that should happen in the future—whether there should be parliamentary scrutiny of future orders, were there to be further pilot orders—is an issue that will come back to the House. Therefore, I do not think we are at risk in not having parliamentary scrutiny on this.
I hope that we have demonstrated by the way in which we have taken the Bill forward that there has been a wish to try to share as much as we can with Opposition Front Benches. I will give a commitment that we will seek to continue to do that. Although there will not be a parliamentary process, I will seek to ensure that we try to share information with Opposition Front Benches so that they are aware of what is happening on these issues as we move forward on the electoral pilot. It is not simply an issue of the confidence of Parliament about the Bill; it is also important that political parties understand what is happening on the implementation of the pilots. Therefore, I give that commitment.
Baroness Hanham: My Lords, I have a vague recollection of the noble Lord, Lord Evans, waving a pile of papers at us in Committee and asking whether we really wanted to have all this for all the pilot areas. I am bound to say now that I do not, but an example of what the pilot order will look like would be extremely helpful.
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In order for us to be able to make any progress on that if we think something in it has not been adequately dealt with, it would, at the very least, be sensible to suggest that at Third Reading we move an amendment to put it in for a negative order. As the noble Lord, Lord Goodhart, says, that gives us a chance then to ask for the House to see it if there are omissions or additions about which we have concerns.
On Question, amendment agreed to.
Clause 12 [Extent]:
Lord Filkin Lord Filkin moved Amendment No. 57:
Page 6, line 29, after "to" insert "Scotland or"
On Question, amendment agreed to.
The Schedule [Other elections, etc]:
Lord Filkin Lord Filkin moved Amendment No. 58:
Page 7, line 7, leave out from third "a" to "must" in line 8 and insert "pilot region"
On Question, amendment agreed to.
The Deputy Speaker: My Lords, I remind your Lordships that if Amendment No. 59 is agreed to, I cannot call Amendments Nos. 60 or 61 because of pre-emption.
Lord Filkin Lord Filkin moved Amendment No. 59:
Page 7, line 11, leave Out from "2004" to end of line 13.
The noble Lord said: My Lords, I will seek to keep this relatively succinct. Included in the schedule to the Bill is a provision preventing Westminster by-elections as well as other elections, by-elections and referendums taking place within a window of time around the European parliamentary election in pilot regions. The Bill states that no Westminster by-election is to take place either on the same day as the European parliamentary elections or at any time within three weeks before or after that date. The intention is that undue complexity and confusion is avoided for electoral administrators and the electorate.
The provision was raised as a concern by the Select Committee on the Constitution in its consideration of the Bill. It stated that it was aware of no direct precedent for the imposition of such restriction which would cause the electorate in the affected constituency to be without a representative in Parliament for longer than would otherwise be the case. This may be perceived as setting a precedent, with constitutional implications.
The Government tabled an identical amendment to Amendment No. 59 in Committee, but we could not reach unanimity, so it was withdrawn. This amendment would keep the current exclusion, but amend it, so that the excluded period is reduced to just the date of the European parliamentary election. We felt that that took on board the Constitution Committee's clear advice in this respect. The amendment, therefore, still prevents the by-election on the same day as the European parliamentary election and since elections are conventionally held on a Thursday, it would actually prevent by-elections during the entire week surrounding the European election. I hope that that is some, if not sufficient, comfort for the noble Lord, Lord Rennard.
The noble Lord argued forcefully in Committee that a longer period was necessary; Amendments Nos. 60 and 61 name a period of two weeks either side. I have set out why we think it is wise to keep the absolute prohibition at a minimum. However, at least for parliamentary by-elections, the relevant party Whip has the power, within limits, to determine when the election is called. One would expect all parties, without there being a statutory prohibition, apart from one day, to be aware of the issues around the election in June. I say no more than that, but what we have said gives a window that is wider than one day. No doubt any Chief Whip of a party so affected would think long and hard about whether it was wise to test the comprehension of electoral administrators and the electorate by bringing them too proximate together.
I hope we have responded strongly and clearly to what the Select Committee on the Constitution said, while still making a nod in the direction of the proposals of the noble Lord, Lord Rennard. I beg to move.
Lord Rennard: My Lords, I shall also be very succinct, as I was rather less so in Committee. The Minister has been kind enough to reply to various points I made then. He has picked up the point that the timing of the parliamentary by-election lies, by convention, with the Chief Whip of the party whose member has died or resigned. I hope the noble Lord will take note of some of the points I made in Committee about whether a by-election should arise during that time.
I still foresee a degree of chaos in overlapping between a parliamentary by-election and a pilot with all-postal voting. The postal voting regulations will be so different between the two elections that people who might want to vote by post in a parliamentary by-election a week or two before or after the pilots for the European and local elections may be rather confused. I fear they may think they will be sent a postal vote automatically. I think it would be much more satisfactory to have a two-week gap on either side, rather than one week. It is only by convention that our elections are held on a Thursday—elections are occasionally held on a Wednesday or Friday.
I note the Minister's remark that these points should be considered by Chief Whips at the appropriate time. At least we will not have the complete confusion of two elections under two systems on the same day.
Lord Norton of Louth: My Lords, I rise to add my support, because I attached my name to government Amendment No. 59, and I welcome the fact that the Government have brought it forward. I support fully what the noble Lord, Lord Filkin, said.
As the noble Lord said, the Constitution Committee, in its report on the Bill, drew attention to this provision. The committee did not offer a judgment on the provision. The purpose of the report was to call it to the attention of the House because it raised an
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important issue of principle affecting a principal part of the constitution. We must be extremely wary about any provision that has the effect of limiting the rights of electors. There is the danger of a range of disparate provisions being introduced over time that have the effect of limiting the capacity of electors to choose a representative. I raised that matter recently in a different context—that of the prohibition of the dual mandate for members of the European Parliament, which constitutes a limitation on the freedom of choice of electors. Any provision that affects the rights of electors must be subject to the most rigorous scrutiny and it must prove not simply desirable or convenient but essential. The case has to he compelling.
I do not think that the case for banning parliamentary by-elections for a number of weeks either side of the June elections is compelling. Holding a parliamentary by-election within a week or so of the elections held by postal ballot may prove, as the noble Lord, Lord Rennard, indicated, an administrative nightmare. It may induce voter fatigue. I appreciate that. That recognition was at the heart of what the noble Lord, Lord Rennard, said in Committee. However, in practice, as is generally recognised—and the Minister has referred to it—the situation is not likely to arise. It would not be the end of the world were it to happen, but the chances of a seat becoming vacant between now and June—a seat falling within the territory of the European Parliamentary constituencies chosen for postal elections—and the party holding the seat opting for a Thursday just before or after the June elections are slim to say the least, as the Minister said.
However, I would rather run the risk of it happening than set a legislative precedent. I appreciate the point made in Committee by the noble Lord, Lord Rennard, that there are problems with the existing provisions for holding by-elections. That, though, is an argument for addressing those problems. It is not an argument for retaining this particular provision.
The Government are absolutely right to move this amendment. The Minister, the noble Lord, Lord Evans of Temple Guiting, put it forward in Grand Committee and I am very pleased that the Government are persisting with it today. It has my full support.
On Question, amendment agreed to.
[Amendments Nos. 60 and 61 not moved.]
Lord Filkin Lord Filkin moved Amendments Nos. 62 to 67:
Page 7, line 15, leave out paragraph 2.
Page 7, line 33, leave out from "a" to end of line 34 and insert "pilot region"
Page 8, line 10, leave out "an order under this Act" and insert "a pilot order"
Page 8, line 19, leave out from "a" to end of line 20 and insert "pilot region"
Page 8, line 35, leave out paragraph 5.
Page 8, line 43, leave out "an order under section 2" and insert "a pilot order"
On Question, amendments agreed to.

Employment Act 2002 (Dispute Resolution) Regulations 2004
7.42 p.m.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville)The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville) rose to move, That the draft regulations laid before the House on 20 January be approved [7th Report from the Joint Committee].
The noble Lord said: My Lords, disputes at work are expensive, stressful and disruptive for all parties involved. But everyone agrees that early, constructive discussion can produce solutions before problems escalate and working relationships break down. With that in mind, the Government introduced, in the Employment Act 2002, new measures to improve the handling of individual disciplinary and grievance issues in the workplace. The main aim of those provisions can be simply put. It is to encourage employers and employees to resolve disputes through workplace dialogue, rather than through litigation.
The new procedures are minimum standards. We are, of course, aware that many employers already operate more comprehensive procedures, and it is not our intention to undermine such existing good practice—far from it. The Advisory Conciliation and Arbitration Service has for many years offered advice and guidance on this matter, in particular through its code of practice on discipline and grievance issues, and that will continue to be of great importance. It is widely respected and followed, but not by all employers. At present, around 800,000 firms have either inadequate procedures in place or no procedures at all, which means up to 7.2 million employees have no clear right to discuss any grievances in the workplace.
Research undertaken by the DTI in 1998 showed that, in more than a third of cases that went to an employment tribunal there had been absolutely no prior discussion of the dispute between the claimant and his or her manager. That is why the introduction of minimum standards is warranted. Employment tribunals should not be the first resort for resolving workplace problems. They should be the last resort, when attempts by the parties to resolve a problem together in the workplace have failed. This House debated the substance of the new procedures, and the principles underlying them, at considerable length during the passage of what is now the 2002 Act, and the Government are convinced that the principles are sound. The regulations before the House today set out the detail of when and how the procedures established in the Act should apply, and it is to those details that I now turn.
The regulations establish that the standard, three step dismissal and disciplinary procedure should be used when an employer contemplates dismissing or taking relevant disciplinary action against an employee. Relevant disciplinary action is defined as
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action, short of dismissal, which the employer says is based wholly or mainly on the employee's conduct or capability. Suspension on full pay and the giving of warnings—both oral and written—will not count as relevant disciplinary action for these purposes. That is because they are part and parcel of existing workplace procedures to address disciplinary and grievance issues, not the causes of such issues, and can rarely give rise to employment tribunal cases in themselves.
The circumstances in which the modified, two step, dismissal procedure will apply are very narrowly defined. They represent a small subset of gross misconduct dismissals. It is almost always unfair for an employer to dismiss an employee instantly, without first going through some form of procedure or carrying out some form of investigation, even in a case of apparently obvious gross misconduct. That will remain the position. However, tribunals have occasionally found such dismissals to be fair, when they have concluded that prior investigation could not have affected the decision to dismiss. Regulation 3(2) will avoid the new procedures cutting across that in existing case law. However, even in that very small subset of gross misconduct dismissals, the employer will in future have to go through the modified dismissal procedure after the event—otherwise, the dismissal will be automatically unfair, and the employee will receive an enhanced award of compensation. This therefore represents a tightening of the law in relation to gross misconduct dismissals, not a relaxation of it as some might have feared.
The Government recognise that, in certain exceptional circumstances, it would be inappropriate for the parties to have to follow the statutory dismissal and disciplinary procedures. In those circumstances, set out in Regulation 4, the procedures will not apply. I will not go through them one by one, but, in summary, they cover cases when there already exists legal provision for collective dialogue about a particular issue; when the dispute or issue involved is a collective rather than individual one; or when, exceptionally, workplace dialogue may serve no useful purpose.
There are also certain circumstances, specified at Regulation 5, in which the parties will be treated as having complied with the statutory dismissal and disciplinary procedures, even if they have not. These are; first, trade union dismissal cases where the employee presents an interim relief application to an employment tribunal, within the very tight time limit for doing so, before the appeal stage of the applicable statutory procedure has been completed; and, secondly, where there exists a collectively agreed procedure for consideration of dismissal appeals at a level above that of the individual employer, and the employee has availed himself or herself of that procedure.
I turn now to the statutory grievance procedures. The standard three step grievance procedure will generally apply whenever an employee has a grievance about any action by the employer that could form the basis of a tribunal claim under a jurisdiction listed in Schedule 3 or Schedule 4 to the 2002 Act. Failure to initiate the procedure will normally mean that the employee is barred from making such a claim. The modified two step grievance procedure will be reserved

89
for a very limited set of circumstances, when the employee's employment has ended and the parties mutually agree that it should be followed, in preference to the standard procedure, in relation to a particular grievance.
There are, again, a number of exceptional circumstances in which the parties will be treated as having complied with the applicable statutory grievance procedure, even if they have not. These are set out at Regulations 7 to 10. Regulation 7 deals with what have been referred to as "overlapping" disputes. On occasion, separate disputes can become intertwined. The guiding principle we have followed is to avoid the parties having to go through unnecessary multiple procedures, or iterations of procedures, in relation to "overlapping" disputes. It may be helpful if I go into this in some depth, as it is a key feature of the regulations.
When the action taken by the employer is dismissal—leaving aside constructive dismissal—the onus will he on the employer to initiate workplace dialogue under the applicable dismissal and disciplinary procedure. The employee will not, in any circumstances, have to initiate separate discussion under a statutory grievance procedure, before he or she can complain about that dismissal to an employment tribunal. Employers should know that it is incumbent upon them to have a fair reason for dismissal, untainted by any unlawful discrimination, if they contemplate such a serious step. Thus only one statutory procedure will apply where the disputed action is dismissal.
If the employer takes action short of dismissal against the employee for reasons other than the employee's conduct or capability, then the employer will not need to follow any dismissal or disciplinary procedure. Such action would not normally be recognised as disciplinary action. The employee will instead have to initiate dialogue under the applicable grievance procedure, if he or she wishes to dispute the action and it could form the substance of an employment tribunal claim. Again, only one statutory procedure will apply.
If the employer takes action short of dismissal against the employee and asserts that it is on the basis of the employee's conduct or capability, the applicable dismissal and disciplinary procedure will have to be followed, as I have previously described. The grievance procedures will not normally apply in such cases. If, however, the employee either considers that the action is unlawfully discriminatory or disputes that it is on grounds of conduct or capability, we believe that it is right, and in line with the principles underlying this legislation, that the employer should he entitled to prior notice of that before the employee can make it the basis of an employment tribunal claim. Otherwise, the issue might not be aired and there might be no opportunity to resolve it through workplace dialogue.
In such circumstances, therefore, the employee will be required to put the grievance in writing to the employer. Provided that is done before the appeal meeting under the disciplinary and grievance
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procedure, it will be sufficient, as the matter can then be discussed at that meeting. If that meeting has already taken place, however, the full grievance procedure will have to be gone through in relation to the grievance. That is the only circumstance in which two separate statutory procedures will have to be followed, arising out of the same matter.
Regulation 8 allows for the standard grievance procedure not to be completed but to be treated as such in certain circumstances when the employment has ended and the employee has put the grievance in writing to the employer, but it has since become not reasonably practicable for either the employee or the employer to attend a meeting.
Regulation 9 provides for the applicable grievance procedure not to be completed, but to be treated as such, if the substance of the grievance has been raised collectively—that is, by a trade union official or other employee representative acting on behalf of two or more employees. Furthermore, under Regulation 10, if a collectively agreed industry-level grievance procedure exists, there will be no requirement to go through the statutory procedures.
Regulation 11 provides for a number of general circumstances in which the procedures—in this instance, both the dismissal and disciplinary procedures and the grievance procedures—will either not apply at all or, when they have already been commenced, will be treated as having been completed. These are circumstances in which one of the parties reasonably believes that following the procedures would give rise to bullying, violence, harassment and other intimidation. Regulation 11 also covers cases in which it is not practicable for a party to commence a procedure or take a subsequent step within a reasonable period. That might arise, for instance, when one of the parties suffers a long-term illness or is out of the country for a prolonged time.
Regulation 12 makes clear which party is to be held at fault, and in what circumstances, when a statutory procedure is not completed. Regulation 13 makes allowance for the situation in which a meeting under one of the procedures is arranged, but it subsequently becomes not reasonably practicable for one or other of the parties—or the employee's companion, if the right to be accompanied applies—to attend. The employer will be obliged to rearrange a meeting in such circumstances, but only once. In order to allow time for the parties to go through the statutory procedures, without them being cut short by the employee making a tribunal claim simply in order to avoid being out of time, the normal time limits for making tribunal claims are to be extended by three months in certain circumstances. Those circumstances are specified in Regulation 15.
The remainder of the regulations deal with relatively minor and technical matters, and I will not go into them in detail. The regulations will apply to every employer in Great Britain. They are designed to he operable in all different types of organisation, from the largest to the smallest. Particular thought has been

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given to the special circumstances of small businesses. We know that the smallest firms are least likely to use proper procedures already.
In preparing the regulations, the DTI has carried out full and extensive public consultation. That process began with some six months of informal pre-consultation, including consultation with key organisations that represent employees and employers. A four-month formal public consultation took place between July and October 2003 on draft regulations. Before, during and after that consultation, discussions took place with an advisory group of 19 interested stakeholders established specifically for the purpose. There were also numerous bilateral discussions with stakeholders. In addition, a "roadshow" seminar event was held in various locations around the country to promote engagement in the consultation. Some focus groups were also held with representatives of small firms and others.
That was one of the most thorough and far-reaching consultations to have been conducted by the DTI, and we are satisfied that, having taken account of the many comments and representations received, we have here a set of regulations that will operate effectively. But that is only part of the picture. We recognise that employers and employees need to be aware of the new rights and responsibilities placed upon them. To ensure that they are, over the coming months, the DTI, along with ACAS, will carry out a well targeted publicity campaign aimed at all businesses and their employees, and in particular those in the small business sector.
A critical element of the campaign will be the provision of user-friendly guidance both for employers and employees. To allow time for that, the Government has laid these regulations before Parliament well before their intended coming into effect date of 1 October 2004. Also coming into effect on that date, to form a coherent package of measures, will be the revised rules of procedure for employment tribunals, revised Employment Appeal Tribunal rules, and a revised ACAS code. Together, that package of measures will, we believe, bring about the biggest improvement in the handling of workplace disputes in decades. I commend the regulations to the House, and beg to move.
Moved, That the draft regulations laid before the House on 20 January be approved [7th Report from the Joint Committee].—(Lord Sainsbury of Turville.)
Baroness Miller of Hendon: My Lords, I thank the Minister for his clear explanation of very complex regulations and for his department's very detailed Explanatory Memorandum. The regulations that we are considering today cover 10 pages, while the Explanatory Memorandum issued by the DTI is 30 pages long. No wonder the DTI, in its paper entitled Dispute Resolution Regulations: Government Response to Public Consultation admitted that they were "not simple, but necessary".
Indeed, that sentiment has been echoed by a senior partner in a leading firm of solicitors specialising in labour relations. She asked whether they were,
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"now too complex to fulfil their original purpose".
She went on to comment:
"Only time will tell whether they will have any effect on reducing"—
applications to tribunals.
A specialist partner in another firm wrote that,
"employers would find the procedures very difficult to negotiate".
In the Explanatory Memorandum to which I have just referred, the Government report on the quantified and unquantified costs and benefits. They estimate the one-off implementation costs at between £37 million and £73 million. That gap of £36 million. just 100 per cent up on the lowest part of the range, is wide enough to suggest that they were not too sure and simply came up with a figure.
The annual recurring costs of using the statutory procedures are estimated by the department as being between £35 million and £48 million, without taking into account the time cost of what is described as a "companion" to accompany a claimant.
The Parliamentary Under-Secretary of State for Employment Relations certified in the Explanatory Memorandum that he was satisfied that the benefits justified the costs. The claimed benefits range from "better employment relations" and "lower recruitment costs" on the employers' side to allegedly "improved employment prospects" and "reduced stress" on the employees' side. Let us hope that that is the effect of them.
Ephemeral as the claimed benefits are, the Government claim that they will range from £697 to £922 million a year over the first 10 years. Included in that figure is the number of tribunal applications, which they put at between 74,000 and 75,000 a year—more than 1,400 a week. They arrive at those figures—and I very much hope that your Lordships will be able to follow this—by, in square brackets, multiplying 9.64 per cent by 76 per cent and then by 900,000, then adding 18.06 per cent multiplied by 5 per cent and again by 900,000. I invite those of your Lordships who are better at algebra than I am to review those footnotes on pages 22 and 23 of the Explanatory Memorandum. However, I am sure that someone was scraping the bottom of the barrel in dredging up those figures, because I found them very difficult to follow.
It will not surprise your Lordships to hear that, on the other hand, the costs estimated by the Government are more or less 45 per cent to 50 per cent of the benefits. I shall not comment any more on the figures relating to costs and benefits, except to invite your Lordships to draw on your own experience as to whether the Government's estimates of costs may be generally far too low. Their estimate of benefits may verge on the over-optimistic—but I hope that I am not right.
A major defect in the Employment Act 2000 was the refusal of the Government to accept an amendment that I proposed that an application to an employment tribunal should be accompanied by a deposit against possible costs. In one stroke, this would have deterred

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the launching of frivolous claims without merit or speculative claims in which the employee hopes that the employer will pay out rather than fight.
The Government's own consultation paper admits that the cost to employers of each claim is around £2,000—I note that the noble Lord, Lord Wedderburn, is smiling as he recalls the debates we had upstairs in Committee. Many employers put the figure considerably higher and that is without taking into account the distraction to management in having to find time to deal with the claim.
Then there is the fact, which is admitted on all sides, including by the Government, that the procedures in these regulations are extremely complex. They contain a number of traps which will lay the unwary employer open to severe penalties by an arbitrary increase in any compensation that the tribunal thinks fit to award of between 10 and 50 per cent. Conversely, an employee would possibly lose the same percentage of compensation for failure to comply with disciplinary or grievance procedures. Problems of precise compliance with the very detailed timetables and procedures will undoubtedly fall heaviest on small businesses whose needs are often ignored.
I quote what the CBI said in its brief on these regulations:
"The aim should not be to require all employers to achieve the highest 'best practice' for handling disputes which exist in the more advanced firms. Such standards will not be achievable for all companies, particularly those with minimum resources".
The regulations do not distinguish between the obligations they impose on a company in the FTSE 100 on the one hand and the corner shop where the employer and the employee work side by side. Employees who do not have the benefit of trade union representation will be disadvantaged in the same way. I can only hope that when deciding whether to inflict penalties for procedural failures on small employers and on unrepresented employees the tribunals will be merciful.
The Government have made an optimistic forecast that their proposals will cut applications by a quarter. This forecast is presumably arrived at by the convoluted calculation that I mentioned to your Lordships a little while ago. Significant costs will undoubtedly fall on small employers. This is acknowledged in the regulatory assessment made in connection with the Employment Act.
This Government have extended employment rights to whole new categories of workers, have shortened qualifying periods before cases can be taken to employment tribunals and have increased the ceiling on compensation payments. At the same time, the newspapers frequently report tribunal decisions that can only be described as bizarre and awards of compensation that are out of all relationship to what is awarded, for example, by the Criminal Injuries Compensation Authority to persons who have suffered serious physical traumas as distinct from merely injured feelings.
Therefore, it is right that employees will be required to use internal grievance to resolve disputes in the workplace before going to the tribunal. The
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requirements of the new regulations have been significantly watered down from what the unions and Government Back-Benchers in both Houses were advocating when the Bill was first published and found its way through Parliament. We welcome the fact that in these regulations the Government have decided not to implement Section 30 of the Act, which would have required employers—large, medium and small—to make the new procedures part of the specific contractual terms.
I shall take a moment or two to quote what the CBI said on that point:
"By deciding not to implement Section 30 ensures that businesses have flexibility to change elements of their procedures, for example to keep pace with changes in the business structure, without having to issue contracts of employment every lime, a process which would be a huge bureaucratic burden … and it prevents employees circumventing the one-year qualifying period for unfair dismissal claims by instead claiming 'breach of contract' for failure to follow one of these procedures. This would result in an increase in the number of employment tribunal claims, the exact opposite of the Government's intention".
The implication that the laws of the United Kingdom apply to all contracts should be sufficient for anyone. We are also pleased to note that the definition of "relevant disciplinary action" excludes warnings and suspensions on full pay. Otherwise we would find employers dragged through this complicated procedure merely for a severe reprimand on the shop floor or in the office.
The Government have also sensibly, in our opinion, excluded, in Regulation 3, dismissals where collective consultation is already required by redundancy regulations.
Despite the complexity of the regulations, which the Government admit, and the cost to business, which perhaps they do not, in the interests of giving effect to the Employment Act, we shall not oppose the regulations. Indeed, we believe that any measures that help to resolve more disputes in the workplace without the need to go to litigation are truly to be welcomed.
Lord Razzall: My Lords, I thank the Minister for giving a clear exposition of the background to these regulations. Listening to the noble Baroness, and seeing the noble Lord, Lord Wedderburn, in his place—welcomed, I am sure, by all of us—brought an awful sense of déjà vu about the endless discussions we had on the Bill itself.
Before I make one or two comments, I wish to remind the Minister that, as he will remember, we on these Benches were fundamentally in support of the Government's proposals, which was not the case for the Conservative Opposition and not always the case for the noble Lord, Lord Wedderburn, who was normally coming from a slightly different perspective from that of the noble Baroness.
Having put in that slight admonition, on this occasion I agree with a good deal of what the noble Baroness has said, particularly with regard to the costs. Having studied the numbers in the regulatory assessment in some detail, I have doubts. It may significantly underestimate the costs to employers and significantly overestimate the savings to the taxpayer. As an aside, when we debated a

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number of these issues in Committee, the noble Lord, Lord Wedderburn, endeavoured to persuade us, and I listened with interest, that the major motivation for the Government with regard to this legislation was to reduce the number of cases going to tribunals and to bring a saving to the taxpayer by fewer tribunal claims. I have no knowledge whether that was the Government's objective; in debate, the Minister denied that it was. I share the noble Baroness's scepticism. I do not think that they will succeed. For reasons that the noble Baroness has indicated, I suspect that the figures on savings from fewer tribunal claims, given in Table 2, on page 19 of the regulatory assessment, are significantly overstated.
The most fundamental reason is set out in paragraph 50 on page 15 of the regulatory assessment—which the Minister has touched on—regarding the position of small businesses. A policy decision has been taken, which I support, that these regulations and the procedures they set out should apply to every company, from the Shell oil company down to the corner shop. I think that that is absolutely right. But I also think there is a danger that the Government will underestimate the impact that it will have on the myriad small businesses which, as indicated in paragraph 50, do not have a specialised personnel function. The type of situation covered by the regulations will often arise only when something peculiar arises in their business such as—example given in paragraph 50—parental leave following an adoption.
Paragraph 51 states that the DTI,
"recognises the need for user-friendly guidance and standard forms to reduce the implementation costs, particularly for small firms".
I think the Government will find that although that is an easy sentence to write, it will be a very difficult sentence to implement. Although we listened with interest to the Minister's very clear exposition of the regulations' meaning and implications, I suspect that it will be very difficult and defy even the best brains in the DTI to reduce them to a form that is easily understandable by every small business.
That is going to be a significant challenge for the department. This is really the first time that anything like this has been attempted in this country. I applaud the intent to do so because there is no reason why an employee in a small business should be treated any differently in terms of employment rights from an employee of the Shell oil company. However, it will be a serious challenge to explain business obligations and employee rights to the corner shop owner—I do not know why we are picking on the corner shop owner—or to any other very small business in a way which achieves the effect that the Government seek.
It may be difficult for the Minister to give a definitive answer to my final question. However, it would be useful if we could know what were the especially difficult areas on which there was significant disagreement among consultees in the consultation exercise. I absolutely accept that these regulations result form an extensive consultation exercise with employers' organisations, representatives of small business and so on. It would be helpful if the Government could indicate the difficult areas. On which issues was there no real agreement
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among consultees? The Government had to take key decisions on matters such as Section 30, to which the noble Baroness referred. Clearly the consultation exercise led the Government to decide that they were not going to implement Section 30. It would be useful if the Minister could indicate those areas. I am perfectly happy for him to write. It would help if we could have the background to these areas of controversy by the time we reach the implementation phase of the regulations.
Lord Wedderburn of Charlton: My Lords, I rise to welcome the regulations and to ask my noble friend the Minister three questions. I preface them by acknowledging that the regulations contain many directions of approach to the complexity and difficulty which arose on the way in which the Bill was drafted, by including improvements that go beyond some of the suggested answers to the difficulties made by Ministers in the rather long Grand Committee and on Report. They are certainly far better than any of the suggestions made by the official Opposition whose industrial relations policy, as we have heard again this evening, goes back to demands to keep workers away from employment tribunals by imposing deposits. That arises not from what they said on the Bill a year or two back, but from their demands of 1983. They do not make much progress, and I congratulate the Government on not listening to such industrial relations chatter.
I also congratulate the Government on insisting that the procedure demanded of employers and employees should apply across the board. They have not given way to pressure from some quarters to allow small employers to continue to be bad employers, as suggested by the noble Lord, Lord Razzall.
My first of three questions relates to the figures in Annex A on pages 21–23. My question comes not from a failure to understand the algebra, as has been suggested, but it is about the figures themselves in their estimate of the number of employment tribunal applications.
The 2002 Act was predicated on the basis that there had been, and continued to be a dramatic rise in the number of tribunal applications. By the year before, the figure had reached 130,000. My noble friends and I tried to convince the Government that that year was a rather unusual one. It might be thought that there was some merit in that argument as, in the two subsequent years after the 130,000 figure, the number of tribunal applications fell by 25 per cent each year. By the time we reached 2003, employment tribunal applications were down to 98,600.
In that event, is the Minister entirely happy with the calculation that there will be roughly 110,000 employment tribunal applications per year, including 10,000 from new jurisdictions? That is based on the same research that the Government disclosed to us only two days before the Bill was debated on Report, and which they relied on before. Is it the case that the calculations of the number of tribunal applications that will be saved, which they say will be 35,000 to 36,000, is based on a very good assessment of the research, especially as they appear to quote the survey

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on employment tribunal applications of 1998 and onwards, when everyone in their position said that the number of tribunal applications was rising and would rise?
Leaving aside new jurisdictions, it has been shown that apart from the Act, which is not in force, the number of tribunal applications has fallen. How far have the Government taken account of that fact and the reasons for the fall? I shall not try to explain that now, but plenty of explanation in the debates in Committee and on Report of the Bill appear to have been justified.
My second point is to express surprise that Government statements and explanatory notes omit all reference to a series of issues of which the most important is Section 30 of the Act. The Bill proposed by the deliberate choice of the Government, which we asked about again and again, to make disciplinary and grievance procedures implied terms of every contract of employment in the land. The debate on the Bill took place on that desire—to make the procedures part of the employment contract.
Yet the Government suddenly leapt backwards into the arms of the CBI when they saw the response to their consultative document, and they refused to bring Section 30 into effect at all. The noble Lord, Lord Razzall, perhaps was not wholly fair to the Government because they published in response to the consultation the reasons why they took their sudden new view.
I shall quote only a few words of paragraphs 121 to 123 of the response document in which the Government say that the,
"CBI was concerned that making the procedures an implied term would open the door for a large number of breach of contract claims".
We have heard the same argument from the official Opposition. The Government also say:
"The Employment Lawyers Association commented that implementing the implied right would give rise to a number of complex legal issues".
We had much debate during the passage of the Bill on the complex legal issues that might arise, but the Government never told us that they would not implement Section 30.
The view of the CBI was,
"strongly opposed by the TUC and individual unions".
That is all we are told in terms of the arguments. The Government's conclusion stated:
"The Government does not intend to commence section 30 of the Employment Act 2002 at this time".
They go on to say that,
"the Government believes it would be sensible to see how … [the regulations] operate in practice".
But Section 30 will not operate in practice. Section 30 gave workers the right to say, "These procedures are obligatory and if you, the employer, do not implement them, you are in breach of contract". It gave the employer the right to say to employees, "If you do not implement the procedures, you are in breach of contract". The mere fact that it might give workers a right to sue in the tribunals as well as in the ordinary courts is no reason for completely emasculating and
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destroying those rights. At the very most the logic of the argument is that those rights should not exist in the tribunals where the one-year period applies. The one-year period does not apply to breach of con tract actions in the courts. Why have the Government suddenly destroyed the rights of workers to enforce the obligation to have the procedures properly observed?
Complex legal issues arise in all parts of the Bill. The only argument mentioned was that of the CBI, which was strongly opposed by the TUC. The Government have given no extra reason at all for not implementing Section 30. My second question is: do they have some new unstated and unknown mysterious reason whose objective is simply to deny the right of workers to enforce the employers' obligations in the courts?
My third question is a very simple one: what is the meaning of Regulation 3, especially paragraph (2) of Regulation 3? Regulation 3(2) deals with the modified dismissal procedure. That is important for a worker. My noble friend the Minister said—I think that I am right in summarising his words as follows—that the modified procedure, which is scarcely a procedure at all, would apply where the employer could dismiss for misconduct. But with respect to him, Regulation 3 is a little more difficult than that and raises all sorts of issues which, like so many of the other problems, we were told would be clarified in the regulations when we raised them as problems during the passage of the Bill.
For example, to take one of the many difficulties, the employer is permitted to use the modified procedure when,
"the dismissal occurred at the time the employer became aware of the conduct or immediately thereafter".
We were told almost precisely that during debates on the Bill. The Government then said, "Oh, that will all be clarified in the regulations", like so many other issues. One could make a list of them, but I refer to this one because it is perhaps the most important to the workers concerned; namely, whether they can simply be shoved out on the spot with no procedure—the modified procedure is scarcely worth anything—when,
"the dismissal occurred at the time the employer became aware of the conduct or immediately thereafter".
We do not have greater clarification than we had an the Bill; we do not have greater clarification than we had in the debates.
I give that one example, but in a more general sense is not Regulation 3(2) so uncertain in its terms that it will be very difficult for a worker to challenge the use of the modified procedure by the employer? It is no good saying, "Oh well, that can all go to the tribunal" because what the worker wants to know is whether he can challenge the use of an immediate dismissal or a summary dismissal at which he loses his job, which has not merely employment but also social security implications and results. If my noble friend could say a word about such problems, not forgetting that I

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have paid tribute to some of the improvements that one finds in the regulations, my welcome for the regulations would be even greater than it is.
Lord Sainsbury of Turville: My Lords, I have listened with interest to all the points that have been made and I am grateful for them. I shall endeavour to respond to as many of them as I can. However, I make the point that these regulations offer a positive way of improving dispute resolution in our workforces. We can all agree that it makes sense to discuss problems at an early stage before they escalate out of control.
The noble Baroness, Lady Miller, referred to the complexity of the regulations. Of course, they will apply to all workplaces and to all situations that arise in workplaces. Inevitably, employment disputes can be highly complicated and dealing with them appropriately necessarily requires some complexity. However, the regulations were drafted with input and support from a wide range of stakeholders and the Government have tested them during a lengthy period of consultation to ensure that they meet the needs of a full spectrum of workplaces and employment disputes.
The noble Baroness raised the issue of deposits on costs. A better way to deal with the problem is to get people to talk, rather than to have a system of deposits. In 2001 we consulted on whether tribunals should charge users, and the strong response from the consultees was that charging would deter claims from applicants. The Government accept that position. In spite of what the noble Lord, Lord Razzall, said, in this case it is not our objective simply to reduce tribunal work. On the contrary, we want to improve industrial relations. We believe that an employment relations system is better if people talk early on. It is better for the employer in terms of keeping experienced workers if problems can be sorted out; it is also better for the employee in terms of keeping a job if problems can be sorted out.
The noble Baroness, Lady Miller, made the point that the regulations do not distinguish between small companies and large companies. The whole point of the regulations is that we have set a minimum standard, and we have applied them so that they bring in a large number of employees who are not currently protected by adequate dispute resolution procedures in their workplaces. We accept, right from the start, that many companies will quite rightly have more complex and more detailed arrangements. We have not applied those arrangements to all businesses because we believe that that would not be possible or right for small business. I believe that is the right way to approach the matter.
The noble Lord, Lord Razzall, challenged the DTI to produce simple material; it is a challenge that we accept and we shall seek to do that. He also asked what were the stakeholder responses to the regulations consultation process. As always, it uncovered a wide range of opinion from key stakeholders. This is an important and challenging area of law. Employer and employee organisations often take very different viewpoints. We have tried to take those on board; for example, the CBI
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has broadly supported the aim behind employment dispute resolution reforms; it felt that the procedure was generally sensible; it thought that the exemptions were appropriate; and said that the changes were timely and broadly acceptable. The TUC welcomed the extension to time limits for grievance cases, as one would expect, and approved of the ability to resolve collective grievances. Small businesses councils generally endorsed the Government's approach in that area. The two major issues, particularly for the TUC, were, first, that we were not implementing the implied contractual right and, secondly, the definition of disciplinary action.
I turn to the three questions raised by the noble Lord, Lord Wedderburn. I thank him for his thanks—they are much appreciated in the light of all the comments he made during the 40 hours of debate. He raised the interesting question of the movement of employment tribunal caseload figures. We always accepted that the figures were particularly high in 2000 and 2001 because of the raised level of cases caused by new European part-time pension rules. The noble Lord was right to say that in 2001–02 the figure went from 130,000 to 112,000, and then down again in 2002–03 to 98,000. But the latest figures look likely to be around 113,000 in 2003–04, so they appear to be increasing again. The main reason that we were concerned was not the peak year of 130,000 cases, but that between 1990 and 2003 the caseload roughly trebled. I return to the point that I made to the noble Lord, Lord Razzall. This is not simply about keeping down tribunal costs but about improving the employment relations system.
The second question raised by the noble Lord, Lord Wedderburn, related to the implied contractual right and why we were not bringing that in. I shall try to make the Government's position clear. These statutory procedures will be a major change for many workplaces. So that their impact is controlled the Government do not at this time intend to commence the provision contained in the Employment Act 2002, which would make the statutory dispute resolution procedures an implied contractual term for all employees. There are those people, of whom I believe the noble Lord, Lord Wedderburn, is one, who fear that not commencing that provision will emasculate the procedures because there will be no sanction if the employers do not follow the dispute resolution process. Of course that is not the case.
If employers do not follow the procedures and the dispute subsequently escalates to employment tribunal proceedings, they will suffer the adverse consequences provided for in the 2002 Act. In dismissal cases they will face a finding of unfair dismissal. In all cases, if a failure to start or complete a statutory procedure was the employer's fault the tribunal will increase any award by up to 50 per cent if it finds in the employee's favour. It is important to recognise that these statutory procedures will be a major change for the 800,000 or more firms that have inadequate or non-existent procedures in place at the moment. Because of the burden of applying new operating procedures, the Government's view is that it is best to proceed in

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stages, starting with these regulations, which apply procedures to disputes that involve employment rights.
I should make clear that our approach is not set in stone. The Government are committed after two years to a review of how the procedures operate in practice. If there is evidence to suggest that the procedures have not been universally adopted, then it would be appropriate to consider introducing the implied term, so that the employees can make breach of contract claims if their employer fails to follow the procedures. The decision to proceed in such a way was strongly endorsed by a majority of the respondents during consultations.
The noble Lord, Lord Wedderburn, also had concerns about using the modified dismissal procedure. But, as I explained in my opening remarks, the modified dismissal procedure will apply only in a limited subset of gross misconduct dismissals. Extensive feedback during consultation has helped us to tighten up the drafting of the provision to ensure that we do not create a loophole to allow unscrupulous employers to sack instantaneously. Of course, for the most severe gross misconduct cases, it is surely right that employers retain the right to sack instantly, especially as tribunals can find that to be fair. In those cases, the shortened procedure must be followed after dismissal.
In conclusion, the draft regulations laid before the House today set out a sensible, and I believe valid, way of encouraging dialogue in workplace disputes. They are based on rational, reasonable principles. Employers and employees should discuss problems before acting hastily. I believe that this is an evenhanded package which balances rights with responsibilities for both employers and employees. The regulations are practical and workable for even the smallest employers and, above all, they will ensure that up to 7.2 million employees are covered by basic dispute resolution procedures.
I should also say that the regulations have been tested in a very thorough consultation exercise supported by extensive discussions with key stakeholders and 16 weeks of public consultations. Implementation will be supported by an extensive guidance and awareness campaign. We are working with ACAS, the TUC, the CBI, small firm representatives and citizens advice bureaux to ensure that they meet the needs of all end-users.
On Question, Motion agreed to.

Regulatory Reform (Sunday Trading) Order 2004
8.36 p.m.
Lord Triesman Lord Triesman rose to move, That the draft regulatory reform order laid before the House on 22 January be approved [6th Report from the Regulatory Reform Committee.]
The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. This regulatory reform order is brought forward under the
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Regulatory Reform Act 2001 jointly by the Department of Trade and Industry and Her Majesty's Customs and Excise. It brings together two deregulatory measures, both of which impact on Sunday trading.
The first element of the order deals with amendments to the notification procedures currently required under the Sunday Trading Act 1994. These are matters which fall to the Department of Trade and Industry. By way of background, shop opening hours were regulated by the Shops Act 1950, which consolidated all previous legislation on Sunday trading. However, the law was considered contradictory and was widely ignored.
Following extensive consultation and input from a wide range of interested parties, those problems were addressed in the enactment of the Sunday Trading Act 1994. The result was that, under the provisions of that Act, the opening hours of large shops, defined as those with internal floor areas of more than 280 square metres—example, larger supermarkets and superstores—are limited to a maximum of six hours' continuous trading on a Sunday within the hours of 10 a.m. and 6 p.m. Large shops are also required to give advance notice to the relevant local authority of their planned Sunday opening hours, or any change in those hours, and local authorities are required to maintain a register of those notifications and make it available for inspection by members of the public.
It is worth mentioning that the impetus for this regulatory reform order came from the retail sector and was supported by local authorities. The retail sector suggested that the notification procedures were an unnecessary burden and should be removed by means of a regulatory reform order. Preliminary consultation with local authorities indicated that, in their view, maintaining registers of notification was an unnecessary burden and that they would prefer to focus their resources on other important issues, such as enforcement of the Act.
Subject to approval by Parliament, this order will therefore amend the Sunday Trading Act 1994 in order to remove the burden on large shops to give advance notice—that is, 14 days' notice—of their Sunday opening hours or any change in their opening hours. It will also remove the burden on local authorities to maintain a public register of notifications. The order applies to England and Wales.
I want to emphasise that the order will not alter the permitted range of hours nor the current maximum of six continuous hours within which a large shop is permitted to open. In addition, large shops will still be required to display their Sunday opening hours conspicuously both within and outside the relevant premises thereby allowing the local authorities to continue to enforce compliance with the Act itself.
The second element of this RRO aims to remove the archaic and unnecessary restriction on the sale of methylated spirits on a Sunday. Noble Lords will wish to note that this matter falls within the responsibility of Her Majesty's Customs and Excise. In short, anyone who sells methylated spirits on a Sunday is currently breaking the law and could be prosecuted for doing so.
For background, Section 26 of the Revenue Act 1889 formed part of the control system that applied to licensed retailers of methylated spirits. It was introduced to address a problem of people purchasing and drinking methylated spirits on a day when dutiable alcoholic liquors were not readily available. These days dutiable alcoholic liquor is widely available to purchase on a Sunday.
Subject to the approval of Parliament, this RRO will repeal Section 26 of the Revenue Act 1889 that prohibits the sale of methylated spirits on a Sunday. Section 26 applies throughout the United Kingdom. The order will repeal it for England, Wales and Northern Ireland. In Scotland the repeal is a matter for the Scottish Parliament.
There has been extensive consultation on both proposals. On the opening hours proposal a large majority of respondents were in favour of the removal of notification procedures and removal of maintaining a register of notifications.
On the proposal to remove the restriction on the sale of methylated spirits, all respondents who gave a view were in favour of the repeal of Section 26 of the Revenue Act 1889. These proposals have been closely scrutinised by respective parliamentary scrutiny committees and their responses noted.
In your Lordships' House the Select Committee on Delegated Powers and Regulatory Reform concluded that the proposals remove burdens, within the meaning of the Regulatory Reform Act 2001, and do not create any new burdens. The department also demonstrated to the satisfaction of the committee that the proposals will neither confound any reasonable expectations nor reduce any necessary protection.
I thank members of the Select Committee on Delegated Powers and Regulatory Reform for the time that they spent scrutinising the proposals and for recommending the proposals to the House.
The committee in the other place also concluded that the proposals removed a legal burden and would not remove any necessary protections or any rights or freedoms, which a person might reasonably expect to continue to exercise. The committee unanimously recommended that the order be approved. I commend the order to the House.
Moved, That the draft regulatory reform order laid before the House on 22 January be approved [6th Report from the Regulatory Reform Committee].—(Lord Triesman.)
Baroness Miller of Hendon: My Lords, I thank the Minister for his explanation of these new regulations and for the brief but clear statement by his department. This clarity is essential in view of the sensitivity of the issue of Sunday trading, and the many opponents to it.
Noble Lords will recall the objections that were raised when the Sunday trading laws were drastically revised by the former government, and the dire predictions about the break-up of family life if people were tempted to go shopping rather than to church or
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to stay at home, mowing the lawn, or washing the car, or even watching the omnibus edition of "EastEnders" on the television. The trade union USDAW threatened grave industrial unrest on the part of oppressed shop workers who would be coerced into working on Sundays.
As we now know, Sunday trading has been welcomed, as the noble Lord said, by the vast numbers of the public who vote with their feet by going shopping, often en famille, on Sundays. It is also a help to those who, because of work or other personal commitments, have limited time in which to shop. Shop staff, in turn, are pleased, without coercion, to accept the overtime or time off in lieu that they get for working on Sunday. The fact is that those who object to going shopping on Sunday are not obliged to do so.
It is therefore only right, 10 years on from the passing of the original Act, for the Government to have reviewed how it has been working.
The reform contained in the first proposal of the order is to remove the requirement for the owners of larger shops, who are restricted to six hours of opening on Sundays, to make an announcement to the local authority of what their opening hours will be. In turn, the local authority is currently required solemnly to record those hours.
At present, if a store wants to change its opening hours from, say, 11 am to 5 pm to 10 am to 4 pm, it has to give 14 days' notice. The proposed alteration is to remove that registration requirement on the basis that, after 10 years, it has been found that the shops can be trusted not to cheat. The Government are removing an unnecessary—perhaps "obsolete" or "redundant" would be better words—piece of bureaucracy and the attendant costs on local councils.
The issue of Sunday or Christmas Day trading is, so far as the Conservative Party is concerned, a matter for the conscience and religious beliefs of individual Members of Parliament or Members of your Lordships' House. We shall therefore leave it to our colleagues on these Benches—I am not sure where they are tonight—to respond to this part of the draft order.
The second proposal is to remove the restriction on the sale of methylated spirits on a Sunday. As the noble Lord indicated—he did not use quite these words—this is a relic of the Victorian era when methylated spirits were a symbol of the demon drink. Meths was the crack cocaine of its day. It was cheaper than gin, which in all conscience was cheap enough then, but gin, rum or other spirits were not available on Sundays. Meths was deliberately coloured purple, as distinct from its natural clear colour, supposedly to make it less appetising. But the so-called meths drinkers who used to abound in seedier parts of towns now unfortunately can find the stimulant or oblivion that they seek by other means and elsewhere than in hardware or chemist shops.
According to Customs & Excise, which was responsible for collecting the licence fee for selling methylated spirits, which has long since been abolished, and for enforcing the 1899 Act which rendered illegal its sale on Sundays, no one can recall

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when there was last a prosecution. The rule is frequently flouted by smaller shops, whose owners were possibly unaware—I confess I was until I saw the present draft order—that there was any such prohibition. Its continued existence cannot be justified on the grounds that it removed temptation from those who might want to drink it on Sundays. All it does is inconvenience those who want to polish their windows, light barbecues or, in my case, remove those infuriating sticky labels from glass or chinaware. It is one small step on the road to removing unnecessary, redundant and obsolete regulation. But again, as it relates to an aspect of Sunday trading, it is a matter for my noble friends to decide for themselves as individuals whether or not to support it.
Lord Triesman: My Lords, I thank the noble Baroness, Lady Miller, for the way in which she approached this discussion. She is 100 per cent correct in everything she said about the freedoms that people have to shop or, indeed, to work in a shop on a Sunday. All shopworkers in England and Wales except those who are specifically employed to work on Sundays have the right to refuse to work on Sundays and to be
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protected against dismissal or detriment. It J s correct that those rights are contained in the Employment Rights Act 1996.
I very much enjoyed the description by the noble Baroness of the great changes that have taken place over the years and the ways in which some things which were thought to be a very great risk have turned out not to be. As someone who does not watch the omnibus edition of "EastEnders" or even, indeed, listen to the omnibus edition of "The Archers" but certainly on occasions goes shopping on Sundays, I know the benefits.
I share with the noble Baroness some interest in the revelation about methylated spirits and call to mind novels in which people seek out not only methylated spirits but even boot polish and other things which contain alcohol that could be extracted. I note only that progress now means that many drinks tinted purple are regarded as a fashion accoutrement. Methylated spirits plainly now only really panders to the needs of those with Primus stoves.
I thank the noble Baroness, Lady Miller, for that. I am grateful for her contribution to this brief debate.
On Question, Motion agreed to.
House adjourned at ten minutes before nine o'clock.

Official Report of the Grand Committee on the

  Public Audit (Wales) Bill [H.L.]
  (First Day)
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Viscount Allenby of Megiddo) in the Chair.]
  The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before I put the Question that the Title be postponed, perhaps I may remind your Lordships of two points of procedure. Noble Lords will speak standing and the House has agreed that there will be no Divisions in Grand Committee. Unless, therefore, an amendment is likely to be agreed, it should be withdrawn. If there is a Division—and I am advised there is likely to be—in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.
  Title postponed.
  Clause 1 [Transfer of functions of Assembly]:
  Baroness Noakes Baroness Noakes moved Amendment No. 1:
  Page 1, line 7, leave out "with the consent of" and insert "after consultation with"
  The noble Baroness said: My noble friend Lord Roberts of Conwy is unable to join us in the Grand Committee because of a family bereavement. I shall therefore be speaking to the amendments that stand in the joint names of myself and my noble friend. He hopes to join us later in the proceedings of the Bill.
  Amendment No. 1 is the first of a series of probing amendments intended to clarify various points. It seeks to amend new Section 146A of the Government of Wales Act as inserted by Clause 1 of the Bill.
  The amendment raises the question of the relationship between the Assembly and the Auditor General in the matter of his supervisory functions over public bodies and registered social landlords. The Bill proposes that the Assembly should seek the consent of the Auditor General, which implies a degree of superiority on his part and a power to refuse consent. Is this what is intended? What if the Auditor General were to refuse? The Assembly would at the very least be embarrassed.
  On the other hand, the Assembly could in theory transfer functions that might be inappropriate for the Auditor General to exercise, such as oversight of sponsored bodies. His independence and objectivity have to be safeguarded and so, I concede, there is much to be said for the wording of the Bill.
  Our probing amendment proposes to substitute consultation between them, which is a much more egalitarian and open procedure. They could still have their disagreements but they would be within the framework of the Act and might not cause so much of a stir.
  As to the preparation of reports, the Assembly appears to have the whip hand because, under subsection (3), it may direct the Auditor General to prepare a report on his supervisory functions. That sits oddly with the need to seek his consent to exercise the function in the first place. We do not have a specific amendment on that point, but it illustrates the complexity of the relationship between the Auditor General and the Assembly and I hope that the Minister will be able to illuminate it. I beg to move.
  Lord Livsey of Talgarth: Given that the noble Baroness said that this is a probing amendment, perhaps I may ask the Minister what lies behind the use of the phrase "with the consent of".
  Before continuing, I should like to be associated with the sympathy expressed towards the noble Lord, Lord Roberts of Conwy, in his bereavement. I have known the noble Lord for a very long time indeed. I am very sorry and I wish to pass my party's condolences to him and his family.
  I should like the Minister to assert exactly why the phrase "with the consent of" is used. "Consultation with" sounds better but I suspect that there is a reason behind the use of that phraseology.
  My noble friend Lord Thomas of Gresford will be leading for my party on the Bill but, unfortunately, a train actually left on time and he is not able to be here at the moment. I am expecting him to be here in about an hour and a quarter.
  Lord Davies of Oldham: I complete the list of apologies to the Committee, as I am also a poor, sorry substitute for my noble friend Lord Evans of Temple Guiting, who has been struck down by an illness that will keep him away from the House for the next two or three days or so, for which he apologises.
  Obviously, we want to be associated with the condolences to be extended to the noble Lord. Lord Roberts. He is greatly respected in the House, and we all feel for him at this very difficult time and fully understand why he cannot be with us today, although we will miss his contributions.
  I was grateful for the way in which the noble Baroness moved the amendment. I find it extremely difficult to respond in a harsh manner to a proposal defined by her as both egalitarian and fair, so it is with some reluctance that I indicate that it does not quite meet my definition of what is going on in the clause.
  Amendment No. 1 would obviate the need for the National Assembly to seek the consent of the Auditor General before making an order to transfer to, or to make exercisable by, the Auditor General its supervisory functions in respect of a public body or a registered social landlord in Wales. The amendment provides for consultation, but his consent to any exercise would not be required.

  GC 3
  My answer to the noble Baroness and to the noble Lord, Lord Livsey, is that the consent of the Auditor General to any exercise of the Assembly's functions is essential. The Office of the Auditor General is a Crown appointment. As the statutory auditor of the National Assembly, it is very important that his independence is not in any way called into question. The Auditor General must be satisfied that, in assuming any such functions, his independence is not compromised. The requirement for his consent in Clause 1 ensures that safeguard.
  What we are talking about is in no way a comment on the legitimate powers of the National Assembly, but recognises that the Auditor General has a separate, distinct and important function in parallel. The clause is phrased as it is, leading me to resist amendment to it, to safeguard that essential independence of the Auditor General.
  A further safeguard is that any order to be made under the clause, either transferring supervisory functions on a "once and for all" basis, or asking the Auditor General to exercise them on the Assembly's behalf, would be subject to scrutiny under the National Assembly's subordinate legislation procedures. The National Assembly would not witness change effected by only the Auditor General without having the capacity to scrutinise and examine it under those procedures. On that basis, I hope that I have assured the noble Baroness that we want the clause to stand as it is.
  Baroness Noakes: I thank both noble Lords for their condolences to my noble friend Lord Roberts of Conwy. I am sure that he will be grateful when he reads that in Hansard. I also thank the Minister for his reply, which we shall need to think about carefully. He did not answer on what would happen if the Auditor General did not agree—on whether the procedure was actually robust in the event of disagreement. I know that my noble friend will want to consider that carefully, but for today I am happy to beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Noakes Baroness Noakes moved Amendment No. 2:
  Page 1, line 15, leave out paragraph (a).
  The noble Baroness said: In moving Amendment No. 2, I shall speak also to Amendment No. 27, which is grouped with it. The amendment seeks to leave out paragraph (a) of subsection (2) in new Section 146A of the Government of Wales Act 1998 to be inserted by Clause 1. Our amendment is inspired by the loose definition here of a "public body" as one,
  "exercising functions of a public nature".
  This could include a private sector company such as a bus or train operator or any number of other companies performing public works as contractors, such as house or road builders, consulting engineers and so forth. Is it intended that the Auditor General for Wales should be able to step in to their affairs? While that might be justifiable were such companies in
  GC 4
  receipt of substantial public funds, those are caught by the second part of the definition in subsection (2)(b) as being bodies,
  "substantially funded from public money".
  We see the broad sense of that and so we have left that part of the subsection.
  However, the phrase "substantially funded" lends itself to a wide range of interpretation, which is the reason why we have tabled Amendment No. 27 to delete the words "or substantially" from the identical definition of public bodies set out in Clause 12. We might have tabled the same amendment for Clause 1, but I hope that the Minister will treat Amendment No. 27 as one also standing proxy for a probing amendment on Clause 1.
  Such wording is difficult to define. What I would call a "substantial contract" might be small fry for a major multinational concern, while a much smaller sum of public money may be the lifeblood of a minor company; that is, the main source of its finances. Can the Minister explain exactly what the Government mean by,
  "substantially funded from public money",
  as that definition can drag a private sector body within the public sector audit arrangements? It is important to clarify the point.
  I am aware that the definition of "public body" is consistent with the Government Resources and Accounts Act 2000. That is relatively new legislation and I wonder whether the Minister can say something about how that definition has been applied in practice. For example, what specific bodies have been classified as public bodies for the purposes of that Act and have any issues of definition arisen in practice? If so, how were they resolved? I beg to move.
  Lord Livsey of Talgarth: I want briefly to comment on this, but before doing so I declare an interest in that one of my sons is a construction engineer working mainly in Wales on quite large public projects. The noble Baroness has made the point that a private company could be involved in works of a public nature. I am not absolutely certain that that would necessarily be the case and I wonder whether the Minister can give us a more precise definition of what is meant by,
  "exercising functions of a public nature".
  He may be in a position to promise us in due course a list of such bodies, although perhaps he may not wish to be so prescriptive.
  Lord Davies of Oldham: I am always willing to be helpful, but I shall certainly not produce a list in this instance. If it will help the Committee, I may look at the possibility of producing a list, although I think that it would be rather extensive. I shall seek to explain why the definition has certain wide-ranging implications and why we think that it meets the requirements, thus satisfying the anxieties expressed by the noble Baroness in moving her amendment.

  GC 5
  It may be helpful if I deal first with Amendment No. 27, not least because the purpose of the definition in the context of Clause 12 is to maximise scrutiny and safeguards over the use of public money. I am sure, therefore, that both sides of the Committee are as one in terms of the broad objectives. However, Amendment No. 27 would undermine that intention. The amendment deals with the definition of "public body" in the context of enabling the National Assembly for Wales to amend by order the categories of bodies defined as local government bodies in Wales to take account of future circumstances.
  As the noble Baroness indicated, the definition in Clause 12 is consistent with that used in Clause 1 and with the Government Resources and Accounts Act 2000. In this case, the amendment to the definition would mean that a category of local government body wholly funded by public money could be added to Clause 12(1), but a category of a body with anything less than 100 per cent of its funding from the public purse would not. That cannot be the intention behind the amendment. It certainly is not one that we would be prepared to countenance. For example, a body that provides specialist services to local government in Wales for a fee would be in that category.
  We are anxious about the amendments as restricting the proper scrutiny of public money. Amendment No. 2 would limit the Assembly's ability to transfer supervisory functions to the Auditor General or to have him exercise such functions on the Assembly's behalf. The effect would be that the Assembly could not exercise the power in respect of a body that exercises functions of a public nature but is not entirely or substantially funded from public money. I am sure that all Members of the Committee recognise that the scope needs to extend wider than those bodies that receive 100 per cent of their funding from the public purse.
  A body exercising functions of a public nature may not be entirely funded from public money; nor need it necessarily be construed as being substantially funded from public money. It may earn income from fees and charges. If it is a regulatory body, it may derive a substantial proportion of its income from inspection or from registration fees. I cannot give a list, but I can give an example. The General Teaching Council for Wales potentially is an example of such a body that receives a great deal of resources. It is definitively a public body exercising functions on behalf of the public good, yet it does not earn its income directly from public money.
  The reasons for the Assembly wishing to transfer its supervisory functions may be valid irrespective of the level of public funding that a body receives. The definition of a "public body" in the clause—on which I was questioned closely—is consistent with the Government Resource and Accounts Act 2000. If there is any doubt whether such a body fell within the second part of the definition of "public body" in Clause 1(2) because of the level of public funding that it receives, it still would be covered by the first head of the definition.
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  I am making the obvious presumption that we all seek proper public scrutiny of public resources, while recognising that the bodies that may fall within the remit could fall considerably short of 100 per cent public funding. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.
  3.45 p.m.
  Baroness Noakes: I thank the Minister for his reply. I thank the noble Lord, Lord Livsey, for his contribution. I am particularly grateful for the explanation in relation to exercising functions of a public nature. That certainly explains why that should be included, despite not meeting the requirement set out in paragraph (b), which relates to,
  "a body entirely or substantially funded from public money".
  I confess that I am still concerned about what private-sector bodies might be drawn into the net under paragraph (b) as being substantially funded from public money. Small organisations that contract with the public sector could be funded substantially through commercial contracts. There is no exemption for commercial contracts. If bodies are substantially funded, they could fall within those public audit arrangements.
  I share the noble Lord's desire to ensure that there is proper audit of public money. But there does not appear to be any concept that there could be a commercial relationship which could intervene. Most probably, small and medium sized enterprises—the very bodies most burdened by regulation in our economy—could be dragged within the provision. Has the Minister any thoughts on that aspect?
  Lord Davies of Oldham: I have probably covered as much ground as I can at this stage. I understand the point that the noble Baroness makes. We shall look closely at all the points made today, against the background that this is a preliminary stage of the Bill. The important question is whether the National Assembly for Wales has supervisory functions in respect of such bodies. If it has not, the clause would not bite. Where the Assembly has a supervisory function, even if the body in question does not receive a massive percentage of its resources through public funding, the clause would be relevant. That is the basis of our provision.
  Baroness Noakes: I shall not press the point much further as the Minister has said that he will think about it. The definition of "supervisory functions" in Clause 1 is very wide and includes,
  "functions of examining, inspecting, reviewing or studying the financial or other management of the public body".
  Under the wording, it is still possible that there would be some concerns.
  One of the questions that I put to the Minister—I forgive him for not being able to answer it—is whether there had been definitional difficulties or issues arising under the Government Resource and Accounts Act 2000. I would be interested to know whether the

  GC 7
  Minister's officials could look into the matter and write to Members of the Committee to see how the definition works in practice.
  Lord Davies of Oldham: I am grateful to the noble Baroness and accept her intervention. If we can throw light on the issue as being the result of an Act that, as she has identified, has been on the statute book for only four short years, we will write to her and to the noble Lord.
  Lord Livsey of Talgarth: I am perfectly satisfied with the Minister's explanation of a supervisory function. I am obviously interested in knowing whether previous Acts of Parliament are complied with. We will be interested to hear the Minister's reply on that. I can think of many instances in Wales where bodies use public money and should be the subject of supervision and I am therefore happy with the Minister's remarks.
  Baroness Noakes:I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 1 agreed to.
  Clause 2 [Additional functions of Auditor General]:
  Baroness Noakes Baroness Noakes moved Amendment No. 3:
  Page 2, line 41, leave out ", if so required by a relevant body,"
  The noble Baroness said: The amendment would delete the words,
  "if so required by a relevant body"
  from subsection (1) of new Section 96B of the Government of Wales Act 1998, inserted by Clause 2.
  We are dealing here with the certifying of grant claims, accounts and returns either by bodies audited by the Auditor General for Wales or local authorities in Wales. Most of the time, those claims will result in money being paid by the Assembly to various bodies. The question is whether certification should in any sense be optional, as the current drafting implies. Certification is a very important process and should be an integral part of the Auditor General's duty. It should not be left to a relevant body to request the Auditor General to certify. He should have a positive and proactive role.
  If the Auditor General does not certify, who else will do it? Are bodies to be left to shop around for certification of their claims? That represents a lax approach and could easily lead to duplication of effort and perhaps anomalies.
  I would be grateful if the Minister could tell us what happens with the certification of grant claims currently under the Audit Commission regime. I concede that the Audit Commission Act 1998 is drafted in the same terms as the Bill, but how does that work in practice? Is there any optionality over certification? I beg to move.
  Lord Davies of Oldham: The amendment would have the effect of requiring the Auditor General to make arrangements for the certification of claims, returns or accounts relating to bodies for which he has no statutory audit responsibilities. The fact that he
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  would be required to perform the functions irrespective of his wider audit relationship with a body could result in him undertaking such work in a complete vacuum—which, the noble Baroness will recognise, would be a most unfortunate circumstance—without any background knowledge of what he is meant to certify, for whom and why.
  The intention of the provision in Clause 2, which inserts a new Section 96B into the Government of Wales Act, is to clarify the fact that the Auditor General is required, upon request, to make arrangements for the certification of claims, returns or accounts relating to public bodies for which he does have statutory responsibilities. These would of course include local government bodies. Claims in respect of European Community grant schemes would be an example of such certification work.
  Under the Audit Commission Act 1998 the bodies to which the noble Baroness referred have the ability to shop around and are not required to go to the Audit Commission. The noble Baroness will recognise that the amendment could create difficulties for the Auditor General for Wales in that he could be asked to carry out functions which are out of context with his ability to do so.
  I hope that clarifies at least one aspect of the noble Baroness's question and that she will withdraw the amendment.
  Baroness Noakes: I thank the Minister for his reply. I am slightly puzzled in regard to claims being made by bodies for which the Auditor General is not responsible. The "relevant bodies" are those whose accounts he audits and local government bodies, for which he is responsible for appointing the auditor. So we are talking about claims made by bodies within the envelope, as I understand it, of the audit arrangements in Wales.
  I am not clear about the first point raised by the Minister. I find it rather mystifying and worrying that in England, and now in Wales, bodies can "shop around" for those who would give opinions on grant certificates; that they do not have to go to a person who knows about the body making the claim. Our fundamental approach to the clause is that the right person to "sign off' such claims, accounts, terms and so on should be someone who knows the bodies—that is, either the Auditor General or, if the drafting is improved, auditors appointed by him in relation to local authorities. Shopping around is a most undesirable practice.
  I shall read carefully what the Minister has said in Hansard but, I confess, I remain a little concerned about this issue. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  The Deputy Chairman of Committees: Before calling the next amendment, I should inform the Committee that if Amendment No. 4 is agreed to. I cannot call Amendment No. 5 under the pre-emption rules.
  Baroness Noakes Baroness Noakes moved Amendment no. 4:
  Page 3, leave out lines 36 to 42.
  The noble Baroness said: Amendment No. 4 seeks to leave out subsection (3) of new Section 96C of the Government of Wales Act as inserted by Clause 2. It is a probing amendment designed to discover what this subsection is all about.
  Subsection (3) allows the Auditor General for Wales to make arrangements with the three kinds of organisations set out in the subsection—namely, a "relevant authority", which is defined in subsection (5) as a government department, local authority or holder of a public office; a "qualified auditor", who is someone who can audit a local authority under the terms of Clause 14; or an "accountancy body", which is also defined and includes bodies such as the Institute of Chartered Accountants in England and Wales, of which, I remind the Committee, I am a member and former president.
  The Explanatory Notes go some way to explaining this subsection as they give examples of how and why the Auditor General might want to make arrangements with, for example, the Assembly Social Services Inspectorate. The notes do not explain why specific legislative cover is required. I could not see similar provisions in the legislation covering the Audit Commission or the Comptroller and Auditor General. Why is the position in Wales different?
  The notes do not help at all with what kind of arrangements might be made with qualified auditors or accountancy bodies. What kinds of arrangements would be made and for what purpose? Will the Minister also say why the Auditor General needs to make arrangements with local authority auditors who are appointed by him under Clause 14? What are these arrangements? Will the Minister say what kinds of things they might be involved with? Are similar powers contained in legislation governing the Audit Commission or the Comptroller and Auditor General? I could not see from a brief scan that there were equivalent provisions.
  Will the Minister say which accountancy bodies the Assembly intends to approve under paragraph (b) of the definition of "accountancy body" in subsection (5)? This refers to European Union bodies of accountants and I would be fascinated to discover what kinds of European bodies might conceivably be relevant to the work of the Auditor General and his work in Wales, given the different context of public sector audit in Europe. I can just about understand the Auditor General needing to make arrangements with supreme audit institutions in Europe, but the clause does not seem to have a power to that effect. I am clearly nothing like imaginative enough to see what accountancy bodies in Europe would be relevant. I beg to move.
  Lord Livsey of Talgarth: I support the amendment, which seeks to take out subsection (3). I am not so well qualified as the noble Baroness, Lady Noakes—I am more of an applied management agricultural accountant than anything else—but, nonetheless, I can see the point—
  4.3 p.m.
  The Deputy Chairman of Committees: I have to interrupt. A Division has been called in the Chamber. We will reassemble at 14 minutes past the hour.
  (The Sitting was suspended for a Division in the House from 4.3 to 4.14 p.m.)
  Lord Livsey of Talgarth: To continue, I was saying that I have some expertise in accountancy, but nothing like that of the noble Baroness.
  Subsection (3) in new Section 96C is widely drawn. We are concerned about ensuring that the independence of the auditing process is strengthened. New Section 96C(1) states,
  "Arrangements may be made between the Auditor General for Wales and a relevant authority".
  That new section spells out a number of things that can be done, which seem to be satisfactory. However, in subsection (3) it is spelt out again in a rather different way. Obviously, one needs a bit of flexibility, but the issue of auditing of public funds is important as far as the administration of the dispersal of public funds is concerned. There should be no loophole in the Bill if at all possible—not that I am saying that if there were that it would be improperly used. I would like an assurance from the Minister that subsection (3) is necessary, and if so, the reason why.
  Lord Davies of Oldham: Highly qualified noble Lords on the other side of the Committee have been discounting their accountancy qualifications. I am one of those few people who get into trouble with the tax authorities by overpaying them from year to year. My accountancy skills are clearly absolutely rudimentary, and it is not because of them that I am in my place at present.
  I assure noble Lords that we are concerned about Amendment No. 4. I will come on to the issue of detail in a moment. If the amendment were pressed, it could prevent or hinder the Auditor General from making arrangements with other regulatory and audit bodies for co-operation and mutual assistance that would be mutually beneficial to the exercise of their respective functions. It could also hamper his ability to participate in joint working and co-operation.
  The desirability of wide powers of co-operation was endorsed by the pre-legislative scrutiny committee during our consultation on this Bill, particularly by the Welsh Affairs Select Committee. A key principle of the Bill is to ensure that there is greater collaborative working through joint review work and strategic forward planning between audit and regulatory bodies, including bodies from elsewhere in the UK, such as Audit Scotland, and bodies from outside the UK.
  Increased collaborative working would also reduce the administrative burdens on client organisations. The Auditor General may well by virtue of his office have implied power to enter into arrangements, but without this specific provision, each of the categories of bodies referred to would have to consider whether its powers were sufficiently wide to enable it to enter

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  into such an arrangement. That is the point of the inquiry by the noble Lord, Lord Livsey of Talgarth. The key objective of the clause is to make clear the powers of all prospective parties to enter such arrangements.
  The purpose of the proposed new Section 96C is to put beyond doubt that all prospective parties to the arrangement have the legal power to enter into the arrangement. Some bodies, for example statutory bodies, will have only expressed legislative powers, or those that can reasonably and properly be implied. We want to ensure that it is clear beyond all doubt that such persons or bodies will have the power to enter into such arrangements.
  The noble Baroness also asked what bodies the Assembly might approve under subsection (5)(b). The most major UK body of public accountants, CIPFA, would currently need such approval. Many local government auditors—currently appointed by the Audit Commission—are, as the noble Baroness will know, drawn from CIPFA. The kind of arrangements that the Auditor General for Wales might enter into with an EU accountancy body are joint organisation of conferences, or training or secondment of staff.
  There are reasons why we need the provisions in the clause for the supervision of public funds. I ask the noble Baroness to recognise that there would be a significant limitation on the Auditor General if the amendment were pressed.
  Baroness Noakes: I thank the noble Lord, Lord Livsey of Talgarth, for his contribution and the Minister for his reply, which in some measure explains what subsection (3) is about—in particular, ensuring that all those mentioned can enter into such arrangements. It is curious that arrangements have been entered into for many years, certainly involving the Comptroller and Auditor General, about which I know a little, without any such formal power. I am fairly sure that the Audit Commission too has been entering such arrangements. We tabled the amendment because it looked like such an unusual provision to include in legislation.
  That also raises the question of what happens to the bodies that are not named here. The implication is that the Auditor General can enter into arrangements only under either subsection (1) or subsection (3). Many bodies are not covered by those subsections. I mentioned a supreme audit institution, the equivalent of the Comptroller and Auditor General or the National Audit Office, in France or Germany. That would not be covered, and therefore it would be improper for the Auditor General for Wales to enter into any such arrangements.
  One problem with trying to write things down is that one therefore ends up with the problem of what is not written down. I would like to think about the Minister's reply in a little more detail. At one level, it seemed to explain why the subsection is needed, but
  GC 12
  that raised a lot of other questions in my mind. I would like to think about it further. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Noakes Baroness Noakes moved Amendment No. 5:
  Page 3, line 42, at end insert—
  "( ) Arrangements may not be made under subsection (1) or (3) unless the Auditor General for Wales has satisfied himself that the independence of any audits carried out by him or by a person appointed by him is not impaired by the arrangements."
  The noble Baroness said: We stay with this clause and come to the issue of the independence of the Auditor General for Wales, to which the noble Lord, Lord Livsey of Talgarth, referred in his comments on the previous amendment. Amendment No. 5 inserts a new subsection into new Section 96C of the Government of Wales Act 1998 inserted by Clause 2. This new subsection states that arrangements that the Auditor General for Wales makes with the various bodies and for the various purposes in subsections (1) to (3) must not impair the independence of the Auditor General. At present, the Auditor General for Wales is prohibited by Section 92 of the Government of Wales Act 1998 from entering into any arrangements for the Assembly that involve the Auditor General or the Assembly carrying out each other's functions or providing each other with administrative or similar services.
  Clause 9 removes that prohibition, and instead creates the wide-ranging powers in new Section 96C, which will allow the Auditor General to work in and for any of the bodies for which he will have responsibility for auditing under the Bill. Without further restriction, that raises some issues regarding the independence of the Auditor General. We debated that at Second Reading, and I explained that auditor independence, whether of public or private sector auditors, can be impaired by the provision of non-audit services or by having to audit one's own work. That is allowed under new Section 96C. The Committee may well be aware that auditor independence is one of the hottest issues in the private sector. We must be sure that we achieve the highest standards in the public sector.
  At Second Reading, the Minister said that it will be for the Auditor General to ensure that no conflict of interest arises. The Minister then said,
  "It is not necessary to limit Clause 2 to situations that would not give rise to conflicts of interest, as that may be too restrictive".—[Official Report, 9/12/03; col. 729.]
  I profoundly disagree. We must preserve the integrity of public audit, and we must ensure that auditor independence is not impaired. I do not express this in terms of conflict of interest, because a genuine conflict is most unlikely. I use the more neutral term, "impairment of independence". That means not only actual impairment, but perceived impairment, because perception is just as important as fact when dealing with the independence of an auditor.
  I should be surprised if there was anything between me and the Auditor General for Wales on the issue of independence. I do not believe that he or any of his successors would voluntarily impair their independence. The Explanatory Notes to Clause 9 mention protocols to ensure that no conflict of interest arises. My solution is to place in the Bill a clear obligation on the Auditor General to satisfy himself that the arrangements entered into—I am not trying to prohibit such arrangements—do not impair independence. Protocols could then follow, and would be sensible, but they would be firmly rooted in a clear statutory requirement.
  The Bill marks a considerable shift from the Government of Wales Act 1998, with its blanket prohibition on working for the Assembly, and moves virtually to a free for all. We do not oppose the basic liberalisation implicit in new Section 96C, as that is likely to provide healthy flexibility for the Auditor General. We believe that it is unwise to move without a clear and explicit reference to the crucial issue of audit independence. I beg to move.
  Lord Livsey of Talgarth: I have already made a point about independence. I am pleased that the noble Baroness. Lady Noakes, said that there is a need for flexibility to be spelt out. Given that we are creating an Auditor General for Wales in one body, I wonder whether the need to specify in new Section 96C(3) various professionals who can assist—such as a qualified auditor or an accountancy body—is affected by possible restrictions of finance. I do not know, but I know that it is common practice in Wales for professionally qualified people to work together, often because of lack of resources. I would like the Minister to comment on that.
  4.30 p.m.
  Lord Davies of Oldham: I am grateful to both noble Lords for their contributions to the amendment. I am grateful in particular to the noble Lord, Lord Livsey, because he has expressed certain reservations which we share. We do not believe that a statutory duty is necessary to ensure that the Auditor General upholds the highest standards of independence. After all, the amendment would place the Auditor General under a statutory duty to satisfy himself that his independence in conducting audits is not impaired as a result of him entering into co-operative arrangements, including co-operative arrangements with the National Assembly provided for in the clause.
  The Auditor General of course abides by the Auditing Practices Board guidance on standards of independence. Objectivity and independence are two of the key ethical principles that govern auditors' professional responsibilities.
  My understanding is that the board is in discussion with the national audit agencies, which include the Auditor General for Wales and his staff, on the adoption of ethical standards that the board proposes to introduce later this year. The likelihood is that the standards will he adopted and will apply to all auditors practising in the public sector as well as the private
  GC 14
  sector. Agreement is a matter for the audit agencies and the board, but we are of the view that it is wholly appropriate for common standards to apply across the audit profession and would welcome agreement on this. I am confident that agreement can be reached, particularly given the Auditor General's adherence to existing Auditing Practices Board guidance.
  The Auditor General also has in place local protocols that ensure independence and guard against conflict of interest. For instance, in the case of a secondment of National Audit Office staff at a client organisation, the member of staff will, upon return to the NAO, not perform any audit functions in respect of that body for a period of three years. It will be open to the Auditor General to consider existing arrangements and strengthen them if he considers it necessary.
  The noble Baroness argued persuasively that these protocols could be developed subsequent to the statutory provision and within that framework. However, we believe that all desirable public safeguards will be achieved through this process and we do not believe that this statutory duty is necessary. For that reason, I ask the noble Baroness to withdraw her amendment.
  Baroness Noakes: I thank the noble Lord, Lord Livsey, for his support for the concept. I also thank the Minister for his reply, which was not a surprise. I reiterate that I tabled the amendment because of a change in the law. Having moved from a restrictive position to something which would have allowed activities that would open up the possibility of impaired independence, I considered that we needed something else.
  If it were beyond peradventure that the Auditor General for Wales was subject to a clearly defined body of ethical principles, the concerns might be allayed, but that is not the case. The Auditing Practices Board—these bodies change their names over time—does not automatically cover a body such as the Auditor General for Wales or the related audit office. The Auditing Practices Board applies to certain qualified accounting bodies and does not apply directly to national public audit bodies.
  I understand that the Government do not believe there should be a statutory duty, but as that duty would result only in what would be the outcome in any event, I cannot see what harm the amendment would do. Indeed, I believe that it would strengthen the hand of those who believe in high-quality public audit—that includes the Auditor General for Wales—to have firm protocols and guidelines linked to those which exist for private sector audit activities.
  I will leave the matter for the time being, saying that I was disappointed in the Minister's response. It is an area where it looks as though there is one rule for the private sector and one rule for the public sector. We should be proclaiming loudly and clearly that the core of our arrangements to public audit is that impaired independence is not acceptable. We should not leave the matter to arrangements which may or may not

  GC 15
  exist outside the statutory framework. I beg leave to withdraw the amendment but I want to think further about the matter.
  Amendment, by leave, withdrawn.
  Clause 2 agreed to.
  Clause 3 [Studies for improving economy etc in services]:
  Baroness Noakes Baroness Noakes moved Amendment No. 6:
  Page 4, leave out lines 29 and 30.
  The noble Baroness said: In moving Amendment No. 6, I shall speak also to Amendment No. 15, which is similar. Amendment No. 6 amends the new Section 145A of the Government of Wales Act inserted by Clause 3 of the Bill. It deletes subsection (3), which disbars the Auditor General from questioning the merits of the policy objectives of a body when he carries out a value-for-money study. Amendment No. 15 deals with similar value-for-money audits of registered social landlords in Clause 5.
  I may be mistaken, but I could find no similar reference in Clause 41 in relation to the Auditor General's value-for-money studies in local government. Perhaps the Minister could explain that when he replies.
  Let me be clear that, from a governmental standpoint, we understand why the Auditor General should not be entitled to question the merits of policy objectives. Nevertheless, in practice, it is difficult to see how he can avoid a comment, possibly oblique, if in the course of his study he discovers that a body's objectives are contributing to inefficiency or ineffectiveness. It is the ineffectiveness or inefficiency that he is reporting which he thinks should be removed.
  A good example, although perhaps controversial, is the way in which targets in the NHS have led to problems of effectiveness and probably also problems of efficiency and economy. Not questioning the targets policy would be inconceivable.
  The phrasing of subsection (3) discourages but does not totally prohibit the Auditor General from making such comments. That is my reading of it and I hope that the Minister will confirm that my understanding is correct. If not, the removal of the subsection would be desirable not only in Clause 3 but also in Clauses 4 and 5. I mention that as we have not tabled an amendment to Clause 4, but I hope that the Minister will take the amendment in spirit if not in fact.
  My noble friend Lord Roberts tells me that a number of service areas in Wales would benefit greatly from studies to improve their value for money. I am sorry he is not here to give us his private hit list. We are anxious that the Auditor General is not handicapped in doing his work and is not unduly constrained by policy considerations. Our view is that if the implementation of a policy leads to defects being
  GC 16
  picked up in a value-for-money audit, the policy may itself be faulty and if that is the case, the sooner it is realised the better. I beg to move.
  Lord Livsey of Talgarth: I shall comment briefly on the amendment. There is a clear balancing line between two separate objectives. Surely, one would not wish to see the Auditor General having an onslaught on policy objectives. His objectives must be those of financial propriety. That may impinge or not on the outcome of policy objectives. It is important that he is objective about that and he should look at the financial issues involved.
  Subsection (4) could be misinterpreted. However, if the Minister can convince me that there is a sharp differential between the two, and that there is no free-for-all in the policy objectives resulting in enormous financial liabilities, the consequences of which the Auditor General must pick up, that is an important distinction. It ought to be a situation in which the Auditor General acts from a financial objective in controlling the excesses of policy objectives. He does not have to question them outright, but nevertheless he picks up the bill at the end and perhaps charges a bill, too.
  Lord Elis-Thomas: I declare an interest as Presiding Officer of the National Assembly for Wales. I assure the Committee that I do not intend to intervene frequently in Committee; I apologise for not having been present for Second Reading. However, an aspect of the amendment concerns me. That is the relationship that has developed—in my view, very successfully—between the Office of the Auditor General for Wales and the Audit Committee of the National Assembly. The Audit Committee is itself precluded by standing order—of course, we could amend our standing orders by two-thirds majority—from scrutinising policy implications in its reports. That fits with the role of Auditor General.
  There have been several cases, into which I shall not go this afternoon, where various criticism of government or Assembly-sponsored public bodies has been made. I have been impressed by the way in which both the Audit Committee and the Auditor General and his staff in Wales in their reports and Ministers, their advisers and other political actors have been able to skate along that thin ice or thin line to which the noble Lord, Lord Livsey, referred. I would not want us to do anything at this stage of the transition of responsibilities to create any difficulty for the Audit Committee of the Assembly in its relationship with the Auditor General. I therefore wish the amendment to be withdrawn.
  Lord Davies of Oldham: One thing that I shall not try to do is to skate along a thin line—thin ice is difficult enough, but a thin line would be well beyond my capacity. However, I agree that the issue of where the line is drawn between issues of policy and proper supervisory control is crucial. Of course the Auditor General can question the effects of a policy objective—I cannot see how he could carry out his job of scrutiny unless that did not occur from time to time. What he

  GC 17
  cannot do is question the merits of the policy objective, because that would be to stray from his proper role into that which we would all jealously guard of those who are accountable in another sense to the public for the merits of policy as it is developed and designed.
  The amendment would delete the prohibition on being able to question the merits of the policy objectives of any relevant body through the course of undertaking or promoting comparative cross-sectoral studies on economy, efficiency and effectiveness. It is a long-standing principle that the Auditor General, and, similarly, the Comptroller and Auditor General in respect of England, cannot question the policy objectives of a body for which he has audit responsibility. He may express a view on how a body sets about achieving its objectives and whether its approach represents value for money. He may also inform future strategic policy development, but he is not there to comment on the merits of policy—the point zealously guarded by the noble Lord, Lord Elis-Thomas, from his entirely neutral position as Presiding Officer of the Assembly. To question the merits of policy could compromise his independence if, for instance, he were to undertake audit work relating to a policy area on the merits of which he had previously expressed a view. That would not be conducive to the exercise of his functions.
  The amendment would raise an inconsistency between the Auditor General's powers in respect of cross-sectoral studies provided for under the clause and studies in respect of the Assembly and Assembly-funded bodies undertaken under the Government of Wales Act 1998, where the prohibition on questioning policy merits would still apply. For those reasons, it would be inappropriate for the Auditor General to be put in the position of having the capacity—perhaps, the obligation—to question the merits of policy objectives while exercising his functions.
  The noble Baroness asked about audits of local authorities, where a similar inhibition apparently does not apply. The Auditor General would not be the statutory auditor of local government bodies; he would appoint auditors. Therefore, in respect of local government, he would not have the direct responsibility of being a statutory auditor, questioning the policy. That is the difference in the position for local government.
  On the noble Baroness's more general point, I recognise that we are debating an area where there is what is rightly defined as a narrow line. We can envisage where it would be entirely appropriate for the Auditor General to comment on policy to inform future strategic developments. However, we seek to protect the position that he does not cross the line to become a participant in the debate about the merits of policy. I fear that the amendment would open that possibility; that is why I ask the noble Baroness to withdraw it.
  4.45 p.m.
  Baroness Noakes: I thank those Members of the Committee who have taken part in this small debate
  GC 18
  and the Minister for his reply. I put two specific questions to him. The first related to local authority value for money studies. In his response, he seemed to say that the Auditor General would not carry out such studies, although Clause 41 is drafted in terms to state:
  "The Auditor General for Wales must for each financial year undertake or promote studies designed to enable him to make recommendations"—
  on value for money, to paraphrase. So there is similar provision there. Of course, there is reference to avoiding discussing the merits of policy, which continues to mystify me.
  The other thing that mystifies me is whether he is debarred from commenting on the merits of policy. Clause 3(3) states:
  "do not entitle the Auditor General for Wales to question the merits",
  which is rather curious drafting, when we think about it. If he was not to do so, it would state something like, "The Auditor General for Wales shall not question the merits". That is an interesting difference of drafting that implies that he may not be entitled to do so, but probably can, if he chooses to. That is the fine line that Auditors General have been carefully treading throughout their history: finding a way to comment on policy even when they do not comment on the merits of policy.
  I leave those two questions with the Minister. He may want his officials to consider them and write to me outwith the Committee, but they are puzzling aspects. I tabled the amendments so that we could have that debate on what is inevitably a difficult area, but those two points are worthy of consideration. With those words, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 3 agreed to.
  Clause 4 [Studies at request of educational bodies]:
  The Deputy Chairman of Committees: Before I call Amendment No. 7, I must inform the Committee that if it were to be agreed, I should not be able to call Amendment No. 8 under the pre-emption rules.
  Baroness Noakes Baroness Noakes moved Amendment No. 7:
  Page 5, line 15, leave out from "Table" to end of line 17.
  The noble Baroness said: I shall speak also to Amendments Nos. 8 and 11 in this group. The amendments relate to value for money studies of educational bodies under new Section 145B of the Government of Wales Act 1998 inserted by Clause 4.
  We certainly welcome the Auditor General carrying out value for money studies in educational bodies, but they can be carried out only at the request of the educational body or of the body responsible for that educational body. The position of educational bodies under Clause 4 is thus totally different from that of the bodies within Clause 3. which the Auditor General can study at will. Consent is the keynote of Clause 4 and we are bound to press the Government on by there is that special treatment for educational institutions. Amendments Nos. 7 and 8 provide different ways of deleting that need for consent.
  The other bodies that are dependent on public funds are subject to value for money studies. Our question is: why is the clause drafted in that way? We wondered whether it had something to do with the clause needing to be consistent with other educational legislation as envisaged in subsection (7). That is why Amendment No 7 deletes that subsection on a probing basis. I hope that the Minister will be able to explain that subsection, because we have failed to understand it. We do not believe that studies should be left to the bodies themselves. After all, they are in receipt of significant amounts of public money and the value for money with which they use those funds is clearly important.
  Are the requesting bodies listed in the table likely to ask for studies or will they be reluctant to do so for fear of revealing their own past or continuing shortcomings? It is only human nature not to volunteer for challenge and scrutiny, especially if there is any doubt whether all is not well.
  My noble friend Lord Roberts spoke at Second Reading about a body called Education Learning Wales (ELWa), which was the subject of a hard-hitting report by the Auditor General. I understand that ELWa is formally known as the National Council for Education and Training for Wales, and appears in both columns of the table in new Section 145B. Do we think that ELWa would have volunteered itself for a value for money study? I think not.
  We believe that the Auditor General should have the same power to study educational institutions as he has to study relevant bodies in Clause 3 and that he should not be dependent on requests from bodies to initiate studies. Also, he should not need their consent to report to the Assembly, as is provided in subsection (3) of new Section 145B. Again, perhaps the Minister could treat that as an amendment in spirit, as we have not tabled it for consideration, but that forms part of the relation between the Auditor General and educational institutions.
  The entire approach to educational institutions in the clause seems to put them on a protective pedestal and provides an example of an area where the Bill could make better, stronger provision for public audit in Wales but fails to do so. I beg to move.
  Lord Livsey of Talgarth: This, again, is problematic as regards the Assembly. The noble Lord, Lord Thomas, mentioned the activities of the Audit Committee of the National Assembly. Reference has been made to ELWa in that context. The Assembly's Audit Committee has discharged much good work in its critique of the operations of ELWa. Given that the committee is comprised of democratic representatives, some of the criticism has resulted in greater efficiency within ELWa.
  In principle, we agree with the concept of independence of the auditor in considering educational matters, but—and it is a big but—if we consider the activities of the Higher Education Funding Council for Wales, which is referred to in the
  GC 20
  clause, we must remember that the university colleges in Wales that form part of the federal University of Wales do not stand up well in competition for funding with their English counterparts. Unless they have a certain amount of flexibility to make up the gap without, shall we say, undue interference from the auditor, they may be placed at even greater disadvantage.
  So there is a need for ELWa, in particular, to be considered in its entirety, but if university colleges in the higher education system in Wales have their wings clipped, that may put them at even greater disadvantage. About five years ago, students in Wales were underfunded by about £300 per student. I do not know whether that still applies. However, we need to look at the situation carefully.
  We agree that the Auditor General should be able to look independently at a wide number of activities, but I counsel a little caution. If the powers are used excessively and in a non-objective manner, we could be in trouble. So I find the amendment rather difficult. While we want to see independence, we do not want to see innovation in the higher education sector stifled.
  Lord Davies of Oldham: I am grateful to those noble Lords who have participated in our short debate on the amendment. I am not surprised that ELWa has emerged quite early in the Committee's deliberations. No doubt I shall be buffeted from time to time by critical remarks about that body. However, I am on secure ground here and I shall make the position clear as regards the amendment. While I hold a robust position I intend to make the most of it.
  The Auditor General is the statutory auditor of ELWa and has the power to undertake studies. The burden of our anxiety about the amendment is that Clause 4 will enable ELWa to request a study of an education body which it funds, but which is not within the remit of the Auditor General. So the problems with regard to ELWa are covered effectively and properly. The issue regarding the position of ELWa remains a bone of contention between us and the noble Baroness, Lady Noakes, in moving her amendment; that is, whether individual bodies should be subject to the Auditor General when they have not requested an investigation.
  The noble Baroness has indicated that people rarely volunteer for such action if they are in difficulty. Of course that is true in the generality of cases, but it is not true in all circumstances. I am very loath to bring to the Committee experience from the English dimension in education because I recognise the thorny path down which I would have to tread, but I can recall institutions in England which have been in that kind of trouble and where only the request for a proper investigation of what has gone wrong has set them back once again on the path of virtue. That was certainly my experience when I chaired a funding body for further education. We had no reservations about ensuring that audits were carried out. Furthermore, we would call in support at a national level when we

  GC 21
  thought that the circumstances were so grievous that we needed full scrutiny. I can confirm that that was done.
  However, I understand the argument of the noble Baroness. In general people tend to keep their failings and sins as quiet as possible. So the issue is whether it is right that the Auditor General for Wales should be entitled to engage in such studies on individual educational bodies.
  The noble Lord, Lord Livsey, has already presented real reservations about why that should be so. With regard to higher education, it is certainly clear that universities—the University of Wales is a particularly complex institution—have a proper and jealously guarded level of independence. That is quite critical, as he indicated, to the development of much of their enterprising research work. One cannot push back the frontiers of knowledge if one is constrained by people with limited knowledge hindering and restricting certain areas of work. Such an institution must have proper freedoms. That is why we have careful relationships in higher education in terms of degrees of freedom.
  It is surely appropriate that such studies by the Auditor General should be undertaken only on request. He is not the statutory auditor of the individual educational institutions, and for very good reasons. They are responsible for the appointment of their own auditors. The combined effect of Amendments Nos. 7 and 8 would give the Auditor General complete discretion to undertake such studies, irrespective of whether they were requested and of the fact that he would have no wider statutory audit functions in respect of such bodies.
  The Auditor General already has the ability under Section 145 of the Government of Wales Act to undertake economy, efficiency and effectiveness studies in the higher and further education sectors, which can touch on and compare the practice of individual institutions in terms of how resources have been used. That is a very important part of his role in relation to funding organisations. However, that is different from his having the power to investigate and carry out a study of an individual educational institution. It would be incongruous and would lead to confusion over the respective roles of the Auditor General and an educational institution's own auditor if the Auditor General were able to undertake unsolicited economy, efficiency and effectiveness studies in respect of bodies for which he had no wider statutory audit functions.
  I shall move on to Amendment No. 11. Clause 14 relates specifically to the appointment of auditors by the Auditor General for local government bodies. Higher and further education simply does not fall within that category. The provision in Clause 4(5) to enable the Auditor General to arrange for one or more members of his staff to audit a corporation's accounts, subject to appointment by a corporation, is consistent with Clause 9 and others.
  5 p.m.
  Baroness Noakes: That amendment is in the next group.
  Lord Davies of Oldham: Forgive me if I have moved on in error. The noble Baroness is quite right. The groupings changed not long before the Committee began, which has caused a little difficulty on this side, particularly as I am less familiar with the Bill than I would like to be.
  Amendment No. 11 would delete the reference to construing Clause 4 as one with other education legislation. The provision is essentially one of clarification and is common to education legislation. It enables definitions in other education legislation to be relied on to clarify meaning. For instance, were there to be uncertainty about whether an educational establishment was an HE institution for the purpose of a 3Es study under Clause 4, the definition of such an institution set out in the Further and Higher Education Act 1992 and the way in which the courts have interpreted it would be relied on for clarification.
  We recognise the need for clarification. I seek to commend to the Committee the reasons why it is important that the bodies are subject to a different auditing regime from that that would be introduced by the amendment. On that basis, I hope that the noble Baroness will feel able to withdraw it.
  Baroness Noakes: Before I do so, I want to follow up on one or two points. I think that the Minister said that educational institutions already fell within Section 145 of the Government of Wales Act and Schedule 17. I have read the legislation very briefly but could not see that. Educational bodies did not seem to be covered, so the clause seems to create the ability to do value-for-money work within educational bodies.
  Lord Davies of Oldham: I hope that I presented the position accurately—that the law is contained within the higher education Act for Wales. I think that I have given the correct definition of where HE institutions are located.
  Baroness Noakes: I will then of course read carefully in Hansard what the Minister said, as I clearly misunderstood when I listened to him.
  My second question goes back to ELWa, which the Minister said was already audited by the Auditor General, so that was all right. Why then is ELWa covered in proposed new Section 145B(1)? Why are we specifically referring to ELWa, and not simply its ability to ask for value-for-money studies of other institutions? It is specifically covered in both the "Subject of study" and the "Requesting body" columns of that proposed new section. If it is already within the ambit, why is it covered again? Is there any option for ELWa as to whether it has "value for money" studies or not?
  Lord Davies of Oldham: The answer to the question is no. Proposed new Section 145B is almost identical to Section 36 of the Audit Commission Act 1998. It

  GC 23
  simply attempts to transfer the functions in relation to Welsh education bodies to the Auditor General for Wales.
  Baroness Noakes: In that case, ELWa is not within the requirement to have a value-for-money study unless it requests a value-for-money study. Is that correct?
  Lord Davies of Oldham: The situation, as ever, is more complex than I would have wished. For backward-looking studies, we are talking about the Government of Wales Act. For forward-looking studies, we are talking about the Act to which I referred.
  Baroness Noakes: Again, I can see that I shall have to read the Minister's words with care and, if necessary, come back to him after the Grand Committee is completed.
  I thank the noble Lord, Lord Livsey, for his contribution to the debate. He talked about the disadvantages of funding for educational bodies in Wales, on which I have no briefing. If funds were particularly scarce, it would seem even more important that those bodies used the money with the utmost economy, efficiency and effectiveness, and therefore a case should be made that they should be within the Auditor General's remit and not outside it.
  I thank the Minister in particular for his explanation of subsection (7), which will doubtless make complete sense on rereading. I am sorry that he was confused by late changes to amendments. We gave notification about those changes before 9.30 this morning; if it took a long time to reach him, that is nothing to do with us.
  Lord Davies of Oldham: I assume that to be the case. I was not in any way, shape or form being accusatory, merely apologetic.
  Baroness Noakes: On that note, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 8 not moved.]
  Baroness Noakes Baroness Noakes moved Amendment No. 9:
  Page 6, line 9, at end insert—
  "( ) be appointed to audit their accounts;"
  The noble Baroness said: I shall also speak to Amendment No. 10. Both the amendments concern Clause 4, which purports, according to its title, to deal with studies at the request of educational bodies, but in practice goes wider and deals with audits of those bodies. My amendments deal with the audit part of the clause.
  Proposed new Section 145B(5) deals with audits of higher and further education corporations. The Auditor General can advise the corporations on the appointment of auditors or arrange for a member of his staff to be appointed auditor, but the Auditor General himself cannot be appointed auditor. Amendment No. 9 seeks to rectify that omission. I am
  GC 24
  sure that a higher or further education authority would much prefer to have the Auditor General's own name appearing on the audit report, rather than some much more anonymous, although doubtless worthy, member of his staff. I hope that the Government share that view.
  As I mentioned, proposed new subsection (5) allows the Auditor General to arrange for a member of his staff to be appointed auditor to a higher or further education establishment. Amendment No. 10 merely ensures that the member of staff is properly qualified by linking the qualification to that in Clause 14, under which the Auditor General's staff may be appointed to the audit of a local government body in Wales. I hope that that amendment is non-contentious and that the Minister will be prepared to accept it. I beg to move.
  Lord Davies of Oldham: Amendment No. 9 would have the effect of enabling the Auditor General to be appointed as the statutory auditor of an education corporation on a permanent basis. The intention of Clause 5 is to add a proposed new section to the Government of Wales Act. It would enable the Auditor General, at the request of a higher or further education corporation, to advise it in connection with the appointment of persons to audit its accounts, and to arrange for its accounts for a financial year to be audited by one or more members of his staff, appointed by the corporation. Those functions are currently undertaken in respect of England and Wales by the Audit Commission under the Audit Commission Act.
  On publication of the draft Bill for consultation in April 2003, the Assembly undertook that if at some point in future it were to propose to incorporate further or higher education corporations as a category within the Auditor General's remit, such a proposal would be subject to a separate consultation exercise. It would therefore be preferable to deal with such bodies as a class rather than on a piecemeal basis. Any future exercise could take account of arrangements for both financial audit and value for money audit through economy, efficiency and effectiveness studies. Nothing in the terms of Clause 4(5) prevents the Auditor General and an education body from renewing an audit arrangement for a further financial year.
  The problem with the amendment is that it would create a piecemeal approach to the financial audit of higher and further education corporations, and would run counter to the National Assembly's commitment to consult on any future proposed changes to the audit arrangement for such bodies. Clause 63, in conjunction with Section 144 of the Government of Wales Act, would enable further and higher education institutions to be added to the Auditor General's remit at some future time.
  As for Amendment No. 10, we have not sought to affect the way in which the Auditor General appoints his own staff or chooses to use them. The amendment would restrict his ability fully to deal with his own staff in that context.

  GC 25
  We have debated the question, which we recognised was important, of the accountability of HE and further education institutions. It is clear that the Assembly proposes to consider the issue further with regard to the appropriate audit arrangements. However, as it has made the commitment to further consultation on the issue—we all recognise that it is interesting and has implications for significant institutions—we want to preserve the Bill as it stands. I ask the noble Baroness to withdraw her amendment.
  5.15 p.m.
  Baroness Noakes: I thank the Minister for enlightening the Committee on the plans that the Assembly may have and on which it may consult, and the legislative provisions available should the Assembly decide to extend to further institutions. That is fine, but I do not think that my amendments had anything to do with that. They merely gave a further option to those higher education bodies that chose to become involved with the Auditor General. It is a pity that such an option is not available to them.
  Amendment No. 10 would have ensured that, if an auditor were appointed, he would be qualified. The Auditor General is restricted in whom he can appoint to audit a local authority under Clause 14, but what is good for local authorities is apparently not good for higher education authorities. I am sure that the Auditor General would not want to appoint anyone who was not properly qualified to either a higher education corporation or a local authority. It is curious that the Bill has different standards. The Minister has justified them under freedom, but that must be an illusory justification because it does not apply elsewhere in the Bill to local authority audit.
  We will return to the fact that the Bill is not a coherent whole. It is a patchwork of different provisions culled from here, there and everywhere. That results in different regimes applying to different sectors of body subject to audit under public audit arrangements in Wales. That is unsatisfactory and a missed opportunity. We would not want to die in a ditch on those points, but they underline the fact that the Bill is not one of which to be proud. It does not set a new future for public audit in Wales, but picks bits here and there and puts them together in a way that is not wholly coherent. That said, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 10 not moved.]
  The Deputy Chairman of Committees (Lord Lyell): Is Amendment No. 11 still grouped with Amendment No. 7?
  Baroness Noakes: I shall not move it.
  The Deputy Chairman of Committees: I was confused when I came in; I apologise.
  [Amendment No. 11 not moved.]
  Clause 4 agreed to.
  Clause 5 [Studies relating to registered social landlords]:
  Baroness Noakes Baroness Noakes moved Amendment No. 12:
  Page 6, line 27, leave out from "The" to "one" and insert "Auditor General for Wales may carry out"
  The noble Baroness said: I shall also speak to Amendments Nos. 13 and 14. The amendments concern Clause 5, which inserts proposed new Section 145C into the Government of Wales Act to deal with value for money studies in relation to registered social landlords.
  Under subsection (1) of new Section 145C, the Auditor General and the Assembly are to agree on a programme of studies. Amendments Nos. 12 and 13 would mean that the Auditor General could himself determine what value-for-money studies on registered social landlords were carried out. In addition, the Assembly and the Auditor General can agree on a programme of studies. So we move from agreeing to the Auditor General having independence to do what he thinks should be carried out.
  New Section 145C unnecessarily restricts the Auditor General to studying only in effect what the Assembly wants, thus turning him into a sort of hired hand. The Auditor General should be in the driving seat to determine what studies to carry out, although of course he should also carry out studies where the Assembly has a particular concern. As the Auditor General does not have freedom, we may find that the scope of his work will be settled to meet some political imperative of the Assembly, perhaps avoiding some political hot potato. That would be wholly inappropriate.
  Amendment No. 14, which is probing, is less weighty. Subsection (2) of new Section 145C talks about the Auditor General ensuring that studies are carried out by or on his behalf. My amendment simply knocks out "on his behalf" to find out who would be carrying out such studies and under what statutory power. I assume that the Auditor General will not be using his powers under new Section 96C to enter the arrangements that we discussed in the earlier group. Will the Minister say who could carry out the studies on the Auditor General's behalf, and under what power he would appoint them? I beg to move.
  Lord Davies of Oldham: Amendment No. 12 and, to a more minor extent, Amendment No. 13 involve discussion of an issue of principle. They would extend the Auditor General's powers, which would diminish the National Assembly's existing statutory powers in respect of registered social landlords. I hope that the Committee will agree that that would be inappropriate.
  As a matter of principle—it is important that we have clear principles underpinning the legislation—we seek to ensure that nothing in the Bill should restrict or take away an existing power of the Assembly. That is a very important point for the Government and is relevant to the two amendments and other amendments that will be discussed later.

  GC 27
  Amendment No. 12 would enable the Auditor General to undertake programmes of study in respect of registered social landlords in Wales at his discretion, and independently of agreement with the Assembly. Amendment No. 13 would merely enable the Assembly to request that the Auditor General undertake such studies. The National Assembly already has the power to agree on a programme of economy, efficiency and effectiveness studies in respect of registered social landlords with the Audit Commission, by virtue of Section 40 of the Audit Commission Act 1998 and the National Assembly of Wales (Transfer of Functions) Order 1999.
  Clause 5 would preserve that power on the basis of agreement between the Assembly and the Auditor General. The amendments would give the Auditor General complete discretion regarding the economy, efficiency and effectiveness studies in a sector for which he would not have statutory audit functions. RSLs are responsible for appointing their own auditors. As with the amendments on studies in respect of educational bodies under Clause 4, which we discussed earlier, that could lead to confusion over the respective audit roles. As with the related amendments on educational bodies, it would not be appropriate to give the Auditor General a free hand in undertaking studies related to bodies for which he does not have wider statutory audit functions.
  I reiterate that our major consideration is how the amendments would affect the existing powers of the Assembly.
  Lord Elis-Thomas: I thank the Minister for giving way, and for the principle that he has stated. However, does he not agree that this is a further example of the complexity of the constitutional base with which we are dealing? In other words, we have the Government of Wales Act 1998 and occasional other pieces of legislation—for example, the Education Act 1996, which refers to higher education—and the transfer of functions orders. To understand this complex area, one must carry copies of all the transfer of functions orders along with one, unless one is very carefully advised as matters progress.
  Is the Minister not clearly making the case for a new devolutionary principle? Although that is beyond the scope of the Committee, it is worth remarking that that is yet another example of the complexity of legislating and maintaining principles that do not diminish the Assembly's powers, because the power base itself is so legislatively complex.
  [The Sitting was suspended for a Division in the House from 5.26 to 5.39 p.m.]
  Lord His-Thomas: I was about to sit down to enable the Minister to respond to my general comments. While he is perusing his papers on the matter, I should like to emphasise my point. Legislation that provides the constitutional base for the activity of the Assembly is very complicated. We have not only the Government of Wales Act and other relevant legislation, such as the Education Act 1996, but also transfer of functions
  GC 28
  orders, which can change the extent of powers and activities of the Assembly in specific areas. That makes it very difficult to legislate.
  Obviously, I approve the principle that nothing should lessen the powers of the Assembly or reduce its flexibility, particularly as regards the role of the Audit Committee in these circumstances. As the main democratic body, it currently works in partnership with the Auditor General and will work in partnership in a different way—not involving local government so directly—with the new body or the health services body, to which we will turn later.
  Lord Davies of Oldham: As ever, I am grateful to the noble Lord, Lord Elis-Thomas, for his consideration in arranging for a Division to give me time to think about how I handle stage two of the devolution debate in Wales. I have confessed already that I am stretched on the crucial issue of accountancy, without getting myself deeply involved in constitutional issues. Therefore, if that is the examination that the noble Lord sets for me, I must confess that I have not really begun the first paragraph of the paper in response to him.
  I hear what the noble Lord says; he intervened most appropriately. I sought to identify that the amendments would detract from the powers of the Assembly, which is an effect that, on principle, we are set against. We intend to protect the powers of the Assembly, whether or not we intend in the very near future to go down the path of devolution, to which the noble Lord, Lord Elis-Thomas, invites me. As the noble Lord probably recalls, one or two other constitutional matters are in the offing in Parliament, and they will probably take priority. Nevertheless, the noble Lord is right to draw attention to the obvious implications for the Assembly with regard to the proposals contained in the measure.
  Amendment No. 14 would require the Auditor General to undertake programmes of studies in respect of registered landlords. The wording of the amendment makes it clear that the Auditor General would have the discretion to arrange for the work to be undertaken by a member of his staff or for it to be contracted out. The amendment would limit the Auditor General's operational flexibility and, potentially, the value for money obtained in undertaking the study programmes. If the programme of work were undertaken by a staff member or a private sector auditor approved by him for that purpose, he would still be responsible for the end result. Therefore, the amendment appears unnecessary. Where the clause states, "on his behalf", it would be either a member of the Auditor General's staff or a person providing services to him. Clause 9 makes that clear in relation to new subsection (8) of Section 90 of the Government of Wales Act.
  I hope that we have taken on board the salient points made by noble Lords. We are clear about the relationship between this Bill and the Government of Wales Act. I am eschewing the opportunity to push the boat any further down those waters. I hope that the

  GC 29
  noble Baroness will consider that I have given a sufficiently full response to the amendments, albeit some time ago.
  5.45 p.m.
  Lord Thomas of Gresford: The answer that the Minister has given to the amendment is that it detracts from the powers of the Assembly under the Government of Wales Act. Why does it not detract from the Government of Wales Act that the Auditor General for Wales has the same discretion that is being criticised under Clauses 3 and 4? What is the difference?
  Lord Davies of Oldham: In that respect, I was seeking to identify that we have been discussing particular categories with regard to educational associations and the issues of registered social landlords. The National Assembly for Wales already has powers in respect of those categories. The amendment would empower the Auditor General in a way that would limit the existing powers of the Assembly. That is the point I was making in response to the amendment.
  Lord Thomas of Gresford: I am sorry, but I still do not follow. Under Clause 3, the Auditor General has the discretion to,
  "undertake or promote studies designed to enable him to make recommendations for improving economy, efficiency and effectiveness in the discharge of the functions of any relevant body or bodies".
  Under Clause 5, the Assembly have to agree to a similar function in relation to registered social landlords. Can the Minister explain why a registered social landlord is in a different position from all other relevant bodies?
  Lord Davies of Oldham: The noble Lord will recognise that the powers of the Assembly in relation to these matters are derivative from the Government of Wales Act. The Auditor General for Wales has existing powers comparable to the Audit Commission, to which I referred in my original response to Amendment No. 12. There are specific areas with regard to particular groups—we have referred to the educational institutions and the registered social landlords—and, effectively, the amendments would give rise to an increase in the Auditor General's powers that would take some responsibility away from the National Assembly for Wales.
  Lord Thomas of Gresford: With the greatest of respect, under the new clause, the only power that the Assembly would have would be to agree something with the Auditor General for Wales. I do not understand how that derogates from existing rights. I do not understand the distinction between registered social landlords or anyone else. I am sorry.
  Lord Davies of Oldham: I am sorry if I am not being clear to the satisfaction of the noble Lord. As the noble Lord rightly said, under the amendments, the Auditor General would have the power to act; under the clause as it stands, he would work in consultation with. That
  GC 30
  is the power of the National Assembly to which I referred. Under the amendment, that would be deleted and the Auditor General would have the power to act. That is why we object to the amendments, however gracefully they are put before us.
  Baroness Noakes: As is often the case, the noble Lord, Lord Thomas of Gresford, has hit the nail on the head. This is an illogically constructed Bill, a point that I made earlier. We do not have, as the Minister tried to portray, a Bill built on real principles; we have a Bill built on borrowing a bit of legislation here and a bit of legislation there.
  Many other principles would be equally good in that context or, I would argue, better. For example, the Auditor General should have complete independence regarding what he examines. The principle should be that our approach to financial audit and value-for-money audit across all public money in Wales is consistent and coherent. That is not the case, as amply demonstrated by the noble Lord, Lord Thomas of Gresford.
  I am sure that the devolution settlement is immensely complex; I do not pretend to be an expert on it. With all respect to the noble Lord, Lord Thomas, I do not believe that that is the point at issue. The Bill would create new audit arrangements in Wales. In practice, we have a compromise from somewhere in the past, when the Audit Commission started to look at registered social landlords, picked up, lifted and given to us as complying with some grand principle in the context of Wales. It does not do that That is another example of the illogicality of the Bill, to which I fear we shall return a number of times in Grand Committee.
  Clearly, we need to reflect on the debate. Today is not a day to make decisions. I hope that the Minister will look at what principles underline the Bill. Simply to stick on not taking away the power of the Assembly is quite possibly the least meritorious of any principle that could be put forward in the context of redesigning the whole scheme of public audit in Wales. It should rest on some grander principle of effective audit of public money in Wales. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 13 to 15 not moved.]
  Baroness Noakes Baroness Noakes moved Amendment No. 16:
  Page 7, leave out lines 1 to 5.
  The noble Baroness said: In speaking to Amendment No. 16, I shall speak also to Amendments Nos. 17, 18 and 24, which are probing amendments designed to ensure that the new public audit arrangements in the Bill are consistent.
  Amendment No. 16 would remove subsections (6) and (7) from new Section 145C of the Government of Wales Act, inserted by Clause 5 of the Bill. Subsections (6) and (7) set up a criminal offence, punishable by a level 3 fine, of not complying with requirements concerning access to documents. As I understand it, that is consistent with the English provisions in the

  GC 31
  Audit Commission Act 1998. There are similar, though not identical, provisions in Clauses 19 and 53. But that is not consistent with compliance with the Auditor General's rights of access under Clause 11, which broadly covers his audit and value for money work other than on local government. That is why we have tabled Amendment No. 24 on a probing basis to put criminal offences into the whole of Clause 11.
  Returning to the theme of the Bill as a patchwork, in this case it is a patchwork of criminality. It is a criminal offence if registered social landlords or local government are involved, but not otherwise. In striving for consistency with England, the Government have created an inconsistent regime for Wales. They are thus in danger of missing a golden opportunity to create something logical and defensible across the whole of Wales, which is the most important thing to get right. The Government should decide whether infringement of access rights is criminal and should make the Bill consistent throughout.
  The inconsistency does not end with the fact of criminality; it also goes to how the penalties are calculated, which is the reason for Amendments Nos. 17 and 18. They repeat for Clause 5 the extended fining provisions of Clauses 19 and 53. Our main concern is that the Welsh public audit regime has internal consistency. In practice, we doubt whether criminal sanctions are necessary. Could the Minister say how those sanctions have, in practice, been used by the Audit Commission in the past? Can he assure the Committee that they are necessary powers?
  If the Government believe that the powers are necessary, will they introduce amendments to ensure that the powers are consistent across the whole regime? But if the Minister cannot demonstrate that criminal sanctions are important, I invite him to look again and bring forward amendments to remove those in the Bill. I beg to move.
  Lord Thomas of Gresford: It seems extraordinary to include a criminal offence in a clause headed simply "Studies relating to registered social landlords". If the Auditor General is to have access to papers and may require a person to produce documents and attend in person, surely there must be some sanction in that regard covering the whole field, not simply in relation to registered social landlords.
  The noble Baroness, Lady Noakes, is right. A great deal of the Bill has been lifted from earlier legislation and inserted in a patchwork way without any overall view. A right to documents and for witnesses to attend requires sanctions; that is obvious. I await the Minister's explanation of why they should be different, depending on the nature of the study being undertaken by the Auditor General.
  Lord Davies of Oldham: Amendment No. 16 would eliminate the criminal sanctions that apply to any person who without reasonable excuse fails to provide the Auditor General with assistance, information and explanation in relation to certain of his rights of access
  GC 32
  to documents and information for the purposes of undertaking studies under the provisions made in Clause 5.
  The amendment would create an inconsistency in sanctions relating to the conduct of study programmes in the registered social landlord sector between England and Wales. I am seeking to emphasise a principle. It is not quite the principle that the noble Baroness invited me to adumbrate, but the principle that the sanctions and laws should be similar for the same offence in England and Wales.
  The primary purpose of the Bill is to enable the setting up of a single public audit body for Wales. In the Government's view, it would be entirely inappropriate for such a Bill to create inconsistencies in criminal law between England and Wales. The provisions in Clause 5 do not create any new criminal sanctions in respect of Wales. They merely preserve the existing position as it currently applies to England and Wales. Any future consideration of criminal penalties should be taken on an England and Wales basis. I make it clear that we do not regard that as a matter for this Bill.
  Amendments Nos. 17 and 18 would align the criminal sanctions available to the Auditor General for non-compliance with those available under Clauses 18 and 53 to an appointed auditor and the Auditor General in relation to non-compliance with their respective rights of access to the documentation of a local government body in Wales. The amendments would again result in an inconsistency in the application of the criminal law between registered social landlords in England and Wales.
  The criminal sanctions provision incorporated in Clauses 5, 18 and 53 all set out to preserve existing arrangements that apply in both England and Wales. I understand that the noble Baroness is berating me for saying that the Bill lifts from other legislation. But perhaps I may say that in this area, it does so on the basis of guaranteeing consistency of the sanctions that would apply between England and Wales for what I think would be regarded throughout the Committee as very good reasons.
  I return to the point that in the Government's view criminal sanctions in primary legislation should be consistent across England and Wales. Their review or amendment is not a matter for the Bill. That is why I hope the noble Baroness will not press Amendments Nos. 16, 17 and 18.
  The noble Baroness asked about the Audit Commission. We are not aware that the Audit Commission has in practice used the criminal sanction power. The point we are making is not what has taken place in practice but that the law at present in England and in Wales is consistent on sanctions. The Bill seeks to ensure that that consistency continues.
  Amendment No. 24 would apply criminal sanctions provisions comparable to those that apply in respect of non-compliance without reasonable excuse to an appointed auditor's rights to documents and information in respect of a local government body in Wales. The Government take the view that it would

  GC 33
  not be appropriate to apply criminal sanctions to bodies that are covered by accounting officer conventions. The extension of criminal sanctions in that respect would create an inconsistency in the criminal law between England and Wales. The criminal sanctions elsewhere in the Bill have been incorporated to avoid any such inconsistency.
  Any instance of non-compliance under the provisions of Clause 11 would first be notified to the accounting officer of the relevant body. If that did not produce a positive result, the Auditor General would have the option of reporting the matter to the National Assembly Audit Committee,- which could consider the issue. Ultimately, non-compliance could result in the withdrawal of accounting officer status. Where a person or body does not comply with the Auditor General's requirements for access, we are of the view that the Auditor General may apply for a judicial review of that decision where the person or body is amenable to challenge by way of judicial review. It is also possible for the Auditor General to apply for a mandatory injunction in the courts.
  On that basis, I invite the noble Baroness not to move Amendment No. 24.
  6 p.m.
  Lord Thomas of Gresford: Is it the case that none of the regulations passed by the Welsh Assembly carry criminal sanctions? If they did, there would be obviously an inconsistency between the criminal law of England and the criminal law of Wales. I cannot imagine that there are regulations passed by the Assembly which do not carry criminal sanctions and that they must apply in different circumstances, but this business of refusing to accept amendments on the basis that they would produce an inconsistency with the criminal law in England is completely false. Can the Minister assure me that none of the regulations passed by the Assembly carry criminal sanctions that make the criminal law between England and Wales different at the moment?
  Lord Davies of Oldham: It is certainly the case that Assembly provisions cover the issue of criminal sanctions, but we are not aware of any instance of inconsistency between what is provided for in Wales and what is provided for in England. That is the burden of our position with regard to the Bill. I ask the noble Baroness to withdraw the amendment.
  Baroness Noakes: Before we come to that, perhaps I may ask a question on a point raised by the noble Lord, Lord Thomas of Gresford, with regard to the apparent principle of not creating an inconsistency in criminal law.
  Clause 39 gives the Assembly the ability to make regulations under which criminal offences can be created. I shall probe that aspect in later amendments. So within the Bill, the Assembly has an ability to create a criminal offence. Therefore, the principle advanced by the Minister that there should be no inconsistency between England and Wales will break down as soon as the Assembly uses the power in the Bill under the
  GC 34
  account and audit regulations. There is nothing to say that the Assembly must pass those regulations in a form common with those relating to England. The principle advanced by the Minister is therefore suspect.
  When the Minister replied to the debate he, in effect, answered for himself. This is not logical for Wales. Under the guise of consistency with England—but really under the guise of not changing what already exists—we are creating layers of complexity for Wales which would not exist if the Government were to take the approach of ensuring that the Bill was itself consistent.
  The Minister may have gathered that I remain to be convinced that the so-called principles adopted by the Government are the right ones. Indeed, in relation to inconsistency in the criminal law, given Clause 39, I am not convinced that they are proper principles at all. I will withdraw the amendment but I promise the Minister that we will return to this subject on Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 17 and 18 not moved.]
  Clause 5 agreed to.
  Clause 6 agreed to.
  Clause 7[Fees]:
  Baroness Noakes Baroness Noakes moved Amendment No. 19:
  Page 7, line 40, leave out "appears to him to be" and insert "is"
  The noble Baroness said: In moving Amendment No. 19, I shall speak also to Amendment No. 20. Both amendments relate to new Section 93A of the Government of Wales Act as inserted by Clause 7 of the Bill. Section 93A deals with the fees charged by the Auditor General.
  Amendment No. 19 is a probing amendment which deals with the small puzzle of to what bodies the Auditor General will be charging audit fees. Section 93A starts with a permissive power in subsection (1) which allows the Auditor General to charge fees. But subsection (2) "requires" the Auditor General to charge fees if a person is being audited by consent and "it appears to him"—that is, the Auditor General—that the audited person is "connected with" local government or the NHS in Wales. My probing amendment would delete the words "appears to him to be" and insert the more positive "is".
  As I said, it is a probing amendment. It seems to me curious that we cannot unambiguously state in statute the audited person who would be liable to pay fees. Indeed, there are bodies which are so ambiguous that their status has to be settled by their appearances to the Auditor General. Either a body is or is not connected with the NHS or local government. If it is ambiguous, I invite the Government to be more specific about what "connected with" means.
  I am mystified why, in the case of all audits by consent under Section 96(3)(a), there is not a provision for the Auditor General to charge fees. Why is it restricted to this category of body connected with, or appearing to be connected with, the NHS or local

  GC 35
  government? Can the Minister explain the rationale for some bodies being required to pay fees when they are audited by consent and others not?
  Amendment No. 20 probes the financial basis of the Auditor General's fees. The amendment seeks to insert "but does not exceed" into subsection (4) of new Section 93A in order that fees under that subsection must cover but not exceed the full cost. We could as easily have tabled this amendment in relation to subsection (2) or tabled a different amendment to probe whether the different formulation in subsection (3), which refers to not exceeding full cost, has a different meaning. I hope that the Minister will respond to the amendment with the different formulations within the section in mind.
  The amendment also gives us an opportunity to ask what is meant by "full cost" in these circumstances and to seek more information about the funding of the Auditor General and his organisation. Are some overheads included in "full cost"? If so, how are they apportioned between different types of work? Who will consider that? Will the Assembly or the Audit Committee examine the fee arrangements of the Auditor General, especially as the Assembly has to pick up the bill for the costs that the Auditor General does not recover by way of fees.
  I hope the Minister will take this opportunity to clarify the funding aspects of the Auditor General and his office. I beg to move.
  Lord Davies of Oldham: I am grateful to the noble Baroness for moving the amendment, although the further she went into her series of questions the less grateful I became. I am too ill-briefed to respond to a number of them but I shall do the best I can. Any deficiencies will be made up later. She was kind enough to state that these are probing amendments but I am afraid that some probes will receive an answer in the form of a written reply rather than anything I can say at this point.
  Amendment No. 19 would limit the Auditor General's discretion to make a reasonable judgment in deciding whether a person is or is not connected to local government or the NHS in Wales for the purpose of recovering the full cost of services provided.
  The clause adds a new Section 93A to the Government of Wales Act and makes new provision for fee charging and recovery of costs by the Auditor General. Section 93A(2) would require the Auditor General to recover the full cost of providing services in respect of the accounts of any person that appeared to him connected with local government and the health service in Wales, over and above his statutory responsibilities under the Bill. The Auditor General may provide those services where the person whose accounts are to be audited has agreed with the Assembly or a Minister of the Crown that the accounts should be audited by the Auditor General.
  The Auditor General would have to establish the relationship beyond doubt and that could hamper him in the performance of his duties. The employment
  GC 36
  terms and conditions of a person can, as the noble Baroness will recognise, be very complex—for instance, in any "arm's length" arrangement—and the Auditor General would have to make a judgment on such an issue. His judgment could be subject to judicial review. The clause gives the Auditor General a degree of protection in exercising that judgment and enables him to demonstrate, if challenged, that he had made a reasonable decision in all the circumstances when reaching the position that the person was so appropriately employed that he should pay the fee.
  Amendment No. 20 would have the effect of requiring the Auditor General to charge a fee that did not exceed the full cost of undertaking claims and returns certification work under the proposed Section 96B of the Government of Wales Act 1998 and for undertaking economy, efficiency and effectiveness studies at the request of educational bodies under Clause 4 and local government bodies under Clause 44.
  The amendment is unnecessary. Clause 7(4) is clear that the Auditor General must cover full cost but no more. The same provision is made in proposed Section 93A(2) of the Government of Wales Act and in Clause 7 in relation to services provided to any person connected with local government or the health service which are outside the Auditor General's statutory functions. So the point is covered.
  The noble Baroness asked about the definition of "full cost". If I produced a definition, I am not sure it would pass her critical examination. I am not in a position to define "full cost", except to say that the Auditor General's operations can clearly be costed. We are seeking to recoup the costs where he is carrying out particular services. We are not seeking to make a profit—the office of the Auditor General is not a profit-making institution—but neither will he provide a service free of charge. The charges involved will include all costs that can appropriately and accurately be identified as relating to a particular function carried out by him.
  I recognise that that explanation may be inadequate but it is the best I can give today. Incorporating Amendment No. 19 could result in operational difficulties for the Auditor General by restricting his discretion as to whether a person is connected to local government or the NHS in Wales for the purpose of charging. As I said, we believe that we have met the intention behind Amendment No. 20 in our existing drafting.
  6.15 p.m.
  Baroness Noakes: Can the Minister elaborate on this point? I believe he said at one stage that the Auditor General should charge full cost but no more. Subsection (2) states that he must charge a person a fee which covers full cost. The same provision appears in subsection (4). But subsection (3) states that he may charge a fee not exceeding the full cost. That implies that "full cost" can mean something other than "not exceeding", given the way in which the Government

  GC 37
  have chosen to draft the three different ways in which fees may be charged under Clause 7. Perhaps the Minister will reflect on that.
  Lord Davies of Oldham: I shall certainly reflect on that but I am afraid that I do not have the intellectual capacity or knowledge to deal with these issues at the level the noble Baroness rightly expects me to, given her own background with regard to these technical terms. I have made the best shot of it I can for today. I shall of course take steps to improve on my response in due course.
  Baroness Noakes: Let me not torture the Minister further today and allow the committee to move on. As to Amendment No. 19, I was unmoved by the Minister's explanation. I always find that when Ministers resort to wheeling out the fact that judicial review can always be used to settle what something means, we can hear the sound of barrels being scraped. This happens where the Government cannot give a clear explanation for what has been drafted and it is all left to judgment followed by a remedy which we all know is of no real use to man or beast—that is, judicial review.
  As to the basis on which fees are to be charged, I raised the substantive issue of the different ways in which the Bill has been drafted, which implies different fees for different things. I also asked—I shall not press for an answer today—about who will consider the matter to ensure that the provisions are complied with and whether the Assembly will have any role in that.
  I know that the Minister will ask his officials to consider those issues outside the Committee. On that basis, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 20 not moved.]
  Clause 7 agreed to.
  Clauses 8 and 9 agreed to.
  Clause 10 [Accounting officer]:
  Baroness Noakes Baroness Noakes moved Amendment No. 21:
  Page 9. line 28, leave out "Audit Committee" and insert "Crown"
  The noble Baroness said: I shall speak also to Amendment No. 22. Both amendments relate to Clause 10, which inserts new Section 94A into the Government of Wales Act and makes the Auditor General the accounting officer for the Wales Audit Office.
  Amendment No. 21 deals with a situation where the Auditor General is incapable of discharging his duties as accounting officer or the office is vacant. He is of course a Crown appointment and it seems odd that his replacement—admittedly only wearing his accountant officer hat—should in those circumstances be decided not by the Crown but by the Assembly's Audit Committee.
  That seems to beg the question of the relationship between the Auditor General and the Audit Committee. Subsections (3), (4) and (5) refer to his
  GC 38
  responsibilities as accounting officer for the Wales Audit Office to be specified by the committee from time to time. So the committee clearly has some supervisory power over the Auditor General, as accounting officer, who is charged by it for the propriety and so on of the Wales Audit Office. Be it noted that his responsibility as specified by the Audit Committee may also extend to the House of Commons and the Public Accounts Committee.
  That is a very tricky clause in which all concerned appear to be compromising their independence to some extent. That brings me to Amendment No. 22, which seeks to replace "shall" for "may" in subsection (6) so that if the Public Accounts Commit tee in another place requests the Assembly's Audit Committee to take evidence and report to it, the Audit Committee must do so.
  I am conscious that we are treading on thin ice here but it seems to me that, bearing in mind that the Assembly's power are subject to the will of Parliament, we should be clear that if Parliament requests, the body should oblige. If it did not, that would, to put it mildly, put the cat among the pigeons with regard to the devolution settlement. I beg to move.
  Lord Davies of Oldham: On Amendment No. 21, let us be clear that we are talking about a limited period and a temporary basis. I hear what the noble Baroness says about the inappropriateness of the provisions in the Bill and how her amendment would improve things. However, we are not talking about long-term permanent arrangements but simply what would happen in exceptional circumstances over a limited period of time. Nevertheless, issues of principle can be debated however short the time, and the noble Baroness has take this opportunity to identify an issue.
  Amendment No. 21 would require the Crown, rather than, as proposed in the Bill, the Audit Commission to designate an accounting officer for the Wales Audit Office on a temporary basis. Clause 10 adds a new Section 94A to the Government of Wales Act. It designates the Auditor General as the accounting officer for the Wales Audit Office. As accounting officer he would have responsibility for signing the accounts of the office, the regularity and propriety of its finances and the economic, efficient and effective management of its work.
  His responsibilities as accounting officer will also include any task specified from time to time by the Assembly's Audit Committee and can include responsibilities owed to the Assembly or its Committee, or to the House of Commons or its Public Accounts Committee. To prevent the Audit Committee from making a temporary—I stress that word—appointment would result in an unwieldy process for a limited measure. Giving the Assembly Audit Committee the power of temporary designation is consistent with the fact that the National Assembly part funds the Auditor General and that its Audit Committee has the power to examine and modify the Auditor General's annual estimate of income and expenditure.

  GC 39
  Amendment No. 22 would remove any discretion of the Assembly or its committee in dealing with a request to undertake work for the Committee of Public Accounts. It would make the former subservient to the latter. The noble Baroness said that she thought she was treading on thin ice. We both are when it comes to the question of the relative powers between Parliament and the devolved Assembly. But the Government's position is clear: to make the former subservient to the latter would diminish the existing status of the Assembly Audit Committee. As drafted, the clause mirrors the relationship of the Committee of Public Accounts and the Audit Committee set out in Section 102 of the Government of Wales Act. That Act states that, if requested, the Audit Committee "may"—the noble Baroness seeks to insert "should" or "must" there—undertake work on behalf of the Committee of Public Accounts.
  That arrangement has been put into effect satisfactorily on one occasion since the setting-up of the Assembly. The amendment would therefore create an inconsistency in the relationship between the Committee of Public Accounts and the Assembly Audit Committee in respect of taking evidence from the accounting officer of the Wales Audit Committee—where the Audit Committee would have no discretion—and other accounting officers in Wales, where discretion would remain.
  Given the existing functions of the Assembly Audit Committee and the existing relationship between the Committee of Public Accounts—which we all hold in high regard as a most important committee in Parliament—and the Assembly Audit Committee, I believe that, although they raise interesting issues, the amendments are unnecessary. I hope that the noble Lady will feel able to withdraw the amendment.
  Baroness Noakes: I thank the Minister for that reply. I accept that the part of the clause to which Amendment No. 21 is directed would involve only a temporary gap before a new Auditor General is appointed. But, of course, sometimes a temporary appointment can continue for rather a long time. That would be unfortunate if the Audit Committee was appointing its own man in that period.
  As to the relationship between the Public Accounts Committee and the Audit Committee, I was not aware—although I am now—of Section 102 of the Government of Wales Act. I can see drafting similarities in the Bill, but it is a rather curious drafting given that the Assembly's powers, and therefore those of the Audit Committee, are subject to the will of Parliament.
  Doubtless the drafting satisfies people's sensibilities and probably means little in practice. On that basis I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 22 not moved.]
  Clause 10 agreed to.
  Clause 11 [Access to Information, etc by Auditor General]:
  Baroness Noakes Baroness Noakes moved Amendment No. 23:
  Page 11, line 6, at end insert—
  "( ) require any other person who the Auditor General for Wales has reason to believe has information about any of the persons or documents mentioned in paragraphs (a) to (c) of this subsection to provide any facility or information which he may reasonably require for any of the purposes mentioned in paragraphs (a) to (c) of subsection (1);"
  The noble Baroness said: Amendment No. 23 seeks to introduce a new paragraph into subsection (3) of Clause 11. The clause is important because it is designed to ensure that the Auditor General has full access rights so that he can follow public money in his audits. It builds on the recommendations of the noble Lord, Lord Sharman, in his report, Holding to Account, some two years ago. We support the basic aim of the clause.
  The problem with the clause is that while its underlying aim is to ensure that the Auditor General has complete information about how public money has been used, it is drafted in a rather odd way. It does not focus on information but on documents. In particular the Auditor General can get information, assistance and so on from people who hold or control certain documents. I am sure that, in the majority of cases, following the paper trail of documents will give the Auditor General what he needs in terms of powers.
  However, let us suppose that the Auditor General has run out of steam as regards finding people with documents to interrogate. For example, the Auditor General might want to question the staff of a person whom he thinks might hold or control a relevant document, but either the person or the document has disappeared. The Auditor General might believe that a member of staff would be able to help with the inquiries even though that member of staff may not himself hold or control a document. My amendment would ensure that the Auditor General's inquiries would not dry up simply because he could not follow a document.
  I do not claim that the drafting of the amendment is perfect, but it is put forward as a genuine attempt to improve the implementation of the report of the noble Lord, Lord Sharman, so that public money is properly followed in the public audit process. If this finds favour with the Government, which I hope it does, they may also want to consider amending Clauses 18 and 52 since my amendment extends only to Clause 11 for the purposes of our debate in Committee. I beg to move.
  6.30 p.m.
  Lord Davies of Oldham: I propose to lift my relationship with the noble Baroness on to a new plane by saying that she has largely convinced me with her argument. It is a constructive proposal, although not drafted in quite the form that we could accept at this

  GC 41
  stage. However, I can assure her that the argument is well taken and I propose to bring forward an amendment on Report to give it effect.
  Baroness Noakes: What more can I say in response other than to thank the Minister? I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 24 not moved.]
  Baroness Noakes Baroness Noakes moved Amendment No. 25:
  Page 11, line 17, after "Wales" insert "or by a person appointed by him"
  The noble Baroness said: I suspect that my run of success will come to an abrupt end as I move Amendment No. 25 and speak at the same time to Amendment No. 26. These amendments tackle rather different issues in Clause 11.
  Amendment No. 25 seeks to add,
  "or by a person appointed by him",
  to the definition of "auditable accounts" set out in subsection (5) so that the access rights conferred by the clause will extend not only to accounts examined by the Auditor General, but to accounts examined by a person whom he has appointed.
  The Minister may well say that this is unnecessary because of Clause 18 in respect of local government accounts. However, my question on that score is why the Minister needs a whole new clause in Clause 18 if my additional seven words would do the trick. This is already an extraordinarily long Bill for a relatively straightforward subject, which itself derives from repetition—usually rather inexact—of the same concepts for local authority aspects of the Auditor General's work and his other work. My amendment offers a form of simplification and streamlining and I hope that the Government will accept it.
  Amendment No. 26 is a probing amendment which seeks to knock out the ubiquitous Treasury from subsection (6), taking it out of the process of making an order specifying documents for the purposes of the access rights under the clause. I am puzzled as to why the Treasury should have any say in this. There is no equivalent power for the Treasury or any other government department to interfere in similar order-making powers under Clauses 18 or 52. Will the Minister explain why the Assembly, consulting the Auditor General for Wales, cannot be regarded as sufficiently competent to carry out this relatively minor function under Clause 11? I beg to move.
  Lord Davies of Oldham: The noble Baroness presents her amendments so ably that she also anticipates my reply. That may make my presence in Committee relatively otiose because she is right: I am going to say that Clause 18 is the answer to Amendment No. 25. The noble Baroness says that she has produced a neater and shorter form of words for what she has described as a long Bill. However, I think that her experience in Parliament over the years will lead her to regard this legislation as rather average by
  GC 42
  comparison with many which we tackle. However, it is always a good thing to keep legislation as short, simple and straightforward as possible. We are one on that.
  I do not think that the noble Baroness is right, but I have heard her argument. All that is said in Committee will be considered seriously and taken into account before we return to the Bill on Report. But we think that Clause 18 is essential to the Bill and I do riot propose to accept the amendment.
  I turn to Amendment No. 26. The noble Baroness indicated that it is unfortunate that the Treasury comes into the frame here. Under the Government Resources and Accounts Act 2000 the Treasury is responsible for making access orders for the Comptroller and Auditor General. We believe that the requirement to consult is constructive and should remain. On that basis, I hope that the noble Baroness will not press the amendment.
  Baroness Noakes: I thank the Minister for his reply. When I said that this is a long Bill, I did not mean in absolute terms, rather that it is long relative to the subject matter. I, too, have been involved with considerably longer pieces of legislation.
  I thank the Minister for saying that the Government will look again at the relationship between Clauses 11 and 18 in the context of my proposed seven words. However, for the moment I shall not pursue the point. When we come to the Treasury and Amendment No. 26, we are up against our old friend—consistency with England—rather than consistency in Wales. I cited the equivalent order-making powers under Clauses 18 and 52 in which the Treasury has no interest whatsoever— a good thing too, we might say.
  I leave with the Minister that inconsistency among many inconsistencies in the Bill and I hope that, between Committee and Report, the Government will take the opportunity to reflect on whether more consistency for Wales would be a desirable principle on which to base the Bill. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 26 not moved.]
  Clause 11 agreed to.
  Clause 12 [Local government bodies in Wales]:
  [Amendment No. 27 not moved.]
  Clause 12 agreed to.
  Clause 13 agreed to.
  Clause 14 [Appointment of auditors]:
  Baroness Noakes Baroness Noakes moved Amendment No. 28:
  Page 12, line 32, leave out subsection (3).
  The noble Baroness said: We come now to the appointment of local authority auditors under Clause 14. I shall move Amendment No. 28 and speak at the same time to Amendment No. 33. The thrust of the amendments is to enable the Auditor General to deal with local authorities as he does with public bodies in Part 1. In other words, he should be able to audit local authorities himself and should certainly not be expressly prohibited from doing so as proposed in

  GC 43
  subsection (3). That is why Amendment No. 28 seeks to delete the subsection. The key question is why there is such special treatment for local authorities. After all, they are funded very substantially by central government through the Assembly.
  The facile answer is that the Bill follows the pattern established by the Audit Commission Act, which still applies to local authorities in England. We have already debated the fact that that is a principle that appears to hold sway with the Government, but will not impress those on our Benches.
  We assume that local authorities in Wales wish to continue with the current arrangements. Perhaps the Minister can say whether that is the case. But it would also be good to hear why advantage was not taken of the opportunity presented by the Bill to place all public sector bodies on the same footing so far as concerns the appointment of auditors. The opportunity has been taken to take NHS auditing out of the Audit Commission model and put it into a new model for Wales. It is not simply a question of consistency with England because after the Bill has been passed there will be a new inconsistency between England and Wales in relation to NHS audits. So I would suggest to the Minister that it is not such a strong principle after all.
  Furthermore, under subsection (7), before appointing an external auditor, the Auditor General has to consult the local authority concerned. One wonders about the purpose of that, other than for courtesy. I do not believe that a local authority can refuse an auditor recommended by the Auditor General. If it were to object, what impact would that have? Amendment No. 33 seeks to delete subsection (7) in order to find out what is the purpose of the consultation and what would happen if the Auditor General and the local authority held different views.
  There is a close relationship between local authorities and the Assembly; partnership between them is provided for in the Government of Wales Act. It could be argued that the unitary authorities in Wales—they are all unitary authorities—are in a very different position from their English counterparts and therefore the Government could easily justify treating them differently in the context of the Bill.
  It appears to us that a great opportunity related to local government audit has been missed. The Select Committee on Welsh Affairs in another place and the Assembly, which considered the Bill at the pre-legislative stage, felt the same way. We have not yet heard an argument of principle for the position taken in the Bill, although I shall listen carefully to the Minister's reply to see whether there is such an argument. I beg to move.
  Lord Davies of Oldham: The effect of Amendment No. 28 would be to remove the prohibition on the Auditor General from appointing himself as the auditor to a local government body. The difference between local government and the National Health Service is obvious. The constitutional dependence of
  GC 44
  local government is different from that of the National Health Service and that is why we seek to tread with care in this area.
  The Auditor General is the statutory auditor of the National Assembly and receives significant funding from the Assembly to enable him to undertake his work in the non-local government sector. The prohibition on him with regard to local government avoids any perception of a conflict of interest that could arise if the Auditor General were to be the statutory auditor of both the Assembly and a local government body.
  There are additional practical difficulties as well as what I think is an issue of very considerable principle. If the Auditor General were able to be appointed as the auditor of a local government body in a personal capacity, it would open up the possibility of operational conflict of interest. For instance, under Clause 16, the Auditor General would have the authority to issue a code of audit practice for local government to which, in his capacity as an appointed auditor, he would have to adhere. Under Clause 20 he would be required to provide a scale or scales of fees from which he may personally benefit as an appointed auditor. Under Clause 37 he could theoretically require himself to undertake an extraordinary audit.
  Those are important issues and present real and practical difficulties if the prohibition on the Auditor General acting in respect of local government bodies is removed, as sought in Amendment No. 28.
  Amendment No. 33 would have the effect of absolving the Auditor General from consulting a local government body on the appointment of its auditor. It is accepted practice for local government to be consulted on the appointment of auditors and to end the practice would be detrimental. High standards of financial accountability are achieved to a great extent through a positive relationship between auditor and client—withdrawing the right of local government to be consulted on audit appointments would risk alienating local government bodies and undermining the potential for a positive working relationship. It would also provide a stark contrast with the existing consultation arrangements for local government in England. On that basis, I ask the noble Baroness not to press the amendment.
  6.45 p.m.
  Baroness Noakes: I thank the Minister for setting out the Government's views on and justification of the way the Bill has been constructed in relation to local authority audit. The Minister rested his case on the threat of conflicts of interest between auditing the Assembly and auditing local authority bodies. I have to say that I simply cannot see that, just as I cannot see any conflict of interest between auditing the Assembly and auditing NHS bodies, which is what will happen when the Bill is enacted. If there is a conflict of interest for local authorities, there is also one for the NHS.
  The Minister went on to describe the problems with the Bill and at that point I believe he made the case for me. He demonstrated that the Bill is complex because

  GC 45
  we have lifted the Audit Commission model. That model has a code of practice because particular named auditors are appointed and they must have something with which to comply. A scale of fees for all auditors is so drafted because of the way in which auditors are appointed. There is no fundamental difficulty in achieving all those aims for local authority audit—as they have been attained, for example, for fees and audit for the other bodies dealt with in Part 1. Part 2 creates its own problems as a consequence of Amendment No. 28 simply because of the model that has been lifted here. With a different mindset about the model, Part 2 would become much simpler.
  Although I thank the Minister for setting out the Government's rationale, I should report that thus far I am unmoved. However, I shall read his remarks carefully in Hansard.
  Turning to Amendment No. 33, I thought that the Minister said that there is no real substance in subsection (7), but that it is like the point we discussed a moment ago—the relationship between the Public Accounts Committee of another place and the Audit Committee for the Welsh Assembly. This drafting has been produced to satisfy sensibilities rather than to meet any other substance.
  I shall consider again the implications of Amendment No. 28. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Noakes Baroness Noakes moved Amendment No. 29:
  Page 12, line 37, leave out paragraph (b).
  The noble Baroness said: I shall speak also to the other amendments included in the group. We move on to other aspects of the appointment of auditors for local government bodies. These are all probing amendments. The Minister may think that I have put on my anorak in drafting and speaking to these amendments, because I recognise that they will not be proposals in which many people have an interest. Although they are only probing amendments, I hope that the Minister will be in a position to provide some answers.
  Amendment No. 29 seeks to delete paragraph (b) of Clause 14(4). Paragraph (a) is straightforward, stating that those eligible for appointment should be eligible for appointment as a company auditor, which has its own set of references. If a person is a member of one of the recognised accounting bodies, they may be an auditor. For example, if one is, as I am, a member of the Institute of Chartered Accountants in England and Wales, one must also be an approved auditor, which I am not. The Minister will be pleased to know that I could not be appointed as an auditor under the provision.
  However, paragraph (b), which my probing amendment deletes, allows the Assembly to approve many bodies of accountants whose members do not have demonstrated audit competence. It is quite unlike paragraph (a). It would allow the Assembly to approve members of the Chartered Institute of Management Accountants, for example, an excellent body which
  GC 46
  has no pretensions whatever, to audit. It would allow the Assembly to approve a whole host of non-UK European accounting bodies. I would stretch the patience of the Committee if I explained why that is the minefield—I invite the Committee to accept that it is.
  I am aware that, historically, local authority audits have been carried out by members of the Chartered Institute of Public Finance and Accountancy. I will not argue any case against that, being a pragmatist. Accepting that, in practice, CIPFA accountants need to be capable of being appointed, I want to hear from the Minister why that extensive power of approval is necessary instead of simply naming CIPFA. I believe that that is the reason for the drafting.
  I invite the Minister to say how the Assembly intends to use the powers. The Minister may well be aware that approving an overseas accounting body as appropriate to carry out audit functions requires very extensive investigation. The Department of Trade and Industry has similar functions in relation to company audits in the UK. The DTI takes years over individual bodies—and I do not exaggerate—because of the nature of the inquiries that are conducted. Perhaps the Minister would comment on what, in practice, the Assembly might do to use its power to approve particular accounting bodies, in particular those outside the UK.
  Amendments Nos. 30 and 31 propose the deletion of paragraphs (c) and (d) of subsection (4). They allow a form of grandfathering to individuals whose qualifications do not pass muster under paragraphs (a) and (b). These provisions have been in existence in different legislation for quite some time. I am always mystified as to whether any specific individuals still need to be grandfathered under these provisions.
  I hope that the Minister will say how many people are expected to receive the protection of paragraphs (c) and (d) in terms of their appointment. I hope that the Government are not simply repeating legislation that has been used in the past without substantive reason. The circumstances which the provision seeks to address should, in my view, already have been time-expired. It will be interesting to know whether there are any particular instances. I accept that the Minister may not be able to answer that today.
  Finally, I turn to Amendment No. 32 which deletes, on a probing basis, the power of joint auditor appointment in subsection (6). I am sure the Minister will be aware that joint audits are not the norm in the private sector—and for good reason. They nearly always involve duplication and therefore cost. They also run a risk of gaps—things falling between auditors and escaping audit. I am aware that there is a similar provision in the Audit Commission Act, but I hope that the Minister will be able to explain how that power has been used in the past and for what purpose. A power to have joint audits ought to be justified on its own merit because one would not choose them as a matter of course.
  The Explanatory Notes on Clause 14 are, to be polite, sparse. I hope that the Committee will be enlightened by the Minister's comments. I beg to move.
  Lord Davies of Oldham: The noble Baroness said that she would don an anorak for the purpose of these amendments. The problem is that anyone who wants to follow her to the same event that evening would be unsure of the appropriate dress code. Some of us would not qualify for an anorak in the same terms—and from our earlier discussions, she is well aware that I would not do so.
  With regard to Amendments Nos. 29 to 31, I listened to her expositions most carefully. The practical effect of the amendments would be that members of the Chartered Institute of Public Finance and Accountancy—a body which we all recognise is most relevant to local government audits—would not be eligible for appointment. CIPFA is not a "recognised supervisory body" for the purposes of Section 25 of the Companies Act, yet we believe that CIPFA would be an obvious candidate for recognition by the National Assembly. That is our main anxiety about the implications of the amendments tabled—
  Baroness Noakes: The Minister said that CIPFA would be covered and I conceded that. I was trying to establish whether anyone else was expected to be covered and, if so, why we have such convoluted drafting approving all kinds of accounting bodies when all we are trying to do is legitimise the status quo so that CIPFA accountants who are not subject to a recognised supervisory body can carry on audits in the public sector.
  Lord Davies of Oldham: Of course, the situation could be solved by naming CIPFA. The problem is that it is a non-governmental organisation and it has every right to change its name, as bodies do. However, the problem is that legislation referring to a particular body which may undergo change which none of us can foresee would present obvious problems. We seek to provide legislation that is expressed in more general rather than ad hoc terms because of such difficulties.
  We are not aware of the number of people covered by paragraphs (c) and (d), which I recognise the noble Baroness spoke about with greater insight and knowledge. We simply do not want to disqualify people without justification. I hope that she will forgive me for saying what a hullabaloo would be caused if, by some inadvertence, legislation were drafted in such a way as to disqualify those who we had no intention of disqualifying simply because we were unaware of the full range. Those are our reasons for keeping the clause as it stands and why I am anxious about the amendments.
  With regard to Amendment No. 32, the noble Baroness is right in saying that the Auditor General would be deprived of the discretion to make a joint audit appointment, but that is not likely to be used on many occasions. They are sometimes used when
  GC 48
  specific skills not held by the initially appointed auditor are needed for complex audits or for a peer review undertaken during an audit. But the fact that the power is not used frequently does not detract from its potential value. If we restricted the power with regard to the Auditor General for Wales, we would be removing a discretion which obtains for the Audit Commission in England. The noble Baroness may consider that a step forward, hut, as she will have recognised, one of my abiding commitments with regard to the legislation is the degree of consistency between England and Wales.
  I recognise that on both counts the noble Baroness has made an interesting case. We are not talking about a wide range of institutions or occasions, but it is right that we should frame legislation that is not restrictive and does not cause difficulties in future. In particular, it should not prove restrictive when comparable legislation elsewhere has it merits. On that basis, I ask her to withdraw the amendment.
  7 p.m.
  Lord Thomas of Gresford: I understand from the Minister's response to the amendment to delete subsection (b) that he does not wish to be tied down to a particular body. That causes problems—one thinks of the position of the Lord Chancellor, for example, and the problems the Government are facing in redefining his role and the powers of anyone replacing him.
  Surely, the Secretary of State has a list of individuals who have been approved under the Audit Commission Act 1998 and approved under the Local Government Finance Act 1982. If there is such a list, are they still in practice?
  Lord Davies of Oldham: I cannot give a direct answer to the noble Lord. If I could, I would be in a different profession. Let me make the obvious point, which I believe he recognises. We are seeking to keep the situation as wide and as open as possible because the only conceivable criticism of a government operating in this area of professional expertise is where they were proven wrongly to have been restrictive; that in their legislation they had restricted that which they had no intention of restricting, but had done so through narrow drafting based upon a degree of ignorance of the situation.
  I hear what the noble Lord says about these categories and that the Government must have all these names somewhere. I cannot answer the question now, but I know the principle on which the clause is based. If he is saying, "If you were totally secure about the information which you have, you would not need that subsection", I would agree with him. I merely reflect the fact that where there are areas of uncertainty, it is only right that we should not be too restrictive.
  Lord Thomas of Gresford: I am grateful to the Minister for that response. It is wrong in principle to legislate in an unnecessary way. The word used is "individuals". If the Secretary of State does not have

  GC 49
  access to a list of individuals and knows what they are currently doing under the 1998 and 1982 Finance Acts, that would suggest that perhaps there are people practising in this field who are not known to the Secretary of State. Surely, they must be known, there must be a list and their current status must also be known. One does not want unnecessary verbiage in what is already a complex enough Bill.
  Lord Davies of Oldham: I do not have a great deal to add. I assure the noble Lord that I have heard what he has said. It will be noted most carefully and we will look at the matter. We will reiterate our response to him more accurately on Report or we will produce a different solution.
  Baroness Noakes: I thank the Minister for his explanation and I thank the noble Lord, Lord Thomas of Gresford, for intervening in relation to these amendments. I, too, was going to challenge the Minister to produce a list because that is all that is required. It would encourage the Minister not to legislate unnecessarily. I do not believe that many people were ever involved under this section and I suspect that none is still practising. I may be wrong and there may be one or two, in which case paragraph (c) or (d) may need to remain. I will read carefully what the Minister said in respect of the other points I raised.
  On Amendment No. 32, relating to joint audits, the Minister will not be surprised to hear that I was not comforted by the model used for the Audit Commission as now applies to England. If his officials look at its history, they will see that it is something to do with large complex audits in London. It is also concerned with the opening up of the local authority audit market for private firms so that individuals could carry out audits on a low-risk basis while making the transition to the new audit players in the audit sphere as a consequence of the introduction of the Audit Commission in the early 1980s. That provision, too, has no real relevance in today's world, certainly not in the much less complex environment of Wales.
  With the same plea as the noble Lord, Lord Thomas of Gresford, not to legislate for things that are not necessary, I hope that the Minister's officials will look at these matters again before the Report stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 30 to 33 not moved.]
  Clause 14 agreed to.
  Clause 15 [Persons to assist auditors]:
  On Question, Whether Clause 15 shall stand part of the Bill?
  Baroness Noakes: We have tabled our objection to Clause 15 standing part of the Bill in order to probe what the clause is all about. We have already remarked on the curious construction of the Bill, which has separate audit arrangements for local government audits. Clause 15 is another example of this.
  The clause is headed "Persons to assist auditors" and it goes on to empower the Auditor General to approve arrangements for non-appointed auditors to
  GC 50
  assist the appointed auditors in carrying out their functions. There is no similar provision in relation to the other audits that the Auditor General will be carrying out, so a number of questions arise in my mind which I hope the Minister will be able to answer.
  What are these arrangements? What do they mean in practice? What types of people will the auditors be making arrangements with? Why will the Auditor General be appointing auditors who are not competent to carry out the totality of their audit functions in the first place? What kind of controls will the Auditor General place on these arrangements? In what circumstances would the Auditor General approve arrangements as allowed under subsection (2) and when would be stick to individual appointment?
  They are not idle questions because subsection (3) states that, in effect, these persons are treated as auditors under the Bill. So, these non-auditor assistants can avail themselves of the access rights conferred by Clause 18, with the possible consequence that criminal offences for non-compliance could be triggered. Perhaps the Minister will confirm that that is the case.
  In the ordinary course of events, we would expect to turn to the Explanatory Notes for assistance. I have already alluded to the not-too-helpful quality of the Explanatory Notes. But they merely repeal the wording of Clause 15, adding an extra word. There is nothing by way of explanation or example.
  The Committee is entitled to understand the purpose and effect of Clause 15, which is why we tabled this objection.
  Lord Davies of Oldham: The basis of Clause 15 is that it would enable an appointed auditor to seek assistance in the exercise of his duties on matters which might be of significant complexity to require a specialist contribution; for example, on aspects of taxation or the interrogation of complex information data bases. The support of a person with expertise in such an area would be of potential assistance to the appointed auditor and the clause clearly indicates that the Auditor General could oversee such arrangements.
  A facility is already available to appointed auditors under the provisions of the Audit Commission Act 1998. The resource would remain available to appointed auditors in England, irrespective of whether Clause 15 was part of the Bill. I know that the noble Baroness and I are engaged in an elegant dance around whether consistency on my part between England and Wales is an important principle and on her part whether advances cannot be made within the framework of this legislation. I presume that if they were advantageous, at some stage they would be followed in England in due course. We will continue that dialogue for some time. I attest to the obvious fact that the removal of Clause 15 would inhibit the Auditor General in Wales while not having the same implications in England. It would place appointed auditors in Wales at a disadvantage in comparison to auditors appointed to a local government body in England. I cannot see how that could be construed as advantageous.

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  If there is no need for the Auditor General in Wales to appoint someone to assist the auditor where he himself is the auditor, he can bring in such technical services as he needs. In making those arrangements, the Auditor General could take account of such issues as potential conflict of interests. It is to be recognised that the framework for that is supervised; it is to be carried out only where it is recognised that there is a particular difficulty.
  The noble Baroness asks how it is that the auditors appointed are not competent to deal with the problems in hand. I take second place to nobody in my admiration of auditors and their overall competence—in the past I have been more than grateful for their expertise, as we all have in some general way—but, nevertheless, the noble Baroness will recognise that there is some merit in having specialist expertise made available, subject to supervision. That is the concept in the Audit Commission Act. Apparently, the noble Baroness is of the view that it would be advantageous to Wales if no such comparable power existed for it. I am afraid that we will have to differ on that point.
  Lord Thomas of Gresford: On behalf of my party, we support the Government in retaining Clause 15. However, the Minister should appreciate that it is quite right that Wales should have its own methods of innovation for building up new techniques and training and should lead the way for England to follow; it should not necessarily be the other way round. In the field of rugby football, England won the World Cup as a result.
  Baroness Noakes: I thank the noble Lord, Lord Thomas, for that intervention. Rugby is a game that I will never understand. I cannot follow it. I thank the Minister for his response.
  I wish to ask two questions. If a private-sector auditor were appointed under the basic appointment provisions of Clause 14, would anyone who works on the audit—from the most junior audit clerk to the most senior tax or IT partner—have to be approved under those arrangements? My second question repeats what I asked in the introduction of the clause stand-part debate: does subsection (3) mean that all those people are treated as the auditor for the purpose of the access rights and therefore the ability to trigger a criminal sanction under Clause 18? I wish to be clear on those aspects.
  7.15 p.m.
  Lord Davies of Oldham: In response to the first question, provided that the firm was approved, each individual would not have to be approved. The answer to the second question is that each individual would be liable to be sanctioned.
  Baroness Noakes: Does the Minister mean that each individual would be able to trigger the sanction, rather than be liable to it?
  Lord Davies of Oldham: Yes, I am sorry.
  Baroness Noakes: On that basis, I thank the Minister for his explanation, which I shall consider carefully in Hansard, and withdraw my objection to the clause.
  Clause 15 agreed to.
  Clause 16 [Code of audit practice]:
  Baroness Noakes Baroness Noakes moved Amendment No. 34:
  Page 14, line 6, leave out subsection (4).
  The noble Baroness said: In moving the amendment, I shall speak also to Amendments Nos. 35 and 36. They are probing amendments concerning the code of audit practice, which is clearly an important part of the local government audit framework that we are borrowing from England.
  The point of Amendment No. 34, which would delete subsection (4) of Clause 16, is to question the precise role of the Assembly in relation to the code. I can understand the Assembly's interest in the code, because it is the paymaster of local authorities and will want to look at the code. But my question is whether the Assembly can amend the code before giving its approval. I would not have thought that the Assembly would basically wish to do so, on account of its professional character and because that would undermine the authority of the Auditor General. The question is: can it do so? I would be grateful for the Minister's view on that.
  Amendment No. 35 leaves out subsection (7) because that provision is a mystery to us. Subsection (7) says that the code, even after it has been issued by the Auditor General and approved by the Assembly, can be annulled by statutory instrument in either House of Parliament. Will the Minister say why that power has been taken and in what circumstances it might be used? It seems to go too far from designing a solution fit for Wales.
  Amendment No. 36 is probing; it is intended to ascertain the role of the Audit Commission's code of practice in relation to local government audits in Wales. Clause 16 provides that the Auditor General may issue a code of audit practice. Clause 17 says that the auditor must comply with it. But Clause 17(4) says that "code of audit practice" means not only a Clause 16 code but also the code issued by the Audit Commission. Amendment No. 36 would remove that paragraph.
  Again, the Explanatory Notes are unhelpful in that respect. I am sorry to keep repeating that point, but it can become frustrating when Explanatory Notes give no further information and simply repeat the draft of the Bill. My question is: what relevance has the Audit Commission's code of practice to Wales? If the Auditor General is to issue his own code, why should Welsh local government auditors also have to comply with the English code, and what is to happen if the codes do not coincide in all respects? I beg to move.
  Lord Davies of Oldham: I am grateful to the noble Baroness for the way in which she has moved the amendment. Amendment No. 34 would remove the Assembly's ability to approve a draft code of practice in respect of the audit of local government bodies in

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  Wales before its introduction by the Auditor General. The code would incorporate best professional practice with respect to standards, procedures and techniques to be adopted by auditors in the exercise of their functions.
  The provision enabling the Assembly to approve the code has been incorporated in the Bill as a result of representations made during pre-legislative scrutiny and public consultation on the draft Bill. We believe, therefore, that we have been meeting representations voiced in earlier stages of the drafting of the Bill. The Assembly would not have the power to amend, but Parliament has an interest through providing taxpayers' money. Existing arrangements are that the code of practice requires the approval of Parliament by affirmative resolution. We have no brief in the framework of this legislation to seek to take away what pertains to the existing England and Wales code of practice, subject to affirmative resolution.
  The provision is included in the Bill because consultation representations indicated that it should be the basis of scrutiny of the code. It is appropriate that a code of practice discrete to Wales should be approved by the National Assembly, and that Parliament, should it wish, also has the opportunity to scrutinise the code and comment on it.
  I am used to the Government being berated for seeking to keep things away from Parliament and Assembly scrutiny—that is not novel—but it is a refreshing experience to be berated today for overdoing both the degree of prior consultation and for subsequently creating the framework for scrutiny. It is on that basis that the Bill is drafted. Fairly significant sums of taxpayers' money fund local government services, and it is right that there should be an opportunity for democratic scrutiny of the way in which local government bodies are audited. It is not as if from time to time this has not been a matter for considerable public controversy and concern.
  Amendment No. 36 has the effect of disapplying the extant code of audit practice for local government made under Section 4 of the Audit Commission Act 1998. It would mean that the Auditor General for Wales would have to prepare a Wales-only code of practice, and have it in place by 1 April 2005, with no flexibility for carrying forward and applying the existing code for England and Wales.
  One of the duties imposed on an appointed auditor of a local government body is to ensure that he or she complies with any code of audit practice applicable to the accounts being audited. The clause makes it clear that such a code of practice could be a discrete Welsh code introduced under Section 16 of the Public Audit (Wales) Act—should it be enacted. It could also be the existing code of audit practice for local government enforced in relation to both England and Wales under Section 4 of the Audit Commission Act 1998.
  It is unnecessary to disapply the existing code, as the amendment seeks to do. That could create real operational difficulties for the Auditor General, particularly in the early days of the new arrangements. If for whatever reason the Auditor General was unable
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  to prepare a discrete code under what would be Section 16 by the implementation date, it would leave appointed auditors with no framework or instructions. The Committee will recognise that that would be untenable.
  I recognise what the noble Baroness seeks to achieve but, given the time scales involved, we are engaged in a belt-and-braces operation to make absolutely sure that the profession is properly regulated, irrespective of developments over the next nine months.
  Baroness Noakes: I thank the Minister for that reply. I shall deal with his last point first in relation to the two potential codes. I understand the issue about the transitional arrangements, although I would have thought that a year was quite enough for the Auditor General to produce a Welsh code. However, let us assume that he cannot do that by next year and it takes, say, another year. From April 2005, the code of audit practice will mean only a code prepared under Section 4 because there is not one issued under Clause 16.
  The way in which the Bill is drafted means, however, that when a code is issued under Clause 16, if there is still a code under Section 4 of the Audit Commission Act—which there will be—the poor old auditors in Wales will have to comply with both. I put it to the Minister that the Bill does not reflect the fact that it is intended that the Auditor General's code should take over. So there could be two codes running in perpetuity. That is not the right position. I hope that the Minister will think about that.
  As to consistency with the code of practice in England and Wales and all the scrutiny that goes with it, I remark merely that NHS audits no longer have a code of practice. So, despite all the arguments about the Assembly needing to look at that code of practice, there is not one. However, under the existing arrangements there is reference to a code of practice that applies to NHS audits. So perhaps there has been a little too much stress on how important the code of practice is and how important the scrutiny arrangements are. But that matter need not detain us further, certainly not today. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 35 not moved.]
  Clause 16 agreed to.
  Clause 17 [General duties of auditors]:
  [Amendment No. 36 not moved.]
  Clause 17 agreed to.
  Clauses 18 and 19 agreed to.
  Lord Davies of Oldham: This might be a remarkably convenient moment for the Committee to adjourn until Wednesday at 3.30 p.m.
  The Chairman of Committees (Lord Brabazon of Tara): The Committee stands adjourned until Wednesday, 25 February at 3.30 p.m.
  The Committee adjourned at twenty-seven minutes past seven o'clock.

  Sudan
  Sudan
  Afghanistan
  Afghanistan
  Hutton Inquiry
  Hutton Inquiry
  Iraq: Unemployment
  Iraq: Unemployment
  Iraq: Water Supply
  Iraq: Water Supply
  Cannings Case: "Safeguarding Children" Consultation
  Cannings Case: "Safeguarding Children" Consultation
  Schools: Funding for Extended Programmes
  Schools: Funding for Extended Programmes
  Connexions Service
  Connexions Service
  Young People: Positive Activities
  Young People: Positive Activities
  Support Vehicle Project
  Support Vehicle Project
  Gulf War 1990–91: Vaccines
  Gulf War 1990–91: Vaccines
  Unmanned Aerial Vehicles and WATCHKEEPER Programme
  Unmanned Aerial Vehicles and WATCHKEEPER Programme
  Duke of York's Royal Military School and Queen Victoria School
  Duke of York's Royal Military School and Queen Victoria School
  Defence Medical Personnel, Birmingham
  Defence Medical Personnel, Birmingham
  Defence Medical Services: Reservists
  Defence Medical Services: Reservists
  EU: Rapid Crisis Response and Battle Groups
  EU: Rapid Crisis Response and Battle Groups
  Tax Compliance Costs
  Tax Compliance Costs
  Thalidomide Victims: Payments and Taxation
  Thalidomide Victims: Payments and Taxation
  Devolution and Regional Assemblies: Electors in England
  Devolution and Regional Assemblies: Electors in England
  Human Rights and Devolution Legislation: Interpretation of Statutes
  Human Rights and Devolution Legislation: Interpretation of Statutes
  Employers' Liability Compulsory Insurance: Small Businesses
  Employers' Liability Compulsory Insurance: Small Businesses
  Northern Ireland: Disability Living Allowance
  Northern Ireland: Disability Living Allowance
  English Institute of Sport
  English Institute of Sport
  Pension Contributions
  Pension Contributions
  Manufacturing: Employment
  Manufacturing: Employment
  Playing Fields Monitoring Committee
  Playing Fields Monitoring Committee
  Sports-people Pension Age
  Sports-people Pension Age
  Anti-Doping Programme
  Anti-Doping Programme
  Parenting Education
  Parenting Education
  Roma People: UK Citizens
  Roma People: UK Citizens
  Live Music Forum
  Live Music Forum
  Crystal Palace National Sports Centre
  Crystal Palace National Sports Centre
  UK Budget
  UK Budget
  Ulster Scots
  Ulster Scots
  Productivity
  Productivity
  Tourist Accommodation: Inspection and Regulation
  Tourist Accommodation: Inspection and Regulation
  National Savings and Investments: Ordinary Accounts
  National Savings and Investments: Ordinary Accounts
  UK Public Funds and EU
  UK Public Funds and EU
  English Partnerships Estates: Bracknell Development
  English Partnerships Estates: Bracknell Development
  Public Sector Land Disposals
  Public Sector Land Disposals
  People Trafficking: UN Protocol and UK Position
  People Trafficking: UN Protocol and UK Position
  Prisons: Alcohol Treatment Programmes
  Prisons: Alcohol Treatment Programmes
  Prison Officers
  Prison Officers
  Criminal Records Bureau: Capita Contract
  Criminal Records Bureau: Capita Contract
  Internet: Pornographic and Paedophilic Images
  Internet: Pornographic and Paedophilic Images
  Terrorism: Risk Assessments
  Terrorism: Risk Assessments
  War Crimes: Radovan Karadzic and Ratko Mladic
  War Crimes: Radovan Karadzic and Ratko Mladic
  Iraq: Population
  Iraq: Population
  UN Convention against Corruption
  UN Convention against Corruption
  Liberia: Rubber Industry
  Liberia: Rubber Industry
  US-UK Mutual Defence Agreement
  US-UK Mutual Defence Agreement
  Iraq: Militias
  Iraq: Militias
  Physical Activity and Health
  Physical Activity and Health
  Nutrition: Information
  Nutrition: Information
  Children in Residential Care: Mental Health
  Children in Residential Care: Mental Health
  Passive Smoking: Cost of TV Campaign on Risk to Children
  Passive Smoking: Cost of TV Campaign on Risk to Children
  NHS Performance Ratings
  NHS Performance Ratings
  Defra: Consultants and Professional Advisers
  Defra: Consultants and Professional Advisers
  CAP: Historic Receipts
  CAP: Historic Receipts
  Illegal Food Imports: Testing
  Illegal Food Imports: Testing
  Beef Labelling: Enforcement
  Beef Labelling: Enforcement

  Senior Salaries Review Body
  The Lord President of the Council (Baroness Amos)
  The 26th Report of the Review Body on Senior Salaries, which makes recommendations about the pay of the senior Civil Service, senior military personnel and the judiciary, is being published today. Copies are in the Vote Office and the Library of the House. The Prime Minister is grateful to the chairman and members of the review body for their work.

  The main recommendations of the review body for the senior Civil Service are:

  an increase from 1 April 2004 of 2 per cent to the pay ranges for each of the senior Civil Service pay bands below Permanent Secretary;

  a range of base pay awards from 0 to 9 per cent depending on performance;

  a minimum unconsolidated bonus payment of 3 per cent or £2,500, whichever is the higher, for those making the greatest contribution; and

  an uplift to the pay range for Permanent Secretaries resulting in a new range of£121,100 to £256,550; the uplift is broadly equivalent to the increase proposed to the pay ranges for the senior Civil Service pay bands below Permanent Secretary.

  The main recommendation of the review body for the senior military is an increase from 1 April 2004 of 2.8 per cent in the value of all points on the incremental pay scales for senior military officers.

  The main recommendation of the review body for the judiciary is an increase from 1 April 2004 of 2.5 per cent in judicial salaries.

  The Government have decided to accept these recommendations. Their cost will be met within existing departmental expenditure limits.

  The review body has also recommended that broad salary linkage between its remit groups should be achieved from now on by maintaining general equivalence in salary levels at the top of the structures only. The Government will be considering this.

  Pay increases for Members of Parliament and Ministers are linked automatically to the increase in pay bands for the senior Civil Service. Their pay entitlement will therefore increase by 2 per cent from 1 April 2004.

  Iraq: Interim Country Assistance Plan
  Baroness Amos
  My right honourable friend the Secretary of State for International Development has made the following Written Ministerial Statement.
  WS 2
  I have placed in the Libraries of both Houses a copy of DfID's Interim Country Assistance Plan for Iraq. It sets out how DfID aims to contribute to the reconstruction of Iraq in the period up to March 2006. I have also decided to make an initial contribution of £65 million (120 million US dollars) to the International Reconstruction Fund Facility for Iraq, managed by the World Bank and United Nations, out of the resources pledged by the United Kingdom for the reconstruction of Iraq at the Madrid donors conference in October 2003 (see my Written Statement of 14 October 2003: Cols. 9–10WS).

  Saddam Hussein's tyranny led to a significant increase in poverty and Iraq was isolated from the rest of the world, including its own region, for much of his rule. In many respects Iraq's social and economic indicators now resemble those of a low-income country rather than a major oil producer. But Iraq's abundant human and natural resources offer the potential for a rapid return to relative prosperity, if the right conditions are created in the short and medium term.

  Against this background, DfID's objectives for the next two years are to support: rapid, sustainable and equitable economic growth; effective and accountable governance; and social and political cohesion and stability.

  To work towards these goals DfID will focus on three levels:

  Internationally: by supporting the United Nations and World Bank International Reconstruction Fund Facility for Iraq (IRFFI), assisting the Ministry of Planning and Development Co-operation, and continuing dialogue with other donors on the coordination and effectiveness of assistance to Iraq.

  Nationally: by funding projects which benefit the poor, promote an inclusive political process and economic reform, and strengthen public administration. Examples include: helping the growth of small and medium-sized businesses; setting up a fund to support the participation of citizens, parties and interest groups in the political process; and technical assistance to Iraq's public administration system.

  In southern Iraq: by funding projects to reduce poverty and helping to restore the area's administrative and political links with Baghdad so that it can benefit from Iraq's national development efforts.

  At the Madrid donors conference, the United Kingdom pledged a total of £544 million for the period from April 2003 to March 2006, a significant proportion of which would be channelled through the International Reconstruction Fund Facility for Iraq (IRFFI). The allocation of our initial contribution between the UN and the World Bank Trust Funds will be decided shortly. Any further DfID contributions to the funds will be considered in the light of the effectiveness of their operations and their need for additional funding.
  WS 3
  A total of over 32 billion dollars was pledged to Iraq at the Madrid conference. These pledges, together with a substantial reduction in Iraq's debt which should be negotiated this year, will provide a sound basis for the country's initial reconstruction. If the right steps are taken now, and the political situation in the country is stabilised, much of Iraq's longer-term investment needs should be met by commercial loans, foreign direct investment and its own resources. Iraq's human capital, and its oil reserves of about 2,500 billion dollars at current prices, should enable it to meet its future needs without significant external grant assistance.

  The country assistance plan is also available on the DfID website: www.dfid.gov.uk.

  Hong Kong
  The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean)
  The latest report on the implementation of the Sino-British Joint Declaration on Hong Kong was published today and copies have been placed in the Library of the House. A copy of the report is also available on the Foreign and Commonwealth Office website (www.fco.gov.uk). The report covers the period from 1 July to 31 December 2003 and includes a foreword by my right honourable friend the Foreign Secretary. I commend the report to the House.

  Armed Forces Pay Review Body
  The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach)
  My right honourable friend the Secretary of State for Defence (Mr Geoffrey Hoon) has made the following Written Ministerial Statement.

  The 2004 report of the Armed Forces Pay Review Body has been published today. Copies of the report are available in the Vote Office and the Library of the House. I wish to express my thanks to the chairman and members of the review body for their clear and wide-ranging report.

  The AFPRB has recommended an increase in basic military salary of 2.8 per cent for the majority of personnel and 3.2 per cent for certain Privates and Lance Corporals (those on the lower pay range). The AFPRB has also recommended increases in the rates of specialist pay (for example, flying pay, submarine pay, diving pay and hydrographic pay), and in accommodation charges. The AFPRB has also recommended a 3.2 per cent increase to rates of longer separated service allowance and longer service at sea bonus which are designed to compensate for separation.

  The additional cost to the defence budget will be £196 million. This will be met within existing departmental expenditure limits.

  The AFPRB's recommendations are to be accepted in full, with implementation effective from 1 April 2004.

  Ministry of Defence Votes A 2004–05
  Lord Bach
  My honourable friend the Minister of State for Defence (Mr Adam Ingram) has made the following Written Ministerial Statement.

  The Ministry of Defence Votes A 2004–05 will be laid before the House on 23 February as HC 283. Votes A outlines the maximum numbers of personnel that can be retained for service in the Armed Forces for financial year 2004–05.

  Copies of these reports will be laid in the Libraries of both Houses.

  Iraq: Campaign Medal
  Lord Bach
  My right honourable friend the Minister of State for Defence (Mr Adam Ingram) has made the following Written Ministerial Statement.

  I am pleased to announce that Her Majesty has graciously approved the detailed qualifying criteria for the award of a campaign medal for recent operations in Iraq. I have laid the Command Paper instituting the Iraq Campaign Medal in Parliament today.

  Ministry of Defence: Departmental Expenditure Limits
  Lord Bach
  My right honourable friend the Minister of State for Defence (Mr Adam Ingram) has made the following Written Ministerial Statement.

  Subject to parliamentary approval of any necessary Supplementary Estimate, the Ministry of Defence departmental expenditure limits will be increased by £506,795,000 from £30,792,381,000 to £31,299,176,000. Within the DEL change, the impact on resources and capital are as set out in the following table:

  1000s

  New DEL

  Change

  Voted

  Non-voted

  Total

  Resource

  342,500

  31,866,919

  448,247

  32,315,166

  Capital

  -35,705

  6,401,972

  19,925

  6,421,897

  Depreciation1

  200,000

  -7,337,887

  -100,000

  -7,437,887

  Total

  506,795

  30,931,004

  368,172

  31,299,176

  1 Depreciation, which forms part of resource DEL, is excluded from the total DEL since capital DEL includes capital spending and to include depreciation of those assets would lead to double counting.

  The change in the resource element of the DEL arises from:

  The transfer of £116,550,000 from capital to resource DEL

  An increase in RfR2 of £231,000,000 resource DEL for military operations.

  A transfer of £5,000,000 resource DEL from FCO in respect of the Global Conflict Prevention Pool.

  WS 5

  A transfer of £910,000 from DfID in respect of the Conflict Prevention Pool for programmes in sub-Saharan Africa.

  A transfer of £11,200,000 resource DEL to the DTI in support of dual-use aero-engine technology programmes.

  A transfer of £305,000 resource DEL from the DWP to the Veterans Agency relating to a change in allowances.

  A transfer of £120,000 resource DEL to the Single Intelligence Account relating to electricity for a shared site.

  A transfer of £55,000 resource DEL from the Home Office in respect of the Voluntary Opportunities Matched Funding project.

  An increase in the non-budget items of £147,541,000 arising from changes in provision values related to the change in the Treasury discount rate.

  An increase in resource appropriations in aid of £157,579,000.

  The change in the capital element of the DEL arises from:

  A transfer of £116,550,000 from capital DEL to resource DEL as a result of budgetary rebalancing.

  An increase in RfR2 of £78,000,000 capital DEL for military operations.

  A transfer of £5,500,000 capital DEL from the Home Office to MoD as payment for part of the former RAF Newton site.

  A reduction in capital DEL of £2,655,000 as a result of repaying the funding provided from the reserve in financial year 2001–02 which was brought forward from 2003–04 for Operation Veritas urgent operational requirements.

  An increase in non-operating appropriations in aid of £134,613,000.

  A profit of £17,674,000 on the disposal of fixed assets.

  Courts Boards
  The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)
  The post-consultation report for the paper Courts Boards: constitution and procedures is published today.

  Courts boards will be a means of ensuring local involvement in the way in which courts are run. They will work with the new unified courts agency, which will integrate the management of the courts within a single agency to replace the magistrates' courts committees and the Court Service. Courts boards will provide a vital local input, to ensure that the courts administration is run in a way that meets the needs of their areas. We intend to appoint the first members to courts boards towards the end of 2004, so that the boards will run in shadow form before the new agency is launched in April 2005.
  WS 6
  The consultation paper Courts Boards: constitution and procedures sought views on how appointments should be made to courts boards and the procedures by which they should operate. The consultation period ran from 25 September 2003 to 5 January 2004 and 141 responses were received.

  A post-consultation report for the paper Courts Boards: constitution and procedures will be published on 26 February. The report will set out the Government's decisions on how courts boards will be set up, in the light of the responses received to consultation. It will also inform regulations which will be laid before Parliament on that day.

  I am keen for courts boards to be set up in shadow form during this year so that the boards may then consider the draft business plans for the first year of the new unified courts agency.

  National Land Information Service
  Lord Filkin
  The Government have today accepted the recommendation of the review of the National Land Information Service central department stakeholder group that the group should be abolished. Central government departments will continue to support the development of the National Land Information Service (NLIS) through direct contact and by liaising with each other to ensure a joined-up response to issues relating to NLIS. A copy of the review has been placed in the Libraries of both Houses of Parliament.

  Nuffield Orthopaedic Centre NHS Trust
  The Parliamentary Under-Secretary of State, Department of Health (Lord Warner)
  My honourable friend the Minister of State for Health (Mr Hutton) has made the following Written Ministerial Statement.

  On 12 February my right honourable friend the Secretary of State announced that he would support the Nuffield Orthopaedic Centre NHS Trust in its bid to be part of the first wave of NHS foundation trusts. The NHS trust can now apply to the office of the independent regulator, chaired by Bill Moyes, for authorisation as an NHS foundation trust, and set up new governance arrangements including recruiting members and holding elections to the board of governors.

  The Nuffield Orthopaedic Centre NHS Trust is now working towards authorisation as an NHS foundation trust along with 24 other NHS trusts.

  Historic Environment
  The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey)
  My right honourable friend, the Minister of State for Sport and Tourism (Richard Caborn) has made the following Written Ministerial Statement.
  WS 7
  I would like to update the House on the progress made on implementing the recommendations contained in the Government's statement on the historic environment, A Force for Our Future, since March 2003.

  The statement, published in December 2001, articulates the Government's vision for the historic environment at the heart of national life and sets an agenda for unlocking its full potential. This programme of action emphasises the value of the historic environment as an educational resource, its relevance to all members of the community and how it can work as an economic and regenerative asset in urban and rural settings.

  The Government will continue to take this agenda forward in a number of ways, in particular through the review of heritage protection, English Heritage's annual state of the historic environment reports, the DCMS/DfES Joint Committee on Built Environment Education and English Heritage's funding agreement, which is co-sponsored by the DCMS, Defra and the ODPM.

  Since March 2003 the following has been achieved:

  June 2003

  The Government Historic Estate Unit published Protocol for the Care of the Government Estate 2003 recommending its adoption by government departments who own and manage historic estate and providing a model of good practice for all publicly funded bodies.

  The Historic Houses Association launched www.historichousevenues.com, an online resource listing privately owned historic houses and gardens throughout Britain which offer exclusive facilities for pre-booked groups and individual visits, special events, catering and accommodation. The aim is to increase public access and develop commercial activity.

  July 2003

  English Heritage published Streamlining Listed Building Consent: Lessons from the Use of Management Agreements, a report on the effectiveness of listed building consent management guidelines and their potential to streamline the listed building consent regime.

  The Architectural Heritage Fund, with support from English Heritage and Cadw, launched an online directory of sources of funding available for rescuing and restoring historic buildings at www.ffhb.org.uk.

  English Heritage published Managing Local Authority Heritage Assets—some guiding principles for decision-makers, promoting best practice in the management of council-owned heritage assets and high quality design in new work related to them, including public spaces.

  I launched Protecting Our Historic Environment: Making the System Work Better, a consultation document aiming to improve and refocus the way in which England's historic environment receives statutory protection.
  WS 8
  The Government published their consultation Historic Environment Records: Benchmarks for Good Practice, inviting views on how best to ensure that the rich resources currently held in sites and monuments records across the country can be developed and made available to professionals, schools and colleges as well as the wider public.

  English Heritage convened a series of meetings to develop and share best practice on access for people with disabilities to historic properties and sites.

  August 2003

  English Heritage published its consultation document Local Authority Performance Indicators for Historic Environment Services, seeking views on developing a performance assessment framework for local authorities managing the historic environment.

  The Secretary of State for Culture, Media and Sport launched the DCMS/DfES Joint Advisory Committee on Built Environment Education, which will focus on how best to promote the built environment as an educational resource.

  September 2003

  Six new commissioners were appointed to the English Heritage Commission, including for the first time a commissioner responsible for access and outreach issues.

  Ministers in the DCMS, the ODPM and Defra signed an innovative joint funding agreement for English Heritage. This recognises for the first time the contribution English Heritage makes to the delivery of all three departments' targets.

  Heritage Open Days 2003, organised by the Civic Trust with support from English Heritage, attracted over 800,000 visitors to 2,512 properties and activities. There was a significant increase in the number of participating properties and activities, local organisers and volunteers.

  The Historic Houses Association and English Heritage, with support from the Heritage Lottery Fund, launched a pilot scheme to assist private owners of historic houses to develop education programmes.

  October 2003

  Royal Assent was given to the Dealing in Cultural Objects (Offences) Bill.

  The UK signed a co-operation agreement with UNESCO, which will enable developing countries to benefit from UK heritage and conservation expertise. UK experts will assist developing countries with identifying world heritage sites and preparing management plans and conservation strategies for both cultural and natural world heritage sites.

  I launched the National Heritage Training Group's business plan Building on the Past: Training for the Future. It sets out the group's plans to tackle the skills deficit in traditional building crafts, including a traditional building crafts training plan.
  WS 9
  November 2003

  Heritage Counts, the second state of the historic environment report, was launched. Key themes covered were: historic environment assets; the economic value of the historic environment; outreach, knowledge and access; indicators, including a consultation on a framework for historic environment indicators. The report published MORI research commissioned by English Heritage, with funds from the DCMS and the Heritage Lottery Fund, to establish who is not engaging with the historic environment and why. It also published research produced by Heritage Link into the contribution made by volunteers to the historic environment.

  English Heritage published Easy Access to Historic Properties for consultation. The publication gives
  WS 10
  guidance to those responsible for the historic environment on the provision of access for people with disabilities. The updated version takes into account the implementation of Part III of the Disability Discrimination Act 1995 and the updated Part M of the Building Regulations.

  December 2003

  The 2003 Pre-Budget Report confirmed that funding for the Listed Places of Worship Grant Scheme would continue until the end of March 2006.

  The Disability Rights Commission, in association with English Heritage, held a consultative conference on making historic buildings accessible to people with disabilities.

  The Dealing in Cultural Objects (Offences) Act came into effect.