Sitting of 7 June 2004

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

DEATH OF A MEMBER
2.34 pm
Mr. Speaker Mr. Speaker: I regret to have to report to the House the death of Mr. Jim Marshall, Member for Leicester, South. I am sure that Members on all sides of the House will join me in mourning the loss of a colleague and in extending our sympathy to the hon. Member's family and friends.

Oral Answers to Questions
  WORK AND PENSIONS
  The Secretary of State was asked—
  WORK AND PENSIONS

    Benefits
    Sir Teddy Taylor: How many people were registered as recipients of either disability, incapacity or sickness benefits (a) on the most recent date for which figures are available, (b) in 1999 and (c) in 1994. [177310]
    The Secretary of State for Work and Pensions (Mr. Andrew Smith): In 1979 there were 690,000 people of working age claiming incapacity benefits. By 1994 there were 2.23 million and by 1997, 2.56 million. In 2003 there were 2.68 million. I have placed information on all the benefits about which the hon. Member asks in the Library.
    The numbers of people coming on to incapacity benefits are down by more than a quarter in the past seven years, but we still need to do more, which is why we started the pathways to work pilots. I am pleased to note that the hon. Gentleman's own constituency is included in this innovative approach.
    Sir Teddy Taylor: The Department's statistics, confirmed by the Library, show that, over the last five years, there has been an increase of 531,000 in the number of people securing disability living allowance or incapacity benefit. As that figure involves a 20 per cent. increase in DLA, does the Secretary of State feel that there is a case for an inquiry to find out why there has been such a huge increase, particularly as there can be implications for other statistics? When we see such a huge increase, it is important to find out why it has happened. I should greatly appreciate the right hon. Gentleman's help in establishing exactly why there has been an increase of 531,000 in this short period.
    Mr. SmithThe on-flows on to incapacity benefit are down sharply over the last seven years, by some 260,000 a year. The hon. Gentleman should draw a distinction between incapacity benefit and DLA, which is non-means-tested and paid to people in work, as well as to those out of work, to meet the extra costs of their disability. I would have thought that he would join me in celebrating the fact that people who need that help because they are disabled are receiving it. Sometimes the Conservative party is quick to criticise us for the lower take-up of benefits. Perhaps, on this occasion, the hon. Gentleman will think again about criticising us for the higher take-up of a much needed benefit.
    Chris Bryant: My right hon. Friend the Secretary of State will know that one third of my constituents of working age are on incapacity benefit, a phenomenally high figure. Does he believe that the role of GPs in, effectively, giving people a passport to benefits for life is in serious need of review?
    Mr. Smith: We are reviewing these matters and learning from the pathways to work pilots, which also operate in my hon. Friend's constituency. We have established much closer partnership working with GPs, primary care trusts and those involved in training and voluntary service support for sick and disabled people. The early evidence from the pilots is that a lot of people are being helped into training and work rather than incapacity benefit, including in my hon. Friend's constituency.
    Sir Archy Kirkwood: The emphasis from the Government on pathways to work and on the pilots is welcome, but will the Secretary of State acknowledge the regional dimension? Is he aware of the recent work by Steve Fothergill—an academic at Sheffield university—and others, which shows clearly that if the economies were stronger in south Wales, the north-east and Clydeside, up to 1.2 million claimants could be taken off incapacity benefit? What are the Government doing to address the regional dimension of the problem, in addition to the individual attention that, rightly, is being given to people in the pathways to work pilots?
    Mr. Smith: I am aware not only of regional disparities but of the progress that is being made in the different regions. When one looks at the labour market statistics as a whole over the past seven years—during which we have put 1.9 million extra people into jobs—it is striking that unemployment has fallen furthest in the areas where it was highest. That does not mean that there is not more to do, and through the pathways to work pilots—which are in some of the very areas to which the hon. Gentleman referred—we will be making inroads into what has become a culture of incapacity in those areas. That must change, and I believe positively that it will.
    Mr. Stephen McCabe: I hope that we have not spotted another Tory leak—about plans to take benefits away from the legitimately ill. Surely the test here is what would have happened in the past to people with such difficulties and how many of them now are being helped by programmes such as the new deal to get back into work when they are capable of it.
    Mr. Smith: My hon. Friend makes a good point. People were left to languish on incapacity and other benefits for years, with no one paying them any attention or giving them any help whatever. What Conservative Members leave out of their analysis of the new deal is the number of people suffering ill health and disability—barriers to work—who have been helped by the other new deals. Some 57,000 disabled people have been helped by the new deal for young people, and 41,000 disabled people over the age of 25 have been helped by that new deal. A further 33,000 people have
    4
    been helped by the new deal 50-plus and 9,000 by the new deal for lone parents. All those are programmes that would be scrapped by the Conservative party.
    Mr. Paul Goodman: Further to the Secretary of State's remark about a culture of incapacity benefit, he will be aware, although he did not give these figures to the House, that since 1997 the number of people claiming incapacity benefit for such conditions as stress, anxiety and depression has risen to 718,000, that that is a rise of 39 per cent. and that such conditions now represent 26 per cent. of all claims. That rise is continuing, and it is clearly out of control. Can the Minister guarantee that it will be reduced by the end of this Parliament, or is his Department too stressed and anxious to do that?
    Mr. Smith: There are a number of reasons underlying the increase in sickness and ill health—and, in particular, mental ill health—take-up of incapacity benefit. Greater awareness and an increase in people's readiness to acknowledge mental health conditions are certainly part of the picture, but if the hon. Gentleman is suggesting that it would be wise to examine the gateway through which people get on to those benefits, and offer them support to enable them to get back into work rather than have a life on benefits, I agree with him. I hope that he agrees with us that the pathways to work approach, which combines rehabilitation, mandatory work-focused interviews, and incentives and help with training for those who move into jobs, is the right way forward. It is cutting-edge stuff as far as international experience is concerned, and the Conservative party ought to support it.

    Pension Credit
    Lawrie Quinn: How many pensioners he estimates have gained financially as a result of the introduction of pension credit. [177312]
    Albert Owen: How many pensioners he estimates have gained as a result of pension credit. [177317]
    Tony Baldry: What discussions he has had with Age Concern relating to the take-up of pension credit. [177319]
    Jim Knight: How many pensioners he estimates have gained financially as a result of the introduction of pension credit. [177323]
    Lawrie QuinnI thank my hon. Friend for that excellent answer. In my constituency, many pensioners are now benefiting from that additional help—considerably so, in fact. However, there are still some pensioners who would argue that they are not getting their full entitlement because of their struggle in filling out the paperwork and so on. What can the Minister do to increase the number of pensioners in my constituency and elsewhere who fully understand what they are entitled to and should be receiving?
    Malcolm WicksI thank my hon. Friend for the lead that he is giving on pensions rights in Scarborough and Whitby. He has a firm reputation in that regard. More than 5,000 households in his constituency are receiving pension credit, the great majority of them—more than 4,000—being financial gainers. But do we need to do more to increase take-up? Yes we do, and I am particularly pleased to report to the House that somewhere in the region of 500,000 home visits have now taken place through our new Pension Service. It is by that exercise of choice over how to apply for benefits that we will push up the numbers even further.
    Albert OwenI thank the Minister for his earlier response. Many people in my constituency are indeed benefiting from the pension credit, but like my hon. Friend the Member for Scarborough and Whitby (Lawrie Quinn), I have many constituents who are not. Does the Minister agree that Members of Parliament can play an important role in raising awareness of the pension credit? Will he instruct his Department to dispatch information to individual Members across the House so that we can help our vulnerable constituents by raising awareness and making sure that they receive their full entitlement?
    Malcolm WicksAgain, I thank my hon. Friend for the lead that he is giving on these matters on the island. The local pension service has been in touch with all Members of Parliament, but I will review the arrangements to ensure that that is taking place. There are 2,730 people who are on the credit, financially better off, in his constituency, and I know that there are many advice surgeries, one of which, I note, takes place in the marriage waiting room at the registry office—I did not know that we were into that form of joined-up government, but no doubt it will be welcomed.
    Tony BaldryI understand that about £1 billion goes unclaimed in pension credit. Oxfordshire Age Concern, which covers both the Secretary of State's constituency and mine, tells me that much of its work is now in helping pensioners to claim the credit and fill in the paperwork. Will the Minister consider further ways of helping pensioners to access the benefits to which they are entitled? Age Concern and other charities have been very good at reaching pensioners whom even home visits have not reached, so will he consider giving them a grant-in-aid, so that they can be more active in ensuring that pensioners get all the benefits to which they are entitled?
    Malcolm WicksAgain, I thank the hon. Gentleman for his work with the local pension service. I know that Age Concern is an active constituent, as it were, in that
    6
    area. We have a small partnership fund, a sum set aside for the very purpose that he suggested, to ensure that local voluntary organisations can work with us on common objectives, but I thank him for the suggestion.
    Jim KnightPension credit is certainly benefiting many pensioners in my constituency, too, and I congratulate the Government on that, but there are many who believe that if they have any extra income on top of their basic state pension, that makes them automatically ineligible. Can the Government do more to change that perception?
    Malcolm WicksThat is an important question, and I am not complacent about our need to communicate very effectively. We are doing so, but there is still much to do. The point of pension credit, in large part, is that for the first time, unlike the old minimum income guarantee, it recognises and rewards those with savings, which is one reason why far more people are now benefiting than under the old income support system.
    Alistair BurtIs not the Minister a touch embarrassed to know that, in my constituency, there are many more pensioners who, thanks to his Government's policies, feel fleeced by unnecessarily high council tax bills than are eligible for pension credit?
    Malcolm WicksI hesitated because I was waiting for the punch line, Mr. Speaker. I hoped for more from a former social security Minister. We are concerned about levels of council tax in many areas, which is why we are reviewing the best methods of funding local governance, and it is one reason why an extra £100 will go to all households with someone aged 70 or over—indeed, we have Report and Third Reading of that Bill tomorrow.
    Mr. Peter PikeMy hon. Friend will know that I am a strong supporter of pension credit and of what the Government have done for pensioners. Will he acknowledge that the pension centres have done a really good job in ensuring that people who would not have got the benefit are getting it, and recognise that there are concerns about what will happen to those centres? In particular, there are rumours that Simonstone pension centre will close in a major reorganisation, and fears about what will happen and how we will ensure that pensioners get what the Government want them to get in the future.
    Malcolm WicksI am grateful to my hon. Friend for recognising the important work that pension centres and the service as a whole are doing. Despite the inevitable scare stories that we get from time to time from Opposition parties, the fact that, for example, 94 per cent. of calls are answered within 30 seconds shows what an excellent service we now have.
    Mr. David WillettsDoes not the Minister recognise the widespread concern that has just been expressed by hon. Members of all parties about the problem of low take-up of pension credit because many pensioners simply do not want to claim a complicated, means-tested benefit? Did he have the good fortune to

    7
    hear the Deputy Prime Minister on the "Today" programme the other week, when he said that 1.5 million pensioners were not claiming council tax benefit
    "because they don't like to use the means-tested approach that is entailed in that."?
    What could be clearer than those words? So as the Minister loyally defends his policy of mass means-testing, does he not feel the tectonic plates shifting underneath him, as he realises how few people believe that it is working?
    Malcolm WicksI hear the Tory plates crashing all over the place. Of course I listened to what the Deputy Prime Minister said, and we do recognise that some people will fear that this policy constitutes old-fashioned means-testing—not least because of the campaign of fear that some are waging. But when, on phoning our Pension Service, elderly people are able to discover within a short time whether they are eligible for the pension credit, they know that this is a 21st century service. Two out of three people claiming pension credit are women—2 million women are claiming, compared with 1 million men, and the policy is helping elderly women in particular—and that is a very strong feature of this Government's social policy.
    Paul FarrellyWhat the rate of take-up of pension credits is in Newcastle-under-Lyme. [177313]
    The Parliamentary Under-Secretary of State for Work and Pensions (Maria Eagle)As at 31 May, 3,905 pensioner households in Newcastle-under-Lyme, comprising some 4,700 individuals, were in receipt of pension credit. That is a 50 per cent. increase in take-up of the minimum income guarantee.
    Paul FarrellyI thank my hon. Friend for that reply. Does she recognise that despite Opposition carping, thousands of pensioners in Newcastle-under-Lyme and north Staffordshire have benefited under Labour from pension increases, guaranteed minimum incomes and the pension credit? That is real progress, which would be reversed if the Tories took office again. Does she also recognise that despite the flimsy promise that the Liberal Democrats made last year to knock £100 off council tax, but which they have now dropped—
    Mr. SpeakerOrder. I think that the Minister can answer the question.
    Maria EagleAnybody would think that some elections were going on. I did hope to hear what my hon. Friend had to say about the Liberal Democrats, but perhaps we can do so on another occasion. None the less, he is absolutely right to point out that the Opposition's policy would leave poorer pensioners on a—
    Mr. SpeakerOrder. Even the Minister is not allowed to talk about the Opposition's policies.

    Health and Safety Executive
    Tony LloydWhat criteria he uses to assess the effectiveness of the Health and Safety Executive. [177314]
    The Minister for Work (Jane Kennedy)Notwithstanding the fact that the United Kingdom has one of the best health and safety records in Europe, in 2000 the Government set targets further to reduce accidents and ill health caused by work. The Health and Safety Commission and the Health and Safety Executive have developed a new strategy to help to deliver these targets, and I hold quarterly performance reviews with the HSE, at which key indicators on performance are discussed, among other matters.
    Tony LloydMy right hon. Friend will agree that for any Labour Government, health and safety are at the highest point on the political agenda, but does she accept that the strategy agreed by this Government and the Health and Safety Commission is not being adhered to and that we are not seeing the reductions in deaths, serious injuries and workplace-related illness that we anticipated? Will the Government therefore give a clear commitment to that strategy and will they ensure that the Health and Safety Executive has the necessary funding to enforce and prosecute, which it is currently failing to do? Will they also introduce the promised legislation, in order to provide real power to crack down on rogue employers who kill and injure our fellow countrymen and women in the workplace?
    Jane KennedyI do acknowledge the importance that many Members in all parts of the House attach to health and safety, but I do not accept my hon. Friend's observation that the Health and Safety Executive has failed to progress towards achieving these targets. Delivering on the targets is not just about more cash or more inspectors. All organisations such as the HSE can always use more funding, but effective regulation of health and safety at work is about more than that: it is about providing the right information and advice; training; working with and through others; and changing workplace culture. The threat of enforcement is an important element in that regard, and in the light of my increasingly close work with the HSE, I am satisfied that, although there are areas in which we need to make more progress, on the whole the HSE and the Health and Safety Coin mission are keeping these targets in focus and are working towards achieving them.
    Mr. George OsborneA fortnight ago, as the Minister will be aware, the Health and Safety Executive's Control of Asbestos at Work Regulations 2002 came into force. In those regulations, the agency makes no distinction between the deadly blue and brown forms of asbestos, which have caused such suffering, and the far less risky white asbestos. Is the Minister aware of reports that unscrupulous contractors are using that confusion to rip off home owners, small businesses, farmers and others? What is she doing to ensure that a well meant attempt to protect public health does not become a regulatory nightmare?
    Jane KennedyI will look closely into those allegations and if there is any truth in what the

    9
    hon. Gentleman is saying, I shall certainly look into the matter further. I am grateful to him for bringing it to my attention.
    Mr. Barry SheermanDoes my right hon. Friend agree that it is about time the Health and Safety Executive ceased to be a sort of back office of a Government Department? Is it not time we gave it some real independence? I understand that the HSE would dearly like to campaign and to push the Government into doing something about protecting workers from passive smoking at work, but that the Government are leaning on it to be quiet. If that is true, it is a disgrace. Is it not about time the Government grasped the nettle and protected workers?
    Jane KennedyThe Health and Safety Commission and the Health and Safety Executive are independent organisations and they are not coming under pressure from the Government not to pursue a campaign on smoking at work, so I am afraid that I cannot accept the basis of my hon. Friend's question.
    Bob SpinkThe Health and Safety Executive is an excellent and important organisation that does good work. Will the Minister congratulate it on its targeting of major causes of accidents, particularly falls from height on building sites? Does she agree that it is important to provide safer methods of forming barriers across openings at height on building sites—for instance, where lift shafts are being provided for—and is she aware that the Fullgate system, which does just that, is manufactured on Canvey Island?
    Jane KennedyI was not aware of that last fact, and I am grateful to the hon. Gentleman for drawing the House's attention to it. He is right to congratulate the Health and Safety Executive on its good and effective work on the incidence of injuries caused by workers falling from height. Indeed, the rate of reported major injury to employees is now about 3 per cent. lower than it was in 2000, the base year for the targets that I spoke about earlier. However, the balance of evidence suggests that the overall incidence of work-related ill health is likely to have risen, so we are not complacent. We accept that there is a lot more to do and we keep all such matters under constant review.

    New Deal
    Helen JonesHow many women in Warrington, North have benefited from the new deal for lone parents since its introduction. [177315]
    The Secretary of State for Work and Pensions (Mr. Andrew Smith)In my hon. Friend's constituency, 390 women have taken part in the new deal for lone parents and 220 have so far been helped into work. That is part of the progress across the country that has resulted, for the first time, in more than half of lone parents being in jobs, that has lifted children out of poverty and saved the taxpayer £40 million a year.
    Helen JonesI am grateful to my right hon. Friend for that reply. Many of the women whom I have met who have taken part in the new deal for lone parents are grateful for the work that they have obtained as a result, but I ask my right hon. Friend now to examine the needs of women after they have got jobs under the scheme, because they may need help to develop their careers. They may need information about their rights at work, about courses that they could take and so on, so that not only are they in jobs but they have careers. Will my right hon. Friend undertake to look into what can be done to assist lone parents once they have gone back to work?
    Mr. SmithI thank my hon. Friend for her welcome for the progress that the new deal is making in her constituency and for her advocacy of it. The new deal for lone parents is already making a difference on the issues connected with progress at work that she is concerned about: those who get jobs through the new deal are 15 per cent. more likely to stay in work than those who get jobs in similar circumstances in other ways. The preparation, the training and support and the personal advice are already making a difference. The further expansion of child care, with places for an additional 2 million children by 2006, and the work of the new child care partnerships, coupled with skills and training advice and workplace rights, are, I believe, the building blocks of the sort of flexible and responsive system that my hon. Friend and I both want to see, and towards which we are making progress.
    Mr. Graham BradyThe Secretary of State will know that one of the main causes for concern about the new deal is that so many people, tens of thousands, have been through it twice, three times or more. How many of the women in Warrington, North who have been helped by the new deal for lone parents have been through the scheme more than once?
    Mr. SmithI would have to check that statistic, but as my hon. Friend the Member for Warrington, North (Helen Jones) said, the 220 women who have gained jobs—a significant proportion of those who took part in the programme—welcome those jobs and are more likely to stay in them because they have had the help given by the new deal. Their biggest anxiety would be the Conservative party's plans to scrap it.

    Pension Protection Fund
    Mr. David AmessIf he will make a statement on the decision to offer compensation to those members of occupational pension schemes who will not be covered by the proposed pension protection fund. [177316]
    The Secretary of State for Work and Pensions (Mr. Andrew Smith)I dare say that the hon. Gentleman is aware that the Government have amended the Pensions Bill to introduce a financial assistance scheme for those workers who lost out on their defined-benefit occupational pensions prior to the introduction of the pension protection fund. Further details of the scheme, including who will be eligible and the level of assistance

    11
    to be provided, will be developed through consultation with stakeholders such as pension scheme trustees, trades unions and business representatives
    Mr. Amess: Is not the Secretary of State disappointed by the reaction to his announcement in Southend, West and throughout the country? Does he recognise that his announcement does not address the serious scale of the problem? Will he use the unclaimed assets in banks and building societies so that the general public, who have been so badly affected, can receive a decent amount of money?
    Mr. Smith: In terms of reaction, Derek Simpson of Amicus said:
    "This is great news for our members whose pensions were cruelly snatched away when their companies went bust."
    Digby Jones of the Confederation of British Industry said:
    "We are delighted that government has responded to calls for action … The amounts the government is suggesting are not enormous but the impact on the lives of those individuals affected will be huge."
    That is as positive as reaction can get.
    Mr. Frank Field: May I welcome the Government's announcement of a lifeboat operation? May I press the Secretary of State further, however, on the distinction that some Ministers are making between those who have lost their pensions because of an involuntary wind-up through bankruptcy and those who have lost all or part of their pensions because their firm has voluntarily wound up a pension scheme? For those involved, the loss of a pension, for whatever cause, has exactly the same effect. What is the Secretary of State's thinking on whether those who have lost all or part of their pensions because a scheme has been voluntarily wound up will be treated equally to the others?
    Mr. Smith: I accept the force of my right hon. Friend's concern, but he will be aware, as others are, that as we have considered these important issues in recent months, I have been careful on each and every occasion to say that where a boundary is drawn around those eligible for assistance, that boundary is bound to be difficult and some people are bound to fall on the wrong side of it. The thrust of the campaign expressing concerns was about insolvent wind-ups, as has been reflected in the statements made by me and my ministerial colleagues. We have made it clear that as we bring the scheme forward and engage with stakeholders and expert groups in defining eligibility conditions, we shall listen to everyone who has representations to make.
    Mr. Steve Webb: I welcome the Government's movement on this issue, but does the Secretary of State accept that a hardship fund is not enough? Many workers were not warned that their pensions would be at risk if their employer became insolvent. Indeed, it is worse than that: Government literature from the Financial Services Authority and from the Minister's Department said that pensions from companies were guaranteed. If workers had known that their pensions would be at risk if their employer became
    12
    insolvent, they could, close to retirement, have got the money out to save their pensions, especially if their employer looked risky. But no one told them so.
    Does the Minister accept that if a personal pension salesman did not tell people about the risks, he would be done for mis-selling? Are not the Government guilty of mis-selling occupational pensions?
    Mr. Smith: Again, I accept the strong feelings of injustice and anger that members of these schemes will have expressed, and which the hon. Gentleman's remarks partly reflect. However, I have to say that there is not a legal liability here, so talk of compensation in the terms expressed by the hon. Gentleman is not appropriate. I felt—as did hon. Members on both sides of the House—that, because of these workers' plight, it was right to do something about it. That is why we announced the scheme and why we pledged £400 million, plus such help as could be obtained from the industry. It is not an insignificant sum and it will make a real difference to those affected. The hon. Gentleman should be warmer in his welcome for it.
    John Robertson: My right hon. Friend should be congratulated on the work that he did with the PPF and on supplying the £400 million. However, the criteria governing who does and who does not receive the money have to be simple and clear. Does he agree with that?
    Mr. Smith: I thank my hon. Friend for his welcome and kind remarks. Yes, I agree that we must make it as simple and clear as possible, though bitter experience teaches us that little in the field of occupational pensions is quite as simple or straightforward as we would like. In terms of the way forward, we have clearly set out how we intend to proceed. We are already engaging key partners—both stakeholders and expert groups—in consultation on the scheme's development. By the end of this month we will lay a report on the scope of the problem before the House. By the end of November, we will start consulting on regulations. We are working towards the legislation being in place for spring next year, so we are moving as quickly as we can.
    Mr. David Willetts: Can the Secretary of State assure the House that any payments that victims of pension wind-ups receive from the Government's compensation scheme will not lead to a reduction in means-tested benefits?
    Mr. Smith: I am not going to give a blanket assurance on that, but our aim is certainly to try to ensure that people will not be worse off as a consequence of having received this help than they would otherwise have been.
    Mr. Willetts: May I press the Secretary of State a little more on that? As we know from a figure that he gave to the House when answering one of my questions in a debate, 60,000 people are affected. We have heard about a scheme that provides £20 million a year—about £400 million in total. That amounts to about £7,000 per person affected, which might be worth £350 a year—a very small sum compared with the size of the losses that many constituents of Members on both sides of the House are facing. It would add insult to injury if those

    13
    people were then told that they would have reductions in their means-tested benefits because of the Government's assistance. I very much hope that. the Secretary of State will consider the matter further and give the House an assurance that there will not be a loss of means-tested benefits.
    Mr. Smith: Of course we will be looking very carefully into all those aspects and their impact on individuals. I would not want to accept—and I would not want the record to show that I had implicitly accepted—the basis of the hon. Gentleman's calculations, by which I mean neither the average amount nor the means by which he arrived at it. The precise means by which help will be provided—and, indeed, any additional contributions—will depend on the definition of eligibility for the scheme.
    If the hon. Gentleman thought for a moment about the interaction with the pension credit system, he would realise that if people had the occupational pension that they had previously expected, it might well have taken them out of eligibility for assistance from the pension credit. In those circumstances, and to the extent that that credit is replaced, it would be illogical—and, indeed, unfair to those who were not in the scheme—if no account were taken of it.
    Mr. George Foulkes: Is my right hon. Friend aware that I am astonished at the churlishness of the Tories, and especially the hon. Member for Southend, West (Mr. Amess) in his attack on my right hon. Friend? My constituents believe that he and the Minister of State did an excellent job arguing for the scheme, obtaining the £400 million and getting the Prime Minister to intervene. Can my right hon. Friend give us the further assurance that my right hon. Friend the Member for Birkenhead (Mr. Field) was seeking—that in implementing the scheme, he w ill be as flexible as possible and will ensure that no one is excluded on a technicality?
    Mr. Smith: As I said, we will certainly be looking very carefully at the views that have been expressed. There is no point in misleading people on that. However a scheme is defined, and whatever the eligibility conditions, there are bound to be some people who will be disappointed. That has been in the nature of things since the beginning. It is important, as I have said all along, that we can look people straight in the eye and that they know that we have been straight with them. As to the churlishness of the Conservatives, I am never surprised at how churlish they are, any more than I am surprised by the loyalty and enthusiasm of my right hon. Friend, which is greatly appreciated.
    Andrew Selous: Will the Secretary of State now answer the excellent question asked by my hon. Friend the Member for Southend, West (Mr. Amess) about the unclaimed assets fund? The right hon. Gentleman is aware that people will receive only between £350 and £500 a year. Why cannot a claim be made on the unclaimed assets fund to help those 60,000 people?
    Mr. Smith: There is no unclaimed assets fund on which to make a claim. If there were, and if funds were available to help with the scheme, it would be very welcome.

    Mental Health
    Ann Coffey: What assessment he has made of the contribution of Work Link in Stockport to supporting people with mental health problems to move back into work. [177318]
    The Parliamentary Under-Secretary of State for Work and Pensions (Maria Eagle): Stockport council's Work Link initiative has been providing a well regarded, work-focused service to people with mental health impairments since 1998. I am pleased that Work Link is working closely with Jobcentre Plus and I am confident that their partnership will continue to deliver the intense one-to-one support that has been successful in helping 68 people with mental health impairments into work since 1999.
    Ms Coffey: I thank my hon. Friend for that reply. Work Link has been providing employment services to people with severe learning disabilities and mental health problems for several years and has had a remarkable success rate in placing people in work. However, because of changes in the structure of bidding for the European social fund, the long-term financial support for the project is now in doubt. Will my hon. Friend visit Work Link in my constituency, see for herself the excellent services that are being provided, and discuss the possibilities for sustainable, long-term funding to assure the future of the project?
    Maria Eagle: I am keen to continue successful partnerships with organisations such as Work Link, which has developed specialist expertise to help many people who have traditionally been ignored by society and written off as incapable of work. I am more than happy to visit Stockport and Work Link as soon as I have the opportunity to do so to discuss those issues with the project's staff.

    Jobcentre Plus
    Mr. Tam Dalyell: Pursuant to his oral answer of 26 April 2004, Official Report, columns 631–32W, on Jobcentre Plus (Scotland), how much has been invested in Jobcentre Plus in Scotland in the most recent convenient period. [177320]
    The Minister for Work (Jane Kennedy): In Scotland in the last financial year, £48.8 million was invested in welfare-to-work programmes and more than £31 million in the roll-out of new Jobcentre Plus offices and new contact centres. Forty-five of the new Jobcentre Plus offices are now open in Scotland, including the Bathgate office in my hon. Friend's constituency.
    Mr. Dalyell: How successful has Jobcentre Plus been in bringing the hitherto economically inactive back into productive work?
    Jane Kennedy: Nationally, more than 276,000 people have been helped into work through the new deals for lone parents and disabled people, who are some of our hardest to help customers. In Scotland, the new deal for lone parents has assisted 26,780 people back into work since its introduction in 1998.
    Mr. John McFall: The question for my right hon. Friend the Minister is whether that investment has been worth while. In the review of district structure, the new Highlands. Islands and Clyde coast district includes Dumbarton. The new headquarters for that district is 182 miles away in Inverness. Kevin Doran, the director for Scotland, has confirmed in a letter to me that the new structure is about economies of scale, but I would like reassurance from my right hon. Friend that it is also about efficiency, convenient access and customer care. Can I have such guarantees on behalf of my constituents?
    Jane Kennedy: The development of Jobcentre Plus is about building on the high quality service already provided by social security offices and jobcentres by delivering a single integrated service to all people of working age, with a clear focus on work. It is about delivering more flexibility to the staff who are in the closest contact with my hon. Friend's constituents. I undertake to ensure that we continue to work with Jobcentre Plus to keep assistance to customers and customer service at the forefront of our targets.

    Income Support
    Mr. David Tredinnick: How many people he estimates are not claiming the income support to which they are entitled; and if he will make a statement. [177321]
    The Parliamentary Under-Secretary of State for Work and Pensions (Mr. Chris Pond): We want all people who are eligible for benefits to take up their entitlement. Our most recent estimate is that between 86 and 95 per cent of people who are entitled to income support are receiving it, leaving between 110,000 and 350,000 working-age adults not receiving it. Among claimants with children, take-up is higher at between 93 and 99 per cent.
    Mr. Tredinnick: I thank the Minister for that reply. Can he tell us whether the number of people claiming housing benefit, council tax benefit and income support is going up or down overall? If the overall number is going up, does not that show the Government elected in 1997 as a dismal failure?
    Mr. Pond: No, it shows considerable success across the board. The hon. Gentleman will have heard my hon. Friend the Minister for Pensions talking about what we are doing and about our great success in extending access to the pension credit. He will know that we have launched a campaign on council tax benefit. Because the eligibility limits for many of those benefits have been increased generously, it is true that more people have become entitled and we are working hard to ensure that those newly entitled people get the benefits to which they are entitled and make claims as appropriate.
    Mr. Harry Barnes: Are some people who are in receipt of child support allowance missing out on income support? I have a letter sent on behalf of the chief executive of Jobcentre Plus. It shows that the change that came in on 12 April means that:
    "As the children will not be included in the calculation for Income Support, any income they receive, including maintenance payments, will not be taken into consideration".
    That is being countermanded by local provision. The Chesterfield manager states that it is misleading because maintenance payments are made not to the children but to the parent. Can the matter be clarified? Are some people missing out on income support because they are on Child Support Agency money?
    Mr. Pond: As my non. Friend will know, we have made an important change in saying that maintenance payments will not be taken into account in the child tax credit, but I shall look into the specific issue he raised and the confusion that has arisen as a result of the fact that support for children has moved from income support across to a seamless system of child tax credits.
    Mr. Tim Boswell: On the operation of the benefits system generally, with particular reference to income-related benefits, has the Minister had a chance to read the annual report of the Daventry welfare rights group for the last fiscal year? It reports a staggering 50 per cent. increase in the work load and comments simply that new benefits are introduced and the common factor is chaos. Would not Ministers be better advised to stop tinkering with the system and to make a real effort to reduce its complexity and its over-dependence on means-testing?
    Mr. Pond: I have to say that that particular publication did not form part of my weekend's reading, but I shall make sure that it is part of my next weekend's reading. However, I am absolutely sure that the publication will have included reference to the fact that we are the first Government ever to have set ourselves a target of, first, halving and then eliminating child poverty and that we are determined to deal with pensioner poverty. That is why we have had to sort out much of the benefits mess left to us by the previous Government and why we have had to introduce benefits such as the pension credit, which assists many thousands of pensioners in the hon. Gentleman's constituency, as it does elsewhere in the country.

    Housing Allowance
    Siobhain McDonagh: What progress has been made in piloting the standard local housing allowance in the private rented sector. [177322]
    The Parliamentary Under-Secretary of State for Work and Pensions (Mr. Chris Pond): We are making excellent progress on the local housing allowance pathfinders. All nine pathfinder local authorities have implemented the reforms smoothly and we have put in place a comprehensive and independent evaluation. Although these are early days, the indications are that the local housing allowance is working well.
    Siobhain McDonagh: I thank my hon. Friend for that answer. With specific reference to London, what are the

    17
    early findings? Although the pilot on the standard local housing allowance is welcome, I foresee problems in London where demand for accommodation of all sorts is huge.
    Mr. Pond: In choosing the pathfinders, we wanted to ensure that we were able to cover high demand areas as well as low demand areas. That is why one of the nine pathfinders is based in London, and we shall look carefully at the implications of that for the working of the scheme. In Lewisham, 2,000 people are already in receipt of the local housing allowance, and it is working well at present. As I said, these are early days and we have announced that a further wave of local authorities will be included in a local housing allowance scheme to see operationally how it will work in practice. We have received a tremendous response from local authorities that would like to be involved and we shall announce which of them will be included in the near future. We hope that one of them, too, will be in London.
    Miss Anne McIntosh: Is this the best time to be transferring the new scheme to the private rented sector, bearing in mind the tremendous pressure that that sector of the housing market is coming under, particularly in north Yorkshire, and the lack of affordable homes in that area? What discussions has the Minister or his Department had with the Office of the Deputy Prime Minister to try to alleviate the situation by getting more homes from the private rented sector on to the market and by providing more affordable homes?
    Mr. Pond: The hon. Lady makes an important point, and I can tell her that we have had extensive discussions with the Office of the Deputy Prime Minister. We need to tackle the issue from both ends. We need to make sure that more affordable housing becomes available and, at the same time, that tenants have more choice and more ability to make decisions about how they spend their incomes. That means ensuring that they make the decisions about quality in terms of the housing available.
    Vera Baird: Can my hon. Friend tell the House how the local housing allowance pilots—which, on the face of it, should permit people to make choices about the type and quality of their accommodation—are working and whether, in particular, in poorer areas such as mine there is evidence that people are exercising their power of choice to trade up or to trade down?
    Mr. Pond: Yes, I can say that, in the pathfinders, the overall effect—whether it be in the high demand or low demand areas—seems to be generally very positive. We are not seeing great problems in terms of the extension of choice to tenants. In areas such as that of my hon. and learned Friend, the available evidence seems to suggest that when people have the choices and the income to make those choices a reality, they tend to trade up in the quality of their accommodation. That would be our expectation.

    Child Support Agency
    Mr. Alistair Carmichael: If he will make a statement on the operation of the Child Support Agency. [177324]
    The Parliamentary Under-Secretary of State for Work and Pensions (Mr. Chris Pond): The new scheme of child support was introduced for new cases and for those connected to the new scheme in March last year. My right hon. Friend the Secretary of State has made regular progress reports to the House. Following his last report on 21 April, I can tell the House that more than 180,000 cases have now been cleared and more than 22,000 of the poorest families are already benefiting from the new child maintenance premium.
    Mr. Carmichael: I thank the Minister for that answer, but the stream of complaints made in my surgeries by constituents who continue to have their liability for child support assessed according to the old rules continues unabated. Have the Government set a date for the complete migration of all cases in the CSA from the old system to the new? What is that date?
    Mr. Pond: No, we have not set a date. Overall, the number of complaints is falling and those that are made are being resolved more quickly by the agency. We have been straightforward with the House in saying that we cannot and will not transfer cases to the new system until we are absolutely sure that the new system and the IT are working properly. We cannot give a date on that, and my right hon. Friend the Secretary of State has made it clear that, in his view—and, I am sure, in the view of the House as a whole—it would be irresponsible to make that transition until we are sure that the IT is working properly.
    David Taylor: Has my hon. Friend looked at the proportion of the old case load that will be affected by the 15 per cent., 20 per cent. or 25 per cent. change and considered what the number of winners and losers might be? There is a great deal of anxiety out there and much pressure for the rollback to take place as early as possible. In particular, in the case of CSA clients in North-West Leicestershire, who are largely dealt with by staff in either Dudley or Belfast, the number of caseworkers that individual resident parents have to deal with over quite a short time is excessive. Will he look at the stability and training of staff there?
    Mr. Pond: Certainly, that is an issue that we are looking at to make sure that staff have the right and adequate amount of training. We understand the anxieties that people feel in waiting for the new system to come fully into operation. Everybody will accept that it is a much better system than the one set up by the Conservative party: it is simpler, fairer and more straightforward. However, as I have said, it would be irresponsible of us to try to make that transition until we know that the IT is working smoothly to ensure that payments go to the children who need the support.

    Pension Payments
    Dr. Brian Iddon: How many pensioners are receiving payment of their pensions at post offices in the Bolton, South-East constituency. [177327]
    The Parliamentary Under-Secretary of State for Work and Pensions (Mr. Chris Pond): As at 17 April 2004, 6,000 pensioners in Bolton, South-East received their payments by order book, which they cash at the Post Office. Almost 5,500 pensioners have had their money paid directly into an account. Many of those pensioners can access their payments in cash at the post office through the wider range of banking services now available at post office branches.
    Dr. Iddon: All of us are being asked to remember more and more personal identification numbers and passwords, the latest example being the Fees Office, but at least it gives Members of Parliament clues to help us out. Is my hon. Friend aware that some pensioners find it extremely difficult to remember their PINs for the post office and that as a consequence some post offices are keeping lists of those PINs behind the counter? Will he discuss that problem with Post Office Counters Ltd. the next time he meets its representatives?
    Mr. Pond: I certainly will. We understand that some people may have difficulty remembering their PINs, and my hon. Friend suggests that he might be one of them. I do not know whether he has taken out a Post Office card account, but I can tell him that he will not be entitled to it. It is not good banking practice for anyone, including sub-postmasters, to keep PINs behind the counter. I am not sure that that is good for the system's overall security. Of course, customers have the opportunity to change the PIN originally allocated to a number that they can more easily remember—perhaps their date of birth—and it is the job of staff and sub-postmasters to remind them of that. However, we have always recognised that a small number of people will not be able to operate the PIN system effectively, which is why we have announced a cheque-based system of payment, to begin from October this year.
    Miss Anne Begg: I congratulate the pensioners of Bolton, South-East on getting a PIN because that means they have managed to open a Post Office card account, which is still proving very difficult and a bureaucratic nightmare. Will the Minister consider the various stages that a pensioner has to go through to open a Post Office card account to ensure that the system is much easier to use and that some of the silly rules, which act as a barrier to people opening such accounts, are removed?
    Mr. Pond: Already, 3 million customers have said that they want to open a Post Office card account and 2 million have done so. We recognise that some customers may find the process difficult, but we have made it as simple as we can. We are considering ways to make the process more customer friendly and simpler to operate. We are in discussions with the Post Office on how best to do that.

    Pension Credit
    Paul Flynn: If he will make a statement on the take-up of pension credit. [177328]
    The Minister for Pensions (Malcolm Wicks): As the progress report published today shows, 2.5 million
    20
    households—including 3 million individuals—are now receiving the pension credit. This includes just short of 4,000 pensioner households in my hon. Friend's constituency.
    Paul Flynn: That Is a very good story, but there is one curious aspect to it, as reflected in the answer that my hon. Friend gave to me a few months ago—and that is the percentage take-up between urban and rural areas. In the prosperous rural areas, the increase in the take-up this year was 43 per cent., but in the poorer rural areas it was a mere 31 per cent. and just 19 per cent. in London. Has the Minister given some thought to that and to how he will conduct future campaigns to concentrate on the urban areas, where the need is almost certainly greater?
    Malcolm Wicks: We are studying reasons for variations of the sort illustrated by my hon. Friend and I shall report back when we have some firm conclusions. However, a local pension service allows us to tailor the campaigns to local circumstances. I am happy to talk to him about how we might better do that, although the local pension service is doing an excellent job in his constituency.

    Stockline Plastics Factory Explosion
    Ann McKechin: If he will make a statement on the Health and Safety Executive investigation into the Stockline Plastics factory explosion in Glasgow. [177330]
    The Minister for Work (Jane Kennedy): The Lord Advocate, Colin Boyd, and the chair of the Health and Safety Commission Bill Callaghan, agreed that there should be a joint investigation into the factory explosion in Glasgow on 11 May 2004, involving the Health and Safety Executive, the Crown Office and Procurator Fiscal Service, and Strathclyde police. That joint investigation is now proceeding in a co-ordinated and co-operative manner, but it is too early to speculate on the cause of the explosion.
    Ann McKechin: I thank my right hon. Friend for her reply. I take this opportunity to give credit to the emergency workers, the voluntary sector and the local community in Maryhill for their marvellous response to this tragedy. Clearly, as my right hon. Friend stated, we need to wait until tile full evidence is available before making any judgment as to the cause of the tragedy, but will she assure the House that if the inquiry should show evidence of a health and safety failure, there will be a full, independent investigation of the role of the Health and Safety Executive in its earlier visits to the factory?
    Jane Kennedy: I, too, want to add my words of congratulation not only to the members of the emergency services, but to the staff of the Health and Safety Executive who were on site very quickly after the incident. The HSE has visited the site of a number of occasions in the past 30 years; indeed, it has done so twice in the past four years. Following standard procedure, it will be conducting a prior role inquiry to determine whether there are lessons to be learned, both for the employer and for the HSE.

Iraq
3.31 pm
The Secretary of State for Foreign and Commonwealth Affairs (Mr. Jack Straw): With permission, Mr Speaker, I should like to make a statement on political and diplomatic developments relating to Iraq.
Under a revised and accelerated timetable agreed on 15 November last year, and endorsed by the Security Council in resolution 1511, full authority will transfer from the occupying powers, the United States and the United Kingdom in just three weeks' time, by 30 June, to a sovereign interim Iraqi Government. That Government will be in office until 31 January next year, by which time national elections for a transitional Government and constituent Assembly are due to have been held. The transitional Government and Assembly will oversee, among other things, the drafting of a new constitution. with a view to its agreement and elections for a Government on the basis of the new constitution by the end of next year.
To facilitate that process, the UN Secretary-General, Kofi Annan, appointed Ambassador Lakhdar Brahimi to nominate the interim Government. On 1 June, Ambassador Brahimi announced the appointment of Sheikh Ghazi al-Yawir as the new President; two deputy Presidents, Dr. Ibrahim al-Jafari and Dr. Rowsch Shaways; and a new Prime Minister, Dr. Iyad Alawi.
Dr. Alawi's Cabinet was also announced on 1 June in a joint press conference with Ambassador Brahimi. Twenty-two of its 31 members are newcomers—that is, not former members of the Iraqi Governing Council—and six are women. In an address to the nation last Friday, Dr Alawi identified his Government's priorities as the restoration of Iraqi sovereignty; security; economic revival; national unity; and preparations for elections.
Immediately following the announcements on 1 June, the Iraqi Governing Council dissolved itself and handed over its responsibilities to the new Government, including control of the 14 Ministries already under full Iraqi authority. The remaining 11 Ministries will be transferred by 30 June, at which point the coalition provisional authority will dissolve and the occupation will come to an end.
It is appropriate at this moment for me to record the British Government's appreciation of Ambassador Bremer, who heads the coalition provisional authority, and particularly of Ambassadors Greenstock and Richmond and all the staff in the British part of the coalition provisional authority for the contribution that they have made.
The announcement of the new interim Government was the fruit of many weeks of wide-ranging consultations conducted by Ambassador Brahimi and his team. The result is, I believe, a competent, professional and broad-based Government acceptable to the widest possible range of Iraqis and reflective of Iraq's diversity. The new Government have been welcomed by the United Nations, by the European Union, by many Governments in the region and by key figures in Iraq such as Ayatollah al-Sistani, the leading Shi'a cleric. I am sure that the House will wish to join me in paying tribute to the outstanding work of
22
Ambassador Brahimi and his staff; in congratulating all the members of Iraq's new Government on their appointment; and in offering the Government our full support.
Meanwhile, Ambassador Brahimi has made recommendations for the membership of a supreme commission, to be formed within days, to prepare a national conference to be held this July. The conference will include a diverse range of Iraqi voices in the political process, thus providing for the broadest possible representation. It is expected to elect an interim national council of about 100 members, whose role will be to promote constructive dialogue and national consensus; to advise the presidency and the Council of Ministers; to monitor the work of the Executive, including the implementation of laws; to have the power of veto over Executive orders; and to approve the national budget.
The United Nations will advise on the organisation of the national, regional and local elections, which are to be held no later than 31 January next year. We welcome the formation of an Iraqi independent electoral commission to prepare for those elections, with UN assistance. The commission's members have been recommended by the UN. I pay tribute to the work of Carina Perelli, head of the UN electoral assistance division, and her team for making all that possible.
As the House will be aware, the United States and the United Kingdom have proposed that there should be a new Security Council resolution to facilitate the transfer of sovereignty by 30 June. Drafts have been under discussion in New York and between capitals for some weeks. Those discussions with our Security Council partners have taken place in a constructive atmosphere, and I hope that the process may be brought to a conclusion very soon.
Key elements of the resolution affirm the full sovereignty of the interim Government and give the United Nations a lead role in support of the political process. The mandate of the multinational force is dealt with both within the text of the resolution and in an exchange of letters to the President of the Security Council from, on the one hand, the Prime Minister of Iraq and, on the other, the United States Secretary of State Colin Powell on behalf of the multinational force. The draft resolution provides that the mandate of the multinational force will expire in any event by 31 December 2005, but the Iraqi Government will have a clear right to review or to terminate it earlier if they so wish. The draft resolution and the letters lay down in some detail the nature of the relationship between the multinational force and Iraq's own security forces, and state the need to reach agreement on fundamental security and policy issues, including policy on sensitive offensive operations. I am placing the text of both letters in the Libraries of both Houses.
The Iraqi Foreign Minister, Hoshyar Zebari, addressed the Security Council last Thursday 3 June in New York. He asked that the international community endorse and support the Iraqi interim Government as quickly as possible, made clear his support for the resolution and made a number of points about the provisions of the resolution, which are now being dealt with. The Security Council has been holding further discussions about the resolution over the weekend and will resume those discussions later today in New York. A revised draft text is due to be circulated to Security

23
Council members later today. If it is—and, in any event, as soon as it is—circulated, I shall lay it before the House and place a copy in the Library of the House of Lords.
The biggest challenge that the new Government of Iraq will face is to build security. There will be those who will continue to seek to disrupt the transition to successful democracy in Iraq and to force decisions by the bomb, not by the ballot box; but the Iraqi Government are firmly resolved to defeat the men of violence, and we are resolved to help them to do so. The multinational force, including British troops, continues to work with the Iraqis to stabilise the country and to assist the process of reconstruction and political transition. The force is helping Iraq's own security forces to build their capacity. The Iraqi police force now numbers some 89,000 men, the Iraqi civil defence corps 29,000, the border police 8,000, and the facilities protection service some 74,000.
I pay tribute to the courage and bravery of all those in Iraq who are working to build peace and democracy. The British troops of the multinational force, along with many British police and civilians, are giving them vital and courageous help. There will be some difficult times ahead, but the path to a free and democratic Iraq is now clear, and the British Government will remain committed to helping the Iraqi Government and people to achieve that historic goal.
Mr. Michael Ancram: May I thank the Foreign Secretary for his statement and for giving me advance sight of it? I am sure that he will join me in paying a brief tribute to the late President Reagan, of whom it can truly be said that he left an indelible mark on history, and that he challenged the seemingly inevitable march of communism and won. We have lost a champion and a friend.
Recent events in Iraq have at last provided the basic elements of a working plan to deliver a representative and democratic Iraq, run by Iraqis, before the end of the year. This plan is long overdue and there is already a feeling of time lost, which has in turn led to increased tension and hostility on the ground. History will judge critically, as we have consistently from the Conservative Benches, the political incompetence of the Government and the instability that has flowed from their failure to plan adequately and early enough for the post-war reconstruction of Iraq and its return to democracy.
However, progress has been made over the last two weeks. We welcome the appointment of Prime Minister designate Iyad Alawi, President designate Ghazi al-Yawir, and the rest of the interim Government. We also welcome the endorsement of the United Nations for those appointments, which is something that we have long called for. The interim Government in waiting have made a good start, but they must establish their credibility by being genuinely representative of the people of Iraq. They must secure and retain the backing of the mainstream Sunni and Shi'a communities, and of the Kurds in the north. They must not be seen as placemen of the coalition, and the coalition must never act in such a way as to suggest that they are. I also welcome the latest draft of the United Nations Security Council resolution. It certainly reflects our desire for a clear and comprehensive plan that includes the United Nations, and we wish it a fair wind.
24
There remain, however, a number of crucial questions to which we seek full answers today. What is the distinction highlighted in the latest draft resolution between international law and what is called "international humanitarian law", and what implications could this have for the actions of our troops on the ground? Then there are the vital questions about the relationship between the interim Government and the multinational force after 30 June. The answers to some of these questions might be in the letters that the Foreign Secretary is placing in the Library of the House, but that is no reason for him not to answer them himself this afternoon, when he can be questioned further on the detail.
Apparently the interim Government can ask us to leave, but will they have a veto over what the multinational force can undertake operationally on the ground? If, for instance, the interim Government were to say that there could be no further deployments in Falluja or Najaf, would that be an end of the matter? Conversely, do they have a right to request that our forces should be deployed in particular places for particular purposes and in particular ways? What veto would our commanders have on such requests? Can we be assured that these vital outstanding issues will be settled and clear before the resolution is passed by the Security Council, so that there can be no arguments afterwards? I am sure that the Foreign Secretary will agree that absolute clarity on the chain of command is essential to the safety and security of our troops.
What chances are there of engaging further armed forces, with the backing of the United Nations, particularly from Arab or other Muslim nations, to help to provide security and training in Iraq? Where have we got to in the hunt for weapons of mass destruction? Given the accusations being made in America, and the recent resignation of the director of the CIA, George Tenet, would it not be wise, in the interests of public confidence, to put on hold the appointment of John Scarlett as head of M16, at least until the Butler inquiry has reported?
Finally, on the question of further British troop deployments, given the damaging uncertainties caused by persistent Government briefings and counter-briefings over recent months, and given the suspicion that the Government, for party political reasons, are withholding announcements of bigger deployments outwith our area of control until after Thursday's elections, can the Foreign Secretary categorically assure the House that between 11 and 30 June no further deployments will be announced for outside Multinational Division (South East)? It would be unforgivable were the Government, for party political and electoral considerations, to play fast and loose with the interests of our armed forces.
Once again, I commend our armed forces for the remarkable work that they are doing with such courage, skill and dedication, on our behalf, in Iraq. We wish them well. On their behalf, however, we want answers to these questions, not in prime ministerial press conferences, lobby briefings or lengthy, rambling interviews by the Foreign Secretary on the "Today" programme, but hero in the House of Commons, and we want those answers today.
Mr. Straw: Of course, I am happy to associate myself and the Government with the remarks made by the right

25
hon. and learned Gentleman about the death of President Reagan, who was a historic figure in the United States and the west.
I listened with great care to the right hon. and learned Gentleman. It would have been altogether slightly more impressive and consistent with his earlier position of supporting military action had he adopted a rather less cavilling and churlish approach. He was so anxious not to talk about the subject that for one moment I thought that he was going to talk about Europe, until I remembered the United Kingdom Independence party and the difficulties that that is causing the Conservatives.
The right hon. and learned Gentleman asked me some questions about the amount of time that has been spent on developing this approach. I remind him that with the agreement of the Iraqis, we accelerated the whole time scale. Originally, the transfer of power was going to be made much later this year, running into next year. Following decisions that were made with the coalition provisional authority and the Iraqi Governing Council on 15 November, the current time scale was agreed. There was a lot of scepticism about whether it could be met in time, but it has been, and it was endorsed by resolution 1511. The right hon. and learned Gentleman asked me about what he says is the crucial distinction between international law and international humanitarian law—there is no distinction. At one point, international law is talked about generally, while at another, international humanitarian law is talked about because it is specific to the context.
On the circumstances in which the Iraqi forces and multinational forces will co-operate, the letter from Dr. lyad Alawi to the Security Council, which is also referenced by the letter from Colin Powell, deals with that in the second main paragraph on page 2—I provide that detail for the benefit of colleagues in the House who wish to look at it after this statement. It states:
"The structures I have described in this letter will serve as the fora for the MNF and the Iraqi government to reach agreement on the full range of fundamental security and policy issues, including policy on sensitive offensive operations. and will ensure full partnership between Iraqi forces and the MNF, through close coordination and consultation."
It continues:
"Since these are sensitive issues for a number of sovereign governments, including Iraq and the United States, they need to be resolved in the framework of a mutual understanding on our strategic partnership."
What we sought to do in these letters was to specify the framework of principles that should apply. By definition, since we are dealing with what will happen in the future, we cannot specify every single circumstance, but I do not believe that some of the difficulties that have arisen in recent months will arise under the arrangements. In any event, the Iraqi interim Government, as well as the transitional Government, after 31 January, have an absolute right both to call for a revision of the terms under which the multinational force operates and a right to call for its withdrawal. Taken together, those will be adequate protections to ensure that the Iraqis are fully involved in this partnership, but that commanders on the ground from the multinational force have proper operational control when they are involved in an operation.
26
A further report is awaited from the Iraq survey group, and my statement does not relate to it directly.
My right hon. Friend the Secretary of State for Defence made a statement about the deployment of British troops just two weeks ago. If there are to be any further deployments—and for the moment it is a big if—my right hon. Friend will make a statement at the appropriate time.
Donald Anderson: I congratulate my right hon. Friend on the progress that has been made in building consensus, both in the United Nations Security Council and internally in Iraq. It is surely imperative that we give the new Iraqi interim Government the greatest possible degree of sovereignty, even if that means taking some risks.
Can my right hon. Friend comment on Mr. Alawi's statement to al-Jazeera over the weekend that there should be greater progress towards finding places in the new Iraq for former Ba'athists who are not guilty of human rights abuses? Is that supported by our Government and, perhaps more particularly, by the United States Government?
Mr. Straw: I am grateful to my right hon. Friend for what he has said. I should make it clear that no degrees of sovereignty are being transferred by 30 June; authority and sovereignty are being transferred, full stop. As for progress on the absorption of former Ba'ath party members who are not implicated in the excesses of the regime, we strongly agree with Prime Minister Alawi, and that view is now shared by the United States Government.
Sir Menzies Campbell: It would be ungenerous not to acknowledge that there has been real progress in recent days, but does the Foreign Secretary accept that the ultimate verdict will depend on the final terms of the resolution, on effective and credible implementation of its provisions and, in the end, on its acceptability to the Iraqi people as a whole?
Can the Foreign Secretary tell us whether there are any differences of substance or nuance between Her Majesty's Government and the United States Government on security issues? Why is it necessary for matters concerning sensitive operations to be incorporated in letters rather than in the resolution itself?
The Foreign Secretary will recall telling me in correspondence that he expected the resolution to restore control of all Iraqi resources and assets to the Iraqi Government. Will that be achieved in the new draft resolution, or are there any exceptions? In particular, will the interim Government have power to renegotiate any contracts relating to oil or oil exploration in Iraq?
Finally, when does the Foreign Secretary expect the last British soldiers to leave Iraq?
Mr. Straw: I am grateful to the right hon. and learned Gentleman for the spirit of his remarks.
I think that an interim verdict will depend on the terms of the Security Council resolution and its acceptability in Iraq. I think that the ultimate verdict will depend on whether the process leads to a

27
democratic, stable and secure Iraq; but it is my solemn hope and, now, my cautious expectation that that will be the case. Speaking for myself and, I believe, for many colleagues on both sides of the House, I think that if that happens—as I hope and expect it will—it will mean a great new beginning for the country that was so ravaged by three decades of tyranny under Saddam Hussein, in which hundreds of thousands of people died.
The right hon. and learned Gentleman asked whether there had been any differences of substance or nuance on security issues. There have been no fundamental differences. It will come as no surprise to the House that there has been extensive discussion, not only with other Security Council partners but with our friends in the United States Administration, about the precise wording of the resolution.
The right hon. and learned Gentleman also asked why it had been necessary to include the details of the security arrangements in letters rather than in the resolution itself. That is because the agreement needs to be between the multinational force and the Iraqi Government rather than the Security Council, on which the Iraqi Government do not happen to sit and on which, in any case, they would sit in a different capacity. However, the letters themselves are annexed to the resolution. They are public, and we readily conceded to Security Council partners that they needed to see the text of the final version of the letters, as signed, before it was reasonable to ask them to vote for the resolution because, in practice, they form an integral part of the overall decisions that we hope will be made in the Security Council shortly.
The right hon. and learned Gentleman asks about the renegotiation of contracts. Oil has always been the property of the Iraqis, none of it has been used to pay for the coalition and it will continue to be the property of the Iraqis. He asks whether there will be the power to renegotiate any of the contracts. The Iraqi interim Government have accepted under the transitional administrative law a self-denying ordinance—it has not been imposed on them—meaning that they will not take actions that are irrevocable and that would tie the hands of the elected Government who will be in place after 31 January. I think that that is right, but subject to that—and it is quite a big subject—they will be free to negotiate their own contracts.
The right hon. and learned Gentleman's last question was what will be the last date on which British forces will be in Iraq. The last date under the mandate, if it is passed, will be 31 January 2005. Whether any troops will remain after that period will obviously, above all, be a matter for the Iraqi Government at the time, who, by that stage, will be fully elected and operating under their own constitution.
Mr. Robin Cook: May I welcome the broad thrust of my right hon. Friend's statement, especially the strong stress that he placed on the role of the United Nations? Many of us in the Chamber—I suspect himself included—would have welcomed such a central role for the UN from the start. Those of us who have been critical of the occupation should recognise that the events of recent months have obliged the United States to accept a much bolder transfer of sovereignty
28
than it had been contemplating. Given the extent to which nudging from Britain has moved it in that direction, I congratulate my right hon. Friend and the Foreign Office.
Will my right hon. Friend clear up one point? A month ago, Ambassador Bremer said that the interim Government would not have the power to vary the laws that he brought in as presiding genius of the coalition authority. Will my right hon. Friend give me the further good news that the United States has also given ground on that point and that the interim Government will be able to amend the directives that they inherit from the coalition authority should they wish to do so?
Mr. Straw: I thank my right hon. Friend for what he said, especially about the importance of the United Nations—I know that he has always subscribed to that view. May I make a correction to an answer that I gave a moment ago? It h is been drawn to my attention that I talked about the mandate of the multinational force expiring on 31 January, but I should have said 31 December.
My answer to my right hon. Friend is the same as my answer to the right hon. and learned Member for North-East Fife (Sir Menzies Campbell). The transitional administrative law was negotiated between the appointed Iraqi Governing Council and the coalition provisional authority. The interim Government have said that they haw no intention of disturbing key elements of that because they do not want to pre-empt the rights of the transitional Government who will be in place, God willing, after being elected within a seven-month period. Subject to that, however, if they wish to make changes, they may do so because they are the sovereign Government of Iraq. The self-denying ordinance is not required by the Security Council and nor could it be required by the coalition, the role and authority of which finishes, full stop, on 30 June. As I made it clear in my statement, there will be laws passed by the interim Government that will go to the consultative council for supervision.
Mr. Francis Maude: Whatever the imperfections in planning and the difficulties of implementation, tho coalition's objectives behind what it has done and tried to do in Iraq are the promotion of stability in the middle east, the enlargement of freedom and the promotion of the Iraqi people's ability to govern themselves rather than being subject to an unelected tyranny. Does the Foreign Secretary acknowledge that the insurgency and insurrection that is currently going on in the middle east—not only in Iraq—is cynically designed to frustrate those objectives and to unnerve and divide those throughout the world who promote them? Will he assure the House that the Government will hold their nerve and draw the right lesson from President Reagan's life: when the free democracies show sustained strength in the face of an international threat, they eventually win?
Mr. Straw: I am grateful to the right hon. Gentleman. It is clear, tragically, that there is a degree of insurgency—much of it fanned from outside Iraq, some from within—that is seeking to cause instability across the region without discrimination as to whether the people concerned supported or opposed the military

29
intervention in Iraq. Saudi Arabia has taken the brunt of some of the attacks and I am sure that I speak for the whole House when I place on record our deep sadness at the news overnight of the killing of Simon Cumbers, a BBC cameraman whom I knew personally and respected. I am sure I speak for the whole House when I express our condolences to his family, his colleagues at the BBC and his friends, and in wishing Mr. Gardner the speediest of recoveries in the very difficult circumstances in which he finds himself.
Sir Stuart Bell: The House will welcome the Foreign Secretary s confirmation that 11 of the 26 Government Departments are already in Iraqi hands and that the rest will be by the end of the month. Will he confirm that one of these Government Ministries is a Ministry of Human Rights, the only such Ministry in the entire middle east? Does he agree that the UN resolution will assist enormously in the 30 January passage of sovereignty, the 31 January elections in Iraq and the 31 December expiry of the mandate? Should not this House give its best wishes and say Godspeed to the United Nations in the hope that these things come about and that the insurgency and insurrection do not disrupt democracy for all the people of Iraq?
Mr. Straw: I agree with my hon. Friend and I can confirm that there is a Ministry of Human Rights—the only one, I think, in the middle east—which sits alongside the Ministry of the Interior and the Ministry of Justice to proselytise and establish human rights of a kind that Iraqis have never known.
Hywel Williams: Will the Government take heed of publicly stated opinion in Wales and Scotland in favour of a timetable for the withdrawal of British troops and their replacement by troops of useful countries, particularly from the Arab League?
Mr. Straw: Everybody, particularly the new Government of Iraq, believes that it would be utterly and wildly irresponsible to seek to withdraw British troops now from Iraq. There is no possibility of the British or other multinational forces being replaced by troop contributions from Arab nations. When the hon. Gentleman proposes that we withdraw troops from Iraq immediately, he needs to be aware that he is proposing the creation of a security vacuum that would come as a comfort only to the terrorists and insurgents and would be opposed by the overwhelming majority of Iraqis. In a formal letter to the Security Council, the Prime Minister of Iraq, Dr. Alawi, spelled out, in terms, that he believes that the multinational force is essential to the building of stability, peace and democracy within Iraq.
On the issue of a timetable, there is a timetable; it is the one before the Security Council, which makes it clear, in terms, that the mandate of the multinational force will end on 31 December next year unless it is determined by the Iraqi people to end it earlier.
Tony Lloyd: May I assure my right hon. Friend the Foreign Secretary that many who opposed the war nevertheless accept that it would be irresponsible now to withdraw the
30
multinational force, because that would lead to a power vacuum and almost certainly a civil war in a country that is already benighted with violence?
May I press my right hon. Friend, nevertheless, on the legitimacy of the new Government? In the end, what really matters will be whether that Government can show the Iraqi people the reality that it is in control of the situation. Although, as he told the House a few moments ago, the letters lay down in some detail the nature of the relationship between the multinational force and Iraq's own security forces, there is a need for that to be further fleshed out because we cannot afford any future ambiguity in that relationship. It must be quite clear that future Iraqi Governments will be able to condition the circumstances in which a multinational force operates, to save us from the kind of disasters that we have seen in recent months.
Mr. Straw: I am grateful for what my hon. Friend said at the start of his remarks. His view is widely shared, regardless of the original position that people took on the merits or otherwise of major military action.
I have the advantage of being familiar with every line of the letters that have been sent to the Security Council, in a way that other Members of the House are not, and I invite my hon. Friend to read through the letter from Dr. Alawi to the Security Council, which sets out—fleshes out, to pick up my hon. Friend's phrase—in as much detail as is possible in advance, the way in which the relationship between the Iraqi forces and the multinational force should operate. As I said in answer to the right hon. and learned Member for Devizes (Mr. Ancram), it is not possible to anticipate every conceivable circumstance, but it is possible to set up the framework for a partnership, have in mind what could go wrong—frankly, we have seen some things go wrong—and learn from those lessons. Also, overriding all the day-by-day arrangements should be the simple imperative fact that, if necessary, the Iraqi Government—the interim as well as the transitional Government—can decide to require the multinational force to withdraw altogether before 31 December next year. It is that fact alone, that they have a veto on the forces remaining, which will change the nature of the relationship, in addition to the detail of the letters.
Mr. John Maples: I am sure that the Foreign Secretary shares my deep concern at the damage that has been done to the Atlantic alliance during the past 18 months by the Iraq war. In negotiating the new United Nations Security Council resolution, will he emphasise strongly to his counterparts in France and Germany the importance of using it as an opportunity to start to rebuild the unity and cohesiveness of the alliance, and the fact that if they do not do that, but continue to milk the situation and its difficulties for short-term domestic political advantage, they are likely to turn a short-term problem of the alliance into a long-term one?
Mr. Straw: It is the case that the transatlantic alliance has been under strain as a result of Iraq, as has the alliance within Europe—because this was not an argument between the United States and Europe but, fundamentally, an argument in Europe between those who took differing views. However, I have found in my

31
dealings with my French, German and Spanish counterparts as well as with the Russian Federation, the Romanians and many others that there is real understanding about the need to come together. There is a sense of catharsis in the international community, and it was striking that President Chirac of France said yesterday in his address at the international ceremony to commemorate D-day:
"France is keenly aware that the Atlantic Alliance, forged in adversity, remains, in the face of new threats, a fundamental element of our collective security."
I could not put the view of the British Government and Parliament better than that. We are going to see a new spirit of co-operation and cohesion in the transatlantic alliance once we have got this resolution through.
Mr. Tam Dalyell: On 18–19 May, there was a tragic attack on the village of Makr al-Deeb, where some 42 victims, mostly women and children attending a wedding, were killed. Has there been any follow-up, who was responsible, and how in heaven's name can the Foreign Secretary praise Bremer, who made the catastrophic mistake of disbanding the Iraqi army and who was responsible for much of the difficulty in Falluja? Incidentally, that praise of Bremer is not in the script that has been given out to Members of the House, so it has obviously been added.
Mr. Straw: The latter point is true—I added that part out of my head, so my hon. Friend can see that I write my own statements. On the more serious—the very serious—point that he raised about what happened to these poor souls who died in this village where there appeared to be a wedding party taking place, that was in the area of American operations. The American Administration are investigating it, and I believe that they are doing so very fully.
Mr. John Wilkinson: I associate myself with the tribute to the late Ronald Reagan, who set an example of courage and political leadership that we should not forget today.
Can the Foreign Secretary explain a little more fully what he meant when he said that he hoped for cohesion in the Atlantic alliance once we have got this UN resolution through? Is not the important factor that it should be got through expeditiously and unitedly now? Is it not the case that Saddam Hussein was encouraged by the clear divisions among democratic countries in western Europe that ought to have known better? He was encouraged to hold out against UN resolutions that he ought to have obeyed long since, and we should not repeat or perpetuate that mistake. Should not all members of the Security Council approve the resolution expeditiously and promptly?
Mr. Straw: I hope that it will be approved expeditiously, but I was being cautious. There is no doubt that Saddam was encouraged by divisions in the international community. I do not lay the blame on one side or the other, as that would not be fruitful at this stage. It is important now to recognise that everybody, regardless of the position that they took in respect of the military action, has a very clear interest in giving full
32
support to Dr. Alawi and his interim Government and in seeing these processes through and ensuring, through the support of the multinational force and the expanding Iraqi security forces, that security is developed and then enhanced and maintained in Iraq.
Andrew Mackinlay: The Foreign Secretary will recall that the Iraq survey group reported to the Congress of the United States that it had discovered extensive UN sanctions busting not only by companies but with the collusion of Governments. Why does he feel unable to disclose the names of the perpetrators in public, to the House of Commons, rather than offering information in private to members of the Foreign Affairs Committee?
What are the ground rules for private security companies, paid for by the British taxpayer, after 1 July? What laws will they be subject to, and what will be the chain of command and the rules of engagement?
Mr. Straw: I have not felt able to make the information available about individuals and Governments under investigation because to do so could prejudice criminal prosecutions at a later date—that is a pretty standard reason why such information should be classified—but I have made it available in confidence to members of the Foreign Affairs Committee. My hon. Friend is himself a member of that Committee. The private—
Andrew Selous: A distinguished member.
Mr. Straw: Indeed.
The private security companies operating in Iraq will be subject to the laws of Iraq. In some respects, where international crimes are involved, they are also subject to the laws of the United Kingdom. My hon. Friend, as a distinguished member of the Foreign Affairs Committee, will recall that I published a Green Paper on the operation of such companies from the UK and whether we should introduce legislation. We came down against legislation because of the difficulties involved, but there is no doubt that in countries such as Iraq the operations of such companies, be they UK-based or based elsewhere, should be properly regulated, and that will fall to the Iraqi authorities.
Sir Teddy Taylor: Does the Foreign Secretary think that it would help the new Administration and the allied forces in dealing with hostility if a more significant role were given to Muslim nations in the vicinity? In particular, does he believe that Iran could play a meaningful role in helping Iraq to introduce democracy, given that for many years Iran has had an elected President and Parliament and has introduced many liberal measures, resulting, for example, in more than half of Iran's university students being women? Could not Iran play a really meaningful role in helping the situation in Iraq?
Mr. Straw: Each of Iraq's six neighbours, as well as other major countries in the region, has profound responsibilities in terms of helping with its stability and security. Iran—along with Turkey, its most populous neighbour—has a most important role, and I should like

33
to put on record our appreciation of the constructive approach taken by the Iranian Government before Saddam fell and in the subsequent months. We look forward to Iran continuing to play that role, along with the other countries.
Jane Griffiths: May I welcome the commitment to UN-assisted elections taking place by next January? Can my right hon. Friend tell the House at this stage whether those elections will be subject to international monitoring by the Organisation for Security and Co-operation in Europe, the Council of Europe and other bodies that normally undertake such duties?
Mr. Straw: I am pretty certain that they will be, because they will be under UN auspices. I cannot be certain that the OSCE in particular will be involved, but I shall place more information about that in the record of the House.
Dr. Vincent Cable: Following the Foreign Secretary telling my right hon. and learned Friend the Member for North-East. Fife (Sir Menzies Campbell) that the oil is the property of Iraq, can he say whether the occupying powers have any residual responsibility for maintaining the production and transportation of oil, given that Iraq is now producing less oil than in the days of Saddam Hussein and sanctions?
Mr. Straw: What the hon. Gentleman describes as residual responsibilities will arise principally under our responsibility within the multinational force to assist the Iraqis in maintaining security of oil supply—that is of paramount importance—and in respect of international contracts that have been signed by the coalition provisional authority, the Iraqi Government and various international companies to help to provide the oil. I should make it clear that flows of oil would be significantly higher were it not for the fact that terrorists have sought to attack the infrastructure and those working within the industry.
Alan Howarth: Although this issue understandably might not be in the forefront of my right hon. Friend's diplomatic thinking, will he—along with my right hon. Friend the Secretary of State for Culture, Media and Sport—do what he can to enable British archaeologists and other scholars to make the best possible contribution to the international effort to support Iraqis in conserving the heritage of ancient Mesopotamia and of the early centuries of Islam? That heritage is not only theirs but ours, so it has great symbolic importance in terms of reconciliation.
Mr. Straw: As a matter of fact. that issue is in the forefront of my mind; indeed, I discussed it over the weekend with my right hon. Friend the Secretary of State for Culture, Media and Sport. As my right hon. Friend says, the preservation of these archaeological sites is of huge importance to our understanding of our culture and history, as well as that of the middle east. We are concerned about reports of damage to some of these sites, and I should make it clear that they are being investigated urgently and thoroughly.
Mr. David Heathcoat-Amory: Given that we attacked Iraq not to change its Government but
34
because we were told that it possessed weapons of mass destruction that were a threat to us and our allies, the continuing search for such weapons is obviously a matter of great importance. What arrangements have been made for continuing the search after the Iraq survey group report to which the Foreign Secretary referred, who will control the inspectors in the longer term and to whom will they report? Can the Foreign Secretary assure us that the search—although currently fruitless, it is nevertheless very important—will continue in all eventualities after sovereignty has been transferred?
Mr. Straw: The mandate and the reporting chain for the Iraq survey group after 30 June remain something for discussion with the Iraqi interim Government. However, we expect the work of the survey group to continue.
Mr. George Foulkes: Would the Foreign Secretary risk speculating why some of the Jonahs, with honourable exceptions such as my right hon. Friend the Member for Livingston (Mr. Cook), are not prepared to acknowledge the remarkable political progress that is taking place, with a widely representative Government, including six women? Is it because that is more women than are on the Front Bench of either of the two main Opposition parties, or is it because they just cannot bring themselves to come round to the view that the coalition might actually be succeeding?
Mr. Straw: It may he both, but I hope that if this process works out, in six to nine months' time we may—we have to be cautious about this—see a democratically elected Iraqi Government. That will contrast with what would have been if no action had been taken, because for sure, Saddam Hussein would have still been there, re-emboldened and re-empowered to wreak his havoc and his terror on not only his own country, but the rest of the region.
Mr. Geoffrey Clifton-Brown: Given that even under Saddam Hussein there was a degree of self-determination for the Kurdish part of northern Iraq, will it be open to Dr. Alawi's interim Government to come up with a suggestion of a devolved or federated Government for the future of Iraq?
Mr. Straw: The drafting of the constitution is, and will be, a matter for the Iraqi people as a whole, through the processes that will, I hope, be endorsed by the Security Council. How the Iraqis develop their internal devolution arrangements is entirely a matter for them, subject only to the overriding international requirement of the Security Council that the territorial integrity of Iraq be preserved.
Ms Diane Abbott: On the question of security, the Foreign Secretary has said that the draft resolution and the letters set out the need to reach agreement on the fundamental security and policy issues, including policy on sensitive offensive operations, but he does not make clear what happens if the two parties do not reach agreement. If there is no agreement, will the British and

35
American troops be able to overrule the sovereign Iraqi Government? How sovereign is a Government who do not have the last word on military operations within their borders?
Mr. Straw: Not very sovereign—but that is not the case, because that Government will have the last word on military operations and, indeed, on the military presence, within its borders. Because of the way in which the arrangements have been developed, and the fact that the multinational force and the Iraqi Government have the same interest—that of establishing security and defeating terrorists—we do not anticipate that, in practice, there will be the kind of visceral disagreement that my hon. Friend describes. However, were there to be such disagreement, the last word would absolutely rest with the Iraqi Government, because under the terms of the draft resolution the Iraqi Government have the power not only to seek a revision of the mandate of the multinational force, but to seek to eject the multinational force altogether, in advance of the normal expiration of its mandate on 31 December next year.
Mr. Crispin Blunt: Does the Foreign Secretary acknowledge the disproportionate share of responsibility that the United Kingdom is seen by the rest of the world as having for events in Iraq, in the light of the importance of our political and diplomatic support for the United States? Given that, and given the revelations by Sir Christopher Meyer that the Prime Minister fails to make Britain's case in private, as well as in public, with the United States, what confidence can we have that Britain will exercise satisfactory influence over the United States after 1 July, when we have so far signally failed to help it to avoid some of the more obvious mistakes that it has made in the conduct of the occupation?
Mr. Straw: We accept our responsibilities, because under the terms of the Security Council resolutions we were one of the two occupying powers under the coalition. We have always accepted our responsibilities and we have worked in a spirit of partnership with the United States and other Security Council partners.
Mr. Jon Owen Jones: Any Foreign Secretary's role is, inevitably, to sell various mixed messages, but can the Foreign Secretary help me, as one whose mental agility is not as great as his, to understand this: if we succeed, as we hope we shall, in setting up a democratic Government in Iraq, which will be a beacon of democracy in the region, why would it be in the interests of near-neighbouring countries to help to set up something that would, inevitably, help to undermine their own oppressive regimes? Given that some of the countries with the most oppressive regimes are those to which we are most sensitive, can the Foreign Secretary explain for me the overall strategy?
Mr. Straw: Well, my hon. Friend will be familiar with what is coming as he and I attended similar schools in the days of President Reagan and before. We face in the middle east a transitional situation, to use that term precisely. The simple truth is that it is a parody to suggest that there would be an Iraqi democratic
36
Government while all the surrounding Governments were dictatorships; t hat is simply not the case. A process of democratisation, of building representative government, has already taken place across the whole Arab region. Different countries in the region, such as Bahrain and other Gulf states, now have elections that are recognisably democratic by any standard. Jordan has recently had elections. We have arguments with Iran, but however else one might describe the Iranian situation, it is certainly not a monarchic autocracy. Among other countries, Egypt is in a state of transition, as, even, is Saudi Arabia; they are at different stages. I get no sense from my colleagues in Arab Governments that they are opposed to the democratisation of Iraq: they know that democracies have a much higher propensity to being peace-loving than authoritarian regimes ever have; and what they want, above all, after three decades in which they have been threatened by Iraq—some have had missiles fired at them and two countries have been invaded by Iraq—is a peaceful Iraq, which means a democratic Iraq.
Alistair Burt: Does the Foreign Secretary have any evidence to suggest that the good will that will surround 30 June will be used by the United States or ourselves to encourage serious progress on the middle east peace talks, given that the road map was so important to us all before the decision to take action against Iraq was announced?
Mr. Straw: I very much hope that it is, although the hon. Gentleman will be aware of what has stalled progress on the middle east peace process, including, tragically, disagreements inside the Israeli Cabinet.
Paul Flynn: Those of us who believe that Britain's involvement in the Bush-led war was unnecessary and has cost us dearly through the loss of 70 lives and financially, none the less accept that our involvement imposes certain obligations to stay in Iraq until peace is assured. How does my right hon. Friend react to the statement made by Plaid Cymru this morning that its policy is now immediate withdrawal of troops? Should not that be dismissed as a piece of cheap, opportunist electioneering?
Mr. Straw: Yes, it should, and I note that no Plaid Cymru representative is present in the House. It would be utterly irresponsible for British troops suddenly to withdraw. The people most at risk and who would suffer most would be the Iraqi people. Many more would be killed or injured as a result of peremptory withdrawal, and we shall not do it.
Jeremy Corbyn: On what date does the Foreign Secretary expect all British and American occupying forces to withdraw from Iraq? Have there been any discussions at any level regarding a permanent base in Iraq for regional purposes for either Britain or the United States after withdrawal of the occupying forces?
Mr. Straw: I answered my hon. Friend's first question earlier, when I said that the mandate of the multinational force would terminate on 31 December 2005. I cannot anticipate—I simply cannot—whether a fully elected Government of Iraq will ask multinational forces, including the, UK, to remain or in what numbers,

37
except to say that if they were to do so, I would anticipate that the numbers would be many fewer than today. On my hon. Friend's second question, speaking for myself, I have seen no proposals for any kind of permanent base.
Mr. Harry Barnes: Is there not a distinction between legal authority, which should be transferred to Iraq on 30 June but may still have elements of the rubber stamp about it, and genuine political sovereignty, which will hopefully be achieved by 30 January next year? In achieving that, is not the role of the Iraqi independent electoral commission of considerable importance? What will be the United Nation's position in respect of achieving that goal? Will the UN be in sole control of the advise? That is a crucial role for the UN to play.
Mr. Straw: My hon. Friend is right to say that overall legitimacy of the Government of Iraq will be much greater once they are properly elected. Everyone recognises the need for that, but we need a process for getting from where we were with the country under Saddam to where we want to be. The UN is playing a crucial role, particularly regarding the political process. The UN ran the arrangements—more than 1,400 candidates were involved—for the verification teams and the electoral commission, which will supervise the electoral process within Iraq. It is their call, not that of the coalition.
Chris Bryant: Every hon. Member in the House will be delighted to see fair and democratic elections taking place in Iraq in January next year, but fair and free elections will depend on the paraphernalia of civil society being in place. That means active trade unions, active political parties, independent media and, of course, an accurate electoral register. Does the Foreign Secretary anticipate Britain providing significant support for putting all those in place?
Mr. Straw: We have already provided a good deal of support and we are happy to do so. Altogether, the British Government have provided £287 million worth of assistance to Iraq, covering all sorts of activities, including the sort of support that my hon. Friend mentioned.
Mr. Stephen McCabe: Does my right hon. Friend share my sense that we are now at a crossroads on this issue? Whatever the differences of the past, we can now all unite around the interests of the Iraqi people and the reconstruction of Iraq. Does that not mean that we all have to give support to the fledgling Government? Is it possible to do so while simultaneously using Iraq as part of the domestic political agenda—as just another football?
Mr. Straw: I entirely share my hon. Friend's views. It is impossible to do both and we all have a responsibility to back the new Government. As my hon. Friend says, we are at a crossroads. What lies ahead, if we all get behind it, is something that we have all dreamt about, regardless of our view on the military action—a stable, democratic and peaceful Iraq, able to take its place within the international community.

Point of Order
Mr. Tam Dalyell: On a point of order, Mr. Speaker. May I appeal to your theological erudition and ask whether "Jonah" is a proper parliamentary term? While you are thinking of the answer, Mr. Speaker, may I point out to my right hon. Friend the Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes) that, under the previous Saddam regime, there were, for all its faults, substantially more women in the Iraqi Parliament than in the House of Commons?
Mr. Speaker: May I tell the Father of the House that I leave my theology to the Speaker's Chaplain?

Orders of the Day

  Patents Bill [Lords]
  Order for Second Reading read.
  4.28 pm
  The Parliamentary Under-Secretary of State for Trade and Industry (Mr. Gerry Sutcliffe): I beg to move, That the Bill be now read a Second time.
  In his foreword to the Government's innovation report at the end of last year, the Prime Minister stated:
  "The creativity and inventiveness of our people is our country's greatest asset and has under-pinned the UK's economic success".
  Unsurprisingly, I agree with him. That creativity and inventiveness was vital to the emergence of the UK as the first industrialised nation in the 19th century and it remains the key to maintaining the UK's position as one of the G8 leading industrial and economic powers in the 21st century.
  A mature economy like ours cannot compete with the newly emerging economies of the far east in terms of cost of labour or production. As my noble Friend the Minister for Science and Innovation reminded us in the other place, wages in China are 5 per cent. of what they are in the UK. In South Korea, which has an equivalent proportion of university graduates in the work force, the labour costs are about 50 per cent. of those here in the UK.
  Our future prosperity is dependent on how effective we are at using our knowledge, or in other words our intellectual capital, to compete in the ever more rapidly changing global marketplace. Creativity and inventiveness are essential if we are to deliver more high value, high quality sustainable jobs. Those factors are also important if we are to continue to reduce our environmental impact. Innovation will help to build further successful businesses and provide even better services and products for consumers.
  The most important assets for today's company are the knowledge and expertise of its work force. That knowledge and expertise represent the intellectual capital of the company. In exactly the same way that financial capital must be managed effectively to ensure the survival of the business, intellectual capital must be developed. That will ensure that a company can create new products and develop existing ones. In the 21st century economy, successful UK businesses are increasingly characterised by a high investment of intellectual capital. Such investment permits them to create high value knowledge-intensive products or services.
  It is no coincidence that the computer and office equipment industry, which showed average annual growth of 16 per cent. between 1991–2001, is also one of the highest employers of graduates. More than a quarter of the employees in companies in that industry have university or college degrees. Every time that a company applies new knowledge, or uses existing knowledge in a new way, to solve a business problem, it is making effective use of its intellectual capital. Protecting those unique knowledge-based solutions will be an increasingly important part of a company's business activity.
  40
  Worldwide there has been a rapid rise in the use of patents, and other forms of intellectual property rights, by companies to protect their intellectual assets—the fruits of their intellectual capital. For example, applications for patents using the international route under the patent co-operation treaty have grown from just over 7,000 in 1985 to almost 104,000 in 2001, representing a nearly 15-fold increase in as many years.
  A patent provides a company with a legally enforceable means to prevent others from taking advantage, without its agreement, of the unique solutions, products or services that it has developed. The holder or owner of such a patent has the exclusive right, for up to a maximum period of 20 years, to recoup the investment he has made in developing the invention. The recovery of investment can take a number of forms. For example, the patent t holder may grant a licence to a third party to use his invention, and be paid a licence fee by them for doing so. On the other hand, the patent holder could decide to use the patent as a means to prevent competitors from entering the market, while he establishes his business manufacturing the product, or performing the process, protected by the patent.
  I would be the first to admit that the whole area of patents is not one that I was especially acquainted with before being asked to present the Bill to the House. I am sure that many hon. Members are in a similar situation. The Government's innovation review has identified a similar lack of awareness about all aspects of intellectual property amongst UK businesses. However, after only a brief involvement with this topic, I have come to appreciate just how important it is for UK businesses to safeguard their intellectual assets.
  UK businesses have to compete in national, regional and global markets. As a result, they need a system that will deliver protection of their valuable intellectual property assets in all those markets. The Patents Act 1977 is key legislation in the area and, in its nearly 30-year existence, it has fulfilled two functions. First, it delivered the modernisation and reform of UK domestic patents law. Secondly, it allowed the UK to ratify a number of international patent agreements, which provide UK businesses with regional—that is to say, European—and global routes to patent protection for their inventions.
  Ratification of the 1973 European patent convention has allowed UK applicants to obtain patents that are effective in any combination of up to 28 European countries using a single one-stop procedure. That includes nearly all our EU partners, as well as the UK. That one-stop approach provides what is in effect a bundle of national patents, which provide enforceable protection in each country, once an official translation has been filed and the appropriate fee paid.
  Following an intergovernmental meeting in November 2000 of representatives from all the European states that had ratified the convention, a significant updating and streamlining of the 1973 European patent convention was agreed. All the states represented agreed to implement the changes into their domestic law as soon as possible.
  As a consequence, the first objective of the Bill is to amend the 1977 Act to give effect in UK law to the changes to the l973 European patent convention agreed in 2000. Failure to ratify the revised European patent

  41
  convention would mean that the UK would have to leave the European Patent Organisation, the body set up to provide a single one-stop procedure for obtaining European patents. The consequences of such a failure for UK businesses would be unacceptable.
  By bringing UK patent law into line with those revisions to an international treaty, we will ensure that UK businesses can continue to use that single one-stop procedure to obtain European patents valid in the UK and Europe. In 2002, UK businesses were the third largest users of the European patient system, both in terms of patents applied for and patents granted. On average, each patent provided protection in 10 countries. If we had to leave the system, UK businesses would experience increases in bureaucracy and costs. They would no longer be able to obtain patent protection that included the UK and all other European countries, using a single application and one set of fees.
  As one of the prime movers in setting up the European Patent Organisation, it is important that the UK is seen to take a leadership role in its ongoing improvement. In meeting our obligation to ratify the revised European patent convention we can continue to influence future developments for the benefit of UK business.
  Clauses 1 to 5 deliver the required changes to the 1977 Act to honour our undertaking to implement the revised European patent convention. Clause 1 does two things. It makes it clear that a patent cannot be obtained for a method of medical treatment or diagnosis, such as a new surgical technique. It also gets rid of the need to use a rather specialised and complex form of language when obtaining patent protection for a new medical use of a substance that already has a known use in medicine. Patent protection will be easier to obtain if, for example, someone discovers that a substance that has already been patented for use as a painkiller can be used to treat heart disease.
  Clauses 2 to 4 cover various issues arising from the new procedure, referred to as central limitation, which will be possible under the revised European patent convention. The procedure offers a new way for the patent holder to limit or reduce the scope of protection given by the European patent, through a single process at the European Patent Office based in Munich. It will avoid the patent holder having to go through the expensive and time-consuming process of amending his European patent separately in each of the countries where it is in force.
  Clause 2 ensures that existing procedures for amending patents in the UK are aligned with the relevant procedures for doing so under the revised European patent convention. It does that by ensuring that the courts and the Patent Office take account of
  "any relevant principles applicable under the European Patent Convention".
  That will ensure that consistent standards are applied to the amendment of patents that are in force in the UK, regardless of the route chosen to make those amendments. The proposal was strongly supported by UK users of both the domestic and the European systems. Although it may restrict the current discretion of the courts or Patent Office on the issue, which is exercised to protect the public from patent holders who act in bad faith, clause 2 contains new measures to ensure that the public remain protected, but in a different way from that used at present.
  42
  In proceedings before the courts or the UK Patent Office, a problem may be identified as to the scope of a European patent that is in force in the UK. Clauses 3 and 4 ensure that in such circumstances the holder of the patent can use the new limitation procedure to address the problem, thereby preserving the validity of his patent. He will be able to limit, or reduce, the scope of his European patent centrally, in one step, at the European Patent Office. That change will then be effective in all the countries in which the European patent is in force, including the UK.
  Schedule 1, which is introduced by clause 5, covers all the other changes to the 1977 Act necessary to meet our international obligations. It is worth noting that some of those changes involve updating the relationship between UK domestic patent law and the patent co-operation treaty, which provides a system for obtaining patent protection in up to 123 countries based on a single patent application.
  The second part of the Bill is concerned with amendments to the 1977 Act, which will improve the handling of disputes over patents and make the UK patents system more responsive to the needs of its customers. The Patent Office has jurisdiction to consider a wide range of disputes over patents.
  Issues that can be dealt with at the Patent Office include whether the patent is valid: in other words, does it meet the legal requirements for granting a patent? Is there confirmation, for example, that a certain act using process y or making product x does not fall within the scope of a particular patent and does not thereby constitute infringement of that patent? Has an employee who made an invention received just and fair compensation from his employer who holds the patent and has successfully exploited it? Are all the people listed as applicants on the patent entitled to be so?
  The Patent Office has built up a large reservoir of relevant experience in dealing with many of the issues that arise in patent disputes. We feel that this experience is not being exploited to its full potential. At the same time, we are aware that some users of the patent system are becoming increasingly concerned about the enforcement of their patent rights. This concern has focused on the cost and time taken for patent litigation. A report on a patents case in the Financial Times on 28 November 2003 brings this point home. The judge hearing the case was sharply critical that a four-day hearing had involved costs of £850,000.
  A consequence is that many companies, especially those in the small and medium-sized sector, which are so important in terms of creating jobs and are often the most forward thinking and innovative, may find it too difficult to support the financial and time requirements to enforce their patent rights. It is argued by some—although it is by no means a universally held view—that this leaves some companies unable to gain any real advantage from their inventions and acts as a disincentive to innovate.
  That has been an important driving force behind recent efforts to update the patents county court to provide a more flexible, user-friendly and less expensive forum for the litigation of patent disputes. Following extensive consultation and the involvement of users, a new streamlined procedure for handling such disputes

  43
  has just been implemented under the able guidance of the patents county court judge, his honour, Judge Fysh. Early signs are encouraging that these efforts are starting to bear fruit, although patent litigation is still likely to involve a cost that small and medium-sized companies would find difficult to bear. As in any area, litigation should be embarked upon only after very careful consideration of the costs and alternatives.
  With those issues in mind, the Government have decided, in the Bill, to make a number of improvements to how patent disputes can be handled and to make greater use of the acknowledged expertise of the UK Patent Office. Clause 13 provides the framework for a new procedure whereby the Patent Office can provide, on request, an impartial opinion on certain issues that are likely to arise in a patent dispute. The two most common questions in such disputes are, first, whether a certain act, such as making product x or using process y would fall within the scope of the invention defined by the patent and so result in an infringement of that patent and, secondly, whether new evidence, such as an article published in a scientific journal, that was not considered at the time that the patent was applied for means that the patent should not have been granted—in other words, does that mean that the patent is not valid?
  A realistic assessment of the answers to such questions is essential for anyone considering or facing patent litigation. The earlier such an assessment is made the better, as the more helpful it can be in deciding the best course of action. A patent holder may ask himself, "Should I litigate? Should I seek a licence? Do I need to think about amending my patent? Should I seek a settlement?" Such opinions will not be legally binding on any party, but they will provide an affordable and prompt assessment generally based on a consideration of both sides of the argument—for instance, that of the potential infringer and of the patent holder. The details fleshing-out this framework will be laid down in secondary legislation, following consultation with users and stakeholders on how best to implement this new procedure. We believe that such a procedure, with its emphasis on balance, affordability and timeliness, will be useful to any party, but especially to those, such as small and medium-sized enterprises, that must decide how best to enforce their patent rights.
  Clauses 11 and 12 provide useful improvements in the area of infringement disputes. Following the spirit of the widely adopted reforms proposed by Lord Woolf some years ago, clause 12 would make changes to help a patent holder who is genuinely interested in settling a dispute. An approach to those whom he believes are carrying out the infringing act—for example, making or importing a product that is covered by the patent—will be easier. In situations where that person is not easy to identify, an approach could be made, under this clause, to a retailer supplying the suspected infringing goods or services in order to find out from where or whom he is obtaining his supply. If such an approach is made in the manner consistent with clause 12, the patent holder will not leave himself open to legal action from the retailer for making a groundless threat to launch infringement proceedings.
  44
  As a result, provided that a patent holder behaves in an appropriate manner, he will find it easier to identify the source of material that he suspects is infringing his patent. Once that source is identified, the patent holder will be able to seek to negotiate a settlement of the dispute. If the manufacturer or importer cannot be discovered, after the patent holder has made "best endeavours" to do so, the patent holder will be able freely to approach the retailer and seek a settlement without fear of an action for groundless threats. Following successful infringement proceedings before the Patent Office, clause 11 makes it easier for the patent holder to enforce an award for damages.
  A group of improvements deals with disputes on issues other than the validity or infringement of a patent. The 1977 Act recognised for the first time that an employee should have certain rights to compensation in relation to inventions made by him that have been successfully developed by his employer. Analysis of responses to the public consultation that preceded the Bill concluded that there was no appetite for a major change. There is concern that the provisions do not serve a useful function, based mainly on the fact that there have been no successful claims for compensation to date from employees. However, the provisions have provided companies with a strong incentive to put in place their own arrangements to reward employees who make important contributions to their businesses. One such contribution is, of course, inventing a new product or process that the employer has patented and successfully exploited commercially.
  The modest change proposed in clause 10 will allow an employee who is seeking compensation to include benefits that flow from the invention itself, in addition to those benefits that flow specifically from the patent, when required to show that a patented invention is of outstanding benefit to the employer. That will provide the employee with a limited increase in the range of benefits he can suggest as evidence to meet the outstanding benefit threshold. The change does not upset the careful balance that has to be maintained between the rights of the employee on the one hand and those of the employer on the other.
  Clause 6 ensures that in disputes over who should be named as the applicant for a patent—usually referred to as entitlement proceedings—the unsuccessful party cannot reduce the patent protection available to the successful party by making details of the patent application public.
  The final change to disputes is set out in clause 14, which lays down the circumstances in which a party is required to provide a security for any costs that they may be required to pay at the end of the proceedings in the Patent Office. In that respect, it brings the law on patents into line with the more recent law on trade marks contained in the Trade Marks Act 1994, and will also ensure that the rules are consistent with those governing civil procedures in the courts.
  The second part of the Bill also provides for a group of changes to the 1977 Act to improve the service offered by the Patent Office to users in practical and useful ways. Clause 8 gives users more flexibility when paying the fees to renew their patents. The deadline for paying such a fee will be changed to the last day of the relevant month in which the fee is due. That has two advantages. First,

  45
  it simplifies the record keeping required to manage a UK patent portfolio. Secondly, it brings the UK into line with practice in the other countries in the European patent system.
  If a patent is held or owned by more than one person, clause 9 makes clear the relationship between the co-owners in situations in which they have made no agreement or contract between themselves on how to act.
  Clause 7 limits the occasions when a UK resident who wishes to apply for the patent in another country must seek permission from the UK Patent Office to do so. In future, only the small proportion of UK residents who apply for a patent that relates to military technology or to an invention that raises national security or public safety concerns will need to ask for or seek such permission. If the application relates to any other subject, the applicant will be free to file it abroad. However, a criminal offence will still apply to a deliberate or reckless failure to seek permission, when required.
  Schedule 2 completes the group of changes and contains some more minor improvements. For example, it will be possible for the Patent Office to agree to a request from an inventor who wishes to keep his name and address confidential. It will also be easier for the Patent Office to change and update the application forms it uses, following feedback from customers. The schedule also deals with consequential amendments to the 1977 Act.
  Although hon. Members may find the topic of patents technical and difficult to follow, we must all appreciate the importance to the UK economy of useful and effective legislation in the sector. Although the Bill is, thankfully, small, it is important. It is essential if we are to fulfil the undertaking that the UK gave in November 2000 to ratify the revised European patent convention. In doing so, we will be making clear our commitment, as its third largest user, to the development of the European patent system. At the same time, the Bill provides important improvements to patent disputes. It will permit UK business to make best possible use of its most important asset—its intellectual capital and knowledge resources. I commend the Bill to the House.
  4.54 pm
  Mr. James Arbuthnot: I largely agree with what the Minister just said and I hope that he does, because I would love to give him an exam on what he has just told us. There are some Bills that grab the attention of the British people and change the course of British history or even that of the world, but this is not one of them.
  Mr. Ian Taylor: My right hon. Friend may be right in the narrow sense of the Bill, but he is certainly not right in the wider sense of the importance of patents, many of which have transformed British history.
  Mr. Arbuthnot: My hon. Friend is way ahead of me, as always. However, the Bill does not change the law of patents very much. It is one of those Bills that tidies things up a little and brings things into line; there is nothing radical or far-reaching about it. There is,
  46
  however, one very important matter that we need to clear up from the beginning: is it "pa-tent" or "pay-tent"? The Minister covered the ground adequately by using both pronunciations, but we need to work out which it is to be.
  Mr. Sutcliffe: I took advice on this matter. The pronunciation depends on which part of the country people come from, so I thought it important to use both, so that I did not upset or offend anybody.
  Mr. Arbuthnot: Wonderful—that is a Liberal Democrat remark really.
  Paul Flynn: The accepted wisdom among the 1,000 people in my constituency who work in the Patent Office is to say the word with a short "a" because it takes a nanosecond less and, as they use the word several hundred times a day, they get home earlier for their tea.
  Mr. Arbuthnot: We have probably used up all the nanoseconds that we might have saved so far in the debate, so I had better move on.
  The Bill attempts to improve an area that, as my hon. Friend the Member for Esher and Walton (Mr. Taylor) said, is of huge importance to the British economy—that of innovation and invention. It is therefore an important Bill in spite of its generally uncontroversial nature. I should like to express my gratitude and appreciation for the work that has been done by my noble Friend Earl Attlee and many others in another place. The Bill comes to us in pretty good shape because of that. I also thank the Minister for encouraging his Bill team to brief me, and I thank the team for its useful and clear information. I thank, too, several other professionals and professional bodies who have helped me with this very technical Bill.
  The Minister explained that the Bill's purpose was to bring British law into line with the minor changes recently made to the European patent convention and to take the opportunity to make a few further minor changes to our patent law. I agree with his explanation.
  Before I go into the detail of the Bill, I should consider the backdrop against which it stands. Patents are one method of protecting our intellectual property. I am delighted to say that the first known cause of letters patent being granted in England was in 1449 to John of Utynam for a method of making stained glass windows in Eton college. The whole purpose of patents is the protection of new and improved products and processes that are capable of industrial application. They allow the patent holder, in return for making public his idea—a very important concept—the benefit of a monopoly of exploitation of that idea for up to 20 years. For that reason, they are crucial to what we regard as one of the unique selling points of the British economy: our high-tech, highly skilled businesses.
  Increasingly, businesses send offshore activities that can be done abroad equally well, less expensively and, I might add, with less Government interference and bureaucracy. If we are to compete we will have to do so in those areas where our skills and inventiveness make the difference, as the Minister said—I was listening to him. Patents are one way of protecting that

  47
  inventiveness. The alternative is usually thought to be to keep the invention secret, but that deprives us of the knowledge of an invention that might spur further thought, inventiveness and innovation. Secrecy is antipathetic to the knowledge economy and bad for science.
  At the Lisbon summit in 2000, the European Council of Ministers rightly expressed the wish for the EU to become
  "the most competitive and dynamic knowledge-based economy in the world by 2010".
  That is why we need a thriving patent culture in this country. Unfortunately, we do not have one. In an article in the Financial Times of 11 September 2001, we learned that although patent applications in the UK increased by more than 2 per cent. between 2000 and 2001, small and medium-sized enterprises in the UK used patents less than similar companies in other countries. The article noted:
  "Bottom of the pile for patent enthusiasm was the UK, where only 23 per cent. had used the system. In contrast, more than half the Spanish SMEs were using patents."
  Britain is falling behind within Europe, but there is also a widespread lack of patent use in Europe as a whole compared with the USA and Japan. There seem to be several reasons for that, one of which is that, in the USA, it is possible to take out patents for processes that, in Europe, are not patentable—for example, business methods. Of course, that leads to more patents being taken out in the USA. The Opposition do not suggest that the UK should go down that road, however, as the USA has run into considerable difficulties.
  Other reasons why the USA and Japan have more patents than we do are more germane to the Bill. The first is costs. To obtain a patent in the USA costs about £10,000; in Japan, it costs about £16,000; but in Europe, it costs £50,000. Little wonder that Europe is falling behind in the use of the patent system. A large part of the European cost—about £12,600, according to the House of Commons Library—relates to translation, but renewal fees and agents' fees in Europe are far greater than in the USA or Japan. There seems to be a similar discrepancy in the time required to take out a patent: one inventor told me that whereas it takes three years to obtain a patent in the UK, the same process can sometimes be completed in much less than one year in the USA.
  The cost of translation is one of the greatest costs that fall on someone taking out a patent. In his winding-up speech, will the Minister say where we stand on that issue? In another place, Lord Sainsbury said:
  "The cost of translation of patents is stupendous and we need to have one language for them all." [Official Report, House of Lords, 26 January 2004; Vol. 657, c. 42.]
  We agree with him, especially if that one language turns out to be the one most spoken in the developed world—English. Am I right in thinking that the prospect of reaching agreement on a single language has now receded? What has caused that breakdown and how are the negotiations to get back on track? What are the Government doing about a matter that causes inconvenience and expense not only to Britain, but to all the signatories to the European patent convention? How can Europe expect to compete with Asia and the Indian subcontinent if we cannot agree even on that?
  48
  The system in the USA is three times quicker and five times cheaper than the one in Europe. A survey last month by the Swiss business school IMD showed that the most competitive economy in the world was that of the USA and that the UK had fallen a further three places to 22nd. Not only are we not meeting the goal of the Lisbon summit, we are going fast in the opposite direction. To see at least the symptoms of that decline, we need look no further than the way in which we run our patent system. Yet here we have a Bill that deals with none of that—it is a steady-as-we-go Bill, but we are not very steady at all. The costs and the time taken could be shaved a little, which we welcome, but we need to see a step change, and we are not seeing one.
  The Bill brings us into line with the revised European patent convention. Unless that happens, we cannot remain a signatory to the convention. That would be a bad thing for all manner of reasons that I shall not go into, but principally for the reason of commercial convenience. When an inventor takes out a patent in the European patent office, he takes out a bundle of national patents in different countries to protect his invention. If we ceased to be a signatory to the convention, the alternative would be for the inventor to take out lots of individual patents in those different countries or to forgo the protection that a patent would grant.
  It might be worth our while to consider why the European patent convention needed changing at all in 2000. The changes were both substantive and procedural, but will the Minister explain why they were necessary? We accept, of course, that they have now happened, but was there some glaring lacuna in the previous convention that was holding Europe back? What was the commercial demand for the changes that were made at Munich in November 2000? Might it be said that, while the Munich convention dealt with some of those issues, it left a great deal still to be dealt with, including the issues of a single language, computer programmes—currently the subject of a review—and biotechnology?
  If there is still much to be done, what is the prospect of a new patents Bill being introduced in the near future to put into effect any further changes to the European patent convention that might be needed? The Minister will be pleased to hear that it was agreed at the meeting in Munich in 2000 that there should be a meeting of patent Ministers every five years to review the convention. I know that the Minister will look forward to those meetings, as do I. It surely follows from that that we can now expect a patents Bill every five years, if only to allow this country to remain a signatory to the convention. Will the Minister confirm that he expects that to be the new pattern? After all, we have had only three Patents Acts since the 1940s.
  One important aspect of patents that is barely covered by the Bill is enforcement. The enforcement of patents is extremely expensive. It involves the examination of technical processes and the use of expensive litigators, and cases can—and often do—go on for years at a cost of millions. It has been suggested to me—I stress that I do not know whet her it is true—that large companies frequently steal the technical know-how of small and medium-sized enterprises, relying on the relative poverty of the SMEs and the huge enforcement costs in

  49
  time and money involved in fighting off any patent action. The Minister might suggest that there is no evidence for that, but will he tell us what surveys he has conducted to find out whether it is true? What evidence would he expect there to be? If SMEs are so daunted by the costs of enforcement that they simply do nothing, how does he propose to find evidence of that nothing?
  The patent reform group is a pressure group that has come into being to take action on this issue and it described one of the most important reasons for there being fewer patents granted in the UK. In the normal course of a patent action, the patent holder first tries to communicate with the alleged infringer, and those communications are largely ignored. The patent holder then begins an action. The alleged infringer responds that the patent has not been infringed and that it is anyway invalid. Then, if the patent holder is an SME, the alleged infringer applies for security for costs, which could amount to hundreds of thousands of pounds. The patent holder is then precluded from applying for exemplary damages because he is suing for breach of patent, not breach of copyright. Finally, to add insult to injury, according to the patent reform group, any damages achieved by a successful patent action are subject to tax, while the infringer call get tax relief on the legal costs of even an unsuccessful defence. That may be so and I will be interested to hear the Minister's reaction.
  One of the proposals of the patent reform group has been that a fighting fund should be set up to help small businesses finance infringement court cases. The Opposition are not sure whether such a fund could in practice do much more than scratch the surface of the problem. It could also be argued that such a fund, which would have to be paid for by all those who apply for patents, would be yet another burden on those applicants, who have enough to cope with already. Nevertheless, we recognise that for some businesses it is a problem of great seriousness and we intend to probe the Government's thinking in Committee. It is a huge issue and the Minister may tell us that this is too small a Bill and that it is too early to deal with so large a point, but let him take care not to fiddle while the patent system burns.
  The patent reform group dismisses the effectiveness of the new patent county court, which was introduced by the Copyright, Designs and Patents Act 1988. It is true that it has taken a while to find its feet. In another place, Lord Sainsbury said that it had had a slow start. In recent months, however, it has been working well and perhaps ought for the time being to be given the benefit of the doubt.
  The Government have taken the opportunity of this Bill to tidy up aspects of the law that consultations suggested required it. It seems to me that those tidying-up aspects are of considerably greater significance than those bringing UK law into line with the European patent convention.
  One important issue addressed in another place as a result of amendments tabled by the Liberal Democrats and supported by the Conservatives was inventor confidentiality. Those working in bioscience have an understandable desire to keep their names secret, in view of the attacks that have sometimes been made on them, their families and their businesses. As a result, the Government amended the Bill, after initially refusing, as a result of the consultation, to do so, to allow the Patent
  50
  Office to keep the inventor's name secret. But there is a new difficulty, which has been raised with me by the BioIndustry Association. It is concerned that, if inventors' names are kept confidential, the ability to search for, and challenge, UK patents will be restricted. How do the Government expect this to work? The BIA suggests that it would be preferable to withhold simply the inventor's home address. I do not know whether that is the right answer, but it may be.
  In practice, how do the Government expect this to work within the jurisdictions of the other signatories to the EPC? Clearly, there is little point in concealing something in the UK Patent Office if it is readily available elsewhere, perhaps even readily available on a website that is accessible from the UK. Do the other countries have similar problems with the safety of bioscientists? Does the Minister believe that they would be prepared to adapt their rules to allow a confidentiality that does not currently exist?
  On employee inventions, clause 10 amends the law to state that, when an employee has made an invention that belongs to the employer, and there is as a result an outstanding benefit to the employer, the employee shall be entitled to compensation. The amendment relates to the Government's view that that compensation should arise not just when the existence of the patent is of outstanding benefit to the employer but when the making of the invention—or a combination of the two—is of outstanding benefit to the employer. It may be that that is not a distinction of huge importance. In most cases, it probably will not be. Nevertheless, I am afraid that the Opposition simply do not understand it; at least I do not—my hon. Friend the Member for Esher and Walton (Mr. Taylor) understands all about these things, so he will probably be able to explain it to me. I would be grateful if the Minister could explain what is the thinking behind this change and why it is necessary. The whole rationale behind the employee compensation provisions in the Patents Act 1977 seems questionable and this extension appears to require some justification that we have not heard so far.
  Let me present two cases to the Minister. In one, an employee has produced an invention for which the employer decides to apply for a patent. In the other, the employer decides not to apply for a patent. Am I not right in thinking that the compensation provisions apply in the first case but not in the second? If so, that strikes me as a silly anomaly. It may exist under current law, but it seems odd to extend the chances of its applying.
  Most good employers already provide for such compensation in their workplace schemes because it is commercially sensible to do so. That may be why there has never been a successful case relating to it. I put that the other way round from the way in which the Minister put it, just to prove once again that I was listening to what he said. It seems odd to us that there should be a role for the law to play in what ought to be a very subjective area of the relationship between employer and employee.
  Clause 13 introduces a new procedure, involving an opinion from the Patent Office on the validity or infringement of a patent. As the Minister explained, the new procedure will be non-binding. It has been the

  51
  subject of much comment: indeed, in the Hen and Chicken in Froyle they talk of little else. Perhaps most people's reaction has been, "If it is not binding, who cares?" Some have said that the proposal is not as bad as it might have been, others that the Government had to think of something to help small businesses and this, unfortunately, was the best that they could come up with. It has been extensively damned with faint praise.
  We think that that is a little unkind. The aim behind the proposal, taken with the new provisions on threats of infringement proceedings, was to provide some mechanism through which people in dispute over a patent could engage in some form of negotiation rather than heading straight for the courts. It remains to be seen whether these provisions will achieve that.
  If the proposal constituted an excuse for the Government to fail to take proper and effective action to help small and medium-sized enterprises we would wish to hold them to account for that, but for the time being we are prepared to give the proposal the benefit of the doubt. Likewise, we are prepared to give the whole Bill the benefit of the doubt. I shall not be inviting my Conservative colleagues—either of them—to divide on it, because the thrust of the Bill, modest as it is, is largely benign. Our general approach will be to examine the Bill in Committee and improve it wherever possible. It is modest, however. It does not do much, although it may do a bit of good. It is workmanlike and, no doubt, useful but if I were the Minister, I would want a better epitaph than that.
  5.18 pm
  Paul Flynn: It is a rare privilege for us parliamentarians to discuss a patents Bill. As they appear only every 25 years or so, an MP can experience a whole parliamentary career without having such an opportunity. While there will not be dancing in the streets of Newport, I believe that the whole city will be suffused with a pleasant glow at the news that the Bill has been given a Second Reading.
  The Minister was magnanimous in his conclusions, but a little curmudgeonly in his opening remarks. He failed to see the romance of the whole business of patents, which stirs such passions in the inventor class. All human life is in the patents business. Fortunes are made, fortunes are lost, fortunes are missed out on. Humankind's genius and creativity are expressed at their most prolific and productive. The nations of the United Kingdom are especially adept at being innovative, but unfortunately we have not been so good at applying that.
  A rather sad story, brought to my attention by Jeremy Philpott of the Patent Office, illustrates the near-tragedies of the patent business. It involved a man called Bill Frost of Tenby, who applied for a patent for a flying machine in 1894. He went to his death swearing blind that his design for an inflatable dirigible with wings had flown, but there was no record of it. If it were true, he would have beaten the Wright brothers, who flew in 1903. If we had had a Patent Office in Newport—put there by a benign, sensible and far-sighted Labour Government of the time—a Welshman might have been recorded in 1894 as the first person to make a powered
  52
  flight. These dramas take place repeatedly on the journey down the M4 to Newport, with people having similar ideas simultaneously. There is often a rush to get the initial application in first.
  We need a patent policy that is liberated and makes the most of our innovations. Patent protection is one of the cornerstones of our economy. The Bill is modest, but adds zest and a reviving stimulus to the situation described by the right hon. Member for North-East Hampshire (Mr. Arbuthnot), whose remarks on the various patents provided a snapshot of what is happening. Sadly, there has always been a large difference between the number of patents registered in the UK and in Japan and the United States. That says more about our lack of ability to use the applications of science in a practical form than about the ability of our inventors to produce the goods and genuine innovations.
  I rejoice in the fact that the Patent Office is situated in Newport, West. It w as located there in 1991 and it has a 1,000-strong work force. It deals with three areas: intellectual property; processing patents and trademarks; and design applications. Of the 1,000 employees, 208 are patent examiners, whose job is to process the 30,000 applications every year for inventions as diverse as a robot lawnmower to a ladder for helping trapped spiders out of the bath. The patent examiners are the intellectual aristocrats of the world of knowledge. In 1991, they all moved from south-east England to Newport, some very reluctantly. They are highly skilled and are the world experts in sometimes very narrow fields. They are people of great ability who are suitably rewarded for it.
  It is encouraging that a number of local people have been recruited over the years and have developed the necessary skills. Some of my constituents are now patent examiners. The office has drawn its work force from a wide area and science graduates come from all over the UK, bringing their valuable expertise. That ensures that the Patent Office continues to be a habitat that blends rigorous scholarship with intellectual stimulation. It has been a huge success
  The world is very little understood, as hon. Members have pointed out, but it defines and chronicles all the ferment of activity and creativity in our country—all the original ideas, new notions, brainwaves and certain improvements and refinements to existing patents that are shaped into practical inventions and registered.
  David Taylor: I was pleased to hear that one division of the Patent Office in Newport deals with intellectual property. Does my hon. Friend agree that if we do as the Bill suggests and comply with the revised European patent convention, there is a risk that software patents will become the rule in Europe, as they are in Japan and the United States? There are real risks to that, in that such matters are not the subject of intellectual creation; they are just different ways of doing things and obvious ways of using new technology. If we go down that path, we will chill innovation, damage our competitiveness and open programmers and the companies that employ them to legal challenge at every turn. To declare an interest, I speak as a former software developer.
  Paul Flynn: My hon. Friend is right to draw attention to the harm that has been done by the tyranny of one or

  53
  two large companies in monopolising ideas and certain practices to the detriment of the worldwide development of patents and other advances in that field. We certainly do not want to see any change that would put such an obstacle in the way of those developments. I am sure that my hon. Friend will understand what is being said on that.
  In a typical year, the Patent Office receives 30,000 patent applications and it is fascinating to look back into the past and see that in 1897 the number of applications was exactly the same. At that time, however, the dominant subject of patent applications was improvements to bicycles. The office now deals with telecommunications, nanotechnology and biotechnology, fields in which we all find great excitement. Nanotechnology, in particular, is the sort of field that will excite the wonder of our grandchildren.
  The Government deserve congratulations on providing constructive legislation designed to encourage and assist parties to settle disputes over patent rights. I feel sure that small and medium-sized enterprises, in particular, will find that part of the Bill helpful. The work of small and medium-sized enterprises has been referred to, and we all recognise that they are the core of the economy, which will keep the economy healthy and provide the seedcorn for bigger enterprises. The Bill makes useful provision in that regard, and it is right to recognise that it is the nature of the SMEs themselves that has been inhibiting, rather than the activity of the patent business. Among the useful provisions are ones that will sharpen industry's incentive to innovate through an effective, flexible and up-to-date regime for patenting.
  I have seen the Patent Office develop, and one of its characteristics is that when it first moved to Newport, it used a filing system that looked archaic, even in '91. It was quite rightly reluctant to move straight into a high-tech, sophisticated system, which many other Government offices have done disastrously. Having a passport office in the town, we are reminded of the problems that were caused there. The Patent Office moved with great caution from its old filing system to one that depended entirely on software, with all its problems.
  David Taylor: Can my hon. Friend reassure the House that, as far as he is aware, future modernisation and use of technology in the Newport Patent Office will not incorporate the damaging concept of the private finance initiative and will not use the disastrous firm Capita?
  Paul Flynn: I would like to, and I am sure that my hon. Friend the Minister will give my hon. Friend the Member for North-West Leicestershire (David Taylor) that reassurance.
  Another interesting point is that the Patent Office is one of the few Government agencies or offices that has actually done some insourcing, rather than outsourcing. I should like to see it do a great deal more because in a number of fields, work is being done very expensively by patent agents and trade mark agents, at great cost to British industry. That work could be taken in-house by the Patent Office, and done more efficiently and at less cost to the customers. However, it has not gone that way because of Treasury rules. If we were looking to turn the
  54
  Patent Office into an institution that was not rigidly tied in to Treasury rules but had a freedom to innovate and compete in the private sector, there could be major insourcing, as it took in those jobs. Already, a small number of Newport jobs that were outsourced have been drawn back in again.
  Mr. Sutcliffe: While my hon. Friend is rightly complimenting the Patent Office, he may note that it has Investors in People accreditation and has achieved the international charter mark standards that it sought. It is certainly one of the best patent offices in the world.
  Paul Flynn: Indeed. I was complimenting it on its caution in not rushing headlong into new technology in 1991, despite the attractions. It took a measured pace, while other patent offices ran into serious difficulties after plunging into the bewildering world of high tech.
  We all want to see continued innovation. In my constituency, as in many others, sunset industries that resisted change have not developed, and we have a task in competing with the emerging economies in the far east. Industries that are more likely to succeed in the global marketplace are those that depend on and invest heavily in that mysterious, intangible, elusive product called knowledge. I understand that the European patent system is not a European Union system, but it is none the less a crucial European framework that benefits the UK's innovative businesses.
  By delivering full compliance with the European patent system, I hope that the Bill will allow the UK to continue to be a top league player in future developments of that system. That is essential if we are to secure the most beneficial outcome for UK businesses. That is the core of the prosperity that is growing in my constituency, which, like many others, has gone through the trauma of losing sunset industries, which have been replaced by the dawning industries of high tech that have moved in.
  The Bill's enforcement provisions will be especially helpful in surmounting the problems, but equally welcome are the modernisation and updating of patents legislation to respond to customer needs. The service is in intimate daily contact with its various customers. We think of it as dealing with individual inventors, but these days it often deals with huge corporations, often registering patents by the dozen. I understand that the Bill will allow the Patent Office to adapt its services the more easily to meet its customers' requirements. It already runs highly efficient and responsible services with full regard to its stakeholders' needs, but I have every confidence that its operations will benefit further from the regulatory provisions. This is a most welcome deregulatory measure, and one would have expected a warmer welcome for it from the Opposition.
  I fully agree with the Minister's sentiments about innovation generally. He is right to tell us of the undesirable effect if the knowledge arising from innovation and creativity is not properly protected. It is tremendously important to have patent protection, so that businesses have the incentive to make the necessary investment in finding new and improved products and processes for the benefit of all.
  The Bill will permit the Patent Office to provide non-binding options on whether certain activities or products infringe a patent and/or whether certain

  55
  information indicates the lack of validity of a patent. I certainly hope that such opinions can form the basis for negotiated settlements of disputes. That may take a change in the current culture, where litigation is seen as a quick fix for disputes—sadly, it is rarely that: in this complex area, apart from the translators, whom we heard about, the only people who benefit in the long term from long court actions are the lawyers. The Patent Office is dedicated to delivering high standards in all its services, but I have no doubt that it will use its vast experience to deliver first-class opinions on questions that can be so important to the inexpensive resolution of disputes. No one else is in the position to give such advice, and it seems rational to tap into that expertise in order to offer the customer a low-cost, specialist service of this type.
  The Bill will also adjust the impact of provisions applying to unjustified threats of patent infringement. I listened to what the Minister said on this issue and I support his sentiment. It is crucial that the disincentive to settling disputes that the existing provision certainly creates be removed, and it is clear that we should support changes that encourage negotiation and lead to the early settlement of disputes. If we can do that while retaining the appropriate and necessary safeguards against the threat of litigation from retailers, the Bill will indeed provide a wormhole through which the interminable wasted space of litigation can be penetrated.
  The Patent Office is an outstanding Executive agency that has done some excellent work, and I am delighted that the Bill will proceed through the House today without opposition—
  Mr. Eric Forth: How do you know?
  Paul Flynn: Well, one hopes that it will proceed with the support of the whole House.
  The Patent Office's relocation to Newport was recently highlighted in the Lyons report as the ideal example of a relocation of company based in the south-east of England, and there are plans to relocate other civil service jobs outside the overheated south-east. As the Welsh proverb states:
  "Hawdd cynnau tân arhen aelwyd",
  which means, "It is easy to kindle a fire on an old hearth." The Office for National Statistics, the UK Passport Service and most recently the Patent Office have all found a very suitable habitat for their staff in Newport. The Patent Office immediately saved very large sums in rent, and its turnover was reduced to about one tenth of the original figure. Virtually all the staff who moved to south Wales have stayed there; indeed, many of those who are now retired have stayed in the area. It has been a huge success story.
  Mr. Sutcliffe: My hon. Friend is right to point to the excellent work done by the excellent staff of the Patent Office in Newport, but, as he knows, Companies House, which is based in Cardiff, is another example of a DTI agency that works well in Wales.
  Paul Flynn: Indeed. We enjoy this great success in Newport itself and in "Newport far west"—the Minister will not realise that that is how we refer to Cardiff—where Companies House is situated
  Mr. Ian Taylor: I cannot restrain myself from pointing out that I had not realised that the previous Conservative Government had given such a blessing to Newport, West. Having visited the Patent Office when I was a Minister, I am delighted to see that things have worked out so well for the hon. Gentleman.
  Paul Flynn: Yes, they have. I should point out that the previous Labour Government provided for other high technology relocations, such as the former British technological board. This is an ongoing process, and despite a certain political antagonism against the city, our magnetic attraction is such that it overcomes any such objections. I am very happy to thank Administrations of both colours for wisely relocating such agencies to Newport, West.
  The Patent Office has achieved its fourth successive charter mark, and in order to maintain this award it has developed the dynamic approach that I mentioned. That approach not only builds on existing services; it also uses technology to offer new and more targeted services, including widening the consultation base to enable it offer a more personalised service.
  Another example of achievement is the Patent Office's accreditation to the ISO 9001:2000. That accolade constitutes international recognition as a centre of excellence, and recognition of its patenting processes and the way in which it manages its business. Such recognition reflects the quality of services that the Patent Office is able to provide for customers, the development of its staff, and its reputation and influence. I am fortunate to have such an organisation in my constituency, and I have every confidence that it will meet the challenge of delivering the new opinions provided for in clause 13 to a very high standard. It also has a remarkably good record of dealing with a wide range of staff, including some who have problems with mobility, and some who have not attained high qualifications. It has been a good servant of the town, and a model employer.
  Britain has a patent tradition that stretches over six centuries, and the Bill should set the framework for that tradition to continue. As we have already heard from the Minister, its origins can be traced back to the 15th century, when the Crown started making specific grants of privilege to manufacturers and traders. The Patent Office came into being on 1 October 1852, so it celebrated its 150th anniversary in 2002. However, the forward-looking office based in the city of Newport is not recognisable from the times of Dickens, when the offices were full of quill pens and mid-19th century gloom. We would not expect to find in Newport the Lord Chancellor's Purse Bearer, the Deputy Chaff-Wax or any of the other Victorian characters who at one time ran our patent system.
  The current Act has been in existence for more than 25 years, but things have by no means stood still since 1977. Although the Act has been modified many times

  57
  by minor legislative changes, the patents rules are still the means by which many of the formal requirements and other details are set out. The current rules date from 1995—although those too, have been amended several times.
  The only aspect of the patent system that seems to have remained constant throughout the past six centuries is the need for legislative change, with pressure for reform and improvement often coming from users of the system, who have been able to see its flaws all too clearly. The need for continuous reform is ever present, and the Bill follows in the worthy footsteps of many earlier legislative initiatives. Perhaps when it achieves Royal Assent, the patent system will finally, 400 years after the Statute of Monopolies of 1623, be a model of perfection—but possibly not. Perhaps in 20 years' time other MPs will come along to improve the system further.
  Finally, in a spirit of rejoicing, I would like to quote a large advert that appeared last month in the glossy bits of all the Sunday newspapers, placed by a leading car manufacturer, Honda, which recognised the importance of intellectual property by focusing on the Patent Office. It drove home its slogan as follows:
  "There is a place where dreamers go. Where crazy flights of fancy are valued above all else. Where the only good idea is an idea that's new born. Where dreams can become real. It's called The Patent Office, Concept House, the City of Newport — M4, junction 28, first roundabout, and fourth exit. Do you believe in the power of dreams?"
  That dream has become a vibrant living reality for the city of Newport, and the Bill will give it new strength, order and opportunity.
  5.43 pm
  Brian Cotter: In introducing the Bill, the Minister rightly pointed out that the future strength of the UK ecconomy increasingly depends on our ability to exploit our knowledge resources and promote innovation. Patently, it has also been established that we can pronounce "patent" whichever way we like. I am glad of that, in case I make a mistake; both sides of the House seem to have agreed that if I do, it will not be seen as such.
  Patents are an important part of safeguarding the home-grown innovation from which we want UK businesses to benefit. The Bill is therefore welcome for its first aim—to update UK laws and ensure compliance with revised international agreements, so that British businesses can continue to exploit their new products throughout the globe.
  However, in terms of the Bill's second objective, the proposed legislation seems to fall far short of achieving the Government's desired aim. The right hon. Member for North-East Hampshire (Mr. Arbuthnot) made some references to that.
  In the Department of Trade and Industry press release announcing the Bill on 16 January, the Minister for Science and Innovation, Lord sainsbury, said that the Bill's proposals would provide a more supportive framework, particularly for small businesses, to enforce patent rights and ensure that UK patent law continued to underpin and promote innovation. Yet that is exactly what the Bill does not do. Instead, it merely tinkers
  58
  around the edges of the law, failing to address the fundamental point that the current patent system is stacked wholly against UK small firms.
  In his report "Making Patents Useful to Small Firms", Professor William Kingston of Trinity college, Dublin, considered the value of the current patent system to small and medium-sized enterprises across the European Union, noting that in quite a number of cases use of the patent system left SMEs worse off than they would have been if it had not existed. He concluded that
  "for every instance where it did provide benefit, there seemed to be several where it caused actual harm."
  Professor Kingston further identified three specific groups of individuals and businesses that use the current patent system. By examining each group in turn, it is easy to highlight that system's failings.
  The smallest group of patent applications identified by Professor Kingston are those of individuals and small businesses that are actually successful in securing a patent and going on to make money out of it. That group is by far the minority.
  The second, largest, group is made up of those who make a patent application for reasons of vanity. They are mainly individuals who like the romantic idea of being an inventor or of being considered the next Einstein. Unsurprisingly, most such patents are never exploited commercially, often because they are unexploitable. None the less, that has not prevented the UK Patent Office from endorsing some of the more dubious inventions, and that raises some concern about how it operates.
  The Minister spoke earlier about depending on the clear experience of the Patent Office in the past. Yet, in the 1960s and 1970s, a retired patent officer examiner, Arthur Pedrick, attempted to show how absurd the patent system was by taking out patents on a range of bizarre inventions. Shockingly, the Patent Office endorsed 162 of his madcap schemes, including UK patent number 1047735, which was his plan to get snowballs of 10 ft in diameter to run down mountains in Antarctica, attaining speeds of about 500 mph, then being piped to Australia where they could be used to solve the world's famine problems.
  I could rest my case, but I will not. Patent number 1426698 was a plan for an automatic defence deterrent to solve the cold war problem. The United Nations would place nuclear bombs on three earth-orbiting satellites. If those satellites detected that one of the superpowers had been nuked, the bombs would automatically drop on Washington, Moscow and Peking, thus ensuring mutual destruction of all three. I am glad to see that London was not included; perhaps the gentleman lived here.
  Those are examples of the folly of the Patent Office, if I may say so in the presence of the hon. Member for Newport, West (Paul Flynn). It has wasted a lot of time by taking on such things. I must not leave out Mr. Pedrick's vision of a chromatically selective cat flap, which would restrict entry to his home to just his ginger cat, not black, white or grey cats, by somehow barring those with differently coloured fur.
  Mr. Ian Taylor: I am fascinated by all of this, but I wonder whether it is the duty of the Patent Office to decide whether or not an applicant is mad. If the Patent

  59
  Office takes the fee, it is making a profit, which could benefit the constituents of Newport, West. If someone is mad enough to apply to patent such inventions, surely it is not the job of the Patent Office to reject them.
  Brian Cotter: The hon. Gentleman makes a useful point so far as constituents are concerned, but there should be a certain level of examination of patents. The right hon. Member for North-East Hampshire said from a sedentary position that the idea of doors with the ability to detect colours was valuable, so I wonder whether, when the Conservative party opens its new offices in Victoria street, the door could detect whether the people coming through it were light blue, dark blue or not blue at all. The door might be slammed in certain people's faces, but I shall not go any further on that matter.
  Paul Flynn: Fascinated as we are by the hon. Gentleman's examples—I welcome them—I believe that the Patent Office can take decisions only on whether the patent applied for is original and not covered by other existing patents. It cannot make a judgment on practicality.
  Brian Cotter: As the hon. Gentleman says, examples are important and I could provide more, but I still believe that it is a bizarre way for an organisation to operate. All sorts of suggestions could clog up the system. I could think of two or three as I stand in my place, but I would not want to try your patience, Mr. Deputy Speaker, by rehearsing them now.
  Before we go any further, it does not seem unfair to conclude that the current patents system can sometimes reach the point of being somewhat ridiculous —far from the image of an official department, spearheading the development of the latest cutting-edge technology.
  The failings of the current patents system are no laughing matter when we turn to the last group of users identified by Professor Kingston. The last group is made up of individuals and small businesses that have been granted a patent for good and workable inventions. However, they are often prevented from enforcing their patents because they lack the resources to challenge larger companies that determinedly seek to infringe them. Just obtaining a patent in the first place can be costly enough for a small business, as the right hon. Member for North-East Hampshire mentioned. Official estimates suggest that it can cost as much as €50,000 to obtain a patent in the EU.
  A small firm would first have to pay the Patent Office hundreds of pounds to endorse the invention. As already mentioned, one of the big issues is the length of time that it takes to establish a patent, which can be all of three years. If a small firm is successful in gaining a patent, it will probably have to pay a patent lawyer thousands to draft a patent for it professionally and to translate it into all of the relevant European languages. Then, after all that money has been spent protecting a small firm's product, a larger company often comes along to exploit the idea illegitimately. These are not flights of fancy; I am referring to the work carried out by Professor Kingston.
  60
  The small firm then has the option of issuing a licence to the larger company or politely requesting that licence fees are paid, following the infringement of its idea. At best, the large firm will usually ignore such a request. At worst, it will issue a lawsuit, questioning the validity of the patent, as, the inventor of the "anyway-up" children's drinking cup was dismayed to learn. If the small business loses such a case, it may be liable to pay the other side's costs. Unsurprisingly, most small businesses abandon their attempts to defend their patents in court.
  One disgruntled small business owner recently summed up the frustration surrounding the current system, by saying that the Patent Office
  "will grant you a patent at enormous expense, if you are clever enough to be able to beat the whole of the rest of the world technically. But if someone steals your patent, then the PO will do… absolutely nothing. If someone steals your car, then you call the police"—
  there is no guarantee that they will get it back for you, but they try and they exist to do something about it— but,
  "if someone steals your invention, then you have to go to the court to recover it. If you do, then the Inland Revenue will tax the patent holder his winnings and give tax relief to the thief. Patents do not do 'what it says on the box' and are essentially fraudulently sold to UK industry."
  The Minister said earlier—it is on the record, I am sure—that patents were designed to give a 20-year monopoly to firms. I have to inform him that that is not the case. There have been previous attempts to reduce costly litigation and streamline the legal process to make it more accessible to small businesses, but many small firms claim that so far those have had little effect.
  The patent country court was established in 1988 to provide a cheaper and more friendly legal recourse for small businesses to defend their patents. Yet in November 2003, the patent county court judge, Justice Laddie, complained that the case on which he was working, which dealt with a relatively simple issue, had been
  "allowed to grow into a four day trial costing over £850,000".
  He concluded:
  "That cannot be an appropriate way of conducting litigation".
  I know that my noble Friend Lord Razzall was given an assurance that the work of the patent county court would be kept under review, but I would again press the Government to ensure that they return to look again at the problem of enforcement, if the changes outlined in the Bill do not have the desired effect of helping to reduce legal costs for small and medium-sized enterprises. That is what I would maintain. It is imperative because, although the Government have recognised that costly litigation makes it impossible for small businesses to enforce their patent rights, some people believe that the system in the Bill will be of little more use to small firms than previous initiatives.
  The Government claim that they will make it easier for firms to enforce their patent rights under clause 13, which provides a new procedure under which the Patent Office would issue, on request, an opinion on certain matters that might be relevant to a patent dispute. The system would allow a patent holder to bring arguments before the Patent Office rather than the courts, the idea being that it could obviate the need for costly litigation

  61
  in settling an infringement dispute between companies. However, it could be that in offering a non-binding opinion, the Government are offering a solution with no teeth.
  Even if the small business owner chose to take advantage of the process and the Patent Office found in its favour, all that the business would have is a piece of paper suggesting that its larger rival ought to pay licence fees. A big company could be just as likely to refuse to pay up and go to court anyway, particularly given that the courts are under no obligation to take the view of an arbitrator on board. According to Noel Akers, partner at the intellectual property law firm, Howrey, Simon Arnold and White,
  "the non-binding opinion is not going to stop a large company that says, 'we've got deeper pockets, we can take the other side as far as we need to break them'."
  In addition, concern has been raised that the Patent Office will have neither the time nor the expertise to make judgment on cases of alleged infringement, particularly as it seems that it is so often busy endorsing madcap inventions such as the cat flap idea. Explaining its rationale for contracting out a number of patent examinations to Denmark back in March 2002, the Patent Office admitted that the decision was
  "part of wider efforts to deal with the rising input of patent work, which has so far not been matched by our ability to recruit and retain examining staff."
  I am prepared for the Minister to say that that was the position in March 2002 and that it has subsequently changed, but I hope that he can give me that reassurance on a firm basis of fact.
  How can a patent holder be confident that the Patent Office will have the resources to come to measured judgments in cases of infringement? As the patent reform group pointed out, in order to reach a reasoned judgment as to whether a patent has been infringed, the Patent Office will need the co-operation of the infringer. How likely is it that a defendant will readily hand over the product or technology for examination? What additional powers will the Patent Office have to ensure that an alleged infringer provides all the relevant material to the case? Why have the Government rejected the idea of binding and technical arbitration—that has teeth and is based on technical assessment—to settle infringement disputes and make it easier for small businesses to protect their patents? What evidence do the Government have for their proposal that the use of a non-binding opinion would provide a practical alternative to costly litigation for SMEs, when the procedure is already available from the World Intellectual Property Office—WIPO—but is rarely taken up because of its non-binding nature?
  Ministers say that they want to help SMEs enforce their patent rights, but some small businesses claim that they have not been given the tools to do so. This week, the Patent Office will spend £250,000 launching the "Intellectual Property BOOM!"—an initiative to raise businesses' awareness of intellectual property rights. However, if the procedures in place are not sufficiently robust and relevant, the expenditure of that money is probably not justified.
  I would also like more explanation from the Minister of why the Bill has been brought forward before the patent enforcement project has been completed. The
  62
  project was due to report at the end of November, but that was moved to the end of March, then delayed until the end of April and now it will not report until the summer. The project was part of assessing the need for a Patents Bill. Even when it reports in the summer, a long consultation process will be necessary, possibly lasting a further three years. I suggest that the Minister should be concerned about that prospect.
  Following publication of the DTI's innovation report last December, the Government concluded that the Patent Office should
  "conduct a feasibility study of a proposed new institutional arrangement which would help SMEs protect their intellectual property."
  The initiative is looking at the possibility of establishing a fighting fund to help SMEs finance legal action when their patents have been infringed. Why has the Bill been brought forward before the conclusions of that study are published in the summer, because it will be an important contribution to the efforts to help small firms?
  I am aware of the announcement made by Lord Sainsbury in the other place in response to concerns raised by my noble Friend Lord Razzall about the system that the Government have chosen to help small firms enforce their patent rights. Nevertheless, it would be helpful for the Minister to repeat those arguments today, as some firms—such as those involved in the patent reform group—do not have confidence in the proposed system. A further comment by the Minister would help us to see why the Government have chosen to adopt that system.
  It was said at the beginning of the debate that the Bill was nothing to be concerned about, but it does raise issues of great concern. For example, clause 1 would insert a new section 4A into the Patents Act 1977 to bring us into line with the European patent convention. According to the Government on Second Reading in the other place, clause 1 would make it clear that any method of medical treatment, such as a new surgical technique, cannot be patented, and that is welcome. It also provides a less complicated method of obtaining protection when a new use is found for a medically active substance that has a known use or uses. Those provisions mean that scientific discoveries that are for the public good or part of human knowledge cannot be tied up by patents to make them unavailable, in the same way that inventions can. That is also to be welcomed.
  However, the patenting of substances or compositions using methods of treatment or diagnosis of human or animal bodies is allowed. That is an area for concern. Do current provisions provide sufficient protection against the potential monopolising of certain benefits that might stem from the human genome project? A report published by the Nuffield Council on Bioethics in July 2002 concluded that research into AIDS, cancer and malaria is being held up because patents on human genes are granted too readily to pharmaceutical companies. Although patents covering DNA sequences are often justified to reward innovative science, some experts feel that too many restrict research.
  It is, therefore, possible that the patents system is not fulfilling its key system of encouraging developments that benefit the public. The Nuffield report expressed fears that companies were being granted exclusive rights

  63
  over the use of genes in diagnosis, research and treatment, thus preventing other scientists from working on other aspects of the gene. Can the Minister clarify how the amended legislation will ensure that the tests are more rigorously applied to the granting of patents involving DNA sequences, so that knowledge and substances are not tied up by the granting of broad patents?
  I hope that the Minister can also clarify the situation on the changes that will update section 22 of the 1977 Act. Section 22 concerns information in patent applications that might be prejudicial to the defence of the realm or the safety of the public. Schedule 2 to the Bill proposes to substitute the term "defence of the realm" with the phrase "national security". According to the Bill's explanatory notes, that update is designed so that
  "the comptroller can make directions in any circumstance where there is a need to protect the national security interests of the United Kingdom."
  Given that the phrase "national security" is much wider ranging than the term "defence of the realm", can the Minister clarify why the Government feel it necessary to make that change? How will the Government ensure that details of patents are not withheld without suitable justification?
  In conclusion, the Liberal Democrats welcome the Bill as a vehicle for giving British inventors key intellectual property rights under revised international treaties, but we are concerned about some of the proposals to help small businesses enforce their patents rights. The Government must justify their actions further in Committee—and I look forward to that—and pledge to keep the issue under review, so that cost does not act as a barrier to the enforcement of rights by small firms.
  6.8 pm
  Mr. Ian Taylor: We have had a most learned debate on this modest Bill. Indeed, the speech by the hon. Member for Newport, West (Paul Flynn) was learned and emotional in waxing lyrical about the decision of the then Conservative Government to provide his constituency with its glamorous offices and employment prospects back in 1991. I much enjoyed my visit to those offices in the dim and distant days when I was the Minister with responsibility for science and technology. I found much enthusiasm for the work being done with such expertise.
  I am delighted to take part in this debate, although I must make a declaration of interest. I am involved with one or two companies that apply—often successfully—for patents, so I have business interests in the area, including with a merchant bank called Interregnum that encourages companies to exploit their intellectual property.
  That experience, allied to my ministerial experience, has reinforced my view of the importance of patents, but they are not the sole solution in the need to advance intellectual property, many aspects of which are not even patentable. In this modern knowledge economy, businesses will have to find ways to increase their competitive advantage by identifying not only their
  64
  intellectual property but the IP that they need to acquire from elsewhere. They often need to move speedily in doing that, which is not always the way that the patent process works.
  When I was responsible for the research councils, we used to talk about ways in which both they and the university sector could exploit intellectual property. People often asked why universities did not hold more patents. The answer was often complicated and taught me that a good benchmark for showing whether a university was really exploiting its knowledge base and getting involved in technology transfer was not always that it had ratcheted up a high number of patent applications. I use that point as background, because although the discussion of patents is obviously the reason for our being here this afternoon, patents are not the only guideline for the exploitation of intellectual property. I certainly hope that companies do not assume that that is the only benchmark they should use either for their evaluation by the City or other possible investors or for the way in which they want to be seen by their peers. Ultimately, the benchmark is commercial success, which in many cases means rapid translation of a good idea into a good product that sells.
  The difficulty with patents is that by the very process of application one often makes public the invention or the original process—a point that has already been mentioned. For many companies that is a disadvantage. Some of the Government's work—in the Department of Trade and Industry the innovation report published at the turn of the year and the Lambert report commissioned by the Treasury to look into our university business links—shows that the danger of a patent is that it actually discloses an interest to possible competitors, which for many companies, creates the problem of how to protect that knowledge. As I pointed out earlier, exploitation is often the best way to protect and take advantage of an invention.
  Often, the public are not really worried about patents until they seem to be threatened by their existence. The hon. Member for Weston-super-Mare (Brian Cotter) pointed out that when there is debate about some of the pharmaceutical cases, such as whether DNA sequencing should be public of private, the public prick up their ears. Sometimes, however, such debate is dangerously misguided. In many cases, pharmaceutical companies take out patents to protect the terrific investment needed for new drugs to come to market. We are slightly in danger of assuming that the pharmaceutical companies are somehow an evil influence because they possess those patents. There is debate about whether one should move to generic products and whether we should forcibly reduce the length of patent coverage and try to abolish the taper at the end of the process. Those questions can be rather emotional when applied to continents such as Africa. I understand that, but the danger in that public debate is that the patent can be regarded as an obstacle whereas in fact the whole process of encouraging companies to invest in research and take out a patent to protect their commercial advantage is important.
  That gives rise to another issue that has not been a focus for our debate: it is a mistake to believe that all patents are taken out by individuals or small companies. Some of the most important patents are in large companies and those companies can be very innovative.

  65
  We should not believe that the whole process is about small companies in big battles to try to protect themselves. An analysis of the litigation shows that we are dealing with the exceptions; the problems tend to be at the margin. Most patent processes—applications and renewals—tend to go through smoothly and are not subject to great debate.
  Nevertheless, I recognise that individuals and inventors take out patents. I dealt with them as a Minister. It was sometimes difficult because they thought they had discovered the full benefits of alchemy and that the gold to be produced thereby should come to them; the manufacturing process for turning their invention into something worthwhile was of no concern to them. I do not of course include Trevor Baylis in that category; he used to phone me regularly on Sunday mornings to tell me his latest thoughts. He had great success with many products, not least the clockwork radio, and I fully compliment him. The difficulty often is to get individual inventors to work together, which is, as I am sure the Minister has discovered, not an easy task—to put it mildly. I pay tribute to inventors, but we should not be under the impression that they are the only people concerned with inventions—there are many others.
  There is a challenge for the European Union. My right hon. Friend the Member for North-East Hampshire (Mr. Arbuthnot) mentioned the Lisbon agenda somewhere in his excellent speech. He pointed out that the need for us to make Europe the most competitive place in the world to do business was paramount. Of course we hope that Britain is the most competitive place within that wider European space. The Library has produced an excellent document from which I quote the definition of intellectual property given by Ian Harvey, the chief executive of the British Technology Group. He said:
  "Intellectual property is one of the few ways that you can differentiate a product and enforce its uniqueness. Competing on price or first-move advantage are ephemeral in comparison."
  That is a key point. However, Charles Oppenheim, professor of information science at Loughborough university said:
  "If we want to improve European innovation and competitiveness, many more SMEs should be using patents and patent information than currently do."
  That, too, is obviously important. The European patent convention has been a reasonably successful provider of broader patents for Europe; it has been effective in bundling together, over 27 countries, a national patent that has wider application.
  The difficulty is that, in the spirit of the Lisbon agenda, we have not actually been able to convert the work of the European patent convention into the implementation of an EU patent. That is a continuing problem in the Council of Ministers. The process has been stalled by a variety of things. Language, which was mentioned by my right hon. Friend, is not only prohibitive but emotional. The fact that we in this country think the provisions should be in English—I share that belief—is not necessarily fully appreciated, not least by the French. There are also complications arising from justice systems in Europe. There is obviously a need for a court to enforce the patents, but that challenges each of the national courts.
  66
  Over the years, I have also detected resistance from national patent systems and national patent offices, many of which are profit-based and feel that they will be bypassed. In some countries they have an almost disproportionate influence on the Government. I hope, however, that, in the spirit of the quinquennial meeting of patents Ministers, the Minister will be able to get the scheme back on the road. It is absurd that the European single market has no court capable of implementing an EU-wide patent and relies only on the convention itself.
  The point behind the Bill is to try to find new ways of clarifying some of the arguments. We have heard the detail, and I shall not bore the House by going back over that. The conflict between employees and their employer is genuine, and it is very difficult to determine. I hope that the Minister has got the draft of the Bill right. It has been tested in the Lords, and I am sure that it will be tested in Committee. Nevertheless, part of it relates to contract law and what an employee was doing under his or her contract. Was he or she expected to develop new ideas? Any sensible company would certainly wish to compensate someone who had come up with ideas that were capable of being patented. Many universities have wrestled with similar problems.
  I return to an earlier point that I tried to make. The difficulty for an individual is that it is no good just having a patentable idea as though that was Mecca. Having a patentable idea is a means of enabling a good idea to be translated, through protection, into a public good, a consumable product, an advancement in science or whatever. The original idea may be laudable, but it is not the end product. An end product uses a patent in order to give the process time to provide competitive advantage, and many employers will not necessarily fully appreciate that the process of exploitation is as important as the idea itself.
  When I was a Minister, I was involved with an award—I believe that it continues—that specifically related to bringing together the great ideas, although not necessarily patentable ideas, produced by small companies with the big companies that were capable of exploiting them. I remember the ultrasound technology that was applied to valves used in the North sea to ensure their accuracy and reliability over many years. That required huge engineering skills—of, I think, British Gas—to attain perfection in the manufacturing process even though the idea originated with an individual or a small group of individuals.
  I will give the Minister the benefit of the doubt on another aspect of the Bill that I hope will work. I refer to the process of judging infringement and, although clause 13 has its merits, it will have to be tested in Committee. I shall not do that on the Floor of the House, but I mentioned the costs of protecting and renewing a patent. The issue of infringement is difficult. We live in a competitive world and people want to take advantage of ideas. Many companies often go through a parallel process that enables them to say that they have not technically infringed the existing patent, but merely provided something that was remarkably similar. That can involve subjective and objective judgments, and clause 13 may assist with the objective assessments.
  I underline the need for the Bill to be effective when it is converted into law. In 2002, it was estimated that expenditure on research and development as a share of GDP in the European Union was 1.99 per cent. The only

  67
  comparisons that I have are with Japan, where the figure was 2.98 per cent. in 2000, and with the United States, where it was 2.8 per cent. Those gaps are significant and continuing even though Treasury Ministers and the European Commission have set the target of improving total R and D spend in the EU to 3 per cent. of GDP. I am afraid that we are still a long way short of that. For those interested, in 2002 the share of R and D expenditure in the United Kingdom was 1.84 per cent. of GDP.
  In the period between 1997 and 2001, however, the EU recorded a rate of European patents per unit of business R and D expenditure as equal to 0.6 per cent. It was followed by Japan, where the figure was 0.31 per cent., and the United States, where it was 0.26 per cent. Those figures are slightly more heartening bearing in mind my earlier point that patents by themselves are not the only benchmark for intellectual property exploitation.
  The Bill has merit. I do not believe that the worries expressed by some professional organisations are necessarily well founded, but they should be aired in Committee, and I am sure that they will be. I certainly wish the Bill good speed. We should make sure that we comply with the European convention and constantly update patent law. We should also continue to try to bring down the costs of applying for patents and the time in which they are granted. Good ideas need to be out there in the marketplace very quickly. We live in an increasingly competitive world not only among companies in this country or within the European Union, but internationally. We cannot be left behind. The Bill had better make effective law.
  6.26 pm
  Mr. Sutcliffe: With the leave of the House, I would like to respond to what has been an excellent debate. As the hon. Member for Esher and Walton (Mr. Taylor) said, it has been a learned and informed debate on issues that do not automatically appear in the constituency casework or postbag of most hon. Members. Nevertheless, it has been an interesting debate and contributions from both sides were excellent.
  The right hon. Member for North-East Hampshire (Mr. Arbuthnot) said that it was not the most political Bill ever to come before the House, and I agree with him. However, it is important, as hon. Members said, that the "pa-tent" or "pay-tent" system—we have decided that we can call it either—is important for all the reasons that have been given.
  We need a robust patent system, which is essential if we are to maintain and encourage a long-standing tradition of innovation—crackpot or otherwise—in the United Kingdom. As the hon. Member for Esher and Walton pointed out, when we talk about innovation, we are not just talking about having a bright idea but about having an innovation culture in which bright ideas are successfully exploited. Successful innovators—whether James Watt with his steam engines in the 18th century or Owen Maclaren and his light-weight folding pushchairs 200 years later—have always been able to take their bright ideas on to widespread success. We have heard other examples in the debate.
  68
  We all agree that, first, our patents system must be robust enough to protect properly the people and companies with the creativity and drive to make innovative technical advances. Those are the advances that—large or small—continually improve the quality of life for us all.
  Secondly, the patents system must be accessible. All innovators must be able to protect and exploit their new products or processes—whether it is a multinational pharmaceutical giant, a new university spin-off company or a lone inventor who has hit upon a great new idea. Having a system that is, as far as possible, harmonised with international patent agreements will help our innovators protect their ideas abroad too. Thirdly, the patents system must be balanced enough to ensure that the public at large continue to benefit from new products and processes and can challenge patent rights when it is fair to do so.
  I am pleased that this Government are introducing the important changes in the Bill. The major reforms made to the pater is system by a previous Labour Government in 1977 have served the UK well over the past 27 years and we are now updating them. This will ensure that our legislation remains in tune with innovators' needs and with the international framework in which our patents system operates.
  I want to say a few words about the development of this Bill. We carried out a thorough and wide-ranging consultation, starting in 2002. We heard from lone inventors, small and large businesses, patent professionals, lawyers and judges. That helped us to refine significantly the proposals for inclusion in the Bill. Throughout the process, we met representative groups from right across the spectrum of patent users and we continued to listen to their views. In another place, we heard arguments on measures in the Bill where it was felt that stakeholders' concerns had not fully been met and we amended the Bill accordingly. I hope that it is clear that the Bill, right from the outset, has been developed in a spirit of co-operation and constructive debate. I am grateful to the right hon. Member for North-East Hampshire for thanking the noble Lords in the other place for their contribution in sending the Bill to us. I also thank him for thanking the Bill team and others who contributed to the process.
  We have to be affective in ensuring that the Bill develops. I look forward to participating in the Committee. Many concerns were raised and if I do not respond to them new, I shall write to hon. Members before the Committee starts. I hope that we will consider the issues in the spirit of co-operation demonstrated so far. If it appears that things need to be done differently, I will be prepared to consider doing that. I expect the hon. Member for Esher and Walton, who spent time as a Minister in the Department of Trade and Industry, to make a learned contribution. He was responsible for many innovations and I pay tribute to his work in the Department and to his well-balanced approach. He perhaps put the argument more cogently than I did—
  Mr. Ian Taylor indicated dissent.
  Mr. Sutcliffe: I thank the hon. Gentleman for that.
  The right hon. Member for North-East Hampshire explained that the European patent convention was revised in 2000 and asked whether a Bill will be

  69
  necessary every five years; I hope not. We decided that it was time to modernise the EPC some 27 years after negotiations were completed. The European Community is considering accession to the provisions in the EPC, in which case future changes could be achieved under the European Communities Act 1972.
  Negotiations are taking place in Brussels among EU states on a European Community regulation to establish a Community patent. Tint will be a single patent valid throughout the entire territory of the EU, in much the same way as existing Community trade marks and design rights are. At the most recent Competitiveness Council meeting in March 2004, agreement on the regulation again proved elusive. The negotiation stalled on the language regime for the translation of Community patents and the legal status that such translations should have. Beyond that, agreement has still to be reached on what form a centralised Community jurisdiction for dealing with patent disputes will take. We will continue to do whatever we can to get the stalled negotiations restarted.
  The proposed Community patent should not be confused with a European patent granted under the 1973 European patent convention, which in effect is a bundle of national patents using a single one-stop granting procedure, administered by the European Patent Organisation. The right hon. Member for North-East Hampshire mentioned the USA and Japan. That worried me, given the Euroscepticism on the Conservative Benches. The USA and Japan are single nations that use only one language—English or Japanese—but the EU is a collection of nation states. I am sure that he is not suggesting that we make all EU states use one language. That would not give due recognition to each state's sovereignty, which I understand is important to the Conservatives—at least to some of them.
  The right hon. Gentleman also mentioned the cost of patenting. We will be pleased when negotiations on the Community patent succeed because that will reduce costs. We also support the London agreement, which will significantly reduce translation costs for all users of the European patent system. We look forward to its implementation, preparations for which are under way in the UK.
  Hon. Members mentioned small and medium-sized enterprises. We fully understand the difficulties encountered by SMEs. Finding out how to help them has been difficult, but we are building on research. The hon. Member for Weston-super-Mare (Brian Cotter) mentioned the patent enforcement project. That is a sign of our commitment to explore what we might be able to do in addition to the Bill.
  Brian Cotter: The Minister will expect me to say this, but I remain concerned that the report was put off from November to March and then to April. It has now been put off until the summer, and even then the process will carry on. It is a grave concern that the report did not come out before the Bill.
  Mr. Sutcliffe: The point is well made, but the hon. Gentleman will want us to get it right when we publish the research. The viability of a patent defence union that could help SMEs in particular to enforce their patents is being considered. The result of that will be available soon.
  70
  I was asked why we have decided not to provide for additional or punitive damages. I am aware that the difficult issue of flagrant infringement of a patent engenders strong feelings on both sides of the argument, but there is by no means unanimous support for a provision to allow such damages to be awarded in patent infringement disputes. Indeed, the Opposition in another place argued that the availability of such damages would do two things. First, every claim of infringement would include a claim for such damages, leading to more legal wrangling and raising litigation costs even further. Secondly, trying to show that the other party had behaved badly would make an amicable settlement even less likely. It is not the time to introduce additional or punitive damages into patent legislation. Moreover, other proposals in the Bill are designed to help patent holders, especially SMEs, in the enforcement of their patents.
  The right hon. Member for North-East Hampshire asked about the employer-employee relationship and said that existing provisions are illogical. That is why the employee compensation provisions are being amended to cover outstanding benefit from patented inventions as well as from the patent itself. I am sure that we will return to that in more detail in Committee. I am pleased to note that most employers, for the reasons set out, are making payments. It is understandable that they would support their employees who contribute to the well-being and development of their businesses. The changes to employee compensation are intended to make the process simpler, not more complex. It will no longer be necessary to deal with the difficult and subtle distinction between benefits derived from the invention being patented and the benefits derived from the patent itself.
  My hon. Friend the Member for North-West Leicestershire (David Taylor) intervened on my hon. Friend the Member for Newport, West (Paul Flynn) on software patents. It is worth saying that inventions that implement software have been patentable for decades, in both the UK and across Europe. The Bill makes no change in that respect. Software per se is not patentable and that will remain the case, although it is protected under copyright. I think that the hon. Member for Esher and Walton made the point that there are other benchmarks to consider, not just those relating to intellectual property. Novel software with an inventive stage that makes a technical contribution is already patentable and will remain so. The EU is considering a proposed directive on the patentability of computer-implemented inventions. One aim of the proposal is to clarify the status quo with respect to software patents, neither broadening nor narrowing the field of what may be patentable in relation to computer-implemented inventions.
  My hon. Friend the Member for Newport, West made an emotional and well-thought-out contribution on behalf of the Patent Office, which is situated in his constituency. He made all the right points about the quality and skills in the office. It was the first to achieve the International Organisation for Standardisation 9001:2000 certification status. In combination with the way in which it operates, it is clear that the Patent Office develops its staff.
  My hon. Friend was right to raise our aspirations. The right hon. Member for North-East Hampshire said that the Bill is workmanlike and devoid of emotion. My

  71
  hon. Friend, in his inimitable way, talked about the power of dreams. No doubt his wonderful Welsh phrases delighted the Hansard Reporters. It is worth pointing out that we have 1 per cent. of the world's population and fund 4.5 per cent. of the world's science, produce 8 per cent. of the scientific papers and receive 9 per cent. of the citations. That is an excellent track record that shows how the UK innovates and has led in so many ways.
  The Patent Office was careful when it changed its IT provisions and made its decisions on outsourcing. As an Executive agency and a trading fund, it has the ability to decide such changes for itself. The awards mentioned suggest that it is flexible in the way in which it operates.
  Hon. Members raised many issues. The time that is left does not give me the opportunity to cover them all—
  Mr. Forth: We have until 10 o'clock.
  Mr. Sutcliffe: I would be delighted if the House wanted to sit until 10 pm to discuss these issues. I want to try to give hon. Members detailed responses to the points that they made and it is not always possible to do that on the Floor of the House. That is why we have a Committee stage for Bills. We can go through the detail in Committee and, if we cannot reach agreement, there are further opportunities for discussion when we return to the Floor for Third Reading. However, given the cooperation between this House and the other place, I am sure that we will be able to reach agreement.
  The hon. Member for Weston-super-Mare mentioned patents for curious, obscure or, indeed, alarming inventions. As was pointed out, the job of the Patent Office is not to decide on the quality of applications but only to make sure that the process has been properly undergone. He also asked why the Patent Office grants patents for inventions that seem to have little practical value. The Patent Office was set up to provide a service to the public and its role is not to decide who should or
  72
  should not apply for a patent, but merely whether an application meets the requirements that Parliament decided were necessary for the granting of a patent.
  This has been an important debate on an important Bill. I look forward to the Standing Committee, where I think we will have a worthwhile discussion of many issues that affect UK science and innovation. I look forward, too, to working with the Members who have contributed to the debate today. I commend the Bill to the House.
  Question put and agreed to.
  Bill accordingly read a Second time.

PATENTS 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 Patents Bill [Lords]—

PATENTS BILL [LORDS] (PROGRAMME)
  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 Thursday 17th June 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 the day on which proceedings on consideration are commenced.
6. Sessional Order B (programming committees) made 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 messages from the Lords) may be programmed.—[Paul Clark.]
Question agreed to.

Joint Activities with the National Assembly for Wales
6.41 pm
The Deputy Leader of the House of Commons (Mr. Phil Woolas): I beg to move,
That this House approves the Third Report of the Procedure Committee, on Joint activities with the National Assembly for Wales, HC 582; and that the following Order be a Standing Order of this House until the end of the present Parliament:
'The Welsh Affairs Committee may invite members of any specified committee of the National Assembly for Wales to attend and participate in its proceedings (but not to vote).'.
The motion provides that the House should approve the Procedure Committee's third report of this Session, on joint activities with the Natioanal Assembly for Wales. I shall attempt to explain the Committee's proposals. I should say, first, that I am grateful to the Chairman of the Committee, the hon. Member for Macclesfield (Sir Nicholas Winterton). I understand that he had an important meeting t afternoon, and I am very grateful for his letter and for the fact that we are able to begin the debate with him in his place. It is obviously beneficial to the House that that is the case.
The Procedure Committee's report follows the 2003 report of the Welsh Affairs Committee on the primary legislative process as it affects Wales. The Welsh Affairs Committee found that in pre-legislative scrutiny of the draft National Health Service (Wales) Bill—and, more recently, the draft Public Audit (Wales) Bill—there was considerable overlap between its work and that of the relevant National Assembly Committee. Joint hearings would remove that overlap and be of benefit both to Committees and to witnesses. The Welsh Affairs Committee therefore recommended the granting of powers for joint formal meetings between it and Committees of the National Assembly for Wales.
In its response to the Welsh Affairs Committee's report, the Government expressed the view that joint pre-legislative scrutiny by the Committee and the appropriate Committee of the National Assembly for Wales would be helpful. We hoped that the House authorities would examine whether the procedural obstacles could be overcome. The Clerk of the House and his counterpart in the National Assembly set up a joint working group of officials to consider how that could be done.
The report of the working group is published as an appendix to the Procedure Committee's report. In short, the working group found that joint meetings, if desired, could be conducted on the principle of "reciprocal enlargement": either Assembly Members would be invited to attend and take part in House of Commons proceedings or Members of the House would be invited to attend and take part in Assembly proceedings, the activities concerned counting as proceedings of the host body, chaired by one of its Members and governed by its rules.
The Procedure Committee has come to the view that the underlying question of principle, as to whether joint meetings are necessary or desirable, requires further consideration.
Mr. Eric Forth: You bet.
Mr. Woolas: The right hon. Gentleman says "You bet," and I imagine that such consideration will form the substance of this debate. However, the proposals are common sense.
Mr. Patrick McLoughlin: The Minister said that, according to the report, the proposal requires further consideration. How many of the Procedure Committee's published reports, with recommendations, have the Government failed to find time to debate on the Floor of the House?
Mr. Woolas: I am afraid that I do not have those details at my fingertips, but I can say that the thrust of the recommendations has been accepted, as is the case with this report, which the Government believe is very sensible. I hope that the House will agree. Indeed, it was the Government who tabled the motion to accept the report.
Mr. McLoughlin: There is one particular Procedure Committee report, which formed the basis of a complaint that I made in the last Parliament, which the Government have never found time to allow the House to debate or decide on. I wonder on what grounds the Minister or the Government decide which Procedure Committee reports they will find time to debate on the Floor of the House.
Mr. Woolas: The Government decide on the Procedure Committee reports with which the House agrees, and we use common sense to decide whether we agree with the reports. Those are House of Commons reports, not Government reports, and the Government's response is based, in large part, on the consensus of the House, as in this case.
Mr. Forth: Will the hon. Gentleman give way?
Mr. Woolas: I will finish this point first. I hope and believe that this report carries the consensus of the House. It is not a Government report, but there is a Government motion that endorses and accepts the report. I believe that the hon. Member for West Derbyshire (Mr. McLoughlin) understands that.
Mr. Forth: I am curious to know how the Minister knows what the consensus of the House is if he will not bring a measure before it to be debated and if he has not heard the views of Members. That is typical of Ministers' attitudes: they assume that they know what the House thinks and they make their decisions on that basis. Can the Minister enlighten us as to how he divines the consensus of the House before he decides whether to bring something before it?
Mr. Woolas: The answer is common sense.
Mr. Forth: Your common sense.
Mr. Woolas: Well, somebody has to provide common sense, and it is a good basis for judgment. It if transpires, following Members' contributions in a debate, that

75
there are objections, the House will decide. The right hon. Gentleman is no stranger to the practice of objecting to motions moved from the Dispatch Box or elsewhere. However, to coin a Euro 2004 phrase, somebody has to decide what common sense is. If the right hon. Gentleman disagrees, it is his right to do so.
This Procedure Committee report is one from the House, to the Government. The Government are facilitating debate in the House; they did not need to do so, but they have provided time for debate. I would have thought that the right hon. Gentleman would welcome that opportunity. The Chairman of the Committee, the hon. Member for Macclesfield, is in his place. The Chairman of the Welsh Affairs Committee also supports the motion and has recommended it to the House. If the House wants to disagree, that is its choice. I fail to see what else I could do if I am not to be accused of bludgeoning the report through the House. If the right hon. Gentleman were a reasonable man who accepted that the House is being asked to consider proposals regarding the procedures of the House and its Committees, I think that he would nod his consent. The fact that he fails to do so is a matter for him.
The Procedure Committee has come to the view that the underlying question of principle of whether joint meetings are necessary or desirable requires further consideration. The right hon. Gentleman is not listening, so I reiterate: the Procedure Committee has come to the view that whether joint meetings are necessary or desirable requires further consideration. I should have thought that he would support that point at least.
Mr. Forth indicated assent.
Mr. Woolas: The right hon. Gentleman nods, so I find it difficult to understand how he can oppose the motion before the House—but that is a matter for him. I am sure that he will take the opportunity to explain, should he catch your eye, Mr. Deputy Speaker.
The Committee also believes that pre-legislative scrutiny of an expected draft Bill that applies only to Wales would provide a suitable experiment in joint working before it decides whether to recommend its wider use. The Committee therefore recommends that, until the end of the current Parliament, the Welsh Affairs Committee be authorised to invite members of any specified Committee of the National Assembly for Wales to attend and participate in its proceedings, but not to vote on those matters—that is most important—and subject to a quorum of both Committees being present. The Procedure Committee further recommends that during such proceedings use of the Welsh language be allowed in all circumstances, with the National Assembly providing interpreters and transcription of Welsh language contributions. The current rules allow the use of Welsh in Select Committees only if a witness has given advance notice of a desire to give evidence in Welsh, but the National Assembly is obliged by statute to treat the English and Welsh languages equally. I hope that the House will think that that is a sensible and pragmatic modification to our rules.
The Government have responded to the Committee in positive terms. We agree that the forthcoming pre-legislative scrutiny of the draft Transport (Wales) Bill,
76
which was laid before both Houses on 27 May, provides a suitable experiment for joint working before considering whether it should be permitted more widely in respect of legislation relating to Wales. With the agreement of the Chairman of the Committee, our response has been placed in the Library and attached to the explanatory memorandum provided in the Vote Office. The Government are grateful to the Procedure Committee for carrying out a difficult technical task on a difficult policy area and for its measured and timely report. We are alto grateful to the Welsh Affairs Committee for its consideration and its commitment to pre-legislative scrutiny and to joint working with the National Assembly.
Perhaps the Chairman of the Procedure Committee will explain his Committee's thinking in more detail. I hope that the House will agree that the experiment suggested by his Committee should go ahead. I urge the House to support the motion.
6.53 pm
Mr. Peter Luff: The debate so far on this relatively straightforward motion shows the benefit of having the opportunity to debate such matters rather than let them go through on the nod, as the Government too often seek to achieve. Courtesy of the powerful point made by my hon. Friend the Member for West Derbyshire (Mr. McLoughlin), important questions have been asked about the extent to which the Executive set the agenda for the House of Commons in relation to the selection of Select Committee reports for debate.
In a sense, we are having this debate because the present situation is the product of the very different models of devolution used for Scotland and for Wales, and the proposals represent an attempt to tidy up some of the loose ends left by the devolution process. I am glad that the Minister did not describe them as part of the modernisation agenda. He would have been wrong to do so because, as the Procedure Committee's helpful report points out, there is a precedent for the proposals. In 1933, it was decided that people who were not Members of either House of Parliament should be able to take part in proceedings in the Joint Committee on Indian Constitutional Reform.
Mr. Forth: I am grateful to my hon. Friend for pointing that out, but does he not think that the fact that the procedure has not been used for all this time suggests that it might not be very useful, after all?
Mr. Luff: I suspect that my right hon. Friend will explore that matter during his remarks, should he have the good fortune to catch your eye, Mr. Deputy Speaker. In my view devolution has created a new and untidy situation, and the proposal—which I, rather reluctantly and on the basis that it is a trial, will support—may well he a necessary development to enable us to cope with that.
Mr. Woolas: Anticipating that the word "modernisation" would be used against the proposal, I conducted some research, which tells me that in July 1933 the Joint Committee on Indian Constitutional Reform set up several sub-Committees to hear various

77
witnesses on specific topics and nominated five Indian delegates to take part in those proceedings. The proposed procedure is not new and cannot be diminished by accusations of modernisation.
Mr. Luff: I do not know what the Minister intended by that intervention, but I had intended to make precisely that point—there is a 71-year-old precedent for the proposals. Perhaps, in the spirit of openness, I should declare at this point my chairmanship of the Conservative Friends of India group. It is important that we attest to the relevance of that precedent and the need for the procedure to be revived.
I was a little shocked by the radical nature of the proposal at first glance, but then I thought that if my hon. Friend the Member for Macclesfield (Sir Nicholas Winterton), a great and distinguished parliamentarian, recommends it, who am I to demur? However, I have three serious points to put to the Minister, because although it is not the official Opposition's intention to oppose the motion, it raises questions of some importance that must be answered.
My first question is: how will the trial be assessed? No doubt, if it is deemed to have succeeded, a motion to continue the trial will be laid before the House at the start of the next Parliament. I would therefore like to know precisely what procedures the Government intend to use to assess success or otherwise. We know from bitter present experience that trials are not always successful—one thinks of the fiasco regarding postal voting in the European elections. Trials can fail, and the Government must recognise that we regard what is proposed as very much a trial; they must not take our not opposing the motion as carte blanche to continue, willy-nilly, in the next Parliament.
Sir Nicholas Winterton: Seeking to remove responsibility from the Minister, may I tell my hon. Friend that I believe that, after a trial period, the Procedure Committee will examine the matter again as part of its ongoing duties to monitor the procedures of this place? Clearly, we shall tale evidence on how effective the new procedure has been, not least from the Welsh Affairs Committee and the National Assembly for Wales.
Mr. Luff: I am most grateful to my hon. Friend, although that raises a slight difficulty of timing. I do not know when the Procedure Committee intends to examine whether the trial has been a success or at what stage the Government will seek to revive the motion in the next Parliament. None the less, I am grateful to him and I am sure that his Committee, which I hope he will continue to chair in the next Parliament, will make an important contribution to the assessment of the trial.
Before I put my second point to the Minister, I should declare that I am a former member of the Welsh Affairs Committee. I see among those who may not speak others who were on that Committee with me As such, I think instinctively that the proposal makes sense.
My second point is that the very fine memorandum, written by the Clerk of the House, in the Procedure Committee's report shows the extraordinary complexity of such a simple concept. Of course, the report addresses a range of other options beyond the straightforward co-
78
operation involving the Welsh Affairs Committee, and considers other methods of "reciprocal enlargement"— a rather ugly turn of phrase. I want to ensure that the Minister is happy that the Government have properly addressed the concerns expressed in the Clerk's memorandum and that he foresees no difficulties in that regard.
Thirdly, do the Government plan to consider any other manifestations of "reciprocal enlargement"? There are four different models suggested in the Clerk's memorandum that go well beyond the relatively modest measure before us this evening. It would be helpful to know whether the Government are sympathetic to any of those other models, or whether they regard this measure as the end of the question.
To pursue the thin end of the wedge argument a little further, it strikes me that the Government already have other devolutionary schemes in place, and that others are planned. Might they therefore come before the House at some point to suggest a similar arrangement for the London Assembly, for example, or for the elected regional assemblies—should there ever be such things, which I personally find unlikely? Such proposals could have quite serious consequences for the sovereignty of this House, and I would like to know whether the Government have given any thought to that possibility.
The official Opposition have no objections to this trial, as long as it is precisely that, as long as it is properly judged before being made a permanent feature of the way in which our Welsh Affairs Committee conducts its business, and as long as it is not used as a wider precedent. It has been 71 years since something like this was last attempted, and it could well be another 71 years before we need to do it again, but we think that it is worth a trial.
7.2 pm
Sir Nicholas Winterton: I thank the Deputy Leader of the House for his opening remarks. On behalf of the Procedure Committee, I am glad to be able to support the Government's motion to implement the recommendations made in our third report. I should like to pick up on the question asked by my hon. Friend the Member for West Derbyshire (Mr. McLoughlin). Perhaps there will be other occasions on which I, as Chairman of the Procedure Committee, will be able to press the Government to provide time on the Floor of the House to give their responses to our reports and to debate those reports in full. I should like to take this opportunity to say that we would very much like not only a response but a debate on Sessional Orders and resolutions, as well as on our reports on procedures for debate, the role of the Speaker, and private Members' Bills.
In fact, I have just seen a member of my Committee, the hon. Member for West Aberdeenshire and Kincardine (Sir Robert Smith), indicating that we have received a reply on the issue of Sessional Orders, so I apologise to the Deputy Leader of the House. I hope that I understand the hon. Member for West Aberdeenshire and Kincardine correctly, and I would simply say that we would have liked a more positive

79
response than the rather bland one that we have received from the Government. However, this debate is not about that.
Mr. Forthrose—
Sir Nicholas Winterton: If my right hon. Friend wishes to intervene, I shall not refuse him.
Mr. Forth: My hon. Friend is being a bit overgenerous to the Government, if I may say so. Does he share my suspicion that the motion before us illustrates that the Government will bring before the House in a timely fashion those motions from his Committee that they find congenial, while failing or hesitating to bring forward anything that they find less congenial? Does that not give my hon. Friend a sense of unease?
Sir Nicholas Winterton: I am very tempted to respond to that question at some length, but I shall resist the temptation. My right hon. Friend's intervention leads me to the next comment that I was going to make, which is that the Leader of the House wrote to me less than three weeks after the report was published, to give the Government's response to it. I was gratified to receive such a prompt reply. My right hon. Friend was suggesting that the Government would respond speedily only to the reports that they liked and found it easy to respond to, but they have responded to this report pretty quickly, and I am grateful for that.
Perhaps, however, my right hon. Friend will think that I am following up on the gist of his intervention when I say that, in this case, this has happened mainly because the recommendations in our report are urgent because a draft Bill—the draft Transport (Wales) Bill—was published just before the recess. This is the Bill to which our experimental recommendation has been directed, so that pre-legislative scrutiny—of which the House is very much in favour—can be carried out jointly by the Welsh Affairs Committee and the Economic Development and Transport Committee of the National Assembly for Wales.
Mr. Woolas: It might help the Chairman of the Procedure Committee if I were to repeat what I said earlier to the right hon. Member for Bromley and Chislehurst (Mr. Forth), which was that it is not true that the Government give time only to reports with which we agree. We gave time to the report on the estimates procedure, and we have committed ourselves to finding time to debate the reports on Sessional Orders and procedures for debates before the summer.
Sir Nicholas Winterton: I am, as ever, extremely grateful to the Deputy Leader of the House—and the Leader of the House, for that matter—for indicating so clearly that there will be a debate on the Floor of the House on those critical Procedure Committee reports on Sessional Orders and resolutions, which are strongly supported by the authorities of the House, the Speaker and the Metropolitan Police Commissioner, as well as on the reports on the procedures for debate, the role of the Speaker and private Members' Bills. That is extremely important.
80
The draft Transport (Wales) Bill is the third Wales-only Bill to be published in draft. The draft National Health Service (Wales) Bill was considered by the Welsh Affairs Committee and by the National Assembly's Health and Social Services Committee, but the two Committees had to take evidence separately. Members of each Committee attended the meetings of the other, but as observers rasher than participants. There were similar parallel inquiries into the draft Public Audit (Wales) Bill.
The Welsh Affair Committee has recommended that there should be procedures for joint formal meetings, and the Government's response to our Committee's report agreed that this would be very helpful. They suggested that the House authorities should examine whether any procedural obstacles could be overcome. As we explain in our report, a joint working party of staff of this House and of the National Assembly recommended the procedural solution of "reciprocal enlargement". Our Welsh Affairs Committee could be empowered to invite members of a National Assembly Committee to attend and take part in its meetings, and the National Assembly could give parallel powers to its Committees to invite members of our Welsh Affairs Committee to take part in its meetings. The object of these arrangements is to ensure that proceedings always count either as proceedings of these Houses of Parliament or of the National Assembly, rather than falling between two stools. The working party's report, which is appended to our report, also makes suggestions on the practical arrangements for such meetings.
We therefore had an outline of how such joint meetings could be made to work. It was up to the Committee to decide, as the Deputy Leader of the House has said, whether such meetings were necessary or desirable. The Welsh Affairs Committee had also recommended joint debates between the Welsh Grand Committee and Members of the National Assembly, but although the same procedural and practical arrangements could apply, the Procedure Committee did not feel it right to recommend such debates at this stage and, in our report, we say that this matter requires further consideration. I am delighted that the Government agree with that conclusion and recommendation.
We have therefore recommended an experiment, limited in duration—I say this to my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) and my hon. Friend the Member for Mid-Worcestershire (Mr. Lull)—to the current Parliament. I agree that we do not know how long that will last, but we all agree that it could last a further two years. The proposal is for joint meetings of the Welsh Affairs Committee with any specified Committee of the National Assembly for Wales. That is what the motion before the House would authorise, and I hope that the House will support it.
We recommend, as the Deputy Leader of the House said, that a quorum of both Committees should be required to be present, and that the rules should be relaxed to allow use of the Welsh language in all circumstances. I am delighted that a Welsh Member—the hon. Member for Caernarfon (Hywel Williams)—is here, who will no doubt seek to catch your eye, Mr. Deputy Speaker—[Interruption.] He is the only

81
Welsh Member from the Opposition Benches who is present. I see that the right hon. Member for Swansea, East (Donald Anderson), the distinguished Chairman of the Foreign Affairs Committee, is also in his place—it is a pleasure to see him there, and I am delighted that so many Members representing the Principality, primarily Labour Members, have found time to be here. Clearly, this is an important debate as far as they are concerned. As I was saying, use of the Welsh language should be allowed in all circumstances. rather than only if requested in advance by a witness, as the Deputy Leader of the House also said. The National Assembly will provide interpreters.
In paragraph 10 of our report, we mention the possibility that joint meetings could also involve Committees of the other place. I am pleased to be able to tell the House that the Procedure Committee of the House of Lords has made a report saying that in principle it favours involvement by the Lords, and that it will watch our experiment with interest before making recommendations in future if appropriate. That indicates that we seek to be meaningful in the recommendations, and that both Houses of Parliament are important in respect of legislation. It is important that Committees of both Houses should be involved with the National Assembly.
The experiment that we are considering today may lead to wider use of joint meetings in future—I say "may"—but at the moment what we have in mind is the pre-legislative scrutiny of the draft Transport (Wales) Bill, which is of obvious concern to the Welsh Affairs Committee and to the Economic Development and Transport Committee of the National Assembly for Wales. Both Committees wish to examine the draft Bill, and they may well want to hear from the same sets of witnesses, so it seems sensible that they should be able to do that together.
Donald Anderson: The hon. Gentleman said in a rather pregnant way that this experiment might lead to other experiments in future. He will be well aware of the proposal for some European Grand Committee. In principle, might the Welsh Assembly and the Scottish Parliament, which have an important input in those matters, al so be considered for that Committee if it comes into being?
Sir Nicholas Winterton: I will do my best to avoid answering that question. The report from the Procedure Committee—as its Chairman, I am permitted only to respond on behalf of the Committee as a whole—is very specific. It is possible that in future the Procedure Committee may consider this matter again, and that the House may consider similar matters to see whether, in co-operating with other bodies, there may be ways of meeting together for discussion. I will not be led down a tricky and steep path, however, as the right hon. Gentleman would seek to lead me. That is a matter for the future.
Let us see how this experiment works. As I said in an intervention earlier on my hon. Friend the Member for Mid-Worcestershire, the Procedure Committee, as part of its duties and responsibilities, will return to this matter. Clearly, that will not be in this Parliament, but I hope that it will do so at the beginning of the next
82
Parliament, to see how the experiment has worked. I hope that the House as a whole, without division, will support this motion, which makes good sense.
7.16 pm
Mr. Paul Tyler: I am glad to follow the Chairman of the Procedure Committee, as it will enable me to make an even briefer speech than I intended. In the past, I have managed to do that, and I hope that this is also an appropriate occasion to do so.
On joint pre-legislative scrutiny with Members of the other place—I, too, have seen the report to which the hon. Member for Macclesfield (Sir Nicholas Winterton) referred—there is a problem when so many participants are involved in the exercise that it is not clear who will be the core of that group. We must think carefully about that.
In general, this is a sensible move. It is experimental and temporary, and my colleagues and I think that we should move more often in an experimental and temporary way, to test the water and to see how it works. That is the evolutionary way in which this Parliament has managed to do its business in the past. Sometimes, that evolution has been far too slow.
I heard the hon. Member for Mid-Worcestershire (Mr. Luff) refer to this as obviously not a radical reform, as it was supported by the hon. Member for Macclesfield, who chairs the Procedure Committee with such distinction. That is rather unfair, as, occasionally, he is radical, and sometimes he and I have been radicals together against the hegemony of the two Front Benches. I am glad that he is an independent soul in that respect.
Mr. Luff: I am entirely persuaded by the hon. Gentleman's argument. I wish to withdraw the earlier unintended insult.
Mr. Tyler: It is great to hear a Conservative Member say that being described as a radical is not an insult. I certainly agree with that.
I like the concept that has been developed by our Clerks of reciprocal enlargements. There is always something that our Clerks can tell us, even if it is only a new dictionary inclusion, and I am sure that it will end up in the dictionary. In the explanatory memorandum from the Leader of the House and his Deputy, a clear example is given of why this needs to happen. It refers to the pre-legislative scrutiny of the draft National Health Service (Wales) Bill, in which members of each Committee attended meetings of the other, but joint hearings were not possible, giving rise to a significant overlap of work. What a ridiculous situation. There is far too much overlapping of work in this building as it is, and that is why we should pass the motion this evening.
To show that I believe fundamentally in avoiding overlap, and that I intend to abide by my commitment to that, I will avoid duplication and tedious, time-wasting repetition, and I will not set out again the arguments that have already been put on the record so well by the Chairman of the Procedure Committee and the Deputy Leader of the House.
7.19 pm
Hywel Williams: Musing on the 1933 precedent, I felt that were I a sanguine man I would say that, 71 years later, Wales was achieving the status achieved by India in that year. As it is, I rejoice in the possibility that we may have independence in 15 years. It also occurred to me that I might be the sole speaker from the Welsh Affairs Committee today, but I was overjoyed to observe the arrival of our able Chairman a little earlier.
I dare to speak for some other Committee members in saying that we welcome this move. For my part, I welcome to a limited extent what is a limited move—the recognition of the effects of devolution and the possible redundancy of extra meetings in Cardiff and here. The experiment seems to have a practical purpose, and I hope that it succeeds. My party and I look forward to primary legislative powers for the Assembly if Lord Richards's recommendations are implemented—which, I suppose, would make the experiment redundant.
This may not be a subject for today's debate, but if we were discussing the possibility of a Welsh language Act—fervently desired by some of my countrymen and countrywomen—I would point out that the Assembly could have a pertinent and relevant input. I am sure that many Members would welcome a joint input from the Committee and the Assembly, without the need for separate discussions and separate presentations of evidence. Such streamlining would be much more economical and effective.
We would also welcome any influence that a joint Committee could have on Bills such as the forthcoming Public Audit (Wales) Bill—which, as far as I can see, replicates current legislation but with a "for Wales" tag. If I may say so, it does so rather unimaginatively, but that too is an issue for another day. Certainly, any development that could make legislation clearer and more adventurous would be welcome, as would be any hastening and increasing of the flow of Welsh legislation. The Assembly's record is pretty miserable in that respect, as is clear from a comparison of the number of Bills passed there with the number passed in the Scottish Parliament, where the hon. Member for North Tayside (Pete Wishart) may confirm that 10 times as many have been passed.
I would be glad of the opportunity to work through the medium of Welsh in the Committee. I have a certain facility in English and speak it when I must, but I commend the liberating effect of normalising this place's use of language—enabling it to employ all the languages spoken in these islands. Certainly, the use of both Welsh and English in the Assembly and the Welsh Affairs Committee has facilitated productive discussion rather than hindering it.
7.24 pm
Mr. Martyn Jones: I apologise for my late arrival, which was due to the usual London travel problems. I am sorry not to have been here for the Front-Bench speeches, but I understand from colleagues that there is support for this minor but, I think, important change in the way in which we deal with Welsh legislation. I consider it to be eminently
84
sensible. I did manage to hear the speech of the hon. Member for Macclesfield (Sir Nicholas Winterton), the Chairman of the Procedure Committee. As my Committee has pushed for it, it is gratifying that the Procedure Committee has proposed what is admittedly a one-off trial. After all, we ought to try out such arrangements to make sure that they work. Our relationship with the devolved institutions, particularly the Welsh Assembly where there is no primary legislative power, is evolving. This measure, although slight, would enable us to discover the views of our Back-Bench Assembly Members, and enable them to ask questions on behalf of those affected by proposed legislation during the process of pre-legislative scrutiny.
I do not want to take up too much time, because I understand that the speakers so far have supported the proposal. I will say, however, that it would be bizarre if those not in favour of devolution or not—crazily enough—in favour of pre-legislative scrutiny opposed a move that has nothing to do with either. In fact, it has to do with our ability to work with our colleagues in the Assembly to produce legislation that is workable and will do the business for both the Assembly and the House of Commons
Mr. Wayne David: I, too, welcome the proposal, and congratulate the hon. Member for Macclesfield (Sir Nicholas Winterton) on what his Committee has done. Given that it is a one-off proposal, however, may I ask whether any evaluation is planned? That would help us to learn the necessary lessons and build on them.
Mr. Jones: Our Committee will, as usual, submit to the House a report that will receive a Government response. In that report we will evaluate the implementation of the proposal, and the joint sessions will enable us to establish what Assembly Members think. I consider this a very good evolutionary measure.
Sir Nicholas Winterton: I am grateful for what the hon. Gentleman has said. Let me repeat what I said in an intervention on my hon. Friend the Member for Mid-Worcestershire (Mr. Luff) and also in my speech. At the beginning of the next Parliament, the Procedure Committee will assess how the experiment has worked. The experiment will apply to the rest of the current Parliament, and to a specific piece of draft legislation. The House, no doubt, will also review the position.
Mr. Jonesrose
Mr. Deputy Speaker (Sir Michael Lord): Order. I should point out to both the hon. Gentleman and the hon. Member for Macclesfield (Sir Nicholas Winterton) that one problem when Members arrive late is that they start dealing with matters that have already been dealt with some time earlier.
Mr. Jones: In fact I was about to finish my speech, but I then allowed interventions.
I am sure that the hon. Member for Macclesfield will produce a report and evaluate what has happened. I am confident that the arrangement will work well, and I thank the hon. Gentleman for what he has done.
7.28 pm
Mr. Eric Forth: I am not at all sure that this is a good idea. I am always suspicious when Members wallow in mutual self-congratulation, saying how wonderful a report is, how wonderful the idea has turned out to be, and how everyone welcomes it. The only comforting thing I have heard so far came from the hon. Member for Caernarfon (Hywel Williams), who pointed out that there had been less Welsh legislation than Scottish. I have never heard a better argument for keeping the Assembly as it is and looking askance at our poor cousins north of the border, who must now suffer an endless flow of ludicrous legislation from their rather ridiculous Parliament. I would have expected the Welsh people to draw the obvious conclusion that they should keep the Assembly as it is, in the hope that that would reduce the flood of legislation.
Here is a proposal that—contrary to what was said by the late-arriving Chairman of the Welsh Affairs Committee, the hon. Member for Clwyd, South (Mr. Jones)—has potentially profound constitutional implications, involving the relative roles of a non-legislative Assembly and its Members on the one hand and a sovereign Parliament on the other. It is dangerous to assert that intertwining those roles would be beneficial, and I am slightly surprised that the suggestion has received such a general welcome, even on a trial or pilot basis.
If we are to take seriously the much lauded, but overestimated, process of pre-legislative scrutiny and assume that it has the benefits that it is widely assumed to have, given that the phrase contains the word "legislative", we must consider the fact that it implies that we should introduce into the legislative process members of a non-legislative Assembly. That is a rather large step to take, so to dismiss it as a relatively trivial matter and something that can be easily welcomed, and to say, "It's only a trial, so we needn't worry too much", as has happened so far this evening, funnily diminishes the importance of the measure rather than having the opposite effect. I should have thought that the House would want to pause before rushing down that route, even though, as I am glad to note, the procedure would be on a trial basis and would last for only this Parliament. That makes me think, is passing, that if the Prime Minister were to succumb to the temptation that Tea Room chatter suggests that he might and call a snap election in October, none of this might happen at all, which would be a good thing. We might then have to return to the matter in a more leisurely way.
Mr. Luff: My right hon. Friend reminds me of a possible danger of the proposal. If the measure is passed as a device to facilitate pre-legislative scrutiny, surely it is possible that the Government would increasingly impose the Welsh Affairs Committee's agenda on it by giving it successive draft Bills for pre-legislative scrutiny. The Committee would thus have insufficient time to follow its own agenda and do its real job of scrutinising the Executive.
Mr. Forth: I am grateful to my hon. Friend for pointing out one of the many dangers that exist. We should not assume that two different bodies with different roles—if devolution has any point, the bodies
86
should be different—will always be able to work as harmoniously as has been implied during the debate. That raises several questions about how the interrelationship would function.
Privilege has been touched on during the debate, but it has not been explored and should not be taken for granted. I am pleased that we are at least insisting that if the bicephalous body is to function, a proper quorum of both its component parts must be present. I find that slightly reassuring, given the recurring temptation for quorums to be interfered with and diminished as Members of the House are less prepared to attend meetings. The safeguard is vaguely reassuring, but it gives rise to interesting procedural questions. For example, would Members of the House have priority over Assembly Members when speaking and participating in a joint meeting?
Mr. Woolas: Before the right hon. Gentleman carries his argument too far, will he accept that the recommendations from both the Welsh Affairs Committee and the Procedure Committee suggest that during the process of pre-legislative scrutiny—I assume that he supports that idea—only Members of this House should be able to vote and that Members of the Welsh Assembly should not be able to do that?
Mr. Forth: The hon. Gentleman intervenes to respond to a point that I have not made. I did not say anything about voting; I talked only about speaking. The simple procedural point that I raised, which will be close to your heart, Mr. Deputy Speaker, was whether different categories of Committee members would have priority over others when being called to speak or in the way in which they may participate. I did not mention voting because I agree with the hon. Gentleman that that matter is fairly clear. Such detailed and important points must be considered.
Although the documents before us examine privilege in some depth, I am not sure whether they are entirely satisfactory or conclusive. Hon. Members are covered by the historical concept of privilege, which is as it should be. However, it appears from the analysis that we have been given that Members of the Welsh Assembly are not similarly covered, but have partial protection. That gives rise to several questions. Will Welsh Assembly Members who participate in a joint meeting be covered by only their protection or will they have full privilege? Conversely, will Members of this House participating in a joint meeting chaired by a Member of the Welsh Assembly only be covered by the partial protection, or would they have full privilege? The Procedure Committee report mentions
"the marginally less protective arena of the National Assembly"
so there is a potential problem.
Mr. Woolas: The right hon. Gentleman raises an important point. The advice given by the Clerk of the House is that formal meetings of the Welsh Affairs Committee to which National Assembly for Wales Members were invited would be covered by parliamentary proceedings and therefore covered by absolute privilege. On the reciprocal point on the

87
National Assembly, that is also the case as relates to Members of Parliament. The answer to the right hon. Gentleman's important question is yes.
Mr. Forth: I am grateful to the hon. Gentleman, but that worries me. If what he has said is that an Assembly Member—not an elected Member of this House —participating in these joint proceedings would be covered by privilege of this House, it is an important constitutional step.
Mr. Woolas: The right hon. Gentleman is stretching it. Members of the House engaged in joint meetings are covered by privilege.
Mr. Forth: In that case, I am reassured that Members of the Assembly would not be covered, as that is the implication of what he hon. Gentleman said. You see, Mr. Deputy Speaker, these debates have a use. So often, when we have these debates, cease wallowing in mutual congratulation and start getting down to cases, the odd interesting and important point emerges. It is a revelation to some, I suppose, that debates on the Floor of the House still have their uses.
Mr. Luff: This is probably the single-most important issue of the debate, and perhaps it is something to which I should have addressed more remarks in my own contribution. I think I am correct in saying that all those who participate in Select Committee hearings—witnesses, or anyone else—are always covered by privilege. There is no innovation in giving privilege to a member of the National Assembly for Wales, because anyone who participates in such a hearing is always covered by privilege, including any witness.
Mr. Forth: That is useful, but it raises a subsidiary question. Is there any distinction between a joint meeting held in the Palace of Westminster and a meeting held within the Assembly premises?
Sir Nicholas Winterton: I refer my right hon. Friend to paragraph 7 of the report, headed "Privilege", which says—[Interruption.]
Mr. Deputy Speaker: Order. We now have another musical Member of Parliament.
John Robertson: My apologies, Mr. Deputy Speaker.
Mr. Deputy Speaker: We do not want these devices making noise in the Chamber. They should all be switched off before Members come in or, preferably, left outside.
Sir Nicholas Winterton: I thought for a moment, Mr. Deputy Speaker, that you were saying that I was waxing lyrical.
Paragraph 7 says:
"MPs taking part in NAW proceedings would need to be aware that they would not be protected if (for example) anything they said was held to have infringed someone's human rights. Attached is a note from the Counsel to Assembly Committees."
88
There is a difference, and those taking part in the debate should realise that.
Mr. Forth: I am grateful to my hon. Friend?I think—but things are now taking a turn for the worse because the ghastly human rights have intruded into our proceedings. What is worse, it now looks as if the ghastly human rights are going to inhibit the right of Members of this place to speak their mind if they are participating in one of these, I now think, increasingly dubious joint proceedings with the Welsh Assembly. I thought for a moment that we were about to achieve clarity but a fog has descended yet again over this matter, which is regrettable because—as my hon. Friend the Member for. Mid-Worcestershire (Mr. Luff) has said—it is of the greatest possible importance. We have had attempts to clarify the matter by the Deputy Leader of the House, another brave attempt by my hon. Friend, and the Chairman his done his best, but I am not sure that we are much further forward as a result.
Mr. Woolas: We are.
Mr. Forth: The Deputy Leader of the House says with great confidence that he is, but he will not have to participate in these increasingly dubious proceedings. Therefore, he will not be vulnerable in the way it now appears other Members of this House might be.
Let us have a go at something that is perhaps a bit clearer and on which we seem to have clarity. I hope the Deputy Leader of the House will verify the matter of translation. Many years ago, I had the burden of being a Member of the European Parliament and I had to participate in proceedings in which many weird and wonderful languages were used. In this instance, fortunately, we will lave to struggle with only two; for the time being, anyway. I know from my experience what a burden interpretation and translation can be. I was worried for a moment when I saw that we were to have two languages of participation, and I was reassured that paragraph 17 of the Procedure Committee report states that the National Assembly
"would be prepared to provide the required interpreters and transcribers."
I seek an undertaking that the Assembly will pay for all the costs of translation if we are to have a full Hansard in English of the proceedings. I do not want taxpayers to be expected to pick up the tab for exercises in languages other than English If the Welsh want to use two languages, with all the attendant costs, that is fine as long as the budget of the Assembly picks that up. I do not want the House of Commons to pay an additional cost for having a strange language interpolated into our proceedings.
I am glad that this, proposal will be only a pilot. I am not at all satisfied that it will be as productive as has been claimed and I think it will give rise to a number of problems. I am reassured that the Procedure Committee will return to this mater. I hope that it will cast a genuinely critical eye and will not simply accept, as is so often the case, that something that has been tried will automatically be deemed a success, or that somehow it would be difficult at the end to say, "Sadly, this has not worked as we expected and we should just lay it quietly to rest."

89
It may be that the end of this Parliament will provide a kind of natural end to this experiment, which might not be a bad thing because the next Parliament may want to look at it again. I have the greatest possible reservations and the constitutional implications have not been fully examined or considered. The very different roles played by this Parliament and the Assembly have not been taken into account, but at least we can look at the matters again. I remain to be convinced.
7.44 pm
Mr. Tony McWalter: I thought that I would add a word as a Back-Bench member of the Procedure Commie tee to endorse what the Chairman spelled out at some length. I want to make two points. The House should be grateful to the right hon. Member for Bromley and Chislehurst (Mr. Forth), who sometimes points out that things that might be taken as simple are in fact more complex than they might appear on the surface. I think that Hansard will show that this is a complicated matter. We certainly found that to be the case in our debates in the Procedure Committee, which is one reason why we wanted a relatively limited experiment to try to see how the complications would work through in a particular case. I assure the right hon. Gentleman that some of the points that he has raised formed part of our Committee debates.
In such arguments, it is important that we have a balance and look not only at the complications, difficulties and obstructions but at the positive side. One aspect strikes me strongly from our consideration of specifically Welsh legislation. This may not be the greatest example, but it was dealt with in this House. When we debated the Children's Commissioner for Wales, many of us wanted to understand the arguments for that move so that we could see whether they were compelling in dealing with children's matters in England. Speaking as secretary of the all-party group on children and young people in care, for much of that time I felt as if we in the rest of the United Kingdom were unaware of some of the matters being raised in the Welsh debate. One aspect of the suggestion before us, therefore, is simply that we all have the capacity to learn from one another. I believe that that can benefit the way in which these islands are governed.
My second point concerns finance and money. It must strike people as crazy that the same arguments are repeated in many different places when those who can profit from the powerful arguments being adduced and who have the responsibility to act on them could hear the arguments themselves rather than repeats of them, or repeats of repeats of the arguments. They would then have the opportunity to share whatever wisdom other people who have heard those arguments have. That is particularly important on complex and technical issues—I speak as a member of the Science and Technology Committee—that sometimes require much argument. Some of those arguments stretch the understanding beyond, or to the limits of, what some of us can cope with. If we want a Parliament better able to take informed decisions, it is important that it tries to adjust some of its structures so as to be better informed and able to think matters through more carefully, in line
90
with the emphasis on pre-legislative scrutiny, which is a remarkable improvement in the way in which government is conducted.
I not only commend the report to the House, but hope that its consequences will be that we see the benefits of such an arrangement and—agreeing with the right hon. Member for Bromley and Chislehurst—its complications. We can then make whatever changes are necessary to achieve the report's laudable aims without running aground on rocks in waters that we have not previously charted.
7.49 pm
Mr. Woolas: With the leave of the House, I thank right hon. and hon. Members who have taken part in this debate, which on the whole has been consensual, although I accept that the right hon. Member for Bromley and Chislehurst (Mr. Forth) made some points—particularly on parliamentary privilege, which I shall address—that need consideration.
I re-emphasise my thanks to the hon. Member for Macclesfield (Sir Nicholas Winterton) and his Committee, and to my hon. Friend the Member for Hemel Hempstead (Mr. McWalter), who is a member of it. These are House matters, but they are important as we work out the proceedings for the consideration of matters relating to devolution. It says in my brief that I should thank the Chairman of the Committee, which is right and proper. but it is also well meant, because the Committee takes time to consider these matters. I also thank my hon. Friend the Member for Clwyd, South (Mr. Jones) for explaining why the Welsh Affairs Committee has requested the power to hold joint meetings with the National Assembly for Wales, and how it is planning to make use of its powers. I am grateful to the hon. Member for Mid-Worcestershire (Mr. Luff) for his support. He recognises that this is a House matter.
I should like to clarify the point about privilege, because it is important. However much other Members—not least myself—may jib at the contributions of the right hon. Member for Bromley and Chislehurst in such debates that go on into the evening, it is important to put this point on the record. Both Members of the House of Commons and Welsh Assembly Members would be covered by full parliamentary privilege when taking part in an extended meeting of the Welsh Affairs Committee, wherever that Committee met—in Cardiff, here or elsewhere. We are not tonight debating whether the National Assembly for Wales should extend reciprocal arrangements but whether, as the Chairman of the Procedure Committee explained, should our Members be invited to participate in meetings of a National Assembly for Wales Committee, they would be covered by the slightly more limited privilege enjoyed by the National Assembly. Assembly Members would be covered by full privilege when participating in our proceedings, and our Members would be covered only by the more limited privilege of the National Assembly for Wales. It is important to put that on the record.
The debate has been consensual, for which I am grateful. This is an experiment, for the lifetime of this Parliament, and there is no compulsion on the House to carry it forward.
Mr. Forth: I do not know whether the Minister is reaching the conclusion of his remarks, but will he be able to answer my question on the cost of translation—of getting the Welsh that may be used in the joint Committee proceedings properly into our Hansard in English?
Mr. Woolas: The right hon. Gentleman makes an important point. When the National Assembly for Wales meets, and when its Committees deliberate, it is automatic that interpretation and translation are provided. That is one of the advantages of the meetings of the Welsh Affairs Committee taking place in Cardiff and other parts of Wales. The Welsh Grand Committee, too, has that facility when it meets. That is not necessarily the case when the Welsh Affairs Committee meets in Westminster but, if advance notice of that requirement is given, it is facilitated. The right hon. Gentleman, who is ever vigilant about taxpayers' money, as are we all, especially the Government, need have no concern over his question—he can relax.
Hywel Williams: I am grateful for the opportunity to make what is in some ways a rhetorical point. Using two languages is no problem for someone such as me. This is in fact a facility for people who are not bilingual, and some people would argue that the cost of such a facility should be borne by people who are not bilingual rather than by people such as me, who are.
Mr. Woolas: That is an important point, but I would point out that currently, when the Welsh Affairs Committee takes evidence from witnesses who wish to speak in Welsh, the costs of translation fall to the House, so what is proposed would represent an economy and I would have thought that hon. Members would welcome that. That is not merely a debating point. The right hon. Member for Bromley and Chislehurst furrows his brow and looks perplexed. He cannot cope with the idea that
92
we can benefit from Welsh translation. I would have thought that he would welcome the extension of pre-legislative scrutiny. He fails to shake or nod his head.
I recognise that some hon. Members have concerns about involving non-Members in the formal proceedings of this House, which is why it is right that the Procedure Committee and the Welsh Affairs Committee have recommended a cautious approach—this is an experiment—and the Government agree with that. This is a coming together of modernisation and cautious traditionalism, which surely must be right in improving the way in which we do our business.
That is why the Procedure Committee recommended this modest experiment before coming to its fully considered view. and I believe that this is a sensible approach, which incidentally extends the good facility of pre-legislative scrutiny, which even the right hon. Member for Bromley and Chislehurst supports. He did not say so today, but he has expressed that point of view before. It may cause some Government Members to have reservations about supporting the measure—
Mr. Tyler: Me, too.
Mr. Woolas: Despite that remark, the hon. Gentleman welcome I the proposal and said that it was "quite sensible", and I am grateful to him for that. I recommend the proposal, on behalf of the Committees, to the House.
Question put and agreed to.
Resolved,
That this House approves the Third Report of the Procedure Committee, on Joint activities with the National Assembly for Wales, HC 582; and that the following Order be a Standing Order of this House until the end of the present Parliament:
The Welsh Affairs Committee may invite members of any specified committee of the National Assembly for Wales to attend and participate in its proceedings (but not to vote).'.

Nomination of Select Committees
Mr. Deputy Speaker (Sir Michael Lord): I advise the House that Mr. Speaker has selected the amendment in the name of the right hon. Member for Bromley and Chislehurst (Mr. Forth).
7.57 pm
The Deputy Leader of the House of Commons (Mr. Phil Woolas): I beg to move,
That the Standing Orders be amended as follows—

(1) In Standing Order No. 15 (Exempted business), line 18, leave out from 'committees' to 'which' in line 20 and insert 'to which that paragraph applies'.

(2) In Standing Order No. 121 (Nomination of select committees), line 10, leave out from 'under' to', or' in line 13 and insert 'the Standing Orders of this House (with the exception of the Liaison Committee, the Committee of Selection, the Committee on Standards and Privileges and any Committee established under a temporary Standing Order)'.

The motion was tabled at the request of the Committee of Selection and has the support of Opposition spokesmen. I see that the hon. Member for Mid-Worcestershire (Mr. Luff) is nodding. The proposal is to extend the Committee's remit to make it responsible for proposing to the House nominations not only for the departmental and domestic Committees but for most of the other Select Committees established under Standing Orders.
An explanatory memorandum has been provided setting out clearly how the motion would amend the Standing Orders. The amendment to Standing Order No. 121(2) would provide for the Committee of Selection to propose nominations for all the Select Committees appointed under Standing Orders, with the exception of the Liaison Committee, the Committee of Selection, the Committee on Standards and Privileges and any Committee established under a temporary Standing Order—the Modernisation Committee, for example. The Committee's remit would not extend to those Committees set up under Sessional Orders—for example, Joint Committees on draft Bills.
The right hon. Member for Bromley and Chislehurst (Mr. Forth) has tabled an amendment, which he will no doubt move, and I shall attempt to answer his points, but it may help if I explain to the House the thinking behind the exceptions. It would be inappropriate for the Committee of Selection to nominate itself—in fact, at the beginning of a Parliament, it would be impossible, since it would not exist. The Liaison Committee is largely a Committee of Chairmen, and its membership is established by temporary Standing Order. The Standards and Privileges Committee, as I am sure we would all agree, is very much one of a kind: the House has agreed that the normal rules of party balance should not apply to it. Its Chairman is here and I hope that he will express his support for the motion. It is appropriate that the membership proposed to the House should be agreed by discussion through the usual channels. For Committees set up under temporary standing Orders, as well as those set up under Sessional Orders, discussions on membership normally take place as part of the dialogue in the usual channels, so it is appropriate for current practice to remain in that case.
Standing Order No. 15(1)(c) provides that motions proposing nomination or discharge of members of departmental Select Committees, if first objected to, are
94
debatable on a subsequent day for up to one hour after the moment of interruption. The amendment to Standing Order No. 15 would extend this provision to all the Committees that fall within the extended remit of the Committee of Selection.
I believe that this is an uncontroversial change. The Committee of Selection does its job well, as the whole House will agree, and it seems to make sense for it to take on the wider task. I urge the House to support the motion.
8.1 pm
Mr. Peter Luff: I am grateful to the Minister for his warm endorsement of the motion, because it has its origins within the Committee of Selection, of which I have the privilege to be a member. The Chairman very much regrets that he cannot be here, as he would have liked to contribute to our consideration of this important but modest motion.
I express genuine gratitude to my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) and to nationalist Members, because the only reason that we are having this debate is that they objected on four separate occasions to the motion going through on the nod. They are right to object to such a proceeding, as we should be able to find time for a short debate to enable the issues to be aired. The selection of the amendment shows the importance of having a debate on the motion's precise ambition. As so often, my right hon. Friend is the grit that helps to make the pearl in the oyster of parliamentary democracy. It may be uncomfortable for us, but often the result is better legislation.
I am wearing two hats today: I am a member of the Committee of Selection as well as spokesman for the official Opposition. I can confirm that the idea commends itself not only to the Committee but to the official Opposition. Indeed, it would be odd if it did not commend itself to me, because I am going to take the credit for having the idea. Success has many fathers, but failure is an orphan. Many people would like to take the credit, and many perhaps deserve to, but, in the formulation of a Hollywood film, it is from an original idea by the hon. Member for Mid-Worcestershire with valuable research by the Clerk to the Committee—
Pete Wishart: Will the hon. Gentleman give way?
Mr. Luff: Not before I have finished the credits: screenplay by the right hon. Member for North-West Hampshire (Sir George Young), who formalised the proposal; produced by the Committee Chairman, the hon. Member for Blaydon (Mr. McWilliam); and directed, I am glad to say, by the Leader of the House and his able deputy. On that note, I give way.
Pete Wishart: This is clearly a production not to be missed. Given that it was his idea, does the hon. Gentleman believe that, as the Committee will have these increased powers, it is now appropriate that a minority party Member should also serve on it?
Mr. Luff: I would not overstate the extent to which the Committee is being given additional powers. The

95
hon. Gentleman, for whom I have great respect and affection, was instrumental in keeping me off the Committee for many weeks, while he repeatedly objected to my membership of it—not, as he said when we eventually had the debate on the Committee, because he had anything against me personally, but because it provided him with the opportunity to debate precisely the point that he has just raised. I have got news for him: were he to serve on the Committee of Selection, he would not find it the most riveting Committee in this place. I look to another of its members—my right hon. Friend the Member for North-West Hampshire—with some nervousness concerning how many secrets I can give away. However, I can say that its meetings regularly take less than five minutes and are conducted on a consensual basis, with the arguments being had beforehand, although not always. I hope that the hon. Member for North Tayside (Pete Wishart) agrees that the interests of the Scottish National party and Plaid Cymru are being dealt with more effectively now that they are being looked after by the Government, instead of the Liberal Democrats. They certainly seem to be being looked after well in the Committee of Selection.
I have no objection to the nationalists joining the Committee of Selection. I thought that the hon. Member for North Tayside wanted to make the rather broader point—I suspect that he will seek to do so later—about membership of nationalist parties on other Committees. I am sorry that, because of the relative paucity of places for members of nationalist parties, he himself does not currently have the privilege of serving on any Select Committee.
Pete Wishart: I am on the Catering Committee.
Mr. Luff: I am sorry—I have been taking a cheap shot. I hope that the hon. Gentleman's attendance on the Catering Committee is rather better than that of his Plaid Cymru predecessor, who attended only one meeting out of seven in the previous Session.
Pete Wishart: I have been to them all.
Mr. Luff: I am delighted to hear that. The Catering Committee is a Committee of much greater power in this place, I am afraid, than the Committee of Selection, but I digress from my path.
The Deputy Leader of the House moved the motion in a very matter-of-fact way, and rightly so. Despite the best attempts of the hon. Member for North Tayside, I have been a member of the Committee of Selection for some two years, and I am still regularly confused as to which Committees we can and cannot nominate. I do not feel too ashamed in making that confession, because I know that the Government Whips have a similar difficultly, and it should also be admitted that the Committee Clerks experience the same difficulty sometimes. There is absolutely no logic at all to the current selection of Committees for which the Committee of Selection can select. I will not regale the House with a long list of the various Committees that can and cannot be nominated, but, for example, we can
96
nominate members of the Accommodation and Works Committee and of the Administration Committee, but not of the Broadcasting Committee. I cannot think why that should be so.
One thing that I have learned in politics is that it is sometimes wise to ask the stupid question. At a meeting of the Committee of Selection, I asked why we can nominate the members of some Committees but not others and the Clerk promised to produce a note explaining the background. In my innocence, I thought that there would be a rational explanation. I expected some powerful logic to be offered as to why certain Committees come before our Committee and others do not, with the others having to be dealt with by the whole House under a motion tabled by the Government.
Of course, the Clerk's very helpful note to the Committee of Selection pointed out that there was no logic; it was just one of those accidents of history. So it was that the Regulatory Reform Committee was set up under Standing Order No. 141, the European Scrutiny Committee was set up under Standing Order No. 143, the Public Administration Committee was set up under Standing Order No. 146, the Procedure Committee was set up under Standing Order No. 147 and the Environmental Audit Committee was set up under Standing Order No. 152(a). The arrangement was just a series of accidents. It is time to put those accidents right and to give the House a better understanding of how it nominates its Committees.
I use the phrase "tidying up" with some nervousness, because the Leader of House has himself used that phrase in relation to rather more ambitious proposals for the future conduct of European affairs. But I genuinely believe that this is a simple housekeeping measure that will be of great benefit to everyone concerned in the process of nominating Committees. Having said that, I have some sympathy for the amendment tabled by my right hon. Friend the Member for Bromley and Chislehurst, which would tidy up the motion even more thoroughly. Although the Deputy Leader of the House provided a brief explanation as to why certain Committees should still be nominated on the Floor of the House and not by the Committee of Selection, I did not find his reasons terribly convincing. I should be interested to hear what my right hon. Friend the Member for North-West Hampshire has to say; as Chairman of the Standards and Privileges Committee, his views should carry weight in the House.
It is right and proper that we do not appoint members of the Liaison Committee, which is effectively an ex officio Committee, and obviously we cannot appoint ourselves, because as the Deputy Leader of the House said, that would be completely impossible. But I need a little more persuasion as to why the other Committees cannot be appointed by the Committee of Selection. We know that, in practice, all these Committees are negotiated using essentially the same mechanism. The involvement of the Committee of Selection would provide even greater clarity. The Committee of Selection can debate the merits of the composition of a particular Committee should it wish to do so; indeed, it did so recently in respect of a particular Standing Committee. The House could then debate such appointments subsequently if they are controversial.

97
I genuinely welcome the fact that this tidying-up measure also provides an opportunity to debate all Committees, whether or not any controversy attaches to them. There have been occasions, under this Government and the previous Government, when nominations to Committees have been controversial and debates on the Floor of the House have been necessary—not just to make a point about the minority parties, but to discuss the individual Members proposed to serve on such Committees.
I welcome the motion and I am delighted that the Government have found time to table it. I am grateful for that because it will make all our lives a great deal easier, but the Government need to answer the questions raised in a little more detail than they have so far been able to. My right hon. Friend the Member for Bromley and Chislehurst will surely offer some powerful arguments for even greater simplicity and clarity.
8.11 pm
Mr. Paul Tyler: I am delighted to follow the hon. Member for Mid-Worcestershire (Mr. Luff). He and I worked together in real life before coming to this place, so I suppose that I should not be surprised at the cheerful effrontery with which a member of the Committee of Selection has apparently defended its right to do this job on behalf of the House—a point to which I shall return.
I am sure that the Deputy Leader of the House has read with care the Modernisation Committee's report on nominations to Select Committees. If he has not done so, I am surprised, because in the previous debate he made great play of the need for the House to listen to those who do the real work behind the scenes. He will doubtless also recall the extremely important report that the Modernisation Committee produced, under the chairmanship of the right hon. Member for Livingston (Mr. Cook), in the 2001–02 Session, a subject to which I shall also return.
As has been said, the reason the report on Select Committee nominations was produced was that the Government made some very controversial attempts to remove key members from key Select Committees—members who were expected to take the Chair. The House literally revolted against the attempt by the usual channels to impose the Government's will, and in July 2001 the Government's attempt to make such changes was defeated—the House acted very speedily, as all Members will recall—and they had to come back within a few days with a revised motion.
As a result, the Modernisation Committee, of which I was delighted to be a member at the time, spent a long time taking evidence from members of the Liaison Committee. It examined in advance a number of reports that had considered this issue, and it produced an exhaustive examination of the most appropriate nomination process for membership of these very important Committees. On the one hand, it sought to balance expertise, special interest and special viewpoints, while on the other hand maintaining party ratios. It was a difficult job and we spent many weeks on it, but the report to which I referred offered a very careful suggestion, based on that evidence. As the Deputy Leader of the House said in the previous debate,
98
we must give credit to those who do such work on behalf of the whole House, and I hope that he will recognise the validity of that examination process in his response.
At this point, I, too, should make a confession. In admitting to being a member of the Committee of Selection, the hon. Member for Mid-Worcestershire was insufficiently contrite. I was a member of that Committee for four years, as my party's Chief Whip. We had weekly meetings, and I can say with truth that they were interesting—mainly for their brevity. On one occasion when, as the most senior Member present, I was in the Chair, the meeting lasted 30 seconds. That was not unusual. Indeed, over those four years, because of the way in which the business was carved up, the total amount of time that I was asked to devote to that important exercise was probably less than four hours. I can hardly say that being on the Committee took a huge amount of time.
Pete Wishart: Does the hon. Gentleman believe that that was enough time, given the onerous and difficult responsibility of the Committee of Selection to ensure that we have the right placements for departmental Select Committees? I am shocked and amazed that it could sit for only 30 seconds to consider some of those matters.
Mr. Tyler: If the hon. Gentleman had been present when we debated the report of the Modernisation Committee he would have heard me make the same comment. That is precisely why I and the Select Committee of which I am a member, under the then leadership of the right hon. Member for Livingston, proposed to take that responsibility from the Committee of Selection, open the process up and make it more transparent and more responsive to the House, instead of occupying a small Committee Room for 30 seconds or so each week for that important exercise.
I agree with the hon. Gentleman, and that is why I have real doubts about the recommendation. To hear the hon. Member for Mid-Worcestershire say that this is simply housekeeping and tidying up fills me with alarm. I hope that it will not be thought to be a permanent and satisfactory answer to a real problem.
Mr. Luff: Is the hon. Gentleman not confusing two separate issues? At present we have a system of selecting Committees that works—I think that it works well and the hon. Gentleman does not, but that is a different point. However, he is now discussing a different issue, which is whether the way in which we choose Committees should be changed. So long as we have the present system, is this not a tidying up and an improvement?
Mr. Tyler: That may or may not be so, but the motion invites us to consider the whole issue of the nomination of Select Committees. The hon. Gentleman may choose to interpret that in a certain way, but if he looks at the Order Paper he will find that the motion is described as relating to the "Nomination of Select Committees". That is why I intend to refer to the extremely important debate that took place in May 2002, based on the report published by the Modernisation Committee in February 2002.

99
Paragraph 7 says:
"The controversy provoked by this episode"—
the episode to which the hon. Gentleman and I referred"—
"made it clear that the current method of nomination, which gives a central role to the Committee of Selection, no longer enjoyed the confidence of the House".
It clearly did not, and for us to return to this subject again two years later without facing the issue seems at worse perverse and at best an ill-advised attempt to tinker with a system that is so plainly wrong that we should be more radical—if I may dare to use again the word that the hon. Gentleman so enthusiastically endorsed.
There were then many proposals made to improve the situation. I am sure that the Deputy Leader of the House knows the report backwards, because he could not have attempted to introduce the debate without a full briefing on it from his civil servants; it is the critical report on the basis of which all this should be conceived.
Paragraph 9—I shall have to read this in full, because it is so important to the debate—says:
"The Committee of Selection has come to interpret its role as limited to confirming the proposals put to it by the front benches on both sides".
The hon. Member for North Tayside (Pete Wishart) and I will agree that the term "both sides" is pejorative in this context. The report continues:
"This may be understandable in view of the Committee's main function of nominating Members to the standing committees on bills where party discipline is directly engaged, but has produced criticism that the Committee of Selection is no longer an appropriate mechanism to guarantee the independence of the nominations to the committees of scrutiny. Any new method of nomination needs to be independent, authoritative, transparent and able to command the confidence of the House on both sides. We endorse Lord Sheldon's comment in his evidence to us: 'the Executive, via the Whips, ought not to select those members of select committees who will be examining the Executive, that is crucial.'"
That is the Select Committee that has considered the issue; it is not the Committee of Selection saying that it would like to do more and does not understand the current rationale. It is a Committee of this House saying that the use of the Committee of Selection is not an appropriate way to undertake the job.
The report continues by saying that a recommendation could be made to the House that met the necessary requirements of balance and of parliamentary party involvement in the exercise, but which also provided a form of appeal. That is exactly what was discussed, and the recommendation in paragraph 12 says:
"In our judgment what is required is not an alternative to the party process but a fail-safe mechanism to ensure fair play and to provide a court of appeal."
Anybody who has served on the Committee of Selection knows that there is never an application from any individual member saying, "I've been maligned. The party Whips don't like me because I have difficult views.
100
They've kept me off this Committee because they feel I would not be a supportive member of my party." In those circumstance, it is clearly absurd that the Committee should be given that responsibility—under this motion the extended responsibility—of appointing members to Select Committees.
I shall not attempt to read out the whole report, because that would be boring at this point, but I remind Members that we came up with a perfectly workable solution to the problem of the difficult balance—to have a new Committee of nomination that would be representative of the whole House, not just of a few people who happened to be Whips in their respective parties. Effectively, that would have taken the issue away from the usual channels.
I believe that the hon. Member for Mid-Worcestershire was in the Conservative Whips Office at the time, and I am not sure that the Deputy Leader of the House might not have been in the Government Whips Office, too. Sadly but significantly, on the evening of that debate in May 2002, when the proposals were put to the House by the right hon. Member for Livingston in an impassioned speech on behalf of the whole House—the Back Benchers, people who have real concerns and interests, and specialist knowledge that they could bring to the Select Committees—they were defeated.
The proposals were defeated by an unholy conspiracy of the Conservative and Labour Whips Offices, which worked together because they saw the power being taken away from them. I have been the Chief Whip of my party, but I never regarded this issue as an appropriate one on which the Whips Offices should dominate the way in which the House fulfils it duties to the electorate. I always considered that inappropriate and, sadly, that evening, it was only too evident that those who had a special interest in retaining their power base were determined to retain it.
Since then, that power of patronage has increased, because the House has decided to pay Select Committee Chairmen an extra salary. With a number of my colleagues, I opposed that, and members in all parts of the House had doubts about it. Now the Whips have a greater power over who should go on and who should stay off those Select Committees. I have great respect for the great majority of Select Committee Chairs, but if there is anything to be said for the power of money—I occasionally hear from both sides of the House that money, such as pension rights and so on, is important in such matters—it is undoubtedly true that that influence is even greater. Such patronage reverts to the 18th century level, which I believe to be entirely inimical to the good governance of this place.
It was a sad evening when a relatively small majority defeated that proposal. Tonight here we are again, apparently—the hon. Member for Mid-Worcestershire used the phrase "tidying up", but all we are doing is giving more influence to that inadequate mechanism, the Committee of Selection. It will now be able to nominate more members to more Select Committees—but the Committee does not actually do that job. The Committee, in face, merely accepts recommendations from the Whips.
Mr. Woolasrose
Mr. Luffrose
Mr. Tyler: I see that both sides wish to intervene. To make a level playing field, I should first give way to the Deputy Leader of the House.
Mr. Woolas: The hon. Gentleman is making an impassioned speech against the usual channels, but does not the motion simply cover the Committees not covered by the Standing Orders for the Committee of Selection? This is not a conspiracy, but a tidying-up exercise.
Mr. Tyler: Members on both Front Benches have now referred to a tidying-up exercise, so there clearly is a conspiracy. The Minister, I fear, does not convince me: two wrongs simply do not make a right. The fact is that the present mechanism is wrong and that if we add more to it, giving more power to the people who make proposals, we will simply make it even more wrong.
The right hon. Member for North-West Hampshire (Sir George Young) serves on the Committee of Selection, among his many other onerous responsibilities in the House. I shall be interested to hear whether he agrees with my assessment of how that Committee operates. It may be that it has changed since my time and that there is now intensive debate about the relative merits of those put for ward to serve on Committees. If that is so, it is not evident from outside. The right hon. Gentleman is, I think, the sole independent Member on the Committee—
Mr. Luff: There are two.
Mr. Tyler: I am corrected. It may be that those two Members are regularly lobbied by Back Benchers such as the hon. Member for Pendle (Mr. Prentice), who may say that he has great expertise on a particular issue but has been overlooked by the Whips because, just occasionally, he tends not to follow their advice. It may be that he has, on occasion, been able to lobby the right hon. Member for North-West Hampshire and has managed to gain a place on a Select Committee to which he would bring great expertise and great distinction. If so, it has not been evident. Certainly, in my own experience, on no occasion during my four years on the Committee was any alteration what soever made to the recommendations brought by the Whips. It is, in effect, a Whips' carve-up, and the way in which the Modernisation Committee has referred to it is interesting.
Mr. Luff: The hon. Gentleman makes an impassioned speech but is building his argument on foundations of sand. I have some sympathy for what he says about other means of selecting Committees, particularly Select Committees, but how does he imagine that the Regulatory Reform Committee, the European Scrutiny Committee and the Public Administration Committee are currently selected? They are selected by the Whips, who choose their members behind closed doors with no opportunity for debate. At least the Committee of Selection provides an opportunity for debate. The
102
motion opens the process up a bit—not much, I agree, but a bit—and I fear that the hon. Gentleman's arguments are completely wrong.
Mr. Tyler: I hear what the hon. Gentleman says but he is completely wrong himself. As I said to the Deputy Leader of the House, two wrongs do not make a right. If the hon. Gentleman can persuade me that there have been regular debates in the Committee of Selection—half an hour or an hour of discussion of the relative merits of different people being placed on Committees—I shall be convinced, but I do not believe that to be the case; in fact, I know that it is not. We cannot simply pass the motion without recognising the trenchant criticisms made of the process by all members of the Modernisation Committee, particularly of the way in which the Committee of Selection does its work.
Mr. Gordon Prentice: Would it not be sensible for all political parties to lodge in the Library of the House of Commons a copy of the procedures that they use to propose names for Select Committees? I raised that point with the Leader of the House a couple of months ago but it did not find favour. If the process were transparent and public, it would be encouraging.
Mr. Tyler: That is a valuable point, and I am glad that the hon. Gentleman is here to make it. The Modernisation Committee recognised that point but did not think it could impose on the parliamentary parties a rule about how they should act, even if transparency requires that the process by which nominations are made should be evident to all, not least for the benefit of members of particular parties, since it is not always entirely clear, even to them, why members are selected for nomination or deselected or not nominated. The Modernisation Committee said:
"In the great majority of cases the party process will produce an outcome which commands consensus support within that party. For many years there was no substantial dissent from the outcome of the nominations to select committees. We do not seek to supplant those internal party processes, nor do we wish to undermine them."
The point is that if it were self-evident that there was an effective process by which names came forward, it would strengthen the way in which members of Committees were nominated.
I should turn briefly to the amendment. It is difficult to respond to an amendment before it has been moved; I have been in the position myself of not having done so. I have some sympathy with the point identified in the amendment about the exclusions, particularly the temporary exclusions. I hope that the right hon. Member for North-West Hampshire, as chairman of the Standards and Privileges Committee, will explain his position, and I am prepared to await his views before I make a judgment. However, there cannot be a very good case for treating temporary Committees any differently from permanent ones. I can see no logic to that, and I hope that the Deputy Leader of the House will come back on the point.
The motion is not a tidying-up exercise but a bit of tinkering when what we need is radical reform of the way in which we appoint Members to extremely important Select Committees. It is unfinished business, and I hope in due course that the relatively new Leader

103
of the House and his deputy will return to the point so that we can do properly the job of persuading the House, which we unfortunately failed to do last time.
8.31 pm
Mr. Eric Forth: I beg to move, To leave out from first 'Committee' to end and add
'and the Committee of Selection'.
Whether the motion is tinkering or tidying, it would appear that the argument is finely balanced. What is fascinating is the extent to which my hon. Friend the Member for Mid-Worcestershire (Mr. Luff) and the hon. Member for North Cornwall (Mr. Tyler) have lifted the lid on what is supposed to be one of the most secret of our activities—the way in which the House nominates Members to Committees. It is supposed always to have been a great mystery, but now we know more about it than is perhaps healthy.
If the debate has done nothing else, it has shed some light, though, frankly, to our shame. I must agree with the thrust of what has been said so far. I am drawn to the conclusion that the motion is a slight improvement on a very unsatisfactory process. My only hesitation is that when speakers from both Front Benches say that they agree with a motion, I wonder whether the rest of us should. On this occasion, and rather unusually, my judgment, on balance, is that the motion is a tiny step forward.
Mr. Woolas: Does the right hon. Gentleman have the good grace to accept that the Government have given time to debate the issue, which is hardly consistent with not wishing to bring transparency?
Mr. Forth: That is chutzpah, if ever I heard it. The only reason why the motion is before us today is that it was originally objected to—when the hope was, as often, that it would quietly slip through. My amendment probably helped a little in the process. For the Government to claim that it is thanks to them that we are having this debate is a bit of a try-on, to put it mildly. I accept that we are here at last and having this debate—for that I should be slightly grateful—and if I could extend my speech for another hour and 27 minutes, the damn thing would not make any progress at all. However, I am not quite in that mood tonight, and that is not my intention. I am glad that we are having this debate.
I shall press my amendment, when necessary, because I want it to be considered. I am encouraged in that, so far, my hon. Friend the Member for Mid-Worcestershire has said that my amendment is sensible, and the hon. Member for North Cornwall has echoed that view. I am grateful to them for that. I agree that the Minister was unduly and briefly dismissive of the amendment without providing any proper reasons. I shall say just a few words about it, because I do not wish to delay the House on this occasion.
My feeling is that what lies before us today is a very small advance on a rather unsatisfactory position. For that reason, I believe that we should give it our support. I was mystified when the argument was initially
104
advanced that the Liaison Committee and the Committee of Selection were the only ones to be excluded. That is only common sense, as the Liaison Committee is effectively a by-product or an ex officio body, and, as has already been said, a Committee of Selection cannot select itself, but I cannot for the life of me see why all the other Committees should be excluded from the process till at we are now being invited to endorse.
I accept that the views of my right hon. Friend the Member for North-West Hampshire (Sir George Young) will be crucial, because of the important role played by the Standards and Privileges Committee. If he said that he believed that his Committee should also be brought within the ambit of the Committee of Selection, I would argue, as the amendment does, that all the other Committees should, too. If my right hon. Friend is in an expansive and lid-lifting mood, he may reveal a little of what goes on in the committee of Selection. At least it provides an opportunity for debate and deliberation by Members other than what we call "the usual channels"—in other words, the Whips. It should give us all a tiny degree of comfort to know that it is not the Whips who are carving everything up and that at least someone else has the opportunity to intervene in the process and to speak for the Back Benchers or Members who may not be nominated. That provides at least a ray of hope—I put it no more strongly than that.
All in all. I am prepared to support the measure, but I urge the House to support my amendment, which I will press at the appropriate point. Unless the Deputy Leader of the House can give a much more persuasive and cogent reason why my amendment should not be accepted, I believe that it would strengthen the purpose and allow us to move a little further forward. That is the rationale of my amendment. What it says is self-evident and a good reason should be provided for why it should not be accepted rather than the other way round. For all those reasons, I hope that the House will accept the motion, as amended.
8.37 pm
Sir George Young: It is a pleasure to follow my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth), who exhibited some interest in my views on the matter of debate. I agree with what he said. I also agree with the argument of the hon. Member for North Cornwall (Mr. Tyler), but I disagree with that hon. Gentleman's conclusion and agree with that of my right hon. Friend—that the motion represents a useful step in the right direction. I sit on the Committee of Selection and I am the Chairman of the Standards and Privileges Committee, which is one of those that would not be affected by the proposed change.
The torch of publicity does not shine very often on the work of the Committee of Selection. As we have heard, when it does meet it makes very good use of its time. We meet under the brisk and efficient chairmanship of the hon. Member for Blaydon (Mr. McWilliam). Most of our work is uncontentious and unexciting, and I would be misleading the House if I said that we debated extensively the merits of the various candidates that we are about to place on Select Committees or Standing Committees.

105
Occasionally, however, the Committee emerges, blinking, into the public gaze. As the hon. Member for North Cornwall said, that was certainly the case at the beginning of this Parliament. On 16 July 2001, the House quite rightly rejected the recommendations of the Committee of Selection. On that occasion, to answer the point made by the hon. Member for North Cornwall, there was a dialogue between myself and those Labour Members likely to be adversely affected by what the Whips said. I give away no secrets when I say that there was a debate and a vote was taken in the Committee of Selection on the proposition that the two relevant Members should not be included in the respective Select Committee nominations. I felt a little like the man in the Bateman cartoon who had asked for a vote in the Committee of Selection. On that occasion, we had the sort of dialogue that the hon. Member for North Cornwall mentioned between an independent, non-Front Bench member of the Selection Committee and those who wanted to serve on a Select Committee but feared that the usual channels were about to exclude them.
Mr. Tyler: Has there been any similar occasion since that episode or since the House decided to retain that mechanism and to continue to expect from the Selection Committee a discernment on the issues that has not always been there?
Sir George Young: As the hon. Gentleman will know, Select Committees are appointed at the beginning of the Parliament for its duration, so we have not had the opportunity to consider their membership except when changes have to be made, when the same issues do not normally arise—because the Chairman is in place and the changes are usually at a relatively junior level.
We have had other debates in the Selection Committee. It is giving away no secrets to say that we had a debate after the Second Reading of the Higher Education Bill and the vote on tuition fees. We had a debate about the appropriate number of Labour Members for the Standing Committee, because it needed to reflect accurately the views of the House. Although most of the meetings are quite brisk, on important occasions the Selection Committee discusses the sorts of issues that Members have raised in this debate.
As the hon. Gentleman also said, the Selection Committee also debated the proposals from the Leader of the House two years ago. I supported the changes, but they were narrowly defeated in the House. I have urged the Leader of the House on several occasions to revisit that decision, because it did not appear that evening that everybody knew exactly what was going on. I am not sure that the Whips were as even-handed with information as they might have been.
However, we are not discussing the radical reform that I and other Members supported. What is on offer is a modest improvement that would give the Selection Committee powers—currently held by the Government—to nominate to certain Select Committees. The change would filter through a Committee of the House nominations that at present go straight from the Executive to the Order Paper. That would be a step in the right direction, because the Committee would filter and examine—and where necessary debate and challenge—the nominations.
106
The present position is not logical. As my hon. Friend the Member for Mid-Worcestershire (Mr. Luff) pointed out, we do not make nominations to the Broadcasting Committee, but we do make nominations to the Catering Committee. We nominate to most Select Committees but not, for some reason, to the Public Administration Committee. I welcome the move to refer more nominations to the Selection Committee and allow them to be debated under Standing Order No. 15 (1)(c). I have some sympathy with the amendment tabled by my right hon. Friend the Member for Bromley and Chislehurst. My negotiating position was that the Selection Committee should nominate to all Select Committees, although I accept that there are reasons why we should not do so to two in particular. It would be somewhat incestuous for the Selection Committee to nominate itself, and the Liaison Committee membership is largely ex officio—it is too big a Committee, but that is a separate debate.
I have not discussed with my Committee the issue of the Standards and Privileges Committee, but, speaking personally, I would have no objection to it being nominated by the Selection Committee. Indeed, as a member of the Selection Committee, it would be a vote of no confidence in myself if I were to insist that it were excluded. The Leader of the House is right to say that the Standards and Privileges Committee is a different sort of Committee, and its composition is now different, too. The Government do not have a majority, with five members from the governing party and five members from the Opposition parties. By convention, the Opposition parties provide the Chairman.
Mr. Woolas: The right hon. Gentleman makes an important point. It is a convention, and a valid one, that the Chairman of the Committee is an Opposition Member. Is that a valuable convention and, if so, would the changes proposed by the right hon. Member for Bromley and Chislehurst (Mr. Forth) jeopardise it?
Sir George Young: The Minister skates on thin ice, because the convention that the Chairman of the Standards and Privileges Committee should be an Opposition Member was a key recommendation of the Wicks committee. It was a recommendation that was accepted by the Government, so if the Government were then to use their majority on the Committee of Selection to prevent that from happening—I am not quite sure how they could do so because the Committee selects its own Chairman—they would be breaking their acceptance of the recommendation of the Wicks committee.
I see that my right hon. Friend the Member for Bromley and Chislehurst is looking perplexed.
Mr. Forth: No, no. Following the intervention of the Deputy Leader of the House, I was merely thinking that the Chairman of the Public Accounts Committee is by long convention a member of the Opposition and that there has never been any difficulty as a result of that long-established process.
Sir George Youngrose
Mr. Deputy Speaker (Sir Alan Haselhurst): Order. I do not want to disturb the amiability of the evening, but

107
I think that the Deputy Leader of the House was perhaps pushing the debate slightly outwith the boundaries of good order on this motion.
Sir George Young: The Public Accounts Committee is not appointed by the Committee of Selection. I think that my right hon. Friend the Member for Bromley and Chislehurst was assuming that it was. In answer to the question put by the Deputy Leader of the House and by others, I would have no objection at all, speaking purely personally, if the Government indicated that they were happy with that part of my right hon. Friend's amendment that related to Standards and Privileges. Yes, the Standards and Privileges Committee does not reflect the balance of the House, but the Committee of Selection is perfectly capable of reflecting that in its decisions.
In passing, as the role of the minority parties has been referred to once or twice, although the Standards and Privileges Committee is now one smaller, we have found a place on it for a member from one of the minority parties. That place was found not from the Government's allocation but from that of the Opposition.
In conclusion, I welcome the steps that are being taken. If the amendment tabled by my right hon. Friend the Member for Bromley and Chislehurst is pushed to a Division I should be minded to accept it, but this cannot be the final word on a system that is, I agree, crying out for more radical reform.
8.47 pm
Pete Wishart: I am grateful to the right hon. Member for North-West Hampshire (Sir George Young) for shedding some further light on the recesses and cobwebs of the Committee of Selection. The more I learn about the Committee and the activities it undertakes, the more the alarm bells ring in my head about exactly what goes on.
It will not surprise you, Mr. Deputy Speaker, or the House to hear that we oppose the motion, for the simple and straightforward reason that we do not want an extension of the powers of the Committee of Selection as long as minority parties remain excluded from it. As long as the Committee remains the preserve of the three main parties, we believe that it neither deserves nor requires further new powers or responsibilities.
I listened carefully to the Deputy Leader of the House and to the hon. Member for Mid-Worcestershire (Mr. Luff) and I heard what they said about the motion being a tidying-up exercise—that it was a common-sense approach to taking care of a few outstanding issues. That may be what it looks like to them, but it is not what it looks like to us in the minority parties. We are out with that process. We are excluded from what is going on and as long as the Committee of Selection remains unrepresentative of the whole House, it should have no further new powers.
The motion could exclude the minority parties even further by entrenching the powers of what is an unrepresentative Committee. Given what we have learned about the Committee, it would be worth while to look at what it does. What it does—and it seems to do
108
it very well—is what it is told by Government Whips and by the usual channels. There seems to be no independence of thought or strategy. The Committee does not seem to be responsible for determining its own agenda and debating its own issues. It seems to be completely at the behest of Government Whips and the usual channels.
Perhaps we should look at what the Committee of Selection should nominally do. As far as I can see, it has quite substantial powers. It is responsible for nominating positions to the departmental Select Committees. That is an onerous responsibility and an onerous task, which requires the utmost transparency and fairness, yet the Committee is asking for more powers.
Does the Committee discharge its existing powers judiciously, effectively and efficiently in all parts of the House? I have come to the depressing conclusion that the Committee does not discharge its current powers responsibly in a way that meets the requirements of the whole House. We in the Scottish National party and Plaid Cymru have been two places short on departmental Committees since 2001 when the House was elected, yet the Committee of Selection has made no real effort to try to correct that wrong. On that basis, I oppose the motion.
Mr. Luff: As the hon. Gentleman knows, I have some sympathy for his view that the minorities parties are under-represented on the Select Committees, but I am trying to work out what he thinks that non-Government members of the Committee of Selection can do to put that right. I am not sure that the option rests with us. I need to think exactly what the procedure is, and I feel a little chastened by that.
Pete Wishart: There is no need to chasten the hon. Gentleman. There is a solution. I very much support what was said by the hon. Member for North Cornwall (Mr. Tyler); we have to throw out this Committee entirely. A new Committee of Selection that is representative of the whole House and that includes members from all political parties would be entirely appropriate. We should transfer the powers not to this discredited Committee of Selection that, as we have heard, does so little, meets so little and debates so little, but to a new Committee that is fully representative of all the opinions and parties in the House. That is the solution.
It would be churlish not to acknowledge that progress has been made. As I pointed out to the hon. Member for Mid-Worcestershire, I am on a Select Committee. I have now reached the dizzy heights of the Select Committee on Catering, and I am very grateful for my elevation to that prominent position. It is a position that I take seriously, and I manage to turn up week in, week out to exercise my responsibilities.
Mr. Peter Pike: Does the hon. Gentleman accept that there are places for members of his party and Plaid Cymru on the Regulatory Reform Committee? They will always be welcome on that.
Pete Wishart: I am grateful to the hon. Gentleman. It is news to me, and I will examine that kind invitation in

109
detail and at length. I am sure that he will accept that we participate on Committees when we are given the opportunity. As I said, I am a member of the Catering Committee, and I very much enjoy serving on that. I assure him that I am a diligent member of it and take the opportunity to scrutinise the operations of the Refreshment Department of the House. That is a very important task. However, believe me when I say that questioning Mrs. Harrison about the cost of a fruit scone in the Terrace Cafeteria is not quite the same as questioning the Foreign Secretary about Government policy in Iraq. Important though—
Mr. Deputy Speaker: Order. We cannot have a wider debate. I have given some latitude to allow the argument to develop, but it is essentially a debate about the motion on the Order Paper. I hope that the hon. Gentleman will not go too far down the line that he now appears to have adopted.
Pete Wishart: I am grateful fora our guidance, Mr. Deputy Speaker. I am just trying to make sure that the House understands that progress has been made. I think that the House accepts that the minority parties lack these places and that the Committee of Selection has not been particularly fair to us. We receive sympathy from both sides of the House, and I think that all political parties recognise that a bit of an injustice has taken place. If it is not an injustice, there are certainly issues to do with minority party representation on the Committee of Selection and, therefore, on departmental Select Committees.
If we had a place on the Committee of Selection, we would make sure that the minority parties were properly represented on the departmental Select Committees. However, the reason that we are not on the Committee of Selection or the other departmental Select Committees always comes back to the arithmetic. We are told that the numbers do not stack up. However, even when the numbers stack up in our favour, something else is added to the equation. I take the Liaison Committee as an example. It has been mentioned in the debate, and it is 34 members strong. Even by the crudest arithmetic, we are entitled to 1.3 places on that Committee. However. one can only be a member of the Liaison Committee if one is the Chair of a Select Committee.
Mr. Deputy Speaker: Order. I say again to the hon. Gentleman that this cannot be a debate about the composition of the Committee of Selection. It is about the Committees to be chosen by the Committee of Selection.
Pete Wishart: Thank you again, MR. Deputy Speaker. I accept your chastisement.
We oppose the motion, because we very much want to ensure that we have the proper mechanism for selecting the members of departmental Select Committees. That role is currently exercised by the Committee of Selection, and that suggests that that Committee has the additional powers to look after other Committees. We must question whether the Committee of Selection should have new powers when it must effectively demonstrate that it is able to exercise its current powers.
110
One of the major tasks for the Committee of Selection is to determine the membership of departmental Select Committees. We heard from the hon. Member for North Cornwall of the arithmetic that was carried out to ensure that parity was reached between all the political parties in the House. However, we in the minority parties are 23 strong and represent 3.5 per cent. of the total number of MPs. The Committee of Selection looks after 18 departmental Select Committees. Three of them are territorial, so we obviously get a place on them as national parties. That leaves 15 departmental Select Committees with 172 members. According to the arithmetic, we are entitled to 3.5 per cent. of the places, but we actually receive 1.2 per cent. The Scottish National party and Plaid Cymru are two short—
Mr. Deputy Speaker: Order. I have tried to encourage the hon. Gentleman to desist from that line of argument, but he appears to be sticking tightly to his script. I suggest again that he reverts to the terms of the motion.
Pete Wishart: Thank you once again, Mr. Deputy Speaker, for offering me your guidance.
The Committee of Selection is important. As such, it should not remain the exclusive preserve of the three main parties, which is what will happen if the motion is passed. If any Committee should be representative of all parties, it is the Committee of Selection. Something is not working. and I question whether the measure solves the problem in the Committee of Selection. The House is not representative in the way that it does business on its Committees. We are a multi-party democracy, which should be reflected in our Committees. Collectively, we represent 3.5 per cent.—
Mr. Deputy Speaker: Order. If the hon. Gentleman is not prepared to take the advice of the Chair, he must resume his place. I shall allow him some concluding remarks, but he has ignored my advice at least twice.
Pete Wishart: I am sorry if it seems that I have ignored your advice, Mr. Deputy Speaker.
We oppose the measure because it does not address the problems and issues that we have identified. We need to ensure that the Committee of Selection—any Committee that determines the places on departmental Select Committees—is as representative of the House as possible. I ask the House to oppose the motion.
8.56 pm
Mr. Gordon Prentice: I did not intend to contribute to the debate, but I have a couple of things to say. The Committee of Selection does not select. It is a rubber stamp. It takes what is given to it by the Whips and puts the names forward to the House. I want that to change. I want the Committee of Selection to be more deliberative—to look at the composition of the Select Committees, the merits of individual candidates and, crucially, the way in which names are proposed by the political parties, as I said in my intervention on the hon. Member for North Cornwall (Mr. Tyler).
I was on the inside of the parliamentary committee of the parliamentary Labour Party for two years and know how the system works for Labour Members who are put

111
forward for membership of such Committees. We are told that there has to be a gender balance, a regional balance and an ideological balance. The fact is that it is difficult in those circumstances to challenge any name without being caught out by some kind of balance. What is the result of that selection process? The figures for the last Session show that 65 Back-Bench colleagues in the parliamentary Labour party did not serve on a Select Committee. Some 56 Labour Members served on more than one Select Committee. Seventeen Parliamentary Private Secretaries or hag carriers—it sounds pejorative but I can say it; I was one myself some years ago—were members of Select Committees. Should the Committee of Selection take that into account?
What about the Liberal Democrats? Some 28 of their Front-Bench Members served on Select Committees. I understand that: it is a smaller parliamentary party. I could run through equivalent figures for the other parties—
Pete Wishart: On a point of order, Mr. Deputy Speaker. If I was out of order in referring to the arithmetic and numbers, why is the hon. Gentleman not out of order for doing the same thing?
Mr. Deputy Speaker: I am grateful to the hon. Gentleman for that point. I allowed him some latitude, and it was when he had been going for seven minutes that I decided to be a little sterner with him. I am listening very attentively to the hon. Member for Pendle (Mr. Prentice), and I hope that he will remember the terms of the motion; otherwise he, too, may find that I shall be somewhat interventionist.
Mr. Prentice: I certainly would not wish you to be stern with me, Mr. Deputy Speaker.
I conclude by saying that how the political parties put people forward for Committees should be a legitimate concern of the Committee of Selection. While I support the motion, I hope that we will all consider those issues and take up the suggestion that I made some months ago to the Leader of the House that all political parties represented here in this Parliament should lodge in the Library of the House of Commons a memorandum stating the criteria that they use for putting Members forward for Select Committees.
9 pm
Mr. Woolas: This has been a useful and largely consensual debate. [Interruption.] It has. I remind the House that the debate is taking place on the recommendation not of the Government but of the Select Committees concerned. The House will be grateful for the contributions of the right hon. Member for North-West Hampshire (Sir George Young), the hon. Member for Mid-Worcestershire (Mr. Luff) and others. The hon. Member for Blaydon (Mr. McWilliam) explained why he could not be with us tonight. The Opposition spokesman, the hon. Member for Mid-Worcestershire, said that he has reservations but, on the whole, he welcomes the proposals.
The hon. Member for North Cornwall (Mr. Tyler) made remarks that he has made before. 1 appreciate his consistency but his statements may be characterised as
112
anti-Whip. The hon. Gentleman does not like the idea that the usual channels influence the way that we do business. I have to say to him—I know that he will disagree, as may others such as my hon. Friend the Member for Pendle (Mr. Prentice)—that our system in this Parliament depends on the usual channels. It is perfectly legitimate for Members to argue against that, but that is the system.
Mr. Tyler: I was not arguing that there is not a role for the usual channels. They have been referred to as the necessary sewers of the parliamentary system: unseen but nevertheless important. My point, which I hope the Deputy Leader of the House will come to, was that the report identified Select Committee membership as being inappropriate for nomination by the Whips—membership of other Committees yes, but not Select Committees.
Mr. Woolas: The hon. Gentleman is consistent in his point of view, but I do not accept that one can describe the Whips as sewers; they provide the necessary lubrication of the parliamentary system. I will not go down that channel. but as an ex-Whip I take exception to the hon. Gentler Ian's description.
There are sensible reasons, which have been accepted by hon. Members on both sides of the House, for accepting the motion. Its motive and intention are to move towards what the hon. Gentleman and my hon. Friend the Member for Pendle want. It would bring appointment to some Committees into line with appointment of Select Committees generally, although it excludes some Committees that the right hon. Member for Bromley and Chislehurst (Mr. Forth) would like included—his amendment would go further than the motion. It would, however, be churlish to disagree with the thrust of the proposal; indeed, the right hon. Member for North-West Hampshire has welcomed it as a step forward, although he expressed some reservations.
The hon. Member for North Tayside (Pete Wishart) spoke about the representation of minority parties. That matter was raised recently during business questions. On that occasion, it was made clear that the Government are aware of and understand the concerns of the minority parties about their representation on departmental Select Committees and other Committees. Progress on addressing those concerns has been made in several ways, for example, by accommodating their interests in the nomination of recent Joint Committees for pre-legislative scrutiny and of Standing Committees on Bills and delegated legislation. The hon. Gentleman suggested that the minority parties have been treated unfairly by the Committee of Selection, but I believe that the Committee takes great pains to be fair to all parties. Its task is not a simple one and it is not possible to reflect the precise balance of the House on every Committee—as the hon. Gentleman accepted. Inevitably, there is debate and some competition about which parties should be represented.
The changes proposed by the Committee—not by the Government—are sensible. It is not sensible to have a different method of selection for some Committees, although the Standards and Privileges Committee, whose Chairman, the right hon. Member for North-West Hampshire is present, offers an exception.

113
Speaking on behalf not of the Government but of the House, let me say that it is important that we in Parliament have a system—the usual channels—that is a proper system and is seen to be so. Not only should Committees such as the Standards and Privileges Committee be seen to be appointed by the House with the consent of the House, but such matters should be subject to public scrutiny.
The motion sets out a sensible way forward. It is not as radical as some have suggested. and certainly not as radical as the amendment tabled by the right hon. Member for Bromley and Chislehurst suggests, and it would be churlish to oppose it. I believe that the change in practice that we have been debating is a modest and sensible one that is designed to streamline and rationalise the way in which we nominate Select Committees. I commend the motion to the House.
Question put, That the amendment be made:—
The House divided: Ayes 23, Noes 128.

Division No. 193]

[9.08 pm

AYES

Beith, rh A. J.

Russell, Bob (Colchester)

Bercow, John

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

Burnett, John

Burt, Alistair

Teather, Sarah

Campbell, rh Sir Menzies (NE Fife)

Thurso, John

Turner, Andrew (Isle of Wight)

Carmichael, Alistair

Tyler, Paul (N Cornwall)

Chope, Christopher

Whittingdale, John

Green, Damian (Ashford)

Winterton Ann (Congleton)

Kirkwood, Sir Archy

Winterton, Sir Nicholas

Lamb, Norman

(Macclesfield)

Laws, David (Yeovil)

Luff, Peter (M-Worcs)

Tellers for the Ayes:

Moore, Michael

Mr. Eric Forth and

Murrison, Dr. Andrew

Sir George Young

NOES

Ainsworth, Bob (Cov'try NE)

Flynn, Paul (Newport W)

Allen, Graham

Foster, Michael (Worcester)

Bailey, Adrian

Foster, Michael Jabez (Hastings & Rye)

Banks, Tony

Barnes, Harry

Gerrard. Neil

Bayley, Hugh

Griffiths, Jane (Reading E)

Beckett, rh Margaret

Griffiths, Win (Bridgend)

Begg, Miss Anne

Hall, Mike (Weaver Vale)

Bradshaw, Ben

Hamilton David (Midlothian)

Bryant, Chris

Hanson, David

Burnham, Andy

Henderson, Doug (Newcastle N)

Cairns, David

Hendrick Mark

Cawsey, Ian (Brigg)

Hepburn, Stephen

Clapham, Michael

Heppell, John

Clark, Paul (Gillingham)

Hill, Keith (Streatham)

Clelland, David

Hinchliffe, David

Coaker, Vernon

Hope, Phil (Corby)

Colman, Tony

Howarth. rh Alan (Newport E)

Cook, rh Robin (Livingston)

Hughes, Kevin (Doncaster N)

Crausby, David

Iddon, Dr. Brian

Cryer, Ann (Keighley)

Illsley, Eric

Cryer, John (Hornchurch)

Jones, Kevan (N Durham)

Cunningham, Jim (Coventry S)

Jones, Lynne (Selly Oak)

Cunningham, Tony (Workington)

Keen, Ann (Brantford)

Dalyell, Tam

Kidney, David

Davey, Valerie (Bristol W)

Kilfoyle, Peter

Dobbin, Jim (Heywood)

King, Andy (Rugby)

Dobson, rh Frank

Lawrence, Mrs Jackie

Donohoe, Brian H.

Laxton, Bob (Derby N)

Dowd, Jim (Lewisham W)

Leslie, Christopher

Fitzpatrick, Jim

Levitt, Tom (High Peak)

Fitzsimons, Mrs Lorna

Lewis, Ivan (Bury S)

114

Linton, Martin

Russell, Ms Christine (City of Chester)

Lloyd, Tony (Manchester C)

Love, Andrew

Sheerman, Barry

Lyons, John (Strathkelvin)

Sheridan, Jim

McAvoy, Thomas

Short, rh Clare

McCabe, Stephen

Skinner, Dennis

McDonagh, Siobhain

Smith, Jacqui (Redditch)

Mclsaac, Shona

Stewart, Ian (Eccles)

MacShane, Denis

Stoate, Dr. Howard

Mactaggart, Fiona

Stringer, Graham

Mahmood, Khalid

Sutcliffe, Gerry

Mahon, Mrs Alice

Taylor, David (NW Leics)

Mann, John (Bassetlaw)

Thomas, Gareth (Harrow W)

Marris, Rob (Wolverh'ton SW)

Timms, Stephen

Meale, Alan (Mansfield)

Tipping, Paddy

Michael, rh Alun

Turner, Dennis (Wolverh'ton SE)

Morley, Elliot

Turner, Dr. Desmond (Brighton Kemptown)

Munn, Ms Meg

Murphy, Jim (Eastwood)

Turner, Neil (Wigan)

Naysmith, Dr. Doug

Twigg, Derek (Halton)

Norris, Dan (Wansdyke)

Vis, Dr. Rudi

Olney, Bill

Ward, Claire

Picking, Anne

White, Brian

Pickthall, Colin

Whitehead, Dr. Alan

Pike, Peter (Burnley)

Williams, Betty (Conwy)

Pollard, Kerry

Williams, Hywel (Caernarfon)

Pond, Chris (Gravesham)

Wills, Michael

Pope, Greg (Hyndburn)

Winterton, Ms Rosie (Doncaster C)

Pound, Stephen

Prentice, Ms Bridget (Lewisham E)

Wishart, Pete

Woolas, Phil

Prentice, Gordon (Pendle)

Wright, Anthony D. (Gt Yarmouth)

Prosser, Gwyn

Purchase, Ken

Purnell, James

Tellers for the Noes:

Quin, rh Joyce

Mr. Nick Ainger and

Quinn, Lawrie

Charlotte Atkins

Question accordingly negatived.
Main Question put:—
The House divided: Ayes 136, Noes 1.

Division No. 194]

[9:21 pm

AYES

Ainger, Nick

Cunningham, Jim (Coventry S)

Ainsworth, Bob (Cov'try NE)

Cunningham, Tony (Workington)

Allen, Graham

Dalyell, Tam

Bailey, Adrian

Davey, Valerie (Bristol W)

Banks, Tony

Dobbin, Jim (Heywood)

Barnes, Harry

Dobson, rh Frank

Bayley, Hugh

Donohoe, Brian H.

Beckett, rh Margaret

Dowd, Jim (Lewisham W)

Begg, Miss Anne

Fitzpatrick, Jim

Beith, rh A. J.

Fitzsimons, Mrs Lorna

Bercow, John

Flynn, Paul (Newport W)

Bradshaw, Ben

Forth, rh Eric

Bryant, Chris

Foster, Don (Bath)

Burnett, John

Foster, Michael (Worcester)

Burnham, Andy

Foster, Michael Jabez (Hastings & Rye)

Burt, Alistair

Cairns, David

Gerrard, Neil

Campbell, rh Sir Menzies (NE

Green, Damian (Ashford)

Fife)

Griffiths, Jane (Reading E)

Carmichael, Alistair

Griffiths, Win (Bridgend)

Cawsey, Ian (Brigg)

Hall, Mike (Weaver Vale)

Chaytor, David

Hamilton, David (Midlothian)

Chope, Christopher

Hanson, David

Clapham, Michael

Hendrick, Mark

Clelland, David

Hepburn, Stephen

Coaker, Vernon

Heppell, John

Colman, Tony

Hill, Keith (Streatham)

Cook, rh Robin (Livingston)

Hinchliffe, David

Crausby, David

Hope, Phil (Corby)

Cryer, Ann (Keighley)

Howarth, rh Alan (Newport E)

115

Hughes, Kevin (Doncaster N)

Purnell, James

Iddon, Dr. Brian

Quin, rh Joyce

Illsley, Eric

Quinn, Lawrie

Jones, Kevan (N Durham)

Russell, Bob (Colchester)

Keen, Ann (Brentford)

Sheerman, Barry

Kidney, David

Sheridan, Jim

King, Andy (Rugby)

Skinner, Dennis

Kirkwood, Sir Archy

Smith, Jacqui (Redditch)

Lamb, Norman

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

Laws, David (Yeovil)

Leslie, Christopher

Stewart, Ian (Eccles)

Levitt, Tom (High Peak)

Stringer, Graham

Lewis, Ivan (Bury S)

Sutcliffe, Gerry

Linton, Martin

Taylor, David (NW Leics)

Lloyd, Tony (Manchester C)

Thomas, Gareth (Harrow W)

Luff, Peter (M-Worcs)

Timms, Stephen

McAvoy, Thomas

Tipping, Paddy

McCabe, Stephen

Turner, Andrew (Isle of Wight)

McDonagh, Siobhain

Turner, Dennis (Wolverh'ton SE)

Mclsaac, Shona

Turner, Dr. Desmond (Brighton Kemptown)

MacShane, Denis

Mahmood, Khalid

Turner, Neil (Wigan)

Mahon, Mrs Alice

Twigg, Derek (Halton)

Mann, John (Bassetlaw)

Tyler, Paul (N Cornwall)

Marris, Rob (Wolverh'ton SW)

Vis, Dr. Rudi

Meale, Alan (Mansfield)

Ward, Claire

Michael, rh Alun

White, Brian

Moore, Michael

Whitehead, Dr. Alan

Morley, Elliot

Whittingdale, John

Munn, Ms Meg

Williams, Betty (Conwy)

Murphy, Jim (Eastwood)

Wills, Michael

Naysmith, Dr. Doug

Winterton, Ann (Congleton)

Norris, Dan (Wansdyke)

Winterton, Sir Nicholas (Macclesfield)

Olner, Bill

Picking, Anne

Winterton, Ms Rosie (Doncaster C)

Pickthall, Colin

Pike, Peter (Burnley)

Woolas, Phil

Pope, Greg (Hyndburn)

Wright, Anthony D. (Gt Yarmouth)

Prentice, Ms Bridget (Lewisham E)

Young, rh Sir George

Prentice, Gordon (Pendle)

Prosser, Gwyn

Tellers for the Ayes:

Pugh, Dr. John

Paul Clark and

Purchase, Ken

Charlotte Atkins

NOES

Weir, Michael

Tellers for the Noes:

Pete Wishart and

Hywel Williams

Question accordingly agreed to.
Ordered.
That the Standing Orders be amended as follows—

(1) In Standing Order No. 15 (Exempted business), line 18, leave out from 'committees' to 'which' in line 20 and insert 'to which that paragraph applies'.

(2) In Standing Order No. 121 (Nomination of select committees), line 10, leave out from `under' to or' in line 13 and insert 'the Standing Orders of this House (with the exception of the Liaison Committee, the Committee of Selection, the Committee on Standards and Privileges and any Committee established under a temporary Standing Order)'.

Greyhounds (Welfare)
Motion made, and Question proposed, That this House do now adjourn.—[Jim Fitzpatrick.]
9.32 pm
Mr. Alan Meale: Mr. Speaker, may I say at the outset that it is a privilege for us, at such a late stage in the evening, to see you here, having made your way from your chambers to listen to an Adjournment debate? I just wish that some of our colleagues in this place would follow your example, because tonight we are debating an important subject—the welfare problems in and around the sport of greyhound racing.
As many hon. Members are aware, I have taken an interest in this subject over a very long period. I attempted to argue the case for a greyhound levy as far back as the 1980s, and I was a member of the Select Committee on Home Affairs that held an inquiry into that subject and came out in favour of that. Regrettably, that idea has not made much progress and there has been no improvement in the years since I have become interested in the sport. Even though much has been attempted in greyhound racing—second only to football as the mast popular spectator sport in the United Kingdom—it is still far from satisfactory from a welfare point of view.
My speech today is not intended to harm the industry in any way. I accept that there are those who want to ban the sport, but that is not my aim. I simply feel that something must be done to improve greyhound welfare for the sport to mope forward and prosper—indeed, for its very survival. It it particularly galling to me that there is a lack of funds to provide for proper retirement provision for greyhounds when the industry is not short of money.
Dr. Rudi Vis: What does my hon Friend estimate the cost of such a provision would be?
Mr. Meale: Frankly, it would be peanuts in relation to the amount of money in gaming. For instance, the bookmakers make an incredible sum from the industry: more than £2 billion was bet on greyhound racing in the past year alone. The comparison with the amount that is given in horse racing, even under the new proposals for greyhounds, shows a stark contrast. Perhaps £6 million will be given in greyhound racing, compared with about £80 million.
I welcome the increase in funding that Lord Lipsey, a colleague and friend, negotiated with the bookmakers: a rise to 0.6 per cent. of turnover on greyhound betting by 2006. I note that it remains voluntary and I am sure that the British Greyhound Racing Board will work hard to persuade all bookmakers to collect all the money, but there will remain quite a few—at the present level, about 20 per cent. of the bookmakers that make money from greyhound racing—who will not pay and will do everything in their cower to avoid paying. Nevertheless, the money will move the debate forward, although it does not provide the full solution for all the tracks and the greyhounds that race on them.
My right hon. Friend the Minister for Sport and Tourism deserves credit and the thanks of the House for his part in gaining the agreement, but his Department

117
has now passed the issue to the Department for Environment, Food and Rural Affairs, in particular in the form of responsibility for the proposed animal welfare Bill. The only way of guaranteeing that the extra money is put to the best possible welfare use is to ensure that the Bill sets out strict standards of welfare that greyhound tracks and owners must abide by, and that must be on a statutory, not a voluntary basis.
While I welcome the recent increase in funding that the British Greyhound Racing Board has managed to secure, as the Minister no doubt does, it is important to remember that none of the money is proposed to go to independent greyhound racing tracks that are not within the BGRB's remit. That is, I firmly believe, the single most important reason why further delay is unacceptable. The greyhounds racing on the 21 independent tracks need Government intervention now and it cannot be left to the industry and internal reform. That will not be enough. We have had no satisfactory guarantee so far on how much of the money will be spent of welfare. Worse still, there is no guarantee that everyone will pay.
As the Minister has often pointed out, animal welfare Bills come around only once every 100 years, so necessary welfare improvements must be in the new Bill to make the most of the opportunity.
We are all aware that there are welfare problems before, during and after a greyhound's racing career. The League Against Cruel Sports, for one, has recently recognised that and has launched a worthy campaign to improve greyhound welfare, which I urge hon. Members to support. There is clearly strength of feeling in the House for welfare improvements in the sport, as shown by my recent early-day motion, which has so far received 249 signatures from hon. Members of all political parties.
My first concern is about the breeding of greyhounds. Recent figures show that every year in the United Kingdom about 5,500 greyhounds are bred for racing, yet around 2,000 dogs across the UK and Ireland vanish before even being registered as racing dogs. It is believed that most are killed because they are surplus to requirements. At the very least, we can all agree that if that is true it is very wrong. Indeed, it is disgraceful to over-breed greyhounds simply for sport, and it must be stopped. We need a proper statutory licensing system for all greyhound breeders that would involve registration and the full publication of statistics. Breeders would have to accept full responsibility for all puppies born. Those who overproduced and subsequently abandoned puppies would be dealt with and, if convicted, their licences would be removed.
All too often, greyhounds are seen by the unscrupulous in the sport simply as commodities. For that reason, insufficient consideration is given to their welfare needs during their careers. As with their human athletic counterparts, racing dogs often have very short careers, not least due to the stress caused by repeated minor injuries. Those who, like me., take an interest in greyhound racing are aware that the majority of serious injuries to greyhounds happen on bends. The smaller the bend the greater the centrifugal force exerted on the dog's joints as it runs, which in turn leads to joint problems and injuries. Mr. Paddy Sweeney, MRCVS—
118
the father of a former Conservative Member of Parliament and Britain's best-known greyhound racing vet—has recognised that factor. He argues that the only way to guard against such injuries is for tracks to have a much larger radius—at least 80 m—to enable greyhounds to run upright round bends. As I hope the Minister will appreciate, the really sad part is that despite that simple logic, money for such research and help in establishing such tracks is almost non-existent.
Of course, that is not the only factor that causes injuries: track and kennel standards must also be good. Indeed, there have been several cases of poor track or kennel standards leading to greyhounds dying or being seriously injured. One example is the truly scandalous death from heat exhaustion of the dog "Football Focus" at Catford stadium in August 2002.
Mr. Dennis Turner: Will my hon. Friend acknowledge the work being done to improve the lot of greyhounds? One example is Monmore Green greyhound stadium in Wolverhampton, which has just built state-of-the-art, 21st-century kennels with air conditioning and all the facilities necessary to give greyhounds the best opportunities to succeed in their racing careers and to enjoy their subsequent retirement.
Mr. Meale: I am grateful to my hon. Friend for that intervention and I congratulate him and his local track. That is a shining example of what should happen, but unfortunately much more needs to be done. As I said, the welfare situation at the 21 independent tracks throughout the country leaves much to be desired.
Worse still, the lack of attention to injuries and the inability to cope with the associated problems is illustrated by the fact that some greyhound stadiums do not even have vets at the trackside. The Government must take up this issue as a priority, and the greyhound industry must change its approach. Needless to say, I would welcome the Minister's commitment today to ensuring that a veterinary presence be guaranteed at all tracks, but before he deals with that point, I should inform him that many existing track vets are employed by promoters, which in some instances can lead to conflicts of interest. I hope that he agrees that it would be scandalous if dogs with suspected injuries were forced to race. Perhaps he could ponder that point and respond to it, and take it into account when considering the structure of the proposed animal welfare Bill. Of course, one cannot generalise about the standard of vets employed in the industry, and I am sure that they do their best, but the fact is that, faced with a strong betting market, they could come under pressure to take such decisions. They should therefore be independently employed, so that such conflicts cannot arise.
There is another point that the Minister might want to consider. One reason why I am arguing that vets should be independent and not subject to such influence is that the betting on any single greyhound race totals well over £1 million. We are not talking about peanuts; that is real seven-figure money.
Specialised mandatory training provisions for greyhound vets may also be appropriate. I am sure that the Society of Greyhound Veterinarians would welcome that, or at the very least the monitoring of tracks and the

119
greyhounds that are raced upon them. Vets sometimes have little time to examine racing dogs, which makes it difficult for them to spot minor injuries, and their job is made more difficult by the numbers racing at any one greyhound meeting. Twelve races with six or even eight dogs in each race, plus the reserve dogs, mean that at any one track during the day or night there could be between 90 and 120 dogs.
As with horseracing trainers, trainers should have the right to withdraw any injured dog in their charge, subject to veterinary certification, or at the very least, in appropriate circumstances vets should be able to prevent dogs from racing.
When we examine the problems that occur after racing, the figures become truly shocking. For example, although statistics show that thousands of greyhounds retire from British greyhound racing every year, little more than 2,000 a year are known to be re-homed by greyhound welfare groups. Every year, we simply do not know what happens to thousands of others. That is unacceptable.
Sadder still is the fact the many retiring greyhounds die because they no longer race. Some are put down inhumanely, dumped on the side of motorways, mutilated or otherwise horrendously injured. One of the most notorious cases occurred in Scotland in 1994, when 19 greyhounds were found dumped in an empty quarry. More recently, many hon. Members will have read of the mutilated greyhound found alive in the Rhymney valley in south Wales, with its ears cut off and a hole in its head. That greyhound had run predominantly at independent tracks in Wales, most recently under three different names—Last Hope, Rusty and Charlie. Its ears had been cut off to remove its registered marks, and the hole in its head had been caused by a Hilti gun, which had been fired into its brain. When the dog was taken to the vet to be humanely put down, it was found that the bolt had gone right through and broken its jaw.
Radio Five Live reported that case, and also that of a man in west Yorkshire who was arrested by police in connection with a dubious scheme of accepting money to take greyhounds to retirement homes. No trace has been found of any of those dogs ever reaching any retirement home. Greyhound retirement charities throughout the country all have stories of dogs that have been injected with some substance or other—sometimes antifreeze—to kill them, or simply tied up and abandoned without food and left to die.
Mr. Dennis Turner: I entirely agree with my hon. Friend's case that the ill-treatment of greyhounds is unacceptable and deplorable, but can he give me one example of the wicked ill-treatment of greyhounds that race on registered tracks? All his examples have related to what we used to call pirate tracks, which are not registered under the greyhound rules.
Mr. Meale: I understand what my hon. Friend is getting at, and it is right to say that the BGRB is much more active in trying to ensure that that does not happen in the sport. I pay tribute to the board for that, but the problem is that many dogs that start racing under the BGRB end up on the independent tracks. For instance,
120
the dog with the three names that was found in Wales was initially registered at Nottingham greyhound track, a registered track in my area. Many of the dogs move from area to area and are dispersed and abandoned by their original owners when they are no longer of the top rank. They have to make way for new dogs, and they do not fall into the best hands.
I pay tribute to the excellent work of the Retired Greyhound Trust, which does a magnificent job in finding homes. Frankly, however, it cannot cope, because money is required and it is not coming through. Perhaps it cannot be that everyone can have a greyhound at home, but it is important to set up homes for the dogs. I recently read a report by the all-party group on animal welfare of the National Assembly for Wales, which concluded that approximately 140 greyhounds are abandoned and taken to local authority dog pounds every year in Wales. In reality, that certainly means that thousands more dogs are treated the same elsewhere in the United Kingdom.
The report details concern about independent tracks, and my hon. Friend the Member for Wolverhampton, South-East (Mr. Turner) was right to point out that they are the major bugbear. No matter how much money the BRGB gets under the new arrangements to pay out to official tracks, it will not be able to do anything about the independent tracks. We cannot simply have a situation in which only the BRGB is covered; we must cover all tracks.
Greyhounds are currently identified by ear tattoos that are supposed to identify owners or trainers who mistreat or abandon their dogs. However, as in the recent south Wales case, that has led to some dogs having their ears cut off before they are killed or dumped. Surely a better solution would be to place a microchip in all dogs from birth and back that up with a DNA register. All dogs could then be readily identified, and the register should be available so that owners and trainers who mistreat greyhounds can be found and prosecuted. There are no scientific barriers to prevent that in today's world.
There are myths about keeping greyhounds as pets. Some people say it is cruel and that they cannot adapt. I can assure the House that the dogs make excellent pets. Their exercise requirements are not large. Annette Crosbie, president of the League Against Cruel Sports, owns four greyhounds, and she says that they are wonderfully placid loving animals, and that once someone has one in their home, they will never want another kind of dog. Indeed, an ex-Member of this House, the late Peter Hardy, who represented Wentworth, spent most of his retirement looking after a retired greyhound, whose company he and his wife Margaret enjoyed for many happy years.
Not all racing greyhounds can be found homes. For that reason, the industry should provide properly regulated greyhound sanctuaries to provide accommodation until a home can be found or so that the greyhounds live out their lives.
The problems that I have outlined and the solutions I propose will all cost money, but animal welfare does not come free, whether it is in homes, on farms or at racing tracks. Some money has been found, but more will be needed. If we can find money to put into farmers' hands

121
and pockets, surely we can do the same for the Royal Society for the Protection of Animals or the Retired Greyhound Trust.
I hope that the Minister will agree that, in addition to the animal welfare Bill, the Gambling Bill, on the scrutiny Committee for which I have served, provides an ideal opportunity to address the question of a financial levy for the sport. After all, it already suggests provision for one in relation to gambling problems. Such an idea is not outrageous. I was privileged to be a member of the Home Affairs Committee some years ago when it examined the question of a greyhound levy, and it supported the idea, principally to address greyhound welfare. I am not suggesting that the bookmakers should bear the full brunt of welfare; clearly, owners and promoters must do more. The reality is, however, that the real money in the industry lies with the bookmakers. To insist, as some industry representatives do, that all responsibility for retirement provision lies with greyhound owners is callously to condemn too many dogs to institutional euthanasia.
The Government have also introduced a Bill this Session enabling them to abolish the horse race betting levy. The situation in greyhound racing differs greatly. As the Minister knows, the Government feel that they can abolish the horse race levy because they are confident that bookmakers and the industry have come to financial agreements without the need for Government intervention.
The House will recall that the Home Affairs Committee, on which I sat, produced a report in 1991 on the financing of greyhound racing. The report looked into the financing of the industry, but it also examined welfare issues. The Minister will know that the Committee recommended that more money should be provided for welfare concerns, and especially for re-homing. It also recommended that track owners and bookmakers be required to donate a part of their profits to the Retired Greyhound Trust. Sadly, 13 years on, that has not happened to any acceptable level.
As I said earlier, the greyhound industry is an extremely lucrative business. For example, Walthamstow track in London has an annual turnover in excess of £8 million, and with many greyhound stadiums set to apply for casino status under the draft Gambling Bill, things can only get more profitable for them. What is more, bookmaker turnover on greyhound racing in each of the last five years was substantial: £1.5 billion in 1998, £1.2 billion in 1999, £1.6 billion in 2000, £1.8 billion in 2001 and £2.1 billion in 2002. Even on conservative estimates, it accounted for at least 23 per cent. of all off-course betting shop business.
The industry is clearly profitable. Indeed, the chief executive of William Hill, David Harding, confirmed that in September 2003, when he said:
"We are generating far more cash than we need."
I have already said that I sincerely hope that more bookmakers pay the increased contributions. Indeed, my own experience in pursuing that objective was not a lone furrow. We should remember that the ex-Chancellor of the Exchequer, Norman Lamont—now Lord Lamont—threatened the bookmakers on several occasions for not paying up. Sadly, I say to the Minister, they did not even listen to the Chancellor at that time, even though he threatened them with increased taxes.
122
What they did, instead, was to play for time and not pay up at all. That is not good enough. The welfare of thousands of greyhounds needs Government intervention—and the sooner the better. Greyhounds have been waiting too long.
I admit that the position is slowly improving, as my hon. Friend the Member for Wolverhampton, South-East pointed out. However, the danger now is that the industry will point to the recent increase as the answer to all evils. As we have heard, the bookmakers have made it absolutely clear that the sum will not rise in the future—not in the foreseeable future, not in the future at all.
I have high expectations of the Minister. I believe that the proposed animal welfare Bill must guarantee a number of things for racing greyhounds. I am sure that the Minister would see them as desirable. For instance, the Government must legislate for the mandatory provision of vets, preferably independently employed, at all greyhound tracks. They should state that all retired greyhounds must be re-homed, including those that are bred for racing but never make it to the track. Records must be kept to monitor greyhounds and particularly their treatment and the levels of care provided by owners and trainers. The proposed animal welfare Bill must also introduce minimum standards across the industry. It must make greyhounds safe from unnecessary death and suffering.
Finally, I urge the Minister to recognise that he and his Department need to be actively engaged with the industry. To wait and see how or if Lord Lipsey is able to shift the industry in the direction of improved welfare, including retirement provision, is equivalent to abandoning the issue to those who for years have spent levy money on restaurants, toilets and prize money, while welfare has largely been ignored. If the Minister really wants to improve the standards of greyhound welfare, to bring an end to the unnecessary killing of healthy greyhounds and to see decent welfare at independent tracks, he must act. I say to my hon. Friend that dog lovers throughout the country are relying on him to deliver, and I urge him to act—and to act soon.
9.58 pm
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Mr. Ben Bradshaw): I thank my hon. Friend the Member for Mansfield (Mr. Meale) for securing this debate and for providing us with the opportunity to debate an issue that I know is of great concern to many right hon. and hon. Members—and, indeed, to Members in the other place. I pay tribute to the excellent work that my hon. Friend has done—not just for greyhounds, but across animal welfare. He has taken significant strides forward.
It is not surprising that greyhound welfare is of such concern. Greyhounds are one of the oldest breeds of dog known to humans, and I fully agree that we have a strong duty to act where there is a need to protect their welfare. As my hon. Friend acknowledged in his speech, more money is now being made available to improve the welfare of greyhounds. On 6 April this year it was announced that an agreement had been reached between the Association of British Bookmakers and the British Greyhound Racing Board, which will see an incremental increase in the voluntary contribution paid

123
by bookmakers to the sport from 0.4 per cent. of betting turnover to 0.6 per cent. in 2006. That could see payments to the British Greyhound Racing Fund—the body set up to distribute that levy—
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.—[Jim Fitzpatrick.]
Mr. Bradshaw: Payments could rise from £8 million to some £16 million by 2006—
Mr. Meale: The problem is that whether the figure is £8 million or £16 million, none of it is guaranteed to go to welfare. It is spent on prize money, stadiums and a range of other things. If history is any guide, very little of it will go on welfare issues.
Mr. Bradshaw: Our hope and expectation is that a substantial proportion of that extra money will be used to pay for improvements in greyhound welfare. It is an extremely encouraging development that shows that the two industries are capable of working together better than they have in the past. I would like to take this opportunity—as did my hon. Friend—to thank my right hon. Friend the Minister for Sport and Tourism for helping to broker that agreement.
My hon. Friend raised a concern also raised by many Members of both Houses about the welfare of retired greyhounds. Some of the new funding received from the bookmakers will go to help the Retired Greyhound Trust, which has been re-homing greyhounds for nearly 30 years. The organisation re-homed 2,608 greyhounds in 2003, compared with 2,030 in 2002. The trust re-homes dogs from the tracks registered by the National Greyhound Racing Club, and we all hope that increased funding will add extra impetus to its efforts. As my hon. Friend acknowledged, there are many other organisations that work tirelessly to re-home greyhounds, whether they be large canine charities such as the Dogs Trust and Battersea Dogs Home, or smaller organisations such as the greyhound rescue charities in Wales and the west of England.
Even before the extra funding was agreed, the industry had demonstrated a growing commitment to retired greyhound welfare. That was illustrated by the steady increase in payments to the Retired Greyhound Trust, culminating in a payment last year from the British Greyhound Racing Fund of £600,000. It must also be remembered that there are many responsible greyhound owners who make provision for their animals during retirement, either paying for them to live in kennels or taking them into their own home as pets. I hope that the debate this evening will help to give those charities that do re-home retired greyhounds some well-deserved publicity. As my hon. Friend remarked, a retired greyhound is something of a friendly couch potato and therefore an ideal pet for a wide spectrum of dog lovers.
Mr. Dennis Turner: I thank my hon. Friend for his comments about the charities that support the care and welfare of greyhounds in retirement, to which we all
124
subscribe. As chairman of the all-party group on greyhounds, I speak for all those Members of the House of Commons who are committed to working for the welfare of greyhounds. We have already had a successful meeting with the League Against Cruel Sports at which we talked about its programme. I assure the Minister that we are committed, together with the BGRB, to advancing the cause of greyhound welfare.
Mr. Bradshaw: That intervention reflects the spirit of co-operation and constructive engagement between the two sides that will result, I hope, in further improvements in the months and years to come.
Over the last decade, a number of welfare organisations have tirelessly campaigned for the racing industry to do more to raise standards. We are now seeing tangible evidence of that, including an increase in funding for welfare and the excellent work done by Clarissa Baldwin, the chairperson of the Greyhound Forum, in getting the industry and welfare groups to work together to produce the charter for the racing greyhound. The charter, which has now been in place for two years, represents a solid commitment to higher welfare standards. Building on the charter, there are now some exciting initiatives under way that should lead to further significant improvements.
Briefly, I would like to mention the research that is going on in Poole to establish the best way to prepare and lay a track from the welfare point of view—something to which my hon. Friend the Member for Mansfield referred in his speech. The initial cost to the industry for that research is £75,000.
In addition, the British Greyhound Racing Fund has spent £600,000 on grants to tracks so that their kennelling facilities could be upgraded. That work is almost complete. Ii has enabled air management systems to be installed, which will, I hope, avoid incidents such as the death of the greyhound Football Focus at Catford in 2002 and others of the sort mentioned by my hon. Friend. All other track maintenance grants were refused until that work had been carried out. Those initiatives are in addition to the core funding that the fund provides to enable tracks to implement welfare provisions.
My hon. Friend also reminded the House that the Government hope goon to publish their draft animal welfare Bill, which will impose a duty of care on all animal owners and will allow action to be taken before an animal is actually suffering. That provision will of course extend to the owners of racing greyhounds, and will lead to further improvements in greyhound welfare. The Bill will also allow the Government to introduce secondary legislation to regulate certain activities, and the welfare of racing greyhounds is an area where those powers could be used.
Provisions are already in place on which the industry could build; for example, a vet must be in attendance at all NGRC race meetings and all track and trainer kennelling must meet a minimum standard. There is also a responsibility on the owner to ensure that any change of ownership, including at the time of retirement, is sent to the NGRC. The tracks are also inspected by local authorities under the Betting, Gaming and Lotteries Act 1963, and for public safety reasons.

125
This is an extremely exciting time for the greyhound racing industry.
Mr. Meale: Would it be possible for the Minister, via one of his friends in the local government section of the Government, to provide advice that local authorities dealing with planning permission for independent tracks should lay down a 106 planning condition that a registered vet is in attendance at all race meetings?
Mr. Bradshaw: That is a very interesting suggestion. Perhaps my hon. Friend will allow me to give it some consideration and to discuss with my officials whether it would be practicable; it certainly sounds desirable.
With the new leadership to which my hon. Friend referred and the renewed vision at that leadership, there is the possibility of a sea change in attitudes over the next two or three years.
As my hon. Friend also acknowledged, Members are aware that the draft Gambling Bill has recently undergone pre-legislative scrutiny. The Bill is primarily concerned with ensuring that the gambling industry is regulated in the most appropriate form, but it is also
126
concerned with safeguarding the integrity of the product. That means that measures with an impact on welfare may appear in the Bill.
I realise, however, as my hon. Friend pointed out, that 20 tracks in Great Britain fall outside the auspices of the NGRC. They are not entitled to any of the funding from the British Greyhound Racing Fund, as off-course bookmakers do not operate at them. I must stress that all greyhounds will enjoy protection under the proposed animal welfare Bill, and that will include those that run at independent tracks, so those tracks will need to start thinking extremely carefully about welfare improvements. In the future they cannot expect to operate at a lower welfare threshold than other tracks.
In July 2001, an Adjournment debate on greyhound welfare was held in another place. During that debate, my colleague Lord Whitty said that the racing industry had to get its house in order. There are now very clear signs that we are starting to see that reordering, but I agree with my hon. Friend the Member for Mansfield that we must not be complacent and that much remains to be done.
Question put and agreed to.
Adjourned accordingly at nine minutes past Ten o'clock.

FOREIGN AND COMMONWEALTH AFFAIRS

  Export Controls
  The Minister for Europe (Mr. Denis MacShane)
  The 2003 Annual Report on Strategic Export controls will 2WS
  be published at 14.30 today as a Command Paper, and copies will be placed in the Library of the House. The report includes information on licensing decisions made during 2003 as well as describing UK policy and international developments in export control regimes.

  Annual reports on strategic export controls are an innovation of this Government. Our defence exports licensing system is one of the most rigorous and open in the world and this annual report is a symbol of our commitment to transparency and accountability. This will be the Government's seventh annual report (the first report was published in 1997). The report will be available on the FCO website: www.fco.gov.uk and also published through the Stationery Office.

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

Royal Mail
Baroness Oppenheim-Barnes Baroness Oppenheim-Barnes asked Her Majesty's Government:
What steps they are taking to ensure the satisfactory delivery of post by the Royal Mail.
Lord Davies of Oldham: My Lords, Royal Mail is currently undertaking a complete restructure of the business with the full backing of the Government. This is a huge undertaking for the company. I understand that, for the most part, the change has gone reasonably smoothly and is now working well. There have been some problems in certain areas and Royal Mail has apologised for the fall in service. Royal Mail has drawn up detailed plans to tackle these problems and DTI Ministers have Allan Leighton's personal assurance that these will be implemented vigorously.
Baroness Oppenheim-Barnes: My Lords, is the Minister aware that he has been misinformed? Nothing is going smoothly and it has not been going smoothly for many months. The Royal Mail is a national disgrace. I do not accept the figures that have been given. Is it not fraudulent for Royal Mail to charge people for a first-class stamp when it knows for certain that in many cases there is no hope of completing a first-class delivery?
Lord Davies of Oldham: My Lords, I think that the noble Baroness should be a little reserved about dismissing the figures. They are externally verified.
2
The position is that the Post Office has rightly identified that its target was for 93 per cent of first-class mail to be delivered the next day and it hit only 90 per cent. It has apologised for falling short of that target. In other respects, the process of major restructuring in any company as large as this is bound to cause some difficulties in the short term.
Lord Clarke of Hampstead: My Lords, I declare an interest as a former postman with more than 50 years' experience of the Post Office. Is the Minister aware that it is the dedicated workforce, especially the regular delivery officers, who are bearing the brunt of the criticism—which is justified in many cases—and that they receive insults on the doorstep because of the deteriorating service? Does he agree that the increasing use of untrained, straight-from-the-agency staff to deliver people's important mail is causing widespread delay and misdeliveries? As the Government wholly own the Post Office, should they not be using their influence to halt the obscenity of paying senior managers vast bonuses for their failures?
Lord Davies of Oldham: My Lords, I agree with my noble friend that the vast majority of full-time postmen discharge their responsibility successfully and conscientiously. As he has indicated, there have been problems with regard to the employment of casual labour, which has been necessary because it is extremely difficult to recruit postmen in certain parts of the country. On the more general issue of pay and bonuses, the senior figures in the Post Office forsook their bonuses, except in the area of the financial target. It is in the area of the financial target that they have been successful. In all other areas, they did not receive bonuses.
Lord Razzall: My Lords, has the Minister read the report by his noble friend Lord Sawyer, which was circulated in the past 24 hours, on the question of labour relations within the Post Office? If he has read it, would he not agree that his somewhat optimistic statement to

3
the noble Baroness regarding improvements in the Post Office, particularly in the Royal Mail, is perhaps undeserved?
Lord Davies of Oldham: My Lords, in a service industry like the Royal Mail, the relations between staff in the organisation are crucial. Last year was a bad year and, without any doubt at all, it contributed to the significant failure of the Post Office to hit certain targets. There is clear room for improvement. Assurances have been given to the Government that it is the area on which the management intend to put the highest priority.
Lord Wright of Richmond: My Lords, I recall reading in the press about two months ago that Royal Mail had decided to revert to the excellent practice of putting the time of the last post into the slot on post boxes. Does the Minister know when this will start?
Lord Davies of Oldham: My Lords, I had voluminous briefing for this Question but not a single reference to that particular point. The noble Lord has clearly indicated something that the Post Office ought to consider and we will make sure that his comments will be referred to it.
Lord Dubs: My Lords, will my noble friend confirm that even if there are difficulties with mail deliveries in some parts of the country—London may be an example—there are other parts of the country where the service is excellent; for example, in Cumbria? It is much to the dismay of postal workers in those parts of the country that they are being tarnished by the kind of allegations that have been made from the Benches opposite. There continues to be an excellent service in those parts of the north of England with which I am familiar.
Lord Davies of Oldham: My Lords, my noble friend is right that across the vast range of the country postmen are fulfilling their duties with the conscientiousness for which we have always respected them. There are one or two areas where there have been very considerable difficulties. At least one of those areas is one where there is a heavy movement of mail; namely; London. Last year, that contributed to the failure of certain aspects of the postal service.
Lord Inglewood: My Lords, having heard the Minister's fulsome confidence in the future performance of the Post Office, can he assure the House that the cheque in the post will come more quickly than it has in the past?
Lord Davies of Oldham: My Lords, the noble Lord is one of those fortunate beings who receives cheques in the post. Many of us envy him.
Lord Berkeley: My Lords, although it is good that my noble friend the Minister says that Post Office directors forwent bonuses last year in relation to delivery, they still received bonuses for financial performance. Financial
4
performance is clearly important, but with delivery performance as appalling as it still is in some parts of the country, surely they should not receive any bonuses at all.
Lord Davies of Oldham: My Lords, I think the chairman of the Post Office is all too well aware of my noble friend's sentiment in this respect; he made it clear that he was not prepared to accept a bonus. However, there would be no point in having targets and bonuses attached to targets if the bonuses were not paid when the target was hit. As I indicated earlier, the financial target was hit. That was the area in which the bonus was paid.
Baroness Miller of Hendon: My Lords, following the noble Lord's first—very polite, but perhaps somewhat complacent—Answer, and as he spoke a little later about London, is he aware that in the postal district where my office is located—in London W1, where there are loads of solicitors, accountants and professional people—the Royal Mail's target is to deliver the mail between 11 a.m. and 2 p.m., and that that is all? Does the Minister really think that delivering on such unrealistically low targets is what could be called a proper delivery service?
Lord Davies of Oldham: My Lords, there has been widespread recognition of the fact that the Royal Mail has moved to one delivery. That made financial sense because 20 per cent of its resources were being devoted to a delivery of only 4 per cent of the mail. The noble Baroness has identified the fact that the service needs to be improved—the chairman made it absolutely clear in his meeting with Ministers that he regards that as the top priority—and she is quite right. In parts of the London area the service has not been satisfactory and the Post Office recognises that fact.

Freedom of Information Act 2000: Implementation
2.45 p.m.
Lord McNally Lord McNally asked Her Majesty's Government:
Whether preparations for the implementation in 2005 of the Freedom of Information Act 2000 will include provision for a fee structure for access to government information; and what the level of fees will be.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): Yes, my Lords, the Government will bring forward fees regulations under the Act in good time for their coming into effect in January 2005. We have published draft regulations, and we will be bringing forward to Parliament a final version by October.
Lord McNally: My Lords, does the Minister agree that a fee structure that charged exorbitant fees for freedom of information would in fact be the freedom to dine at the Ritz? Does he not grow more concerned

5
every day about how far we have moved from those heady days when the noble Lord, Lord Clark of Windermere, brought forward his wonderful White Paper which cost him his job in the Cabinet? There was a commitment to freedom of information and to removing the culture of secrecy from Whitehall, in contrast to the position today when the culture of secrecy is firmly embedded in the Government.
Lord Filkin: My Lords, I agree with the noble Lord on his first point. A fee structure that acted in any way as a significant deterrent to people making use of their rights under the Act would go against the spirit and purpose of the Act. As for dining at the Ritz, I do not know whether that was an invitation, but I shall consult the Ministerial Code about it. As for the thrust of the noble Lord's question and the possibility that he has inferred from, I think, a wholly erroneous report in the Guardian that the Government are in some way negative or ambiguous about the importance of freedom of information in strengthening democratic participation, he is wrong. We will demonstrate that as the Act is implemented.
Lord Henley: My Lords, has the Minister made any estimates on behalf of the Government as to how many new civil servant jobs will be required for this?
Lord Filkin: My Lords, the best answer would be to make it quite clear that the Treasury says that no additional money will be made available to departments as part of fulfilling their obligations under freedom of information. The noble Lord can draw his own conclusion from that answer.
Lord McNally: My Lords, on that commitment to freedom of information, when I sat on the Select Committee that looked into freedom of information we took evidence from Canada and Ireland which was very strongly in favour of training civil servants in the run-up to implementation of the Act. What training programmes are the Government currently implementing?
Lord Filkin: My Lords, I cannot do justice to the scale of that question now, but I would be genuinely happy to have a discussion with the noble Lord to talk about it in more detail. In short, we are reviewing the matter with all government departments. I have had face-to-face discussions with every department about its implementation plans, and part of the review mechanism of course includes their training plans to ensure that all civil servants are properly trained. There is a judgment to be made about how soon one does that. One has to ensure at this point that there is general awareness, while delivering the high-pressure training nearer to the deadline date.
Lord Henley: My Lords, in response to the question I asked, can the Government therefore confirm that the costs will be borne entirely by those making inquiries under the Act? Therefore, perhaps the noble Lord, Lord McNally, was right in suggesting that this may be a case of dining at the Ritz.
Lord Filkin: No, my Lords, neither suggestion is correct. The Government's position has always been
6
as it was at the point of the Bill's passage: we shall see that the cost of handling information requests is borne substantially by public sector bodies, as is right and proper. How the conundrum is squared between that and the Treasury position is not difficult; a normal part of officials' responsibilities is to respond to requests from the public for information. The only caveat is, and has always been, the cap on the amount of time and effort that we will put into very obscure or complex requests, as was made clear when the Bill was passed.

Oil Market
2.49 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
What is their response to recent uncertainty in the oil market.
Lord Triesman: My Lords, oil is traded in international markets, and it is not for the Government to intervene directly. However, I repeat the sentiments of the statement made by the Finance Ministers in the Group of Seven on 23 May, in saying that we welcome recent announcements by some oil producers to increase production and call on oil producers to provide adequate supplies, to ensure that world oil prices return to levels consistent with lasting global economic prosperity and stability, particularly in the poorest developing countries.
Lord Ezra: My Lords, I thank the noble Lord for that reply. However, would he agree that, in addition to short-term measures intended to increase supply to take the pressure off current oil prices, there should be an intensification of longer-term measures to reduce the demand for oil, especially in the road transport sector?
Would he further agree that such measures should include: the rapid introduction of biofuels; the encouragement of the use of hybrid vehicles, which cut petrol consumption by half; and the wider application of fuel cells to buses, as at the moment only two vehicles use them? Is there not a case for a targeted strategy to reduce oil consumption, to run in parallel with the targeted strategy for increasing renewables?
Lord Triesman: My Lords, the Government are fully committed to increasing the diversity of energy supplies. The key commitment in last year's energy White Paper is to reduce carbon dioxide emissions by about 60 per cent by 2050. We are giving priority to encouraging renewables and energy efficiency. We directly support the use of more environmentally friendly fuels through reduced fuel duty rates, and the Government further encourage the use of cleaner vehicles through reduced vehicle excise duty rates based on vehicle emissions.
The Government want the United Kingdom to lead the shift to low-carbon automotive economies, and to be a good place in which to develop, research and manufacture them. Hybrid vehicles are supported by the Government's Powershift programme, in which grants have been offered of £700 towards the purchase

7
of those vehicles. We encourage buses that use dual supply in the same way. The targeted strategy to increase the number of fuel-efficient vehicles in the UK exists through those plans, copies of which are available in the Library.
Lord Corbett of Castle Vale: My Lords, does not the current speculation about the future price of oil—that is what it is—underline the wisdom in the Government's energy White Paper of making the maximum use of alternative and sustainable energy and, if possible, of trying to ensure that those targets are seen as a minimum, not a maximum? That is the way to guarantee the safety of our energy supplies.
Lord Triesman: My Lords, I wholly agree with my noble friend. There are limits to what the Government can do by way of interposing ourselves in any kind of market arrangement. However, we most certainly can look at the future in the most serious way through some of the alternatives now being developed, not least as a result of the high quality of United Kingdom science and technology, so that we can drive to a point where we are not held hostage by oil prices.
Lord Marlesford: My Lords, in light of the deeply deflationary impact of hikes in the oil price, how much longer will it be before the Government review their allegedly neutral, and in practice hostile, attitude to nuclear power?
Lord Triesman: My Lords, I feel as though I am revisiting a very well loved relation. The arguments have been well rehearsed in this House and I do not intend to repeat them, other than to say that the nuclear option has not been foreclosed. However, serious attention is being given to renewable sources of fuel that we believe will be environmentally friendly and will help to sustain the United Kingdom's energy requirements.
Lord Tanlaw: My Lords, how can the noble Lord say that the Government are doing everything to encourage renewables? In south-west Scotland, which is arguably the best place for wind turbines, there is a blanket objection by the Ministry of Defence to hill farmers—I have a declared interest in the matter—who wish to help the Government in their renewable energy programme. Nothing has been done and no answer has been given on the issue, which I have raised on a number of occasions.
Lord Triesman: My Lords, the issues of aircraft and radar and other signals are being actively pursued. We made it very clear during the passage of the Energy Bill in this House that there remains a desire to site a large number of successful wind farms in appropriate areas
8
off the coast of the United Kingdom, particularly of England, Wales and Scotland. That remains the policy.
Lord Campbell of Alloway: My Lords—
Lord Tomlinson: My Lords—
Noble Lords: This side!
The Lord President of the Council (Baroness Amos): My Lords, there is plenty of time. We can hear from our Benches and then from the Opposition Benches.
Lord Tomlinson: My Lords, although my noble friend has a sense of déjà vu in revisiting the subject, would he accept that there was a sense of déjà vu in the House about the inadequacy of the answer? It is not fully acceptable to say that the Government have not closed their mind to the nuclear option. That in itself is a negative reply. Will he give us a very clear assertion that all steps will be undertaken to maintain the existing supply and our future needs for electricity generated by nuclear power unless and until we have adequate alternatives in place? None of the options should be forgone or allowed to degrade unless and until those renewables that we all want are actually in place, not merely a wish, a dream or a hope.
Lord Triesman: My Lords, as ever, I am deeply grateful to my noble friend for providing so robust a question. I cannot add to the general point. We have not closed the door on any of the fuel sources that we believe will be required. It is not right to make a distinction of the kind that may have appealed to one or two noble Lords about the intention to drive down carbon fuels, find new forms of renewable energy, and make sure that we have not closed the doors to some technologies that have proved extremely valuable in the recent past providing an envelope within which we will meet the fuel and energy needs of the country.
Lord Campbell of Alloway: My Lords, I revert to the Question. Is not the Government's response wholly related to the question of taxation, not to the supply of oil or indeed to carbon emissions, wind farms or whatever?
Lord Triesman: No, my Lords. It could not conceivably be argued that that was the case. There is no need for panic, but the anxieties expressed by governments as diverse as those of China, India and many other countries around the world—their requirements for fuel have grown because demand in their economies is growing—cannot all be attributable

9
to the tax regime in the United Kingdom. We all want consistent supply, because we all want a buoyant economy and stability in the world economy.
Lord Desai: My Lords, despite all the fuss, is it not true that the real price of oil is below what it was in 1973? Oil is cheaper in real terms than it was. There is no energy crisis to justify a nuclear revival.
Lord Triesman: My Lords, it is quite right that, in real terms, oil prices are still at half the levels reached in the early 1980s.
Lord Tebbit: My Lords, the oil producer knows full well that, of the pump price of petrol in this country, 75 per cent is tax and only 25 per cent is there to account for the whole cost of production, transport, refining and retailing. Does the Minister agree that, from the oil producer's point of view, it looks a bit rich for the Government to complain about him increasing his share?
Lord Triesman: My Lords, I do not think that there have been complaints. Indeed, the dialogue that has been opened between OPEC and non-OPEC nations about greater transparency in all issues of pricing has been one of the central features of contemporary negotiations about oil prices. World economic stability is as much in the interest of oil producers as it is, if I may say so, in our interest.
Lord Campbell-Savours: My Lords, is it not true that the scientific research—
Baroness Amos: My Lords, we are out of time.

European Parliamentary and Local Elections
3 p.m.
Lord Hanningfield Lord Hanningfield asked Her Majesty's Government:
Whether they are satisfied that all the arrangements are in place for the European parliamentary and local elections on 10 June.
Lord Filkin: Yes, my Lords, we are satisfied that all the arrangements are in place and that we are on course for successfully run elections on 10 June.
Lord Hanningfield: My Lords, I thank the Minister for his reply, but is he not aware that we are still receiving reports that ballot papers have not been received by electors? In fact, in the ward of Aspull in Wigan, people were informed on Friday that they will have to go to the town hall to vote. In the light of all the assurances that were given during the passage of the elections Bill and the fact that his right honourable friend the Deputy Prime Minister appeared to pioneer the process, would the
10
Minister agree that if any evidence emerged showing that anyone was unable to vote in the election or that people had been disfranchised it might be a resigning matter?
Lord Filkin: My Lords, I shall not go into specifics about the detailed situation in the local authority to which the noble Lord, Lord Hanningfield, refers. I shall outline the overall position and try to give the House a little more detail about why we are confident that the process is on course. We had a debate about that following a Statement that I repeated to the House just before the Whitsun Recess, when we signalled that we were confident that returning officers would comply with their legal obligation to issue ballot papers by the deadline of 1 June. They achieved that: 99.24 per cent of ballot papers were issued by that date and the 0.76 per cent were late were late by five hours and the Post Office incorporated them into the delivery. Therefore, there was no disadvantage to the public.
I am further advised by the Royal Mail that ballot papers had, to the best of its knowledge, been delivered to everyone and that 99.9 per cent were delivered by Thursday last week. The noble Lord, Lord Hanningfield, is right that there are isolated examples, as is true in most elections, where there appears to be a glitch in local areas. But there is ample opportunity and time for electors in those areas or the returning officers, if they are aware of an issue, to ensure that replacement ballot papers are provided or that alternative or additional electoral arrangements are put in place.
Baroness David: My Lords, is my noble friend aware that, in Cambridge, my postal vote had not arrived by this morning? I have had a postal vote for a long time. I have been in touch with the Electoral Commission in Cambridge. It told me that it will send me a postal vote here. That may not arrive in time, but I have to take that vote to the polling station or to the Guild Hall myself. I do not think that that is satisfactory; does the Minister?
Lord Filkin: My Lords, I share my noble friend's concern about the inconvenience. We would not want to lose her from the House by her having personally to deliver the ballot paper to Cambridge during the next few days. I am sure that her words will have been marked in Cambridge and that the authorities will ensure that they fulfil the promise that they have given her, so that she is adequately enfranchised.
Lord Renton: My Lords, the elections to the European Parliament are due to take place within three days. Will the Government make an immediate statement to the electorate in this country that there are now so many members of the European Community and their legal systems and other circumstances differ so much that the European Parliament will be unable to make laws of universal application within the Community?
Lord Filkin: No, my Lords, we will not issue such a statement for two reasons. First, the question is wide of the mark of the Question on the Order Paper. Secondly,

11
the Government do not share the view that that is an accurate description of the position of the European member states.
Baroness Hanham: My Lords, does the Minister accept that most of us think that his statement is remarkably complacent and that there have indeed been some disastrous reports of what has been going on in the four areas in the north where there is all-postal voting? Will the Minister today give an unreserved assurance that for all future elections, especially the regional referenda that are coming up, voters will again be given the opportunity to cast their vote in the ballot box in the traditional manner?
Lord Filkin: My Lords, to come to the last point first: we have always been clear that these are pilots. They are pilots for a good reason, as we discussed at length during the passage of the Bill. Therefore, it is right and proper that the experience of the pilots is evaluated, reported on and discussed before we move forward on all-postal balloting. The right of an individual elector to opt for a postal ballot is already enshrined in law and we have no intention of retreating from that position.
Before we get overexcited about prematurely celebrating a disaster, we should make a distinction. Several things are going on at once. We have combined elections, which in itself is slightly more complicated for electors than a single election—although it is not the first time that that has happened. Moreover, we have all-postal ballots, which is bound itself to be a novelty to some people. It would be surprising if it were not. But that does not mean that one has a failed or a flawed electoral system.
Irrespective of that, we will receive a report from the Electoral Commission in mid-September, as it is statutorily obliged to report on its evaluation of postal ballots. That will give us an opportunity to discuss the issues again.

Business
3.6 p.m.
Lord Grocott: My Lords, with permission, later this afternoon a Statement on Iraq will be repeated by my noble friend Lady Symons, which will be taken after the completion of consideration of the asylum Bill and before the debate on the Housing Bill.

Higher Education Bill
3.7 p.m.
Lord Triesman: My Lords, I beg to move the Motion standing in the name of my noble friend Lady Ashton of Upholland on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 13,
Schedules 1 and 2,
Clause 14,
Schedule 3,
Clauses 15 and 16,
Schedule 4,
Clauses 17 to 29,
Schedule 5,
Clauses 30 to 45,
Schedule 6,
Clause 46,
Schedule 7,
Clauses 47 to 50.—(Lord Triesman.)
On Question, Motion agreed to.

Statute Law (Repeals) Bill [H.L.]
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.
Moved, That the House do now resolve itself into Committee (on Recommitment).—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
House in Committee (on Recommitment) accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Repeals and associated provisions]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved the amendment:
Page 1, line 5, at end insert—
"(3) In determining for the purposes of section 1 of the Regulatory Reform Act 2001 (c. 6)(power by order to make provision reforming law which imposes burdens) whether any provision of an Act falls within subsection (4)(a) of that section (provision amended by an Act within previous two years), the effect of this Act is to be disregarded."
The noble and learned Lord said: The amendment addresses a potential problem in connection with the Regulatory Reform Act 2001. Section 1 of that Act gives a Minister of the Crown power to reform primary legislation that has the effect of imposing burdens that affect persons in the carrying on of any activity. Such reform is made by way of a regulatory reform order. Section 1(4) of the Act prevents a regulatory reform order being used to amend a provision in an Act that has already been amended during the past two years, other than consequential or incidental amendments. The Bill, of course, amends a number of Acts by repealing parts of them. Section 1(4) of the 2001 Act will prevent Ministers from making a regulatory reform order reforming parts of any provisions that have been partially repealed during the two years after the Bill receives Royal Assent.
We think that that is an unnecessary restriction. The amendment will enable the Bill when enacted to be disregarded for the purposes of Section 1(4) of the Regulatory Reform Act 2001. I beg to move.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Clauses 2 and 3 agreed to.
Schedules 1 and 2 agreed to.
House resumed: Bill reported with an amendment.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
3.10 p.m.
Lord Filkin: My Lords, on behalf of my noble friend Lady Scotland of Asthal, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Filkin.)
On Question, Motion agreed to.
Clause 14 [Unification of appeal system]:
Lord Goodhart had given notice of his intention to move Amendment No. 42:
Page 13, line 29, after "thinks" insert "it is reasonably arguable"
The noble Lord said: My Lords, we are content with government Amendment No. 42A, therefore I shall not move Amendment No. 42.
[Amendment No. 42 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 42A:
Page 13, line 29, after "Tribunal" insert "may have"
The noble Lord said: My Lords, on behalf of my noble friend Lady Scotland, I beg to move Amendment No. 42A.
I trust that the amendment's measures are largely self-explanatory. We recognise the arguments put forward by noble Lords in Committee that subsection 2(a) of new Section 103A was not as clear as we intended. That is why we have tabled Amendment No. 42A, which has the advantage of being a formula from the civil procedure rules.
The Civil Procedure Rule Committee, when considering the rules relevant for the purposes of Section 101 of the Nationality Immigration and Asylum Act 2002, decided that it would be appropriate to add the words "may have". That addresses the point that when dealing with an application on the papers the judge might not be able to be certain whether an error of law had been made. We wish to stick closely to the statutory review test, which already has the benefit of judicial interpretation.
Lord Kingsland: My Lords, in our original amendment, tabled on the first day of Committee, our test for review was more demanding, although it was predicated upon changes at the Home Office interview stage and the single-tier tribunal stage, which have so far not been forthcoming. So we will not contest it.
However, the Government will have to recognise that their amendment will have implications for their legal aid proposals. You cannot have a test for review consisting of the Government's new definition on the one hand, and a legal aid regime that gives legal aid
14
only ex post facto for wins or near-misses on the other. That legal aid regime is clearly no longer appropriate. The list for provision of legal aid should clearly match the new government review test; otherwise the legal aid system will block access to rights now to be granted by legislation.
Lord Goodhart: My Lords, we feel that the amendment deals with the problem that we outlined in Committee. We are satisfied with its drafting. The noble Lord, Lord Kingsland, has rightly raised the question of legal aid; we shall speak on that when we get to the appropriate group of amendments.
On Question, amendment agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 43:
Page 13, line 33, leave out "5" and insert "10 working"
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 44, 51, 52 and 59.
New Section 103A of the Nationality Immigration and Asylum Act 2002, added by this Bill, imposes a draconian timetable on applications for review of tribunal decisions. It allows a period of five days, beginning with the date on which the appellant is treated as receiving the notice of the tribunal's decision in accordance with the rules. Frankly, that is a ridiculously inadequate period.
First, the date of the actual receipt of notice may be later than the deemed date under the rules, particularly if the now notoriously unreliable postal service is used. It is perfectly proper to include a deemed date in a Bill, because it prevents problems of uncertainty about when notice was received. However, a deemed date is acceptable only if the time as a whole that is provided is reasonable and it can be accepted that the deemed date may be a day or two in advance of the actual date of receipt. In other circumstances such as those in the Bill a deemed date is not acceptable.
Secondly, the period allowed is not even five full days; in reality, it is more like four. As the Bill is drafted, the day on which the notice is deemed to have been received is the first day of the five-day period. Therefore, even if notice is deemed to have been received on a Monday and is indeed received on that day, that constitutes the first day of the five-day period, and the second, third, fourth and fifth days are Tuesday, Wednesday, Thursday and Friday. So the application received on Monday will have to be submitted before the court closes for business on Friday afternoon. That is inadequate time.
Let us look at what needs to happen. The appellant's lawyer, if he or she has one, cannot set out grounds of appeal before seeing what the tribunal has said and the grounds on which it has decided the case. The lawyer will therefore have to read the tribunal's decision, to consider further the legal issues involved in the decision and possibly consult the client—that may involve arranging a meeting at which an interpreter must be present. The lawyer will have to draft grounds of appeal, get the application in proper order and submit it to the appropriate court before it closes for business on the last

15
available day. Lawyers are likely to be busy and have several cases running simultaneously, with the result that the one who handled the first stage may have other commitments, meaning that a new lawyer must be found to submit the application.
We recognise the power in subsection 4(b) of new Section 103D to extend the time, but that safety valve is not an adequate reason for allowing much too short a time for the basic period. If applications made out of time become frequent, it leads to unnecessary time-wasting and cost-wasting satellite arguments about whether there is adequate justification for the delay. Ten working days is quite a short period but would be just sufficient for these cases.
Amendments Nos. 51 and 52 follow on from the earlier Amendments Nos. 43 and 44. We recognise that there may be a need for power to vary the timetable by secondary legislation. But that power can be used not only to extend the time but to reduce it to a period shorter than that stated in the Bill. We believe that if it is used for that purpose, the order should require the affirmative resolution procedure. We feel that among the many defects of Clause 14, given that it is a considerable improvement on its predecessor, the extremely and unnecessarily short timescale that is provided for making the application is one of the worst. I beg to move.
Lord Clinton-Davis: My Lords, I support what the noble Lord, Lord Goodhart, has said. We are grateful that there has been some improvement in Clause 14. The Government ought to be congratulated as far as that is concerned. However, as the noble Lord, Lord Goodhart, said, the period of five working days is wholly inadequate. The purpose behind my support for these amendments is to improve rather than diminish the practicability and effectiveness of this clause. It is the view of the Law Society that the amendments that have been moved are likely to be more realistic in the circumstances. As the Law Society has contended, the crucial matter is that justice should be done and be seen to be done. Speed is significant, but it is not the whole argument. For that reason, I support the proposal of 10 working days.
The time limit is in many cases impracticable, and it will have the unfortunate consequence of persuading more applicants to apply to the court for an extension of the statutory time limit. The essential issue is that the case ought to be properly prepared and presented; that cannot be done in five working days. I speak from some experience as far as this provision is concerned, both direct and indirect. We are talking about people's right to present their case properly. There have been many incidences of this concern in practice.
The amendment is supported by the Law Society for the reasons that I have elaborated. As I understand it, the Law Society has explained its purpose to Ministers. What have Ministers said to the Law Society in response? The House is entitled to know. After all, the Law Society is concerned—as is the Bar Council—to make these provisions practicable and enforceable. I
16
hope, notwithstanding the initial response, that my noble friend will have second thoughts about this important matter.
Lord Newton of Braintree: My Lords, I rise to speak only briefly, reminding the House, as I did when I spoke in the original debate on the ouster clause, that I am chairman of the Council on Tribunals, which I hope may be seen as a qualifying interest, rather than a disqualifying interest in this context.
Looking carefully in the direction of the Minister, I wish to express my support—and I think I can safely say the support of the Council on Tribunals—for some extension of this five-day rule. Like everyone else, we focused our principal attention on the original ouster clause, and share the gratitude of all that it has disappeared in its original form.
However, this was one of the various points of detail on which we had focused. I can only say that we believe—I certainly do—that five days is much too short a period to obtain proper advice about applying for a review and help in preparing it, and much too short a period for an appellant with no means of obtaining advice or assistance. In general, there is a risk that this would run contrary to what we would all agree, however difficult the problem, should be an open and proportionate system of review.
I do not think that I need to say more, but I hope that we shall receive a positive response from the Minister. Whether 10 days is the right figure is not a matter that I would want to die in a ditch on, but I am clear that five days is too little. I hope that the Government will be prepared to look at this again.
The Lord Bishop of Newcastle: My Lords, I support the amendment standing in the name of the noble Lord, Lord Goodhart. I am grateful for some of the changes that the Government have made in Clause 14. They have gone some way to satisfying some of the objections that some of us have had. In my view, they have not yet gone far enough. I am particularly bothered about the five-day limit. I do not believe that it is workable. A much-respected immigration solicitor in the city of Newcastle, where I live and work, says that she spends some 20 hours preparing a case with a client. She believes that her job will no longer be viable if these regulations are to come in. In an asylum system that anyway is operating with a culture of disbelief, how on earth will vulnerable people be able fully and effectively to put forward their evidence within those five working days of the notification of the decision?
Grounds of appeal prepared in great haste do not give the best material on which to make difficult decisions. The five-day limit is not a proposal for a fair system, let alone an effective one. Therefore, I strongly support this amendment in the name of the noble Lord, Lord Goodhart.
Lord Avebury: My Lords, I am glad that the right reverend Prelate has raised the question of the time that is required to obtain the legal advice that is necessary, because this is a matter that has been raised with all your Lordships by the Refugee Children's

17
Consortium. It says that this is a universal problem. It is not just the particular adviser who has informed the right reverend Prelate of this problem; all advisers are in the same boat. They already must spend a great deal of time accessing legal advice on behalf of their clients, and these regulations will make life almost impossible.
In the representation that the consortium has made to your Lordships, it says that its staff already spend hours on the telephone seeking a legal representative, or to make an appointment with a legal representative. The first lawyer that they approach many not be willing to take the case on, and there may be several iterations of the calls. The original lawyer who dealt with the case at an earlier stage may not be prepared to act in this instance.
It is almost universally agreed that the time limit of five days is impossible. It was referred to particularly in the JCHR sixth report of session 2003–04, which says that,
"the UNHCR has expressed the same concern about the five day limit and the likelihood that it may result in … contravention of the fundamental principle of non-refoulement in Article 33 of the 1951 Convention Relating to the Status of Refugees".
They say that it falls short of international standards of fairness, while seriously compromising the ability of asylum applicants to access their rights of appeal. Faced with this barrage of opinion from all quarters, I cannot imagine that the Home Office will stick with its original decision. It must bow to the weight of professional and legal opinion and make the concession that my noble friend has asked for.
3.30 p.m.
The Countess of Mar: My Lords, may I remind noble Lords of my interest in this subject? I am a lay member—currently an endangered species—of the Immigration Appeal Tribunal. I support the noble Lord, Lord Goodhart, and all the other noble Lords who have spoken in favour of this amendment. Already the number of lawyers who are registered as being allowed to represent asylum seekers is limited and, from my own knowledge, they are extremely hard-working and hard-worked individuals. If they are not given time to prepare a case properly it is going to defeat the objective of this Bill, which is to speed up decision-making, so I offer my support.
Lord Plant of Highfield: My Lords, I intervene as a member of the Joint Human Rights Committee, whose report the noble Lord, Lord Avebury, has just mentioned. The Committee deliberated long and hard about the new clause and all its various ramifications, and we looked at a great deal of evidence. I remind noble Lords, with their indulgence, of precisely what the Committee said on page 21 of its recent report; it is pretty categorical. It stated:
"We consider the five day time limit to be far too short for the right of access to the High Court and beyond to be practically effective. The number of tasks to be performed between receipt of a decision and lodging an application for a review makes it simply impracticable to require applications to be lodged within five days. An application for reconsideration will require the applicant's legal representative to receive a copy of the Tribunal's decision, to read and consider it, to marshal any necessary evidence (which may require a meeting with the
18
applicant at which an interpreter might well be required), to draft the legal grounds of challenge, and to lodge the application at the High Court. We consider that, more often than not, completing all these steps within a five day time limit will be a physical impossibility for most asylum seekers".
We come to the conclusion that this provision may in effect impede the idea of a right of access to the higher courts.
Lord Ackner: My Lords, it is obviously desirable that any time limit should be fair, but it is even more important that it is practical. If it fails in that, there is a real risk it will defeat itself, and there will come before the necessary authorities something that may be looked upon as half-baked. To bake it properly will waste time, which will be due entirely to the defect that has been pointed out. The offer to increase the five days by another five is an extremely reasonable and sensible approach, which involves the Government in no cost of any significance.
Lord Kingsland: My Lords, so many of your Lordships have spoken to the same effect on this amendment that I have little to add. We have added our name to the amendment moved by the noble Lord, Lord Goodhart, and so your Lordships would naturally expect me to support it, which I happily do.
We on these Benches have always been opposed to the five-day period for the reasons that the noble Lord, Lord Goodhart, and others of your Lordships have so eloquently expressed. In an amendment tabled in Committee, we suggested a seven-day limit. However, that suggestion was based on a number of assumptions about the rest of the Bill that no longer apply, of which I shall mention just two. The current appeals rules—that is, the rules of 2003—allow for the interests of justice to be taken into account when considering an extension of time. That provision is in paragraph (2) of Rule 16. We should contrast that with the test for extension of time found in Clause 14(6), which sets out the terms of subsection (4)(b) of new Clause 103A. The test is expressed thus:
"the appropriate court may permit an application under subsection (1) to be made outside the period specified in subsection (3)"—
in this case, it is five days—
"where it thinks that the application could not reasonably practicably have been made within that period".
I am sure that your Lordships will agree that that is a much more severe test for the applicant than the test under the existing rules.
Our second reason for supporting the noble Lord, Lord Goodhart, is that our suggestion—seven days—also assumed that oral hearings would be permitted in the review, where they were considered by the High Court judge to be in the interests of justice. In the absence of the ability to make such oral submissions, the quality of written submissions and their degree of comprehensiveness must be very high. We do not see how that can be achieved within the short period of five days.

19
For those reasons and for others that have been amply expressed by your Lordships, we support the amendment moved by the noble Lord, Lord Goodhart.
Lord Filkin: My Lords, in responding to the many noble Lords who have spoken to the amendments, I thank those who paid tribute to the fact that the Government have listened to representations made in this House and elsewhere. That is appreciated. As a consequence, we have crafted a system that still enables us to achieve the essential thrust of the policy, while listening to the concerns that have been raised.
Amendments Nos. 43, 44 and 59 would extend the time limit for making a review application and for opting in under the transitional provisions from five working days to 10 working days. As the House knows, we wish to make the review process as swift but as fair as possible. We are confident that, in practice, five working days allows an appellant sufficient time to consult a legal representative and lodge the application papers for a review. It should also allow sufficient time for an applicant to opt for the review application to be looked at by the High Court under the transitional provisions in Schedule 2.
I shall explain why we have come to that view. It is important to remember that we are not talking about the appeal against the initial decision by the Secretary of State or entry clearance officer. The review is a process that we will put in place to allow a tribunal decision to be reconsidered, if there may have been an error of law by the tribunal that affected the tribunal appeal determination. In those circumstances, the shorter time limit of five working days best achieves the balance between speed and fairness.
The reason why we believe that the timetable is practical is that the grounds for appeal will already have been covered at the appeal before the tribunal. There will have been a clear statement of reasons for the appeal that will focus the appeal on the key points at the hearing. The process is not a rehearing of the case requiring new grounds but a process to allow errors of law by the tribunal to be corrected, if it affected the original appeal decision. That should not be over-onerous on the legal representative, as, first, the legal representative should already be familiar with the case through the earlier work on the appeal and, possibly, the initial claim to IND. Secondly, the kind of issues that we are talking about with regard to an "error of law" should be familiar to the lawyers from their experience of judicial review and statutory review. If there is a genuine exceptional reason why the application could not be made in five days, it is down to the judge to decide whether to allow a late application.
The noble Lord, Lord Kingsland, explained as elegantly as one would expect why he has moved from supporting a seven-day timetable to supporting one of 10 working days. When my noble and learned friend
20
the Lord Chancellor announced at Second Reading that we would introduce measures to provide for oversight by the higher courts, he stressed that we would balance them with the aims of speed and reduction of abuse. We must bear those objectives in mind at the same time. It is important to ensure that there is a fast, end-to-end process. It is not in the interests of genuine appellants to drag out the appeal process. Shorter time limits would help to dissuade people from abusing the process or wrongly believing that they can.
Lord Kingsland: My Lords, I am grateful for the Minister giving way so courteously. I understand his point about expedition, which was made by the noble and learned Lord the Lord Chancellor at an earlier stage. But does it not fit ill with the refusal of the Government to include in the Bill either a limitation period for the period between the asylum application and the application decision by the Home Office or the additional refusal of the Minister or the Home Office to accept any time limitation between the end of the statutory review process and the moment of deportation? What relevance has five days within the appeal process if the Government have dug their heels in on those other periods, which often amount to years?
Lord Filkin: My Lords, I shall now relay the remarkable reduction in the overall speed of decision making that has taken place on asylum and immigration matters since 1997. I am sure that the noble Lord, Lord Kingsland, is well aware of the significant overall reduction. We are debating the specific time limit of the appeal in order to see whether we have allowed a process that gives an appellant an adequate time in which to put forward his or her case. With the leave of the noble Lord, I shall continue my explanation about why we believe that we have got it pitched right.
As I have said, we accept that there will be exceptional circumstances when, for reasons outside the control of the applicant and his or her representative, it will not be possible to lodge an application within the five-day time limit. The Bill recognises that and makes provision for applications to be accepted out of time in those circumstances. The discretion in doing so will rest not with the Government but with the High Court judge who is considering the issue.
Amendments Nos. 51 and 52 would make the order-making power to vary the time limits subject to the affirmative resolution procedure. The Delegated Powers and Regulatory Reform Committee scrutinised the order-making and regulation-making powers in Clause 14 and published its recommendations in its 15th report of this Session. The committee recommended that regulation-making powers under Section 103D of the 2002 Act, which concern new legal aid arrangements, should be subject to the affirmative resolution procedure. I have brought forward an amendment to give effect to that recommendation.
However, the committee did not recommend that the order-making power to vary time limits should be subject to the affirmative resolution procedure. If the order-making power is used, both Houses would have

21
the opportunity to give detailed consideration to the order. If they felt it necessary, they could of course pray against it.
Perhaps I may turn to some of the specific points—
Lord Clinton-Davis: My Lords, I am much obliged to my noble friend the Minister for giving way. I am sure that he has had an adequate opportunity to advance all those arguments to the Law Society, the Bar Council and others, but would he care to mention who supports the Government where this is concerned? After all, the House is entitled to know that. When my noble friend advanced those arguments to the powers that be, what was their response?
Lord Filkin: My Lords, I was not privileged to be privy to all of those discussions with the relevant professional bodies. In response to the question about who supports the attempt of the Government to ensure that we uphold our traditions in this society of giving fair and proper consideration to people who apply to us for refuge and asylum, the public are clear that they want government and society generally to ensure that the abuse in the system is stamped out. There is strong support for that position, not just—how shall I put it?—among the more extreme elements of the popular press, but also among those who hold dear the tradition of this society, and its responsibilities, to consider applicants for asylum. That is my answer to my noble friend.
Lord Clinton-Davis: My Lords, I am much obliged. It is astonishing to say that to extend the time limit from five to 10 working days is extreme. I do not believe that. What I said at the beginning is wholly true. I want to make these considerations workable and practical. Nothing that my noble friend has said draws me to an opposite conclusion.
Lord Filkin: My Lords, I have no doubt that that is the thrust of my noble friend's intention on this measure, as it has been on many asylum and immigration matters. I am saddened that I have not managed to persuade him at this point.
Perhaps I may turn to a number of points that were raised in discussion. The noble Lord, Lord Goodhart, raised the important issue of deemed service. The five days starts two days after the issue of the notice of decision from the AIT. Therefore, for very good reasons, it is effective not from the date of being sent out but from two days after that date. The last day of deemed service would not overlap with the first day of the five-day application period. We will ensure that that is done and set out in the rules.
The noble Lord, Lord Avebury, also referred to the UNHCR disapproving of the five-day limit. The UNHCR comment relating to a five-day limit refers to filing an asylum claim. We are not referring to that in these measures, but to a subsequent time limit for seeking a review and reconsideration.
22
We do not wish to ignore the representations of the House, but we have given the issue very careful consideration. In the vast majority of cases, an asylum applicant will have had a lawyer at the original asylum and immigration tribunal hearing. In many cases, during the hearing, the points of law on which it seems likely that the tribunal's determination will turn and hinge will be identified, so the lawyer and the applicant will not come cold to the thrust of the likely decision by the tribunal. Therefore, in most cases, a lawyer and his client would have been in a position to have discussed whether, if the hearing did go against them, they would wish to lodge an appeal. Often, the lawyer would be well prepared about what should be the thrust of the case that he or she would put before the High Court when seeking an ex parte application.
Therefore, for those reasons, we think that five days is workable. However, that should be cautioned, of course, by the fact that there is a discretion for the High Court judge to waive that when he or she thinks that the interests of justice require it.
Lord Avebury: My Lords, I am most grateful to the noble Lord. My quotation from the UNHCR was not direct, but it came from paragraph 1.81 of the 6th report of the JCHR. That was in the context of the shortness of the time limit for applying to the High Court for a reconsideration. It was not in terms of the first application at all. If the noble Lord refers to the JCHR report, he will find that my quotation was relevant to this discussion.
Lord Filkin: My Lords, I thank the noble Lord, Lord Avebury, for his correction.
Lord Goodhart: My Lords, the Government have said that their objective is to have a procedure that is swift but fair. We agree with that objective. Unfortunately, the Government's proposals, while plainly swift in this respect, are blatantly unfair. The Government say that they are confident that an appellant will have sufficient time because—so they say—the grounds for appeal will already have been covered in the argument at the first hearing before the asylum and immigration tribunal.
The idea that the judgment of the tribunal is so predicable that, in effect, it is possible to draft a notice of appeal in advance is utterly unrealistic, as, I believe, anyone who has practised in the courts will agree. Many speakers in this debate have said that a five-day period is utterly impracticable. The five days' limit will be only a very minor factor in extending the time before the removal ultimately of an unsuccessful asylum seeker. The five days' limit will be a major factor in creating unfairness in the system.
I am most grateful for all the support that this amendment has received from all parts of your Lordships' House. The amendment echoes the views of the highly respected Joint Committee on Human Rights. In those circumstances, it is proper for me to seek the opinion of the House.
3.50 p.m.
On Question, Whether the said amendment (No. 43) shall be agreed to?
Their Lordships divided: Contents, 143; Not-Contents, 94.

Division No. 1

CONTENTS

Ackner, L.

Laming, L.

Addington, L.

Lamont of Lerwick, L.

Allenby of Megiddo, V.

Listowel, E.

Alton of Liverpool, L.

Lloyd of Berwick, L.

Ampthill, L.

Luke, L.

Anelay of St Johns, B.

Lyell, L.

Astor of Hever, L.

McColl of Dulwich, L.

Attlee, E.

MacGregor of Pulham Market, L.

Avebury, L.

Baker of Dorking, L.

Mackay of Clashfern, L.

Beaumont of Whitley, L.

Mackie of Benshie, L.

Biffen, L.

McNally. L.

Blaker, L.

Maddock, B.

Bledisloe, V.

Mar, C.

Bridgeman, V.

Mar and Kellie, E.

Brittan of Spennithorne, L.

Marlesford, L.

Brooke of Sutton Mandeville, L.

Methuen, L.

Brougham and Vaux, L.

Miller of Hendon, B.

Caithness, E.

Monro of Langholm, L.

Campbell of Alloway, L.

Montrose, D.

Carlisle of Bucklow, L.

Murton of Lindisfarne, L.

Carnegy of Lour, B.

Newcastle, Bp.

Chadlington, L.

Newton of Braintree, L.

Chester, Bp.

Noakes, B.

Colwyn, L.

Northesk, E.

Cope of Berkeley, L.

Northover, B.

Craig of Radley, L.

Oppenheim-Barnes, B.

Crickhowell, L.

Oxford, Bp.

Cumberlege, B.

Park of Monmouth, B.

Darcy de Knayth, B.

Peel, E.

Deedes, L.

Perry of Southwark, B.

Dholakia, L.

Plant of Highfield, L.

Dixon-Smith, L.

Platt of Writtle, B.

Donaldson of Lymington, L.

Plumb, L.

Eccles of Moulton, B.

Plummer of St. Marylebone, L.

Elles, B.

Prior, L.

Elliott of Morpeth, L.

Rawlings, B.

Ezra, L.

Rawlinson of Ewell, L.

Falkland, V.

Razzall, L.

Feldman, L.

Reay, L.

Freeman, L.

Redesdale, L.

Geddes, L.

Renton, L.

Glentoran, L.

Roberts of Conwy, L.

Goodhart, L.

Rodgers of Quarry Bank, L.

Goschen, V.

Roll of Ipsden, L.

Hamwee, B.

Roper, L. [Teller]

Hanham, B.

Saltoun of Abernethy, Ly.

Hannay of Chiswick, L.

Seccombe, B. [Teller]

Harris of Peckham, L.

Selsdon, L.

Harris of Richmond, B.

Sharman, L.

Hayhoe, L.

Sharp of Guildford, B.

Henley, L.

Sharples, B.

Hooper, B.

Shutt of Greetland, L.

Howe, E.

Skelmersdale, L.

Howe of Aberavon, L.

Skidelsky, L.

Howe of Idlicote, B.

Slim, V.

Howell of Guildford, L.

Smith of Clifton, L.

Hunt of Wirral, L.

Soulsby of Swaffham Prior, L.

Hurd of Westwell, L.

Stern, B.

Jenkin of Roding, L.

Strathclyde, L.

Jopling, L.

Swinfen, L.

Kimball, L.

Tanlaw, L.

Kingsland, L.

Taverne, L.

Kirkham, L.

Tebbit, L.

24

Tenby, V.

Wakeham, L.

Thomas of Walliswood, B.

Walmsley, B.

Thomson of Monifieth, L.

Walton of Detchant, L.

Tope, L.

Warnock, B.

Trenchard, V.

Watson of Richmond, L.

Trumpington, B.

Weatherill, L.

Tugendhat, L.

Williams of Crosby, B.

Waddington, L.

Windlesham, L.

NOT-CONTENTS

Ahmed, L.

Hollis of Heigham, B.

Alli, L.

Howells of St. Davids, B.

Amos, B. (Lord President of the Council)

Howie of Troon, L.

Hughes of Woodside, L.

Andrews, B.

Hunt of Kings Heath, L.

Archer of Sandwell, L.

Irvine of Lairg, L.

Ashton of Upholland, B.

Jeger, B.

Bassam of Brighton, L.

Jones, L.

Berkeley, L.

Jordan, L.

Bernstein of Craigweil, L.

Lea of Crondall, L.

Blackstone, B.

Lipsey, L.

Borrie, L.

Lofthouse of Pontefract, L.

Bragg, L.

McCarthy, L.

Brooke of Alverthorpe, L.

Macdonald of Tradeston, L.

Brookman, L.

McIntosh of Haringey, L.

Brooks of Tremorfa, L.

McIntosh of Hudnall, B.

Burlison, L.

MacKenzie of Culkein, L.

Campbell-Savours, L.

Marsh, L.

Carter, L.

Mason of Barnsley, L.

Christopher, L.

Massey of Darwen, B.

Clarke of Hampstead, L.

Merlyn-Rees, L.

Corbett of Castle Vale, L.

Mitchell, L.

Crawley, B.

Morgan, L.

David, B.

Morris of Aberavon, L.

Davies of Coity, L.

Morris of Manchester, L.

Davies of Oldham, L. [Teller]

Nicol, B.

Dean of Thornton-le-Fylde, B.

Patel of Blackburn, L.

Desai, L.

Pitkeathley, B.

Dixon, L.

Richard, L.

Dubs, L.

Rogan, L.

Eatwell, L.

Rooker, L.

Elder, L.

Scotland of Asthal, B.

Evans of Temple Guiting, L.

Sheldon, L.

Falconer of Thoroton, L. (Lord Chancellor)

Simon, V.

Farrington of Ribbleton, B.

Smith of Gilmorehill, B.

Filkin, L.

Stallard, L.

Fyfe of Fairfield, L.

Strabolgi, L.

Gibson of Market Rasen, B.

Symons of Vernham Dean, B.

Golding, B.

Temple-Morris, L.

Goldsmith, L.

Tomlinson, L.

Gordon of Strathblane, L.

Triesman, L.

Gould of Potternewton, B.

Turner of Camden, B.

Graham of Edmonton, L.

Varley, L.

Grocott, L. [Teller]

Whitty, L.

Harrison, L.

Wilkins, B.

Hayman, B.

Williams of Elvel, L.

Hilton of Eggardon, B.

Woolmer of Leeds, L.

Hogg of Cumbernauld, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4 p.m.
Lord Goodhart Lord Goodhart moved Amendment No. 44:
Page 14, line 2, leave out "5" and insert "10 working"
On Question, amendment agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 45:
Page 14, line 13, leave out "applicant" and insert "parties to the appeal"
The noble Lord said: My Lords, I hope to be quite brief. It is undesirable that, where reconsideration is ordered because an error of law may have been made, the case should be referred back to the same member of the tribunal who made the original decision to decide whether in fact he or she got it wrong the first time round. There may be exceptional cases where it is legitimate, but they are few and far between. It is also usually desirable that, where an error of law may have been made, the case should be reconsidered by a panel of three rather than by a panel of one.
It is true that under Schedule 5 to the 2002 Act the president of the asylum and immigration tribunal will have power to direct, where in his view it may be appropriate, that the case should be reconsidered by a different member of the tribunal from the original one or should be reconsidered by a panel of a different size. But it seems appropriate that the judge of the High Court or whichever is the appropriate court in Scotland or Northern Ireland who has actually heard the application and is therefore aware of the issues involved should have power not only to direct a reconsideration on the grounds of an error of law, but also to decide on the form of tribunal which is to hear that reconsideration.
I do not suggest that the judge should be bound to exercise the power, but in cases of this kind it would be appropriate for the judge, if he or she has clearly decided that it cannot go back to the person who made the original decision, to decide there and then who is to hear the reconsideration. I beg to move.
Lord Mackay of Clashfern: My Lords, I thought that Amendment No. 45 had been called, but the statement by the noble Lord in support of it appears to be more appropriate to Amendment No. 46.
Lord Goodhart: My Lords, I apologise. The noble and learned Lord is quite right. The amendments are grouped together, but Amendment No. 46 is the substantial amendment. Amendment No. 45 suggests a minor point to make it clear that this provision should apply to both parties of the tribunal, not only to an appellant.
Lord Ackner: My Lords, will the noble Lord assist me on one point? Since the emphasis of the whole of this part of the Bill is on expedition, and since we are dealing with a point of law and a tribunal which is a qualified judge, why should not the judge himself make the decision that there was an error of law and the consequences are as would be appropriate? Why would it need to go back in every case?
Lord Goodhart: My Lords, I am pleased to be able to help the noble and learned Lord, Lord Ackner. I am sorry if what I said was confusing, but the purpose of this amendment is exactly that: it is to make sure that the judge who hears the application for an order for reconsideration should be able himself or herself to
26
say, on the spot, "We need not bother the president of the asylum and immigration tribunal. I myself am convinced that this is a case which should not go back to the member of the tribunal who took the original decision. The issue is so important that it requires a panel of three". So I am grateful to the noble and learned Lord, with whom I think I am in entire agreement.
Lord Renton: My Lords, pages 1 and 2 of the Marshalled List state:
"An order … may direct that the decision of the Tribunal may be reconsidered by—

(a) a member who made the decision;

(b) another member; or

(c) a panel of 3 members".

Why should it be necessary to insert a provision for three members if one member is enough? I should be grateful if the noble Lord could help me on this point.
Lord Goodhart: My Lords, I am grateful to the noble Lord. There is an existing power for the president to declare that a case is sufficiently important to require it to be heard by more than one member of the panel. Therefore, if the judge is to be given a choice, he or she should be given the same choice as the president would have, which would include the power to direct that the case should be heard by a panel of three members.
Three members seems the right number here. Two members would be unsatisfactory, as even numbers tend to be when taking judicial decisions, and rising to five members would be to over-egg the pudding.
Lord Kingsland: My Lords, Members on these Benches support the amendments tabled by the noble Lord, Lord Goodhart, save for one qualification. The noble Lord will see that Amendment No. 57A would require three members to be the normal number to sit on the tribunal,
"unless the President from time to time directs".
Were that amendment ultimately to find itself included on the face of the Bill, I suggest that a slight modification would need to be made in Amendment No. 46 to new subsection (5A)(a) and (c). Subsection (5A) would have to read, "member or members who made the decision", while (c) ought to read, "or another panel of 3 members". However, the changes would be necessary only if the contents of Amendment No. 57A were to find their way into the Bill. I apologise to the noble Lord for not drawing his attention to this point earlier.
Lord Mackay of Clashfern: I had proposed to say a few words about Amendment No. 45, because I am not sure of the Government's attitude towards this amendment. I assume that, for the sake of brevity, they would want to have the case decided without the necessity of inviting the respondent to make representations. I think that Amendment No. 45 implies a right, or at least a power, to require representations from the other parties to the appeal.

27
The point made by the noble and learned Lord, Lord Ackner, seemed to be that, if it is apparent that there has been an error of law, the simplest way to correct it is perhaps to make a new decision immediately which has the opposite effect. The problem about that is, unless and until the basic opening of the clause is changed, the only power in the court is to remit the case to the tribunal. If the point made by my noble and learned friend were to be given effect, some further amendment would therefore be required. I do not think that Amendment No. 46, moved by the noble Lord, Lord Goodhart, would have that effect.
So far as Amendment No. 46 is concerned, for my part I would be willing to take it that the judge hearing the case in the High Court would have these powers in any event. If there is any doubt about that, however, I see no reason why these amendments should not be made.
Lord Donaldson of Lymington: My Lords, if on review the judge decides that there has been an error of law, I do not think that it follows that the lower tribunal, with one or three members, would necessarily reach a particular conclusion. For instance, if the decision is that an irrelevant matter has been taken into account, it still leaves open the question of what happens when the relevant matter is taken into account. On the face of it, that would not be a matter for the High Court judge.
While judges are perfectly capable, when looking at a decision which overturns their own decision, of saying, "That is what that court says"—they probably got it wrong, but that is beside the point—"They have the last word, so of course I will follow it". We know, or at any rate those who are involved in the law know, that that is so, but the lay public do not. If there is a situation in which a decision is sent back to the original member, who then says, "Having taken account of the guidance I have received from the High Court, I still think that the answer is what I said it was", it is probably a perfectly possible answer but it is not one which would carry conviction with the public.
It would therefore be important that the judge of the High Court should consider very carefully before sending it back to the same member as had it in the first place—unless he is quite satisfied that the answer will be a different one.
The Countess of Mar: My Lords, there are occasions when it is appropriate to send it back to the person who made the decision in the first place. Sometimes that person will not have taken all matters into consideration and will need to be reminded that this should have been done and, if he had taken all matters into consideration, what then would have been his decision.
On the other hand, in most of the cases that have been through my hands, when it has been sent back to a lower level for a rehearing, it has been to a fresh hearing as opposed to a filling-in of what has already been heard. There is therefore room for both cases.
4.15 p.m.
Lord Filkin: My Lords, in responding to an interesting debate, it may be helpful if I start by emphasising what the Government are seeking to do under Clause 14 in this respect.
Essentially, and for reasons which will be well known to the House, we think that there is a need for and merit in a single process in the new Asylum and Immigration Tribunal to deal with issues, rather than a second two-stage process. However, the House and others have made representations to us that the ouster of judicial review went too far and did not allow an adequate supervision by the higher courts of points of law or failures by the tribunal.
Therefore, in the amended Clause 14 we are seeking to ensure that the single-tier tribunal, the AIT, has the capacity, skills and competence to deal with these issues, but allow an opportunity, when there appears to have been a case where there is an error in law, for that to be considered by a higher court, normally the High Court and, if the judge hearing that case believes that an error in law has been made, to send that back for reconsideration.
We are not trying to reconstruct a two-tier process built on the AIT—for very good reasons, because that would in large part take us back to where we are at present.
That is why we are not sympathetic to Amendment No. 45. The noble Lord, Lord Goodhart, suggests a requirement for the High Court or Court of Session to determine review applications by reference to the written submissions of all parties to the appeal, and not only the written submissions of the applicant. That effectively puts the High Court—if the High Court is hearing it—in the position of deciding on the substance of it. That is not what we want to do, and for good reason.
It is important to recognise that new Section 103A has been drafted to reflect the fact that the review procedure will be ex parte: in other words, if a person who has agreed with the decision of the AIT has an opportunity to direct to a higher court a challenge that there has been an error of law by the AIT, and if the judge in that case is persuaded by that to direct a reconsideration.
The current permission stage to the AIT and the statutory review procedure under Section 101 of the 2002 Act, for similar reasons, are both ex parte and we think that it is necessary and right to continue with this.
Requiring the High Court to determine review applications by reference to the written submissions of all parties to the appeal would effectively put it in the position of determining the appeal, would add delay to the process, and is unnecessary.
It is also undesirable for other reasons. One of the problems experienced has been that the High Court has been swamped by appeal applications of this type. That has put an inappropriate burden on the High Court. Therefore, the procedure as crafted by new Section 103A allows for the proper exercise of High Court supervision on points of law, but does not take

29
away from the specialist tribunal the reconsideration of those matters. In other words, it has been carefully crafted—we believe for good reason.
If the High Court or a senior member of the tribunal considers that there may have been an error of law and orders a case to be reconsidered by the tribunal, at that point all parties to the appeal will have the opportunity to make written and, if appropriate, oral representations. We therefore believe that the provision is well constructed. The substantial hearing, if there has been a finding on a point of law, is back into the tribunal following the determination by the High Court judge.
Amendments Nos. 46 and 57 will enable the High Court or the Court of Session to direct how the tribunal should be composed when it reconsiders an appeal. As it stands, the president of the AIT will direct the composition of the tribunal under paragraphs 7 and 8 of Schedule 1 of the Bill. We believe that is where that discretion should lie.
We agree that the reconsideration process will need to vary. Some appeals will be best reconsidered by a full hearing but, for others, this may not be necessary. Some appeals will require a panel of judges to hear them, because it is seen by the president as potentially a pivotal case that will set a precedent relevant to other cases. In such circumstances one would expect that there would be three judges in the AIT hearing such a case. In other cases it will not be so, and therefore we believe that the president should take into account any recommendations made by the High Court or Court of Session but should have the discretion within that to make a determination on how best the appeal should be reconsidered in the AIT, depending on the particular circumstances. Ultimately, the president is best placed to take these decisions on the deployment of judiciary within the tribunal.
This has been a helpful debate. I do not think that I have replied to the point made by the noble and learned Lord, Lord Ackner, as to why the High Court should not be given the power to reverse. I may have done so in passing, because I have signalled that it is a different function for the High Court. It is not to hear the substance but to hear whether it considers that an error in law has been made. As the noble and learned Lord, Lord Donaldson, helpfully signalled, that does not imply that in every single case—even where an error of law may have occurred—the reconsideration decision will automatically be reversed. It will depend on the circumstances of the case.
I hope that my comments have been helpful to noble Lords who have spoken to the amendment.
Lord Goodhart: My Lords, I am not wholly unsympathetic to the Government's view. I do not think that it would be appropriate for the judge to turn what is, in effect, an application for leave to appeal into a substantive hearing. I understand that and the amendment was not intended to achieve it.
Although the Government have taken some care to avoid saying so, they are trying to create an internal appeal system within the tribunal itself in which, if the case arises in England, the judge of the High Court effectively gives leave to appeal from one part of the
30
tribunal to another panel or individual within the tribunal. It is a fairly ingenious way of handling the issue. From the Government's point of view it has the advantage that, albeit the leave to appeal—if one can call it that—is given as part of the jurisdiction of the High Court, it is not in itself subject to judicial review.
Amendment No. 46 would save time because a judge could say, "Having looked at this matter on an ex parte basis, it seems to me that there is plainly something that needs to be looked at seriously". That would avoid the delay involved in having to refer the papers to the president of the tribunal and he or she having to read up the papers and come to a decision as to what is the appropriate form of the tribunal.
However, I am also aware that, unlike the previous group of amendments, a refusal to accept these amendments will not lead to any injustice in the procedure. In those circumstances, I do not wish to press them further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 46 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 46A:
Page 15, line 42, leave out from beginning to "applies" in line 43 and insert—

103D RECONSIDERATION: LEGAL AID
(1) Subsection (2) applies where the appropriate court has made an order under section 103A(1), or a reference under section 103C(1), on the application of an appellant under section 103A.
(2) The appropriate court may order that the appellant's costs in respect of the application under section 103A shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c. 22).
(3) Subsection (4)"
On Question, amendment agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 47:
Page 15, line 42, leave out from beginning to end of line 36 on page 16.
The noble Lord said: My Lords, I was expecting a slightly more substantial speech from the Minister. However, I am happy that he should leave that until he responds to this amendment, which is grouped with Amendment No. 46A.
We do not object to Amendment No. 46A and have not sought to do so; we welcome it so far as it goes. It will undoubtedly fill a lacuna if it gives the court which hears an application for an order to reconsider the power to order the payment of the costs of that application. The problem is that Amendment No. 46A does not go nearly far enough.
Once the High Court has ordered reconsideration, it seems plain to us that legal aid should be granted for that reconsideration. The High Court will not order reconsideration unless there is at least an arguable case that there has been an error of law; nor will it order reconsideration if it is apparent that that error of law makes no difference because the case is hopeless on the basis of the facts or on some other legal issue
However, we believe that it is essential that the appellant's lawyer should know that if the case is reconsidered, he or she will receive legal aid for appearing in the case. Of course, if the lawyer in some way misconducted himself or herself by misleading the court and concealing material facts, he or she would be deprived of the right to legal aid anyway. But the Government are suggesting, basically, the extension of no win/no fee litigation to asylum and immigration cases.
No win/no fee funding may be here to stay for civil actions for damages—that is an entirely different matter—but it is completely inappropriate for litigation of this kind between an immigrant and the state, with terrible potential damage to the immigrant if he or she is wrongly sent home. I was horrified by the noble and learned Lord the Lord Chancellor's suggestion in Committee that "success fees"—that is, an uprating of the fees that would be otherwise due—could be paid where a decision is overturned on reconsideration. If an application is strong enough to justify an order for reconsideration, the appellant is entitled as a matter of justice to have the case presented by a lawyer who has been paid to do the job.
Amendments Nos. 47, 48, 48A, 49 and 50 tackle this issue in two different ways: one way is through Amendment No. 47; the other way is through the remainder of the amendments. Amendment No. 47 seeks to remove the whole of the new Section 103D of the 2002 Act. Its purpose is to ensure that legal aid for applications and reconsiderations should be provided in the normal way, with none of the special restrictions imposed by the Bill.
Amendment No. 48 is something of a compromise. It would retain new Section 103D but require the tribunal to make an order for legal aid unless it is satisfied that there were no reasonable grounds for making the application. It would eliminate all the issues we discussed in Committee about near misses. A lawyer with reasonable grounds for making the application would not lose his or her fees on the grounds that the miss was not quite near enough.
Amendment No. 48A would require the tribunal to give reasons for refusing legal aid. If those reasons were irrational, the decision could be reversed. Amendments Nos. 49 and 50 back up Amendment No. 48. They would remove the provisions for payment by results.
We believe that the test—and the only test—for the grant of legal aid should be whether there are reasonable grounds for seeking reconsideration. If there are reasonable grounds, it would be wrong to deprive the appellant's lawyers of the fees because they are unsuccessful when the reconsideration takes place.
I find the attitude of the Government to legal aid in these cases extraordinary. They have failed to take into account measures that have already been put in place to curb the abuse of legal aid, which I recognise has happened in asylum cases. Such measures include the fact that decisions on appeal funding have been taken in-house by the Legal Services Commission since last April; the fact that nearly 100 poor-quality firms have had their
32
Legal Services Commission contracts terminated; and the fact that a compulsory accreditation scheme of the Law Society will come into force in April of next year. Those measures are surely sufficient to justify treating legal aid for leave of appeal to the AIT in the same way as any other cases and for hearings for reconsideration.
The Government have not so far said that criminal defence lawyers will be paid only in cases where their clients are acquitted, yet the wrongful refusal of asylum can have consequences even more damaging than a wrongful conviction for crime.
The way in which the Government have treated the right to legal aid in this case is plainly wrong and it needs fundamental alteration. I beg to move.
4.30 p.m.
Lord Clinton-Davis: My Lords, like the noble Lord, Lord Goodhart, I am deeply concerned about this issue. I am concerned about the principle to introduce, in due course, the no win, no fee arrangements. The noble Lord elaborated on that.
The Government have it in mind to replace the Legal Services Commission with the judiciary in determining whether costs should be ordered. The judge would so order only if he decided that a case was either successful or a near-miss. Solicitors are therefore bound to be unduly cautious in approaching such matters.
The system that is envisaged is likely to have deleterious effects. First, solicitors are likely to give up legal aid work in that field because they feel that they are unable to work at all, or properly, under the circumstances that are envisaged. Secondly, there is a by no means remote possibility of a conflict of interest between the lawyer, whose attitude is likely to be that he will act only if the application is almost certain to succeed, and the lay client, who will want the application to proceed if he has an arguable case. Why, therefore, should there not be representation in all arguable cases?
Unmeritorious cases should not be publicly funded. I entirely agree with that proposition. That, in summary, is the view of the Government. However, do the Government not recognise that effective filters already exist? First, there is the Legal Services Commission, which imposes cost assessment audits, Quality Mark audits and peer review, where firms undertake immigration work, which is publicly funded. Secondly, the Legal Services Commission, rather than the solicitor, determines at present whether the case has enough merit and whether an appeal to the Asylum and Immigration Tribunal should be publicly funded. Thirdly, from 2005, the accreditation system will apply to all lawyers who practise publicly funded work in such cases.
Complex issues of law and fact are the rule rather than the exception. To decide them, it is often desirable that the applicant should give evidence. Why should we find that unacceptable?
Many sound claims are too often refused at the initial stage, where Home Office decision-making is often found to be wanting. Representation at that stage is therefore often indispensable.

33
There is likely to be an increase in unrepresented applicants, however unmeritorious they may be, and the courts will be hopelessly overloaded. In such circumstances, the Government will incur, rather than save, costs. I therefore hope that my noble friend will think again about his propositions.
Lord Newton of Braintree: My Lords, I indicated earlier that when the Council on Tribunals looked at some of the proposals, though it concentrated on Ulster in particular, it was concerned by a number of points of detail. This is another of them.
I shall not attempt to speak with the eloquence of the noble Lord, Lord Clinton-Davis, with his much wider knowledge of the operations of the legal profession, but it seems to be a matter of layman's common sense that if public funding is to be dependent on the ultimate outcome, which is what appears to be envisaged, there must be a risk that lawyers will feel strongly discouraged from taking on cases that may be meritorious in the normal use of that term, but not 100 per cent certain of being meritorious. In the area of asylum and immigration, it is singularly open to question whether that is a proper path to follow.
Being a natural seeker after the middle way, of the two amendments moved by the noble Lord, Lord Goodhart, I think that I prefer his compromise amendments to his complete "throw out this bit of the Bill" amendment, but I hope that the Government will look again at the issue.
From our experience at the Council on Tribunals—as was touched on by the noble Lord, Lord Clinton-Davis—there is considerable evidence that suggests that the absence of legal representation can extend the time and complexity of the hearing and make it much more difficult to handle matters in a manageable way. Any former Member of Parliament will know from discussions in his surgery that many complainants, claimants or applicants often find it difficult to distinguish the points that really matter from those that are not necessarily essential to the issue. Legal representation really can improve the smoothness and efficiency of the working of arrangements of that kind. With the best will in the world, I hope that the Minister will be prepared to take another look at the matter.
The Lord Bishop of Newcastle: My Lords, I too wish to ask the Government to give further consideration to these matters. They are of concern to all those noble Lords who have spoken today. While I am pleased that the Government have amended their proposals to allow for costs to be paid out of the Community Legal Service fund, I would like some reassurances about how that is going to work out in practice, especially in cases involving children and families.
A no win, no fee approach puts children and families at risk from the unscrupulous or the faint-hearted, who may tell them that they do not have a strong enough case to take on, and that if they want to appeal, they must pay privately. It is worrying to find a child or a family being told to produce a significant sum. The Children's Society
34
has experience of upfront payments of £200 being demanded from a child, to be produced in a short space of time, before a case would be taken on.
The Countess of Mar: My Lords, I am sorry to interrupt, but would the noble Lords on the Benches opposite mind confining their sub-committee to outside the Chamber? I am finding it difficult to hear what the right reverend Prelate is saying.
The Lord Bishop of Newcastle: My Lords, equally it is becoming difficult to find good legal representatives for children and families. We need to remember that the best protection against incompetence or unscrupulousness is a sufficiency of good representatives. I am not at all sure that these proposals will enable that.
My other concern is about a no-win/no-fee arrangement in this case. I am not aware of such a scheme operating in any other areas that are about fundamental human rights. That seems to be the basic point, which is why I fully support the amendment in the name of the noble Lord, Lord Goodhart.
Lord Avebury: My Lords, the right reverend Prelate is right. I do not think that any of us can produce an example where human rights are at stake and where a no-win/no-fee proposal has been made, let alone introduced. I wish to refer to the representations that we and perhaps other noble Lords have received from the Medical Foundation for the Care of Victims of Torture. It says:
"Where torture has been alleged it cannot possibly be in the interests of justice to allow the decision to challenge a flawed Asylum and Immigration Tribunal (AIT) decision to rest on lawyers' financial interests in the success of the case. This will prejudice those of our patients whose representatives are less able to bear the financial risk of proceeding even where a legal error of law is clear. This is particularly relevant given the Medical Foundation's current experience that quality firms are closing their immigration departments due to the recently imposed financial constraints".
The Medical Foundation has drawn our attention to two cases. I will give the Minister the references in case he wants to look them up. The first is Neutral Citation No: CO-2174–00, which was heard on 21 November 2000 before Sir Richard Tucker. The adjudicator had rejected the applicant's claim for asylum mainly on credibility grounds. Mr Justice Tucker, however, allowed the judicial review application saying that he did not agree with the counsel who appeared on behalf of the Secretary of State that the adjudicator's findings of fact were sustainable. In his view they were not and the case had to be reviewed and should be taken before the immigration tribunal. The claimant was later recognised as a refugee.
The second example is where a chairman of the tribunal determined an application for permission to appeal. The appeal number is HX/42009/2003, which took place on 8 December 2003. The chairman said:
"An adjudicator is entitled to use his own experience in assessing evidence, including how scars might be formed but not to set himself up as an expert".
In that case a decision is still awaited, but it is not clear how an adjudicator would come to have the experience necessary to make a forensic judgment, nor the extent

35
of that particular adjudicator's medical knowledge, although he was permitted to attack the Medical Foundation expert who had written the report before him for failing adequately to explain her conclusion.
The Medical Foundation says that it cannot predict whether those two cases would have been successful under the Bill's terms or how the courts would have made a decision on referring them back. It shows that no-win/no-fee is a gamble and that, although there are serious doubts about the way in which such cases were decided, no one has any idea whether the applicants would have had the right to pursue their claims if this system had been in operation.
With the Medical Foundation's experience and that of other agencies referred to, we are looking at a situation where the rights of asylum applicants who may have had the experience of torture will be seriously undermined. I am sure that your Lordships would not want that to happen.
4.45 p.m.
Baroness Carnegy of Lour: My Lords, as a Member of the House with no legal qualifications who has not been involved with the process, this seems to me a matter of simple common sense. I shall listen with great interest to what the Minister has to say if he does not accept the amendment's principle. The Law Society's case, which it put before many of your Lordships, was well made by the noble Lord, Lord Clinton-Davis. It seems common sense to me.
My noble friend Lord Newton from his experience of the Council on Tribunals made it clear that often an appeal is more complicated and takes longer if there is no lawyer involved. To have a situation where a lawyer may not dare to take on the case or may not want to because it seems too much of a gamble is a great mistake.
Lord Kingsland: My Lords, we have considerable sympathy with the general approach of the noble Lord, Lord Goodhart, in the amendments that he proposes, without necessarily agreeing with the specific approach that he takes in each case.
I have already indicated that there is a plain dissonance between the test for review that the Government have now adopted in the first amendment of the day and the criteria for furnishing legal aid in circumstances where someone meets it. That is a profound and inexplicable irrationality that goes to the heart of the Government's legal aid proposals.
Moreover, I share entirely the view of the noble Lord, Lord Goodhart, and many other noble Lords, that a conditional fee approach is wholly inappropriate to asylum cases.
I should say at the outset that I am opposed to conditional fees altogether. I said so consistently during the debates in your Lordships' House on the Access to Justice Act 1999. However, the objections to conditional fees are even more firmly based with
36
regard to public law; and, in particular, the human rights aspects of public law; and, especially, in asylum cases involving human rights issues.
There are a number of reasons for that, some of which have already been canvassed by noble Lords. The first is that the outcome in asylum cases is particularly difficult to predict because of the central role that the issue of credibility plays. Yet a high degree of accuracy of prediction is vital for the operation of a successful conditional fee system.
Secondly, in a conditional fee system, the client insures himself against losing a case so as to reimburse the solicitor for his expenses in the event of losing. An asylum seeker will be in no position to do that, but who will pay the insurance companies if they are not paid by the asylum seeker?
Perhaps the most fundamental objection of all is this: conditional fees are not appropriate to human rights cases, which require, as the judges have repeatedly reminded us in the High Court and above, the most anxious scrutiny. That, indeed, is the view taken to human rights issues with respect to every other public law matter in the country. In this respect, I find the Government's disposition particularly bewildering. They introduced the Human Rights Act to make Strasbourg remedies available in English law, in English courts; yet they are not now prepared to live up to these new responsibilities, which they imposed on themselves, by seeing them properly reflected in the legal aid system.
Lord Filkin: My Lords, in responding to amendments moved by the noble Lord, Lord Goodhart, I shall speak—and not before time—to government Amendments Nos. 46A, 47A, 48B, 49A, 50A and 58A. In doing so, I shall also respond to Amendments Nos. 47, 48, 48A, 49 and 50.
Amendments Nos. 47, 48, 48A, 49 and 50 are concerned with the provisions for new legal aid arrangements for the review and reconsideration process. Essentially, we are considering how to craft a new system that allows cases in which there are good grounds for there being a fault of law by the AIT to be properly considered by the High Court. We are not trying to reopen the situation, which I hope the House recognises took place, in which a substantial number of judicial review cases were brought on asylum matters to the courts without substantial merits, with the predominant aim of gaining time so that the asylum applicant whose case had not been found to have merit could defer his removal from this country.
We should not fool ourselves: this is not the dilemma with which we in a liberal society are trying to grapple. We want applicants in whose cases an error of law has been made to have an opportunity for redress in the higher courts; we have listened to the House in that respect. However, we do not want to reopen a situation in which there is an incentive for the applicant to continue the case, since it is in his interest to string out the process for as long as he possibly can, as that will delay or perhaps even avoid the date when he can be removed. We want as well to avoid the

37
situation in which the lawyer himself is incentivised to take cases without merit because he will suffer no pain as a consequence of doing so.
While there have been cases that should have gone to judicial review—and it would be foolish of us not to recognise that—there have been very many cases without merit taken to judicial review, with considerable cost to the taxpayer and delay to the system. That has created the impression known to traffickers and others that when they get here the legal system in Britain—which is so good—means that they can string out their process and not be removed from the country. Therefore we are facing the question how we as a society, a Government and a House, can balance those two issues.
Let me explain why we believe that we have got it right.
Lord Avebury: My Lords, does the Minister agree that, considering the mechanisms that have been discussed by the noble Lord, Lord Clinton-Davis, and particularly the fact that the LSC will now have the responsibility of determining whether a case has sufficient merit, the kinds of abuse that have occurred in the past will still continue if legal aid is provided?
Lord Filkin: My Lords, the noble Lord, Lord Avebury, may have thought that I was concluding; I was not concluding but only beginning my response. I hope that we shall have an opportunity to address that point.
What we have done is to introduce an enabling power in new Section 103D to make regulations for a new legal aid scheme for the High Court review process and reconsideration by the tribunal. This will ensure that we focus legal aid on the most meritorious cases. Instead of the Legal Services Commission taking the funding decision, the power will be given to the judiciary to decide if legal aid should be paid in these proceedings. We are effectively asking lawyers to share the risk with the taxpayer when deciding whether an appellant should proceed with a review application. We believe that that will lead to lawyers giving a more rigorous examination to the prospects of a case succeeding. We recognise that good lawyers do that already, but that has not been universally the situation in our experience of asylum matters over recent years. This is not an attempt to remove those cases from the scope of legal aid, but a genuine drive to ensure that the focus of public funding is on deserving cases.
Amendments Nos. 47, 48, 48A, 49 and 50 would reverse that aim, and would mean that it would be easier to get legal aid for reconsideration proceedings than the original appeal, where the appellant would at least have to satisfy the merits test for legal aid applied by the Legal Services Commission.
As the Lord Chancellor said in Committee, the regulations constructed under the power will set out the detail of the scheme. Broadly speaking, we envisage that the tribunal will order legal aid to be paid in the following cases: in a case which has been successful and the original appeal decision has been reversed, or in a case which the judge has decided was
38
a near miss, which was meritorious and could have succeeded but did not. In such a case it can decide that it is right that there is a payment.
I am grateful to the noble Lord, Lord Clinton-Davis, for acknowledging that unmeritorious cases should not be publicly funded. A number of noble Lords who have spoken have been concerned about whether the provision might lead to lawyers ceasing to be prepared to take cases to the High Court in these circumstances. That is a perfectly proper and right question. The thrust is that if lawyers get paid only when they succeed—and it is not perfectly possible to predict when they will succeed, for obvious reasons—they will be under a strong disincentive to take cases.
For those reasons—and with no hint of feeling that that is anything other than proper—we believe that a success fee should be paid and that it should be substantial. I shall not go into the exact arithmetic, because we have not come to a conclusion on that. What we want is a situation in which good immigration and asylum lawyers would know, in taking cases over a period of time, that if they exercise proper professional judgment in the interest of justice and their client—
Lord Clinton-Davis: My Lords, I cannot see why the Legal Services Commission should not apply the usual standards which are applied in considering particular circumstances. After all, at the present time the Legal Services Commission determines whether the applicant, plaintiff or defendant has a good legal case, and it can refuse or acknowledge that the matter ought to proceed. What is the essential difference between that situation and the one that applies in cases at the present time?
Lord Filkin: My Lords, I give an undertaking to the House that when I have finished what I have to say and if I have not addressed certain points, I shall be grateful to receive interventions. However, I hope that the House will have patience with me until we get to that point of failure rather than assuming that I am failing on it already.
I was seeking to explain why a success fee achieved the right balance in view of the fact that a lawyer would take on a level of risk on an individual case. The noble Lord, Lord Kingsland, is right that it is not like a conditional fee agreement, which involves an insurable risk, and that it is unlikely that the appellant himself would be in a position to reimburse the lawyer in the vast majority of such situations. It stands to reason that that is the situation.
We shall discuss the level of the success fee with the professions. Essentially we want to discuss what is likely to be the level of uplift on a fee that would ensure an adequate supply of good lawyers prepared to bring cases to review in this way. That is a consultation process that we cannot currently have, but it will be fundamental to crafting this accurately to get the balance right so that good lawyers will make judgments that they will take cases. They may lose on some but they will know that if they exercise good professional judgment they will get adequately remunerated over a period of time. We do not want a

39
situation such as the current one, where bad lawyers will not be in any way limited from taking forward unmeritorious cases.
5 p.m.
I turn to government Amendment No. 46A, in conjunction with government Amendments Nos. 47A. 48B, 49A and 50A. This enables regulations to be made under Section 103D to make provision for the High Court to order legal aid to be paid. In Committee, the noble and learned Lord the Lord Chancellor outlined this component of the proposals for new legal aid arrangements.
The High Court will also have the power to order the costs of an application under Section 103A to be paid if it orders the tribunal to reconsider its decision on an appeal or if it refers a case to the Court of Appeal. This proposal is important so that we can design the scheme flexibly. For example, if a case raises a question of law of such great importance that the High Court refers it to the Court of Appeal, it is appropriate that the High Court should have the power to order the costs of the review application to be paid. Government Amendments Nos. 47A, 48B, 49A and 50A are consequential to government Amendment No. 46A.
Government Amendment No. 58A makes the regulation-making power for new legal aid arrangements in Section 103D subject to the affirmative resolution procedure. The Delegated Powers and Regulatory Reform Committee recommended that the regulation-making power should be subject to affirmative resolution and in Committee the noble and learned Lord the Lord Chancellor said that he would bring forward an amendment to this effect.
I now turn to the question of the noble Lord, Lord Goodhart, about legal aid being paid only at reconsideration. The merits of a case will often come to light only when the case is fully tested and explored by the tribunal. The panel at the reconsideration will be best placed to order legal aid if a successful or near-miss application has been made. The High Court judge can order payment in exceptional circumstances.
The noble Lord, Lord Avebury, raised questions about the Medical Foundation cases. We are asking lawyers to focus on the fundamentals of cases and whether errors of law have affected the outcome of the cases. If they consider that a genuine case should succeed, they will be given legal aid if the case succeeds or is a near miss. As I signalled, the uplift mechanism will not deter them from taking cases that they consider have merit.
The noble Lord also spoke about no win, no fee costs being unprecedented for cases affecting human rights. It is already the position that conditional fee agreements are used in relation to judicial review proceedings, which frequently include issues of human rights. I should emphasise that we are talking about public funding only, not cases that are privately funded.
The noble Lord, Lord Clinton-Davis, and other noble Lords raised the question of why the LSC's applied merits test is not good enough. Any LSC-applied merits test will delay the review and reconsideration procedure. The test applied beforehand is hypothetical. We consider it entirely justifiable for the test to be applied by judges at the conclusion of cases. Judges are best placed to make a proper judgment on whether cases had merit because they succeeded or because they were close enough, or that there were other circumstances that they judge appropriate.
We are facing a real problem about how we get meritorious cases brought forward without over-incentivising the system so that cases without merit continue to be brought to appeal. I think that the way that we have crafted this after consultations is right, workable and will meet the test of justice.
Lord Clinton-Davis: My Lords, will my noble friend give way?
The Countess of Mar: My Lords, may I remind the noble Lord that the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, in rules of debate on Report says:
"On report no Member may speak more than once to an amendment".
That also applies with questions to the Minister.
Lord Clinton-Davis: My Lords, I am not speaking, I am intervening. I think you can do that.
Lord Bassam of Brighton: My Lords, I remind the House that interventions should be only for elucidation and that once the Minister is on his feet, he should be responding to points. The only person who can speak thereafter is the mover of an amendment.
Lord Mackay of Clashfern: My Lords, I am going to respond to the noble Lord's invitation to ask if there is a matter that does not appear to be covered.
As I understand Amendment No. 46A, these reconsideration of legal aid provisions apply only where the court has made an order of recommitment to the tribunal or to a higher court. It does not apply where the application has failed. It seems to apply only if the application for reconsideration has succeeded. Is that right?
Lord Filkin: Yes, my Lords. The noble and learned Lord is correct.
Lord Goodhart: My Lords, I regard the Government's response to our amendments as deeply disappointing. I am also seriously concerned about some of the human rights implications. The Government are being illogical. They are not proposing to modify the present rules about the grant of legal aid for the first hearing before the tribunal. That is something that has undoubtedly been abused at certain times in the past, but I think that the Government recognise that, where a merits test is satisfied, it is necessary to grant legal aid for the first hearing before the tribunal. Of course, the number of first hearings is far larger than the number of appeals so

41
that is the level at which the real cost is incurred and there will be no real saving on that from any of these amendments.
The Government are proposing to withdraw legal aid from only some cases of the making of an application and from cases of reconsidering following the making of an application where the application has been granted. We on these Benches are prepared to accept an amendment in a form that would mean that legal aid can legitimately be withheld in cases where there are no reasonable grounds for an application. What we find completely unacceptable is that legal aid should be withheld in cases were there is a reasonable ground for application, and not only withheld, but withheld retrospectively, at the end of the case, when the lawyer who has taken on the case has no guarantee whether that case is going to be successful.
The Minister referred to the need for more rigorous examination by lawyers. We are now facing a situation where a lawyer will have to say to himself or herself, "This case has a reasonable chance of success but it is not certain. I simply cannot afford to take that case without a guarantee of payment". Success fees are wholly inappropriate in order to deal with this situation. Success fees are about cases involving money. I perhaps go a little further than the noble Lord, Lord Kingsland, but I would be prepared to accept success fees in cases where money is at issue. In those cases a lawyer can, and indeed should, say, "You have a 50:50 or perhaps even a 55:45 chance of success but it will cost you far more money if you lose than you will get from it if you gain. It is not therefore in your interest, or in mine, to start these proceedings. Therefore, I am not going to take this case, which in the old days I would have taken because the test was whether it had a better than even chance of success". That sort of financial cost-benefit analysis is wholly inappropriate for asylum cases, as of course it would be in criminal cases.
I am not suggesting that one can equate asylum cases with criminal cases completely. In criminal cases, it has long been accepted, quite rightly, that a defendant in a criminal case is entitled to be defended by a lawyer who is paid through legal aid and can expect the lawyer to put forward a defence which is seen to have no reasonable chance of success whatever. We do not go as far as that in asylum cases. We are simply saying that an asylum seeker—someone who is an appellant in a case of this kind, seeking reconsideration—should be entitled to have legal aid except in cases where there is no reasonable chance of success.
This is an issue about which I and my noble friends feel very strongly. So far as today is concerned, we are in a bit of a practical quandary because the noble Lord, Lord Kingsland, has made it clear that he is not at present in a position to support our amendments fully. It certainly seems to us, therefore, that the appropriate thing to do today is to ask the leave of the House to withdraw the amendment which I have moved in order to give an opportunity for further consideration of the matter in the hope of achieving a consensus. However, we would in those circumstances wish to bring this back. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkin Lord Filkin moved Amendment No. 47A:
Page 16, line 4, leave out from "of" to end of line 5 and insert "that Fund"
On Question, amendment agreed to.
[Amendments Nos. 48 and 48A not moved.]
Lord Filkin Lord Filkin moved Amendment No. 48B:
Page 16, leave out line 7 and insert "powers in subsections (2) and (4)"
On Question, amendment agreed to.
[Amendment No. 49 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 49A:
Page 16, line 10, leave out from "to" to end of line 12 and insert "the result of the reconsideration or of the reference under section 103C);"
On Question, amendment agreed to.
[Amendment No. 50 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 50A:
Page 16, line 32, leave out first "the" and insert "a"
On Question, amendment agreed to.
Lord Filkin Lord Filkin moved Amendment No. 50B:
Page 16, line 38, after "appeal" insert "under section 82 or 83"
The noble Lord said: My Lords, in moving Amendment No. 50B I shall speak also to Amendments Nos. 57B and 60. We are not moving technical Amendments Nos. 57C and 59A. My noble friend Lady Scotland wrote to the noble Lord, Lord McNally, and the noble Baroness, Lady Anelay, on 25 May indicating that the Government would be seeking to bring forward a small number of new policy amendments to the Bill. Amendments Nos. 57C and 59A are not being moved pending these new amendments.
Government Amendment No. 50B clarifies that Section 103E applies to a decision of the tribunal on an appeal under Sections 82 or 83. This amendment is a tidying amendment and simply brings the wording in Section 103E into line with the wording in Section 103A.
Government Amendment No. 57B ensures that all of Section 103A through to Section 103E applies to appeals against deprivation of citizenship. It was always the Government's intention that all sections should apply to deprivation appeals and the amendment simply corrects a drafting oversight.
Finally, I turn to government Amendment No. 60. This amendment is consequential to government Amendment No. 18. The noble Lord, Lord Bassam, spoke to Amendment No. 60 when he spoke to Amendment No. 18 in the earlier sitting at Report. I therefore beg to move Amendment No. 50B and commend Amendments Nos. 57B and 60 to the House. As I said, I shall not move Amendments Nos. 57C and 59A.
On Question, amendment agreed to.
5.15 p.m.
Lord Kingsland Lord Kingsland moved Amendment No. 50C:
Page 16, line 39, after "more" insert "legally qualified"
The noble Lord said: My Lords, in moving Amendment No. 50C I shall speak also to the other amendments in the group. From my point of view, the crucial amendments in this group are Amendments Nos. 54A and 57A. Amendment No. 54A, which is kindly supported by the noble Lord, Lord Goodhart, is very close to the amendment that he and the noble Lord, Lord McNally, have tabled.
The issue behind this group of amendments concerns whether the new tribunal should have lay members on it. The existing tribunal does and normally sits as three, with one legal member and two lay wingmen. The new tribunal apparently will sit with only one legal member.
Anyone who has an even passing acquaintanceship with asylum applications will know that the credibility of the applicant is more often than not the determining issue. Credibility is an issue of fact. Indeed, credibility in an asylum case is a particularly difficult issue of fact, both because it is based on evidence given by applicants born and brought up in a world alien in religion, language and culture from our own; but also because it is extremely difficult to get reliable documentary or oral corroboration of alleged facts. Yet it is crucial that the new tribunal is, and is seen to be, competent in reaching accurate final conclusions about credibility.
That is so because the Home Office interview procedure is widely regarded as deeply flawed—the statistics speak for themselves on this matter; because the Home Office is not an impartial forum and becomes a party to any later appeal; and because, most important of all, the new tribunal is to be the one and only occasion when the factual issues are heard, assessed and determined by an impartial forum. Review of its decisions are only on errors of law, and then only on the papers.
So what steps have the Government taken to ensure that this impartial new tribunal is up to its task? The short and, indeed, long answer to that question is "none". Indeed, they have made the chances of an objective assessment of credibility even less likely. There are at least three reasons for that. First, the new tribunal is not a tribunal at all. The Government have not kept the existing three-person tribunal and expunged the single-person adjudicator. They have destroyed the three-person tribunal and replaced it with a single member. If any noble Lords want further proof of that, they should simply look at the schedules. The basis of the new scheme is not the schedule to the 2002 Act on tribunals, but the schedule on adjudicators. Indeed, it is hard not to detect a degree of hypocrisy in the use of the expression, "tribunal".
Secondly, the arrangements for the new so-called tribunals are just plain wrong, because applicants are entitled to have the factual aspects of their case heard, fairly and impartially, and assessed properly. If the tribunal were dealing with a criminal matter, the person appearing before it would have their case determined by
44
tribunals of either three lay members in a magistrates' court, or 12 lay members in the Crown Court. However, the consequence of making factual errors in an asylum case can be far graver than in any criminal trial in this country.
Moreover, it is not only wrong of the Government to exclude lay adjudication from such tribunals, but plain foolish. The central object of the design of the statutory regime should be to make it sufficiently fair to discourage the courts from providing a parallel remedy in judicial review, as other statutory regimes have done successfully. One example is that of enforcement appeals. If the courts are not confident that issues of fact are properly dealt with by the system, they will permit judicial review on grounds of either perversity or disproportionality, following oral argument on permission applications—oral arguments that are denied under the proposed statutory regime.
That third consequence is much less likely to be the case if the tribunal is composed of three members. I accept that having three lawyers would be extremely expensive; but, much more importantly, it would be much less desirable than having one lawyer and two lay members, with the selection of lay members geared to employ individuals with long experience of assessing character, a reasonable proportion of whom should come from the ethnic minorities to reflect the backgrounds of the applicants. That would vastly improve confidence in the fairness of the objective fact-finding procedure. In doing so, it would make the statutory regime impervious to judicial review.
I hope that the Minister will forgive me if I express some scepticism about the Government's motives on the matter of lay representation on bodies that have a mixture of fact-finding and legal duties. That mistrust is most colourfully manifested in the Government's attitudes to jury trials, as we saw in the great debates on the then Criminal Justice Bill last year. We have also seen attempts—some successful—to remove lay members from tribunals, such as the social security tribunals. There seems to be a growing lack of trust by the Government in the judgment of our citizens. Is that because they perceive that our citizens have a growing lack of trust in them? I beg to move.
Lord Goodhart: My Lords, three of the amendments in the group—Amendments Nos. 54, 55 and 56—are in my name and that of my noble friend Lord McNally. Two of the others—Amendments Nos. 54A and 57A—were tabled by the noble Lord, Lord Kingsland, and I have also put my name to them.
There is enormous value in having some lay members of the tribunal. A purpose of many parts of the tribunal system is that it is possible to bring into tribunals that exercise judicial functions people who have practical experience, even if they do not have legal qualifications. Employment tribunals are a well known example. For the reasons very clearly expressed by the noble Lord, we think it of particular importance that the AIT should not be restricted purely to people with a legal qualification. Many lay people have the common sense, understanding of human nature and so on to make them at least equally good judges of fact as

45
people with legal training. As the noble Lord explained, in very many aspects such judgment is particularly important.
That is more the case than it would be otherwise because of the notoriously inadequate record of the initial decisions made by the immigration officers, of which a strikingly high proportion are overturned on appeal. We see no prospect of the standard of those decisions being substantially raised in the immediate future, although we hope that it will be a target in the longer run. Whatever our views might be if that standard were higher than now, unless it is substantially raised there is a very strong case—it would remain in any event—not only for the inclusion of lay members on the tribunal, but for saying that the initial decision of the tribunal needs to be taken by a panel of three. Then one or two lay members could be included on the tribunal, with a legally qualified chair. Again, that pattern is very frequently adopted in other tribunals, such as employment tribunals.
The amendments would very substantially advance the cause of justice. As the noble Lord said, where there has been a failure of justice by the tribunal, the consequences could be very serious—more so than those of a wrongful criminal conviction. We are happy to make common cause with the noble Lord over all the amendments.
The Countess of Mar: My Lords, I have resisted the temptation to speak on the subject throughout debates on the Bill. I reiterate that I am a lay member of the Immigration Appeal Tribunal. One factor not covered in the debate is the amount of stress on the current chairmen of the tribunals, let alone the adjudicators. They have political and public pressures on them to do the job and get it right. In many cases, they work in isolation on case after case, and write up very often late at night. On many occasions, I can see the exhaustion in my colleagues' faces. Occasionally, a legal member can go off the rails. If he is sitting on his own, that may not be picked up for quite a long time.
5.30 p.m.
I find it difficult to support my job in the face of the fact that the Government do not like it. At the same time, Her Majesty's Government should consider the pressures that they are putting on these people. There is a backlog of thousands of cases, and the pressure is on to clear that backlog. It is very important to have even one lay member to support them, to discuss the case with them, and, as the noble Lord, Lord Kingsland, made clear, to come to conclusions on the credibility of the applicant in the first place.
We must remember that this is the only jurisdiction in this country that has the power of invoking the death penalty—that is a very dramatic way of putting it. We can also impose on people an awful prison sentence. Some of the conditions in the countries that asylum seekers come from are appalling. One need only have someone who is very tired and not quite
46
concentrating to make a little mistake. A lay member may just be able to prevent such a mistake from being made.
Lord Newton of Braintree: My Lords, I am encouraged by the presence of my distinguished predecessor, the noble and learned Lord, Lord Archer of Sandwell, to intervene briefly. I wish to quote from something that the Council on Tribunals, under the noble and learned Lord's chairmanship, said on an earlier proposal of this kind in its 1999 report. Page 11 states:
"We were troubled by the removal of the lay element from the Immigration Appeal Tribunal. Although we recognise that lay members may be unnecessary in cases concerned solely with issues of law, we believe that they have a valuable contribution to make when issues of credibility arise, particularly in asylum appeals".
As it happens, and as the noble and learned Lord will certainly remember, that proposal was changed during the passage of the Bill and the Lord Chancellor's power to appoint lay members to the Immigration Appeal Tribunal at that stage was preserved. This is not a point to which the Council on Tribunals has addressed quite the same attention on this occasion. Being more preoccupied with some of the other matters that I have touched on today, and given its less than full enthusiasm for the proposed single tier in this area, it has focused on other things.
In fairness to the Minister, we should acknowledge that the position is a little muddier in this area than has so far been acknowledged in this debate. The report published two or three years ago—I have forgotten the exact date—by Sir Andrew Leggatt, Tribunals for Users, which underpins the Government's forthcoming proposals for reform in that area, pointed out that it was curious that lay members are in the second-tier tribunal and not in the first-tier tribunal. That is the opposite of what one would expect, and what we would urge, in most systems.
I realise that the world has changed, because Sir Andrew recommended a general two-tier approach to tribunals, which the Government have now rejected in this area. It was in that context that he made the following proposal, which I quote from paragraph 23 of his report:
"There should be a first tier immigration and asylum tribunal, within a separate Division, which should be the sole judge of issues of fact. Complex factual issues are a regular feature of immigration and asylum cases, ranging from the circumstances of an alleged marriage or the obligations within an extended family abroad to the political situation in a country from which asylum is sought. Many cases would not be suitable for hearing by a chairman, even legally qualified, sitting alone and expert members should be used when appropriate at this level. In setting the qualifications for appointment to the tribunal, and to sit in particular cases, we believe"—
that is to say, Andrew Leggatt and his team—
"that special care should be taken to ensure that those selected bring relevant experience and skills to the decisions to be taken, such as knowledge of conditions in particular countries concerned, or of refugees".
In the context in which Sir Andrew reported, he said that there should be a second-tier tribunal, which would consist of lawyers sitting alone—that is to say, the more normal model.

47
I recognise that in one sense the world has moved on from the one in which Sir Andrew made those proposals. Nevertheless, the core of this is the argument that he sets out in the paragraph from which I have just quoted, which links very nicely with some of the remarks made in this debate about the nature of the decisions taken at what I will express in shorthand as the first-tier level. I have in mind the factors that need to be considered, the importance of credibility and the involvement of relevant experts—that was the word he used; it was certainly non-lawyer participants—in making those judgments of fact.
It would be helpful if the Government could clarify why they have rejected this line of argument, which appears to have at least as much merit in the context of the single-tier proposals as in the context, which I acknowledge is different, of what Sir Andrew said.
Baroness Carnegy of Lour: My Lords, I wish to reiterate a point that my noble friend Lord Kingsland made: the possibility of having lay members and an ethnic minority member, or perhaps two, to make the process more credible in the eyes of the public and the asylum seeker concerned. Several noble Lords have pointed out that this is the one opportunity when the facts can be ascertained. It is an absolutely critical time for an asylum seeker. To extend the possible membership of the tribunal by making it possible to have a suitably experienced—as the Bill requires—ethnic minority member is a very important point that we should not forget.
Lord Filkin: My Lords, I wish to place on the record that I am well aware of the value that lay members have brought in the past in these matters, and of the value that they bring to tribunals in a range of circumstances, not least employment tribunals, as the noble Lord, Lord Goodhart, indicated. As the noble Lord, Lord Newton, signalled, we shall shortly publish our proposals for taking forward Sir Andrew Leggatt's proposals, which I hope will pick up the essence of his approach. However, that is for another time.
Amendments Nos. 54 to 56 have been grouped with Amendments Nos. 50C, 54A and 57A as they relate to the appointment of members of the asylum and immigration tribunal, and how the members are deployed within the tribunal. Amendments Nos. 54 to 56 when read together would mean that a person is eligible for appointment as a member of the tribunal if, in the Lord Chancellor's opinion, he or she had legal or other experience that made them suitable for appointment. The thrust of these amendments would be to retain the existing provisions in the Nationality, Immigration and Asylum Act 2002 for the appointment of adjudicators with eligibility for judicial posts not based solely on legal qualification.
Amendment No. 54A is very clear that its purpose is to enable lay people to be appointed to the tribunal. The noble Lord, Lord Kingsland, tabled a similar amendment in Committee, which was not debated then.
Amendment No. 57A is new and would require appeal hearings to be conducted by three member panels, unless directed by the president. Amendment No. 50C would
48
ensure that determinations made by panels composed of lay members would still be subject to review in the High Court.
Let me seek to explain why we do not feel that these amendments are appropriate. After considerable thought, as a product of how we craft a new single-tier structure, we have taken the decision to ensure that the judiciary in the new asylum and immigration tribunal are appointed on the basis of qualified legal experience, or, in the opinion of the Lord Chancellor, they have legal experience which makes them suitable for appointment.
In setting out the reasons why we do not agree with the amendments, I will go back into history a little to explain how we have got to the current situation with the role of lay members in the appellate system.
The existing two-tier appeal system was introduced by the Immigration Act 1971. Lay members participated in panels formed as part of the Immigration Appeal Tribunal, as appeals to the IAT could be made on the grounds of errors both of law and of fact. However, the system of appeal introduced over 30 years ago by the Immigration Act 1971 bears little relationship to the complex system that we have today.
Compared to 1971, asylum and immigration appeals now raise many complicated legal issues that require close legal scrutiny and consideration. In these circumstances, a judge who has been appointed on the basis of legal experience is considered competent to conduct an appeal hearing on their own. However, it would be impossible to allow a lay member to conduct an appeal hearing on their own, and so this means they may be deployed only as part of a panel, as they are at present on the IAT.
However, even within the IAT it has become open to question whether lay members can claim to be an essential component to panel determinations on points of law, especially since the Nationality, Immigration and Asylum Act 2002, which restricted appeal to the IAT to points of law only. Lay members have made a valuable contribution to the IAT over the past 30 years or so, but these changes have diminished the role of lay members and placed them in an anomalous position—a position that the Government have addressed as part of their proposals for the new Asylum and Immigration Tribunal.
The majority of cases in the new tribunal will be heard by a single immigration judge. As adjudicators do now, they will need to consider points of law and of fact, and will therefore need to be legally qualified, legally experienced and competent to do this effectively. This rules out the deployment of lay members in this role, as their sole contribution to the decision-making process is restricted to matters of fact. It might be argued that lay members should be utilised in three-member panels, as is done now. However, in the new Asylum and Immigration Tribunal, the intention is that panels will usually be set up to hear only appeals that raise novel or complex points of law, or those that help to set authoritative case law for the tribunal. It goes without saying that the judicial bench hearing these appeals must be legally qualified.

49
The requirement in Amendment No. 57A that nearly all appeal hearings must be by three-member panels would, of course, also have a detrimental impact on resources and the speed of the appeal process. First, it would be wasteful of tribunal resources, as in the existing system just over half of appeals stop at the adjudicator stage, and only a minority of cases are ever considered by a three-member panel in the IAT. There is no need to have a panel for every case. Secondly, if the new tribunal had three-member panels within the faster times we expect, it would have to recruit many more new members, which would have to be paid for. Thirdly, if the tribunal were to keep to its existing resources, the number of appeal hearings it would be able to do per month with three-member panels would fall dramatically. There are some 56 lay members, and they are part time, sitting on average 40 to 50 days per year. That would inevitably lead to backlogs and delays. Lastly, in respect of lay membership within tribunals, the Leggatt report concluded that,
"There is no justification for any members to sit, whether expert or lay, unless they have a particular function to fulfil".
That is the essential thrust of why we believe that these proposals are consistent with Andrew Leggatt's proposals, recognising, like the noble Lord, Lord Newton, that times have moved on.
While lay members have had a role in the existing system, the Government have considered the needs of the new tribunal very carefully. We have concluded that the case for retaining lay members is no longer sustainable. To retain their services purely on the basis of custom and practice—which is what these amendments call for—would not be appropriate, courteous or right.
On the point made by the noble Lord, Lord Kingsland, about credibility, the future members of the IAT, adjudicators and legal members of the IAT are well able to assess credibility issues. They are trained and able to do so. The tribunal will be flexible; it will have both panels and single judges for cases. The tribunal is also well able to consider points of fact, that is, the purpose of the appeal when facts and law are considered together. If facts are not properly considered, that might amount to an error of law, and could be the subject of a review in the High Court.
In the new IAT, the judiciary are able to assess facts, as I have signalled, and if expert advice is required, as referred to by the noble Lord, Lord Goodhart, no doubt this can be requested. The low percentage of cases that result in the adjudicator's determination being overturned points to that credibility.
On the point raised by the noble Countess, Lady Mar, we are seeking to improve the quality of the tribunal through a new judicial structure that would allow the monitoring of individual members of the AIT. If a member made an error of law in determination, again that could be subject to appeal.
I have touched on the points made by the noble Lord, Lord Newton, about Sir Andrew Leggatt's report. The central point is that he was describing what was appropriate for a two-tier system; we are discussing a single-tier system. I share the desire for diversity expressed by the noble Baroness, Lady Carnegy of Lour. We are clear that that is subject to a merit test, as has been
50
signalled previously. The way to address that is to look at how to ensure that there is a pool of suitable, qualified lawyers available for appointment if they meet the merit test to be considered as judges in the new AIT structure.
I hope that I have been able to explain why, with some sorrow, we feel that the contribution that lay members have made in the past has now come to an end as a consequence of the substantially different role that the AIT will perform.
5.45 p.m.
Lord Kingsland: My Lords, I am not sure whether to conclude that the Minister completely missed the point of all the submissions which have been made by your Lordships, or if he simply did not want to know about them. I will leave it to your Lordships to reach your own conclusions. I will not repeat my speech, although the Minister did not answer any of the central issues that I raised in my submission.
I am most grateful to all noble Lords who contributed. I will, if I may, single out my noble friend Lord Newton of Braintree, who brought the telling argument of Lord Justice Leggatt to bear on the lack of logic of the Minister. The Minister seemed to suggest that, because the only grounds of appeal from the tribunal to the High Court are errors of law, the only people who are qualified to sit on tribunals ought to be lawyers. Yet the basis of all the arguments that have been deployed on this amendment this evening is exactly the opposite. It is because grounds of fact are not appealable to the High Court that we need to be confident that they will be properly determined at tribunal level. The Minister has simply not confronted that question, let alone answered it to the satisfaction of the Opposition. The noble Countess, Lady Mar, observed that this is the only tribunal that can send a person to their death because it does not find a story credible. That is particularly and conclusively telling.
I want to test the opinion of the House. The first amendment in this group is Amendment No. 50C. Will the Minister accept that—if by any chance the Opposition and our supporters should succeed in this Division—Amendments Nos. 54A and 57A are contingent upon Amendment No. 50C? Will he accept that the group of amendments goes together in the vote?
Lord Filkin: My Lords, I would be grateful if the noble Lord, Lord Kingsland, would allow me to reflect on that and give him an answer after we have seen the outcome of that Division.
Lord Kingsland: My Lords, the issues have been widely canvassed in the debate this evening. It would be most extraordinary if—were we to win this vote—the Minister then said that we had to go through all the other amendments in this group as well. Be that as it may, I would like to test the opinion of the House.
5.49 p.m.
On Question, Whether the said amendment (No. 50C) shall be agreed to?
Their Lordships divided: Contents, 151; Not-Contents, 98.

Division No. 2

CONTENTS

Addington, L.

Hunt of Wirral, L.

Alton of Liverpool, L.

Hurd of Westwell, L.

Anelay of St Johns, B.

Inglewood, L.

Astor of Hever, L.

James of Holland Park, B.

Attlee, E.

Jenkin of Roding, L.

Avebury, L.

Jopling, L.

Baker of Dorking, L.

Kimball, L.

Barker, B.

Kingsland, L.

Beaumont of Whitley, L.

Kirkham, L.

Blaker, L.

Laing of Dunphail, L.

Blatch, B.

Listowel, E.

Bradshaw, L.

Luke, L.

Bridgeman, V.

Lyell, L.

Brittan of Spennithorne, L.

McColl of Dulwich, L.

Brooke of Sutton Mandeville, L.

MacGregor of Pulham Market, L.

Brougham and Vaux, L.

Burnham, L.

Mackay of Clashfern, L.

Buscombe, B.

Mackie of Benshie, L.

Caithness, E.

McNally, L.

Campbell of Alloway, L.

Maddock, B.

Carlisle of Bucklow, L.

Mar, C.

Carnegy of Lour, B.

Mar and Kellie, E.

Chadlington, L.

Marlesford, L.

Chester, Bp.

Masham of Ilton, B.

Clement-Jones, L.

Miller of Chilthorne Domer, B.

Cobbold, L.

Miller of Hendon, B.

Colwyn, L.

Monro of Langholm, L.

Cope of Berkeley, L. [Teller]

Montagu of Beaulieu, L.

Craigavon, V.

Montrose, D.

Crickhowell, L.

Moynihan, L.

Darcy de Knayth, B.

Murton of Lindisfarne, L.

Deedes, L.

Naseby, L.

Dholakia, L.

Newby, L.

Dixon-Smith, L.

Noakes, B.

Donaldson of Lymington, L.

Northbrook, L.

Eccles of Moulton, B.

Northesk, E.

Eden of Winton, L.

Northover, B.

Elles, B.

Oakeshott of Seagrove Bay, L.

Elliott of Morpeth, L.

O'Cathain, B.

Erroll, E.

Oppenheim-Barnes, B.

Ferrers, E.

Park of Monmouth, B.

Flather, B.

Patten, L.

Forsyth of Drumlean, L.

Peel, E.

Fowler, L.

Platt of Writtle, B.

Freeman, L.

Plumb, L.

Garel-Jones, L.

Plummer of St. Marylebone, L.

Geddes, L.

Prior, L.

Gilmour of Craigmillar, L.

Quinton, L.

Glentoran, L.

Rawlinson of Ewell, L.

Goodhart, L.

Razzall, L.

Goschen, V.

Reay, L.

Hamwee, B.

Redesdale, L.

Hanham, B.

Renton, L.

Hanningfield, L.

Roberts of Conwy, L.

Harris of Richmond, B.

Rodgers of Quarry Bank, L.

Hayhoe, L.

Roper, L. [Teller]

Home, E.

Rotherwick, L.

Hooper, B.

Russell, E.

Howe, E.

Saltoun of Abernethy, Ly.

Howe of Aberavon, L.

Seccombe, B.

Howe of Idlicote, B.

Selsdon, L.

Howell of Guildford, L.

Sharman, L.

52

Sharp of Guildford, B.

Tope, L.

Sharples, B.

Trenchard, V.

Shaw of Northstead, L.

Tugendhat, L.

Shutt of Greetland, L.

Ullswater, V.

Skelmersdale, L.

Waddington, L.

Smith of Clifton, L.

Wakeham, L.

Stern, B.

Wallace of Saltaire, L.

Stewartby, L.

Walmsley, B.

Strathclyde, L.

Walton of Detchant, L.

Swinfen, L.

Watson of Richmond, L.

Taverne, L.

Weatherill, L.

Thomas of Gresford, L.

Wilcox, B.

Thomas of Walliswood, B.

Williams of Crosby, B.

Windlesham, L.

NOT-CONTENTS

Ahmed, L.

Hollis of Heigham, B.

Amos, B. (Lord President of the Council)

Howells of St. Davids, B.

Howie of Troon, L.

Andrews, B.

Hoyle, L.

Ashton of Upholland, B.

Hughes of Woodside, L.

Bassam of Brighton, L.

Hunt of Kings Heath, L.

Berkeley, L.

Jay of Paddington, B.

Bernstein of Craigweil, L.

Jones, L.

Billingham, B.

Jordan, L.

Blackstone, B.

Kirkhill, L.

Borrie, L.

Lea of Crondall, L.

Bragg, L.

Lipsey, L.

Brooke of Alverthorpe, L.

Lofthouse of Pontefract, L.

Brookman, L.

McCarthy, L.

Burlison, L.

Macdonald of Tradeston, L.

Campbell-Savours, L.

McIntosh of Haringey, L.

Carter, L.

McIntosh of Hudnall, B.

Christopher, L.

MacKenzie of Culkein, L.

Clarke of Hampstead, L.

Marsh, L.

Clinton-Davis, L.

Mason of Barnsley, L.

Corbett of Castle Vale, L.

Massey of Darwen, B.

Crawley, B.

Merlyn-Rees, L.

David, B.

Mitchell, L.

Davies of Coity, L.

Morgan, L.

Davies of Oldham, L. [Teller]

Morris of Aberavon, L.

Dean of Thornton-le-Fylde, B.

Morris of Manchester, L.

Desai, L.

Nicol, B.

Dixon, L.

Patel of Blackburn, L.

Donoughue, L.

Pitkeathley, B.

Dubs, L.

Radice, L.

Elder, L.

Richard, L.

Evans of Parkside, L.

Rooker, L.

Evans of Temple Guiting, L.

Scotland of Asthal, B.

Falconer of Thoroton, L. (Lord Chancellor)

Sheldon, L.

Farrington of Ribbleton, B.

Simon, V.

Filkin, L.

Symons of Vernham Dean, B.

Fyfe of Fairfield, L.

Temple-Morris, L.

Gale, B.

Thornton, B.

Gibson of Market Rasen, B.

Tomlinson, L.

Golding, B.

Triesman, L.

Goldsmith, L.

Turnberg, L.

Gordon of Strathblane, L.

Turner of Camden, B.

Gould of Potternewton, B.

Varley, L.

Graham of Edmonton, L.

Watson of Invergowrie, L.

Grantchester, L.

Whitty, L.

Grocott, L. [Teller]

Wilkins, B.

Harrison, L.

Williams of Elvel, L.

Hayman, B.

Woolmer of Leeds, L.

Hilton of Eggardon, B.

Young of Old Scone, B.

Hogg of Cumbernauld, L.

Resolved in the affirmative, and amendment agreed to accordingly.
[Amendments Nos. 51 and 52 not moved.]
6 p.m.
Lord Kingsland Lord Kingsland moved Amendment No. 52A:
After Clause 14, insert the following new clause—

REVIEW AFTER EXHAUSTION OF RIGHTS OF APPEAL
Where a person's statutory rights of appeal have been exhausted with respect to an immigration decision, and where that person subsequently makes an application to the Secretary of State for his deportation to be stayed on the grounds that here has been a change of circumstances—

(a) if the Secretary of State decides that there has been no change in circumstances or accepts that there has been a change of circumstances but decides that they do not justify a stay of deportation, the applicant within 10 days of the decision may apply to a High Court judge or a judge of the Court of Session to review the decision;

(b) the review shall be conducted on the papers save in exceptional circumstances;

(c) the decision of the High Court judge or the judge of the Court of Session is Final."

The noble Lord said: My Lords, the reason for introducing the amendment is to try to make the statutory review scheme in the Bill comprehensive in such a way that it excludes the possibility of judicial review. We can only succeed in doing that if the statutory review procedure, throughout all stages of the asylum decision, is considered sufficiently fair for the courts not to exercise their discretion to use the judicial review remedies that our courts have so proudly developed over the past 40 years.
I am trying to confront the following scenario: an asylum seeker has exhausted his statutory rights and is due to be deported. At some stage before his deportation, a new set of circumstances arises, say, in the country to which he is to be deported. There is a regime change. A benign regime is replaced by an autocratic and brutal one. In those circumstances, the asylum seeker, who is about to be deported, communicates with the Home Office. He says, "My decision ought to be reviewed on the grounds that the circumstances of my case have changed since the final tribunal decision was made. The country to which I am to be deported is a country that will, if I go there, treat me at a standard below the standards required by English law".
The Home Office considers such applications. In some cases, it has accepted that there is a change of circumstances and consequently has stayed deportation. But in other circumstances, it has either said that it does not accept that the circumstances have changed or that the circumstances have changed but not sufficiently to stay deportation. If it reaches one of those two latter decisions, the asylum seeker will often seek judicial review. As a consequence, the whole case, including all the issues that were raised during the statutory procedure, is rerun, to everyone's unnecessary expense and, in some cases, to the mental detriment of the asylum seeker.
The amendment seeks to prevent all that by ensuring that where the Home Office decides that there has been no change of circumstances or that there has been a change of circumstances but that it does not believe that they are sufficient, the matter will be reconsidered by a High Court judge. It is not necessary to go back to the
54
tribunal again. The only issue at stake is not the personal circumstances of the asylum seeker, but the factual situation in the country to which he is about to be deported. That can be swiftly, effectively, successfully, credibly and comprehensively dealt with by a High Court judge. There is no reason why his decision ought not to be final.
In my judgment, if that amendment is incorporated in the Bill, it will succeed in achieving de facto what the Government sought, so clumsily, to achieve with their ouster clause; namely, to persuade judges who sit in the administrative courts considering judicial review matters on change of circumstances applications that judicial review is not necessary because an alternative and satisfactory statutory procedure is already in place. I beg to move.
Earl Russell: My Lords, I think that we all feel that it is in the initial stage of the asylum hearing where most of the worst mistakes are made. At the weekend, I was looking at the report compiled on behalf of the Mayor of London on the effects of Section 55 of the 2001 Act. It quoted an official from the Home Office who is used to hearing initial applications, who said, "When I get an application from Afghanistan, I simply repeat one of the standard formulae from the country assessment. When I get tired of doing that, then I repeat a different sentence from the formulae about the country assessment". Afghanistan has seen quite a lot of changes over the past few years. If one is doing that, one is almost bound to be wrong and severely risks being totally irrelevant to the case under consideration.
The number of mistakes that are made in that way is considerable: for example, the assertion that used to be made regularly under President Mobutu of Zaire. Under President Mobutu, opposition parties were allowed to flourish freely: well, so President Mobutu said. But President Mobutu is not granted and was never granted infallibility and it is not compulsory to believe him. One must question those assessments. One must question the picture of the country.
I also very much took the point made by the noble Lord, Lord Kingsland, about the drafting of a statute in such a way that it does not leave an opening for people to say those wonderful words of judicial construction: namely, Parliament cannot possibly have intended that. I think that the noble Lord would be wrong to suggest—as he sounded as if he might be doing at one stage, but he probably was not—that this is only a development of the past 40 years.
One can take this back right through the centuries; for example, to the Dissolution of Chantries in 1549. It had a proviso which had the effect of providing that when the King bought chantry land he had to do feudal homage to one of his subjects. The court concluded there that Parliament could not possibly have intended that that should happen. On that occasion, I think that the court was right.
My favourite example of Parliament not intending something was the Bologna ordinance, which laid down the death penalty for shedding blood in the

55
piazza. One of the judges went to the barber in the piazza, who cut the judge in the course of shaving him. He was put on trial under the statute. The court ruled that that was contrary to the intention of the statute and that the barber was innocent.
Time spent here on getting the drafting of the statute right is likely to be time better spent than we realise. It will save a great deal of time later.
Lord Donaldson of Lymington: My Lords, I support the amendment. Once the stage of a deportation order has been reached, everything has been looked at in due order and in proper circumstances. But if there is a fundamental change in circumstances thereafter, it is idle to say, "Well, that has been decided by the earlier proceedings". By definition, the circumstances did not then exist. The intention, as set out by the noble Lord, Lord Kingsland, might almost have been made by him from the Front Bench since it admirably meets the intention so often reiterated by the Government that we must stop these endless appeals and judicial reviews. I do not think that they ever were endless, but that is beside the point.
The amendment does that very neatly. The only improvement that I should like is a pure drafting matter, which is a point raised by the noble and learned Lord, Lord Mackay, at an earlier stage. Paragraph (b) of Amendment No. 52A states that,
"the review shall be conducted on the papers save in exceptional circumstances".
I would like to know who will decide about the exceptional circumstances, but I assume it is the tribunal and the High Court judge hearing the quasi-judicial review application. But, obviously, it would enable the Government to make an application to the court that they may also be heard, and there might well be a cause for it. If the issue is whether there has been a sufficient change in the regime of the place where the deportee is to be sent, his evidence on the matter may be, not unnaturally, extremely one-sided. I would not want to see a repetition of the situation not many months ago when the Home Secretary complained bitterly that he did not seem to be able to appeal. I hope that the Home Secretary would be given every opportunity to have his say in these circumstances, but even his say will not take very long. So the Government's main objective will be met as will the interests of justice.
Lord Filkin: My Lords, in the specific example that the noble Lord, Lord Kingsland, gave for why he believed that this amendment was desirable, he talked about circumstances which, while not likely to be commonplace, are certainly possible—that is, a regime change in a country from one which was basically benign and no real threat to the life and liberty of the asylum seeker to one which was hostile in general and posed a real and specific threat to the applicant. That is not commonplace but it is possible.
However, in that situation there is a relatively straightforward way that the applicant or their solicitor would signal to the Home Office that they
56
wish to apply for asylum because the circumstances had changed suddenly and significantly, affecting their liberty. In that circumstance the Home Office would make a decision about whether it was a new application for asylum, and, if so, consider whether it met the tests and should be accepted.
If the Home Office, through IND, came to the conclusion either that it was not a change of circumstances, or that the change of circumstances did not justify granting asylum, then the applicant would have a right of redress on judicial review, as the noble Lord, Lord Kingsland, signalled.
While I respect that the noble Lord is genuinely seeking to persist in this—no doubt that is the case—in these particular cases judicial review is a more flexible remedy than a statutory right of appeal. Under the proposal, a person would have 10 days to apply, but, if a person applies with judicial review at the last moment, they are required to apply within three days. The amendment would make it harder to remove when there was not a meritorious case. There is also no means to stop the person reapplying again and again for the appeal to the High Court, or else a person would go to judicial review as there was not adequate remedy.
I turn to some of the drafting points where this amendment is not appropriate. We do not believe it will be an effective solution or one that is necessary because a process for dealing with new representations made after appeal rights have been exhausted already exists, as I have summarised. The 2002 Act built on the one-stop appeal process first introduced in the Immigration and Asylum Act 1999. The Act provides for one application, one decision and one appeal. This has broadly been a success. For example, an asylum seeker who makes a claim is required to provide all their reasons for wishing to remain in the country. If their appeal is dismissed, or they decide not to make such an appeal, but then later make new representations, those representations will be considered under paragraph 346 of the immigration rules to decide whether they constitute a fresh claim.
If it is decided that the representations do not constitute a fresh claim, but rather that they are simply further representations on the original claim, the Secretary of State may maintain his original decision, so no new right of appeal arises. However, if the new representations are considered to be a fresh claim, a new decision, as I signalled, would be made by the Secretary of State which would give rise to a new right of appeal unless the case is certified under Section 96 of the 2002 Act. Certification under Section 96 may take place where a new claim relies on facts which should have been raised at an earlier stage. Clearly, that would not be the case in the situation advanced by the noble Lord. Certification prevents a further statutory right of appeal to the appellate authority or the courts, although it would be open to the claimant to bring a judicial review.
So, whether the approach is a fresh claim or simply further representations, the applicant always has a remedy—be it a fresh appeal right or the option of applying for judicial review.
6.15 p.m.
We also have concerns about the effectiveness of the procedure proposed in the amendment. It is flawed in a number of ways. It would not make provision for the other party to appeal to make representations. An ex parte paper review process is not appropriate in this context. Statutory review under Section 101 of the Nationality, Immigration and Asylum Act, and the proposed system of High Court review under new Section 103A, are used as a means of identifying whether an applicant has an arguable case that the decision on their case is wrong.
If the High Court is of the opinion that there is an arguable case to be made, the appeal receives substantive consideration by the tribunal and both sides are given the opportunity to make written and oral representations. However, Amendment No. 52A would require the High Court judge to come to a final substantive decision without the benefit of representations from the other party.
The amendment also leaves the grounds open to challenge the Secretary of State's decision. It does not restrict the ground, for example, to an error of law. The failure to restrict the ground of review would mean that the High Court would be reconsidering errors of fact and law. If matters of fact are permitted in the review, it would therefore risk producing something akin to the original appeal hearing in the tribunal, but one that is one-sided and being decided by an inappropriate court not best placed to test that.
In addition, Amendment No. 52A would rule out the Court of Appeal involvement in the deportation process. The Court of Appeal plays an important role in establishing case law. But these are perhaps more technical points than ones relevant to the central issue raised by the noble Lord, Lord Kingsland. As I sought to address at the beginning, there are remedies available to the applicant, as there should be in the circumstances advanced by the noble Lord. If, despite there being evidence that a regime change had taken place, an IND official still made a judgment that that was not a new application, then the remedy of judicial review is there and we believe that that is appropriate in these circumstances.
Lord Kingsland: My Lords, before the Minister sits down, I would like to express frankly to him my perplexity at his answer. We started the Bill in another place with an ouster clause. The ouster clause sought to oust judicial review from asylum decisions. The Opposition pointed out to the Government another, more satisfactory, way of creating a comprehensive statutory regime which is sufficiently fair to have the effect of ousting judicial review without actually saying it, from the beginning of the process to the end.
Between Second Reading and Committee stage in your Lordships' House, the Government withdrew the ouster clause. We are now told by the Minister that our attempt to create a comprehensive statutory regime, in the absence of an ouster clause, is insufficiently flexible because it does not have the flexibility of judicial review.
58
So the Government have now shifted from a position which began, in another place, with wanting to oust judicial review altogether. Since then they have travelled all the way across the spectrum to say, now, in your Lordships' House that, in some aspects of the asylum decision-making process, judicial review is preferable to a statutory regime because it is more flexible. All I can say to the Minister is: well, really. Where do the Government think they stand on the issue of judicial review?
It was appropriate for the noble and learned Lord, Lord Donaldson, to raise one technical matter. During his response the Minister in turn raised one or two technical questions about my amendment. I think I had a signal from the noble Earl, leading for the Liberal Democrat Benches, that he would like to reflect further on this issue. In those circumstances, although I wish to bring the amendment back at Third Reading, for the moment I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Kingsland Lord Kingsland moved Amendment No. 52B:
After Clause 14, insert the following new clause—

APPEAL TO TRIBUNAL: PROCEDURE
(1) Initial decisions by the Secretary of State on asylum application shall be made and notified to the applicant within six weeks of the application being made.
(2) Notice of appeal from the decision of the Secretary of State to the Asylum and Immigration Tribunal ("the Tribunal")—

(a) must be made in writing,

(b) must be lodged with the Tribunal within 14 days of the decision appealed against, and

(c) must list all the grounds on which the appeal is made.

(3) Within 14 days of receipt of the notice of appeal the Tribunal shall hold a direction hearing at which all parties to the appeal shall be present."
The noble Lord said: My Lords, we have just dealt with the final stages of the decision-making process of asylum applications. This amendment takes us back in the other direction, to the beginning. We are told that one of the objectives of the Bill is to reduce delay. It is well known that one of the biggest causes of delay in the asylum system is the gap between the application for asylum made by an asylum seeker to the Home Office and the decision reached by the Home Office—technically, the Secretary of State. This amendment would insert into the Bill a time constraint requiring the Secretary of State to decide on an asylum application within six weeks of it being made.
It is my submission that the adoption of this amendment would make a far bigger contribution to resolving the problem of delay in the asylum system than the reduction of time available during the appeal process itself, to apply for a review, to a period of five days. That is a minor point in the context of the overall problem of delay in the asylum process and I urge the Government to accept the amendment. I beg to move.
Lord Filkin: My Lords, I was almost fooled by the noble Earl, Lord Listowel, in that I thought he was rising to speak. If I understand the noble Lord, Lord Kingsland, correctly, this amendment is essentially a debating point to put pressure on the Government to ensure that the earlier

59
parts of the process are dealt with expeditiously. We are four-square with the noble Lord on that as a goal of policy. But we could not adopt such an amendment because the consequences would be ones which I suspect neither he nor we would wish to see.
The new clause introduced by this amendment is concerned with both the initial decision stage in asylum cases and the appeal stage. Subsection (1) would require initial decisions on asylum applications to be taken and notified to the applicant within six weeks.
I suspect that the noble Lord, Lord Kingsland, is aware of how far we have moved since 1997. In that year, when we had the pleasure of inheriting the immigration and asylum situation, the average decision-making time was 22 months. By 2002 that figure, including decisions on backlog cases, was provisionally brought down to six months. We have since set ourselves a target to decide 75 per cent of new asylum applications within two months, a target that we look to be on course to beat, as well we should. Recently we have been deciding around 80 per cent of new cases within two months.
We have also made massive inroads into the backlog. From a peak of over 120,000 cases, it is now below 18,100, and falling fast. So we have no difficulty in being open to public scrutiny on our ability to address cases, turn them around and crack the enormous backlog that had built up when we came into government. This is relevant because, as noble Lords know, if the wider world—and in particular traffickers—sense that the pace is slow and the ability to remove difficult, that feeds the business of the traffickers very powerfully indeed. Fast but fair processing is fundamental to providing an effective deterrent.
Having said that, I do not see any merit in placing a rigid requirement in primary legislation stipulating that a decision must be taken within a specified time. In the majority of cases it is possible to decide claims quickly and fairly with efficient procedures, but there will be cases where more time will be needed if they are to be dealt with fairly—such as where medical evidence is considered crucial or further explorations need to be made in, for example, the person's home country to see whether their claim is well founded. Alternatively, a short-term disturbance may arise, making it essential to put a brief hold on decision-making for that country.
Under the constraints imposed by subsection (1) of the proposed new clause, we would be forced to take decisions without having the necessary facts at our disposal. The consequences would be that either we would make decisions without the relevant evidence—and thus would not be acting fairly—or we would fail to make decisions within the time-frame. I am not sure what consequences are implied by the noble Lord, Lord Kingsland, in that situation. If the Government did not deal with applications within six weeks, would the applicants be granted asylum in all cases? I cannot believe that that is the thrust of his proposal. There are
60
better ways of ensuring that claims are decided promptly than the crude instrument of primary legislation.
Rather than going into more detail at this point, I repeat that I am four-square with the noble Lord on why we have to keep up both the political and managerial pressure to deal expeditiously and fairly with asylum applications. We have made enormous progress over recent years, but there is still further to go. While not welcoming it, I respect the challenge laid down for us to achieve more, but I do not think that this is the way to do so.
Lord Kingsland: My Lords, I am grateful for the Minister's reply. I accept that progress has been made in reducing the time-frame between the application and the decision. I also accept that, at this stage of the passage of the Bill, this amendment is not word perfect. Clearly we would need to introduce a saving clause to deal with situations where a decision within six weeks was not genuinely possible.
On the other hand, the Government argued strongly earlier this afternoon—unsuccessfully, I am pleased to say—that increasing the time available for making applications for judicial review from five days to 10 days would introduce a serious delay to the process. But compared with the kind of delays that we face in the initial stages of the asylum seeker's journey through the statutory system, the delays in the appeal process are trivial. The House has already expressed itself on that point.
I submit that it would be desirable to have on the face of the Bill something along the lines of the amendment I have proposed. I accept that it needs to be more flexible than the straightforward six weeks proposed here, but I shall take the opportunity between now and Third Reading to give the matter more thought. I may reintroduce the amendment at that point. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Lord McNally Lord McNally moved Amendment No. 52C:
After Clause 14, insert the following new clause—

IMMIGRATION DECISION PROCEDURE
(1) Any interview with the applicant shall be conducted—

(a) by personnel experienced in interview techniques and trained in cross-cultural communication;

(b) by personnel of the applicant's own gender if requested by the applicant.

(2) An accurate, verbatim and legible written record shall be kept of any interview held under subsection (1).
(3) The applicant may request the record be read back to him and to request his alterations be included or, if rejected, recorded.
(4) Any decision on the applicant's claim shall be determined—

(a) by the same personnel as conducted the interview;

(b) on the basis of up-to-date and accurate information on the applicant's country of origin;

(c) after careful consideration of any medical evidence bearing out allegations of torture.

(5) An independent inspector shall be appointed after consultation with relevant organisations—

(a) to report annually on the quality of decision-making in asylum cases;

(b) to lay that report before Parliament.

(6) Section 14 shall not be enacted until and unless the independent inspector is satisfied that the quality of initial decision-making has been improved."
The noble Lord said: My Lords, the tone of many of these amendments acknowledges that there is no easy fix for some of the dilemmas here. The Minister appears to recognise that the Opposition Benches are trying to be constructive in their approach, and certainly the thrust of Amendment No. 52C reflects that. I return to the tale of the Irishman who, when asked for directions, replied by saying, "If I were you, I would not start from here". We suggest that, in a Bill whose main thrust seems to be to eradicate the overly cumbersome appeals procedure, it misses the more basic fact that the real fault in the system lies in the initial judgments.
In 2003 over 64,000 initial decisions were made for asylum. Well over 16,000 of those were subsequently overturned. That indicates a massive waste of resources; it is massively unfair to claimants; and it damages public confidence in the system. In Canada only 1 per cent of initial decisions are overturned, which suggests that perhaps the Government have approached this whole problem from the wrong place and in the wrong way.
We are encouraged in this approach by the opinion of the Home Affairs Select Committee, which said,
"The real flaws in the system appear to be at the stage of initial decision-making, not that of appeal".
The Constitutional Affairs Select Committee said,
"we recommend that the removal of a formal tier of appeal should not be undertaken until it can be shown that there has been a significant improvement in initial decision making and the rise in the number of successful first tier appeals has been substantially reversed".
That would seem to be the sensible way to get this system right. As the noble Lord, Lord Kingsland, has indicated, we do not ignore the Government's initiatives and attempts to improve the system. We welcome the widespread consultation that has taken place. We welcome the setting up of the Advisory Panel on Country Information, although it might have been better if the Government had taken advice from that panel before extending their defined safe countries. Nevertheless, there are good and well intentioned attempts to get this right. We also welcome the involvement of the UNHCR in conducting an audit to report regularly on the quality of initial decision-making.
This amendment, however, puts forward some specifics to improve initial decision-making. We want to see better, more accurate, timely and impartial information relating to countries of origin. We want to see better expertise in relation to caseworkers. Time and again, those who have given evidence or briefed us have complained about the low quality of personnel involved in initial decision-making. That is not fair to the personnel involved and does not help in addressing some of the problems that we are concerned with.
In process we want to see greater continuity of human contact between decisions at the initial and appeal stages. We also think that there are too many perverse incentives built into the system. Surely the main thrust is not in getting the decision fast but in getting it right. That is why we suggest that a little more investment at the initial stage will produce that result.
We believe that there should be a better appreciation of medical evidence as it relates to allegations of torture, and available and adequate legal aid and advice at the initial stage.
I hope that the Minister will see this as very constructive and, in terms of what both the Home Affairs and the Constitutional Affairs Select Committees have recommended, as going right to the core of the problem—rather than what the Government have tried to do in their meander through this legislation in both Houses—to address some of the consequences of the imperfections at the initial stage. I beg to move.
Baroness Park of Monmouth: My Lords, I strongly support this amendment and, in particular, subsections (4)(b) and (c).
My grounds, which relate to Zimbabwe—the only area on which I have any special knowledge—are that the Home Office has repeatedly decided that Zimbabwe is a safe country, despite the fact that the country reports from the FCO and the UNHCR took a totally contrary view. The enormous influx of refugees into Botswana and South Africa suggests that it is not exactly a safe country.
With regard to subsection (4)(c) I hope that the Minister can tell us at some stage, perhaps not now, whether the panels which are deciding whether there has been torture ask the Amnesty International specialists and the Amani Trust—who know torture when they see it.
The Countess of Mar: My Lords, I thank the noble Lord, Lord McNally, for this amendment but I do not think that it should be on the face of the Bill.
The Home Office is suffering from a managerial problem. Staff need to be motivated; they need to be informed as to how important their work is; and perhaps they should be paid properly. I am sure that a lot of the problems could be resolved with proper training and proper management.
Lord Newton of Braintree: My Lords, I am tempted to rise because of what the noble Countess, Lady Mar, has said. I share the view that this amendment, in its exact form, should not be on the face of the Bill.
On the other hand, I want to express my support for the general thrust of some of the points the noble Lord, Lord McNally, has made, while acknowledging—with a wry smile in the direction of the Minister—that here he is effectively having to answer for matters that are primarily for the Home Office rather than for the department which leads him to be in his present place in the House.

63
If there have been two long-running concerns regarding what happens in this area—probably going back to the time of my predecessor, the noble and learned Lord, Lord Archer of Sandwell, as chairman of the Council on Tribunals—it is the quality of initial decision-making combined with something that has not so far been touched on in this debate, which is the astonishing proportion of hearings before the adjudicators at which no one comes from the Home Office. There is no Home Office presenting officer—known in the trade as a HOPO—to present the Home Office case.
Given the combination of question marks—I put it no stronger than that—over the initial decision-making, coupled with the fact that a surprisingly high proportion of hearings take place with nobody there to put the case for the Home Office, it is perhaps not surprising that the amount of overturning at the initial stage has been rather high.
Whether or not that is a fair line of argument, there is one thing on which all would agree there is concern, whether it be the great committees to which reference has been made by the Liberal Democrat Front Bench, or the experience of the Council on Tribunals, or anybody who has looked at this. It is the need, whatever is done with the tribunal system, to improve the quality of initial decision-making and to make sure that the Home Office's case is sensibly represented when an appeal hearing takes place.
Lord Filkin: My Lords, I could not agree more with quite a lot of what has been said, particularly by the noble Countess, Lady Mar, that, while these may in many cases be proper goals of policy, they should not, for a variety of reasons, be on the face of the Bill.
I am not sure whether the noble Lord, Lord Newton, expresses congratulations or sympathy that I am answering for the Home Office. It is not for the first time nor for the last, and it is always a privilege to do so.
Lord Newton of Braintree: My Lords, I will not define whether it is congratulation or sympathy, but the Minister may be able to guess.
Lord Filkin: My Lords, I shall say no more.
In essence, I agree with the central thrust of what the noble Lord, Lord McNally, has said: we want the right decisions to be made in IND—that is easy to say but not easy to do—and for them to be made as expeditiously as possible. That is the aim of the policy and the aim of the process. We are committed to high-quality decisions being made in IND for obvious reasons; it will lead to a more robust system.
We have introduced a range of measures to improve the quality of the decisions it takes. These include work on identifying the right candidates for asylum casework; looking at additional ways of strengthening the training and development of caseworkers; having samples of asylum decisions quality assured by senior caseworkers and external assessors; extending the
64
feedback we obtain from appeal decisions; and doing further work on the country information products and instructions we issue.
While we consider the quality of initial decisions to be good we accept that more can be done and we are taking active steps in this area. In taking forward this work we are keen to involve outside help, as appropriate—as we are doing, for example, with the UNCHR. However, I do not consider that primary legislation is the appropriate vehicle for this.
Let me say a little more about what we are doing in regard to some of the specific issues raised by the noble Lord, Lord McNally. All asylum caseworkers attend a three-day intensive training course following their basic asylum training. After that, they have an opportunity to sit in on live interviews and the first interviews they themselves conduct will also be observed by a senior officer or an experienced colleague. There is also a certain amount of "learning on the job" as a typical asylum caseworker may conduct around 200 interviews during the course of a year.
There is a substantial cultural diversity in the workforce of IND, which is desirable given the wide range of nationalities—in excess of 150—with which it deals. Wherever operationally possible, we offer an interviewer of the same gender as the applicant upon request. Where a request has been made in advance, there has been no difficulty in doing this. If the request is made on the day, we still do our best to comply.
It is standard practice to keep an accurate, verbatim and legible manuscript record of the interview and to provide the applicant with a copy of the same at the end of the interview. Under current procedures, the interviewing officer has the discretion to allow a read-back of the interview to vulnerable applicants. Our experience is that the present system works well and that there is little demand for interviews to be read back generally. Any complaint about the accuracy of the interview record may be made after the interview and may also be raised at appeal if asylum is refused. We have received very few complaints about the conduct and the manuscript recording of interviews.
In many cases the person conducting the interview will be the person who decides the claim. This clearly has some advantages. However, with caseworkers being absent on leave or training and with some caseworkers working part-time, it would be operationally inefficient for the system to be too rigid and to always have the interviewer as the decision maker. It is possible for a person who has not interviewed the applicant to reach a decision on the claim, given that he or she will have available the full interview record and the relevant background information.
We recognise that accurate, balanced country information is vital to an effective system. As the noble Lord, Lord McNally, indicated, the 2002 Act established the advisory panel, and the UNHCR has cited the creation of the panel as an example of good practice. The panel's work has demonstrated that it is fulfilling its function in a robust and effective manner and the Home Office is keen to respond positively to its

65
recommendations. With the assistance of the panel, we are confident that we can ensure that Home Office country material meets the highest standards.
Careful consideration is given to medical evidence bearing out allegations of torture. We are delighted that the Medical Foundation now provides regular workshops to asylum caseworkers to better equip them to interview victims of torture and to take proper account of medical evidence when reaching a decision on an applicant's claim.
The other elements of the amendment relate to an independent inspector. We do not consider that an inspector needs to be appointed. As I have outlined, we have many measures in hand to improve further the quality of original decision making and we are involving outside bodies in that work where appropriate. We believe that the quality of decision making is good—it has certainly significantly improved over the past seven years or so—and we are satisfied that the new appeal structure will provide a robust, independent means of challenging adverse decisions.
I turn now to deal with some of the other points raised in the debate. As to torture, our country reports reflect a wide range of information and sources, including Amnesty International, in regard to conditions in particular countries, and we take account of medical reports and reports from the Medical Foundation when assessing asylum claims. As to Home Office presenting officers, we wish to have presenting officers at as high a percentage as possible of appeals before the IAT, for the reasons given by the noble Lord, Lord McNally.
We do not believe that primary legislation is the place for these measures. However, many if not all of them are proper goals of policy and of management and we are working to achieve them. I hope that the noble Lord, Lord McNally, will withdraw his amendment.
6.45 p.m.
Lord McNally: My Lords, two matters always encourage the mover of an amendment: one is a steady stream of papers coming from the officials' box and the other is the quality of supporting speakers. I have had both with this amendment.
As the noble Countess, Lady Mar, said, I realise that some of the objectives may be matters for practice and training rather than legislation. I shall study the Minister's reply before deciding how to take this forward at Third Reading.
Having listened to those who have worked on this subject, I should tell the Minister that part of the problem at the initial stage has been a culture that somehow everything will be swept up at a later stage. That may explain the point of the noble Lord, Lord Newton, about the absence of Home Office personnel at key meetings. That is the kind of thing that undermines confidence and perhaps introduces slack practice.
I have been encouraged by the contributions that have been made. I hope that the Minister and his colleagues will read them carefully. We will return to this matter at Third Reading, when I hope we will see further evidence that the Government are addressing
66
the problem of the initial stage in the process—which, as I have said, two committees have already indicated may have been the right place for the Government to have started this journey in the first place. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 53 not moved.]
Schedule 1 [New Schedule 4 to the Nationality, Immigration and Asylum Act 2002]:
[Amendment No. 54 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 54A:
Page 34, line 17, after "legal" insert "or lay"
On Question, amendment agreed to.
Lord Goodhart Lord Goodhart moved Amendments Nos. 55 and 56:
Page 34, line 18, leave out first "as"
Page 34, line 18, leave out from "appointment" to end of line 19.
On Question, amendments agreed to.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 56A:
Page 34, line 24, leave out "(which may include provision for dismissal)"
The noble Lord said: My Lords, in moving Amendment No. 56A, which stands in my name and that of my noble and learned friend Lord Archer of Sandwell, I shall speak also to Amendment No. 57D.
These matters have been dealt with sensibly in correspondence between his honour Judge Henry Hodge and my noble and learned friend Lord Falconer. However, we ought to refer to them in order to obtain more certainty about the issues involved. I do not believe that they should be dealt with entirely through correspondence.
The provision in paragraph 3(1)(c) of the schedule states that members of the new single appellate authority,
"shall hold and vacate office in accordance with the terms of … [their] appointment".
If we were to stop at that particular point, there would be no issue between us at all. It would follow in that respect all similar provisions in statutes which create judicial posts in courts and/or tribunals.
I accept that terms and conditions of appointment have to include terms for removal from office for good cause. In that category, I include incapacity, misconduct, a substantial diminution of work and so on. However, the Bill goes entirely beyond that. It states that the terms and conditions of members of the new tribunal "may include provision for dismissal". I have certain objections to the word being used. "Dismissal" is the language of employment. It is not the language of those holding judicial office. Judicial office holders are not employees. They are independent judicial appointees.
There is no need to go beyond the existing law, which simply states that existing officers, adjudicators and immigration tribunal members hold and vacate office in accordance with their terms of employment. Adjudicators

67
and AIT members fear that their terms of employment may deteriorate after commencement as a result of policy. Any change in terms and conditions is seen to be a threat to judicial independence.
On a number of occasions, my noble and learned friend the Lord Chancellor has given assurances that the arrangements for disciplining and removing judicial office holders will continue to apply in the new single tier, but there is no need whatever to state that terms and conditions of employment may include provision for dismissal. That adds absolutely nothing to the existing provision, save to arouse fears that the Government intend to promote an adverse change.
It is accepted that there is no longer any intention to include a requirement that members of the new single tier should comply with practice directions which are issued from time to time. I ask again if there is any compelling reason to go down the road of making express reference to dismissal at all. If the Government intend to embody in statute what currently happens, why is there any need to change existing law? I therefore hope that my noble friend will think again about this issue. I do not intend call a Division tonight, but I hope that he will think again between now and Third Reading.
I turn to Amendment No. 57D. It would simply delete the reference to "supervision" of judicial work and respect the authority of the Lord Chancellor in making rules for the new single tier. I know of no statute which contains provision for one judicial office holder to supervise another. If my noble friend can refer to any particular provision, I shall stand corrected.
The judicial hierarchy requires an appellate judge to overrule the decision of a judge who is less senior if it contains errors of law. That ensures that modern judicial decision-making receives modern methods of management. There is every reason for the new single tier to operate on a more collegiate basis than is the case at present. Existing adjudicators work alone and under great pressure of time, but those are not reasons for introducing a power to enable or, worse still, to require one judge to supervise another or, to put it in another way, to compel one judge to be supervised by another.
A collegiate atmosphere, discussions between judges, better training and personnel development of judges can be achieved without this unprecedented measure. Regardless of the Government's intentions, without an amendment, the Bill will be read as being inimical to judicial independence. In other words, we should not legislate to create something which we do not intend to apply. I beg to move.
Lord Archer of Sandwell: My Lords, I have not previously intervened in your Lordships' debates on the Bill, principally because, whenever it was to be debated at its earlier stages, it chanced that I was out of the country on parliamentary business.
I would have hesitated to intervene at this late stage, both in the progress of the Bill and in today's business, had the matter not been drawn to my attention by my
68
noble friend Lord Clinton-Davis and the Council of Immigration Judges. It is surprising that so startling a provision seems to have received so little attention. As my noble friend said, had Schedule 1(3)(1)(c) ended with "the terms of his appointment", we might have assumed that a member could be appointed on terms which included reference to the termination of his appointment, because that is what happens in many tribunals and happens already in this area. In a sense, it is the drafting which creates the problem by adding the words "which may include provision for dismissal". That is what has occasioned my noble friend's anxiety. There is a constitutional eccentricity in stating so unambiguously that the executive should have an unqualified right to provide for the dismissal of a member of the judiciary.
7 p.m.
The Act of Settlement 1701 declared that judges' commissions should provide that they should hold office during good behaviour. Certainly in the case of the senior judiciary there was a provision about how that was to be decided by an address from both Houses of Parliament. As I understand it, all members of the judiciary since have held office so long as there was no complaint about their behaviour.
As my noble friend has pointed out, we now have a reference to "dismissal" taken from the vocabulary of employment law, not constitution law. A little earlier in our debate the noble Lord, Lord Newton of Braintree, made reference more than once to the Council on Tribunals, of which he is so distinguished a chairman, and to the fact that I was privileged to chair that council in the past. I wonder whether the Council on Tribunals has been consulted on this provision.
I am throwing the question at my noble friend the Minister without having had an opportunity to warn him and of course I shall understand if he says he will let me know at a later stage. But it is a surprising provision that one would have thought might have occasioned some comment from those quarters.
It has certainly led to a sense of shock among the existing adjudicators. Of course they already hold and vacate office in accordance with the terms of their appointment, including the duration of their office. But now we are told in effect that they are to be treated as employees.
Of course I accept my noble and learned friend the Lord Chancellor's assurance that he has no intention to change the practice, but at present there is no certainty as to what the future may hold or who will decide on appointments and terminations. If it is intended that the present practice shall continue and that members shall continue to hold office during good behaviour, we are faced with the question that has just been asked by my noble friend Lord Clinton-Davis: why change the vocabulary?
The anxiety of the members of the tribunal is hardly alleviated by the provision that is the subject of Amendment No. 57D that members of the tribunal shall supervise others. Judges may be appealed, but if they are

69
to be supervised it is startling to find that they may be supervised by their peers—I presume specific members among their peers who have been delegated for that purpose.
Of course a collegiate atmosphere exists among adjudicators at the present time. They can discuss, but there is now a danger that this segment of the judiciary is beginning to feel its independence threatened. They find already, as the noble Countess, Lady Mar, pointed out, that targets are prescribed for their workload as though they worked on a conveyor belt; they feel that they have Big Brother looking over their shoulder; and they find that production targets are to be paramount even at the cost of the quality of their work. This has become a serious matter for some of them.
We are not debating a word in a statute but a philosophy of judicial practice. Of course judges should be industrious like everyone else and of course immigration and asylum cases should be heard quickly. But if that entails appointing more tribunal members, that may be a price that we have to pay. In the long term it will be a cheaper price than destroying the independence and the confidence of that section of the judiciary.
Lord Mackay of Clashfern: My Lords, I support the amendment in the names of the noble Lord, Lord Clinton-Davis, and the noble and learned Lord, Lord Archer of Sandwell. Out of consideration for the noble Lords expecting to take part in the debate on the Housing Bill I shall leave it at that.
Lord Goodhart: My Lords, the two amendments raise serious and substantial issues. We should be most grateful to the noble Lord, Lord Clinton-Davis, and the noble and learned Lord, Lord Archer of Sandwell, for raising them. I agree that there is not a case for a lengthy speech. The noble Lord, Lord Clinton-Davis, was right to regard the amendments as unsuitable for dividing the House over, but I hope that the Government will take on board the points made and of their own motion will decide to make the necessary amendments to clear up these matters.
Lord Kingsland: My Lords, I entirely share the views expressed by the noble Lord, Lord Goodhart.
Lord Filkin: My Lords, let me more in hope than expectation seek to attempt a full response to try to resolve the matter tonight rather than us having to return to it later.
Regarding Amendment No. 56A, we are aware of concerns that have been raised by the reference to "dismissal" in paragraph 3. The provision is there simply to ensure that the terms of appointment for a member of the tribunal can include provision for removal from office. It is already the current practice for adjudicators and members of the Immigration Appeal Tribunal that their terms of appointment include provision for removal.
70
Why so? Why do it now? Although it may stretch credulity, parliamentary counsel felt that it would be beneficial to place the issue beyond doubt by using a suitable parliamentary opportunity to do so. In other words, it was felt desirable to give legislative clarity and to avoid any uncertainty that judges in appropriate circumstances could be removed from office.
The process for investigating any complaint against a judge is one that we know well and, as your Lordships know, under the disciplinary procedures no removal can take place without the concurrence of the Lord Chief Justice in England and Wales. The expectation of continuing to hold office during good behaviour is our custom and practice.
With regard to dismissal versus removal from office, without wanting to excite too much optimism I shall reflect on the matter to see whether there is any benefit in using different terminology.
With regard to Amendment No. 57D, we are also aware of concerns raised about the power to make rules providing for the supervision of tribunal members in paragraph 20 of Schedule 2. The reference to supervision reflects our intention to develop an organisational structure that will provide judges with better access to support and guidance.
The judiciary is a substantial body. There will be a judicial hierarchy. While individual judges have to make their own judgments on the facts before them without interference from anyone else, there is benefit in their being in a much more collegiate environment, which will be one of the aims of the tribunal.
We believe strongly that experienced judges working with and passing on their expertise to less experienced judges will help to improve the quality of decision making in the tribunal. We propose that immigration judges should be supported by a tier of supervisory judges who will be available to offer advice and guidance, appraise performance, identify training needs and other similar responsibilities that do not impinge on judicial independence. I can say categorically that draft determinations will not be subject to amendment by senior judiciary prior to promulgation.
As to the concerns that the briefing to the IAA judiciary suggested that the terms of appointment could be amended to require compliance with procedure rules or practice directions, officials were considering whether the terms of appointment should include compliance with procedure rules and practice directions. It was floated with the intention of ensuring quality, consistency and accuracy in decision making. However, that approach is no longer considered necessary.
I hope that I have gone a long way towards setting at rest the minds of my noble friend Lord Clinton-Davis and my noble and learned friend Lord Archer of Sandwell. I invite them to consider withdrawing their amendment.
Lord Mackay of Clashfern: My Lords, before the Minister sits down, this is a United Kingdom tribunal. Reference to practice in England and Wales, while useful, is not the whole story.
Lord Filkin: My Lords, the noble Lord is right. In discussion with officials this morning we reflected on

71
the Northern Ireland situation as being different. Nevertheless, as we know, while it is not exactly the same, there is a robust and strong process in place for ensuring that a judge cannot wrongly be removed from office, as should be the case.
Lord Clinton-Davis: My Lords, my noble friend the Minister has spoken of the need for him to reflect further on my original amendment, and I should like to avail myself of the same privilege. I should also like to think again about the subsequent amendment to which I spoke.
I want to thank my noble friend for his intervention, which was valuable, and I thank all those who have supported the ideas behind these amendments. I want to add only two things. First, I cannot give any assurances whatever tonight, but I hope that my noble friend the Minister will think again about what lies behind the amendments. Secondly, for the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 57 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 57A:
Page 35, line 8, leave out from "by" to end of line 9 and insert "three members unless the President from time to time directs"
On Question, amendment agreed to.
Schedule 2 [Asylum and Immigration Tribunal: Consequential Amendments and Transitional Provision]:
Lord Filkin Lord Filkin moved Amendment No. 57B:
Page 37, leave out lines 39 and 40 and insert—
"(a) sections 103A to 103E (review and appeal),"
On Question, amendment agreed to.
[Amendments Nos. 57C to 58 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 58A:
Page 43, leave out line 1 and insert—
"23 (1) Section 112 (regulations, &c.) shall be amended as follows.
(2) In subsection (2) after "Regulations and rules under this Part" insert ", other than regulations under section 103D(3),".
(3) For subsection (6) substitute—
"(6) Regulations under section 103D(3)—

(a) must be made by statutory instrument, and

(b) shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.""

On Question, amendment agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 59:
Page 44, line 24, leave out "5" and insert "10 working"
On Question, amendment agreed to.
Schedule 4 [Repeals]:
[Amendment No. 59A not moved.]
Lord Filkin Lord Filkin moved Amendment No. 60:
Page 51, line 10, at end insert—
"Asylum and Immigration Act Section 8(9)."
1996 (c. 49)
On Question, amendment agreed to.

Iraq
7.12 p.m.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, with the leave of the House, I shall now repeat a Statement on Iraq made in another place by my right honourable friend the Foreign Secretary. The Statement is as follows:
"With permission, Mr Speaker, I should like to make a statement on political and diplomatic developments relating to Iraq.
"Under a revised and accelerated timetable agreed on 15 November last year, and endorsed by the Security Council in Resolution 1511, full authority will transfer from the occupying powers—the United States and the United Kingdom—in just three weeks' time, by 30 June, to a sovereign interim Iraqi Government. That Government will be in office until 31 January next year, by which time national elections for a transitional government and constituent assembly are due to have been held. The transitional government and assembly will oversee, among other things, the drafting of a new constitution, with a view to its agreement and elections for a government on the basis of the new constitution by the end of next year.
"To facilitate this process, the United Nations Secretary General, Kofi Annan, appointed Ambassador Lakhdar Brahimi to nominate the interim Government. On 1 June, Ambassador Brahimi announced the appointment of Sheikh Ghazi Al-Yawar as the new president; two deputy presidents, Dr Ibrahim Jaafari and Dr Rowsch Shaways; and a new Prime Minister, Dr Iyad Allawi.
"Dr Allawi's Cabinet was also announced on 1 June in a joint press conference with Ambassador Brahimi. Twenty-two of its 31 members are newcomers—that is, not former members of the Iraqi Governing Council; and six of the 31 are women. In an address to the nation last Friday, Dr Allawi identified his Government's priorities as the restoration of Iraqi sovereignty; security; economic revival; national unity; and preparing for elections.
"Immediately following the announcements on 1 June, the Iraqi Governing Council dissolved itself and handed over its responsibilities to the new Government, including control of the 14 ministries already under full Iraqi authority. The remaining 11 ministries will be transferred to full Iraqi authority by 30 June, at which point the Coalition Provisional Authority will dissolve and the occupation will come to an end. I express my thanks to Ambassador Bremer, who has led the CPA, and the British representatives, Ambassadors Greenstock and Richmond, for their work.
"The announcement of the new interim Government was the fruit of many weeks of wide-ranging consultations conducted by Ambassador Brahimi and his team. The result is, I believe, a competent, professional and broad-based Government acceptable to the widest possible range of Iraqis and reflective of Iraq's diversity. The new Government have been welcomed by the United Nations, the European Union,

73
many governments in the region, and by key figures in Iraq, such as Ayatollah al-Sistani, the leading Shia cleric. I am sure that the House will wish to join me in paying tribute to the outstanding work of United Nations Ambassador Brahimi and his staff; in congratulating all the members of Iraq's new Government; and in offering our fullest support.
"Meanwhile, Ambassador Brahimi has made recommendations for the membership of a Supreme Commission, to be formed within days to prepare a national conference to be held this July—next month. This conference will include a diverse range of Iraqi voices in the political process, thus providing for the broadest possible representation. It is expected to elect an interim national council of about 100 members, whose role will be to promote constructive dialogue and national consensus; to advise the presidency and the council of Ministers; to monitor the work of the executive, including the implementation of laws; to have the power of veto over executive orders; and to approve a national budget.
"The United Nations will be advising on the organisation of the national, regional and local elections which are to be held no later than 31 January 2005. We welcome the formation of an Iraqi independent electoral commission to prepare for those elections, with UN assistance. The commission's members have been recommended by the UN; and I pay tribute to the work of Carina Perelli, Head of the UN Electoral Assistance Division, and her team, for making that possible.
"As the House will be aware, the United States and the United Kingdom have proposed that there should be a new Security Council resolution to facilitate the transfer of sovereignty by 30 June. Drafts have been under discussion in New York and between capitals for some weeks. These discussions with our Security Council partners have taken place in a constructive atmosphere. I hope that this process may be brought to a conclusion very soon.
"Key elements of the resolution affirm the full sovereignty of the interim Government, and give the United Nations a lead role in support of the political process.
"The mandate of the multi-national force is dealt with both within the context of the resolution and in an exchange of letters to the president of the Security Council from the Prime Minister of Iraq on the one hand and the United States Secretary of State Colin Powell on the other, on behalf of the multi-national force. The draft resolution provides that the mandate of the force will expire in any event by 31 December 2005; but the Iraqi Government will have a clear right to review or terminate it earlier if they so wish.
"The draft resolution and the letters lay down in some detail the nature of the relationship between the multi-national force and Iraq's own security forces, and state the need to reach agreement on fundamental security and policy issues, including
74
policy on sensitive offensive operations. I am placing the text of the letters in the Libraries of both Houses.
"The Iraqi Foreign Minister, Hoshyar Zebari, addressed the Security Council last Thursday in New York. He asked that the international community endorse and support the Iraqi interim Government as quickly as possible; made clear his support for the resolution; and made a number of points about the provisions of the resolution, which are now being dealt with. The Security Council has been holding further discussions about the resolution over the weekend, and will resume those discussions later today in New York. A revised draft text is being circulated later today to Security Council members. As soon as it is, I shall lay it before the House and place a copy in the Library of the House of Lords.
"The biggest challenge which the new Government of Iraq will face is to build security. There will be those who will continue to seek to disrupt the transition to successful democracy in Iraq and to force decisions by the bomb, not the ballot box. But the Iraqi Government are firmly resolved to defeat the men of violence and we are resolved to help them to do so. The multinational force, including British troops, continues to work with the Iraqis to stabilise the country and to assist the process of reconstruction and political transition. The force is helping Iraq's own security forces to build their capacity. The Iraqi police force now numbers some 89,000 men, the Civil Defence Corps some 29,000 men, the border police over 8,000 men and the Facilities Protection Service some 74,000 men.
"I pay tribute to the courage and bravery of all those in Iraq who are working to build peace and democracy. The British troops of the multinational force, along with many British police and civilians, are giving them vital and courageous help. There will be some difficult times ahead, but the path to a free and democratic Iraq is now clear. The British Government will remain committed to helping the Iraqi Government and people to achieve that historic goal".
My Lords, that concludes the Statement.
7.21 p.m.
Lord Howell of Guildford: My Lords, I am sure that we are all extremely grateful to the noble Baroness for repeating the Statement. Since we are looking at global affairs, I hope your Lordships will allow me to begin by paying the briefest of tributes to the former president of the United States, Ronald Reagan, who died yesterday. He helped to change the world for the better and did so by using his priceless gift of communication. He used the art of simple language to carry the world with him. That is an example that political leaders should always keep in mind.
We warmly welcome the announcement of a new Iraqi Government in Baghdad and the appointment of the new president-designate and the prime minister-designate. We see them as their own men, dedicated to

75
building a new Iraq after the nightmare past, and nobody's stooges or placemen. In our view, this is a clear step forward. Obviously while violence continues, as it sadly does, this arrangement refutes those who have been talking of the coalition's efforts so far as being doomed or in some kind of nosedive. Does not this new formation, this government-to-be in the next few weeks, provide the best chance of holding Iraq together and avoiding civil war between factions and tribes? In my view, it was never very likely anyway and was exaggerated by some pessimists.
As for the draft UN resolution, we know that the main debate has been over the meaning of full sovereignty for the new Iraqi Government. I, for one, have never seen the question of control of the security forces, now to be relabelled the multinational force, as all that complex and difficult, provided it is made clear between the parties. The status of foreign troops in relation to the civil power after a period of occupation is not a new problem. It was managed perfectly well in Germany after the Second World War and in Japan and, very much more recently, in Afghanistan.
The reality is that future security situations are bound to be unpredictable. We do not know what will work out. Surely these matters can best be handled flexibly, and by a suitable exchange of letters, which must obviously leave the operational chain of command with the military and its home country, while strategy and major events are discussed between allies. Allies are what the Iraqis now become under their new government. We should welcome that. Will the letters establish that sensible and practical relationship? We need to be reassured about that.
We also welcome the setting up by the Iraqi Government of a new national security committee with members from both the Iraqi side and the multinational force side, the former coalition forces side, which should help this process.
Can the Minister confirm that the militias are now to be disbanded? I am not sure whether this will include the al-Sadr militia, which has been causing so much mayhem. Are the Iraqi Armed Forces to be reassembled and properly reconstituted? We recognise that disbanding them in the first place was a big American mistake. It seems to me that we did not raise a murmur of objection to it, as we should have done as coalition partners.
More broadly, would the Minister agree that despite all the negative reporting, huge strides have been made in reconstruction, especially in the south, much of it with the able help of our brilliant and flexible Armed Forces? Would she agree that the constant predictions of disaster merely serve to undermine the morale of our troops quite unnecessarily when they are doing a good, but fiendishly difficult, job? Actually, I think that they are impervious to much of the chatter they hear. Will she rebuke those doom-saying critics robustly?
Finally, what proposals will Her Majesty's Government put forward this coming weekend at the G8 summit in Sea Island, Georgia, for a better and
76
more structured dialogue, at an international level, between the leaders of majority moderate Islam and the Western world, for example on the lines put forward by my colleague, Michael Ancram MP, in a pamphlet today? Would it not be desirable, as he argues in his pamphlet, to set up a process of this kind so that united minds can focus not just on Iraq's future, but on making serious progress on the Israel/Palestine imbroglio, which continues to poison the whole region, as well as on combating the dangerous threats to stability in Saudi Arabia? The latest tragic outcome of that situation, the shooting of a BBC correspondent and the killing of his cameraman, which we deeply regret, are in the newspapers this very morning. Will she say something about these events in the Middle East and how they are to be addressed, since they are all part of the same jigsaw as are developments in Iraq itself and will help to shape the future of that country?
7.27 p.m.
Lord Wallace of Saltaire: My Lords, we on these Benches thank the Government for making this Statement and we hope that they will continue to keep both Houses well informed as this process continues over the coming months.
We welcome the clear central role that the UN is now, at last, playing and the restoration of sovereignty to an autonomous government. After so many mistakes have been made, we hope that we are now on the right path. I wish to stress from these Benches that those of us who were very doubtful about the path to war and the justification given for war nevertheless feel that we all have the strongest of interests in getting it right now and in ensuring, as far as possible, that we leave behind in Iraq a coherent, credible and united national government.
May I ask the Minister to explain a little what the full sovereignty of the Interim Government means? The noble Lord, Lord Howell of Guildford, referred to the parallel with the restoration of sovereignty to the Government of West Germany in 1955. That was very clearly a semi-sovereign state. Right up until 1989 it was governed by a whole set of agreements with the continuing occupying powers for some purposes.
I must say that the presence of an American ambassador in the shape of Mr Negroponte, given his past as an ambassador in central America, does not give all of us full assurance that this will be allowed to be a fully sovereign government. Can the Minister assure us that, while this resolution has been being negotiated, the British Government have consulted fully with their partners in the EU as well as with the United States?
Can she tell us a little more about the British role within the multinational force? Is it likely that the areas of the country that will be controlled by British commands within the multinational force will be extended, or is that not yet decided? Are we signing a separate status of forces agreement or is it covered by the exchange of letters with the US Secretary of State? Does that also cover British forces? Can she say a little bit

77
about what sensitive offensive operations are? I understand that Sir Emyr Jones Parry, our ambassador to the UN, said yesterday that the policy on sensitive operations would require the assent of the ministerial committee for national security. Is that also agreed both by the United Kingdom and by the United States?
May I ask, as we have asked on many occasions from these Benches, what is going to happen to the Iraq Survey Group after 30 June? Will it, as the British Prime Minister appeared to suggest the other day, continue its operations until it finds something; or will it, as David Kay suggested, accept now that nothing is going to be found and wind up its operations?
Lastly, I echo and agree with the noble Lord, Lord Howell of Guildford, that this is a matter of concern to the entire region. Can the Minister assure us that there has been active consultation with Iraq's neighbours, including Iran and Syria, on the progress of restoring Iraq's sovereignty and stability? We are very conscious that Iraq's neighbours already have a degree of influence within Iraq. How do the Government see that fitting into what is now, I understand, called the "broader Middle East and North Africa initiative" which will be discussed at the G8 summit, and how do they believe the instabilities elsewhere in the region, in particular in Saudi Arabia and in Israel and Palestine, are to be addressed?
7.31 p.m.
Baroness Symons of Vernham Dean: My Lords, I begin by associating myself with the remarks of the noble Lord, Lord Howell of Guildford, about President Reagan. He was indeed a figure of enormous historical importance not only to the United States of America but to the West. As our newspapers rightly reflected this week, he did a great deal to change the tide of international relationships. We benefit from that today.
I thank both the noble Lord and the noble Lord, Lord Wallace of Saltaire, for what I think were very supportive comments about the Statement that I repeated on behalf of my right honourable friend the Foreign Secretary.
The noble Lord, Lord Howell, was right when he said that the new government who will be taking over—they have indeed taken over already, given that the CPA is handing over and that 14 ministries have already been handed over with the other 11 following on 30 June—stand the best chance of "holding Iraq together"—I think those were his words—in light of the way in which the representatives of different groupings have been brought together. I for one am very pleased to see that there is quite a lot of new blood among Ministers, and indeed a number of women among Ministers as well. The role played in all of this by Ambassador Brahimi has been enormously important, and the continuing role of Carina Perelli, the UN expert on elections, will continue to be of enormous importance into the future.
The noble Lord, Lord Howell of Guildford, asked me about the letters that Secretary of State Powell and the new Prime Minister Allawi have sent to the
78
president of the Security Council. I agree very strongly with what the noble Lord said about the importance of flexibility in these arrangements. One is not going to be able to write out a blueprint, set it in stone and think that it is going to be able to deal with every eventuality that may arise. Both noble Lords will find copies of both those letters in the Library of the House. My right honourable friend made sure at lunchtime that both Houses would receive those letters.
If I may, I should just like to quote from what Dr Allawi said in setting out Iraqi consent to the presence of the multinational force:
"Until we are able to provide security for ourselves, including the defense of Iraq's land, sea, and air space, we ask for the support of the Security Council and the international community in this endeavour. We seek a new resolution on the Multinational Force (MNF) mandate to contribute to maintaining security in Iraq".
That is a very clear statement from the incoming Prime Minister about the need for the continuing MNF presence. In his letter to the UN he also set out the structures that will act as what he calls the,
"fora for the MNF and the Iraqi government to reach agreement on the full range of fundamental security and policy issues, including policy on sensitive offensive operations, and will ensure full partnership between Iraqi forces and the MNF".
I think that that is an enormously important exchange of letters given that both were sent on 5 June and both set out the ways in which, on behalf of the MNF, Secretary of State Powell has stated the position, and the way in which that position has been requested by the incoming Iraqi Government. I hope that that gives a clear view on that point.
The noble Lord asked also about militias. We understand that there has been movement on the militias today. I am not in a position to make an absolutely definitive statement about this, but as I left the Foreign Office earlier this afternoon, telegrams were arriving about the militias and the start of militia movement away from their aggressive stance. We hope that that will continue. At the moment we are on a watching brief to try to encourage that sort of movement. Obviously, it would be enormously welcome were that to be the case.
I agree, of course, with what the noble Lord, Lord Howell of Guildford, said about the importance of our British troops in and around Basra and the way in which they have operated in MND South-East. I have visited them on two occasions. Your Lordships do not need me to say it, but I say it none the less: they are an extraordinary example of peacekeeping at its very best and everything that we would expect of the way in which our troops operate when they deal with people in quite difficult local circumstances and quite volatile security situations. They deal with it with complete professionalism and competence.
So when the noble Lord invites me to "rebuke the doomsayers robustly"—I think those were his words—I say that although I rebuke them robustly, it is a very good thing to hear them rebuked robustly by Members on the other side of the House. If I may say so, his statement was much more positive than that which I heard from his right honourable friend in another place earlier today.
I think that the structure that we now have in place offers a very positive way forward. The noble Lord asked how we can translate this into what is happening elsewhere in the region. What is happening elsewhere in the region is of course very worrying in a number of different ways. The terrorist situation as it has developed in Saudi Arabia is causing enormous concern at the moment. I join him in sending condolences to the family of Simon Cumbers, the cameraman who was killed in Saudi Arabia yesterday, and to his colleagues and his friends. I join the noble Lord also in wishing Frank Gardner, the correspondent who was reporting at the time, a full and speedy recovery, although I understand that, sadly, he is quite badly injured.
However, in all of this, let us not lose sight of the fact that the Tunis summit of the Arab League came forward with some very positive statements about the future relationships between the region and the West—the EU and the United States of America. I think that a critical reading of the Tunis summit statement leads one to believe that we have a great deal on offer there with which we can work for the G8. I for one hope that we will take up some of the points made by the Arab League when we meet shortly at the Sea Island summit.
The noble Lord, Lord Wallace of Saltaire, was quite right. Whatever our differences, we all are now, I hope, working for a better future for Iraq. We are doing that with the active support—the key and central role—of the United Nations, something which I know the noble Lord and all his party have stressed to us throughout this dialogue—although I am bound to say that I do not think that we on this side of the House needed any persuading on that; we were always very keen to involve the United Nations. However, I would point out to him that the European Union, which as we know was pretty well in disagreement over the initial action in Iraq, has very warmly welcomed the formation of the new Iraqi Government. I hope that we will see real progress on the question of the United Nations Security Council resolution.
The noble Lord addressed the question of, "how sovereign is sovereign". They are a sovereign government. There is a self-denying ordinance for the next seven months which that sovereign government have taken unto themselves, which is not to prejudice the position of an incoming elected government. That is not something imposed on the Iraqi Government who will be taking over on 30 June. They themselves have stated that they do not want to take decisions that in the longer term may prejudice decisions that can be taken by an elected government.
The statement by Secretary of State Powell was made on behalf of the multinational forces. There will not be a separate statement from the United Kingdom. It may not have been crystal clear in the Statement, but it stated that he spoke on behalf of the multinational forces and dealt with the questions about the sensitive operations in relation to Prime Minister Allawi.
After the handover of sovereignty to an Iraqi Interim Government, the Iraq Survey Group will continue its activities, to clarify our understanding of
80
Iraq's WMD programmes. The Powell-Allawi letters make that clear, and make it clear that it will be under the aegis of the multinational force. The ISG's operations will be Iraq-wide. There is no fixed schedule for the ISG to report further, but we look forward to seeing how those issues progress.
I hope that I have dealt with all the points, other than the question of how much Iraq's neighbours were consulted. Let us remember that the United States of America does not have the sort of relationship with Iran—nor indeed with Syria—that we in this country do. I have discussed the issues on behalf of Her Majesty's Government with very senior representatives of the Syrian Government, and my right honourable friend the Foreign Secretary has discussed them with representatives of the Iranian Government. However, everyone has not sat round a table discussing the matter in quite the way that the noble Lord implied. It was discussed at the Euromed meeting recently, and we have taken opportunities to try to make sure that we keep everyone—not only those two countries, but other neighbours—well up to speed on the developments that we hope to see come to fruition, which I am happy to say now are coming to fruition.
7.41 p.m.
Lord Mackie of Benshie: My Lords, will the noble Baroness give us some more information about how the present moves are being received by the different sections of the Iraqi public? We hear about the United Nations, but not how everything is progressing within the country. Also, has there been any improvement in the security situation? Will she assure us that neither of the main parties will withdraw troops—indeed, that they should supplement troops—until the situation is resolved?
Baroness Symons of Vernham Dean: My Lords, the security situation remains extremely volatile. It is important for noble Lords to remember that security is not at a dangerous level throughout Iraq, but it can erupt in a number of different places. We have discussed problems many times before about the Sunni triangle. Noble Lords will know about the difficulties in Najaf, which have been very different in character from those in Fallujah, but have none the less been highly disruptive. We have had some difficulties—of a very short-lived nature, I am happy to say—in Basra.
The incidence of security problems currently runs at a somewhat lower level than it did a few weeks ago. However, I remind the House that my right honourable friend's Statement made it clear that we expect the next few weeks to be very difficult in terms of security. That is because there are groups who inevitably still look for opportunities to get their slice of the action. I hope that the announcement of a government will to some extent mitigate such activity. However, as the Statement made clear, many people still do not wish Iraq to be a success. For different reasons of their own, they would like Iraq to be a failure for the future. That is not what the Iraqi people want; it is not what the Government of Iraq want. We will support them in their endeavour.

81
The noble Lord asks how everything has been received by the Iraqi public. 1 cannot tell him what public reaction has been so far, but I remind him that the recent opinion polls have shown that the Iraqi people want to end the period of occupation, which will come to an end on 30 June, and want to take control of their own affairs, which will happen on 30 June, and that more than 70 per cent of them believe that they will have a better future than they would have had under Saddam Hussein.
Lord Campbell-Savours: My Lords, my noble friend said that sovereignty would be transferred. I take her back to the specific words of the Statement. Will the 100 elected members of the interim national council have the power of veto over executive orders, as referred to in the Statement, relating to decisions taken by Iraq's own security forces—decisions taken in conjunction with the multinational force? If they do not have that power, we may end up with a major row in the new interim national council.
Baroness Symons of Vernham Dean: My Lords, I see the point that the noble Lord makes, but I am bound to say that the matter is now one for the Iraqi Interim Government and the elected interim national council. They must sort it out on their internal basis. We may be able to add something more, because the Security Council resolution has still not been finalised; it is hoped that it will be over the next couple of days or so. The wording of questions around the precise nature of the relationship between the Iraqi Government and the multinational force is still under discussion. The Statement is very clear about the interim national council having veto over executive orders, as the noble Lord mentioned, but the detail of that is a matter for the Interim Government and interim national council to settle between themselves.
Lord Selsdon: My Lords, I am most grateful to the Minister for the way in which she has dealt with Iraq matters with great intelligence and dexterity. I have not agreed with much of what the Government have said before, but I agree totally with my noble friend Lord Howell that the time has come to look to the future. I have already declared my Iraqi interests, but I hope that the Minister will not mind if I share a few other recent experiences.
I had the pleasure of sitting with Dr Allawi in what I would call a non-aligned country not so long ago, to talk with him and other friends about what the British could do to help Iraq. I said that, personally, because of my relationships, I would do all that I could. As the Minister pointed out, the principal problems that he raised then were security, security, security.
We discussed the role of the Iraqi army—I have raised it in debate in this House—and why the British today did what they never did before. In the past, we always kept the army, and we paid it. The Iraqi army was not paid. We can argue about why people were members of the political parties in Iraq or not, but I have heard recently—it is nothing to do with the current relevant people in Iraq—that troops and
82
others in Iraq are being offered bounties of 100 dollars for each American soldier that they kill. I have no reason to believe that that is true or untrue; that was the statement made to me earlier this week.
What can we do to get the Iraqi army back, equipped and loyal to its country, as it will be? Suggestions have been made that NATO should be involved as a peacekeeping force, in order to take the pressure off the United States. What can the Minister say about the steps that the British can take to improve and increase the security of Iraq? What else could we do to help that country? It is a great country with great potential, and we should put the past behind us.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lord for his support, and I am glad that he had the opportunity to have that discussion with Dr Allawi. Of course security lies at the heart of the issue. If security is not improved to the point at which people feel that they can participate in civil society—at which they feel that they can reconstruct their country—the difficulties for Iraq remain enormous. As I indicated, I hope that the security situation is improving. I do not want to make dramatic claims because, as night follows day, there would surely be some reason to regret that in the next few days.
Although security is vital, when I have talked to Iraqi interlocutors, I have also found them asking over and again why we cannot get out more positive messages about Iraq. Why it is that the messages about the reopening of schools and hospitals—the fact that electricity and water supplies are working in many parts of the country with literally hundreds of thousands of new jobs for Iraqi workers being created as a result of reconstruction—are not reported? My right honourable friend the Prime Minister said only this weekend that here is an economy that has recently imported 1 million cars. An economy that has imported 1 million cars cannot be struggling so badly. Indeed, those are positive messages.
The noble Lord, Lord Howell, asked me to be more robust with the doomsayers—but I shall not be alone in my robustness in dealing with doomsayers. I hope that many of your Lordships, including those on the Opposition Benches, will also be robust on these points. The Iraqis themselves feel that they are not getting a fair crack in the media. That is what it comes down to: they feel that they are not being recognised for the substantial steps that they have themselves made to reconstruct the country both politically and commercially. I hope that that will also change and that a more positive attitude will be adopted.
I saw some coverage about the bounty offered for individuals; I think that it was bounty offered by individual militias for servicemen and servicewomen, whom I understand commanded a higher price. None the less, that is a reasonably contained activity that we need to ensure that we deal with very robustly. As for the question of NATO, in the short term, there is not a prospect of NATO taking over a role in Iraq. What we can do to help improve security in Iraq is to go on with what we are doing in Iraq—namely, training their

83
police and their armed forces and ensuring that, as far as we can, we involve Iraq's neighbours in that process; indeed, many of them are already becoming involved.

Business
Lord Grocott: My Lords, as we are about to start the Second Reading of the Housing Bill, perhaps I may say a few words about timing. As your Lordships know, the normal rising time on a Monday is about 10 o'clock; I fear that we are unlikely to hit that this evening. But we would not do too badly if Back-Bench contributions were restricted to eight minutes and the Front Benchers were to use their customary brevity and incisiveness.
We should then manage to complete our proceedings within three hours, which is not too badly past the target rising time, considering that we have had a Statement and that we took rather longer than anticipated to deal with the immigration Bill. I repeat: eight minutes, my Lords.

Housing Bill
7.52 p.m.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, I beg to move that this Bill be now read a second time. I assure my noble friend and the House that I will turn over a new leaf for brevity. It is Second Reading. It is the second most interesting Bill that I have introduced to the House in the three years I have been here—the first being the Anti-terrorism, Crime and Security Bill 2001. It is full of good things, all of which we can discuss in detail in Committee.
The Bill before us is improved. It is a large Bill: it comprises seven parts and 230 clauses. By consent and a Statement in the other place, which has been widely acknowledged, it has had good scrutiny—not every paragraph and every clause, but, nevertheless, good scrutiny. More clauses are to be added to the Bill for reasons that I shall explain. We think that the Bill will create a better and fairer housing market and protect the most vulnerable people in housing. It contributes to the Deputy Prime Minister's sustainable communities plan—launched in February 2003—which is a long-term programme of action backed by £22 billion of investment.
I shall briefly go through most parts of the Bill, but it will be a snapshot of each part and I shall not go into great detail, save for one area of the Bill.
We consider the private rented sector to be a key part of the sustainable communities plan. We want a vigorous and responsive private rented sector. The vast majority of private landlords are decent, responsible and professional. We will introduce licensing only where the risks are the greatest. The Bill will provide local authorities with new powers to license private landlords in areas of low housing demand and in areas suffering from anti-social behaviour, but they will not be able to
84
go out on a spree, licensing willy-nilly for ideological or other reasons. They must be specific. That is made clear in the Bill.
As for houses in multiple occupation, the Bill will introduce mandatory licensing for larger—that is, the highest risk—houses in such occupation. They often exhibit some of the worst housing conditions in the country. Where management problems are widespread, local authorities can extend licensing to other, smaller houses in multiple occupation. There is a definition in the Bill; but, in certain circumstances, it is not practical enough to cover all of those at risk. As I say, where the management problems are widespread, there is a constraint and it is simply not possible to continue extending licensing for other reasons.
Part of the Bill is quite technical. We will hold a briefing in this respect on Wednesday for Members of your Lordships' House. It concerns the housing, health and safety rating system—a new rating system that will replace the current housing fitness standard both as an element of the decent homes standard and as a basis for enforcement of better conditions in the private sector. It will place health and safety at the forefront of a drive to improve housing conditions in all stock. That approach is welcomed by the British Medical Association, and others.
It is quite technical. There has been much consultation, going back to July 2000. A range of about 29 hazards are to be considered. It deals with the property and is person-based, unlike the present system, which is only property-based. A fairly technical, but nevertheless, substantial consultation has been undertaken and reports and guidance issued. Obviously, we have more work to do on that between now and the time that the Bill is enacted.
There are some modest measures to tackle exploitation of the right-to-buy option and to reduce the scope for profiteering, which have been widely welcomed; for example, we have extended the initial qualification period from two to five years and from three to five years the period during which the discount must be repaid where the property is resold.
I have no doubt that one part of the Bill will have substantial debate in Committee—it would be quite wrong to do so tonight—namely, grants to non-registered social landlords. The intention of the Bill is to increase the supply of affordable housing by enabling the Housing Corporation and the National Assembly for Wales to provide grants for organisations other than registered social landlords. Basically, they will operate under the same criteria as registered social landlords, such as the scheme standards and rents. The conditions set by the Housing Corporation will ensure that public money is fully safeguarded.
I turn now to one part of the Bill in a little more detail, which concerns the home information packs. I hope that all of your Lordships tuned in to the "PM" programme this evening and listened to the feature on home information packs. I only caught the second part of it myself; I was not aware that it was on, because I was coming into your Lordships' House to find out what was happening and what progress had been made.

85
There is an issue, which is obviously one for substantial debate in Committee. Surveys show that almost nine out of 10 people are unhappy with the home-buying and selling processes in England and Wales. I emphasise that it is the "processes" with which people are unhappy. They usually love their solicitors and their surveyors and think their estate agents are the bee's knees. Overall, it is the whole process with which people can be quite unhappy.
The high cost of transaction failure means additional cost to almost everyone involved in buying and selling a home. The main problem is that key information is not available until after the terms are negotiated. I suspect that noble Lords, and certainly Members of the other place, will know that, in some cases, people spend less time buying a house than they do when looking for a summer dress or a winter overcoat. That is the reality for some people.
The home information packs will make key information available at the start of the process, because we think that it is nonsensical that key information is made available after the offers are made and accepted. We believe that it will make home-buying and selling easier, more transparent, more successful and, I must say, much less stressful.
The pack system works well in other countries. A number of schemes already operate successfully here. There is some evidence on that, which we can deploy in Committee. Evidence shows that packs must be compulsory so that everybody benefits. At the genesis of the Bill, when it was part of my responsibility as housing Minister, I was very aware of the implications of making packs compulsory all at once, but there are substantial reasons why it has to be that way. I shall be more than happy to debate and deploy those reasons in Committee.
Most transactions, although not all, involve chains, so delays affect almost everybody. One property in the chain marketed without a home information pack would negate the benefits of packs provided for all the other transactions. The Office of Fair Trading report makes it clear that those benefits are the most evident.
The home information packs manifesto commitment was fully supported by the Consumers' Association, the Royal Institute of Chartered Surveyors and the major mortgage lenders. Buyers and sellers will negotiate from an informed position—that is important. Any problems will be identified and addressed early on, before the sale is put at risk. The packs will help the seller and the estate agent to decide on a realistic asking price that reflects the true condition of the property, and will greatly reduce the risk of transaction failure, which in some areas runs as high as one in four or one in three, and the hassle of having to renegotiate terms.
Packs will also shorten the period of uncertainty between the offer acceptance and the exchange of contracts. We are not legislating to eliminate gazumping, but the space available for gazumping will be shortened by the process in the Bill.
We do not think that there is a reason for a significant increase in costs. Apart from the home condition report, everything in the pack must be
86
provided at some stage in the process now. Industry accepts that costs will generally be deferred until completion, and we genuinely see no reason why packs should prevent homes coming on to the market.
Greater transparency will mean a significant reduction in wasted money. The estimate, which we can deploy in Committee, is that some £350 million a year is wasted through failed transactions. But, not to put too fine a point on it, some people are making a living out of that waste. We expect the packs to be cost-neutral overall and to result in significant savings in many cases. The Government considered the then sellers' packs at Second Reading of the Homes Bill in 2000 and have listened to the issues raised then. There are crucial differences between those provisions and the ones before us today.
Several noble Lords present today expressed concern about criminal sanctions. That has been reconsidered and is now subject to civil sanctions. We have also followed the advice of noble Lords opposite for buyers to be able to recover costs incurred when obtaining documents that should have been in the pack but were not there.
Other noble Lords raised concerns about the effect of the packs on low-value homes. We have taken powers in the Bill to deal with that in Clause 144(9)(c). The issue has been consulted on, and we believe that it is best left to the market to provide solutions. We look forward to hearing reports as the Bill progresses. I also have some personal experiences to share from the past 12 months in using this system for a property transaction.
The pilot was carried out successfully. The home condition report will provide energy efficiency information required by the EU energy performance of buildings directive.
We can concentrate today on the principle of home information packs. Concerns have been raised elsewhere about the practicalities of how they will be implemented, but I offer this House the same assurance as offered by the Minister in the other place, Keith Hill. The Government will not introduce the packs before the necessary pieces of the jigsaw are in place. Much of the detail will be in secondary legislation. The target date for introducing the compulsory home information packs is January 2007. It is demanding, but we think that it is realistic and achievable.
I shall outline briefly the other parts of the Bill. Part 6 introduces measures to tackle anti-social behaviour in social housing, to extend eligibility for a disabled facilities grant to all those who occupy caravans and to establish a social housing ombudsman for Wales. There are a few other provisions in the Bill that show that the Government have listened carefully to representations and responded.
Many noble Lords have urged action to strengthen the rights of park home owners. My noble friend Lord Graham of Edmonton, who lobbied me earlier on the matter, led a working party on park homes. We

87
do not have all the answers in the Bill, but we are delighted to report that the Bill now includes six key measures recommended by the working party.
The Bill also provides for statutory overcrowding standards to be amended by secondary legislation. After the Bill had completed its passage in the other place, the Government announced their intention to add two further measures. Both have been widely welcomed and will be debated in this House. If I can, I shall bring forward proposals for Committee rather than wait. If I cannot bring them all forward, I shall present what is available—certainly enough to have a debate on the issue.
First, there is much support for measures to protect tenancy deposits. Twenty per cent of tenants say that landlords have unreasonably withheld their deposit. We will bring forward amendments to tackle this. We seek to guard against only the worst abuses; given the timescale, we cannot deal with everything. Tenants need assurance that their deposit will be safeguarded and that they will not face difficulties trying to enforce judgments, even in the small claims court.
The other issue is empty homes. There has been a lot of support to allow local authorities to make empty homes management orders on long-term empty homes. There was a limited debate on the matter in the other place; we will have a much wider debate in this House. We consulted on the issue last year, so it is not new; we received a positive response. Now is the right time to legislate to deal with the hard core of long-term empty homes.
Local authorities will be able to make management orders on empty homes similar to provisions already in Part 4, with certain modifications. This is not sequestration; it is not taking over the ownership of homes. The government amendments will set out the precise scope of intervention. The intention is to apply to genuine cases of housing vacancy. Of course we will build in the obvious exceptions, such as where the property is occupied, albeit irregularly. If further meetings are required after those held this week, we will be more than happy to offer facilities for those outside the normal Committee process.
We are currently considering the 10th report of the Joint Committee on Human Rights, which has an impact in looking at the Bill, and we look forward to receiving the report of the Delegated Powers and Regulatory Reform Committee of your Lordships' House. We will consider other government amendments as necessary. We have just given the committee a further memorandum.
We have done much to create sustainable communities. It is a panacea; we have a lot to do, and these are very early days. That is part of addressing the supply-and-demand issues in the housing market, but we need to create a fairer and more efficient housing market. Some 1.5 million homes change hands; there may be 2 million marketed per annum in this country, so there are a lot of people involved and a lot of stress.
There are people living in unsafe properties—we know that from the occasional tragedies that occur, and we are trying to address that. I am not trying to
88
short change anyone whatever. My noble friend Lord Bassam will try to deal with as many points raised as possible when he replies to the debate. Certainly, we will have full and detailed debates in Committee, which I more than welcome. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Rooker.)
8.8 p.m.
Baroness Hanham: My Lords, I thank the Minister for his explanation of the contents of this Bill, which by and large affects the greater control of the private housing sector. However, there is no legislation now in the housing arena that will not need to be judged against the background of Kate Barker's report and, of course, the sustainable communities policies. There are a number of provisions in the Bill that affect the supply of housing, as the Minister indicated in his last sentences.
The introduction of home information packs and house condition reports has caused the most comment. That policy formed a significant part of the Homes Bill in 2001, but was dropped when it became apparent that there was so much opposition to it that the rest of the Bill, which dealt with homelessness, was in danger of being lost. In view of this history, it is interesting that the Government have returned to the fray in the face, still, of considerable hostility from the professionals involved in the sale of houses.
The potential of a licensing regime for houses in multiple occupation has also been around for some time, and some authorities are doing that on a voluntary basis. We do not deny that there are cases of appallingly managed housing in the private rented sector, but there are already many remedies available to local authorities if they are prepared to use them, through environmental enforcement, routine inspection, building and fire regulations. While not opposing the thrust of the proposals for licensing and registration of houses in multiple occupation, we are concerned at the amount of time this could take to introduce. The example of Scotland, where the scheme has still not been fully implemented, is not encouraging.
The properties that will be encompassed by the licensing are important, as are the costs of both administration and licensing itself, and the definitions of houses in multiple occupation. That could, and does in the Bill, include flats or houses which are shared by young people, but might also encompass flats and houses for young people that in the course of their early working lives or student days are owned and let to them by one set of parents. We want to be careful that we do not put too many people into this registration.
In a document published recently by the National Landlords Association, an analysis of fire fatalities in houses in multiple occupation concludes that even if legislation, such as that before us today, was in place, none of the fires analysed would have been prevented. The more prevalent factor seems to have been the vulnerability of the people in the properties, and this aspect may need to be looked at in more detail.

89
The maintenance of a register of houses in multiple occupation is not controversial, but the provisions for the raising of standards by the introduction of the housing health and safety rating system needs more explanation, and I am glad to hear that there will be an opportunity to discuss that outside the House. In particular, we want to explore in Committee how housing standards can encompass health conditions without their implementation becoming unnecessarily onerous. Grants for social housing to private developers, rather than, as at present to registered social landlords, even if administered by the Housing Corporation, is a new development. It raises questions about the assurances that will be available that housing provided in this way will be used for affordable housing, whether for key workers or others awaiting low-cost housing, the management of such housing, and whether it is intended that such provision will be largely for sale, shared ownership, or accommodation managed by the developer or a management company, rather than a registered social landlord. The Minister touched on the licensing of landlords for low-occupancy areas, which are clearly causing problems and concern. There are other concerns on the other side of this, and those relate to the clauses on anti-social behaviour and the impact that those might have on private landlords. We will need, if we may, to explore that further as well.
The Government have already tinkered with the right to buy, by reducing the amount of the discount available in a number of local authorities. That situation has adversely affected, and will affect further, the possibility of selling local authority property and creating, even in a small way, a greater social mix on estates. Where there are abuses of the current provisions they need to be addressed. So long as what is proposed does not turn out to be a further assault on the right to buy system, it will have our conditional support.
Since the Bill was considered in the other place, the Government have announced their intention of introducing measures in the House to strengthen the law on the return of tenants' deposits—I was glad to hear the Minister confirm that today—and to enable local authorities compulsorily to take over, license and let empty properties.
While empty homes are an affront to those who have no home of their own, the definitions of empty homes will have to be carefully scrutinised. It is one thing to repair and bring back into use housing that has been left vacant for, say, structural regeneration purposes; but it is quite another where properties—genuinely owned either as second homes or as pied-à-terres of visitors from overseas, and vacant for considerable periods—could potentially be classified as empty, but it would clearly be a travesty to do so. The details of these provisions will be all-important, and I recognise that the Minister has acknowledged that.
There is one further matter that I will wish to raise as a possible amendment to the Bill, which lies within the park homes measures. I am conscious that these have been sought for a long time, and that the noble Lord, Lord Graham, in particular has fought long and hard to bring some semblance of security to those who
90
live in them. Indeed, one of the first debates I ever took part in from the Front Bench was on just this matter—there were three of us in the Chamber altogether—and it struck me then that it was extremely important.
The same legal protections for security of tenure and freedom from harassment which this Bill brings forward need to be as applicable to those who reside in permanently moored houseboats. The problems are the same as for park homes, and while I know that discussions have taken place with the Minister, Keith Hill, they have so far not had any tangible results. I will table amendments to bring that matter forward for further discussion. I should declare here that some of the moorings are in Chelsea—part of the borough in which I am an elected councillor, so I am putting that interest forward—but by no means all of them; they are countrywide.
The most contentious provisions in the Bill are those relating to home information packs and house condition reports, which the current Government apparently believe will speed up the sale of houses and reduce the cost. Evidence of both seems at present to be remarkably slim, despite the Minister's happy experience, which I know he is going to tell us about, if not today, then on some future occasion. There are more issues raised than we can even touch on today, but in Committee we will be moving amendments to ensure the packs are not compulsory, and that they do not have to be produced on the first day of sale. We do not believe that these packs will be cost-neutral, and indeed at the moment the estimate of their cost comes to anywhere between £600 and £1,200. There are also great concerns about the length of the life of the information packs and about how often they will have to be renewed if, for example, a house is not sold at the earliest moment. We will also wish to discuss the relevance of the packs to new properties that already have a 10-year builder's guarantee and to properties that are being auctioned.
There are deep concerns about the whole regulatory process; about the difficulty of ensuring that there are sufficient properly qualified surveyors to carry out a survey that can be relied on not only by the vendor but, especially, by the purchasers and the mortgage company; and about whether an NVQ is an adequate qualification, particularly where surveys are currently carried out by qualified surveyors. There are also concerns about the regulation and inspection regime required to ensure that standards are met and maintained and about how a reliable insurance scheme can be established to protect all parties from an incompetent surveyor.
It is clear from the briefings that we have received that the Consumers' Association is entirely in favour of home information packs and that practically no other body is. Already, we have had more discussions on those provisions than on any of the others, and they will justify considerable time and thought.
We will also consider the desirability of providing a scheme for the registration of estate agents. Among the professionals involved in the sale of houses, estate agents are the only parties who are not regulated. Although few

91
may be unscrupulous, it seems iniquitous that those who deal with such an important area of someone's life—the largest financial commitment that people are likely to make—should not be the subject of some form of registration. Subject to our discussions, we will consider tabling amendments to implement it.
This is an important Bill with a great many measures in it. We look forward to considering them in detail in Committee.
8.19 p.m.
Baroness Maddock: My Lords, before I speak on this important Bill, I shall declare a few interests. I am a vice-president of the National Housing Federation and president of the National Housing Forum. I am also patron of the Empty Homes Agency and a vice-president of National Energy Action.
We welcome many parts of the Bill and support many of the Government's aims. However, we have some concerns, which fall into two main areas. First, it is far from clear that many of the proposals for implementation will work. Some of the timescales are over-ambitious, and some of the systems over-complex. Secondly, there is a danger that some of the proposals will not achieve the aims and objectives of the Government.
Part 1 concerns housing conditions, which is an area that certainly needs attention given the age profile of our housing stock and the very poor conditions to be found in some of the private rented sector. Nearly half of the households renting from a private landlord—45 per cent—live in accommodation built before 1919. More than three-quarters of private rented homes have interior or exterior faults; for example, roof leaks, faults to drainage components and damage to ceilings, doors, windows and wall structures.
Although we welcome the new housing health and safety ratings system, we think that it may be inadequate to tackle disrepair in the following ways. It may make it more difficult to identify, evidence in court and enforce repairs through the rating system. It may not adequately cover a disrepair that causes inconvenience or misery to residents, but does not cause an immediate threat to health and safety. There are similar concerns to which we shall no doubt turn in more detail at a later stage.
There was considerable debate in another place on the repeal of Section 190 of the Housing Act. Many people believe that that is a rather straightforward and effective tool for authorities to ensure that landlords carry out repairs. It can also be a useful tool as part of wider prevention strategies to prevent a less serious disrepair in a property deteriorating into a far more serious disrepair. Professional and local government bodies are concerned about that. There was considerable debate in another place. Again, that is something that we will pursue later.
I have two other areas of concern in Part 1, one of which is the timescale that is given for people to put right a category 1 hazard. At the moment, the Government propose a five-year period. The Local Government
92
Association favours three years. My honourable friend in another place suggested that perhaps it should be one year, but that there should be an ability to extend that depending on the circumstances.
We would also like to see here and elsewhere greater emphasis on energy efficiency improvements. Dealing with climate change is the big debate at the moment. We know that reducing the amount of energy that we use is really important in that respect. I feel that in many areas the Government have been rather slow to respond to that. I hope that the Minister can assure us that the Government have done all that they can in this Bill to line up with other strategies to deal with energy efficiency: for example, their own energy strategy, the Warm Homes and Energy Conservation Act, the fuel poverty strategy and the Sustainable Energy Act. Those are matters that we shall also pursue later.
Part 2 concerns the licensing of houses in multiple occupation. The last time that I discussed that issue in any detail was in another place regarding the Housing Act 1996. Indeed, the present Minister, the noble Lord, Lord Rooker, and I were both in another place at that time. I am only sorry that it has taken us so long—seven years or more—to talk about it again. I strongly support the measures in the Bill. Some of the worst housing in this country is houses in multiple occupation.
However, the Government could be a little more courageous and ambitious. I should like to see more measures to give landlords a more positive role. Landlords' organisations are anxious to be involved in raising standards through their training and accreditation schemes. I know that the Government have been in discussion with landlords' organisations on those matters and such schemes. Perhaps the Minister could comment on the Government's thinking and where they are in their discussions.
We would particularly like to see a couple of areas changed, one of which is the definition of a house in multiple occupation. In his opening comments the Minister gave his reasons about why they were to apply only to buildings of three storeys or more with more than four residents. From my experience in Southampton, where I represented a ward that was close to the university, there were a lot of houses in multiple occupation. Many of the houses that had been converted into housing of multiple occupation were only two storeys, which also happens in inner city areas. Other organisations support us, including the Local Government Association, the National Union of Students and Shelter.
As regards university students, the licensing of accommodation that is occupied by full-time students and run by education institutions, such as halls of residence, should be brought within the survey. There is evidence from the British Gas housing survey of 2004 that some of these buildings have considerable problems with damp and mould.
The Bill will give further authority for local authorities to extend licensing in selected areas. We welcome this, but perhaps it should not be quite so restrictive as the Government have made it. As I understand from the Bill,

93
where there is poor landlord management in areas of low demand, that is the area that the Government are trying to tackle. That should be widened. In other areas where there is bad management, even if there is not low demand, the local authorities should be able to step in. I heard what the Minister said in his opening remarks, that there would be possibilities to extend that in other areas for HMOs that were not three storeys.
There is considerable detail in the Bill, in the areas that I have touched on, but a lot of extra detail will come through regulations and guidance. I already have here a very large pile and I am sure that there will be more. We have tried to find out exactly what is available now, and I would be grateful if the Minister would update us.
As the Minister and the noble Baroness, Lady Hanham, said, the most controversial part of the Bill seems to be Part 5 on home information packs. It certainly is for these Benches. But we are not alone in our criticisms, some of which the noble Baroness outlined. The Law Society particularly feels that some of the new processes already in place are fairly satisfactory and that the packs will not help them—they will not sit very well with new developments in the market.
The National Association of Estate Agents is very concerned about the proposed timescale for the implementation of Part 5. I welcome the Minister's reassurance that the Government will not implement it if it is not ready. That is very important because there are concerns about getting enough trained home inspectors.
The House Builders Federation is also concerned about the shelflife of the pack. One of the interesting points it made was about the problems that it will create for frail and elderly people who want to buy homes, particularly being forced to have the pack upfront when they start, and the fact that it is compulsory. I am sure that we will discuss that in detail; I do not have time to go through all the objections, but we share many of the concerns on these Benches.
Above all, we believe that the bureaucracy that will be set up will not achieve the Government's aim. The Minister shared with me his experiences of using that system; I shared with him my experiences of not having a system, and one going well and one not going well—it was nothing to do with whether you had a pack.
It seems to me that the one sector of housing in this country that really works is the private ownership section: where 70 per cent of people own their own home that does not seem to be the area that has the most problems—but more of that later. My noble friend Lady Hamwee and I discussed that the last time we had a housing Bill here, and I am sure we will be doing it again. My noble friend Lord Phillips of Sudbury has very strong views on this; unfortunately he is not able to be with us tonight, but he hopes to take part later.
We support the changes made by the Government in Part 6 on the right to buy. Over the years we have seen a huge erosion of the number of rented houses, particularly, which means that families in the social
94
rented sector often have to be put into flats. Quite frankly, some individuals have made enormous personal benefit from that: if they happened to be in the right place at the right time, they did very nicely, thank you. I do not begrudge them that, but we need to get the balance across the sectors.
I am still concerned about rural areas. We ought to look much more carefully at how we deal with that. My noble friend Lady Miller of Chilthorne Domer will touch on that in her contribution tonight. However, Members on these Benches have always thought that it is for individual local authorities to decide how to operate their schemes, which should be based on their overall housing strategies.
Clause 186, covering grants for social housing, is an important provision that the Minister has already referred to, but which has been little discussed. It allows social housing grants to be paid to bodies not registered with the Housing Corporation such as private developers. It would allow unregulated bodies to bid for public funds to develop affordable housing. I understand that the Government believe that they may be able to get better value for money in this way, but can the Minister tell us what evidence backs that up? When my honourable friend in another place, Ed Davey, asked about average build costs in both the public and private sectors, the answer he was given by the Minister, Keith Hill, was that the average cost of a new building for social rent in England in 2003–04 was £116,000. The Office of the Deputy Prime Minister does not keep comparable information on the private sector. I hope that we will be given rather fuller information than that when we come to discuss the clause.
Questions need to be asked: whether private developers can build more cheaply; will standards suffer; can standards be enforced through contract terms; will there be cherry-picking from other projects, and what about the sustainability agenda? I am sure that we will pursue these matters at later stages.
Some new issues have already been added to the Bill. Both speakers referred to the park home provisions. I was part of the group, along with the noble Lord, Lord Graham of Edmonton, that pursued this matter. When I was a Member of Parliament, my constituency contained a huge number of park homes. They provide many advantages as homes for elderly people. The sites are secure and they take up only a small amount of land. However, they lack the kind of protection enjoyed by people in normal housing. I have sought for a long time to ensure that park homes become a part of mainstream housing. I pay tribute to the Minister, Yvette Cooper. She listened to the arguments, went away and did something about it. We particularly welcome that.
Amendments will be tabled on two issues: to provide a statutory basis for tenancy deposit schemes and provisions to enable councils to compulsorily lease long-term empty properties. We support both of these proposals and we shall look at the details. I recall tabling amendments on deposit schemes to the Housing Act 1996. People have campaigned for a number of years,

95
and plenty of information is available from voluntary schemes that have already been set up. I hope that that will inform how regulations are formulated, and that those who are operating reasonable schemes are not compromised by new legislation.
Last, but not least, I turn to empty properties. I have been involved in this issue since my earliest campaigning days and I am pleased that the Government are at last going to provide an extra tool for local authorities. Much good work has already been done. As patron of the Empty Homes Agency, I recall giving an award to South Somerset District Council for its good work, undertaken while my noble friend Lady Miller of Chilthorne Domer was there.
This legislation should be several Bills. Housing never rises high enough up the agenda to get into the programme. Whenever a housing Bill comes along, everyone wants to add something to it, resulting in very complicated legislation. Despite what the Minister has said, some parts of the Bill were not adequately scrutinised in another place. The Report stage was appallingly truncated.
We support much of the Bill, but we want to improve the detail and throw out the unworkable in our quest for decent, affordable homes for everyone in our country.
8.34 p.m.
Lord Graham of Edmonton: My Lords, it is a pleasure to follow the noble Baroness because she shares with me a deep interest in housing matters, based upon the same experience as mine. It has been 45 years since I started as a councillor, then a Member of Parliament and subsequently came to this House.
I know that the Minister has his heart in the right place. He started by saying that this was the second most important, interesting Bill that he has dealt with. I cannot think of any other aspect of our lives more important than the possession of or ability to occupy a home.
As a constituency MP in Edmonton in the 1950s, 1960s, 1970s and 1980s—and, speaking to colleagues, their experience was a similar one—night after night, one would listen to people who one knew were genuine but who had drawn the short straw. By virtue of circumstance they had found themselves living in either inadequate accommodation or in what in the old days would have been called slum accommodation. They were ready to be evicted; they were victims of circumstances, and it made my heart bleed. As I have told the House before, on two occasions I left my surgery on a Friday night, sat in my car and cried, because I knew that I could do nothing about it.
The Minister and his colleagues should earn the undying gratitude of untold thousands if not millions of people for whom this Bill might be the answer to their problems. Over the past few months, the Minister and his colleagues have been persistent in making sure that this Bill has reached its present stage and, in particular, have come along later with provisions for park homes.
96
I would like to say a word or two about the right to buy. I strongly opposed the right-to-buy principle when it was introduced, because I knew that in Edmonton there were thousands of homes built by direct labour, which were solid, reliable and well worth the money. Inevitably, however, with the prospect dangling in front of them of making £5,000, £10,000, sometimes £20,000, it made it very difficult for people—who had been desperate to get that house when they had been homeless—not to capitalise on it.
One of the things that has stuck in my craw over the past 20 years has been the argument put forward then: that people had the right to buy the house in which they had lived all their lives and in which they wanted to continue to live. We now see from surveys that 48 per cent or more of the people who exercise the right to buy immediately sell the property at a profit. This is a profit which takes the ratepayer and the taxpayer for granted. The party opposite has always said, "We are not in favour of wasting ratepayers' or taxpayers' money". Yet the beneficiaries of the right to buy were being given a grant. All of a sudden, council tenants were specially selected people: people who deserved this opportunity.
I have read the research papers in the Library and, without going into the detail, there have been an absolutely scandalous number of scams growing out of the right to buy. I do not know whether the Minister and his colleagues are able to stop them. The noble Baroness, Lady Hanham, was quite right that the right-to-buy principle will not be breached, but the manner in which it has been operated and abused needs to be tackled. I suggest that the Minister should continue to try to deal with that.
One reads the briefs that one receives—and I have never been so well served in preparing for a Bill as I have been for this one—and generally, of course, they are to be welcomed. As has been referred to, Which?, or the Consumers' Association, welcomed the introduction of the Housing Bill. I believe that the noble Baroness, Lady Hanham, said that they were the only ones who welcomed the Bill. Quite frankly, I do not know of anyone who does not welcome the Bill in general terms.
Baroness Hanham: My Lords, I believe I said that the Consumers' Association were the only people who welcomed the home packs, not the Bill. Perhaps I had better make that clear for the record.
Lord Graham of Edmonton: My Lords, I accept that.
In its brief, the Residential Landlords Association has stated,
"The RLA supports the Government in wanting to stamp out rogue landlords",
and the Local Government Association believes that the Bill is a positive move towards dealing with the problems associated with private sector housing.
Although the Council of Mortgage Lenders has stated,
"Whilst we support the Government's aim of securing a better quality and better managed private rented sector",

97
it then continues, quite rightly, to enter caveats and criticisms.
The Law Society has stated that it,
"welcomes many aspects of the Bill, in particular measures aimed at improving standards in the private rented sector"—
that is great—and the Disability Rights Commission is delighted at the prospect of legislation
Clearly there are some criticisms of the Bill's content and omissions, so the Minister should be under no illusion that it will have an easy passage in general. But I feel a great deal of warmth towards him and his colleagues because at long last they have been able to do something.
Over the past seven or eight years the problems of park homes have been debated. We first went to Hilary Armstrong, who set up a working party in a genuine attempt to help. Nick Raynsford, Sally Keeble, Keith Hill, Yvette Cooper, my noble and learned friend Lord Falconer and my noble friend Lord Rooker have all played a part in keeping the ball rolling. As parliamentarians, we know that we have to be very lucky in respect of timing and opportunity, and I am very grateful to them. I am certainly grateful to the noble Baroness, Lady Maddock, for her continuing support on the park homes front.
Let me rehearse some of the provisions in relation to park homes which were spatchcocked into the Bill in the other place. It now requires a written statement of terms to be given to a prospective purchaser before the sale of a park home. That was not there before, but it is so simple. The Bill creates a power by which the Secretary of State can add additional implied terms to the agreement and repeal and vary those in the Mobile Homes Act. One of the things to my credit is that I am the only living Member who served on the Mobile Homes Act in 1983. 1 have lived to pay the penalty because everyone comes to me and says, "What a rotten job you made of it".
The Bill will also help to deter a site owner from unreasonably withholding approval of a prospective purchaser. It will remove the age of a home as a criterion for ending an agreement and give discretion to courts to adjourn termination proceedings on the grounds of the condition of a park home to allow for repairs to be carried out. And it brings protection from eviction to park homeowners up to that for tenants of houses, a point made by the noble Baroness, Lady Maddock. Park homeowners have felt inferior—and certainly they were in terms of protection from the law.
The Minister and his officials have had to be persuaded and pushed, but they have recognised the problem and I am very grateful. They have consulted about the model standards and will be undertaking some work on the statutory instruments in the Housing Bill which relate to park homes. It is the good news that we have been waiting for. If I knew how to spell "hallelujah" I would say it properly. It is "hallelujah" for the people who live in park homes. We have come a very long way and we are very grateful to the Minister and his colleagues.
98
Before I sit down, I should like to mention Roy Waite, a man who has carried the burden of ensuring that the case was made for people who live in park homes. He is not well and I just wanted to mention his name. I should also like to mention Frank Jagger, who has resigned as secretary of a group. Both of them have worked very hard for almost 20 years and are now beginning to see progress.
The Minister can count on my support, not only in general but almost without exception. These aspects of living need the spotlight of Parliament turned upon them. It is our job to reflect upon and revise what was said in the other place; it will be put to good purpose here. I thank the Minister most sincerely for what he said.
8.44 p.m.
Lord MacGregor of Pulham Market: My Lords, it is always a pleasure to follow the noble Lord, Lord Graham, but if he will forgive me, in view of the time available, I shall concentrate on Part 5 this evening. Whenever we introduce major new regulations and regulatory requirements, with new regulators and inspectors usually following to monitor and police them—I suspect that that will happen in this case too—we need to be fully convinced that the benefits justify the costs and outweigh the difficulties involved and the burdens imposed.
I readily agree that there are arguments in favour of the scheme. I have no doubt that there is much frustration and stress for both buyers and sellers because of some aspects of the present system. I do not think that the present system is a "shambles'', as the Minister in another place put it, but some of the delays and uncertainties could surely be eliminated or shortened.
I attended the other day a seminar of an organisation called CHIPS, or Consumers Home Information Pack Supporters, in Portcullis House, chaired by the noble Lord, Lord Borrie. I was particularly impressed by evidence provided by that organisation—it has a voluntary scheme—that in the period between the offer subject to contract and the completion and exchange of contracts, all the transactions in which those particular estate agents were involved were completed. There was no one-third drop-out rate in that period and transactions were completed much more quickly. However, it was a small sample.
I was concerned about imposing a new cost on the seller, but I accept that most sellers are also buyers and benefit from that. I accept also that first-time buyers will benefit most from a scheme of this kind. However, a surprisingly large proportion are sellers only. I was struck by a sentence in the Government's regulatory impact assessment document, which states:
"The cost of providing the pack could be added to the purchase price of the property being sold".
That sentence was tucked away. It has not been shouted from the rooftops by government Ministers. The Minister made other points in favour of the scheme.

99
Therefore, I am prepared to consider the scheme, but as I looked further—I was not involved in the original debates—and considered both the Government's regulatory impact assessment document and the many representations that we have received on Part 5, many of my original doubts remained. My noble friend Lady Hanham and the noble Baroness, Lady Maddock, have already referred to some of them and the Minister is aware that this is clearly a major part of the Bill to be explored in Committee, but I shall refer to a few that most strike me.
The Government originally announced the scheme in 1998. That was six years ago. In this rapidly changing world, six years is quite a long time. I was struck by a survey conducted recently by the Council of Mortgage Lenders, to which it referred in its submission to us. Research that it undertook last year highlighted the fact that there have been "significant improvements" in the past five years, with many more to come. We know that one of the main reasons for introducing Part 5 was the delays that occur between the offer subject to contract being made and the ultimate completion. There is much that is happening now that will reduce those delays anyway. The average 12-week delay should come down substantially due to the technological developments in relation to local authorities, mortgage lenders, the Land Register, the National Land Information Service and so on. The regulatory impact assessment states that those developments,
"will enable search results to be delivered within minutes rather than days or weeks".
Is not technology outstripping the original arguments?
My next point relates to the key additional costs, which are quantified in the regulatory impact assessment. The major additional cost is the compulsory home condition report. The Government argue that that will replace the existing survey for many and therefore the cost will not be as great. However, the Consumers' Association states on page 10 of its report to us:
"The HIP is a guidance document for people looking round a property and caveat emptor will still apply".
I thought that was a very interesting sentence, but I suspect that that means—the Government will have to make it clear in relation to HIPs—that many people who currently conduct a search of their own will still wish to do so, so there is a considerable additional cost for them. More importantly, the Council of Mortgage Lenders states at various points in its representations that, as matters stand now, lenders will often still have to have a physical valuation of their own. That is one aspect of costs that has been underestimated.
I am particularly struck by the fact that we cannot properly assess the costs until the outcome of what we know will be prolonged consultation on the details of the scheme. Clearly at the moment, as the Council of Mortgage Lenders and others have pointed out, many costs to lenders, local authorities and so on have been left out of the current cost assessment. I am doubtful about some of them; for example, I am sure that the
100
assumed cost to local authorities and the trading standards officers of £2.2 million will be a considerable underestimate in practice.
I am interested in who has the title to the home improvement pack because it is clearly relevant to who can be sued. Who owns it? I presume that it is the person who paid for it; or is it the home inspector, estate agent or lawyer? I would like an answer to that question, because, bearing in mind the Consumers' Association's point about caveat emptor, there will be considerable issues. In particular, if there are concerns about the home inspector's report and it turns out to be inaccurate, can the home inspector be sued or how is the issue to be resolved?
The Minister in the other place made brief reference to a resolution of disputes procedure, as does the regulatory impact assessment document, but at the moment I am not at all clear what that disputes procedure and what the costs would be. I hope that the Minister will be able to fill us in with considerable details.
As has already been mentioned, home inspectors are a key issue. Is the qualification good enough at NVQ4? Clearly the Council of Mortgage Lenders does not think so, because it says that that level of training is significantly below that of a chartered surveyor. The problem is that if the lenders are to rely on the information collected within a home condition report for use in valuations and underwriting, they must be persuaded that the training and ongoing monitoring of home inspectors is of a sufficient standard, otherwise there will be additional costs.
The sufficiency of inspectors will clearly be crucial to a national compulsory scheme. Who will pay the costs of training? I was glad to hear the Minister guarantee that the introduction of this part of the Bill will not take place until he is fully satisfied that all the conditions are in place. One of them, critically, must be a sufficient number of fully qualified inspectors in place, taking into account that many are expected, indeed intended, to be part time.
One of the key issues in that context is insurance, which is a crucial part of the scheme—and not only for consumers and lenders. No home inspector in his right mind should take on the job if there is not professional indemnity insurance. At this stage I understand that that issue is still unclear; indeed the Consumers' Association is saying that if there is no clear indemnity for home inspectors, the Government must be insurers of last resort.
So one could go on. Many other points were raised by the noble Baronesses who spoke before me, but they are summed up in the Council of Mortgage Lenders' point:
"it is our view that a vast amount of work remains to be done prior to there being any possibility of successful implementation".
I was glad to hear the Minister say that he would not proceed with this part of the Bill unless there was an assurance that all the many areas of doubt and difficulty had been resolved. The starting date looks optimistic, but I hope that it will be possible for us to return to these issues not only in Committee and on

101
Report, but as so much will happen in regulations after the Bill becomes an Act. I hope that a revised and more realistic regulatory impact assessment available to both Houses is made before proceeding.
That leads me also to the conclusion that the Government should revisit the idea of a voluntary scheme. I did not find convincing the Minister's answer on that point in another place, nor was I convinced this evening. I can see that there are some difficulties in having a voluntary scheme alongside the home improvement pack scheme, but nothing like as many difficulties as with a compulsory scheme without all the problems that have been drawn to our attention having been satisfactorily ironed out.
I suspect that a voluntary scheme would enable a home improvement pack to be tried and tested in the market place, which could be the best way.
8.54 p.m.
Baroness Miller of Chilthorne Domer: My Lords, my noble friend Lady Maddock said in her excellent speech that a housing Bill does not come along very often. Indeed, it does not; and it is perhaps with that in mind that I should like to share with the House and the Minister my extreme disappointment that this Housing Bill does nothing to address the issues of affordable housing in rural areas.
The problem of affordable housing has been highlighted year after year, particularly strongly in 2002 and 2003, by the Countryside Agency, which felt that it was the most severe unaddressed problem facing rural areas. So far as I could see, the Government's only reaction to that has been to abolish the Countryside Agency—or they are about to do so. However, the rural advocate, the last chairman of the agency, is shortly to join your Lordships' House, so I hope that his voice will be added to those calling for action in this area.
Last year, the agency underlined how serious the matter was. Since then, house prices in rural areas have gone on rising—particularly in my own area of the south-west, by some 20 per cent a year, which I believe is higher than in many areas of the country. The supply of new-build affordable homes is pathetically, shockingly small. I hope to ask the Minister for some reasons why the Government have not only felt unable to address that problem robustly but made some moves that have been unhelpful.
In almost any forum that one cares to go to—whether local authority meetings or strategic partner meetings—the issue of affordable housing comes up time and again. The Minister himself mentioned sustainable communities. Affordable housing is the bedrock that is needed for rural communities. Without those affordable homes, not only will the key workers be unable to live there but so will all those occupations that are not classified as key workers but which certainly are in a rural area—whether they are car mechanics, plumbers, care home workers or taxi drivers.
Without that sort of affordable housing, the community will fade. As young people cannot afford to buy in, there will be no babies, no children, no school,
102
and consequently much less of a community focus. Eventually we will end up with a cluster of individual households, which are not only less supporting but much more of a call on the public purse in terms of social services. Generations cannot stay together; older people are not there to babysit and child-mind in the towns where there are young people, and the young people are not there to carry out errands for the elderly people left in the rural communities. It will simply not be a sustainable community. The Government cannot claim to support sustainable communities while ignoring a swathe of those in rural areas, which simply will not be able to remain sustainable.
The Bill addresses the issues of licensing houses in multiple occupation. That is good—indeed, it is essential. However, rural areas do not have many HMOs, although there is a need for HMOs and small flats in rural areas. It is not as though young people from rural areas suddenly go from being aged 18 to 28 with no intervening years; they go through the same process as young people in urban areas. They look to become more independent and to move out when they get a job—only there is nowhere to go, except to move away to a large town or city. It is with some regret that I observe that the HMO part of the Bill will not have much relevance to rural areas.
One of the least helpful moves that the Government made recently was, last year, to remove the local authority housing grant. It was removed almost overnight. The speed of the decision and the lack of warning made planning for its removal very difficult. I appreciate that it was not a large amount, but it was enough to allow local authorities to fund small village schemes, or part-fund with RSLs. Often that pump-priming response is what is needed to respond to the housing needs survey.
When the Minister comes to say why the grant was abolished, I suspect that he will say that it was because it discriminated in favour of richer authorities. But even richer authorities in rural areas have hidden pockets of deprivation and they have those in housing need, which the strategies identify. That grant really helped. The Minister may say that that grant has gone to the Housing Corporation but has the total amount of money that it has to allocate increased by the equivalent amount of money or has the Treasury simply allocated less funding to housing overall? Clause 190 allows some grant to be given to private developers but I believe that this will not make up for the fact that local authorities themselves, which are the democratically elected bodies asked by the Government to respond to housing need, cannot do much about it.
In the mid-1990s, 2,500 homes per year were built in smaller villages with Housing Corporation funding and a further 2,000 with local authority grants. I believe that the figure last year was a total of some 1,750. I return to the fact that that is a pathetically small figure of the whole of England. I urge the Minister to give some thought to whether there should be something in the Housing Bill to give some cheer to rural areas. One area he might like to consider is exception sites: sites that would not normally get

103
planning permission but which can do so in a rural area when it is for affordable housing. They were first recognised in 1989. Since then some 4,000 sites have been brought into use. The Minister may say that that is not an issue for the Bill but I understand that his colleagues in the ODPM are thinking of a rewrite of PPG3, which would put the exception site policy at risk. I believe that, in the face of any other way of addressing affordable housing in rural areas, that would an extremely retrograde step. If it were abolished, a massive grant programme to buy land in rural areas would be needed and that is not a good way to use public funds.
I would like to mention a couple of other issues. I am pleased that park homes are in the Bill. I could not agree more with the noble Baroness, Lady Hanham, when she says that houseboat owners too need similar protection. I look forward to debating that issue further in Committee where I would also like to address the issue of homes for owners of genuine smallholdings, which have come under more and more pressure as the countryside becomes very precious.
The Government claim that their aim is a living, working countryside. At the moment, it is a joke. One can work in the countryside but live in town or work in town and live in the countryside, if you are young, but it is very difficult to do both. I hope that the Bill will do something to address that situation.
9.3 p.m.
Lord Best: My Lords, I welcome the Bill, which contains a number of important changes for housing in the UK. I declare my interests as the chief executive of the Joseph Rowntree Housing Trust and I have long-standing links with many other housing organisations.
Last week, I spent time with Jacky Peacock and her colleagues from the well respected Brent Private Tenants Rights Group. I listened in on the week's caseload of private sector tenants in need of advice and support. There were cases of accidents in unsafe properties, cases of harassment by unscrupulous landlords waiting to gain possession of properties and many cases of landlords illegally withholding the deposits that they had collected from tenants. For example, an incredulous Australian returning home after working here in the health service was astonished to discover that his landlord systematically withheld tenants' deposits of between £500 and £1,000. Such landlords know that tenants from overseas cannot wait for cases to be organised and heard in the small claims court some months later. Tenants who need to use their deposits to secure their next rented homes here can find themselves homeless, simply because landlords refuse to return their money. The recent addition to the Bill of new measures on tenants' deposits to protect against exploitation of this kind is very welcome indeed.
I also visited a number of houses in multiple occupation last week, some of which will be subject to the new licensing arrangements. I have to tell
104
noble Lords, and the noble Lord, Lord Graham of Edmonton, in particular, that the evil slums of yesteryear are still very much with us. There was the woman occupying a single room at £85 a week in the back addition of a house in Harlesden where the rain came through in three places. There was the hospital porter's miserable hovel above a shop in Wembley with cockroaches and plumbing that did not work. There was the couple in the house in Brent which had been shoddily converted into multiple "apartments" infested with mice and suffering from disrepair, condensation and mould growth. Harassment and intimidation of tenants who complain is only too common in this seedy end of the housing market.
The landlords of these properties are a disgrace to the majority of respectable and sensible operators. It is good news that the Bill will introduce regulations to improve the position. But we know that exploitation is always likely when there are acute shortages. And we know from Kate Barker's excellent review for the Treasury that the shortages of homes at rents affordable to those on low incomes are set to grow worse if we cannot increase supply, not least in rural areas, as the noble Baroness, Lady Miller, explained.
The private sector has much to offer to the middle market of those on the move or not yet ready or able to settle into owner occupation. But this sector cannot provide the answer for those who need decent homes at low rents, on a secure, permanent basis. Nor are those landlords who are investing in renting—and £40 billion has gone into the buy-to-let schemes in recent years—currently building any extra housing. They are simply buying existing property, and that can add to inflationary pressures on house prices. That is why successive governments have funded the direct provision of extra social housing at present provided through housing associations.
That brings me to the proposals in the Bill mentioned by the noble Baroness, Lady Maddock, for paying social housing grant to house builders and developers—grants which hitherto have been available only to regulated housing associations. In place of the current and very welcome trend to partnerships between house builders and housing associations, this approach sets the two groups into competition with each other. The idea is that increased competition will mean efficiency gains and secure more subsidised homes for the same amount of public money. As always, the Treasury is hoping for more for less.
I should be grateful for reassurances from the Minister on three points. The first is that there will be a level playing field between house builders and housing associations in the regulations on rents, security of tenure, tenant participation, redress through the housing ombudsman and so on.
The second is that the increase in the value of properties that have been grant-aided will be locked into providing continuing social benefits in the future. The housing associations of today use the gains they have obtained from the rising property values of homes produced in the past to borrow cheaply, to withstand losses on rents in the early years of new

105
schemes and to upgrade properties and provide important services to tenants. It would be a tragedy if the new arrangements for giving grants to house builders and developers meant that the benefits of rising property values were lost to social purposes and went instead to commercial interests and private shareholders.
Thirdly, reassurance from the Minister would be greatly appreciated on safeguards against house builders winning bids for social housing grant by building more cheaply, as they do for comparable properties for outright sale. It is possible to use less robust components in houses for sale, because homeowners are prepared to do their own maintenance and DIY, and because they under-occupy the premises, usually having a spare room, which means less wear and tear. However, in rented housing, lower quality means higher costs in the future. My fear is that if, on day one, house builders and developers appear to offer more for less, tempting the Housing Corporation to pass over public money to them, the gains may prove illusory in the longer term.
The Bill contains an array of important improvements for the UK's housing. In particular, I hope that it will help those worst affected by the bad practices of a minority of private landlords, and will in no way undermine the provision of additional, badly needed affordable homes through housing associations. I look forward to discussion of the details of the Bill over the weeks ahead.
9.10 p.m.
Baroness Dean of Thornton-le-Fylde: My Lords, I, too, welcome the Bill. Like other noble Lords, I have received enormous amounts of briefing, the majority of which has welcomed the Bill. Of course, the devil is in the detail, as always. I also welcome the not unexpected statement from the Minister that he looks forward to a robust debate, because parts of the Bill will bring that.
There have been many contributions about the home information pack. Mine is probably one of the few voices in the debate thus far to welcome it—it is a good thing. The fact that the Consumers' Association is the only organisation to have welcomed it in no way discredits either the standing or the quantity of its briefing. It conducted a survey last October of more than 1,000 people who had bought their homes. The disgraceful figures to come out of that were that more than 50 per cent were unhappy with the transaction, 70 per cent felt that the estate agents had given them misleading information, and 82 per cent thought that the home information pack would be very useful to them. All that I have read has led me to one firm belief, which is total agreement with the noble Baroness, Lady Hanham, that we should look at licensing or regulating the estate agency sector. It is the only group in the house-purchase chain that does not have either a professional or a regulatory backing.
The issue of rural housing is very fraught. It is a real issue in rural areas, and I am sure that we shall have a debate on it. The noble Baroness, Lady Miller, was a bit unfair to the Government, who have more than
106
trebled the number of houses built in rural areas since they came to office. So desperate are we to get houses built—it is difficult to reach the targets—that the Housing Corporation, with the Countryside Agency, funded the employment of 20 people for three years up and down the country looking for sites or buildings that could be converted for rural housing. Such is the commitment behind trying to improve it. I accept that it is nowhere near what is needed, but it is certainly much better than it was. It is unfair to criticise the Government as strongly as the noble Baroness did, but I look forward to the debate on the issue.
I want to concentrate on Part 6. It has the rather innocuous title of "Other provisions about housing", but I believe that it is part of the beef of the Bill itself. It is a substantial part of the Bill and deals with a number of areas, not least of which is disabilities. Because of time, I shall not speak on that subject; I think that my noble friend Lady Wilkins and the noble Lord, Lord Rix, will concentrate on that in their speeches.
Last year, I was asked by the Deputy Prime Minister to chair a group of what turned out to be 16 people, to look into how we could increase the number of people in this country who could afford to buy their own homes. Currently, 70 per cent do and 90 per cent would like to. How do we increase the market for low-cost home ownership? The Barker review is a major contribution to that. My review was submitted to the Deputy Prime Minister last October. It received nowhere near the publicity of the Barker review; it was not so high-pitched. However, I was delighted a few weeks ago to receive a letter from the Housing Minister, Keith Hill, confirming acceptance of the majority of the 45 recommendations in that report, many of which are in the Bill. I place on record my thanks to the Government for that.
The Minister said in his opening address that some small changes had been made to the right to buy. That was a recommendation of my small working group, which comprised not only housing officials but private developers and a range of others outside housing.
I welcome the changes in the Bill, but they do not go far enough. Among other things, the working group conducted a series of meeting with people who lived in rented property or had shared ownership—part rental, part buying—but who wanted to buy their own home. What came through was the unfairness—they are so right—of the difference between the discount in the right to acquire from housing associations and that given by local authorities. The blunt fact is that it depends where the dice falls for an individual: if you are in a local council house, the discount and what you get is far better than if you are in a housing association property. We felt that that should be rectified. The Government have not done that; nor have they dealt with the variation between the regions. Nevertheless, I welcome without reservation Clauses 157 to 165, because they reflect my task force's recommendations. We want to see good value and improvement in affordable home ownership.

107
One of the other areas that the Government did not accept related to increased value when a shared ownership tenant of a housing association property sells and moves on. We wanted to see the housing association share of that profit recycled within affordable home ownership. I hope that the Government will look at that again.
I welcome Clause 87, which deals with overcrowding. The standard was last set in 1935, I think; so the Government's commitment to review it is very welcome. It would be very helpful if the Minister could indicate the timescale for the consultation and what the Government are looking at on the issue of overcrowding. He might not be able to give the answer today, but perhaps he could do so during the course of the Bill. As with overcrowding, the issue of decent homes is so big that it must be dealt with in a timescale; you cannot do it overnight. It would be good to have within the Bill, which the Government intend to make active at the beginning of 2005, a timetable for dealing with overcrowding. That would certainly help local authorities. It would be helpful if the Minister could give some indication on that.
Until last year, I was chairman of the Housing Corporation, so I welcome the Bill's updating of the corporation's powers and the improvements on the present arrangements, but there is an omission. The Housing Corporation has the sanctions of either gentle persuasion or, at the other extreme, what I used to call the nuclear bomb—statutory inquiry. It needs some intermediate sanctions by which it can bring housing associations along when they are not meeting the standards needed. Yes, you can put people on a board under supervision—you have them there part time. It would be good to have intermediate powers and a special manager. I gather that the Treasury rejected that recommendation because a special manager would remove housing associations' independence. However, that is not the case in Scotland, where the proposal has been accepted, so I question why we cannot have such provision here.
Like other noble Lords, including the noble Baroness, Lady Maddock, and the noble Lord, Lord Best, I am concerned about the issue of grants to non-registered landlords. There are lots of questions on that, and I am sure that it will take some time in the Bill. It is not new; it has been tried before and it failed.
I welcome the commitment on the tenancy deposit scheme, and we will wait to see the content of that.
9.19 p.m.
The Earl of Caithness: My Lords, like other noble Lords, basically I welcome the Bill. I want to concentrate on Part 5. I declare my interest as a surveyor and as having set up an estate agency in 1995.
I fear that Part 5 replaces light-touch regulation with heavy-handed, socialist bureaucracy, which will at least lead to the stigma of a two-tier housing market. In Denmark, which the Government have often quoted as having home information packs, the size of the pack has risen from 100 pages to 800 pages. They have a small housing market in comparison to ours.
108
We have made little progress in the six years of discussion with the Government on the sellers pack, or home information pack as it is now called. The only notable achievement is to have moved them away from criminal penalties to civil penalties, and I welcome that. The idea of a home information pack is admirable. It is agreed that there is a need to speed up the housing market, but the Government's proposals are not a solution to our problems. Let us look at the cost. The Minster said that the alleged cost of aborted transactions is about £350 million. We will come back to that on Report, but that figure is wildly out of date and it is misleading—it is much less than that. However, the cost of a home information pack will add about £650 million annually to existing selling costs. The average cost of a home information pack will generally be over £600, or more like £1,000 in London.
As my noble friend Lord MacGregor pointed out, the regulatory impact assessment is a flawed document, as it does not take into account many of the additional costs. The Government have seen fit not to include those. The result will be that extra costs will go up, and some estate agents will be able to push up their fees as well. That happened in Denmark, where fees have practically doubled since the introduction of their equivalent of the home information pack.
A home condition report is a pretty worthless document if it is not accepted by the mortgage lenders. The lenders will always want the right to commission their own valuation and survey. Contrary to what the Minister implied, the Council of Mortgage Lenders has not welcomed the idea of home condition reports. The survey has the wrong name; it is not a survey of a house, it is an inspection by a partially qualified person. That person will not be qualified up to Royal Institution of Chartered Surveyors standards, and that inspection will not reveal any of they key information that a house buyer wants. It is a surface inspection; it does not look at the expensive things that are always hidden, the drains, the electricity, the gas, the damp, the subsidence. They are totally ignored, so it will not help in the way that the Government want.
My noble friend Lord MacGregor also raised the question of surveyors and insurance. That is a huge problem. Let us look north of the Border, where a similar scheme is under way, except that it is voluntary. The whole scheme is grinding to a halt because the insurance companies are terrified of what will happen. At the moment, one gets a survey carried out by a professional. That person will probably be RICS certified, which will not be the case in the future. The survey goes to one person; that is one insurance claim. Now, the insurance companies will be faced with a home condition report going to perhaps 50 different people, all of whom can sue. That problem is by no means resolved yet.
Let us look at the shelf life of the property. The Government state that the home condition report should not be more than three months old at the time marketing commences. At the moment, 25 per cent of open market sales take about six months, so that inspection will be at least six months out of date. Whose responsibility will it be to update that? In the

109
past few years, we have been used to a strong, bullish market. There is no question that that will end. By whatever means, the market will slow down, back to what it used to be when properties took a long time to sell. The home information pack will be out of date, the searches will be out of date, and the home condition report will be out of date. Having spent a vast amount of money preparing it for the beginning of the sale, whose responsibility is it to update it, and how are they going to find the extra costs? It is going to have a big impact on the housing market, far more than the Government give it credit for.
There is also going to be a conflict of interest between the surveyor and the home condition report inspector. They can sit in the same office, at adjacent desks. If that home condition report has got to be accepted by the vendor and the purchaser, there is no way they should be allowed to be in the same building, and agents should not be allowed to own or take part in a firm that is producing home condition reports. There is too much of a conflict of interest, which would not be allowed in any other line of business.
Let us look at the qualifications for estate agents. When the Minister is looking for a new job after the next election, he can set up an estate agency the next day and sell a £10,000 house, or even a £10 million house. He needs no qualifications, nor does he have to meet any threshold, but if he wants to sell £100 worth of stocks and shares he has to go through every hurdle the FSA can produce for him. It is nonsense, and I strongly support my noble friend Lady Hanham. She knows I have been banging this drum for many years—us estate agents need to be properly regulated, along with the rest of the financial sector.
I want to ask the Minister what has happened to SAVA, that great institution that was launched with such a flourish. In 2001 the noble Lord, Lord Whitty, was telling us all about its goodness. Who owns it now? What happened to the house that was suddenly found among its assets?
The Minister has said absolutely nothing about how he is going to monitor Part 5. What are the Government's plans for monitoring? How are they going to assess whether this has produced value for money and improved the market? How are they going to differentiate what the Bill does, as opposed to all the other changes that have been mentioned that are coming through in the housing market?
There are a lot of problems. I hope the Minister gives us enough time to debate this in Committee. We started today at 7.53 p.m., exactly the same time as we were allowed to start the Bill in 2001. I fear we are going to be horribly squeezed in Committee.
At Second Reading in 2001, the Minister—the noble Lord, Lord Whitty—said that the seller's pack or HIP, as it is now going to be called, was going to be ready for 2003. Yet in July of that year the Select Committee looking at the draft Housing Bill in another place savaged the Government's proposals, and said that a great deal more work needed to be done before they could be introduced. They were not convinced that HIPs were going to solve any of the problems that the Government have identified.
110
Let us be absolutely clear; England and Wales are stepping into the unknown so far as this part of the housing market is concerned. No other country in the world is going to be doing what the noble Lord proposes, and therefore we need to get it right.
We have ludicrous situations; I shall give your Lordships one last example. Gone will be the freedom to market a house at day one, when you want to market it. If your office is in England or Wales, you will not be allowed to market the house. However, if you sell the house from Scotland or market it from France, you can tell everybody. If you have a multinational firm, it will be easy to let people know beforehand that a house is going to come on the market, which will be a civil offence in England and Wales. That is going to be a nonsense. Will the Minister clarify that if I was part of a multinational and I was based in Edinburgh, my other partner in England could not mention that a house was going to come on the market, but being in Scotland I could tell that to anybody in England? That is one of the many nonsenses that this Bill, as drafted, leads us to. We are moving into uncharted territories that need a great deal of examination.
9.30 p.m.
Lord Rix: My Lords, I shall not detain your Lordships for long, but as the Disability Rights Commission's 14-page parliamentary briefing on this Second Reading includes Mencap writ large on the cover and as Mencap's Housing Timebomb report is quoted on page 3, I felt that, as president of that organisation, I should take this opportunity to say a word about access to housing for people with learning disabilities.
The policy discussions of recent years have highlighted what I might call the four key facts. First, most of the housing progress of community care over the years has done no more than replace hospital accommodation with community housing without adding to the total. Secondly, most adults with learning disabilities still live with their families, as they did before modern community care began.
Thirdly, accommodation is not enough. If people with learning disabilities are to live in their own homes in the community, they need—to varying degrees—support, as well as accommodation. Fourthly, we have invested rather a lot of resources and nervous energy in implementing and then scrapping and replacing models of accommodation and support, without focusing on what the person who is going to live there, and be supported there, actually wants. It is as if a surgeon were to work on the basis of doing a particular sort of operation, quite irrespective of what the individual patient needed or, indeed, wanted.
We need a housing policy that makes the best use of existing housing stock. Best use means appropriate to the needs of those who need the housing. In the case of people with learning disabilities, that means, in particular, catering for the needs of the verb large numbers of people with learning disabilities now in middle life who are still living with elderly parents. For

111
some of that number, the right answer might be for the family home to be made more appropriate now to the changing needs of the parent or parents and the person with learning disability; that is, to put in extra support now and to plan for the person to carry on living in his or her familiar surroundings once the family who had made the house "home" have gone.
Physical accessibility is not an issue for many people with learning disabilities, whereas having a home of their own to access is. However, the more severe the learning disability, the greater the likelihood of there being associated physical disabilities. In addition, the longer people with learning disabilities live, the greater the likelihood that they, like the rest of us, will acquire physical disability.
My personal dream is of a housing and support programme which—in place of the traditional approach of putting people where we think they ought to go and moving them when it is convenient to move them—enables people to live where they want to live and to stay there as their disabilities increase, if that is their preference. Such a policy requires better assessment of needs and wishes, a starting point in those needs and wishes rather than our theories, registration of demand and of supply, flexible funding policies and speedy availability of the disabled facilities grant and other funding in order to maintain accessibility.
I have been partially reassured by the Government's response to the Learning Disability Task Force on the issue of funding in the Supporting People scheme. It is vitally important that that level of funding is sustained. However, I am still nervous, given the long history of housing benefit cutbacks, that promising housing policies will be retrenched the moment that it becomes clear that they will, for perfectly good reasons, cost rather more than had been originally anticipated.
It has been clear from the earliest days of trying to get that right for people with learning disabilities that a home in the community, with the support needed to live well in that home, is an essential prerequisite for being present in and participating in the community. There is more than one way of funding, managing and monitoring housing and housing support, but the valuing of people and the housing policies that are being developed offer a real prospect of getting it right this time, always provided, of course, as the good book says, that having put our hand to the plough we do not turn back.
When I read of the size of some new private sector developments, and when I notice that local authorities are still unclear how many people with learning disabilities are living with elderly parents—let alone having plans for them—I do worry that we might turn back and stumble and fall on the very brink of success.
9.35 p.m.
Lord Borrie: My Lords, I propose to concentrate my remarks on Part 5 of the Bill: 25 clauses containing important and desirable consumer-protection proposals whereby vendors provide home information packs, including home condition reports, whenever a house is put on the market.
112
To be most cautious, at least, I should declare an interest as an honorary life member of the National Association of Estate Agents. Though—as other noble Lords have said—that body seems to be officially opposed to the Bill's proposals, I think that the association is divided. Many members—including its very well respected former chief executive, Mr Hugh Dunsmore-Hardy—are very much in favour of Part 5.
Part 5 was fought over on several occasions during the passage of the Bill in another place, but I believe that in this House we should support the mandatory requirements for home information packs because they are intended to make more transparent, more speedy and more effective what is—it is commonplace to say—the most economically important transaction that people make in a lifetime, and very often several times in a lifetime. Key information is to be made available at the outset of the process. Particularly because a house purchase is typically part of a chain with the vendor buying another home, and so on up the chain, I believe that opposition pressure in another place—and from what the noble Baroness, Lady Hanham, says, perhaps here too—to make the whole idea voluntary would seem a worthless outcome of what the Government are trying to achieve because sales without packs would slow down the connected sales with packs.
It is not surprising that the Government's proposals have received warm support from the Consumers' Association, because there have been so many instances where ignorance on the part of the purchaser about some vital aspect of the property's condition has meant that only when he commissions a survey—usually at a very late stage of the transaction—do the defects come to light. The first-time purchaser is particularly hard hit at present because he or she has to pay for such a survey upfront before he gets on the first rung of the property ladder.
It is even worse if the purchaser is unwise enough not to commission a survey of any kind before committing himself to a price that has been agreed on a false basis of the apparent superficial soundness of the property. Surely Part 5 is good news, for the first-time purchaser in particular. The vendor will provide and—this is a partial answer to some things that the noble Lord, Lord MacGregor's said—be legally responsible for paying for a home condition report with legal responsibility as well behind the wording, the assurances and the terms of that report.
At present, several prospective purchasers may each spend money on separate surveys of the same property, only to end up—or at least most of them—with an aborted transaction. The only profit is to the various surveyors who have undertaken the separate surveys.
The beauty of the Government's scheme—I emphasise the word "beauty" before coming to the criticisms, many of them legitimate, at least in terms of queries to the Government made by the noble Earl and the noble Lord, Lord MacGregor—is that when a vendor proposes to put his property on the market he commissions a survey and that is made available to every genuine intending purchaser.

113
That is a major cultural shift from the situation in which at present a purchaser makes an offer for a property on the basis not of what it is, with the reality of its imperfections as well as its good points, but on its superficial appearance and a spot of estate agent's hyperbole. It is not surprising that at present a high proportion—many estimate as high as one third—of all transactions fail when only at a late stage does a survey reveal what lies behind the false mask of the so-called particulars of sale.
Some noble Lords may recall an estate agent called Roy Brooks who operated during the 1960s. He never used hyperbole in his particulars of sale, rather he was blunt to the point of extreme frankness. He would refer to "this rundown dump which is in need of extensive renovation". He was a successful estate agent, but sadly no other estate agent—a rather unimaginative lot, I think—seems to be bold enough to follow that example.
The noble Lord, Lord MacGregor, and the noble Earl, Lord Caithness, raised a number of serious issues. It is impossible to cover them all this evening, but I am very glad that they have raised these important matters. Certain questions have to be answered by the Government. In so far as the Government did not respond to them fully in the other place, they need to be answered here. Among them is the costs, not only the overall cost of the new scheme but also the cost of each transaction. Also to be detailed is the recruitment and qualification of the inspectors. I mention the question of indemnity and the legal rights people will have if a home condition report turns out to be inaccurate. Those are important issues which I believe can be answered, even bearing in mind the Minister's important statement about the intention that the scheme should come into effect not tomorrow, but in 2007. I think that Part 5 is a worthwhile part of this Bill.
9.42 p.m.
Lord Dixon-Smith: My Lords, I bumped into the Minister earlier this afternoon. He expressed the hope that I would not take him past 10 p.m. I am fortunate that that privilege will fall to another poor Member of this House, due to the rather late firing of the starting gun.
I welcome the Bill, although I want to talk about an issue that is not included in it. Anything that seeks to improve the general housing situation must be welcomed. Housing is what I would call another fence in the endless steeplechase of life. We are dealing with the problems of housing as the Government see them today, and providing solutions for today. With a great deal of hard work, I do not doubt that this will be a good Bill in the context of today. But we should face the reality that must be faced by all legislation: while we may solve many problems, we will create problems for others in the future. We should not presume that we are going to provide a Utopian solution here.
I am not quite as euphoric about Part 5 as the noble Lord, Lord Borrie. I recall that when I bought my first flat in London, I was advised to have the property
114
professionally surveyed. I did so, but some weeks later—and with a much lighter wallet—I received the wonderful document, which told me nothing that I could not see for myself when I took the care to take a thorough look at the property. So we should not assume that buyers' packs, to use the shorthand phrase, will necessarily be the perfect answer.
I want to talk about social housing in the context of Section 106 agreements. I declare an interest as an Essex landowner who has been involved in a major development where there was a heavy Section 106 agreement, which did produce a great deal of social housing. This is a significant issue.
During the proceedings on the Planning and Compulsory Purchase Bill, the noble Lord, Lord Best, talked in considerable detail about the reasons why the Government should not take a formulaic approach for community gain on major developments. He was right, because the circumstances of each development are dramatically different.
If one considers that the Minister's right honourable friend in another place, the Deputy Prime Minister, wants to land the south-east—which is my particular part of the country—with another 400,000 houses, and if one then considers that this will be major new development, some of it on brownfield sites but all resulting in immensely enhanced values, that development, negotiated properly through the Section 106 system, will produce 20 per cent, possibly 30 per cent, of social houses out of the total number of units provided. My Lords, 400,000 houses at 20 per cent is 80,000 social housing units; at 30 per cent, it is 120,000.
These things are achievable. This is a huge sum. If the Minister's right honourable friend, the Chancellor of the Exchequer, has his way and we get from the Treasury the additional million houses that are being talked about, it would mean vast numbers of social housing units being constructed across the country.
The issue I want us to touch on, however, is how such properties are paid for. There is the idea that the developer pays for them. There is a sense in which he does, of course. He will almost certainly construct the properties and in that sense he will pay for them. The housing does not come from nowhere; it has to be paid for. It actually comes from the original landowners, who are party to this negotiation and want to see the benefits of the money that they are putting back in the community going into their communities and staying there.
There is a little fly in the ointment here. It is the right-to-buy scheme. The one thing that those landowners do not want to see is the social housing that they enable to be created subsequently going out of the social housing sphere, possibly within five years, at a discount. These are, if you like, their resources. It is their payment to their community. I would like to think that housing in that situation should at any rate have a 20-year exemption from the right to buy.
One could also argue that, where land is given up in small communities for social housing—small plots of five or 10 acres to provide social housing in towns and villages across the country—by landowners who are prepared to

115
accept a very low value for their property in order to provide the housing that is required by their community, it is again important that the right to buy does not come into play. I know that there are ways over this. It can be done by charitable housing associations; it can be done by such things as shared occupancy, and so on. It ought to be clearly understood from the start, however, that this is an issue where the right to buy should not apply, at any rate for a time.
This Bill gives an opportunity for a clause of that nature to be added, so that this matter can be taken care of. In my view, if this existed it would make it easier to negotiate Section 106 agreements. It is something which can be done in detail in Committee, and I do not need to take more of your Lordships' time.
9.50 pm
Baroness Wilkins: My Lords, I greatly welcome the introduction of this Housing Bill and the opportunity which it gives us to tackle some of the barriers which face disabled people in finding accessible and affordable homes. I declare an interest as a patron of HoDis—the National Disabled Persons Housing Service—and as a member of the Joint Committee on the draft Disability Discrimination Bill.
I also declare my interest as a wheelchair user. While there have been enormous changes in the opportunities available to disabled people in the 40 years since I became disabled, the housing sector is an area which has been left in the shadows. For physically impaired people the lay-out of our homes can either enable us to live full and independent lives or it can disable us completely, making us dependent on other people for the very basics of our existence—washing, eating, sleeping and going to the loo.
But it is not only about our lives in our own homes. The ability to go into other people's homes, to visit our friends and family, is regarded almost as a luxury—and yet that ability is essential if we are to be fully equal participants in society. I have come to accept that none of my family or non-disabled friends has a home that I can get into without help. This is not because they do not care or are unthinking but because accessible housing stock is not available. This means that I can only ever be on the receiving end of their good will. If they are sick, I cannot visit them or take them a meal; if they go away, I cannot feed the cat or water the garden; if I get my neighbours' post by mistake, I cannot take it to them. It is all that give and take of life that makes relationships equal.
I hope that I can convince your Lordships that equality of access to housing is an issue of basic human rights which provides the foundation for independent living and all manner of social and economic opportunities. However, for many disabled people it is a right denied. The evidence is shocking. One-quarter of wheelchair users are virtual prisoners in their own homes because of poor access and location; thousands of disabled children are living in homes which blight
116
their life chances, restrict their social development and cause their parents acute stress, back injury and sometimes loss of employment.
Many, many barriers obstruct disabled people's access to appropriate housing and independence. I suggest that this Bill and the forthcoming Disability Discrimination Bill together offer a critical opportunity to remove many of these barriers and address the growing accessible homes crisis.
The Joint Committee on the draft Disability Discrimination Bill, of which I was a member along with my noble friend Lord Rix, received a large body of evidence asserting the need for a more proactive approach to meeting the housing needs of disabled people by local housing authorities, public housing associations and the providers they fund.
There has been widespread concern—which the committee's report, published on 27 May, strongly echoes—that the draft Disability Discrimination Bill does not go far enough towards securing the right to a decent home for disabled people. We therefore recommended that the full Bill should include specific provisions preventing landlords and management committees unreasonably refusing consent to disabled people who need to make physical changes to their properties, including communal areas, in order to enjoy fundamental rights of access. Some 18,000 disabled tenants living in unsuitable accommodation report that they have been prevented making essential alterations or adaptations because their landlord has refused consent. I hope that the Government will feel able to accept the recommendation.
But the committee went further, endorsing calls from the National Housing Federation and the British Council of Organisations for Disabled People that premises which have been appropriately adapted to accommodate disabled tenants should be put on an accessible housing register as a way of systematising the supply of suitable accommodation to a suitable group of people who would be in need of it. This proposal is strongly supported by HoDis, which has pioneered the development of such registers, and by many other organisations. The Housing Bill offers the perfect opportunity to take this forward.
Despite the acknowledged shortage of housing built or adapted to various accessibility standards, when a property becomes available landlords frequently have difficulty in identifying someone who needs it. Social landlords are under some pressure to let empty properties quickly. Consequently, if someone whose needs match the equipment or adaptations in the vacant property is not identified within a couple of weeks, it will be let to someone who does not need the adaptations. Even worse, the adaptations, which could have cost several thousands of pounds, may be removed. This is a calamitous waste of resources.
A statutory duty on housing authorities to maintain databases of accessible or adaptable properties and of disabled people in housing need, and to use these to provide an information and matching service, would have a plethora of benefits. The number of empty properties would be reduced, along with admissions to hospital and

117
residential care. Unnecessary spending on adaptations would be avoided and disabled people would be in a position to choose suitable accommodation much more quickly. Local authorities which operate such a service have achieved quite staggering savings and are in a position more accurately to map and plan for current and future levels of need.
Given the appalling lack of accessible housing, we must surely grasp this opportunity to make the best use of the resources that we have. The introduction of housing registers is one simple and effective solution, but given the competing demands placed on housing authorities, that will not happen without legislation. The Housing Bill could and should mark the beginning of a concerted campaign to remove some of the barriers to decent housing for disabled people. I trust that this opportunity will not be missed.
9.55 p.m.
Lord Selsdon: My Lords, the noble Lord, Lord Borrie, pointed out that buying a house is one of the most expensive purchases that one makes in one's life. I shall approach it from the other direction: death, divorce and moving house are the most stressful events in a person's life. Presumably, the Bill seeks to make life easier and more comfortable for all those concerned. It is on the principle, on Second Reading, and not on the devil in the detail, as the noble Baroness, Lady Dean, said, that I would like to speak.
I was very impressed by the Minister when he spoke in the housing debate initiated by my noble friend Lord Lucas. At the end of that debate, as I was sitting on the steps of the Throne and watching both sides, he said with supreme confidence that he would cut through bureaucracy and build some 920,000 houses and please everybody. The next day, it was reported that the cost of houses had gone up.
I have declared an interest as a director of a construction company which builds houses. We do Section 106 and Section 52 agreements; we do urban regeneration schemes and we build on brownfield sites. I have been a rather unsuccessful landlord and I have been reluctantly involved in enfranchisement and leasehold reform. I have sat in your Lordships' House over the years and asked why we could not have one simple Bill that made it easier for us all.
I have been amused during the past week. Since your Lordships' House scrutinises and improves legislation, the briefs began to arrive during the Recess. They came by e-mail when my machine was down. It told me that the service was not available and there was a red cross on the screen. In the end, I found that paper is not sent any more. When you receive the briefs on your e-mail system, you try to print them out, but the printer will not connect and there is no one to help in the computer office. You cannot find any paper and Dixons is shut, so one cannot get the brief. Therefore, I rang the department up, but most of them were not there. One answered on his mobile from the Test match and told me the score. I then realised that input into Ministers is quite difficult. We have a government who are
118
willing to do what they possibly can in the housing sector to make things easier, more secure and better for people, and to build more houses.
When we turn to social housing, I think back to the Leasehold Reform Act. We had Smiths charities, which we thought were charities trying to help people have cheap houses. I think that they originally built houses for widows of pirates. We found that they were concentrating only on the maximum value that they could extract from their portfolio, complaining that leasehold reform was unfair to them. A few weeks later, they sold their portfolio to the Wellcome Foundation for the largest amount that they could get. I ask myself where are the great philanthropists such as Thomas Salt, Peabody and others, who, instead of giving money to political parties, set out to do things within a community, to finance, build low-cost and own houses, as good, respectful landlords, knowing that people would respect them as well.
I do not like the term, "social housing". It is accommodation. Our previous debate brought me round to the belief that in rural areas, where only 10 per cent of the population now live, we should build more houses, yet my own attitude had been that we should not build any more in the rural areas because we will destroy the countryside. If one flies around in a helicopter, one sees the most enormously bad patches of land in rural areas. One sees farmers longing for some house builder to apply for permission to build on their land without telling them so as not to upset the local environmental lobby. The house builder would come back and say, "I say, sir. We've got some good news for you. We can get you planning permission for your house. We'll do a joint venture on your land". The farmer will say, "I didn't mean to do this. I'm a farmer. I'm part of the community".
The building of a good house and home—they are not necessarily one and the same—is one of the duties of government. I look at the noble Lord, Lord Rooker, wondering whether he can be a Harold Macmillan. Harold Macmillan said that he would build houses every year and that was the most important thing. At the moment, building houses at the right price—at the right cost for people—is the right thing. How do you do it?
We are not necessarily going about it the right way. Forty or 50 per cent of the costs of a house is often the land. There must be a way whereby under Section 52, Section 106—or whatever we may call it—that land may be put into the pot and the end price reduced, not instantly but for a long period of time because there are no land costs.
If we look at house builders, and I consider my own lot, we have to go out and spend maybe £40 million per year to buy a strategic land bank in order to be able to keep building houses. How much nicer if in some areas the Government would sit down, as they do, with house builders and say, "With our plan there are areas where we think it would be right, where there is a good local community and a council that wishes to have things".

119
Although it may be the voluntary sector, I believe that there is a will in the country for people in the commercial world to work that one out. I repeat to the Minister that buy-to-let is a moral and acceptable notion. Throughout Europe people are better off putting their money and savings into houses that they can let that may be passed on to children, family or those at universities.
I wonder whether we might think of a radical policy whereby those in retirement who buy homes may not be taxed on the income from them; a TESSA for houses or something of that sort. Ultimately, whichever way we look at it, we are talking about money. I could repeat the words of my noble friend Lord MacGregor and point out that there are not enough surveyors or people in the land who could undertake the work proposed in the Bill; and more than that, there is not enough insurance capacity in PI insurance to permit that to happen.
Some of your Lordships may have had to help people who have had a survey that went wrong, with dry rot, deathwatch beetle, cockroaches and everything in the book. They turn to the surveyor on whom they spent £1,000, and he says, "It's not my fault", he disappears into the sunset, his professional indemnity insurance takes over and we hear no more about it.
I wish the Minister well because I believe that his heart is in the right place. The Bill may be over-bureaucratic, but during its progress let your Lordships make it work for once rather than all the previous legislation that has ended up half finished.
10.2 p.m.
Baroness Young of Old Scone: My Lords, I want to speak on Part 5 on the home information pack, in common with many of your Lordships. As the last on the list of the Bank Benchers after the 10 o'clock watershed, which I am grateful to the noble Lord, Lord Selsdon, for taking me safely past, I am glad that I am going to talk about something on which no noble Lord has touched on so far.
I should declare some interests, first, as chief executive of the Environment Agency, but also—strangely enough—as an honorary fellow of the Royal Institution of Chartered Surveyors. Those organisations are not of one mind on the issue, so I am probably free from the prejudices of either.
I commend the home information pack provisions in the Bill in principle. I believe that they can make a contribution to simplifying and speeding up the selling and buying process. More particularly, I want to consider two other important reasons for the home information pack being worthwhile pursuing and for a systematic examination of the details with a view to making it a practical possibility rather than thinking up every reason in the book for it not happening, as the noble Earl, Lord Caithness, did.
The home information pack and especially the home condition report are an opportunity for homebuyers to benefit from knowing about a range of material issues associated with the environment and the property in
120
which they are interested. The pack will have to contain information on energy efficiency. That has benefits for prospective purchasers in terms of the size of future utility bills but also for the impact that they will be making on climate change, the greatest environmental threat facing us all.
About one-third of total carbon dioxide emissions are associated with energy use and domestic energy use is one of the sectors that continues to rise. Homebuyers should also be enabled through the home improvement pack to know about other environmental issues associated with the property that they plan to buy; for example, it is vital that they understand their flood risk status. They need to understand what the flood risk to that property is, what can be done to alleviate it and what impact it will have on the insurance costs for the property.
Alongside the Bill, the Office of the Deputy Prime Minister is consulting on the content of the home information pack, which will be subject to secondary legislation. I encourage the Minister to include all the environmental data in it as material for a house purchaser; otherwise we are really asking house buyers to buy an environmental pig in a poke.
The pack is one of the few opportunities to influence the resource efficiency of existing housing stock. Very simple steps may be taken to improve the environmental performance of homes, often at a very low cost. That is particularly true of water efficiency. Some parts of the south and east of England already have less water available per head of population than countries which noble Lords would regard as arid, such as the Sudan. There are big increases in house building proposed for those parts of the country, which will put even more pressure on water resources. We must make the housing stock more water efficient.
The Sustainable Buildings Task Force reported recently to ODPM and showed how water savings of up to 26 per cent can be achieved by installing more water-efficient fittings and appliances. Where water meters are installed, saving water also reduces bills by as much as 10 to 20 per cent. The information in the home information pack on the water efficiency status of a property should encourage householders to see water efficiency as an important issue and to take steps to increase the saleability of property by water efficiency measures, thereby reducing the impact on the environment and on their bills.
The home condition report could be an opportunity for water companies to promote water metering at change of occupancy, without the knee-jerk reaction that they fear at the moment—unwisely, I sometimes think. That would mean that there could be savings for householders and for the water environment as greater water meter penetration happened automatically at change of hands.
There are opportunities for the future. It would he impossible in the near future for there to be a reliable eco-labelling system for existing housing stock, showing its environmental efficiency overall. However, work is going on with the Building Research Establishment's eco-homes standard, which could

121
make that a possibility in future. Will the Minister reassure me that the terms of the home information pack are drawn in such a way that there is an opportunity to include eco-labelling, or some sort of environmental kite-marking scheme in future?
Buying a home is often one of the most financially important decisions that people make; it is also one of the most environmentally important decisions, determining some of the biggest environmental impacts that we make as individuals throughout our lives. The home improvement pack can help home buyers to reduce bills, can reduce their environmental risk and can protect the environment.
As the Minister said—and certainly with respect to Part 5—this is a good Bill with a lot of good things in it. I hope that I can encourage the Government to include even more good things, in the Bill itself and in the secondary legislation.
10.8 p.m.
Baroness Hamwee: My Lords, anyone who has gone door to door over the past few weeks, taking our party's wares around like some modern version of the travelling salesman, will have been reminded how varied is our housing stock and how varied is its condition. One cannot tell everything from observing the front of a house, although I have noted over many years that there is a preponderance of Conservative voters among those whose gates are shut. I challenge noble Lords to deny that!
Anyone who has managed to find a voter at home will have found, too, that the supply of housing is often very high on that individual's list of concerns. People who deliver leaflets often find that slips of paper from decorators and pizza companies have got there just before them. I have never actually seen a note from one of those who encourages a tenant to exercise a right to buy and then buys the house from the new owner—but that is one of the abuses which I very much welcome being tackled in the Bill.
One evening last week, I was asked by a carer, who was just leaving, not to disturb Mrs "So and So" because she had just been settled for the night. The house, which was divided into several units, had a disabled parking bay outside and a chairlift on the long flight of steps up to the front door. It looked to me like a very good example of the services working together to keep someone in her own home, making the best use of existing stock. The Disability Rights Commission has given us many ideas as to how the Bill can be tweaked to deal with the interests and, indeed, rights of disabled people, as the noble Lord, Lord Rix, and the noble Baroness, Lady Wilkins, have reminded us.
Now that we have the Government's announcements about the tenancy deposit scheme and the empty homes management arrangements, I am happy that noble Lords from these Benches can be on the welcoming side of the line regarding the Bill. It will be our stamina, not programme motions or knives, that will determine the effectiveness of our scrutiny of it. Because so much of the Bill is welcome in principle, we are bound to spend quite a lot of time looking at the detail. Reading the Bill, it
122
struck me that definitions will be very important, as will the balance between primary legislation and what the Secretary of State can determine or change through regulations and orders.
I must say that. I am finding it a little difficult to work out what has already been published in draft, a matter to which my noble friend has referred, but we can come back to the detail later. If the ODPM could produce a flowchart of what is an HMO within the legislation, it would be helpful. If it cannot produce a chart showing what falls within which bits of the Bill, that would prove the point of how difficult it might be for those affected by the Bill and those operating its provisions.
If the Bill is about protecting tenants—and it must be—then the number of storeys is not as relevant to the hazard as is being presented. Whether, at any given time, there are four or five occupants is another matter that we will have to look at. How long should one have to live with a hazard? These are points, among others, that the Local Government Association has raised. I have been surprised that it has not also said that local authorities will need the resources to operate the Bill. I hope that that means that it has had all the right reassurances from Government but it would do no harm for them to be repeated in this House a t some point.
Should scoring against ratings determine a judgment as to whether there is a hazard or rather inform that judgment based on qualitative assessment? Hope triumphed, as it often does, over experience and I was surprised when I found that the details of hazards are to be prescribed.
As to licensing, we have heard from the Council of Mortgage Lenders that it is concerned that investors should not be deterred or the buy-to-let market damaged. I am sure that they do not mean by that that bad landlords should be able to let unfit, in the broadest sense, accommodation. Like the noble Lord, Lord Best, having supported encouraging investment in housing, I am beginning to be concerned that it is pushing up prices and making things particularly difficult for first time buyers. I take the point of the CML about the complications of the proposal and the difficulties envisaged if different schemes operate in different areas.
The noble Baroness, Lady Hanham, mentioned the position of parents of students who buy a property for the student and let rooms to other students. Perhaps, to put fears at rest, the Minister can tell the House the estimated cost of licensing for a good landlord. On the question of students, I have been far from convinced by the Government's arguments about excepting student accommodation. In a world of PPPs and PFIs, I do not think that one can rely on saying that universities are responsible public organisations; I do not deny that, but I do not think that it is relevant to this issue.
On reading the Bill, I found a number of matters not easy to understand. I look forward to exploring how the Bill interrelates with provisions elsewhere about antisocial behaviour. I hope that the Government can

123
convince us that this is not another example of a nanny government knowing best, and also convince us that licensing in designated areas will improve conditions and not confirm that area as undesirable, consolidating its reputation in a vicious spiral.
One of my first thoughts about the Bill was that the level of penalties against landlords in breach was pretty low for them to be an adequate deterrent. I then found, though, that the Secretary of State can uprate the level of fines for some offences if he considers that there has been a change in the value of money. I thought that that was a function of standard scales. I hope to explore just how all this will operate and whether the fines will be an adequate deterrent. Mind you, I then went on to read that the Secretary of State can confer jurisdiction by order on the residential property tribunal. So anything seems possible, I suppose.
On both the rent deposit schemes and empty homes management, we will have to see the detail, although my guess is that there will be heavy reliance on regulations, which is where the devils mentioned by the noble Baroness, Lady Dean, may be. However, perhaps the Minister can tell the House tonight what consultation there will be on the detail of both of those matters.
One issue that has been raised but on which the Government have barely moved is the protection of houseboat owners and occupiers, to which both the noble Baroness, Lady Hanham, and my noble friend Lady Miller of Chilthorne Domer have referred. I say "barely" because until recently there was no movement at all. Indeed, I have seen a letter from an official at the ODPM to a houseboat owner that was almost entirely about park homes. And then the official said at the end,
"unfortunately the issues of harassment"—
of houseboat owners—
"seem similar to that of park home owners, but there are important differences between the two tenure types … I am unclear of the extent and nature of the problems with houseboats and whether statutory intervention would be justified is not clear. I hope this information is helpful to you in setting out the bill's provisions in relation to park homes".
I think the answer to the last sentence is, "No, not very".
However, there is now a glimmer of light. In a more recent letter, Keith Hill wrote:
"I am in no doubt that the plight of houseboat owners is no less important than those of mobile homes. Officials in Defra are looking into ways these problems can best be addressed".
So I say to the Minister, can Defra and the ODPM please join up and find it in their hearts—and if necessary by changing the Long Title of the Bill—to "spatchcock", to use the term used by the noble Lord, Lord Graham, the protection that the Bill extends to park home owners to houseboat owners and occupiers so that we do not have to hear tales of uncontrolled service charges levied by the licensors of moorings, charging for 25 years in advance, cutting off water and electricity in order to move a houseboat owner on, and so on?
124
As so often, there is far more in the Bill than one can hope to address at this stage, although the array of expertise available to the House and contributing to tonight's debate has meant that we have given it a pretty good airing. But for my final remarks I should declare an interest. I am still a practising solicitor—although I have to say as regards conveyancing matters that "practising" is probably still the right term. But my real interest is in achieving the best for the consumer—for both the buyer and the seller, not for the professional. So I take seriously the support of the Consumers' Association. I take very seriously, too, its campaign to regulate estate agents, who are too often not clear who is their client.
Returning to the issue of home information packs, I take seriously, too, the concerns of the Council of Mortgage Lenders and the Law Society, which the noble Lord, Lord MacGregor, used to such great forensic effect. If the packs are to be useful and if they are to include a home condition report, that report must be acceptable to lenders for mortgage purposes.
At the time of the Homes Bill three years ago, I recall being very surprised to find that only about 30 per cent of purchasers arranged their own surveys. I suspect that part of the reason for that is their cost. By imposing that new requirement on sellers, very many of whom are also buyers, the Government will make things more difficult and more expensive. The Government are talking up a solution that is not a solution to the real problems of the time and complexity of assembling a chain of vendors and purchasers. My observations do not lead me to the same conclusions as those of the noble Lord, Lord Borrie.
I attach less importance to the packs than some but, if we are to have them, let us sort out their validity, their contents—the remarks of the noble Baroness, Lady Young, were very useful on that—their format, and questions of liability insurance and inspection. I am with those who want to make them voluntary. If they are as useful as is claimed, they will catch on very fast. We will have an interesting time at further stages of the Bill's passage.
10.21 p.m.
Lord Hanningfield: My Lords, it has been an interesting and constructive debate on an extremely important issue. There have been many valuable contributions from all parts of the House, and I shall endeavour not to detain the House too long at this stage of the evening.
The need for secure housing is one of the most crucial issues facing today's society. It is a basic right that those holding a position of influence—like us—must acknowledge and respect, and that those disadvantaged and alienated must expect. Housing has a fundamental impact on an individual's life chances. Put simply, without a stable home environment, both education and health opportunities are likely to suffer. Equally, employment prospects will be seriously affected. For people caught in the cycle of despair, access to housing is crucial in attempting to break free from its shackles. I have said that because I wanted to

125
echo the remarks of the noble Baroness, Lady Wilkins, and the noble Lord, Lord Rix. We very much support them on the issue of disabilities.
I fear that the Government have missed a valuable opportunity to bring about a real change and improvement to the housing sector. What could have been a progressive and forward-looking Bill is still rather undistinguished. What could have been a clear and insightful Bill is somewhat muddled and confused. Furthermore, the Bill introduces unwelcome elements that will do nothing to ease the current problems in the housing market. Indeed, the Government have taken the opportunity to load even more bureaucracy and burdens on almost everyone involved in housing, from the private individual who merely wants to sell their house, to the good landlord who will have to cope with additional form-filling.
Paradoxically, there are also significant elements missing from the Bill. There is no mention, for example, of rural housing—several noble Lords mentioned that, particularly the noble Baroness, Lady Miller of Chilthorne Domer—and the particular problems of affordability in rural areas. We all know of those difficult issues. There is also nothing on the problems experienced in national parks, and nor is the issue of empty homes adequately dealt with anywhere in the Bill.
I would like to turn in detail to some of the key issues in the Bill. The plan for mandatory home information packs is an unnecessary and ill thought-out measure, merely acting as a burden and additional stealth tax on the individual. It will do nothing to speed up the house-buying process. It has received criticism from all quarters except one or two noble Lords tonight. Although the issue of sellers' packs has received the most attention, it is by no way the only contentious issue in the Bill. I must stress that in case the Minister thought that he would get off lightly in the scrutiny of the rest of the Bill.
If the Government feel that transactions will be quicker and more user-friendly, with reduced gazumping and benefits to the consumer, we would like to hear more about that. However, we feel that the packs will do nothing to speed up property transactions, as purchasers will still more than likely wish to commission their own surveys, hence the proposals will simply duplicate the number of surveys undertaken, adding to the cost of selling one's home.
As my noble friends Lord MacGregor of Pulham Market and Lord Caithness have so adequately covered all the problems with that part of the Bill, and as we shall follow up much of what they said through amendments and scrutiny of the Bill, I need not say much more about that tonight, except that comparisons with Denmark and Australia are irrelevant as their processes and, especially, their volumes are nothing like those in England.
Furthermore, I am especially worried about the problems of the elderly. Much of our correspondence has come from elderly people. The introduction of such complex, expensive legislation with potential
126
legal problems has concerned many elderly and other disadvantaged people who could be dissuaded from moving until an absolute crisis point has been reached. Again, the issue was most adequately raised by my noble friend Lord MacGregor, who referred to those who sell a house but do not buy another one—such as many elderly people. Those issues need to be scrutinised and queried as we examine the Bill.
The Bill also seems to attack the principle of the right to buy by introducing restrictions in what the Government deem to be high-demand and rural areas. We have doubts about the Government's real commitment to the scheme, but we are of course willing to consider and support any measures that stop naked abuse of it. We want an assurance that those restrictions are in no way likely to have a negative impact on people's ability to acquire property of their own.
The right to buy has allowed ordinary people who would otherwise not have been able to do so the opportunity to own their own home. Perhaps the Minister would like to tell us what assessment has been made of the restrictions that have been introduced during the past year about the number of people taking part in the right-to-buy scheme. My noble friend Lord Dixon-Smith raised an issue that we shall pursue further in Committee concerning the right-to-buy scheme and private developers. We will consider that further.
The licensing scheme for houses in multiple occupation is also an important part of the Bill. Although we must be mindful of the balance between regulation and the proper protection of vulnerable citizens, we are concerned about the intrusion of officialdom into private residences, together with the resulting red tape and bureaucracy. We support the intent to bring a degree of order where genuine abuses are occurring. However, a balance must be struck that does not act as a disincentive to those who want to provide much-needed accommodation for rent, as several noble Lords have mentioned tonight. Also, would such a licensing scheme cover those in greatest need?
The Bill would also allow local authorities to take and rent out property left empty. We have grave and substantial concerns about that aspect of the Bill, which gives rise to serious issues about the intervention of the state into the affairs of the individual. We will argue that hasty action by councils could cause distress where there is good reason for a property to remain empty temporarily, such as a family bereavement. We want to explore those issues further in Committee.
On the additional provisions on park homes, surely, as my noble friend Lady Hanham and others mentioned, it would seem sensible to include houseboat owners. Houseboat owners own their boats but not the mooring to which the boat is attached. The owners enjoy no rights vis à vis the licensed moorings manager. Surely the Minister will agree that they are in a similar position to owners of park homes and should be included in the Bill.
The Bill will give public money to the private sector for the construction of social housing. Does the Minister agree that such a step is being adopted merely to speed up the delivery of many more homes and an

127
unwanted housebuilding programme in some parts of the country, including mine? Furthermore, questions need to be answered about the percentage split of social housing grant between the registered social landlords, local authorities and the private sector. What would happen were a private company using public cash to go bankrupt?
Finally, I touch on the issue of fitness standards and the introduction of new housing health and safety rating systems. Although we can support the intent of such measures, I wonder about the cost of implementation for local authorities. As the noble Baroness, Lady Hamwee, said, there have been no guarantees about where that money might come from. Reports have suggested a figure of around £5 million. Perhaps the Minister could assure us that they have sufficient financial resources and capacity to cope with such new responsibilities. We all know, and it has been said many times, that local authorities are given responsibilities without any cash. This is an opportunity to explore that issue.
This is a wide-ranging Bill covering many extremely important issues. We have major concerns, and we hope to improve on the Bill as it stands. As I said at the outset, it is a very important Bill. The Government's legislation is now under scrutiny and will go into Committee, when I look forward to working with my noble friend Lady Hanham.
10.30 p.m.
Lord Bassam of Brighton: My Lords, this has been an excellent debate. Like my noble friend Lord Rooker, I think that this is one of the most interesting Bills that I have had the pleasure of spending time looking at and preparing for. From the wide-ranging comments made during what was a long debate given how late we started, I can tell that we will have fascinating debates in Committee, on Report and at Third Reading as we go through the detail of the legislation.
It was interesting to note the areas where there was consensus, where there was disagreement and where most of the disagreement was focused. It does not take a brain surgeon to work out that we ran into most criticism on the part dealing with home information packs. From what has been said, I can predict that we will spend a lot of time on that in Committee. That is fair enough. Having listened to the intensity and the detail of the questions on the matter, my noble friend Lord Rooker and I will deal with those as extensively as we can later, in the amending process. However, I will pick up some of the points raised during the debate.
The Bill is extensive; it covers a wide range of subjects relating to housing and the housing market. As such, it is part of a comprehensive action plan to create sustainable communities. We have set out our plans very clearly on several occasions. We have backed that with a marked increase in resources—some £22 billion. I think that I can fairly argue that there has been a positive step-change on the part of government in tackling the many different housing
128
problems, north and south, that this country faces. The Bill is a part of that action plan to create sustainable communities and to raise housing standards.
I want to begin with Part 1, which surprisingly attracted least interest and commentary. However. I pay credit to our colleagues on the Liberal Democrat Benches, as the noble Baronesses, Lady Hamwee and Lady Maddock, made important references to Part 1, and I shall come to their points. Unlike some of his Conservative colleagues, the noble Lord, Lord Hanningfield, also raised issues of concern; in particular, that relating to the cost of implementation for local authorities.
The current housing fitness standard dates back over 80 years, and there is agreement that it needs to be replaced. Tackling health and safety issues in housing is an approach that looks at the impact of the property on the individual as well as at the state of the house itself. The Bill paves the way for that approach with a rating system. This will help local authorities to prioritise activity and to target properties where there are health and safety hazards, and where risks to residents are greatest—that is its value. It will put those health and safety considerations at the front of the Government's drive to improve housing.
During the course of extensive scrutiny of the Bill, we have tried to pick up on many of the issues raised on that matter. One of the criticisms was that local authorities would not be able to take action to prevent houses falling into disrepair in future. We argue actually that local authorities will be able to take effective enforcement action where disrepair presents a risk to the health and safety of occupants. Of course, that will be a matter for local authority priorities. The housing health and safety rating system will become a useful evidence-based tool to tackle that range of problems.
From memory, it was the noble Baroness, Lady Hamwee, who raised the issue of consultation on this section of the Bill. An unfinalised draft of version 2 of the technical guidance has been published by the ODPM and was posted on its website towards the end of last year. Research on version 1 of this guidance identified some practical difficulties. The comments made have helped us in the development of version 2. We will continue to consult on this, as we have already consulted on the enforcement guidance earlier this year. We are still considering responses to that, and we will be providing guidance for landlords before implementation.
I remind the House why we are introducing licensing regimes. A vigorous and responsive private sector is an important part of developing sustainable communities, and it offers flexibility of tenure to a wide group of people, and a real and genuine alternative to owner-occupation and social renting. As my noble friend Lord Rooker said, the majority of private landlords in this sector are decent and responsible people. Licensing

129
is important because it enables us to target and to improve the private rental sector and better promote its image. Good landlords will benefit from this scheme. They will not be tarred with the same brush as the bad landlords.
The licensing of houses in multiple occupation is an important part of our approach, and it has been welcomed notably by the Liberal Democrat Benches. Licensing will enable us to concentrate on management problems and the poor physical stock condition of many houses in multiple occupation. I do not think that anyone would pretend that this is a sector that can he left. Our aim is to use licensing to tackle poor management, and to identify properties where poor physical conditions will be targeted under the rating system. As the noble Baroness, Lady Hamwee, said, definitions will he important, and questions of definitions will no doubt come up in debates on that part of the Bill.
The noble Baronesses, Lady Hamwee and Lady Maddock, raised questions as to the extension of the licensing scheme to cover student accommodation. That was based on some experience that the noble Baroness, Lady Maddock, had as a ward councillor. I recognise the issue, as it is one that affected residents in my city. Obviously, a range of measures can he used to tackle such problems, and the housing health and safety rating system, which will be used by local authorities, will be able to attack many of them. Licensing will tackle the worst problems, but in our estimation we need to get the balance right between protecting tenants and unnecessary overregulation.
I want to spend a little time on home information packs, because that was a large part of the debate this evening. We had welcomes from the noble Lord, Lord Borrie, and concerned criticism from the noble Earl, Lord Caithness, the noble Lords, Lord MacGregor and Lord Hanningfield, and the noble Baroness, Lady Hanham. I can best summarise their criticisms as saying that it would be better if we did not have this, but if we have to have it, it should be voluntary. The noble Earl, Lord Caithness, said that it was a good idea in principle, but perhaps not in practice. I understand the import of the questions that were asked. We have given a long time-frame for the introduction of this part of the legislation. I look forward to more extensive debates on the questions of detail that were properly raised this evening.
I recognise that there will be concerns about the practical implementation of the home information packs. I want to correct one profoundly wrong impression that was given in some comments this evening; that there is not support for this out there in the market and among consumers. Clearly, consumers welcome this. The trials that have been conducted, particularly in Bristol, showed that there is widespread and extensive support among consumers, and that people thought that it was a valuable and vital change to make.
130
As to the market itself, and those who are in the business of property transaction, there is support from the Halifax Building Society and from TEAM Conveyancing, one of the largest groupings of independent estate agency firms. We have also had support for the scheme from the director of Legal Marketing Services, Andrew Knee. He was supportive of the HIP proposals, and he looked forward to the opportunities they represent. He made the point that.
"we feel it is important that the industry receives further clarification regarding the timing and implementation of HIPs".
We all accept that, and we recognise that it is an important point.
Noble Lords questioned the cost and its impact. We do not accept those arguments. Some of the costs identified as being additional that have been criticised are actually costs that exist at the moment and will be defrayed by the implementation of the scheme.
It is important to look at the experience elsewhere. The Danish experience and that in New South Wales give us encouragement. In the end, the home information packs will be widely welcomed by consumers. The cost implications are likely to be neutral, and there will be a benefit to those who receive the packs in terms of the way in which transactions are conducted. The noble Lord, Lord MacGregor, made the point that market forces are important in this regard, and my guess is that they will dictate how costs will be met. I look forward to listening to more of the detailed comments that will come forward on this in Committee, because I recognise the importance of the issue.
The noble Baroness, Lady Young, raised the issue of water efficiency. I can, I think, reassure her and say that flood risk information is one of the items that will be considered for inclusion in the home information pack as part of the standard search agreements.
I shall move on to some of the other measures in the Bill, because they are important. There was extensive discussion of the changes we are intending to introduce to the right-to-buy provisions. We all recognise the important part that right-to-buy has played over the past two decades, and the Government remain totally committed to the principle of right to buy. This scheme has helped many thousands of ordinary families to realise their aspirations to own their own homes, and it has helped to create stable and mixed-tenure communities. The noble Lord, Lord Hanningfield, was concerned about the impact of the first range of changes that we made. I do not have that information here, but I am more than happy to write to him on that issue. We should move forward with the maximum knowledge and information about the impact of changes. The noble Baroness, Lady Maddock, supported the changes that we were making. My noble friend Lord Graham of Edmonton was also supportive, because of his concern about the impact of what he described as scams and abuses that needed to be tackled.
We are trying to mitigate some of the adverse impact of the way in which the current right-to-buy scheme works and its impact on the availability of affordable housing in some areas. It is for that reason that we wish to close off some of the exploitation of the current rules

131
to curb profiteering and tackle exploitation. My noble friend Lady Dean of Thornton-le-Fylde said that we should consider going further to curb some of the more adverse effects of right-to-buy. Of course, if it is right for us to make such changes, we will, but they must be targeted and proportionate. That, I think, is the plea that the noble Lord, Lord Hanningfield, made.
Some concern was expressed about the grants by housing corporations to non-registered social landlords. It is an important part of the Bill. Demand for affordable housing is outstripping supply, causing prices to rise, and we want to use grants to ensure that we increase the provision of affordable housing. In the past, the noble Lord, Lord Rooker, has given detailed information on that. No doubt, we will have to look at it more closely in order to assure colleagues and those who are concerned about the impact of those provisions, as mentioned by the noble Lord, Lord Best, and the noble Baroness, Lady Maddock.
We want to ensure that we have value for money. The new approach is designed to ensure that more affordable housing is made available to those who need it while securing maximum value for money for our housing programme. We will work closely with the Housing Corporation to ensure that appropriate checks and balances are included in the appraisal procedure so that the respective merits or bids for grants from registered social landlords and their new private sector competitors can be accurately assessed by the Housing Corporation. That will consider not only the upfront costs of each bid but also the long-term sustainability of the products on offer.
A number of noble Lords referred to park homes. We should congratulate my noble friend Lord Rowlands on his part in keeping that issue at the forefront of people's thinking, as well as the noble Baroness, Lady Maddock, for her long campaigning on that issue. Your Lordships will be aware that the measures in the Bill are designed to afford protection, which is the overall thrust of what we are trying to achieve. Quite rightly, a question was asked about houseboat owners. I can give an assurance that those who occupy houseboats will be covered and will have an equivalent protection. I hope that that satisfies that particular concern, which was raised by a number of noble Lords.
The issue of overcrowding was raised by the noble Baroness, Lady Dean. We have included a provision that would allow Ministers to repeal existing standards and to empower, but not require, Ministers to set out overcrowding standards by secondary legislation. I can give an assurance that the Government will provide sufficient time and flexibility to consult widely and to consider carefully the way in which any changes to the standards should be made. We intend to use the consultation period to invite views on the role of national standards and the extent to which local authorities should have discretion to set their own local standards. We expect that consultation to take place during the summer.
132
We gave an assurance that we would bring forward measures on tenancy deposit protection. The precise detail of that package is being worked out at present. Our intention is to legislate for the approval of schemes that will safeguard tenancy deposits. I am grateful for the support that we have had for that measure from the noble Baroness, Lady Maddock, and the noble Lord, Lord Best, who rightly described the exploitation that takes place in some areas and, in particular, his experience based in Brent.
We attracted some criticism from the noble Lord, Lord Hanningfield, for our empty homes strategy. In his opening remarks, he suggested that we were setting about dealing with the problem in a completely wrongheaded way and that our measures would not be very effective. We have to start somewhere. We think that we are right to bring forward a scheme, which will be based, I have little doubt, on the best practice that many local authorities have already established in that sector. The noble Lord probably knows more about that than I do. Certainly, the leaseback schemes that I was familiar with as the leader of a local authority in the early 1990s were very effective. Of course, we will consult very carefully on that.
Our intention is that local authorities will be able to make management orders on empty homes that are similar to provisions already set out in Part 4. We intend to make modifications to the Bill. Of course, we will table amendments in due course. That will provide us with the opportunity to have discussions in Committee. No doubt, we shall want to explore some of those issues in some detail with the Local Government Association and those interested in housing issues in particular.
Before I sit down, I should like to turn to accessible housing and the plea made quite rightly by my noble friend Lady Wilkins and the noble Lord, Lord Rix, for careful measures in that field. We recognise the importance of that range of issues. The plea for equality of access was one which I am sure all members of your Lordships' House would wish to share. I look forward to the debate when amendments will be tabled for us to consider. The noble Baroness, Lady Wilkins, argued perfectly properly for an opportunity for this measure to be given fair consideration.
We do not at present favour the creation of a registration scheme because it will place a disproportionate burden on local authorities. Some local authorities already exercise such a register to deal with the range of subjects which the noble Baroness outlined in her comments.
In introducing this debate, the noble Lord, Lord Rooker, set out how the Government are delivering their sustainable communities' programme and the important part that housing plays in that. We have backed that with considerable additional resources and have put increased resources into all areas of housing, not least rural housing, which was raised by a number of noble Lords this evening, in particular by the noble Baroness, Lady Miller. We have trebled the amount of money that we put into that sector. We intend to continue to invest in rural

133
housing and ensure that we provide housing through the social landlord route.
We are now tackling low demand and transforming failing housing markets through nine Pathfinder projects backed with £500 million worth of market renewal funding. We are accelerating our new building programme where it is most needed. We are developing four growth areas in London and the wider south-east, which have the potential to deliver an extra 200,000 homes and over 300,000 jobs over the next 10 to 15 years. These are significant measures. This Bill will complement those measures.
134
We have had an extensive debate on what is a very wide-ranging Bill, and I certainly understand and acknowledge the important points raised. I hope that in Committee and during the other stages we can begin to explore those issues in greater depth and detail than we have had the opportunity to do from the Government Benches this evening. I commend the Bill to the House.
On Question, Bill read a second time.
House adjourned at seven minutes before eleven o'clock.

Official Report of the Grand Committee on the Employment Relations Bill
(First Day)
Monday, 7 June 2004.
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. Therefore, unless an amendment is likely to be agreed to, it should be withdrawn. If there is a Division in the Chamber while we are sitting, and I understand that that is likely to be the case, the Committee will adjourn as soon as the Division Bells are rung and resume exactly 10 minutes later.
Title postponed.
Clauses 1 and 2 agreed to.
Clause 3 [Duty of employer to supply information to union]:
Baroness Miller of Hendonmoved Amendment No. 1:
Page 2, line 44, at end insert "and in the light of data supplied by the union in its application to the CAC which data must also be simultaneously transmitted to the employer"
The noble Baroness said: In speaking to Amendment No. 1, I shall speak also to Amendments Nos. 2, 9, 10, 32, 33 and 36. Amendment No. 1 is purely technical. It would facilitate the recognition process and enable the employer to comply with its obligations under the Act. Clause 3(2) requires the employer to supply the Central Arbitration Committee in a very short time—five working days—with details of the number of employees in various categories in various workplaces. However, some of those data will also have been supplied to the CAC by the union. The amendment would simply ensure that the data supplied by both sides matched.
The data supplied by the union to the CAC in support of its claim for recognition and the definition of a bargaining unit are not confidential. The union should be prepared to see that it and the employer are both talking about the same thing. The amendment would ensure that there was no delay while a possible dispute about the catchment area of the claim was resolved.
Amendments Nos. 2, 9, 10, 32, 33 and 36 all relate to the same issue—namely, information that might be required by the CAC which might be regarded as
GC 2
confidential either by the employer or, as is possibly more likely, by the employee or employees whose personal details the union is seeking to acquire.
Amendments Nos. 2, 9 and 33 are in identical terms. They would entitle the employer to withhold any information from the CAC—and, hence, from the union seeking recognition—which either the employer deemed to be commercially confidential or which might affect the security of the company or its employees. It is, I agree, less theoretically possible that information required in the course of the recognition procedures will be significantly commercially confidential. Nevertheless, that possibility exists. It is rather difficult to come up with an example because, like an elephant, it is impossible to describe, but you certainly recognise one when it comes in front of you.
Every business is different and has different concerns and different interests. In the case of one business, the number of employees that it has or their locations in the different branches of the concern are matters that the employer, for sound reasons—I stress, for sound reasons—may wish to keep secret from his competitors. If there is a valid reason for doing so, there is no reason why the employer should be forced to disclose the information for the furtherance of the union's recognition campaign. I cannot accept that the matter would be covered by some implied duty of confidentiality on the part of the union.
I certainly do not seek to impugn the integrity of any union in any way whatever. But, of course, unions, like everything else, are staffed by ordinary, fallible human beings, and an indiscreet piece of gossip, with no malicious intent at all, could do the damage that the employer was seeking to avoid with no adequate redress. However, of more serious concern is the situation of the employee whose details the union wants to obtain in order to contact him or her.
In Standing Committee in the other place my honourable friend the Member for Huntingdon drew attention to the plight of some of his constituents who were employed by Huntingdon Life Sciences and who were subject to campaigns of vilification, intimidation and attacks on their homes and property, such as their cars, and physical assault by gangs of what one could only describe from their behaviour as a kind of terrorism. Not only that, but in one instance their families were similarly intimidated as well as the suppliers of goods and services to the company.
Members of the Committee will recall the campaign against the export of live cattle and sheep—a perfectly legitimate, even reasonable, campaign, but carried to excess by the intimidation of individuals. One can envisage similar forms of violent protest against individuals in support of other campaigns exceeding the normal rights of free speech and the legitimate rights and forms of protest. I shall certainly not catalogue them here, for fear of putting ideas into some heads, but, doubtless, your Lordships could compile your own lists. But that sort of personal violence in support of one cause or another is nothing new, especially when the protagonists feel that they are driven to desperation.

GC 3
I should like to draw Members' attention to the fact that the companies registry now permits companies in cases that the registrar accepts as appropriate to withhold the personal details of directors or shareholders from the public register. That provision was expressly established with the case of Huntingdon Life Sciences in mind. However, the point is that if the shareholders and directors in any appropriate case are allowed to keep their personal details secret, why should the workers not be allowed the same right and privilege? I would have thought that that was the sentiment with which the unions would have agreed and accepted without hesitation.
The Minister in the other place did not dispute the point made by my honourable friends in support of a similar amendment to this. However, the honourable Member for Gordon, went on to say,
"if the honourable gentlemen have a legitimate concern, the amendment needs to be more tightly drafted".—[Official Report, Commons Standing Committee D, 3/3/04; col. 21.]
Well, my honourable friends and I—and, indeed some employers in sensitive fields—do have a legitimate concern and the Minister will, I am sure, be pleased to note that the amendment has been more tightly drafted to overcome the objection regarding who should decide whether the information is, in fact, commercially confidential or whether workers' security is at risk.
The answer to that is to be found in the second sub-paragraph of each of the three amendments. The Central Arbitration Committee itself will decide whether the case for an exception has been made out and the onus of proof will be on the employer to make that case to the satisfaction of the CAC.
Amendments Nos. 10 and 32 relate to the right to privacy, which is now part of the law of the land, relating to employees. The first of those amendments requires the consent of the individual employees before their addresses are disclosed to the union. Undoubtedly, obtaining that consent may hold up the recognition process a little, but there is no case that I can envisage where there would be some dire urgency in the recognition procedure. The delay would probably be minimal—for example, a simple note in the pay packet for those employees who still get them, or a notice in the factory to the effect that, "The union wants your address and we will be required by law to give it to them unless you tell the management that you object". In other words, silence will imply consent. Bearing in mind that the direct marketing industry, of which I used to be a member, has a "mail preference scheme" that enables individuals to opt out of receiving mail order offers, it is only right that workers should be able to protect their privacy in exactly the same way.
Amendment No. 32 defines "address". This is necessary as a result of modern means of communication. I propose that e-mail addresses should be excluded, because Members of both Houses have expressed concerns about unwanted e-mails or "spams". I also exclude mobile telephone numbers
GC 4
because that is another means of sending circular communications to people—in this case, ones that might arrive with a loud, audible signal at an inopportune time. I have not sought to exclude telephone canvassing, because that is regarded as a legitimate form of communication in elections these days, and it is obviously up to the employee to make his telephone number ex-directory if that is what he wishes.
Amendment No. 36 is similar to, but slightly different from, Amendments Nos. 2, 9 and 32. Those amendments relate to the withholding of commercially confidential information or information which might have an adverse effect on the security of the employer or any worker. Amendment No. 36 relates to a slightly different category of information—that which might damage the interests of the employer, the business or its workers.
There is no purpose in my burdening Members of the Committee with a series of hypothetical examples. The addresses of employees, while not necessarily affecting security and the nature of who does what work in a company and where, and while not necessarily commercially confidential, might need to be withheld to prevent, for example, the poaching of workers or harassment. The detail is unimportant at the moment. The amendment simply plugs a theoretical gap in the other three amendments.
None of the amendments in this group seeks in any way to wreck or nullify the recognition procedure. They are simply intended to provide an even-handed regime, whereby a union's right to campaign for recognition—from which we do not, even for one moment, dissent—is balanced against the legitimate rights of the employers and individual employees. Those are the rights to protect the employer's legitimate, commercially confidential interests, the security of the employee and the entitlement of the employee to privacy under the European Convention on Human Rights. I beg to move.
Baroness Turner of Camden: I hope that the Minister will not feel tempted to accept this amendment. The noble Baroness herself said that "commercially confidential" probably did not apply to all the information contained in sub-paragraph 2. The amendment's wording gives the employer the absolute right to withhold any such information.
It seems to me that the way in which these amendments are phrased gives an employer the opportunity to delay the recognition procedures. It is a loophole in the procedures which I do not think is a very good idea. The noble Baroness says that she is not against unions campaigning, and I am glad that she is not. However, it seems to me that if this proposal is accepted, it will have an inhibiting effect on campaigning by the unions. I am therefore not in favour of accepting this wording.
Lord Triesman: As the noble Baroness, Lady Miller, has explained, these amendments all relate to a concern about requirements in a number of the Bill's

GC 5
clauses for the disclosure of information, a matter which the Government, like the noble Baroness, take very seriously.
Clauses 3, 5, 15 and 18 all require the disclosure of information. The purpose of every one of them is not to allow unions privileged access to otherwise secret information. Their purpose is to ensure the sharing of information to enable better informed decision-making by the parties, the CAC and the workers. I am sure that Members of the Committee will agree that sharing information can help lead to agreement and to sensible bargaining positions, which can only be beneficial, in order to ensure that there is a smooth procedure and a positive dialogue between the parties. Conflict so often seems to result from the fact that people have not shared information adequately; they have misapprehensions and misunderstandings about each other's position and drift—sometimes by accident—into dispute.
3.45 p.m.
A number of general principles have underpinned the Government's thinking in constructing these provisions. First, in accordance with data protection rules, under none of the affected clauses would the identity or home addresses of individuals be disclosed to the union. Clause 18 additionally ensures that evidence supplied by the union containing the names of individual union members is not disclosed to the employer.
Clauses 5 and 15 are therefore constructed so that the names and addresses of workers are provided only to the CAC, which passes them to an appointed independent person. The independent person will send out communications on the union's behalf. The union will not, therefore, gain direct access to the workers or their details under these provisions. Those details will be safeguarded by an independent and respected organisation in accordance with the data protection legislation.
We have provided for direct disclosure to the union in Clause 3. The information to be disclosed is general information about numbers of workers, their categories and locations and nothing else. The Government do not believe that such information is ever likely to threaten either the commercial interests of the employer or the security of the business or of its workforce.
Furthermore, a number of the noble Baroness's amendments seek to introduce a procedure whereby the employers may apply to the CAC to withhold sensitive information. As I have said, the Government do not believe that the information required is likely to be sensitive in that sense. Putting in place an additional procedure and decision point for the CAC would therefore be unnecessary and simply create greater scope for mischievous employers to seek to delay the process.
Therefore, I can understand and sympathise with the spirit in which these amendments were tabled, but I do not believe that they are necessary. The
GC 6
Government have already taken steps to ensure that privileged or sensitive information is not placed in the public domain.
What I have said applies to all the amendments in this group. With the Committee's permission, however, I shall touch on some key aspects of individual amendments, which I think are most important in the general case for transparency.
Amendment No. 1 concerns the duty on the employer, which is introduced in Clause 3, to provide basic information to the union about the characteristics of the workforce in the union's proposed bargaining unit. The amendment seems to deal with the practical difficulties which the employer may possibly encounter when fulfilling this duty.
The duty introduced by Clause 3 applies only after the union's application to the CAC has been accepted as admissible by the CAC. A great deal of water will have flowed under the bridge before we reach that point. The union must have made a direct request to the employer for recognition, which might have been followed by a period of ACAS conciliation. Some dialogue between the union and the employer will have taken place in many cases, as well as written communication.
Only if that process fails to resolve the issue is the union entitled to make a formal application to the CAC for recognition. I should add that, under paragraph 34 of the statutory procedure, the union is already obliged to send the application to the employer as well. So, the second part of the noble Baroness's amendment which refers to this process is not needed because it is already there.
The CAC process of assessing the admissibility of a union's application involves various steps, and often includes an oral hearing and checks of union membership. The employer and the union frequently assemble and present additional information for the CAC to enable it to make this key decision. The process often teases out any definitional issues about the union's proposed bargaining unit. Greater clarity is achieved as a consequence of going through the process.
All that shows that the employer will normally have all the information that he needs to meet the duty imposed by Clause 3 by the time a union's application reaches this point in the procedure. I do not think it could be said that it would create an extra burden on employers. They are not suddenly confronted with the matter for the first time and they are usually very well versed in the case at that stage. In addition, the clause already provides safeguards for the employer in so far as the information he provides must be as accurate,
"as is reasonably practicable in the light of the information in … [his] possession".
The amendment seeks to place a further limitation on the accuracy of the information that the employer must supply by referring back to the union's original application to the CAC. It is hard to see the practical advantage of doing that. The only piece of information in the application that is relevant to the employer's

GC 7
duty is the definition of the proposed bargaining unit. It could be that the noble Baroness is concerned about the clarity of the union's proposed bargaining unit.
[The Sitting was suspended for a Division in the House from 3.50 to 4 p.m.]
Lord Triesman: With permission, I shall start one sentence further back on the brief and I hope that the Committee will not feel that I am just reading a carbon copy and have made a mistake.
I made the point earlier that if there were any doubt about the issues that were involved, it should have been explored in detail by the parties and the CAC before the admissibility decision was taken. The CAC would already have taken a view on the definition of the proposed bargaining unit. The obligation on the employer is therefore to provide the data relating to the unit so defined.
I turn now to Amendment No. 2, which would also amend Clause 3. As your Lordships will no doubt be aware, a similar amendment was tabled by the Opposition in the other place, as the noble Baroness said. She made the point, with which I completely agree, that this is technically a more proficient version of the amendment, indicating where responsibility for deciding the issue and the burden of proof should lie.
In the other place there was a lengthy discussion of the case of Huntingdon Life Sciences where, regrettably, the workforce has been subject to the worst sorts of threats and abuse from militant animal rights activists and great public disquiet was caused as a result. If I might echo sentiments expressed during that debate, I suggest to your Lordships that the information which must be shared with the union would not, if it were to fall into the wrong hands, help similar groups to take this sort of action against employees. The information will not contain the names or home addresses of any workers. Moreover, the union will have just as strong an interest as the employer in ensuring that the security of its members is not put at risk.
Having represented people working in life sciences and in some of the most controversial areas such as primate research in the university world, I know from personal experience that we went to the greatest possible lengths to protect members in that union context. Indeed, we held regular discussions with the Home Office and others to ensure that the members were protected. We would most certainly never, casually or in any other way, have placed any of our members at risk in any sense. I am afraid that knowledge about the whereabouts of people involved in this research arises elsewhere.
In practice, during negotiations over the bargaining unit this information is usually revealed by the employer in any case. The purpose of Clause 3 is merely to ensure that information is shared in a more systematic way and at the earliest possible moment.
I turn now to Amendment No. 32. This goes to the heart of Clause 15 and the new paragraph 166A it would insert into the statutory procedure. Its effect is
GC 8
more or less to wreck the clause and to ensure that the Secretary of State would not be in a position to use the power contained in new paragraph 166A.
The purpose of the power is in the future to enable QIPs to send union material to workers in the balloting unit by non-postal means. The amendment would make that impossible because it restricts the information which the employer must supply to the CAC—and thereby the QIP—to data which is relevant to postal communication only.
Clause 15 looks to the future. Its purpose is to enable communication to take place using new technologies. The clause gives a power to the Secretary of State to amend the duty of the employer so that he must provide a different sort of address to the CAC in addition to the worker's home address. This will enable the QIP to send communications by new means; for example, by e-mail.
New technologies are developing rapidly. We have seen the rise in the use of mobile phones, text messaging and even video phones. That is why it makes sense to take a power now to provide for e-enabled communications in the future at a time when such communications will be accessible to all and will have proved their suitability for this sensitive purpose. This will allow us to give careful consideration to the appropriateness for this purpose of new technologies as they develop.
We recognise that employers might have some concerns about disclosure of e-mail addresses to the CAC. In deciding when and how to exercise that power, the Government will have regard to those concerns. For example, we recognise that, as a matter of course, employers do not currently hold workers' personal e-mail addresses; indeed, it may be unusual for employers to hold them at all. However, the situation is changing and that is why we are taking the power to be exercised only when we are satisfied that the duty to supply e-mail or other addresses will not place an undue burden on employers.
It is as well to be cautious about such matters. I would not have predicted the extent to which new technologies are now in use had I been asked questions on the subject 10 or 15 years ago. However, because of the rapid development of technologies, we have all learned how quickly new technologies become commonplace in our working lives. Rather than being backward-looking, I hope that the explanation that I have given, although cautious, shows that we are trying to be forward-looking in a way that I believe we can all live with.
I apologise for replying at length, but the noble Baroness has rightly been concerned with the necessity to protect the parties and the workers from disclosure of sensitive information without their consent. I hope that I have reassured her that the Government have given careful consideration to the matter. We have taken every care to ensure that no genuinely sensitive information must be disclosed by one party to the other. Where such information must be disclosed, it must be disclosed only to trusted independent bodies

GC 9
in accordance with data protection rules. In that light, I respectfully ask the noble Baroness to withdraw her amendment.
Lord McCarthy: I support the Government's projection of the amendment. There appear to be three good reasons, some of which have been mentioned. First, the noble Baroness said that she did not want to use imaginative hypotheses, but she did. There is no concrete case of the kind of thing of which she complained happening in the existing procedure. The two parties in the procedure, the people on the CAC, and the unions and the employers using the CAC have never said that. There is no sign that those, on either side, who operate the existing procedure want such a provision or that they believe that it would help.
Secondly, there are remedies. As the Minister said, if there are problems of this kind, additional remedies arc being put on to the face of the Bill to deal with them. Clauses 9,11 and 16, which concern unfair practices, are designed to deal with any significant coercion, and they do that.
Thirdly, many of us have said for a long time—even before we had this procedure—that it is very good but it is very long and very complicated. In fact, the procedure for recognition is 80 pages long. We do not need a longer procedure; we need a shorter one.
Baroness Miller of Hendon: I am sure that the Minister is delighted to have support from the knowledgeable noble Lord, Lord McCarthy. I want to make a few short comments but, first, I thank the Minister for his explanation as to why the Government will reject the amendment. I do not want the Minister to think that I am completely stupid, but I do not understand what is meant by "QIP". I understand the IP, but what is the QIP?
Lord Triesman: It is the qualified independent person.
Baroness Miller of Hendon: I shall read extremely carefully what the Minister has said. While he was speaking, he sounded very sensible, but when I moved my amendment, I thought that that sounded sensible too. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Clause 3 agreed to.
Clause 4 [Determination of appropriate bargaining unit]:
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 3:
Page 4, line 5, after "be" insert "the most"
The noble Baroness said: In moving Amendment No. 3, I shall speak also to Amendments Nos. 4 and 5. This very small group of amendments gives effect to serious concerns expressed by the CBI and others that, as drafted, the Bill needs to establish a well balanced procedure for determining the appropriate bargaining unit.
As the Bill stands, the CAC is rightly required to take into account,
"the need for the unit to be compatible with effective management".
However, this does not go far enough. It is possible to demonstrate that any size of unit, geographically situated within an enterprise, fits into the very broad description of being compatible with effective management. The CAC should be seeking out not the unit which is merely compatible with effective management but the unit which is the most compatible in the circumstances of the particular enterprise. That is the purpose of Amendment No. 3. It would have the effect of preventing manipulation by a union to establish a fragmented bargaining unit on the basis of where it has strong support within an enterprise.
The amendment would ensure that the bargaining unit was indeed more suited to the needs of effective management instead of possibly one unit in the country being under one regime and another elsewhere being under another. That would be the antithesis of effective management. Amendment No. 3 would ensure that the CAC factored the degree of effectiveness and the size, nature and geographic situation of the proposed unit into its calculations.
Amendment No. 4 would take into account another omission from the proposed new clause. New paragraph 19B(3)(a) rightly instructs the CAC to take into account,
"the views of the employer and of the union (or unions)".
However, there is no indication of the weight, or even the relative weight, that the CAC should attach to each of the opinions.
The CAC will be acting not merely in a supervisory or facilitating capacity in recognition proceedings; in the case of some of its decisions—the nature of the bargaining unit, for example—it will also be acting in a quasi-judicial capacity. While it will have to make a decision one way or another on any of the issues that it has to decide, and probably one or either side, or even both sides, may be unhappy with part of the verdict, it is essential that it should give equal weight to the views of both.
There cannot be a presumption in favour of the unions any more than there can be a presumption in support of the status quo, which the employer may very well prefer. Each case must be decided on its own merits, based on its own individual facts, with no preconceptions or presumptions either way. The onus of satisfying the CAC must be shared equally by both parties.
Amendment No. 5 seeks to remove the entirely superfluous word "small" from new paragraph 19B(3)(c), which at present talks about the desirability of avoiding "small fragmented bargaining units". Not all fragmented bargaining units are small; the size of the unit should be irrelevant. The bargaining unit should be a reasonable one, consistent with what the Government call,
"the need for the unit to be compatible with effective management".
To sum up the reasoning behind these three very moderate, and I believe constructive, amendments, perhaps I may quote the Government's own words setting out the criteria to be applied over the constitution of a bargaining unit. In the White Paper Fairness at Work, the Government said:
"Where there is disagreement over the bargaining unit proposed by the union, the CAC will apply criteria, including the need for effective management, existing bargaining arrangements and the desirability of avoiding fragmented units within an undertaking".
The Government refer to "fragmented units" and not "small fragmented units". The White Paper continued:
"Employers must and will be free to organise their business in the way they choose".
I could not have expressed that concept any better myself. It is to give effect, as it were, to the Government's own stated objectives in the White Paper and their criteria that I have proposed these amendments. I beg to move.
4.15 p.m.
Lord McCarthy: The problem with these amendments is that they do not take into account the fact that in a recognition claim of a kind which gets to the CAC, there is disagreement—probably very sharp disagreement between the parties, otherwise it would not get to the CAC. The employer is resisting organisation. One factor used by the employer in such resistance is the definition of the bargaining unit. An employer who is resisting organisation, particularly compulsory organisation, through the legislation is bound to look for a bargaining unit concept which would minimise the number of workers who will vote for recognition. He is bound to want a bigger representation, so that more people who are unlikely to vote for recognition will be in the bargaining unit. There is nothing wrong with that; that is what industrial relations are about.
Conversely, the union will be concerned to try to structure the bargaining unit in such a way that when the vote is taken—if the vote is necessary; they might hope they may get 50 per cent and not have a vote—it will get its 50 per cent. You cannot just dream all this away. This is what the parties will be seeking to argue. For example, when people restructure a constituency, the Conservative Party wants it to look like this and the Labour Party wants it to look like that because its party will get more votes. These are the facts of life.
The Bill is trying to steer a way through the middle, not weighing too much on one side or too much on the other. I think it has done that very fairly. If you change the provision in the ways that are suggested, each change would strengthen the position of the employer's side. If it was not just an "effective" bargaining unit, but the "most effective" bargaining unit, you would never achieve it. Anything defined could be challenged and the employer could say, "Well, I know a way it could be more effective than that".
Similarly, on fragmentation, if every bargaining unit could be said to be potentially fragmented, there would be endless arguments about fragmentation. But
GC 12
we have a fairly good balance in this legislation. It is no good one side coming along and trying to put special words in which could in general strengthen it in the debates before recognition. It is not a simple thing like that. It has to be a balance; and the balance is in the Bill.
Lord Campbell of Alloway: I apologise for having been extremely late and not being able to attend to the affairs of this very important Bill because of other commitments. I totally agree with what the noble Lord has just said, but he does not seem to understand that there is always disagreement in any dispute. In the courts there is disagreement in any dispute. Of course one side in this dispute wants a smaller bargaining unit and the other side wants to have, putting it simply, a larger representation on the bargaining unit.
Are we concerned to adjudicate at this stage on the strength or weakness of either case? Is it not a fundamental principle of justice that as soon as the dispute arises both sides exchange the essence of their cases? That is the principle of justice, so that both sides know what they have to meet.
As regards fair provision, surely the amendment secures fair provision within that fundamental concept. I may be speaking from the wrong side of the Committee, as I have only just arrived, but that does not really matter. I sympathise in many respects with the aspirations of the trades unions. In this regard, on a fair disposition the amendment is wholly appropriate.
Lord Triesman: Amendments Nos. 3, 4 and 5 all deal with the process and criteria for the CAC's determination of the appropriate bargaining unit. I shall therefore speak to all three together, as did the noble Baroness, Lady Miller.
I make a preliminary observation. In different ways the noble Lords, Lord McCarthy and Lord Campbell of Alloway, made similar points. This is an area in which there will be disagreements and disputes. The issue is how to deal with those in a way that is fair and even-handed on the basis of the exchange of the best possible information.
As regards Amendment No. 3, the Government are well aware of the concerns of employers about the statutory criteria according to which the CAC must determine the bargaining unit in those cases where the parties are unable to agree a bargaining unit between themselves. Amendment No. 3 seeks to change those criteria so that the CAC must choose a bargaining unit which is not just compatible with effective management, but the most compatible with effective management. The Government cannot support that view. Currently, in those cases where the CAC must decide the bargaining unit, it first considers whether the bargaining unit proposed by the union is appropriate. That is right and proper. It is the union that initiates the process. It brings forward the idea of bargaining rights that it wishes to have recognised for certain groups of people. Inevitably, its proposal should be considered first.

GC 13
The CAC measures the union's proposed bargaining unit against the statutory criteria, the most important of which is the need for bargaining units to be compatible with effective management.
The CAC will seek to ensure that the views of the employer on the appropriateness of the union's proposed unit are considered very seriously. The employer is, of course, permitted to argue that the union's proposal is inappropriate for some reason; for example, because it is incompatible with effective management. To illustrate its points, the employer can refer to other bargaining units that avoid the problems it may see in the union's suggestion.
If the CAC finds that the union's proposed bargaining unit is not appropriate, the CAC formally considers alternatives, including any which may be proposed by the employer. It is not the case that the view of the CAC always flows in one direction. So far the data show that in a third of the CAC's decisions on the appropriate bargaining unit it has decided against the union's proposed bargaining unit as not being appropriate and has therefore provided an alternative proposal.
The CAC's procedure was the subject of judicial review in the case of Kwik Fit. I do not know whether one should declare an interest if Kwik Fit has ever supplied one with tyres, but in case that is necessary, it has done so in my case. Therefore, I declare at least that much interest. The Court of Appeal found that the CAC had correctly interpreted the schedule. The Government are in agreement with that view. The Kwik Fit case did demonstrate, however, that there was some confusion about the procedure to be followed by the CAC in setting the bargaining unit. Clauses 1 and 4 of this Bill therefore seek to clarify this procedure, as the noble Lord, Lord McCarthy, just said, in particular the role that the employer's evidence is to have in the CAC's deliberations. We want to ensure that all the parties are clear about the procedure the CAC will follow and how their evidence will be treated.
However, we do not believe that there is a case for changing the criteria for an appropriate bargaining unit or the way these are applied by the CAC. Getting the criteria for the bargaining unit decision right was a crucial part of the settlement at the time of the 1999 Act. The 1999 Act struck a balance between the interests that were expressed at that time by the CBI and other employers' organisations and the TUC—a balance, at least certainly in the view of the CAC and others, that was held to be a strong and critical basis for the settlement that has been achieved. To require the CAC to choose from the alternative bargaining units placed before it the one most compatible with effective management would constitute a significant change to that balance. Candidly, I am not sure how it would ever arrive at a decision as people argued about them.
In one third of cases where the bargain unit has had to be decided, the CAC has chosen the employer's or some other unit, rather than the union's. So while the union's proposed bargaining unit has been judged to
GC 14
be compatible with the statutory criteria in a majority of cases, in a substantial minority of cases it has varied or taken a different view about the bargaining unit to be chosen. I think this demonstrates how the process creates a good balance.
The amendment before us may go further than that, however. It implies that the CAC must choose the bargaining unit which is most compatible not just from those which are presented by the parties, but from all possible bargaining units. I would be loath to land the CAC with what I suspect would be an impossible and time-consuming task. It would have to satisfy itself that the bargaining unit could not be improved on even at the margins if this or that worker were added to or taken away from the bargaining unit. The permutations involved would be innumerable.
There is no one way of managing a business effectively. Anyone who has managed one will know that—I know that the noble Baroness, Lady Miller, has. There is no single model for what constitutes an appropriate bargaining unit. Collective bargaining can be effective in the context of bargaining units of all shapes and sizes as the range of collective bargaining arrangements which exist all over the United Kingdom will testify. The Government are of the view that the statutory criteria are working well and strike the right balance and that it is not appropriate to make a change.
Amendment No. 4 touches on matters similar to those we have discussed in Amendment No. 3. It would seem to reflect a concern that an employer's bargaining unit should be considered alongside that proposed by the union—a point made again by the noble Lord, Lord Campbell of Alloway—and that they should be given equal consideration. For the reasons I have outlined, the Government do not believe that would be appropriate.
However, that is not the effect of Amendment No. 4. The amendment would alter the criteria against which the CAC must test the union's proposed unit. It does not alter the fact that the union's proposed bargaining unit is accorded priority, in the sense that it was the first proposal, under the schedule. Furthermore, it amends those criteria in a way I have argued would be unnecessary.
Paragraph 19B(3) lists the matters, in addition to the need to ensure that bargaining units are compatible with effective management, which the CAC must take into account in deciding whether a bargaining unit is appropriate. The first of these is the view of the employer and of the union or unions. Amendment No. 4 would add that the views of each party should be given equal consideration.
I believe that this is an unnecessary addition as it is already clear in new paragraph 19B(3)(a) that the views of the employer and the views of the union are to be given equal consideration by the CAC. The Government are not aware of any suggestion that the CAC has failed to take properly into account an employer's views when considering whether any given bargaining unit is appropriate. Of course, the CAC

GC 15
may be more persuaded by the views expressed by one party, but that does not mean that it has not given each party's views due consideration.
The Government acknowledge that employers may be uncertain of the role of their evidence in the CAC's deliberations. That is why new paragraph 19B(4) seeks to clarify that when considering the appropriateness of any given bargaining unit, the views of the employer, which must be taken into account by the CAC, include any alternative which the employer thinks appropriate.
I turn finally to Amendment No. 5. The statutory criteria in the schedule for assessing bargaining units currently oblige the CAC to have regard to the desirability of avoiding small fragmented bargaining units within an undertaking. The new paragraph 19B of the schedule, inserted by Clause 4, repeats that obligation with no change in the wording. This amendment seeks to change that criterion so that fragmented bargaining units within an undertaking must be avoided, rather than small and fragmented units.
The intention behind the "small fragmented bargaining units" criterion was to avoid the proliferation of small bargaining units within a single firm. This could lead to complicated and costly bargaining arrangements.
However, it was recognised that there would always be specialist groups for whom a small bargaining unit was appropriate. Some of us will have seen them in professional life where a professional group has particular professional requirements. However, there is a group whose level of technical expertise and involvement puts it in a quite different marketplace for bargaining purposes from the generality of the people within the firm in which that group works.
Insisting that there must be a single bargaining unit covering all workers in a given undertaking would prevent the establishment of sensible bargaining arrangements which reflected the natural differentiation between groups of workers of the kind that I have just instanced. Certain categories of worker may have quite separate interests and may be represented by different unions from those that represent the majority of the workforce.
The criterion that small and fragmented bargaining units within an undertaking should be avoided allows the CAC to take into account the natural differentiation between groups of workers. At the same time, it respects the need to offset that against the inefficiencies of a single employer having to put in place excessively convoluted bargaining structures.
The Government are of the view that to delete the word "small" from this criterion would compromise the provisions of the law securing that bargaining arrangements can respect the differentiation. The amendment would restrict the ability of the statutory procedure to put in place arrangements which reflect the real world of industrial relations.
GC 16
The Government are not persuaded of the need for any of the changes to the statutory criteria for the appropriate bargaining unit or the CAC's procedure in applying them. I therefore respectfully ask the noble Baroness to consider withdrawing her amendment.
4.30 p.m.
Lord Campbell of Alloway: Before the noble Baroness speaks, would it be convenient if I responded briefly to the noble Lord? He has approached this matter objectively from his point of view and he speaks with a wealth of practical experience. Speaking for myself and obviously not for my party—I never have that privilege—I take on board what the noble Lord said about Amendments Nos. 3, 4 and 5. They are, frankly, of minimal consequence.
Amendment No. 2 is a slight worry because, first—
The Deputy Chairman of Committees: We have already dealt with Amendment No. 2.
Lord Campbell of Alloway: All right, I shall not speak to it. I thought that it was included in this group, but I can leave that matter alone. That makes it far simpler because my own request—it is a respectful request—is that the Government should consider the very important principle contained within Amendment No. 1—a principle which has arisen and to which I have already spoken. Inevitably, that amendment, even if not retabled by my party, would be retabled by me. It is a matter of fundamental principle and I ask that reconsideration be given to it.
Baroness Miller of Hendon: Perhaps I may return to Amendments Nos. 3, 4 and 5. I listened carefully to what the Minister and, indeed, what my noble friend and the noble Lord, Lord McCarthy, said regarding Amendment No. 3, in particular. I can foresee that it might be difficult to decide what was most effective rather than ineffective, and I shall read very carefully what the noble Lord said.
With regard to Amendment No. 4, I think that the Minister said that it is already stated in the Bill in the various places that he quoted that the opinions of both the union and the employer should be given equal consideration. I shall certainly look that up carefully. If that is so—one has to go and look for it—I would say to the Minister that it does not make any difference. My amendment provides a belt and braces approach and there should be no real objection to it.
However, I have a difficulty in understanding why the Minister does not like Amendment No. 5. The White Paper, Fairness at Work, which went out for consultation, talked about the desirability of avoiding fragmented units; it did not talk about avoiding "small" fragmented units. Unless I misunderstood, the Minister said that sometimes it was important that the unit was small. The Bill talks about avoiding that kind of unit. I was simply attempting to delete the word "small" because, as I said when I moved the amendment, I thought that the size was irrelevant and the word "small" could be important. That is why I tabled an amendment to that effect.

GC 17
Obviously, at this stage, I shall do as the Minister said and withdraw the amendment. However, for the reasons that I have given, I should be most grateful if he would reconsider the matter, as I shall. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 4 and 5 not moved.]
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 6:
Page 4, line 22, at end insert—
"19BA If more than 25 per cent of the workers in a bargaining unit determined by the CAC do not wish to be represented by the union, they shall retain the right to negotiate separately from that union.""
The noble Baroness said: In moving Amendment No. 6, I shall speak also to Amendment No. 7. Amendment No. 7 is a minor consequential amendment to Amendment No. 6, which necessitates the slight renumbering shown in the second amendment.
The substantive amendment is to Clause 4. It states in simple, virtually self-explanatory, terms that in a bargaining unit established by at least 40 per cent of the workers requesting union representation, if another substantial group of 25 per cent do not want to be represented by the union, or to have terms negotiated by the union imposed on them, they should have the right to negotiate on their own collective, separate behalf.
If 40 per cent of employees request union recognition, that is undoubtedly a substantial number, but if 25 per cent—a quarter of the workforce—want nothing to do with the union, that is also a substantial number. Theoretically, that 25 per cent could be another 40 per cent who wish to negotiate for themselves. They should have the right to express their own views to the employer in their own way in order to achieve their own objectives, even if they are different from those of the union. There is nothing to prevent an employer, at the end of negotiations, rejecting the deal wanted by the non-union employees on the grounds that, "If it's good enough for the majority, it certainly ought to be good enough for you".
It would be an equally valid argument if the employer insisted on the union deal on the grounds that, in words that the party opposite will undoubtedly recognise, the employer did not want the disharmony on the shop floor that would be caused by having a two-tier workforce.
The amendment, if accepted, would also have the side effect of resolving an issue of which the Minister is well aware—an issue over which his colleague in the other place, the Parliamentary Under-Secretary of State for Trade and Industry, expressed some sympathy when Clause 3 was debated in the Select Committee. I refer to the plight of the Plymouth Brethren—otherwise known as "the Brethren"—who do not want to be involved, whether as employers or employees, with any organisation outside their own sect. It is certainly not for me to comment on their beliefs, which some people might find objectionable on
GC 18
a variety of grounds. But they are a genuine, long-established sect and not one dreamed up for the purpose of avoiding the provisions of employment legislation. That has been their way for a number of years. Whether we agree with them or not, it might be right to countenance their somewhat isolationist views.
The amendment would have the effect of accommodating their beliefs as well as killing another bird with the same stone—that is, it would accommodate the more conventional views of a substantial part of the workforce of an enterprise who wanted to represent themselves rather than be represented by a specific union. The issue covered by the amendment is not merely one of counting heads. We are discussing not only the rights of a few dissident employees but those of a substantial minority—at least 25 per cent of the workforce. As I said previously, that would be the minimum that could be considered, but the figure could be higher.
As President Thomas Jefferson said in his first Inaugural Address more than 200 years ago,
"the minority possess their equal rights, which equal law must protect, and to violate would be oppression".
I invite the Government, with their large parliamentary majority, to protect the minority rights of workers by accepting this simple amendment. I beg to move.
Lord McCarthy: It is becoming increasingly difficult to accept the bona fides of these amendments and increasingly difficult to take seriously the statement of the noble Baroness that she is trying to help and to clarify. It makes one ask whether the Conservative Party would, if it ever came to power, repeal this legislation if it is not able to frustrate it totally before then.
It is amazing: we are to have the 10 per cent credibility test—it is not suggested that that should be got rid of; we are to have the 50 per cent membership test; and, if you do not pass that, you can have the 50 per cent ballot test. We also have the 40 per cent turnover test and, as if there are not enough tests to get through, we now have the 25 per cent breakaway test. There could be a situation in which three-quarters, or slightly fewer, of the workers in the bargaining unit wanted the union to be recognised but it would be perfectly possible for 25 per cent to go away and form their own union.
Most employers who are serious about this matter do not want to facilitate breakaway unions. If they are to recognise a union, they want it to be the one with the majority of workers in the defined bargaining unit and they want to negotiate with them. How on earth that could ever be spelled out on a series of ballot papers, I really do not know. If amendments such as this are tabled from the opposite side of the Committee, we cannot take them at all seriously.
Lord Razzall: I rise for the first time in this Committee, having watched with some amusement over the past hour and 20 minutes the immutable forces of capitalism meet the irresistible forces of trade

GC 19
unionism. I have some sympathy if not with the tone of the point made by the noble Lord, Lord McCarthy, at least with the substance of what he said.
As we all know, the Bill is a compromise between the views of the TUC, which were put very forcefully to Her Majesty's Government, and the views of the CBI, which were put with equal force at Second Reading. If this were a football match, I suspect that the CBI would get away with, at best, a score draw and even possibly an away win. Therefore, I think that any further attempt by the Conservative Party to water down what, from my point of view, has been a very satisfactory compromise should be regretted.
Baroness Miller of Hendon: Before the Minister replies, I want to thank the noble Lord, Lord Razzall, for at least saying that he did not agree with the tone. I want to place on record that I very much objected to the tone when we debated the Grand Committee stage of the Employment Bill in one of the Committee rooms. That became extraordinarily unpleasant for me—not because of the noble Baroness, Lady Turner, or, indeed, at that stage, because of the noble Lord, Lord McCarthy. However, there were suggestions that I was obviously one of the bad Conservative employers and so on. That is out of place when we are dealing with these matters in a Committee room and not on the Floor of the House, when the tone might be moderated somewhat.
Lord Razzall: Especially under "The Judgment of Daniel".
Baroness Miller of Hendon: I had not noticed that we were sitting under the picture of "The Judgment of Daniel", but the noble Lord, Lord Razzall, is correct. I await with interest the reply of the Minister.
Lord Campbell of Alloway: The noble Lord, Lord McCarthy, and I have known, and opposed, each other for near on 22 years. We understand each other perfectly. I wholly understand his approach and I am not at all surprised at the way in which he has expressed himself today. We shall continue to remain friends.
However, I want to say that there is a principle behind the amendment that is worthy of serious consideration. It has been well put by the noble Baroness. I am not sure where the 25 per cent comes from—I do not like it—but let us forget the percentage and get on to the principle. There is scope for accommodation to be made in this regard and I ask the Government to consider how they might wish to address it.
4.45 p.m.
Baroness Turner of Camden: This is a matter of principle. However, in my view, it is different from that enunciated by the noble Baroness, Lady Miller, and the noble Lord, Lord Campbell. We are talking about collective bargaining; in other words, if a majority votes for collective bargaining, the result should be collective bargaining and an agreement to that effect.
GC 20
If some people do not support the union's drive for collective bargaining, they do not have to join the union. However, there is no reason why the union's position should be undermined because a minority decide that they want some sort of breakaway arrangement. In my view, employers are unlikely to welcome that arrangement. They would sooner have everything determined by ballot, an agreement negotiated, and then the collective bargaining conducted in accordance with the terms of that agreement.
I can see no virtue in making provision in legislation for what amounts to breakaway organisations on the floor of a bargaining unit. I hope that my noble friend the Minister will not feel inclined to give much consideration to the amendment.
Lord Triesman: I have represented trade unions in bargaining and I have also been an employer and negotiated as an employer in bargaining. I hope that I can try to strike some of the balances necessary to achieve satisfactory industrial relations, bringing both those perspectives to view.
Amendments Nos. 6 and 7 are closely linked and I will take them together. Amendment No. 7 is a drafting and consequential amendment, which would be needed if Amendment No. 6 were accepted. I shall therefore confine the bulk of my remarks to Amendment No. 6, which contains the substance of the suggestions posed by the noble Baroness, Lady Miller.
The amendment seeks to create an opt-out from the scope of a statutory recognition award where a significant minority of the bargaining unit would prefer separate arrangements to determine their pay and other terms of employment. Major principles are at stake in the amendment, which cuts across some of the essential pillars of recognition procedure as a whole.
We have built a large number of checks and balances into the statutory procedure. In doing so, we have taken on board the genuine interests of all parties. As a result, the procedure has worked well, and people who have used it and spoken of it have tended to say that they found that it worked well—irrespective of whether they were employers or union representatives.
Recognition is achieved only after the union has demonstrated its case that the bargaining unit makes sense and that a substantial proportion of the unit favours recognition. For example, in recognition ballots, at least 40 per cent of the bargaining unit, plus a simple majority of the workers who vote, must vote for recognition in order for the union to succeed in its application. That 40 per cent threshold is controversial—not least with the unions and with some who sit on our Benches in the House.
However, it also has the great advantage of demonstrating that there is genuine and serious support for recognition to exist. It is only right and proper in any democratic process that the ballot result should be respected. The positioning of the amendment suggests that workers would be allowed to

GC 21
opt out of the recognition that would result if the union were successful in the ballot before it even took place. That may not be the intention of the noble Baroness, and we certainly would not want a situation in which parties were able to distance themselves from the outcome of an independent test of opinion that the ballot represents in advance of that test taking place.
I am sure Members of the Committee will accept that if workers were allowed to opt out at that stage, it would not be right for them to vote in the ballot at all.
But that appears to be what is achieved by this amendment. It allows workers, in effect, to opt out of the procedure. It is likely to destabilise bargaining arrangements and the democratic process by which they are established. It should also be noted that the Amendment does not seek to provide for the opposite circumstance where a minority of workers wish to continue to be represented by a union where the union is derecognised in respect of a larger bargaining unit. It seems to me that if the Amendment is motivated solely by a desire to respect the interests of minority groups, then it should also propose a converse right in respect of derecognition. I am not inviting that, I am just saying that that would have been the equity of the argument.
We have heard, quite understandably, about the case of the Brethren, who object to collective bargaining on religious grounds. The Government take very seriously our responsibility to ensure that religious freedoms are respected in this country. Ministers have met with representatives of the Brethren and listened to their concerns, both in respect of the Bill and at the time of the 1999 Act.
I accept that this is a very difficult issue. On the one hand, we want to respect the important freedoms of religious belief. Equally, we must respect the rights of workers to associate with one another in trade unions and to seek to be represented through their trade union. On balance, the Government take the view that allowing a minority of workers to opt out of the statutory procedure, even where they wish to do so on religious grounds, would inevitably damage the procedure as a whole. Therefore, we cannot accept the amendment.
Of course, the drafting of the amendment does not restrict the right of Brethren workers to opt out. I am sure that most reasonable employers would wish to be sympathetic to the concerns of religious minorities among their workforce. However, I suspect that employers would not relish the prospect of having to deal with a multiplicity of overlapping bargaining arrangements simply because that is the preference of a minority of workers. The noble Baroness, Lady Miller, as a useful shorthand for the problem that we would face at the very least, used the term "two-tier". I am grateful for Thomas Jefferson's endorsement of it, but bringing it into a slightly more modern context requires us to think about the matter carefully.
This proposal would potentially create two or more sets of bargaining units for the same types of worker. Two people doing the same job could be covered by two separate pay determination systems. One would
GC 22
be established for the recognised union and the other would be created for the minority of workers who would want to opt out. The paradox is that during the whole of the period that I was an active trade union negotiator, I faced employers who were very eager to ensure that the union side itself did not fragment in a way which meant that it would be impossible for them to achieve sustainable bargaining arrangements. They would frequently argue strongly and convincingly that unions, who did not always see eye to eye with one another, should, none the less, ensure that their efforts to reach a common bargaining position, common aims and a common bargaining process were put in place. There has been great encouragement from the TUC to try to achieve that kind of clarity and simplicity of operation, because of the benefits to all concerned. Sometimes a highly specialised group could not be fitted in, but, generally speaking, everyone wanted to avoid the problem that must inevitably occur where two people doing the same job could be covered by two separate pay determination systems. That way almost always led to conflict and a degree of chaos. I know that that is not the intention of the noble Baroness, but that is what would happen as a result of the amendment.
I shall not continue at greater length, because I believe that everyone would recognise that what is being tested here was not workable in practice. In that light, I invite the noble Baroness to withdraw the amendment.
Baroness Miller of Hendon: First, I thank the Minister for his explanation of why the Government would wish to reject the amendments. In answer to the noble Baroness, Lady Turner, I have a feeling that my noble friend said something similar in that he did not like the idea of a quota, a number, of 25 per cent. I think that the noble Baroness said that she did not understand where the 25 per cent came from—or something like that. I was trying to say that it would have to be a substantial amount. If there were a majority, the noble Baroness said that that should be it. At the moment under the Bill it is only 40 per cent of those who have voted. That is certainly not a majority, but that is how it stands at the moment.
Having said that, it is my duty to look at the Bill and if there are any items that need to be tested or spoken to—the Government have no objection to my doing that—the Government will answer accordingly. I do not believe that it is appropriate to say—the Government certainly did not say—that one hopes that the Conservatives will not repeal legislation in the future. The Government, whether a Conservative or a Labour government, will do what they consider best at the time. That does not mean that I should feel intimidated when moving any amendment that I feel needs to be considered.
I read very carefully everything that takes place in the House of Commons, where many Bills are guillotined in such a way that whole sections of clauses are not discussed. In this House we are fortunate to have the freedom to raise any matter on behalf of the people of this country. I did not pluck these

GC 23
amendments out of the air. The subject of the amendments has been mention to me by various organisations that have asked me to air them in Committee to find out the views of the Government. I have felt it my duty to do that and that is what I am doing.
Interestingly, when the first groupings list was issued, Mr Makower had listed most of these amendments separately. For the benefit of the Committee, I grouped them so as not to waste time unnecessarily. I am sorry that I have had to take time now to explain that. On the first day in Committee it should have been clarified that I will not always be attacked when I table an amendment that I legitimately consider needs to be aired for whatever reason.
It is interesting to hear a Minister in Committee say that he hopes that an amendment will be withdrawn because, of course, an amendment has to be withdrawn if it is not agreed to. So it is with pleasure that I withdraw it, but with not so much pleasure I shall consider the matter again and consider what the Minister has said.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 [Union communications with workers after acceptance of application]:
[Amendment No. 7 not moved.]
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 8:
Page 5, line 32, at end insert "so long as the relevant workers have consented to the disclosure of that information"
The noble Baroness said: I shall speak extremely briefly to Amendments Nos. 8 and 11 to the very important and significant Clause 5. The amendments relate to a different issue from the confidentiality amendments that we discussed earlier. Amendment No. 8 is a paving amendment, again qualifying the employers' duties to supply information about workers by making it subject to the workers' consent. We have already discussed that fully and I shall not take up the time of the Committee further at this stage. I have left the amendment on the record as a marker in case we have to return to the subject at a later stage.
The substantive Amendment No. 11 provides a reasonable limit to what the union may say to those whom it hopes to represent as a result of the recognition process. Of course, the union must be allowed, without censorship, to make the case to the workers, but the fact is that this material will be distributed pursuant to the proposed new paragraph 19E(1) by what is called the "appointed person". That gives the material the appearance of an officially sanctified communication and thus the appearance of veracity, no matter how contentious or how accurate it may be.
I accept that these days communications from official sources are sometimes justifiably regarded by the public with a great deal of healthy scepticism. However, such communications in the recognition
GC 24
procedure, while making the union's case as forcefully as is reasonably necessary, should indeed, and I believe must, avoid inflammatory and derogatory language.
5 p.m.
Contrary to what some noble Lords think, the days of "dark and satanic mills" or the grinding of the face of the workers by wicked capitalists have, thankfully, gone.
The amendment merely requires the unions to exercise a very small degree of moderation in the language they use, and gives the appointed person the power to ensure that they do so in any communication to which he lends his authority.
I certainly cannot imagine that any responsible union would argue against the basis of this proposition, or indeed would think that it was not necessary. But on the basis of belts and braces, I think that it should stand. I beg to move.
Lord McCarthy: I hope the noble Baroness will accept that I approach her looking for peace. I wonder whether she would agree that it would have been much better if the amendment had included a similar phrase about it not being right for any distribution of an inflammatory and derogatory nature about the union from the employer. Surely the provision should cover both sides. Employers can say inflammatory and derogatory things and they should not be allowed to, should they?
Lord Campbell of Alloway: I am rather puzzled about this. Perhaps I may ask a question. I do not know the answer, never having appeared before the tribunal. Is not the information given to the tribunal by the employers and the union confidential? Surely, it is not distributed to the press or public; it is information put before the tribunal, which has the privilege of confidentiality. If it contains derogatory or inflammatory material, that merely cuts against those who present it. Am I wrong about that?
Baroness Miller of Hendon: I cannot answer my noble friend on that point and perhaps the Minister can. But in answer to the point made by the noble Lord, Lord McCarthy, the amendment is to page 6, line 11. New paragraph 19E(1)(b) goes on to say,
"any information supplied by the union (or unions) to the appointed person".
It does not talk about any information supplied to the employer. That is why I put down the question on that particular point. It may very well be that one needs to consider the whole thing in its totality. I am not saying that I would not; I simply say that I put it down there because that was the particular part I was dealing with as I went through the matter.
I listened very carefully indeed to what the Minister said. I intend to withdraw the amendment in a moment, but before I do so he may wish to answer my noble friend while he has the opportunity.
Lord Triesman: I thank the noble Baroness, Lady Miller, for giving me a brief opportunity to respond. A

GC 25
good deal of the material, certainly in respect of Amendment No. 8, covers some issues which we have discussed. I re-emphasise on the distribution of information that there would be no question of materials being distributed more widely.
Obviously, the communications that the union wishes to use to go through this process in order to advance its case is a right that is limited in nature. It is right that the union should send written communications to the relevant workers. The union will not send these communications directly; it will give them to the suitable independent person appointed by the CAC who will distribute them to the workers on the union's behalf. The employer must give the CAC the names and addresses of the relevant workers and the CAC would pass those to the suitable independent person.
There is no question of a wider circulation. No doubt union members will be in direct contact with their union because unions obviously will retain the right to deal with, speak to and advise their members. That right is not interfered with in any respect by the procedures that I have described.
The burden of the issues has probably been covered. The argument has been advanced—I want to consider this very carefully—that the independent person status may change the status of communication that is received by giving it more apparent authority. I suppose that there is a balance to be struck between ensuring that flaws in direct communication, which fly wholly outside the procedure and are potentially vulnerable to all kinds of defects as a result, is a worse outcome than someone receiving something and considering that it is a rather formal communication because it has come from an independent person.
I make that point because the outcome of the whole process—the receipt of materials, the ballot if there has to be one and so on—appears to be one in which people will look hard at legitimacy; they will want to feel secure that the process has been set out in the proper detail; and they will want to feel that legitimacy has been achieved because the process has been worked through thoroughly.
In that light I say to the noble Baroness, Lady Miller, that I would prefer the procedure to take place with that step in it to secure appropriate validity in everyone's mind at the end of the process, as well as being the better option in the circumstances. That is why it is constructed in this way. I thank her for giving at least preliminary notice of her intention to withdraw the amendment. While I understand the nature of our procedures, none the less that is a courtesy that I respect.
Baroness Miller of Hendon: I am grateful to the Minister for picking up the point about a communication arriving in an official looking document which gives it more veracity. I shall read carefully what the Minister has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 9 to 11 not moved.]
On Question, Whether Clause 5 shall stand part of the Bill?
Baroness Turner of Camden: I speak on this clause because of what I find to be a rather puzzling innovation. I refer to the suitable independent person, the SIP. It looks to me as though opting for a SIP is the introduction to the processes set out in the Bill which lead to recognition. Obviously, I welcome any procedures that make it easier for a union to secure recognition. There is no doubt about that.
I should perhaps explain that I spent a substantial part of my union career campaigning for recognition. The union of which I was assistant general secretary was, and still is, a major union catering for white-collar employees in private industry and commerce. We recruited substantially in the finance sector. The employers at that time were not used to dealing with unions, except for internal house associations, which they had often been responsible for setting up themselves. When some of these house unions joined the union, the employers were often apprehensive and in some cases actively hostile.
Obviously, the union sought recognition, but it would not have done so had it not already had a significant number of the staff in membership of the union. We set up union committees and union representatives were elected from within the recruited staff. Access to non-members was therefore not difficult. We issued material via the elected representatives and meetings were held, either on site or adjacent to it, to which non-members were invited and at which union officials were able to explain the benefits of union membership.
Why, therefore, is the appointment of a suitable independent person required in order for the union to conduct communications with staff? A suitable independent person is clearly not in a position to speak for the union in the way that a union representative or official is able to. A suitable independent person will no doubt charge for services rendered and the charge, presumably, will have to be borne by the union. One can imagine the growth of new opportunities for entrepreneurial consultants of various kinds, all offering services. Is that what is envisaged? If so, why do we need it? I would be interested to know from the Government why it is thought to be either necessary or desirable.
I repeat that I am in favour of anything that makes it easier for unions to achieve recognition and easier for them to communicate with non-union employees. I do not believe that we need this new type of official who will be a charge of the process. If unions have a real case for recognition, they already have a substantial presence and they are able to communicate with members and non-members.
Lord McCarthy: My noble friend has made the case. She has said almost everything that we would want to say. However, I should like to draw the Government's attention to the Explanatory Notes. I, too, was mystified by the appearance of this character. He is not the same character who conducts the ballot; that is another superior person with a slightly different name.

GC 27
Paragraph 45 of the Explanatory Notes states:
"Clause 5 inserts new paragraphs 19C to 19F after paragraph 19B (which is inserted by clause 4). At present, a union(s) may only formally communicate with workers during the period for a CAC ordered ballot".
Unfortunately the term "formally" is not defined. The unions may only "formally" communicate, so I suppose they can talk to them—make a telephone call—but they cannot write a letter. It continues:
"Clause 5 provides a right for the union(s) to communicate with the workers in the bargaining unit"—
I take that to mean "formally"—
"from the point of the CAC's acceptance of the union's application".
My first question is: what is this formality that you can do through this character that you cannot do for yourself? Secondly, has anyone asked for this provision? Have the TUC or the CBI asked for it? I cannot find out. Whose idea is this? Suppose a union communicated with the workers without creating and going through this character and said, "We were only informal. Never mind, that is all right". Or suppose it said: "Well, we communicated with our members". After all, some of the people in the bargaining unit, as my noble friend said, must be members of the union. Some might have been members for 20 years; some might be shop stewards. We are being told that they cannot be communicated with formally. What can this mean?
Lord Campbell of Alloway: Briefly, and for the sake of the record, I say that I wholly—I have had little experience of this kind of affair compared with noble Lords who have spoken, but I have had some—support the objection to this independent person. In a way it is an insult to the competence of the trades unions to manage their affairs as they would wish. I do not understand it at all.
Baroness Miller of Hendon: I have only one tiny point to make about that. I leave aside the line about which the noble Baroness is concerned, that is the matter of the suitably qualified independent person; the parts the noble Lord, Lord McCarthy, took from the Explanatory Notes about "formally", although I have always understood that the notes were not exactly binding but were advice on the way; and the point made by my noble friend Lord Campbell. And, leaving those aside, Clause 5 is an important clause. It deals with unions' communication with workers after the acceptance of an application. I would have thought that deleting the whole of the clause would wreck that particular part of the Bill. The reason I say that is because I do not understand—but no doubt the noble Baroness or the noble Lord, Lord McCarthy, could advise me—why they did not table another amendment. New paragraph 19C(2) states:
"The union (or unions) may apply to the CAC".
It does not say that it is obliged to. Perhaps an amendment could have been tabled to delete that without actually going to the length of wishing to
GC 28
delete the whole clause. We put down some amendments, but I did not think it appropriate to try to delete the whole clause.
5.15 p.m.
Lord McCarthy: That was my first feeling. The noble Baroness drew my attention to this. She asked me what I thought about the part about Clause 5. I said, "Well, they don't have to apply if they don't want to. They only may do it". But, as the noble Baroness says, it leads in to certain advantages which you do not seem to get unless you decide to have this person. So there are advantages. They are being induced to go into this scheme, but I do not see why.
Baroness Turner of Camden: Perhaps I may explain to the noble Baroness why I put down the Motion to oppose the Question that Clause 5 stand part of the Bill. We are in Grand Committee. I wanted to voice my concerns about the clause to see what the Minister had to say about it. Obviously, the matter will not be pressed today as it cannot be in this Committee. The intention was to put on record my concerns about the SIP, what the position meant and to hear what my noble friend would say in reply. Then of course we can decide what to do further.
Lord Triesman: I shall take up the invitation to explain how we think this piece of legislation operates. The first thing I must say is that we are dealing here with that element of the legislation which deals with the CAC process and its formal processes and not with the whole of the generality which is built up to a pattern of recruitment and there being sufficient members. Indeed, I know precisely what the noble Baroness, Lady Turner, means because I myself was trained in these matters of recruitment in the forerunner union known as ASTMS. So I recognise the points that have been made.
Perhaps I may start by trying to answer the questions and then say more about the Government's intention in the clause. There were several important questions. The TUC supports Clause 5 and the extra ability—and it is additional ability—that it gives to unions to communicate with the workforce. It is not an alternative, but an additional ability. The union is free to communicate with workers by whatever means it sees fit. The use of the word "formally" simply refers to the access which the employer is obliged to facilitate as part of the formal procedure. So it is not a restriction or a want of trust. The point was made that it might be.
I was asked why the union should not distribute its materials itself rather than through the qualified independent person who might add to the expense and complexity. The Government need to protect the disclosure of personal information to the union. It is likely that some individuals—probably the minority, but who knows—might be unhappy about the union knowing their home addresses. Their interests need to be safeguarded in that respect. Hence we have devised a role for the qualified independent person to act as a go-between.

GC 29
It is a fairly simple mechanism. It builds on the existing system of communication which is set out for use during the balloting stage, and it is not expensive to the union. Of course unions can continue to use their normal recruitment methods to support their recognition case. The procedure does not stop unions organising off-site meetings or issuing general invitations to the workers to attend through notices in newspapers, leafleting or any of the many methods that over the years trades unions have tried to use.
The point really is about the statutory procedure. It already provides for unions to access the relevant workforce from the time when the CAC has arranged for the holding of a ballot. The access can take two forms. First, the union's written material can be sent to the workforce by the independent person appointed by the CAC. Secondly, unions are entitled to arrange workplace meetings.
I emphasise, because we are already a little down the track since the 1999 legislation, that these arrangements have broadly worked satisfactorily in the view of the people who have used them. There have been few disputes about arranging access, and businesses have not been disrupted as a result. The workforce know more about the union's position and are better placed as a result to make an informed decision when casting their votes.
Of course, this access is limited to the short period of the ballot—usually about 20 days. It is also very late in that process. Ballots on average occur about 15 weeks after an application has been lodged with the CAC. Unions have argued that they should be entitled to some form of access at a far earlier stage in the process. They point out that employers have unfettered access throughout the life of an application and have many more weeks to put across their arguments.
The Government see the force of those arguments. Clause 5 therefore provides arrangements which ensure earlier access for the union. This access will start at the point where the CAC accepts a union's application as admissible. That is a sensible point to require access. Everyone knows that the union's application is a "runner" at that point and that it meets the basic criteria of the procedure. Everyone can see that in a transparent way.
Concern has been expressed on this point in Committee in the other place. However, I emphasise again that workers' addresses would be seen only by the CAC and the independent persons. Communications would pass through them to the home addresses because that is the only way in which you can protect the confidentiality of home addresses. But it does not alter the rights of trades unions to continue to supply their normal communications.
I believe that the clause therefore strikes a fair balance. Access takes place outside the workplace and so avoids disruption. It has no cost to the employer. The workers will receive and read communications in their own time. Most importantly, the clause recognises the need for workers to be kept informed about the recognition campaign that is being conducted in their name and on
GC 30
which they will have the opportunity to vote later in the process. That is the right balance which historically has emerged. For those reasons I believe that the clause should stand part.
Lord Campbell of Alloway: I seek some clarification on this. Is it right that all the clause does is to allow the union to apply to the CAC to appoint an independent person to handle these communications? Can a union not do that already? Is there anything to stop it? I am looking at the draft Bill. Is there anything to stop a union asking the CAC to appoint an independent person to handle communications? So far as I am aware, there is not. So, what is all this about? What is the necessity for this? Is it to fit it into some new form of rigid statutory procedure? If that is the object, it seems a fairly futile one.
Lord Triesman: I do not think that it is a futile object. Several balancing objectives are in mind. I shall not go over them all again, but it seems to me that they are very important to the central thinking.
First, this is the part of the procedure where the employer is required to take part. Before the employer is required to take part, everyone should know the ground rules on which they are taking part. Otherwise at some stage there inevitably would be people who scream foul.
Secondly, the aim is to get material to every worker. It may well be that a small minority, a minority or even a majority of workers would prefer that their addresses remained confidential and were not handed to the union. This is a mechanism—having a cut-out in-between—for that purpose in the process. I think the bulk of the objections or the anxieties that they might have are fully answered—I might argue that they are more than fully answered—but they should certainly give rise to no apprehensions.
Lord McCarthy: I would like to know where they are fully answered. Is the Minister saying that they have been fully answered this afternoon? Where they should be fully answered is on the face of the Bill. For example, one of the issues that has given rise to concern is that new paragraph 19C(2) says:
"The union (or unions) may apply to the CAC for the appointment of a suitable independent person to handle communications".
That does not specify anything. Much of what the Minister has been telling us today has been about the advantages that would fall to the unions, because they could make the employer do such things. That is an advantage and it should be on the face of the Bill, whereas phrases such as "to handle communications" just give rise to worry.
Lord Triesman: I think it is always as well to read the whole of a clause, rather than a few words from it. The words,
"during the initial period between the union (or unions) and the relevant workers"
are precisely in the context of the process that I have described. That is the intention. Although it is not likely to be written into the text of the Bill, I have said

GC 31
this afternoon that there is no intention of disrupting other kinds of communication between a union and its members, nor is there, or has there been at any stage in the work on the Bill, that intention.
Lord McCarthy: We shall see if the Minister will accept an amendment of that kind on the face of the Bill at Report.
Lord Triesman: For additional clarity, I ought to set out—and this is an elaboration, not a retraction of any element—that the CAC has no such power at the moment. That question was asked. It has no such power but the Bill establishes a duty on the employer to supply the addresses to the CAC and that is a necessary condition for the communications to take place. I have stated that in general terms, but that answers the final point that was raised.
Baroness Turner of Camden: As I said earlier, it was never our intention to press the matter—indeed, we cannot in Committee. We were anxious to obtain from the Minister an explanation of what this was all about and we have had that explanation. We will consider his comments carefully and see whether there is any need for us to come back at Report with any other suggestion. In the meantime I shall not press our opposition to the clause.
Clause 5 agreed to.
Lord Lea of Crondall Lord Lea of Crondall moved Amendment No. 12:
After Clause 5, insert the following new clause—
"REQUIREMENT OF CACTO ARRANGE FOR BALLOT
In paragraph 22(4)(a) of Schedule A1 to the 1992 Act (duty of the CAC to make arrangements for a ballot in the interests of good industrial relations), after the words "the CAC is satisfied that" insert "because of special circumstances"."
The noble Lord said: As this is the first time I have contributed to this Committee, there are one or two preliminary remarks that I need to make before turning to the substance of the amendment.
First, I need to mention that I am a member of the CAC—a body of some 60 members. A dozen are independents who chair the panels on cases under the overall chairmanship of Sir Michael Burton. Two dozen are drawn from an employer's background and a similar number from a worker's background—I am one of the latter. I guess that each of the wing members such as myself takes about half a dozen cases in the course of a year.
I want to make it clear that I am not pretending to represent the CAC, which is obvious. On a separate point, there is actually no CAC policy on the matters that we are discussing, so there is no problem about that. The CAC would recognise the distinction between the technical matters upon which it is consulted, and policy matters, which are strictly for Parliament.
A good example of the former—a technical matter on which the CAC is consulted—is the resources and other implications of the handling of cases under the information and consultation regulations, which we will be hearing about later, that will follow from the Bill and are, in turn, the result of the transposition of the EU directive agreed under the Social Chapter three or four years ago. However, the CAC is obviously not a principal player in the policy issues involved in the directive.
To take another example, it is clear that on such issues as the cut-off of 21 or more workers for small firms, or the 40 per cent minimum yes vote in a ballot, the CAC does not take a view. There are other examples concerning the architecture of the recognition procedure, on which it does not take a view. I hope that that avoids any potential for misunderstanding.
5.30 p.m.
As has already been revealed in the contributions this afternoon, there is, happily, a great deal of information in the public domain on the experiences of employers and unions on the three years' work so far. There have been annual reports, case reports on the Internet and statements from the TUC and the CBI on the review of the 1999 Act.
Let me now address the specifics of Amendment No. 12. We are discussing the experience of applying the procedure for a union to seek that the CAC awards recognition without a ballot, based on being able to demonstrate that it has more than half of the bargaining unit in membership. The procedure set out in paragraph 22 of Schedule 1 to the Employment Relations Act 1999 is, I think, sufficiently familiar. There are three provisos, however, to paragraph 22(4) of Schedule 1 to the 1999 Act. Confusingly, it is called the 1992 Act, although it was not introduced by John Major or Mrs Thatcher or anybody of that party. That is a matter for the Public Bill Office. However, I will talk about the 1999 Act for convenience.
The provisos are exclusively put forward, in practice, by the employer. The employer will have been the resisting party, obviously. If not, it would have made a voluntary recognition agreement. Having challenged at the earlier stage, under the headings of designation and the bargaining unit, the employer will turn to the small print in paragraph 22(4)(a), which indicates that, despite the 50 per cent test having been satisfied, the CAC may order a ballot if it can be demonstrated that it needs to order one,
"in the interests of good industrial relations".
That time-honoured phrase, respected by everyone in this room, is questioned by no one. The problem is that the provision, as it stands, is rather hard to apply. Indeed, that is an understatement. Let me explain why.
We have heard reference this afternoon to the judgment of Daniel. The CAC could be in that position, with the union saying that to insist on a ballot in these circumstances of demonstrably over 50 per

GC 33
cent membership would be a provocation to good industrial relations. The employer, naturally, would say precisely the opposite.
Panels of the CAC may feel that they are on uncertain ground, with judicial review looming over them, whichever way they decide on this time-honoured form of words. The fact that Parliament was perhaps not as clear as it might have been, in retrospect, means that the opportunity can and should be taken to clarify what really is behind paragraph 22(4)(a) so that it does not lead to deadlock.
What are the weight and locus of the qualifications on the one hand, relative to the weight of the main substantive provision on the other? I submit, having looked at the history, that what was meant by paragraph 22(4)(a) was that some special factor needs to be adduced and put before the CAC—a factor which must be convincing in some objective sense with regard to disrupting industrial relations. If that is the case, it needs to be spelt out.
How can we find some test—some wording—which would help to ensure that it is convincing in an objective sense? I have put down these words to convey the meaning that there must be special circumstances. Let us see whether that is a good form of wording. It would not just reopen the earlier stages of the hearing when, for example, the employer was far from reconciled to the inclusion of managers in the bargaining unit and said that that would disrupt industrial relations. That had been decided by the agreement on the bargaining unit. By the stage under discussion, that would be water under the bridge. If that were not so and everything was up for discussion all over again, the CAC panel would simply be going round in circles.
The words "special circumstances" may not be totally without difficulty. But anyone who wishes to make that point should be careful—the only totally unambiguous way out of this would be to abolish the whole of paragraph 22(4). I know—it is self-evident—that my noble friend the Minister is not encouraging me to go down that road. Equally, I assume that he will accept that we need to sharpen up what paragraph 22(4)(a) covers.
I have put forward this amendment in an endeavour to resolve the problem in a way that is as near to consensual as we can find. I beg to move.
Lord Campbell of Alloway: I wholly understand the problem put by the noble Lord and wholly accept what he wants to achieve. The problem is that the words he proposes will not achieve it. If he were to use quite a simple concept and say that the CAC should be satisfied that arrangements should be made for the ballot in the interests of good industrial relations, he would put the exercise of discretion quasi-judicially within the CAC. That cannot be attacked on judicial review unless there is a taint of bad faith or quite exceptional unreasonableness. So I support the
GC 34
concept of the amendment but respectfully suggest that the object could be achieved if these words were used.
Lord Lea of Crondall: The difficulty is that that is where we are at the moment, more or less. In paragraph 22(4)(a), the first qualifying condition is that,
"the CAC is satisfied that a ballot should be held in the interests of good industrial relations".
As I say, it is the judgment of Daniel. We do not want to promote a philosophical discussion about the nature of industrial relations—I am sure that that was not intended. It was meant to cover a case—I suppose we can hypothesise about what such a case might be—in which there was some very particular factor that meant that just to give recognition without a ballot would be very ill judged in the context and that to do so would require a pretty special set of circumstances. Copies of Hansard in 1999 show that that was what was intended. At present, the problem of judicial review is that it is very hard to pin down the basis on which the CAC can do its job. That is why I suggest that there have to be special circumstances.
Lord Campbell of Alloway: With respect, if one inserts the expression "special circumstances" into the wording that I have suggested, one cannot do better because one cannot invoke judicial review. One is giving discretion to the CAC to exercise if it thinks that it is in the interests of good industrial relations and that special circumstances obtain. That is not a position which the High Court will investigate unless there is obvious unreasonableness or evidence of bad faith, and we are not concerned with bad faith with the CAC.
Lord Lea of Crondall: I am grateful to the noble Lord for endeavouring to be helpful. The problem of judicial review is not the only rationale for the amendment, although it is looming over the CAC on a number of occasions.
Lord McCarthy: If we look at paragraph 22 of Schedule 1 to the 1999 Act, it is clear that only one of these three qualifying conditions is necessary—any one will do. In a way, it would be more logical if heading (a) came at the end, but it does not, because (b) is quite precise and refers to,
"a significant number of the union members within the bargaining unit inform the CAC that they do not want the union (or unions) to conduct collective bargaining on their behalf".
There could be evidence for that. You could count that. That is a specific case in which you might say that because of that evidence, a ballot should be held in the interests of good industrial relations.
The qualifying condition in heading (c) is that,
"membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf'.
Again, a precise test could be mounted for (c) so (b) and (c) seem to be all right. I do not know whether they are in practice—that is my question.

GC 35
Heading (a), which refers to the CAC being satisfied that a ballot should be held in the interests of good industrial relations, seems to be an attempt to have a generalisation. There might be many cases—(b), (c) (d), (e) and (f)—which we do not want to put on the face of the Bill so we will have the general requirement that the CAC must be satisfied. But because it is not defined, it is difficult to apply. Would it not be the case that you would get all that you want if you just abolished (a) and left (b) and (c) in place?
Lord Lea of Crondall: I have great sympathy with the proposition put forward by my noble friend. To be honest, I want an amendment which does not abolish either the whole paragraph or heading (a) because the balance must be maintained with great care and delicacy. I cannot fault the logic of what has been said about renumbering the headings so that (a) comes after (b) and (c). It would be very helpful. In the spirit of what was intended in 1999, I am quite certain that heading (a) was not seen as a catch-all measure to drive a coach and horses through the provision.
5.45 p.m.
Baroness Miller of Hendon: I have listened with great interest to the conversations between both sides of the Committee. It is interesting that all Members who have spoken have vast knowledge of trade union law and practice. I feel diffident in putting my tiny comment in the middle of it all, particularly as we have discovered that the Minister has great experience in negotiating on behalf of trades unions and as an employer. And my noble friend has great experience as a lawyer.
When I read Amendment No. 12 during the Recess, I came to the conclusion that what I said at Second Reading was extremely important. We need a consolidating Act. The amendment refers to,
"paragraph 22(4)(a) of Schedule A1 to the 1992 Act".
which I did not have with me. That schedule is to be found in the 1999 Act, which I also did not have with me. Now we are in debate on the Employment Relations Bill when all these issues arise. If an employee were trying to discover what his rights might or might not be in front of a CAC, it would be impossible to find any information in the framing of the provisions.
Heading (a), one of the three qualifying conditions which allows the CAC to conduct a ballot, provides that the CAC must be satisfied that a ballot should be held in the interests of good industrial relations. If it is so satisfied, does it not make it somewhat easier than adding the words "because of special circumstances"? We may enter a difficulty over court cases and so forth. I do not believe that the amendment has got to the nitty gritty of what the noble Lord is seeking and it makes things more difficult. However, like other Members of the Committee, I shall listen to what the Minister has to say.
Lord Lea of Crondall: Before the Minister rises, perhaps I may clarify my intentions. The CAC can be
GC 36
in the difficult position of disagreeing with an employer who says that there would be negative consequences for industrial relations. It is a value judgment against the employer and that is not easy territory for the CAC.
Lord Triesman: I thank my noble friend Lord Lea for his explanation and all Members who have taken part in the debate. There is a good deal of expertise in the Committee, which is always helpful on issues of this kind.
The amendment reflects a concern that there are no guidelines for the CAC in applying the condition in paragraph 22(4)(a)—the condition which allows the CAC to call a ballot of the workers in the bargaining unit where a majority of them are members of the union if it is satisfied that it would be in the interests of good industrial relations to hold a ballot.
Up till the end of March 2004, unions had claimed majority membership at acceptance in 57 cases. The CAC saw fit to order a ballot in 11 cases where the union opposed the ballot on the grounds that it had a majority in membership. In eight of these cases, this was in whole or in part because the CAC considered that a ballot should be held in the interests of good industrial relations. So only in a minority of cases has the CAC exercised its power under the paragraph. The factors or circumstances which led the CAC to reach these decisions were very varied and it would not be truthful to say, "There you are, there is a clear pattern".
I should add that there is no evidence to suggest that CAC panels have used their power freely or in a capricious or inappropriate way.
[The Sitting was suspended for a Division in the House from 5.49 to 5.59 p.m.]
Lord Triesman: I think that I had enumerated the cases and their outcomes, and was making the point that there is no evidence to suggest that CAC panels have used their powers freely or capriciously in ways that are inappropriate. None was presented throughout the review of the Employment Relations Act 1999. I am therefore far from convinced that there is a problem that needs to be addressed.
Moreover, the amendment does not seek to define what should be considered as special circumstances for this purpose, a point made by the noble Lord, Lord Campbell of Alloway. I believe that it would be very difficult to do so. The climate of industrial relations in any workplace may be affected by a number of circumstances which are quite specific to that workplace. What counts as a reason to believe that a ballot would improve industrial relations in one workplace may well lead the CAC to the opposite conclusion in another, depending on the attitude of the workers and the parties involved, the recent history of industrial relations at the workplace, and so on.
The Government do not believe, therefore, that it would be appropriate or practical to place a limit on the circumstances which the CAC is able to take into account in reaching a decision on whether paragraph 22(4)(a) is to apply. I ought to emphasise that members

GC 37
of the CAC, including, of course, the noble Lord, Lord Lea, are chosen for their industrial relations expertise. It is very real and very extensive expertise. The Government believe that they are well equipped to judge whether industrial relations are likely to be improved in any particular circumstance. And, of course, were the CAC to order a ballot in the interests of good industrial relations without sufficient grounds in a way that could be considered unreasonable, its decision could be the subject of judicial review, as we have already noted.
As the noble Lord, Lord McCarthy, said in relation to paragraph 22(4), in making these kind of judgments, it is possible to metricate some things. However, as regards industrial relations, it is impossible to metricate everything. Inevitably, some things will be matters of judgment about whether or not they help the relevant environment. Frequently when issues are discussed at ACAS, it is not a case of measuring something but of trying to find a balance in which everyone accepts that there has been a good industrial relations outcome. "A good industrial relations outcome" is one of the terms that is used frequently in the schedule and for very good reason.
In view of the broad range of situations the CAC may be asked to consider, I believe it makes sense to give it a broad discretion to take into account the circumstances it considers relevant in the light of its industrial relations expertise. Defining these circumstances would risk excluding matters which may well in some cases have a considerable bearing on the question of whether a ballot might improve industrial relations.
As regards the comments of the noble Baroness, Lady Miller, on producing another consolidation Act, I can well see the attraction of it. However, it is not standard practice to undertake frequent consolidations in legislation as they take up so much parliamentary time and absorb a large amount of the Government's legal resource. The case for undertaking another consolidation of trade union legislation has to be assessed against competing legislative priorities, although I acknowledge that it would be handy on occasion to reach for a single book to find the answers.
Therefore, I respectfully ask my noble friend Lord Lea to withdraw the amendment.
Lord Lea of Crondall: The difficulty is that we have a substantive proposition on the statute book that where 50 per cent of the bargaining unit are members of the union there should be the right to award the recognition without a ballot.
Noble Lords make extensive references to the delicate balances struck in 1999. Those delicate balances go back years before then. As is well known, I was, wearing my TUC hat, involved in writing the report, Your Voice at Work, of which the matter that we are discussing was a principal component. If there is evidence that this measure is continually being eroded, and that we have missed the opportunity to consider the matter at this stage, I fear that it will not
GC 38
add to people's confidence in the ability of the parliamentary process to deal with this kind of problem.
It was never intended that panels should be put in the position whereby the easy way out—everyone is human—is to say, "Let us require a ballot". That always sounds reasonable, but that was not Parliament's intention. It was not intended that whenever an employer says that there ought to be a ballot, that mantra should be accepted. I use the word "mantra" advisedly as who can be against good industrial relations? Who can be against having a ballot? However, the fact is that a ballot in many circumstances, not only from the union viewpoint—one has to see the opposite argument too—will involve the whole caravanserai of the hustings—I shall discuss Amendment No. 13 in a moment—and everything that concerns the manipulation of opinion.
All is fair in love and war but I refer to a certain tendency on the part of employers. This applies exclusively to employers because obviously all three of the provisos that we are discussing are employers' provisos, not union provisos, and will be deployed by employers. It would be a sad day if it were felt—I believe that trade unions consider that this is the case—that together the three measures undermined the 50 per cent membership provision and rendered it nugatory.
As has been said, the CAC is comprised of experienced people, but there are three people on a panel: one is independent, one represents the workers' side and the other the employers' side. People try to take a collegiate view, but it was not the intention that the easy way out, when there is any difficulty, should be to call a ballot. I shall reflect on the matter before Report. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lea of Crondall Lord Lea of Crondall moved Amendment No. 13:
After Clause 5, insert the following new clause—
"REQUIREMENT OF CAC TO ARRANGE FOR BALLOT (NO. 2)
In paragraph 22(4)(b) of Schedule Al to the 1992 Act (duty of the CAC to make arrangements for a ballot), after the words "on their behalf" insert "and the CAC is satisfied that the provision of the information was not initiated or induced by the employer"."
The noble Lord said: This is another modest amendment—it may be a mistake to make modest amendments—to make explicit what I believe is Parliament's intention; namely, to make explicit a way of handling what is now an unintended loophole in the wording of the 1999 Act.
Paragraph 22(4)(b) of Schedule 1 to the 1999 Act provides that the procedure for recognition without a ballot is subject to three different provisos. We discussed one of them a moment ago.
This one concerns the scenario where it is alleged that a significant number of employees in the bargaining unit who are union members do not want union recognition for collective bargaining purposes and they write to the CAC to this effect.
What is perplexing is that the consequence of the present wording is that any employer who does not want union recognition—and that, let us remember, is 100.000 recurring per cent of employers in the case we are studying, or else they would have concluded voluntary agreements, as my noble friend has already pointed out—is sorely tempted to go down the road of ghost writing letters or inspiring letters—a road full of moral hazard. It is easy to see how this can seem attractive. An employer will identify one or two union members, have a quiet word in their ear about their prospects—not too much need be said—and get them to help with a letter or a petition. Everyone in this room will, I think, appreciate that this is light years away from what was intended by the authors of the 1999 Act. We talked of members who of their own volition were to inform the CAC that they did not want the union to represent them for collective bargaining purposes. Such letters, if any such emerged, were meant to be considered if written individually direct to the CAC and certainly not if written on employers' headed notepaper or photocopied letters drafted by the employer with a space for the person to sign.
It was never intended that such letters should be put in front of workers in a one-to-one interview—a typical American technique—accompanied by hints about the worker's future prospects, and then transmitted to the CAC. Hence the purpose of the amendment is to make it absolutely clear that information under paragraph 22(4)(b) should not be taken on board if it is initiated or induced by the employer.
I know that the point could, of course, be made that if the union does not like this sort of interference with the views of its members, all it has to do is to agree to a secret ballot—I refer to the discussion we had five minutes ago—but that is a sort of blackmail and would be strongly considered a threat to good industrial relations on the part of the trade union.
I wish to say a few words about confidentiality and the protection of human rights. I was interested to hear the earlier discussion in this regard. A balance has to be struck between the need for the CAC to validate information and the protection of individuals who could be victimised. We can all agree on that. However, the rights of the individual are not protected if the employer can demand to know who has signed a letter as a union member stating that he or she does not wish the union to represent them in pay negotiations.
The fact that the union has, of course, already had to demonstrate its support through a petition—that is a quite separate part of the procedure—shows that we must be careful to use terminology with care.
The form of words that I have put down makes it absolutely clear that the CAC will not take into account as evidence—as purported evidence of the views of union members—"round robins" initiated or induced by the employer. The elimination of such letters would be no more and no less than what
GC 40
Parliament intended in the first place. I trust that there will be general support for this amendment. I beg to move.
Lord Triesman: The first and third conditions of paragraph 22(4) give the CAC some discretion. There is no corresponding discretion for the CAC to judge, in the light of the evidence before it, the issues that my noble friend Lord Lea has just raised—whether the information presented to it shows that a significant number of union members do not want to be represented in a collective bargaining arrangement by their union.
As my noble friend said, unions have alleged in some cases that employers have asked workers to sign letters under duress in order to make the case for ending the collective bargaining arrangement and the recognition that goes with it. They claim that the wording of paragraph 22(4)(b) is problematic because the CAC cannot consider whether the information provided to it is a genuine expression of union members' views or has been coerced or accumulated in some other way. This view appears to have been shared by at least one CAC panel. In the case of Brian Hewitt Construction Limited and the Iron and Steel Trades Confederation union, the panel's decision states:
"It is manifest from the language in paragraph 22(4)(b) that the issue is simply whether the CAC is informed by a significant number of union members that they do not want the union to conduct collective bargaining on their behalf'.
The panel's decision continues:
"The Panel is of the view that the law makers did not envisage the condition being manipulated in the manner that the Company has done in this case. However, the Panel is constrained by the open nature of the wording of the paragraph".
I do not intend to comment in any detail on any judgment of the CAC. However, when discussing the previous amendment, I said that the expertise of members of a CAC was a decisive factor regarding the CAC's judgment and jurisdiction. Therefore, I give weight to what a CAC panel has said. Clearly, however, this condition has posed difficulties for the CAC and the parties. As we have consistently made clear, the Government strongly condemn the pressuring or coercion of workers to sign anything or to make any statement against recognition. We equally condemn any attempt by a union to pressure workers to support it. Coercion is ruled out in either direction.
We consider, therefore, that there may be value in looking at this question. We are not convinced, however, that my noble friend's amendment gets it quite right. We must ensure that we do not prevent an employer letting union members know that they can inform the CAC if they want an issue raised. Nor would we wish to prevent an employer from assisting a worker to do so, if that was the genuine wish of the worker rather than the result of coercion.
Unions also initiate petitions and letters of support from workers at other stages of the process. It is obviously important that both parties should be able to inform workers about the ways in which they can make their views known.

GC 41
The issue is whether the CAC can take into account any evidence that undue pressure was involved. That is something we accept that we should give further consideration to. I am grateful to my noble friend for raising the matter. I hope that we can have further discussions with him to see what can be done. In that light I respectfully urge him to withdraw his amendment.
6.15 p.m.
Lord Lea of Crondall: I am grateful to my noble friend for saying that he will give the amendment further consideration, albeit not perhaps in its current form of words. I look forward to hearing what form of words the Government might consider tabling on Report in order to meet the point, the case for which the Minister substantially accepted. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 [Postal votes for workers absent from ballot at workplace]:
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 14:
Page 8, line 31, at end insert "of the close"
The noble Baroness said: In moving Amendment No. 14, I wish to speak also to Amendment No. 15. They are both drafting amendments that would clarify Clause 7, without altering it in any way. In fact, they would simply remove a drafting ambiguity.
In Clause 7, the Government have decided that there should be the facility for employees to cast their votes by post. As an aside, I can hope only that that facility will work better than the shambles which appears to be happening as regards whether people receive their voting papers for the forthcoming elections. The employee has to decide whether to avail himself of the opportunity,
"in advance of the ballot".
However, it is not clear whether that means before the ballot is called, or in advance of its closure. It is really not practical—in the words used by the two relevant sub-paragraphs—for the worker to make this decision before the start of the process. He may not even have heard about it until the campaign—if I may call it that—begins. The proper time for the worker to avail himself of the facility for postal voting is before the close of the poll when he knows all about it.
The effect of these amendments is simply to remove any possible ambiguity or doubt. I beg to move.
Lord Davies of Oldham: I am grateful that the noble Baroness spoke to Amendments Nos. 14 and 15 as they embrace exactly the same principle. I shall speak overwhelmingly to Amendment No. 14 while recognising that my arguments apply also to Amendment No. 15.
As the noble Baroness said, the amendments seek to extend the period in which a worker may reasonably request a postal ballot because he or she will be absent from the workplace on the day of a workplace ballot.
GC 42
As drafted, Clause 7 states that the CAC must make arrangements for a worker who is unable to vote in person at the workplace—because of matters relating to him or her as an individual—to have the opportunity to vote by post if the worker concerned requests it far enough in advance of the ballot for this to be practicable.
These amendments seek to ensure that such arrangements must be made where a worker's request is made far enough in advance of the end of the ballot. I respect, of course, the noble Baroness's intention which is to ensure that as many workers as possible have the opportunity to vote. Of course, we share that objective entirely. Indeed, that is why we introduced the right to vote by post for workers who are absent from the workplace for legitimate reasons, for example being on annual leave or having time off for public duties such as jury service.
However, the amendments will not in the overwhelming majority of cases buy workers much time. A large number of workplace ballots take place on a single day. All the others take place within two days although we found one case of a ballot taking as long as three days. Therefore, we are not talking about a significantly extended period for the worker to exercise his proper right to participate in the ballot.
Of course, these amendments may give workers who are unexpectedly absent on the day of the ballot, perhaps through illness, an opportunity to vote, rather than missing their one chance. However, this would mean that the worker was too ill to go to work but well enough to make his representation to submit a postal ballot before the close of voting, which, as I have indicated, constitutes a very limited period of time in most ballots.
So I am not convinced that the amendment would deliver any significant benefit. It would, of course, pose some practical difficulties for the qualified independent person appointed to conduct the ballot. Under this amendment the QIP could not be sure, even on the morning of the ballot, who would be voting in person and who would be voting by post. This would unnecessarily complicate the QIP's job and inevitably delay the process.
In any ballot or election there must be a cut-off for the sending out of postal ballot papers. Such limits apply in our public elections where we require persons to request a postal vote well in advance of election day. This is essential to ensure that the relevant authorities can keep track of how and when people are entitled to vote. It also ensures fairness so that no voter can gain advantage by voting after the majority have done so when a picture may already be appearing of how the various parties have fared.
Of course, this does mean that some voters who wish to vote are unable to do so. As I say, I recognise the noble Baroness's intention to make it as feasible as possible for people to cast their vote. However, accommodating people who discover on the very day of the ballot that they cannot vote at the last minute is neither practical nor fair to other voters.

GC 43
I fully understand the noble Baroness's motivations in tabling these amendments. Her intentions are good ones. However, I believe that the gains would be small indeed due to the short period of time within which such ballots are conducted. The amendments would pose significant disadvantages to the efficacy and integrity of the ballot procedure. On that basis I ask the noble Baroness to consider withdrawing her amendment.
Baroness Miller of Hendon: I am extremely disappointed with the Minister's answer to this simple amendment. Line 31 on page 8, Clause 7, states that the worker has,
"to be given the opportunity (if they request it far enough in advance of the ballot for this to be practicable) to vote by post".
The Minister commented that often the ballots are done in one day. I did not include the provision that they should request it far enough in advance—it is in the Bill. I was saying merely that if the worker has to decide whether the request is far enough in advance of the ballot, he needs to know when the close of the ballot will be. That is important. If a postal vote is requested, why must it be far in advance? If it happens in one day—one, two, three quick and it is over—it is an extraordinary state of affairs.
However, I shall read carefully what the Minister has said, but I do not agree with it and I am disappointed that he said it so quickly. In fact, he said in his opening remarks that he did not agree with the proposal, so I gleaned that even before I heard the explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 15 not moved.]
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 16:
Page 9, line 2, at end insert—
"(3) For the avoidance of doubt, it is hereby declared that nothing in Schedule A1 to the 1992 Act (collective bargaining: recognition) shall imply that a failure to vote by any worker for whatever reason shall be interpreted as if the worker is voting either for or against the proposal in any recognition or derecognition ballot."
The noble Baroness said: I would have thought that it was axiomatic that the only conclusion that could be drawn from the fact that someone did not vote in any ballot was simply that he did not vote. That is all it means. That applies to ballots under this Bill or in any other ballot or election.
However, I want to draw the Committee's attention to an exchange that occurred in the other place during its Second Reading debate. The honourable Member for Warrington North asked the Secretary of State:
"will she look once again at the rules on trade union recognition ballots, as, in effect, they count abstentions as no votes?".
I have to assume that the honourable lady would like them to count as "yes" votes because she went on to ask:
"How many members would have been elected if such rules applied to us?".
Instead of shooting this bizarre concept down in flames, the Secretary of State replied:
"My hon. Friend raises an important point. We looked at it during our review of the 1999 Act and we shall be tightening up that aspect of its operation under the current Bill".—[Official Report, Commons, 14/1/04; col. 823.]
To be fair to the Secretary of State—despite what one Member of the Committee said, I always try to be helpful and fair—I freely acknowledge that the Bill does not contain any provision to alter the implications of the abstention.
I am also prepared to recognise the fact that in the heat and pressure of a debate one can say something that goes further than one really intended. However, the fact is that these days, in a change to the rules of interpretation of Acts of Parliament, the judges are prepared to look at what Ministers have said during the passage of the Bill.
It is therefore important that there should be a clear statement from the Government on the parliamentary record that, as I said in my opening remarks, the only interpretation that can be placed on an abstention is that the person did not vote.
I look forward to the Minister's confirmation of what I believe is a self-evident truth and to give him that opportunity of saying so, I beg to move.
Lord Davies of Oldham: I know that the noble Baroness feels strongly about the issue because she raised it at Second Reading. It gives us the opportunity to clear up what might be a misinterpretation.
Important though a ministerial statements are on all occasions—we all weigh our words with the greatest of care and no one is better at that than the present Secretary of State—when the courts are looking at what Ministers intend, they are looking at something different from a response to an interjection in a winding-up speech. That is when a particular point is made and a Minister responds.
It would not be on every occasion that we would think that all ambiguities could be avoided. Sometimes the question itself can be slightly misunderstood. We have all made that mistake. In any case, interjections are part of the cut and thrust of debate. Therefore, when the noble Baroness says that it is important that ministerial statements form part of our legislative process because Minister's comments are often partly taken into account in future judgements, that is on a more substantial basis than a response to an interjection from a Back-Bencher from whichever side of the House. It happens very much in the context of a statement introducing a Bill or, perhaps, at the final Third Reading stage when a considered position is put forward by a Minister.
In this case a great deal is being made out of a small development. The Secretary of State was referring to Clause 7 of the Bill. The clause tries to permit as many people as possible to vote in recognition and derecognition ballots. It does that by providing for postal votes to be accorded to workers who are absent from work on days when workplace ballots take place. In this way workers on sickness or maternity leave or

GC 45
staff on residential training courses can exercise their entitlement to vote. The objective of the clause is a laudable one to which we can all subscribe. Its effect is to reduce the number of unintentional abstentions during these ballots. The turnout, and therefore the broad representativeness of the ballot, should increase at the margin as a consequence of the provision.
6.30 p.m.
It follows that my right honourable friend's remarks do not imply that the treatment of abstentions will be changed, as the noble Baroness was kind enough to recognise. The Bill does not change the concept of abstentions and how they will be treated and that is not the intention behind the Government's proposals. When workers decide not to vote at all, the CAC—as the noble Baroness agreed—should not draw any inferences about such preferences. Under the current statutory procedure, abstentions have their normal meaning as votes that are neither in favour or against the proposition in question. I am grateful for a further opportunity to put on the record that that will remain the case. That is why the amendment has given us the chance to clarify what I believe has been a misinterpretation of what occurred in the other place. I consider the amendment to be unnecessary because it is not intended that any change should be effected in this matter.
I should add that the Bill does not change the 40 per cent rule, either. We will debate separate amendments to be moved by my noble friends on the 40 per cent rule and we will be able to deliberate further. For now I am responding to this amendment and, I hope, with the assurances that I have given, that the noble Baroness will feel able to withdraw it.
Baroness Miller of Hendon: That is an unusual answer. I made it clear that the Bill does not change the matter. But I also said that the issue was raised in the other place when someone asked the Secretary of State if she would please look again at these rules, because, in effect, they count abstentions as "no" votes. That was the precise point that was raised. The Minister did not shoot that down out of hand and simply said that it was an important point that the Government would look at during their review of the 1999 Act.
If it was such an unimportant point, all that the Minister needed to say was to confirm that if someone does not vote it would simply mean that they had not voted.
If they abstain, it would count as a "no vote". That is not returning to my comments that it was not in the Bill, but I was talking about the interpretation that judges might put on the matter. I can tell the Minister that I have taken legal advice on that particular point. The Minister said that it would not be counted as something important. If that is the case, it would be extremely easy to put it on the record that I am correct—that if someone abstained it would just mean that they had not voted and would count as a "no vote" with no other obligation. That is all that the
GC 46
Minister needs to say, but I do not believe that I heard him say that. If I missed a couple of words, he will not mind repeating them so that they are on the record.
Lord Davies of Oldham: I certainly do not mind not just repeating that but adding to it for the third time. On Second Reading, when my noble friend replied, he said:
"We do not intend to change the status of abstentions in recognition ballots". —[Official Report, 29/4/04; col. 932.]
I sought to agree with the noble Baroness that there should be no change. I explained that, as I understood the position, there was no intention to make any change, nor could there be, as a result of an exchange in the other place between a questioner and the Minister. That would be fresh interpretation of the legislation, particularly as it is still passing through this House, and we have another opportunity to put it on the record that we do not intend to change the status of abstentions. That is the basis upon which I hope the noble Baroness will withdraw the amendment.
Lord McCarthy: Is it not the case that this is all rhetoric? In a sense that is right. At least 40 per cent of the workers constituting the bargaining unit have to vote for recognition. If 80 per cent of the workers constituting the bargaining unit abstain, one cannot reach the required figure. It does not affect the result. It is rhetoric.
Baroness Miller of Hendon: That was not the opinion of the noble Lord's honourable friend in the other place when this matter was debated. In any event, I shall certainly withdraw the amendment and look carefully at what has been said. But I have to repeat that sometimes, when a court is asked to decide on the true position of a case, it can take into account what is said during the course of the passage of the Bill and compare it with what the Bill says. It can be that one is different from the other. That has happened in many cases. The Minister said that this is a trivial point and that it would not apply. It does apply in some cases and it is necessary to have the matter on the record for the sake of clarification. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Clause 8 agreed to.
Clause 9 [Unfair practices in relation to recognition ballots]:
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 17:
age 12, line 3, leave out "uses or attempts to use undue influence on" and insert "coerces or attempts to coerce"
The noble Baroness said: I shall speak to Amendments Nos. 17 and 18 together. They relate to the problem, or potential problem, of coercion or intimidation during the recognition process. Unfair practices in relation to recognition ballots is a general concept with which no one could disagree, but strangely enough, it was not in the Bill that was originally presented to the other place.
This new clause, which I suppose was an afterthought, because it was not in the original Bill but was in the Bill brought from the other place, introduced additional burdens on employers for when they are notified of the requirement to arrange a ballot on recognition. Employers have argued that these are extremely onerous and inappropriate and the Government have not given sufficient justification for this late insertion into the Bill. Certainly, they have not pointed to any case, event or practice that justifies it. However, the substantial amendments to the Bill introduced by the Government on 24 May go a long way, in my view, to meeting those criticisms, and I will revert to that when we discuss these government amendments.
One specific issue in the new measures is the meaning of the words "undue influence" in new paragraph 27A(2)(f) to Schedule Al of the 1992 Act. As an aside, that jumble of descriptions of the position of the paragraph shows what a nightmare jigsaw the current legislation is. I do not dare make another plea to the noble Lord, Lord Triesman, for an early consolidating Act.
"Undue influence" is a legal term of art, with a specific meaning assigned to it by judicial decisions going back a very long time. I found one case decided by your Lordships' House in 1857—almost 150 years ago. That is the leading case, and the then Lord Chancellor, Lord Cranworth, ruled that the essential element of undue influence was "coercion or fraud". The need for that essential ingredient has been followed in many subsequent cases. In 1885, the president of the probate and divorce division said,
"To be undue influence in the eyes of the law, there must be—to sum it up in one word—coercion".
Amendment No. 17 removes the inappropriate legal phraseology from the Bill and removes the temptation for some lawyer or other to try to suggest that normal reasoned argument or a moderate attempt at persuasion by an employer is somehow improper. It substitutes the plain simple concept that coercion is an objectionable and forbidden practice. With that word, there can be no argument as to what is or is not permitted.
Amendment No. 18 to this same provision makes it clear what its objective is, and introduces an element of even-handedness between the employer and the union, since it proscribes using coercion to persuade a worker to vote either for or against the proposition. I beg to move.
Lord Triesman: I shall speak to Amendments Nos. 17 and 18 together, as Amendment No. 18 is consequential upon Amendment No. 17.
The amendments seek to narrow the scope of unfair practices and unfair practice provisions by replacing the unfair practice of using or attempting to use undue influence with coercing or attempting to coerce a worker so as to influence or persuade him to vote for or against any proposition. I promise the noble Baroness, Lady Miller, that I will go back to the 1857 judgment
GC 48
to make sure that I have that right. All I can say now is that it is more recent than Thomas Jefferson, and is therefore closer to my own life.
I must confess that I find the formulation used in Amendment No. 18 a little difficult to grasp. It seems to conflate the concepts of coercion, persuasion and influence so that it would be an offence to attempt to coerce a worker so as to attempt to influence or persuade him. This seems more convoluted than I think was the intention, from what the noble Baroness said. I am not sure that the references to influence or persuasion add to the meaning. It would be simpler just to make it an unfair practice to coerce or attempt to coerce a worker to vote or not to vote a particular way. In addition, these amendments would create an imbalance in the schedule. Similar amendments would have to be made to Clause 12 to ensure that derecognition provisions mirror those for recognition.
I should add that the amendment does not deal with the possible case, important in these situations, where a worker is coerced to abstain from voting. So I think that the amendment is defective, even in its own terms.
6.45 p.m.
However, let me address the noble Baroness's difficulty with the existing wording of the clause. It appears she is concerned that undue influence is too broad a concept. Undue influence is a term borrowed from the law—the Representation of the People Act 1983—prohibiting illegitimate campaigning in public elections. It is borrowed from that because its clarity is always seen to be the greatest when trying to determine whether someone is being induced to vote in a fair or unfair way.
However, it also includes behaviours such as the threat to coerce or use force; causing or threatening injury, damage, harm or loss; and the impediment of the free exercise of the vote by fraudulent device or contrivance. Reducing the scope of this provision would mean, therefore, that activities other than coercion, but perhaps equally reprehensible activities, would not be caught. In particular, it is not clear that threatening behaviour would be an unfair practice under the procedure; nor would deliberately making false or misleading statements, impersonating another party or interfering with the voting process. I am sure that the noble Baroness, Lady Miller, would not wish any such behaviour to go unpunished under the statutory procedure; nor would she have intended that.
We are aware that the stakeholders have been unsure about the meaning of the words "undue influence". As we have made clear to them, attempting to provide an exhaustive definition of this term would limit the effectiveness of the unfair practices provisions in a way that no one would wish for or intend. We would inevitably miss some forms of improper campaigning, and experience in other countries has shown that, where parties are determined to intimidate, they can be very creative indeed in finding ways of getting round the law.

GC 49
We therefore need a general test that will catch all possible cases of intimidatory or similar behaviour. The term "undue influence", which exists in other legal statutes and whose efficacy has been seriously tested, serves a necessary purpose and the clause would be poorer without it.
The Government intend to produce a code of practice on unfair practices which will provide clear guidance to the parties on the meaning of "undue influence" and the kind of conduct it is likely to cover. We will of course consult fully with stakeholders on that code in draft.
These amendments could potentially—we believe that they would—undermine the effectiveness of the unfair practices provisions. Therefore, I respectfully urge the noble Baroness to withdraw them and I give the undertaking that the code of practice should deal with these matters exhaustively.
Baroness Miller of Hendon: I thank the Minister for his reply and his undertakings. Does he have any idea when the code of practice will be ready so that we can read it?
Lord Triesman: I was looking at that very question this morning. We would expect to have consultation in draft form within about three months. It would require affirmative resolution, so your Lordships' House will have the opportunity to look at it in proper detail, and we anticipate that it will be available for use early in 2005. Nothing in Clause 9 will come into effect until the code is in place.
Baroness Miller of Hendon: The Minister's last comment is helpful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 18 not moved.]
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 19:
Page 12, line 4, at end insert—
"( ) It is not an unfair practice within the meaning of sub-paragraphs (1) and (2) if the union as part of its campaign for recognition sets out in general terms the benefits of union membership."
The noble Baroness said: In moving Amendment No. 19, I shall speak also to our Amendment No. 26 to Clause 12, with which it is grouped. Both amendments deal with a similar issue: the first concerns recognition and the second derecognition.
Obviously, the Bill seeks to prevent pressure being put on employees—either by direct threat or in other ways—to try to ensure a particular result. There needs to be protection against intimidation and, of course, against violence. In the Bill, the Government have been anxious to ensure that they are seen to be even-handed. Therefore, the strictures apply to both employers and unions.
The Government's own amendments, which we shall shortly be debating, seek to clarify this clause. They specifically refer to the inadmissibility of violence or the dismissal of any employee. I am sure that most people would agree with that.
I think that those constraints are important, but a union seeking recognition and an employer opposing it are not in positions of equality. An employer holds all the cards. He can indicate in all kinds of ways that a pro-recognition vote would have devastating consequences. Therefore, the Government are right to spell out in their amendment that certain actions cannot be taken.
However, as the wording now stands, it would be possible for an employer to claim that a union was in breach of the provisions in these clauses simply because it was setting out as part of its general campaign the benefits of union membership. The employer could make an application to that effect to the CAC, claiming that offers were being made to employees in order to get them to vote for recognition.
Without an appropriate amendment to the wording of the Bill, the CAC could well feel that there was merit in such an application. Hence the wording of our amendment, which sets out clearly that it would not be an unfair practice within the meaning of the relevant sections of the Bill—either in relation to recognition or derecognition—if the union, as part of its campaign, set out in general terms the benefits of union membership. Of course, that is what unions do all the time. They produce leaflets setting out benefits for individuals, often including very important ones, such as access to legal aid and other individual benefits. That is part of a union's function.
The TUC is aware of this and has already written to me to point out that, without an amendment, the CAC could very well have cause for action simply because a union had emphasised the benefits of union membership as part of its general campaign for recognition.
I note that a code of practice will be produced and I am very pleased to hear about that. But it seems to me that, without something such as this on the face of the Bill, a difficulty could arise. A union rightly setting out in very general terms the benefits of union membership could, to some extent, have the whole recognition process interfered with by a reference to the CAC when that would not be necessary at all and, in any event, the union is simply setting out, as part of its general process, its benefits in order to attract members. I hope that the Government will see that the amendment has some merit. I beg to move.
Lord McCarthy: This is one of the most important amendments that we are asking the Government to consider. In a way, it is a very simple matter. The problem has been that the word "benefits" has been confused with the concept of a "bribe". A benefit is not a bribe and a bribe is not a benefit.
Recently, as a result of attempts to reverse the consequences of the Ullswater amendment, we have been talking a great deal about bribes—that is, bribes by an employer who tries to get people to leave a union by giving them certain incentives. We frequently said that employers were offering benefits, but they were offering a rather different—indeed, a totally different—kind of benefit from the kind that a union says it offers to its members and would-be members.

GC 51
Therefore, the whole idea of Clause 9, which concerns unfair practices in relation to recognition ballots, did not come about because of any specific bribes which unions gave, or were said to give, in order to get people to vote in ballots; it came about partly because of the benefits, which were really bribes, that employers gave to get people to leave a union.
Nevertheless, we are not against Clause 9. We favour the clause and we think that all, or most of, the items in it—those relating to coercion, undue influence and so on—could, and therefore should, apply to unions but not benefits because, in this context, benefits are different. Perhaps a different word should be found, but that is not the solution that we are putting forward in our amendment.
It is not only unions that use the argument of benefits. When a union is trying to gain recognition or membership, it says, "We handle grievances; we handle discipline cases; and we have a legal service. We got this much for our members last year". It quotes its achievements. There is no reason why employers should not quote their own achievements when they struggle to get people to vote the other way in the ballot. They may say, "Well, we gave you very good conditions. You are already earning more than most people who belong to trade unions". They say, "We have an effective, adequate system of information and consultation that does not require trade unions". They talk about their benefits and say, "If you join these unions, they will involve you in strikes and you will lose money". They put forward their argument for not having union representation and the workers and the workers' union put forward their argument regarding the benefits of trade union representation. That has nothing whatever to do with the kind of things that we are trying to strike at in Clause 9. That is why the Government should listen to what we are arguing and take an interest in, and be concerned about, our amendment.
Baroness Miller of Hendon: I ask a question and either the noble Lord or the noble Baroness can tell me whether I am wrong. My understanding is that there is nothing to prevent unions conducting recruiting drives at any time irrespective of the recognition process and that it would be perfectly in order for them to do that.
New sub-paragraph (2)(a) in Clause 9—the provision against undue influence—prohibits offering anything to a worker in return for the worker voting in a particular way. I comment mildly only that I believe there is quite a fine line between breaching that provision and the proposed amendment that would allow unions to campaign for union membership. I do not feel terribly strongly about the matter but I wondered whether one should not be rather careful about this as during the recognition process I believe that unions would be entitled to use records, addresses and so on. Would it be correct to use that for another purpose; that is, for recruitment?
Lord Triesman: As Amendments Nos. 19 and 26 make identical changes to Clauses 9 and 12 of the Bill,
GC 52
with your Lordships' permission I shall confine my comments to Amendment No. 19 for the purposes of simplicity. However, my remarks will apply equally well to Amendment No. 26.
I start by emphasising that the way in which the clause is framed is rooted in electoral law. It seeks, on the basis of a very well tried system, to ensure that people are not subject to inducements or commit improper actions.
My noble friends' amendments seek to address concerns that have been raised by the TUC with respect to the definition of unfair practices contained in paragraphs 27A and 119A. The TUC has indicated that it is concerned with the wording of paragraph 27A(2)(a). It is eager to ensure that it should not capture general statements by a union about the benefits of recognition, or, indeed, any other benefits that a union may provide.
The definition of unfair practices in relation to recognition ballots which we have set out in paragraph 27A(2) draws upon standards of behaviour for public elections as set out in the Representation of the People Act 1983. Paragraph 27A(2)(a) captures the offences of bribery and treating which are set out in that Act. Bribery is the offer of financial reward to a voter in exchange for his voting in a particular way, or for not voting at all. Treating is the offer of non-financial benefits.
Paragraph 27A(2)(a) states that a party to a recognition ballot uses an unfair practice if he,
"offers anything to a worker entitled to vote in the ballot in return for the worker's agreement to vote in a particular way or to abstain from voting".
I think we can all agree that bribery and treating of workers are practices which should be outlawed during recognition and derecognition ballots. Trade unions have, however, expressed concern that the wording of the provision may capture offers which will be legitimately made by a union in the course of a recognition campaign. For example, the union may wish to offer to deploy skilled negotiators who would push for negotiated improvements in terms and conditions if recognition were to be achieved.
Let me make it clear that the Government are in complete agreement with the trade union partners that this sort of statement, made in the course of legitimate campaigning, should not be considered an unfair practice. We are seeking to protect workers, unions and employers alike from underhand attempts to influence the outcome of a ballot. In doing so, we have taken care to ensure that the parties' right to engage in legitimate campaigning activity is not restricted. I use the word "parties" in the plural because it must be in the plural if this is to be a genuinely fair operation. Positive and responsible campaigning behaviour can only encourage participation and well informed voting choices. We intend to reinforce this in the code of practice.
I mention the code of practice again because that is where we shall be able to set out detailed guidance for the parties on the sorts of statements which constitute legitimate campaigning, without trying to write a list,

GC 53
which would never be an accurate or a fully exhaustive list, on the face of the Bill. There is no intention whatever to rule out statements of benefits.
However, the Government's legal advice is that paragraphs 27A(2)(a) and 119A(2)(a) do not have the effect which the unions fear. Put simply, that is because in order to fall within the meaning of an unfair practice, an offer must be made in return for a worker's agreement to vote in a particular way or not to vote at all. In the Government's view, it is difficult to see how the offer by a union of benefits such as improved representation as a consequence of recognition being achieved could be considered to have been made in direct exchange for a commitment by an individual worker to vote in a certain way. We do not believe, therefore, that amendments of this nature are required. In any case, I am not completely convinced that my noble friends' amendments would achieve the effect they desire. There are minor drafting points, as I know there always are at this stage so I shall not labour the point.
The Government are involved in ongoing discussions with the TUC at both ministerial and official level. The TUC have helpfully provided us with detailed explanations of their concerns and we are giving those very careful consideration. Should our deliberations reveal any doubt that the unfair practices provisions circumscribe the freedom of either party to engage in legitimate campaigning activity, we shall of course consider bringing forward amendments at a later time. I hope that I have been able to reassure my noble friends about their concerns. I respectfully urge them to withdraw their amendments.
7 p.m.
Lord McCarthy: The noble Lord has not been with us all that long, but we have been here so many times before. It is always said that legal advisers say that such matters will be in codes of practice, but they will never put them on the face of the Bill. It would be so much simpler if this were put on the face of the Bill. We do not necessarily want our words, but just give us some other words.
The Government made up the matter about negotiation; the noble Lord knows that much better than me. If there is a recognition campaign and one is trying to get membership, one will not stop to say, "You will have skilled legal advisers". That is very sophisticated. One says, "We shall get you more money", or, "Join this union and next week as soon as you have joined and we get recognition, we will put in a wage increase for another 10 per cent". That is a benefit. Some people may say that it is a bribe of some kind. So what? Cruel things take place and cruel things are said in such matters.
It is no good having legal advisers saying that in sophisticated situations it will not arise. It will arise. It is no good saying, "We are going to put in a code of practice", because we shall not see the code of practice until six or nine months after the Bill is on the statute book. The code of practice, as the noble Lord knows very well, will not be the law; it will be taken into
GC 54
account. There is no alternative: if one really wants to do something one should go away and make it up oneself or put something on the face of the Bill. I beg the Minister to put something on the face of the Bill, just for once.
Baroness Turner of Camden: First, I thank the Minister for the very comprehensive way in which he has dealt with our amendment. I am glad to learn that it is not the Government's intention to inhibit the campaigning that unions will do in pursuit of recognition. Of course, my noble friend Lord McCarthy is right. We want to see something on the face of the Bill. We are not wedded to our own words. This is Committee stage and this is a first stab. We tried this wording because we received from the TUC its views on the Bill. We did the best that we could at the time. That does not mean to say that we are wedded to the wording at all.
We want to consider what has been said. I share the view that we would like something on the face of the Bill. We want it made very clear that if unions set out their stall when they are campaigning, and say, as my noble friend has said, "We can do better for you than you can do for yourself; we are good at collective bargaining; we have a good legal aid system", and so on, that should not be seen as offering any kind of bribe to workers or giving any kind of excuse to an employer to head off to the CAC and complain that unions are utilising an unfair practice. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Triesman Lord Triesman moved Amendment No. 20:
Page 12, line 41, leave out from beginning to end of line 9 on page 13 and insert—
"27C (1) This paragraph applies if the CAC decides that a complaint under paragraph 27B is well-founded.
(2) The CAC must, as soon as is reasonably practicable, issue a declaration to that effect.
(3) The CAC may do either or both of the following—

(a) order the party concerned to take any action specified in the order within such period as may be so specified, or

(b) give notice to the employer and to the union (or unions) that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit are asked whether they want the union (or unions) to conduct collective bargaining on their behalf.

(4) The CAC may give an order or a notice under sub-paragraph (3) either at the same time as it issues the declaration under sub-paragraph (2) or at any other time before it acts under paragraph 29.
(5) The action specified in an order under sub-paragraph (3)(a) shall be such as the CAC considers reasonable in order to mitigate the effect of the failure of the party concerned to comply with the duty imposed by paragraph 27A.
(6) The CAC may give more than one order under sub-paragraph (3)(a).
27D (1) This paragraph applies if the CAC issues a declaration under paragraph 27C(2) and the declaration states that the unfair practice used consisted of or included—

(a) the use of violence, or

(b) the dismissal of a union official.

(2) This paragraph also applies if the CAC has made an order under paragraph 27C(3)(a) and—

(a) it is satisfied that the party subject to the order has failed to comply with it, or

(b) it makes another declaration under paragraph 27C(2) in relation to a complaint against that party.

(3) If the party concerned is the employer, the CAC may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.
(4) If the party concerned is a union, the CAC may issue a declaration that the union is (or unions are) not entitled to be so recognised.
(5) The powers conferred by this paragraph are in addition to those conferred by paragraph 27C(3).
27E (1) This paragraph applies if the CAC issues a declaration that a complaint under paragraph 27B is well-founded and—

(a) gives a notice under paragraph 27C(3)(b), or

(b) issues a declaration under paragraph 27D.

(2) If the ballot in connection with which the complaint was made has not been held, the CAC shall take steps to cancel it.
(3) If that ballot is held, it shall have no effect.
27F (1) This paragraph applies if the CAC gives a notice under paragraph 27C(3)(b).
(2) Paragraphs 24 to 29 apply in relation to that notice as they apply in relation to a notice given under paragraph 22(3) or 23(2) but with the modifications specified in sub-paragraphs (3) to (6).
(3) In paragraph 24(5) for "10 working days" substitute "5 working days".
(4) An employer's duty under paragraph (a) of paragraph 26(4) is limited to—

(a) giving the CAC the names and home addresses of any workers in the bargaining unit which have not previously been given to it in accordance with that duty;

(b) giving the CAC the names and home addresses of those workers who have joined the bargaining unit since he last gave the CAC information in accordance with that duty;

(c) informing the CAC of any change to the name or home address of a worker whose name and home address have previously been given to the CAC in accordance with that duty; and

(d) informing the CAC of any worker whose name had previously been given to it in accordance with that duty who has ceased to be within the bargaining unit.

(5) Any order given under paragraph 27(1) or 27C(3)(a) for the purposes of the cancelled or ineffectual ballot shall have effect (to the extent that the CAC specifies in a notice to the parties) as if it were made for the purposes of the ballot to which the notice under paragraph 27C(3)(b) relates.
(6) The gross costs of the ballot shall be borne by such of the parties and in such proportions as the CAC may determine and, accordingly, sub-paragraphs (2) and (3) of paragraph 28 shall be omitted and the reference in sub-paragraph (4) of that paragraph to the employer and the union (or each of the unions) shall be construed as a reference to the party or parties which bear the costs in accordance with the CAC's determination.""
The noble Lord said: I shall speak to Amendments Nos. 20, 22, 29, 90, 91, 92 and 93. As the Committee will be aware, the measures contained in Clause 9 were added to the Bill in another place, as has been mentioned. As my honourable friend the Minister explained at the time those amendments were moved, intimidation is a complex issue. It has taken us some time to work out all the details and to consult key stakeholders on our full proposals.
Clause 9 currently contains a power for the Secretary of State to provide by order for the consequences of a finding by the CAC that a complaint of unfair practices is well-founded. The Government signalled their intention to bring forward amendments in your Lordships' House which would remove this power and put on the face of the Bill the remedies available to the CAC where it makes such a finding. I am pleased to present these remedies to the Committee in this group of amendments which provide the sanctions which apply where an unfair practice has been found to have occurred during the period of recognition ballots.
Grouped with the Government's amendments is Amendment No. 21 tabled by the noble Baroness, Lady Miller, which amends government Amendment No. 20. For clarity I shall deal only with the Government's amendments and I shall respond to the noble Baroness when she has moved her amendment.
The substance of the sanctions is contained in Amendment No. 20. The amendment deletes paragraph 27C, which contains the power for the Secretary of State to provide for the sanctions by order. It then adds new paragraphs 27C to F. Those provide that where the CAC finds that a complaint of an unfair practice is well founded it must, as soon as is reasonably practicable, issue a declaration to that effect. This signals clearly to the parties and, more importantly, to the workers in the bargaining unit that the behaviour in question was improper. If it considers it appropriate, the CAC may then issue an order against the party responsible—whichever party it may be—for the unfair practice to take such action as it considers reasonable to mitigate the effect of the unfair practice in question. In addition, it may decide that there should be a fresh ballot.
If the party in question fails to comply with the CAC's order or commits another unfair practice after it has received the CAC's order, then a second sanction may be issued against it. Later this week we shall see the start of the European football competition, to which many of us shall pay great attention, providing that the timetable of the House makes that possible. That is a heartfelt appeal. I believe that I have just described a yellow card and a red card system. In this case, the red card which the CAC may choose to award, depends on which party has committed a second unfair practice. If it is the employer who has ignored an order of the CAC or committed a second unfair practice, then the CAC will be able immediately to issue a declaration that the union is recognised. If the union is responsible for a further unfair practice or for failing to comply with an order to take mitigating action, the CAC may issue a declaration that the union is not entitled to be recognised.
This system is fair and workable. The CAC's ability to issue an order against a first-time offender ensures that the parties are given an opportunity to correct their behaviour. Should they fail to do so, however, this amendment provides for a strong sanction. I believe that this will act as a significant deterrent for any party contemplating furthering its own cause through illegitimate campaigning.
There are two exceptions to this "two strikes and you're out" approach. I have now mixed metaphors—one relating to football and the other to the United States— for which I apologise. The first concerns violent conduct. British industrial relations are peaceful industrial relations, which is good to say, and for the most part the parties seek to resolve their differences through dialogue. However, we know from the experience of other countries that certain parties have had resort to the violent intimidation of workers. There can be no place for such conduct in a civilised society.
The Government have therefore provided that, where a party is guilty of committing an unfair practice involving violence, the CAC will have the discretion to declare immediate recognition or declare that the union is not entitled to be recognised, even where it is a first offence. That would be a straightforward matter, quite apart from anything that may occur in terms of criminal law.
The same will apply to unfair practices by an employer which involve the dismissal of a union official. A union official is defined at Section 119 of the Trade Union and Labour Relations Act 1992. As well as a full-time officer of the union, a union official is any person elected or appointed in accordance with the rules of the union to be a representative of all or some of its members, including representatives who are employed by the same employer as the members whom he represents. In other words, this category covers the lay representatives of an unrecognised union.
The union's activist is normally vital to any campaign for recognition. He or she is the union's main point of contact with the workers and the main source of information about the progress of the campaign. Unfortunately, it is not inconceivable that a small minority of employers might seek to undermine the union's campaign by dismissing such a representative without justification. Unions allege that such behaviour has already occurred.
It is not hard to imagine the effect that that will have on the workers in the bargaining unit. The message is clear: vote for the union and you risk the same fate. Of course, employers must retain the right to discipline and dismiss their workers where that is called for. These measures do not seek to interfere with that right at all. However, where such a dismissal is made with the intention of intimidating other workers and damaging the union's ability to campaign fairly, the Government believe that it is right that the CAC should be able to impose the strongest sanction. Again, we are sending a clear message that such behaviour will not be allowed to undermine the statutory procedure.
These amendments have been designed to ensure that the CAC has sufficient discretion to ensure that it can take into account all the circumstances of the case before it. Cases where allegations of unfair practices are made may be complex, perhaps involving both claims and counter-claims about intimidatory behaviour. The context in which any unfair practice occurred and the behaviour of all the actors involved
GC 58
will be important in determining what sanction is appropriate and, in particular, whether it merits the strongest sanction. Moreover, a formal sanction may not be required where the intimidatory behaviour has backfired and workers have effectively punished the guilty party at the ballot box. The structure we have provided will allow the CAC to take into account all the circumstances of the case in order to decide whether a particular sanction is appropriate.
I draw the Committee's attention to the arrangements for the CAC to require that a further ballot be held. Where it finds that an unfair practice has occurred and the ballot has either closed or is already underway, it will he open to the CAC to order that a new ballot be held. The results of the first ballot may have been tainted in the eyes of the parties on both sides. We believe it is important that all the parties can have faith in the result of the ballot.
That is why it is important that the CAC should have the ability to order a further ballot where the result is above suspicion. We do not envisage that the CAC would choose to re-run a ballot where the party responsible for the unfair practice had lost the original ballot.
Amendment No. 22 makes it clear that, where the CAC exercises its discretion to call a second ballot, it is no longer under a duty to reveal to the parties the result of the first ballot. That is essential, otherwise it would taint the second ballot.
Amendments Nos. 29, 90, 91, 92 and 93 make consequential amendments to others parts of the Bill and to the parts of the schedule which contain cross-references to declarations of recognition by the CAC to include declarations under the CAC's new powers. I beg to move.
7.15 p.m.
Baroness Miller of Hendon Baroness Miller of Hendon moved, as an amendment to Amendment No. 20, Amendment No. 21:
Line 38, at end insert "and in the event of such a declaration being made, the union shall not make another application to the CAC for recognition in respect of the same (or any similar) bargaining unit within the same employer for a period of 3 years of the making of such declaration"
The noble Baroness said: Before I begin, I sent a message to the Government side saying that I simply cannot stay tonight beyond 7.30 p.m. Therefore, I hope that we do not have to end in the middle of the grouping, and I shall be as quick as I can.
The Government's amendments to Clauses 9 and 12, introduced on 24 May, are intended to remedy deficiencies in the Bill following the GoNernment's introduction of the concept of dealing with unfair practices in relation to recognition ballots in new Clause 9 and in relation to unfair practices in relation to derecognition ballots in new Clause 12.
Subject to what I shall say in a moment about Amendment No. 21, I say at once that I appreciate the fact that the Government have implemented the promise that the Minister, the noble Lord, Lord Sainsbury, made to me to introduce amendments to

GC 59
meet the concerns that we had expressed to him about the original provisions, which we found to be very one-sided.
The new amendments do, indeed, go a very long way to meeting those concerns. In consequence, I was able to withdraw what I considered to be my somewhat more succinct amendments on that subject. However, I believe that some further tightening up of the provisions would not go amiss, and I hope that the Government will consider what I am about to say with a view to further tweaking. I do not expect the Minister to make a decision about that today. However, if, at some stage, he would like to write to me, I shall be happy to receive a letter.
I should like to see a union prohibited from relying on votes of persons who have been members for less than three months, who are in arrears with their union subscriptions or who have been made members of the union without paying any subscription. Members of the Committee who are members of a political party will recognise that that is a fairly standard provision—at least, it is in my party—to prevent a meeting being packed or a ballot box being stuffed.
I say at once that I do not suggest that to take part in a recognition ballot an employee must either be a member of a union or must promise to become one. The Bill, and the previous Acts that it is amending, do not impose any such qualification on an employee before he can vote in a recognition ballot. If the Government are willing to accept the principle of this point, I certainly agree that they should simultaneously remove any possible misunderstanding or ambiguity relating to the matter. I think that it is clear but the noble Lord may not agree.
The new paragraph and the Government's amendment should also make it absolutely clear that the decision about the existence of coercion or intimidation rests entirely within the discretion of the CAC. To avoid disruption of recognition procedures and litigation over possibly minor infractions by either side, the CAC should have the power to ignore it if it believes that any such activity is not significant to the outcome of the ballot.
That brings me to my Amendment No. 21. New paragraph 29D(4) proposed by the Government gives the CAC power to close down the recognition procedure if it is satisfied that a union has been guilty of what sub-paragraph (1) of that paragraph calls an "unfair practice".
My amendment to the Government's amendment would provide that, if the CAC found itself obliged to impose that drastic sanction, the recognition process should not be restarted for a period of three years. That is identical to the period already stipulated by Parliament—buried, I believe, somewhere in Schedule A1 to the 1992 Act, as amended by the 1999 Act, and referred to in the amendment tabled by the noble Lord, Lord Lea, which follows Clause 10.
It would be farcical for the CAC to dismiss the recognition claim because of union misconduct on Monday, only to find it starting it again on Tuesday.
GC 60
For the sanction to have any meaning at all, it needs to be coupled with a suitable period of self-denial. For the union to avoid the sanction, which only the CAC can impose, it simply must not indulge in what the Government have defined as an unfair practice.
The noble Lord, Lord Triesman, wrote to me following my speech at Second Reading. He complained that the amendment tabled in the other place by my honourable friend the Member for North West Norfolk to deal with intimidation said nothing about intimidation of workers by employers. I agree with that criticism as I know my honourable friend would, had he been allowed to debate his amendment, which under the rules of the other place he was prevented from doing.
The government amendment to Clause 12 covers the point. It gives the CAC the same sanctions over derecognition procedures if there is intimidation by employers as applies to unions in the case of the recognition procedure. The Minister in his letter to me mentioned union complaints of,
"evidence of this sort of behaviour by employers".
I do not doubt for one moment that such allegations may have been made. I cannot, of course, comment on their validity. I certainly do not want to get into a tit-for-tat argument about who has done what. I place on record that I am sure that the Minister and the Committee are at one in deploring any bad behaviour on either side in this kind of procedure. I beg to move.
Baroness Turner of Camden: The amendment is directed at unions in particular, so that they cannot apply for recognition for a period of three years. Does the noble Baroness, Lady Miller, consider that the same provision would be appropriate to an employer seeking derecognition but failing to get it? Would he be ruled out on the same basis? Would an employer be unable to attempt derecognition for three years?
Baroness Miller of Hendon: The noble Baroness makes an interesting and probably correct point. I shall certainly consider that.
Lord Triesman: I thank the noble Baroness, Lady Miller, for the way in which she has made her point. It was conspicuously even-handed. I also apologise for the length of my comments in introducing the new raft of material. It would have been silly to deal with serious new material casually.
Amendment No. 21 ensures that where the CAC has issued a declaration that the union is not entitled to be recognised because it has committed serious or repeated unfair practices, the union may not make a further application in respect of the same employer and the same bargaining unit for a period of three years.
The amendment is not necessary to achieve exactly that result. The Government's policy is that where the CAC declares that a union is not entitled to be recognised on the grounds of unfair practices, that union may not apply for recognition for the same bargaining unit, or a very similar one, for a period of three years. Like the noble Baroness, Lady Miller, the

GC 61
Government believe that it is important that once an application under the statutory procedure has reached its conclusion, there should be a period in which industrial relations are allowed to settle without the risk of continuous disruption through repeated applications. In the negotiations which led to the settlement contained in the 1999 Act, it was agreed that three years is a suitable period of time.
This policy is certainly not explicitly stated in Clause 9 because it is already provided for in the recognition schedule. Paragraphs 33 to 42 of the schedule set out the admissibility criteria which any application for recognition must meet in order to be accepted by the CAC. Paragraph 39 provides that an application for recognition is not admissible if the CAC has accepted an application in respect of the same or substantially the same bargaining unit in the previous three years (paragraphs 33 to 42).
Paragraph 39 will also apply without any need for amendment where the CAC had issued a declaration that the union is not entitled to be recognised under paragraph 27D(4). Such a declaration may be issued where the union has committed a violent unfair practice or repeated unfair practices, or because it has failed to comply with an order of the CAC to take action to mitigate the effects of an unfair practice that it has committed.
I should add that the three-year moratorium also applies in the case of derecognition, which was a question asked by my noble friend. I note that the noble Baroness has not tabled a corresponding amendment to government Amendment No. 27, but she was generous enough to say that it was an issue to which she would wish to attend. However, it is covered in the legislation. Where an employer's application for derecognition fails because he is guilty of committing unfair practices, a similar three-year moratorium will
GC 62
apply on further applications to derecognise the union. The same will apply to failed applications by a worker or workers.
The Government have already ensured that there will be a moratorium on further applications where a party loses its case as a sanction for having committed an unfair practice. For clarity that is needed. I respectfully ask that the amendment be withdrawn, given the assurances that I have been able to give. I believe that we have made the changes that my noble friend Lord Sainsbury said we intended to make. I am grateful to the noble Baroness for reminding the Committee of that as well.
Baroness Miller of Hendon: I am grateful to the Minister for his assurances and for the explanation that the amendment is not necessary. In those circumstances, I have pleasure in withdrawing my amendment.
Amendment No. 21, as an amendment to Amendment No. 20, by leave, withdrawn.
On Question, Amendment No. 20 agreed to.
Lord Triesman Lord Triesman moved Amendment No. 22:
Page 13, line 9, at end insert—
"( ) In paragraph 29 of that Schedule (duties of the CAC when informed of result of ballot), after sub-paragraph (1) insert—
"(1A) The duty in sub-paragraph (1) does not apply if the CAC gives a notice under paragraph 27C(3)(b).""
On Question, amendment agreed to.
Clause 9, as amended, agreed to.
Lord Davies of Oldham: This may be a convenient moment for the Committee to adjourn until Wednesday at 3.30 p.m.
The Deputy Chairman of Committees (Viscount Simon): The Committee stands adjourned till Wednesday next.
The Committee adjourned at twenty-seven minutes past seven o'clock.

  Ulster-Scots Agency
  Ulster-Scots Agency
  Downing Street Receptions: Guest Lists
  Downing Street Receptions: Guest Lists
  Iraq: Civilian Deaths and Injuries
  Iraq: Civilian Deaths and Injuries
  Iraq: Unlawful Killings
  Iraq: Unlawful Killings
  Iraq: Museums and Archaeological Sites
  Iraq: Museums and Archaeological Sites
  China: Provision of Weapons to Burma
  China: Provision of Weapons to Burma
  Burma: Refugees
  Burma: Refugees
  Burma: Freedom of Religion
  Burma: Freedom of Religion
  Burma: Forced Labour
  Burma: Forced Labour
  Sudan: Darfur
  Sudan: Darfur
  Sudan: Freedom of Religion
  Sudan: Freedom of Religion
  GCHQ Research Institute
  GCHQ Research Institute
  European Union Constitutional Treaty
  European Union Constitutional Treaty
  Zimbabwe: England Cricket Tour
  Zimbabwe: England Cricket Tour
  Cyprus: Legal Points of Entry
  Cyprus: Legal Points of Entry
  Roma Children
  Roma Children
  Iraq: Red Cross Report
  Iraq: Red Cross Report
  Iraq: Fallujah
  Iraq: Fallujah
  Gulf War 1990–91: Vaccines
  Gulf War 1990–91: Vaccines
  Defence Industry
  Defence Industry
  Aircraft Carriers
  Aircraft Carriers
  Universities: Funding
  Universities: Funding
  Higher Education: Doctorates
  Higher Education: Doctorates
  School Sport Partnerships
  School Sport Partnerships
  Drug Treatment and Testing Orders
  Drug Treatment and Testing Orders
  Electoral Roll
  Electoral Roll
  Human Rights
  Human Rights
  Pregnancy: Exposure to Toxic Chemicals
  Pregnancy: Exposure to Toxic Chemicals
  Sulphuric Acid
  Sulphuric Acid
  Government Efficiency Review
  Government Efficiency Review
  Immigration: Effect on Economic Growth
  Immigration: Effect on Economic Growth
  Personal Remittances
  Personal Remittances
  Job Vacancies
  Job Vacancies
  Meat: Illegal Imports
  Meat: Illegal Imports
  Playing Fields
  Playing Fields
  Sport England
  Sport England
  Sport: High Performance Funding
  Sport: High Performance Funding
  International Sport Federations
  International Sport Federations
  Iraq: Costs of Military Action and Reconstruction
  Iraq: Costs of Military Action and Reconstruction
  Employment Tribunals
  Employment Tribunals
  Wind Power
  Wind Power
  Nuclear Safeguards Act 2000
  Nuclear Safeguards Act 2000
  NHS Trusts: Finances
  NHS Trusts: Finances
  Skin Conditions
  Skin Conditions

  Strategic Export Controls: Annual Report 2003
  The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean)
  The 2003 annual report on strategic export controls will be published at 14.30 today as a Command Paper, and copies will be placed in the Library of the House. The report includes information on licensing decisions made during 2003 as well as describing UK policy and international developments in export control regimes.

  Annual reports on strategic export controls are an innovation of this Government. Our defence exports licensing system is one of the most rigorous and open in the world and this annual report is a symbol of our commitment to transparency and accountability. This will be the Government's seventh annual report (the first report was published in 1997). The report will be available on the FCO web site (www.fco.gov.uk) and published through The Stationery Office.

  Genetic Sequences: Patents
  The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville)
  In response to the House of Lords Select Committee on Genetic Databases report, the Government made a commitment to carry out an investigation into the impact of current UK law and practice regarding patents for genetic sequences. I am pleased to announce that the Intellectual Property Institute (IPI) on behalf of the DTI has now completed this study.

  The Government welcome the main findings of the study, which show that current UK law and practice regarding patents for genetic sequences is generally meeting the needs of those currently active in this research area. The study indicates that this is true for both public and private sectors.

  In its recommendations the study identifies two key areas that could be addressed, to improve the current situation further: reducing uncertainty about the extent of the patent research exemption; and improving the public perception of the patenting of biotechnological inventions.

  Work is now being undertaken to explore how best to take these two issues forward.