Sitting of 28 June 2004

Preamble
The House met at half-past Two o'clock
PRAYERS
[MR. SPEAKER in the Chair]
Oral Answers to Questions
  CULTURE, MEDIA AND SPORT
  The Secretary of State was asked—
  CULTURE, MEDIA AND SPORT

    Licensing Act 2003
    Miss Anne McIntosh: What assessment she has made of the effects on golf clubs of the Licensing Act 2003. [180460]
    The Minister for Sport and Tourism (Mr. Richard Caborn): The Licensing Act 2003 will not, in practical terms, require golf clubs to change significantly the way they operate under the current legislation, except with regard to the sale and supply of alcohol to young people under the age of 18. That has been accepted by the English Golf Union, which had some concerns. I believe those have been answered by my officials.
    Miss McIntosh: The Act is causing great consternation the length and breadth of the country, not least in the Vale of York, which is packed with excellent golf clubs—some of the best in the country. What
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    impact will the Act have on green fees and in particular, when does a guest cease to be a guest and become a visitor?
    Mr. Caborn: Some 300 MPs have written to me and I have signed off a letter in reply. The hon. Lady wrote to me on 7 June and I replied to her on 20 June to allay the fears of the English Golf Union. There is no need for any increase in green fees. Indeed, I am hopeful that under the Act, golf and other clubs will have access to entertainment and liquor licences. We are bringing five regulatory authorities into one and removing a series of impediments to development. I hope that such streamlining will assist golf clubs, as well as other clubs and the wider entertainment industry.
    Mr. Kevan Jones: I recently wrote to my right hon. Friend on behalf of Chester-le-Street golf club. I thank him for his reply and clarification, which I have sent round the other three excellent golf clubs in North Durham. Does he agree that some of the confusion rightly expressed by golf clubs and others is due to the fact that guidance on certain aspects of the Act has not yet been published? When can we hope to have full clarification? Would it be an idea to produce some type of guide, so that voluntary organisations such as golf clubs would understand the Act?
    Mr. Caborn: My hon. Friend should know that we published guidance about a month ago—
    Mr. Malcolm Moss: The guidance has already been scrutinised by the House.
    Mr. Caborn: Indeed. Hopefully, we will soon be able to announce the first allotted day and the guidance will be implemented by autumn 2005. Through the guidance, we should be able to clear up all the queries that golf clubs and others have. To comply with the Act, local authorities must issue a statement of their policy on implementing it.
    Mr. Moss: Will the Minister kindly explain to the House the difference between a non-invited non-qualifying club member signing into a local Conservative or Labour club and being refused a drink at the bar, and the same person turning up unannounced and uninvited and signing in for his green fee to play a round of golf while on holiday, yet being allowed to buy himself a drink at the bar afterwards?
    Mr. Caborn: If the hon. Gentleman studies the Act carefully, particularly the provisions dealing with associate members and sees how we have been able to incorporate the definition of "guests" in that, it would allay his fears and those of every golfer. We are not affecting activity on the 19th hole. On the contrary, when the Act is implemented, I believe it will bring distinct advantages to golf clubs and other sports clubs. The fears that the hon. Gentleman expresses at the Dispatch Box have been addressed. If he reads the 2003 Act, he will see what it says about associate members, how guests are now incorporated in that, and the definition of a golf club, which is not primarily a club that is licensed for drinking—the bar is an associate part of a golf club. If he interprets the Act with a degree of common sense, he will be able to answer his own question.

    Alcohol Harm Reduction Strategy
    Mrs. Janet Dean: What plans she has to support and promote an alcohol harm reduction strategy with the relevant groups and industries. [180461]
    The Secretary of State for Culture, Media and Sport (Tessa Jowell): My right hon. Friend the Home Secretary and I are meeting the alcohol industry this afternoon to discuss its role in the delivery of the alcohol harm reduction strategy. My officials are also working closely with other Government Departments, the police, local authorities and the industry on the implementation of the strategy.
    Mrs. Dean: I welcome my right hon. Friend's response. Representing a brewing constituency, I know the keen willingness of the industry to co-operate with Government. Last Christmas Coors Brewers based in my constituency worked with the Scottish Executive to produce alcohol responsibility advertisements, which not only were noticed, but had credibility with young people. Can my right hon. Friend reassure me that the Government will work with the alcohol industry to produce similar advertisements throughout the UK to make sure that we tackle the binge drinking that is so prevalent in our communities?
    Tessa Jowell: I thank my hon. Friend for that question. The Coors initiative is exactly the sort of positive contribution that we are looking to the industry to make. I hope that other brewers will follow the Coors example. As a result of its investment in her constituency, the alcohol and addiction centre has benefited to the tune of several hundred thousand pounds. This is a very constructive and socially responsible initiative by Coors, and I hope that other brewers will follow.
    Mr. Don Foster: While the whole House will welcome the Government's alcohol harm reduction
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    strategy, does the Secretary of State accept that it is not helped when a public service broadcaster such as Channel 4 shows scenes of abuse-filled fights on "Big Brother", in total contradiction of the strategy that she is trying to adopt? What will she do to ensure that such things do not happen again?
    Tessa Jowell: Let me make a general point. I think that public service broadcasters have a very constructive potential role to play in getting these messages across to young people and not glorifying binge drinking. That is a contribution that they can make. The incident from "Big Brother" to which the hon. Gentleman referred is a matter for the regulator in looking at the content of the programme against the licensed conditions of the broadcaster.
    Mr. Kelvin Hopkins: My right hon. Friend will be aware that the real price of alcoholic drinks has fallen substantially as a proportion of disposable income since the 1970s. Will she discuss with her ministerial colleagues the price of alcohol; how the minimum price might at least be sustained, if not increased; and how she would prevent floods of cheap alcohol from coming in from the continent of Europe?
    Tessa Jowell: Yes; those are exactly the kind of issues about which we in government are very concerned. In particular, we are concerned about the free promotions that say "Spend £5 and drink as much as you can" and the kind of incentives that get too many young people drunk and create precisely the sort of problems in our inner cities and city centres, particularly at the weekends, that make those places a no-go area for some people. We are determined to tackle that issue.
    Miss Julie Kirkbride: Can the right hon. Lady explain the point of engaging with relevant organisations when her Government do not take their advice? Will she confirm that the following sentence appeared in the draft alcohol harm reduction strategy that was circulated to the Cabinet in August 2003:
    "Relaxing availability… increases general harm whether through more outlets (Finland), denser outlets (California) or longer hours (Western Australia)"?
    Will she confirm that that sentence featured in the original strategy, and can she explain why it was taken out?
    Tessa Jowell: I shall write to the hon. Lady about that point, because I want to be clear and accurate in the answer that I give. Let me give her the endorsements that we have received of the case for flexible opening and its benefits as a way of tackling the increasing culture of binge drinking, especially among young people. The Association of Chief Police Officers has been consistent in its support of the removal of rigid permitted hours and the introduction of more flexible opening hours, because of the strong link to crime and disorder. That was followed up four years later, when its president reinforced that point on the "Today" programme. Rick Naylor of the Police Superintendents Association made a very similar point. There are many reasons for moving to flexible opening hours, one of which is the advice of

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    the police that that is one of the ways in which we can deal with disorder in our city centres. It is also one of the ways in which we can tackle binge drinking.
    Miss Kirkbride: I am not sure whether Home Office Ministers agree with the right hon. Lady on this matter. She kindly offered to write to me, but she will be aware that the Home Office has already written to my right hon. Friend the Member for Haltemprice and Howden (David Davis) pointing out that the strategy unit took medical advice, but that it was never published when it came to the wider parts of the alcohol harm reduction strategy. Given what she has said today, rather than writing to me, will she undertake to place in the Library both the medical advice that was taken by the strategy unit on behalf of the alcohol harm reduction strategy and the original draft document that was given to the Cabinet in August 2003? Then we can all make up our minds on this matter.
    Tessa Jowell: The strategy unit reported to the Prime Minister, and I do not want to discuss the process by which information is or is not published, but the Cabinet Office and the strategy unit will be aware of the hon. Lady's questions. Let us focus on the key issue: the Home Secretary and I are at one on tackling alcohol-related crime, and flexible opening hours, which we introduced in the Licensing Act 2003, are one way to do that.
    The 2003 Act gives local people and local authorities unprecedented powers to intervene where licensees fail to act in accordance with their obligations. If a licensee's failure to oversee the proper conduct of their premises leads to crime and disorder, that licensee will lose their licence and their livelihood. Government action will be judged against the licensing objectives in the 2003 Act, and the overriding objective is the prevention of crime and disorder. The hon. Lady can ask for any information that she wants, but it will not deflect the Government from making sure that fewer alcohol-related crimes take place, and that our city centres become places of pleasurable relaxation, rather than no-go areas, which is how many people currently regard them.

    Playing Fields
    Mr. Andrew Robathan: When he last met the National Playing Fields Association; and what was discussed. [180462]
    The Minister for Sport and Tourism (Mr. Richard Caborn): On 27 May 2004, I met representatives from the NPFA, along with representatives from each of the other organisations that make up the national playing fields monitoring group. The purpose of the meeting was to discuss the future role of the monitoring group.
    Mr. Robathan: Why do so few on the monitoring group agree with the Government's assessment that the development of playing fields is under control? Has the Minister heard the comments by Don Earley, the deputy director of the NPFA:
    "The government set up a Playing Fields Monitoring Group four years ago to publish monthly statistics on the loss of playing fields. What the government has done is mix up facts relating to playing fields' losses with playing fields' improvements… As presented, the picture on threats and losses is about as clear as the slimy mud on which our children are all too often expected to play sport"?
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    Those who are involved with playing fields know that both development applications and approvals for planning applications are increasing. More than half of the planning applications approved in the past year led to a reduction in playing fields or sports facilities.
    Mr. Caborn: First, Don Earley attended the meeting that I referred to, and he did not give that impression. He is aware of the draft terms of reference that we have suggested to take the debate forward, which we want to do, rather than always reflecting on the past. The hon. Member for Blaby (Mr. Robathan) knows that, in 1990. the Conservative Administration gave planning permission, lasting for 15 years, to build an office block on a cricket pitch in his constituency.
    We are engaged in a constructive discussion with the NPFA and Don Earley. I do not know where the statement quoted by the hon. Member for Blaby came from, because Don Earley did not make such points to us, and he and other partners want to work constructively to find solutions to some of the problems. We want to advance the debate, rather than always looking at headlines in the Daily Mail and other papers, which will not acknowledge the £250 million investment in 2002–03.
    David Taylor: I cannot be the only hon. Member who sometimes feels a sense of foreboding and doom when I hear that a particular activity is "at the heart of Government policy". Recent statistics on playing fields and open space sales show that about one third of such sales occur in closed or closing schools, which is understandable, and that another third of such sales lead to improved facilities, which is fine. Is the Minister happy that the policy is sufficiently stringent to prevent other sales and disposals creeping under the wire, because one quarter of approved applications do not fall into either of those two categories?
    Mr. Caborn: Very much so. The rules and regulations on the closure of playing fields are robust, and I am convinced that they will address the growth in sales. Planning applications for improvement and development are increasing—many such applications involve a change of use for playing fields—whereas in the past many planning applications involved closure. Conservative Members should realise that our young people want to play using state-of-the-art equipment such as Astroturf pitches, indoor facilities and floodlit areas. When Mick Hill, a fantastic javelin thrower, opened the English Institute for Sport in my city of Sheffield, he said, "If only we'd had these facilities 10 or 15 years ago so that our Olympians were able to practice indoors, we could have produced better results than we are doing now. It is great to pick up a javelin that is warm and not to have to pick the ice off it on a winter's evening somewhere up in Leeds."
    Mr. Nick Hawkins: The Minister should recognise that in his Department's categorisation of the number of sites that have been allowed to be built on, the largest sub-category is:
    "where the site was too small or the wrong shape to accommodate a playing pitch."

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    Many of those involved in sport are mainly interested in children being allowed to kick a ball or play cricket wherever there is a playing field. They do not want that to be used as an excuse for allowing development, as we suspect that the Government have. If one travels to other countries that have produced many more successful Olympians than we have, one does not see their playing fields being built on. The Government are trying to find excuses for building on playing pitches instead of doing what they promised to do—stop the building.
    Mr. Caborn: I have heard some claptrap in my life, but that is the best yet. When the Conservative Administration were in power, they closed 40 playing fields a month, whereas we have put in place the most robust criteria on playing fields that there has ever been. The revised version of PPG17 reduces the area of playing fields being built on—admittedly, not by as much as the National Playing Fields Association wanted, but that is part of the ongoing debate. The situation is a darn site better now than it was when the Conservatives were in power.

    Arts (North-west)
    Helen Jones: If she will make a statement on Government support for the arts in the north-west. [180464]
    The Minister for the Arts (Estelle Morris): During the current spending period, Arts Council England, North West will spend almost £80 million in support of the arts across the region. Annual investment is increasing from £20.8 million last year to £28.4 million in 2005–06—an overall increase of 37 per cent.
    Helen Jones: I am grateful to my right hon. Friend for that reply and sorry that my hon. Friend the Member for St. Helens, North (Mr. Watts) is not here to hear it. However, does she accept that a lot of that money goes into the big regional centres and that smaller towns such as Warrington find it much more difficult to access it? What support can she can give to initiatives such as the Pyramid arts centre in Warrington and the Warrington art gallery, which is one of the oldest municipal art galleries in the country, to ensure that the people of all the towns in the region have easy access to the arts?
    Estelle Morris: I believe that the Pyramid centre is one of the organisations in Warrington that has received Arts Council funding. Nevertheless, there is an element of truth in what my hon. Friend says. There is a tendency for regional arts organisations to invest in centres of population because more people can gain access to visit and transport links tend to be better. I agree that that by itself is not sufficient; over time, I want investment to stretch far beyond the urban centres.
    I draw my hon. Friend's attention to the "Renaissance in the Regions" initiative whereby money is invested in museums that link with smaller museums serving much smaller population centres. I hope that that is a sign of things to come. Although Warrington museum is not part of the renaissance in the north-west
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    of England, it is a hugely successful project, and I hope that given the necessary resources we will be able to expand it.
    Mr. Michael Jack: Sadly, the borough of Fylde, unlike Warrington, does not have an art gallery. As a result, its substantial art collection, which includes many of the major works by the Victorian artist Richard Ansdell, remains unseen by members of the public throughout the north-west. Will the Minister use her Department's resources and expertise to provide advice and a strategic way forward to ensure that the people of Fylde and the north-west can at long last see these art treasures?
    Estelle Morris: I am not sure whether the Department can do anything to build a museum or to deal with that specific problem, but I understand and am concerned about the number of beautiful objects and artefacts that the public never see. Almost two thirds of the objects that museums hold are never seen or are in storage. There is a need for some radical and innovative thinking to ensure that they are seen. If Fylde does not have a museum, perhaps some of those artefacts could go on loan to neighbouring places, which have museums. I understand that that might be second best as far as the right hon. Gentleman is concerned, but I shall draw the existence of the collection to the attention of the north-west regional Museum, Libraries and Archives Council and hope that it can be seen. It is no good to anybody if it is not seen.
    Mr. Boris Johnson: How can the Minister reconcile the positive tone of the Secretary of State's recent speech, which was warmly welcomed in the arts world because it appeared to be moving away from intrusive political objectives for arts funding, with the Government's continuing and increasing addiction to quotas and targets? They affect museums, not least in the north-west. Does not she agree that the single greatest act of creativity and human ingenuity that the Government have encouraged in the arts is the invention of bogus statistics, which are designed purely to satisfy their meddlesomeness and Stalinist obsession with quotas?
    Estelle Morris: The hon. Gentleman falls into the trap of thinking that, as a country, we have to choose between art, museums and galleries as excellent and worthy in their own right and the contribution that they can make to other parts of civic and national life. My right hon. Friend the Secretary of State said that it was a case not of "either/or" but of "both". Like her, I am happy to defend art for art's sake—I believe that we should always do that—but that does not detract from the contribution that art can make to wider social agendas. It is important that art can contribute to well-being, community cohesion, regeneration, higher educational standards and better mental health. We should not ignore that.
    On targets, the Government are investing in the arts—including in museums and galleries in the north-west as well as in other regions. The taxpayer has a right to ask us what return there has been for that investment. We therefore ensure that the investment is targeted and brings about positive outcomes, such as more visitors

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    from a wider range of backgrounds. I am pleased that we have those statistics because they allow us to show the success of the Government's. policies.

    BBC Charter
    Mr. John Grogan: If she will make a statement on the duration of the next BBC charter. [180465]
    The Secretary of State for Culture, Media and Sport (Tessa Jowell): As my hon. Friend is aware, there is no fixed time for BBC charters, although they tend to run for 10 years. We will consider all aspects of the charter, including its length in the current review. We have drawn no conclusions about that yet. The only certain outcome is a BBC that is strong and independent of Government.
    Mr. Grogan: Does my right hon. Friend agree that, if the traditional 10-year charter—as backed by ITV—is agreed, it will be a strong sign of Parliament's confidence in the need for a strong, independent BBC with a renewed commitment to public service broadcasting under its new leadership, whereas the five-year charter, which some would advocate, would create great uncertainty and inhibit the BBC's ability to plan for its role in broadcasting, post-digital switchover?
    Tessa Jowell: I am well aware of the arguments that my hon. Friend has expressed in favour of continuing the customary practice of a 10-year charter for the BBC but, as I said, that and all other aspects of the BBC's governance and financing are currently subject to the review of its charter.
    Mr. Adrian Sanders: Will not decisions on the next BBC charter be helped by early publication of the Philip Graf report into BBC online services? Will the Secretary of State confirm whether she has received the report and when she will publish it and provide a response?
    Tessa Jowell: I have received the report, which will be published shortly. I think that Philip Graf's excellent assessment of BBC online has some important implications for the charter review.
    David Winnick: As far as the charter review is concerned, will my right hon. Friend be especially on her guard against those, whatever their party, whose agenda is to undermine and privatise as much of the BBC as possible? I know that she is on the side of the angels on that issue.
    Tessa Jowell: The short answer is yes. We are looking at every aspect of the BBC. It holds a very important place in our nation's life, and public service broadcasting is a critical part of the offer that is made to the wider public. The BBC is our principal public service broadcaster, and yes, I am confident that we will see a strong future for the BBC, but it must be a strong BBC that is independent of the Government.
    Michael Fabricant: Will the right hon. Lady avoid listening to the siren voices that are
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    saying that the BBC should have only a short charter, because of the length of time that it takes to change the structure of the BBC, given that there is now so much more competition? It would be just as difficult for the BBC as it is for any other organisation to plan ahead and provide good programming if the charter were reduced to just five years. If the BBC is to fulfil its public service remit, a 10-year charter will be necessary.
    Tessa Jowell: This is precisely the public debate that we are now having, and what I welcome most about the charter review is that this is the first time ever that the public—the licence fee payers—have been engaged in the debate about the BBC's future. The public have responded with enthusiasm and engagement in that debate—
    Michael Fabricant: Have they?
    Tessa Jowell: They certainly have. There have been 5,000 written responses and 26,000 unique visitors to the website. It has been a very successful consultation, and we take the views that we have received very seriously indeed when dealing with precisely the kind of debate that has been reflected in the points raised this afternoon.

    Antisocial Behaviour
    Mr. Russell Brown: What steps she is taking to encourage organised sporting activities, with the support of the police and local authorities, to combat antisocial behaviour of youths. [180467]
    The Minister for Sport and Tourism (Mr. Richard Caborn): My Department is working very constructively with the Home Office and the Youth Justice Board to use sport to combat antisocial behaviour, most notably through the positive activities for young people programme and the positive futures programme. Sport England is putting an extra £500,000 funding into the positive futures programme this year.
    Mr. Brown: I thank my hon. Friend for that reply. In my constituency, as well as in many other parts of Scotland, we have seen the introduction of a midnight football league, supported by the police, the local authorities, the Bank of Scotland and, of course, the Scottish Football Association. Such initiatives are taking young people off street corners where they would otherwise be hanging about aimlessly or perhaps indulging in under-age drinking. Will the Minister promote such initiatives on a far wider scale and—dare I ask?—even support them with some financial input at the same time?
    Mr. Caborn: I do not know the exact details of the scheme to which my hon. Friend refers, but I do know about midnight basketball, which is a similar initiative. A few months ago, I went to St. Pancras to visit a scheme that the National Playing Fields Association were involved in and had raised money for. It was absolutely fantastic. The youngsters had to have a quarter of an hour's lecture on the misuse of drugs before they went on to play basketball. The organisers brought in some of the basketball players from the area as well, and it was

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    absolutely superb. It really showed the power of sport to communicate in a way that sometimes little else can. Football has obviously taken that message to heart in Scotland. This is an area in which we might be able to look at the two schemes to which I have referred—the positive activities for young people programme and the positive futures programme—and perhaps tailor them to fit into the funding programmes that we already have. To date, 18,000 young people have made progress through the positive futures programme, which focuses on some of the most disadvantaged parts of the UK.
    Mr. David Heath: I entirely agree with the concept of organised sport contributing to the reduction of antisocial behaviour, but the Minister must not lose sight of the value of informal sporting opportunities, such as simply having a kick-about or somewhere to skateboard. Such opportunities are often not available in towns because there are signs saying "No ball games", and they are not available in the country because young people cannot get to the places where such activities are provided. Do we not need a much more focused approach by district councils, and Government support through the provision of cash to make such spaces available?
    Mr. Caborn: That is exactly what I was referring to earlier, and we have brought together playing fields and activities and facilities in looking at how we can do that. My hon. Friend the Member for Dumfries (Mr. Brown) talked about football in Scotland. On the south coast I saw one of the most innovative schemes, which involves BMX-ing, blading and skateboarding in an old converted garage. What the scheme is able to do is absolutely superb, especially in taking young people who did not want to get involved in organised sport. That is the window—the gateway—through which we can get them into organised sport.
    Only a couple of weeks ago, I was down in Croydon with Duke McKenzie, the former triple world boxing champion, to see what he is doing with 24 young people brought to him by the probation service. It was absolutely fantastic. Talking to those young people showed how they now respect themselves and the company they are in, which is first class. We can use sport in many and varied ways to address antisocial behaviour.
    Mrs. Gwyneth Dunwoody (Crewe and Nantwich) (Lab): Will my right hon. Friend look, however, at how some of those organisations spend their money, particularly those such as the Football Foundation, which seem to find it simple to accept applications from those who are directly connected with commercial football, but find all sorts of barriers to put in the way of inner-city schemes that would give ordinary children exactly the support that they desperately need? Things are the wrong way round, and it is about time that we had some proper priorities.
    Mr. Caborn: I am sorry that my hon. Friend thinks of the Football Foundation in that way, because it has motivated and developed a lot of grass-roots schemes through football. There are 40,000 football clubs in this country, which gives football the greatest participation by far, and I know that other sports are using those ideas to bring on young people and get them into sport.
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    I will look at the specific question, but I am bound to say that, under the leadership of Dave Richards, the Football Foundation has done a tremendous amount in the recent past in trying to couple the New Opportunities Fund with a series of Government initiatives and to make some sense out of that in terms of focusing on the inner-city areas. Football sometimes gets where other sports cannot get, and in using that avenue—that conduit—I believe that we can get more young people up and down the country playing more sport, particularly in inner-city areas.

    World Heritage Sites
    Mr. Jim Cousins: What steps she is taking to improve the (a) protection and (b) accessibility of new finds on world heritage sites. [180468]
    The Minister for the Arts (Estelle Morris): The Department is keen to ensure accessibility to our cultural heritage, but that needs to be balanced with the needs of conservation and protection. That applies to all finds, irrespective of whether they are in world heritage sites. The Department is reviewing legislation on the protection of the historic environment.
    Mr. Cousins: I know that no one understands the linkage between heritage and regeneration more than my right hon. Friend. May I ask for her help in ensuring that a new length of Hadrian's Wall, which has been discovered on a building site in my constituency in an area next to some council flats, is made accessible? It has some unusual forward defensive features, indicating that Tyneside kept the Romans pretty busy right to the end. I am told that if property values in the area reflected London values it would be made accessible, but that because it is next to some council flats it cannot be. Will she consider this inequality and see whether something can be done?
    Estelle Morris: I am aware of the find of part of Hadrian's Wall on what I understand is the site of a redevelopment in my hon. Friend's constituency. I say two things. First, I know that, advised by English Heritage, the planning authority in his area is considering what should happen as far as further building of the hotel is concerned. I hesitate to intervene in that, because it is not the role of central Government to do so. However, may I reassure him that planning policy guidance note 16 will, I hope, offer that part of Hadrian's Wall the protection it deserves? This is a balancing act between ensuring that it is preserved and giving access if that is possible. I shall stall a little while the planning authority makes its mind up. As I say, I am reluctant to get involved at that local level.
    Secondly, my hon. Friend will probably be aware that the world heritage site committee is considering the whole of Hadrian's Wall to see whether some amendments need to be made regarding the areas that are part of that world heritage site. In due course, the part of Hadrian's Wall that has just been discovered might be added to it. We shall see. If it happens, I know my hon. Friend will welcome it.
    Sir Sydney Chapman: Can the Minister confirm that of the 750 or so world heritage sites, 25 are in the United Kingdom? Can she further confirm that according to the new rules—if that is the right term—that are being created, a nation can make only one world heritage site nomination a year? Is not that rather a stupid way to go into that very important matter? Should not this be based on qualitative judgments rather than rationing each country to only one nomination a year?
    Estelle Morris: I confirm that there are indeed 25 sites in the UK, a great many of which have been determined as such in the last decade. As the hon. Gentleman says, it is the Government's responsibility to put forward one site for consideration. I cannot confirm that there has been a change of rule, but I promise to look it up. If he will accept that, I shall write to him to clarify the situation.

    British Museum Seminar
    Mr. Tam Dalyell: What action the Department is taking as a result of the recent seminar at the British Museum chaired by Mr. Jon Snow on Iraqi artefacts. [180469]
    The Minister for the Arts (Estelle Morris): My Department will continue its close association with the British Museum in helping the Iraqi Ministry for Culture to protect Iraq's culture and heritage.
    Mr. Dalyell: What provision is being made for culture by the new British embassy in Baghdad?
    Estelle Morris: It is incredibly important that provision is made. There are lots of priorities as the new provisional Government take over today. We wish them well, as we do the elected Government in due course. I share the concern behind my hon. Friend's question that care needs to be taken in relation to cultural artefacts and heritage in the same way as it does in relation to transport, security, education and health. I promise that my Department will remain in close contact with the Foreign Office and the Department for International Development to ensure that any contribution that we can make, and any pressure that we can put on through our representation there, is made. Meanwhile, the Foreign and Commonwealth Office tells me that in due course the director for Iraq of the British Council will be the cultural attaché based at the British embassy in Baghdad. That is where responsibility will lie in the immediate future. I want to give a firm undertaking that we will want to keep that under close scrutiny and make sure that it is the level and kind of support that the new Government will need to protect their incredibly valuable heritage.
    Mr. David Cameron: Is the Minister satisfied that the lessons have been learned from the dreadful looting that took place in Baghdad? Does she agree that warnings from bodies about professional looting were ignored, that the border of Iraq was not policed, that the law for importing artefacts in this country was imperfect—I know that it has now been corrected—and that Departments did not work
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    together as quickly as they should have done? What can she say to satisfy us that the lessons really have been learned and that those things will not happen again?
    Estelle Morris: I very much hope that the lessons have been learned. To some extent, I hope that circumstances will not arise again in which we must take action based on lessons learned. Without wishing to make excuses, the situation was unusual, and things were not done that could have been done. There is no doubt about that. My hon. Friend the Member for Linlithgow (Mr. Dalyell) highlighted the fact that much needs to be done to make sure that the heritage is preserved. We have been in contact with both the new provisional Government and the former alliances about lessons learned. As far as I, my right hon. Friend the Secretary of State and our Department are concerned, it is our job to make sure that the lessons are learned. Moreover, the key point is that the lessons are acted on. To some extent, people knew what should have been done, which was not always given the priority that it should have been given, at a time of other equally high priorities. More important than lessons learned are lessons acted on in future. That is the direction in which we ought to go.
    Chris Bryant: The Minister will know that the vast majority of people in the world who ever have an opportunity to see any of the great works of art from Iraq will see them in the British Museum, because it has probably the best collection in the world of Iraqi, Abyssinian, Assyrian and Mesopotamian works. Does she believe that the British Museum could do more to try to explain the connection of those ancient artefacts with modern society, and particularly with Islam, as a means of overcoming much Islamophobia around the world?
    Estelle Morris: Indeed. That is one of the major purposes of the British Museum, and it does that task incredibly well. May I take this opportunity to pay tribute to the staff of the British Museum who have been to Iraq in the past and who have worked with people from the museum sector there to help to update their skills? That will be incredibly valuable in the years ahead. However, I refer my hon. Friend to the original question, which was about a recent seminar at the British Museum, chaired by Jon Snow, on Iraqi artefacts. I heard from from people who were there, including my hon. Friend the Member for Linlithgow (Mr. Dalyell), who asked the question, exactly what the British Museum did. I think that one of the most valuable aspects of museums is that they provide a safe place in which different interpretations of events and a sense of our history and heritage can be conveyed. They help to explain some of today's conflicts, which I believe is one of museums' major contributions to our society. I am delighted that this country has museums of the calibre of the British Museum that continue to provide that service.

    London Olympic Bid
    Mr Andrew Mackay: How the Government will help increase public support for the 2012 London Olympic bid. [180470]
    The Secretary of State for Culture, Media and Sport (Tessa Jowell): Public visibility and conviction about community gain and relevance are, I think, the two ways in which we will build public awareness and support for the bid. To that end, the Government are working very closely with London 2012 in order to maximise our chances of winning the bid. The decision will take place in July next year. I would also point to the degree and strength of cross-party support for our bid, which is another important asset in our favour.
    Mr. Mackay: The Secretary of State will be aware that supporters of the bid on both sides of the House were desperately disappointed that we came only third in the first round. It seemed to us that the two areas in which we were marked down were public support and Government support. What more are the Government going to do—starting at the top with the Prime Minister—to take a lead so that we really win in 2012?
    Tessa Jowell: If people looked at the figures for Paris and Madrid, the two countries that were ahead of us, they would find that one reason we were marked down was the uncertainty of the impending mayoral elections—[Interruption] It is a matter of fact that there was a small differential in our assessment on Government support because of the uncertainty created by the forthcoming mayoral elections.
    Miss Julie Kirkbride indicated dissent.
    Tessa Jowell: It is a matter of fact. The second point is that the level of public support is consistent and, although it is high, we have to build on it. No one who was in the Mall on Saturday night, where 80,000 people welcomed the torch borne by Steve Redgrave to the centre of London, could have been in any doubt whatever about the level of public and Government support for the bid. I would be grateful if the right hon. Member for Bracknell (Mr. Mackay) would talk that up, rather than constantly cast doubt on it.

  ELECTORAL COMMISSION COMMITTEE
  The hon. Member for Gosport, representing the Speaker's Committee on the Electoral Commission, was asked—
  ELECTORAL COMMISSION COMMITTEE

    All-postal Ballots
    Mr. Harry Barnes: What assessment the Electoral Commission is making of the advice it gave electoral returning officers for recent all-postal ballots. [180450]
    Mr. Peter Viggers: The Commission keeps under constant review the advice and guidance that it offers electoral administrators. More specifically, it will review its guidance on post-election integrity checks for postal ballots as part of its evaluation of the all-postal pilot schemes.
    Mr. Barnes: Returning officers followed very closely one piece of advice about all-postal ballots that was offered to them, but I wonder whether some confusion. might have been created by that advice. For example, the details of who was allowed to sign as a witness to the postal ballot confused various people, who did not really believe what was being said. What testing did the Electoral Commission conduct to assess whether people would understand the different forms of wording that could be used? The role of the Electoral Commission in this matter is as significant as any other factor in respect of the conduct of EU all-postal ballots.
    Mr. Viggers: The hon. Gentleman makes an important point. He may have noticed that when the Government laid the orders for the regional referendums last Thursday, the requirement for a witness statement was not included. The orders are subject to affirmative resolution. but it would be open to Members to make their contributions during the debate on the affirmative resolution, if that should come before the House.
    Mr. David Heath: Reference has been made to the laying of the orders for the regional government referendums. Can it really be the case that the Chairman of the Electoral Commission has written to the Office of the Deputy Prime Minister about public confidence and appropriate safeguards, expressing the wish that the Government wait, yet the Deputy Prime Minister has chosen once again completely to ignore the Electoral Commission's advice? In order to further the debate, will the hon. Gentleman put it to the Electoral Commission that it would be in everyone's interest if that exchange of correspondence were made public so that the House could determine the value of the points expressed before coming to a view on the orders that have been laid on the conduct of the referendum?
    Mr. Viggers: Yes. The commission believes that there would be benefit in Parliament having available to it the Electoral Commission's evaluation reports on the June pilot before taking a decision on whether to approve the orders specifying the form of the referendum. It would therefore prefer the Government to wait until the results of the statutory evaluation exercise are available in mid-September.
    Mr. Gordon Prentice: I have in my hands the order that has been mentioned and which was laid last Thursday. It tells us that the Government are prepared to abandon all-postal voting in the regional assembly referendums in October if the Electoral Commission produces convincing evidence that it would be unsafe to proceed. Has the hon. Gentleman had any discussions with any member of the Government about what might constitute convincing evidence?
    Mr. Viggers: As the House knows, it is not within the remit of the Speaker's Committee to have such discussions. I have no doubt that the Electoral Commission is in discussion with Government representatives.
    Mr. Andrew Mackay: My hon. Friend will be aware that the hon. Member for Birmingham, Sparkbrook and Small Heath (Mr. Godsiff) told the House during a debate last week that postal vote applications in the Washwood Heath ward in the Birmingham, Hodge Hill constituency went up from 693 to a staggering 5,583. He believed that electoral fraud had taken place. In the circumstances, with two sensitive by-elections taking place on 15 July in Birmingham, Hodge Hill and Leicester, South, will my hon. Friend ask the chairman of the Electoral Commission to send observers to those constituencies to ensure that wide-scale fraud does not take place?
    Mr. Viggers: My right hon. Friend has rightly drawn attention to the remarkable speech by the hon. Member for Birmingham, Sparkbrook and Small Heath (Mr. Godsiff) on 22 June. He quoted The Birmingham Post as saying:
    "Fights in the streets, postmen offered bribes for sacks of ballot forms, a post box torched, car chases, threats, bullying and intimidation and the unforgettable image of a… councillor 'sorting out' ballot papers in the shadows of a back street car park at midnight."—[Official Report, 22 June 2004; Vol. 422, c. 1233.]
    Those events did not take place in one of the four areas delegated for all-postal balloting, but the Electoral Commission will, of course, take full account of them in its general review of voting practices, which is expected later this year—although not by 13 September.

    Council Elections
    Chris Bryant: What evaluation the Commission has made of the effects of holding council elections in June rather than May. [180454]
    Mr. Peter Viggers: The commission has no statutory duty to report on local authority elections and has therefore made no such evaluation. However, the commission will consider the impact of combining the local elections with the European parliamentary elections in its statutory report on the latter, which it plans to publish by the end of the year.
    Chris Bryant: I hope that when the commission does so it will note that the turnout in the local council elections was significantly up, partly by virtue of their being held on the same day as the European elections and also—I suspect—by virtue of their being held in June. After all, canvassing in April, with its regular showers, is much more difficult and it is easier for people to get out to vote during the lighter days. Will the hon. Gentleman urge people to move towards a single date in June for all our elections, so that everybody can be clear where they stand?
    Mr. Viggers: The commission has not, to date, considered the timing of local elections and has no current plans to review the matter. However, the commission has previously expressed concern about dates of fixed elections being moved and the potential impact on voter comprehension of combining elections. The commission has also expressed concern about the principle of combining referendums with party-based elections.
    Mr. Douglas Hogg: Does my hon. Friend agree that although it is true that turnout increased where there were all-postal ballots, that may have more to do with the fact that the local authority and European elections were combined than with the fact that there was an all-postal ballot?
    Mr. Viggers: Indeed. Concern has been expressed about postal ballots; we have come quite a long way from the 1870 Elections Bill, which sought to introduce secret voting in parliamentary elections and was intended to rid British politics of some of the abuses that had disfigured its elections. My right hon. and learned Friend makes a fair point, but it is also true that turnout increased significantly as a result of the introduction of postal ballots; for instance, in the east midlands, it increased from 22.6 per cent. to 44.6 per cent.
    Kevin Brennan: In the hon. Gentleman's discussions with the Electoral Commission will he also pass on the observation that in Wales, where unitary authority elections in every council area and European elections were held on the same day, turnout in the European elections rose by about 12 per cent. As a result, turnout for the European elections was higher in Wales than in some of the compulsory postal voting areas, so will he recommend to the commission that elections should be held on the same day in June?
    Mr. Viggers: I shall indeed pass on the hon. Gentleman's comments to the Electoral Commission. That is exactly the kind of thing it will consider in its report on 13 September.

  The hon. Member for Middlesbrough, representing the Church Commissioners, was asked—
  CHURCH COMMISSIONERS

    Parish Priests
    Miss Anne McIntosh: What steps are being taken to recruit parish priests, particularly in rural areas, to replace those who are due to retire in the coming years. [180455]
    Second Church Estates Commissioner (Sir Stuart Bell): The Church of England actively promotes vocations to the priesthood, irrespective of geographical area, through diocesan initiatives and by keeping the first Sunday in May as vocations day.
    Miss McIntosh: I am not sure of the implications of that answer for my question. In last month's Question Time, the hon. Gentleman gave me a very helpful response about the large number of stalwart parish priests, although he alarmed me by saying that a significant number of them were coming up to retirement. What specific measures does the Church have in mind to recruit and train their replacements? How long will it take, and will the stream of recruits be sufficient to replace those priests who are expected to retire?
    Sir Stuart Bell: I am grateful to the hon. Lady. Some predominantly rural dioceses have responded to shortages of stipendiary clergy by developing local ministry teams that include clergy and lay ministers and cover a number of parishes, although that development is not exclusive to rural areas. The hon. Lady has a strong interest in rural issues, so she will know that the Church continues to be concerned about the lack of priests in rural areas and is doing all that it can to rectify that.

  ELECTORAL COMMISSION COMMITTEE
  The hon. Member for Gosport, representing the Speaker's Committee on the Electoral Commission, was asked—
  ELECTORAL COMMISSION COMMITTEE

    Polling Stations
    Mr. Mark Lazarowicz:If the commission will conduct an assessment of the merits of allowing electors a choice of polling stations at which to cast their vote. [180456]
    Mr. Peter Viggers: The commission has no plans at present to conduct a specific assessment of the merits of allowing electors a choice of polling station at which to cast their vote. However, the commission is committed to pursuing the goal of greater choice for voters, provided that can be achieved while maintaining the security and integrity of the electoral system.
    Mr. Lazarowicz: May I suggest to the hon. Gentleman that it would be a good idea for the committee and the commission to look at the proposal in a bit more detail? Does he agree that it is somewhat archaic that the only place where people can cast a vote is at the polling station for the area in which they live? Surely, with new technology it would be quite feasible for people to be allowed to vote nearer their place of work, at a railway station on their way home or even at shopping centres. Would not such a measure be simple to introduce and, in its own way, help to increase voter turnout?
    Mr. Viggers: I am sure that many people would agree with the general tenor of the hon. Gentleman's comments, but the scope for offering voters a choice between several locations will of course depend ultimately on the implementation of plans for a national electronic register of voters, which the commission supports; it also supports the concept of individual registration of voters.
    Sir Patrick Cormack: If the commission is truly committed to giving voters choice, does not it accept that compulsory postal ballots are incompatible with that wish?
    Mr. Viggers: Certainly, all-postal voting seems to have improved turnout, but my hon. Friend's point is exactly the kind of thing that the commission will be considering.

  The hon. Member for Middlesbrough, representing the Church Commissioners, was asked—
  CHURCH COMMISSIONERS

    Retired Clergy
    David Taylor: How many retired clergy were receiving assistance with accommodation on 1 April (a) 1984, (b) 1994 and (c) 2004; and if he will make a statement. [180457]
    Second Church Estates Commissioner (Sir Stuart Bell): The numbers of retired clergy or clergy widows occupying houses whose purchase was partly or wholly funded by the Church's retirement housing scheme as at 1 January—not April—1984, 1994 and 2004 were 1,840, 3,190 and 2,906 respectively. In relation to a statement, the Church is also giving serious thought to a scheme that will enable clergy to enter the housing market earlier in their ministry.
    David Taylor: Clergy in office are provided with a house and paid a stipend. but clergy in retirement must meet their own housing costs. Sometimes, support is given by the commissioners or the pensions board. Is my hon. Friend convinced that the supply of housing remains adequate and that it will not be a disincentive to would-be priests entering the ministry? What consideration has been given to the report from two years ago, "Generosity and Sacrifice", with which he will be very familiar?
    Sir Stuart Bell: I am grateful to my hon. Friend for referring to that report and for following its progress. I shall do the same, and I give him a commitment that I will come back to him on that. It is a fact that those clergy with insufficient capital of their own can get assistance in the shape of retirement housing schemes, administered by the Church of England pensions board and largely funded by loans to the pension board from the Church Commissioners. The availability of housing is a nationwide problem; but, of course, we would not wish it to discourage anyone who wishes to become a clergyman.

    Westminster Abbey
    Mr. James Gray: What discussions the commissioners have had with the Dean and Chapter of Westminster Abbey about the builder's yard between the abbey and St Margaret's church. [180459]
    Second Church Estates Commissioner (Sir Stuart Bell): The programme to achieve planning permission for the redevelopment of Mason's yard proceeds. The abbey has been in close contact with parliamentary estates and Westminster Abbey fabric commission, and has been supported by English Heritage. Funds are secure, and the work will start as soon as planning permission is granted.
    Mr. Gray: The House will have heard the hon. Gentleman's reply with some horror. How can it be that, in the centre of the world heritage site that consists of the abbey, St. Margaret's and the Palace, we will cement a builders' yard that is hideous beyond belief? Surely, we can find some place to put that builders' rubbish, other than slap bang in the middle of a world heritage site?
    Sir Stuart Bell: I am always grateful to the hon. Gentleman for his questions, but I should tell him that
    22
    "The Rocky Horror Show" does not begin with the Church Commissioners. He will have noticed great improvements on the north side of the path adjacent to St. Margaret's church. I should like to pay significant homage to the Dean of Westminster, who carries on his duties when not always in the best of health. The hon. Gentleman is perfectly right to say that the abbey is part of our national heritage and, no doubt, that fact will be taken into account when any planning permission is given for the redevelopment of Mason's yard.

Points of Order
3.33 pm
Dr. Julian Lewis: On a point of order, Mr. Speaker. You will be aware that two major announcements that affect the New Forest have been made in recent weeks—one a couple of weeks ago about the non-development of Dibden bay as a huge container port, and one today about the creation of a national park for the New Forest. You have expressed concern on many occasions in the past that announcements should be made first to the House. I am delighted that, in the case of the Dibden bay announcement, Transport Ministers were punctilious in that respect and no one had the faintest idea of what the announcement would be until it was made at 9.30 am in a written statement. But I am sorry that, today, Ministers at the Department for Environment, Food and Rural Affairs have once again fallen short in that respect, and I discover that, as late as last week, people in my constituency were being told by the BBC what the result would be and were being invited to give interviews. Indeed, there was a live interview on the "Today" programme this morning. How many times must we raise in the House the failure of Ministers to make announcements to the House, rather than leaking them to the press without the hon. Members concerned and the whole House being informed in the proper way?
Mr. Speaker: I notice that there is a written statement on the Order Paper regarding this matter. Therefore, the Minister concerned has made a statement to the House.
Mr. Edward Garnier: On a point of order, Mr. Speaker. On Friday, I received notice that somebody called Jill Hope, who holds herself out as the Liberal Democrat parliamentary candidate in my constituency, had e-mailed the political affairs department of the Leicester Mercury along the following lines:
"Someone I know has just heard Harborough MP Edward Garnier's Conservative party agent Margaret Richards on a local radio station saying how brave the MP is for carrying on even though he has cancer."
I have not got cancer; I have not even got a common cold. However, is there some procedure that is available to us as Members of the House and to you as Speaker that will deal adequately with this sort of allegation? My agent has been defamed because the e-mail suggests that she has told lies about me or has breached my confidence in speaking about my health on a radio programme. She has certainly done none of those things. It is, of course, also a malicious falsehood about me.
I understand that it is not uncommon for members of that particular party to behave in this sort of way and I dare say, in the excitement of a by-election in my neighbouring constituency and with a general election likely within the next 12 months, we will get more of this from members of that party. However, can you, Mr. Speaker, advise me whether this sort of behaviour is contempt of the House that should, for example, be referred to the Select Committee on Standards and Privileges or is it something that we just have to live with and deal with on the campaign field? I look forward to your considered advice on this matter.
Mr. Speaker: I am grateful to the hon. and learned Member for giving me notice of his point of order. The
24
matter that he raises, however serious it may be in his eyes, does not affect the privileges of the House and so is not something on which I can rule. Because he is learned, the hon. Member is better able than I am to make a judgment about the legal implications of this incident. I have no doubt that he will do so.
Mr. Jonathan Sayeed: On a point of order, Mr. Speaker. On Monday to Thursday every week, you preside over Question Time. This is meant to be an opportunity for Members of the legislature to question members of the Executive on policy, to seek information from members of the Executive and to press for action by the Executive. However, over the past few years, the standard of answers has declined to such an extent that Question Time appears to many to be an exercise in evasion, misrepresentation and obfuscation. Indeed, I would argue that too many of the answers given to parliamentary questions are designed to deceive rather than to illuminate the decisions of the Government. This, I am sure you will agree, damages Parliament and demonstrates contempt for the principle of democratic accountability.
I would therefore like you, Mr. Speaker, to consider whether, with the permission of the House, you can be given additional powers to remedy the situation. Specifically, if a Minister gives a manifestly inadequate answer to a question, you could direct the Minister to answer the question again and give a more informative answer. The very existence of such a sanction would, I believe, encourage civil servants to draft answers that seek to assist the scrutiny of Government rather than, as at present, frustrate the very proper and essential examination by Parliament of the Government of the day.
Mr. Speaker: The hon. Member uses his point of order to make a radical suggestion, namely that I should be authorised to adjudicate on the quality of answers and direct a Minister to try again if I judge an answer to be inadequate. This is a matter for the House, and he may wish to put his suggestion to the Procedure Committee. However, I cannot say that I am enthusiastic about such a proposal. I also observe that the quality of an answer is often influenced by the quality of the question.
Mr. Eric Forth: Further to the point of order raised by my hon. Friend the Member for New Forest, East (Dr. Lewis), Mr. Speaker. I am sure that you are not suggesting in any way that a mere ministerial written statement smuggled on to the Order Paper in the dead of the morning is any substitute for a Minister coming to the House to give a proper oral statement on which questions may be asked by Members of Parliament. It would be regrettable if you had left any impression whatever—however inadvertently—that you believed that a written ministerial statement is a proper substitute for an oral statement with questions.
Mr. Speaker: The right hon. Member knows me well enough to know that I enjoy Ministers coming to the Dispatch Box to give an account of their stewardship. However, we cannot have oral statements all the time; sometimes there will be written statements. That is not too bad when they give good news, and the hon. Member for New Forest, East (Dr. Lewis) received good news on this occasion.

Orders of the Day

  CONSOLIDATED FUND (APPROPRIATION) BILL
  Order for Second Reading read.
  Question, That the Bill be now read a Second time, put forthwith, pursuant to Standing Order No. 56 (Consolidated Fund Bills), and agreed to.
  Bill accordingly read a Second time.
  Question, That the Bill be now read the Third time, put forthwith, and agreed to.
  Bill accordingly read the Third time, and passed.

  Human Tissue Bill
  As amended in the Standing Committee, considered.
  Human Tissue Bill
    New Clause 7

      POWERS OF COURT TO DISPENSE WITH NEED FOR CONSENT
      (1)If the High Court is satisfied—

      (a)that relevant material has come from the body of a living person,

      (b)that it is not reasonably possible to trace the person from whose body the material has come ("the donor"),

      (c)that it is desirable in the interests of another person (including a future person) that the material be used for the purpose of obtaining scientific or medical information about the donor, and

      (d)that there is no reason to believe—

      (i)that the donor has died,

      (ii)that a decision of the donor to refuse to consent to the use of the material for that purpose is in force, or

      (iii)that the donor lacks capacity to consent to the use of the material for that purpose,

      it may order that subsection (2) apply to the material for the benefit of the other person.

      (2)Where material is the subject of an order under subsection (1), there shall for the purposes of this Part be deemed to be consent of the donor to the use of the material for the purpose of obtaining scientific or medical information about him which may be relevant to the person for whose benefit the order is made.

      (3)The Secretary of State may by regulations enable the High Court, in such circumstances as the regulations may provide, to make an order deeming there for the purposes of this Part to be appropriate consent to an activity consisting of—

      (a)the storage of the body of a deceased person for use for the purpose of research in connection with disorders, or the functioning, of the human body,

      (b)the use of the body of a deceased person for that purpose,

      (c)the removal from the body of a deceased person, for use for that purpose, of any relevant material of which the body consists or which it contains,

      (d)the storage for use for that purpose of any relevant material which has come from a human body, or

      (e)the use for that purpose of any relevant material which has come from a human body.'.—[Ms Rosie Winterton.]

      Brought up, and read the First time.
      3.41 pm
      The Minister of State, Department of Health (Ms Rosie Winterton): I beg to move, That the clause be read a Second time.
      Mr. Speaker: With this it will be convenient to discuss Government amendments Nos. 85 to 98.
      Ms Winterton: The intention of the new clause and the amendments is to ensure that there will, in the last resort, be a way to gain access to human tissue without consent if that is really needed in the interest of individuals whose health might benefit thereby or the health of the general public. We listened to discussions in Committee on the matter and the concerns of the medical and scientific community. Following further

      27
      consideration, we propose to provide that the High Court may dispense with the consent requirement in certain exceptional circumstances.
      Part 1 of the Bill requires consent for the use of tissue for scheduled purposes, including
      "Obtaining scientific or medical information… which may be relevant to any other person".
      Clause 46 will make it an offence to analyse DNA without qualifying consent. In both cases, the consent of a living person will be required for the use of his or her tissue for such a purpose.
      Geneticists, in particular, have raised concerns with Ministers about situations—albeit infrequent ones—in which individuals are untraceable, but the analysis of their tissue samples is necessary to predict the likelihood of a relative having a genetic condition or to help to diagnose and treat a relative. If the original provider of tissue were alive and contactable, consent could be sought. However, if the original person were not contactable because relatives had lost touch, for one reason or another, a problem would clearly arise. We appreciate that in such a situation, the treatment of the relative could be unnecessarily delayed or compromised, so we propose to amend the Bill to allow a court order to be sought so that the need for consent could be waived in the circumstances that I have described.
      Such a situation would arise if an existing stored sample needed to be tested to help to diagnose or treat a relative, but when consent for the sample to be used in such a way was neither given nor refused and efforts to trace the original person had failed. The original person would also, as far as was known, have to be alive and competent to give consent.
      Members of the medical research community have also drawn attention to the need for a mechanism to waive the requirement for consent to use tissue from living or deceased persons in exceptional cases when that is in the public interest. The reason for needing such a waiver would be to enable consent to be dispensed with in unexpected and exceptional cases where the potential benefit to the health of the public of undertaking some research without consent outweighs the risk of harm to the rights of the individuals concerned. That might be needed, for example, where a person has died as a result of a new virus and relatives who may be asked for permission to take tissue for testing cannot be found. In the event of some new highly infectious disease similar to Ebola, for example, it would be necessary to do research using samples taken from those who had died from the disease. Their relatives may not be available to give consent.
      Mr. Andrew Lansley: The Minister is talking about when there is a major public health issue, and I acknowledge that it is intended that such a power would be used only in the most exceptional circumstances. If in the circumstances of the kind that she has described the patient had expressly not given consent, the proposed powers would not enable
      28
      the withdrawal of consent to be overridden. Are there other powers to allow tissue to be retained and tested for public health purposes?
      Ms Winterton: I am not quite sure that I follow exactly the hon. Gentleman's question. If an infectious disease broke out, consent had not been given by an individual and the relatives could not be found, an application would be made to the High Court to waive the consent requirements. We shall of course be consulting on the exact circumstances when drawing up the detail of the regulations that will stem from that, but the principle is that, where an individual's relative who is known to be alive but cannot be contacted, a waiver of the consent requirements could be sought. Similarly, if in the interests of public health there needs to be research into a new disease, for example, an application could be made.
      Mr. Lansley: I am not disputing the intended purposes of the new clause and the amendments; it is just that they are not designed to override someone's express refusal to give consent to the retention and testing of tissue—even in the case of a public health emergency of the kind that the Minister has described. That may be satisfactory, or powers extant may allow the retention of tissue for public health purposes. I am simply asking for information on that.
      Ms Winterton: It would be quite unusual for somebody completely to refuse consent for diagnostic purposes. The consent under the Bill is usually that given after an operation or for future use. The hon. Gentleman highlights the case of somebody who has made a general commitment that consent for the use of their tissue for research purposes would never be given. The Bill deals with scheduled purposes, and as I have said, these matters can be considered during the making of regulations.
      Dr. Andrew -Morrison: Perhaps I can help the Minister by providing an example. According to the Prime Minister, we are liable to be attacked by terrorists. Some terrorists may be of suicidal intent, having been infected with a virus of the sort that the hon. Lady helpfully described in the letter she sent to hon. Members a few days ago. Such persons would, I suspect, withdraw their consent. What would be the position in those circumstances?
      Ms Winterton: The hon. Gentleman has highlighted an issue that we will need to consider during consultation on the regulations. The question will be whether the High Court can override that withdrawal of consent. The new clause covers circumstances in which it is not possible to obtain consent. Whether a deceased person had given consent—some cases might not be clear—and whether there is a relative who knows will also have to be considered in relation to the regulations. Those are fair points to be considered during the consultation, although I think that the situation that the hon. Gentleman describes is quite unlikely to arise.

      29
      The flu epidemic early in the last century has been mentioned to us in relation to the cases that we have in mind. It might be impossible to find someone who stands in a qualifying relationship to a victim of the disease, but it might become necessary to test material from victims to determine whether the same virus is causing a new epidemic. The order is required to provide a way to deal with unexpected and exceptional situations, which could require the testing of material from living people who are no longer reasonably traceable, or from deceased persons whose next of kin cannot be found, in the interests of public health. We therefore propose to include in the Bill a power for the Secretary of State to make regulations to enable the High Court to waive the need for consent to use tissue for health-related research in cases in which appropriate consent cannot be obtained. It is expected that the regulations will provide for the Court to waive the need for consent only in rare cases and when the public interest justifies doing so.
      The new clause introduces the High Court waiver. There are consequential amendments to clauses 53 and 60. Amendments are also needed to schedule 5, so that a High Court waiver may also apply, where necessary, to consent to having a person's tissue with a view to testing its DNA. The provision will also apply in Scotland.
      We recognise the need for a mechanism to deal with truly exceptional cases, but we are confident that the requirement that the circumstances be exceptional and the protection provided by the High Court will not allow exploitation of the waiver without proper cause. I shall take on board the points made by the hon. Gentlemen, but I comment the amendments to the House.
      Mr. Lansley: I am grateful to the Minister for her explanation of the purposes of new clause 7 and the related amendments and for her willingness to consider further the questions that my hon. Friend the Member for Westbury (Dr. Murrison) and I raised. We acknowledge that we are dealing only with what we hope are the most exceptional of circumstances, but as our debates on the Bill have demonstrated, there is a need to consider extremely rare events. Unhappily, those described by my hon. Friend might be just such a set of events. If a living person has refused consent to the use of any material, the new clause, as I understand it, would not permit the High Court to make an order requiring that tissue be taken and tested. That set of circumstances begs a question. I know that my colleagues will come back to that, and I hope that the Government will consider the matter.
      There is also the question, not least in the research community, of whether, where somebody whose relative has refused consent, for example, for DNA analysis, which could be of benefit to a living relative, a court could make an order for the benefit of that individual contrary to the expressed wishes of a living person. The Government are not proposing that, and on balance I think that they are right not to do so. It is one of those instances where we have trespassed to the minimum extent in circumstances where the expressed wishes of individuals are not to be complied with. That is the principle underlying the Bill, and we want to hold to it as often as we can.
      30
      The purposes of the new clause and the related amendments, as the Minister has described them, seem to be acceptable. However, there may be exceptional circumstances where somebody cannot be traced, where relatives cannot be traced and where tissue could be properly analysed in the interests of either a living person or for public health purposes. In such cases we think that it is reasonable for there to be regulations setting out how the High Court could make an order. On that basis, we are happy to accept the new clause and the amendments.
      I shall not chide the Minister too often, but I shall do so now and once more later. She will recall that when the Bill was first presented to the House back in December we made it clear that we believed that it would have been in the interests of the Bill's passage if there had been a period—albeit a short period—of pre-legislative scrutiny. The Minister will recall also that I asked for that in a debate in April. It could have been achieved in some form over the summer. I see that the Minister takes the view from a sedentary position that she was not responsible for the matter at that time. She was not, but she enjoys—that being the operative term—collective responsibility for the decisions, or lack of decisions, made by the Government at an earlier stage.
      It is clear that had pre-legislative scrutiny been undertaken last summer into the early autumn, it would have been possible to examine many of the issues that have now been raised. It is a great pity that we had to raise many of those issues in Committee, which perhaps is not the best forum designed to secure consensus. The Committee reported six months ago, and I cannot recollect many instances where the passage of time between the conclusion of consideration in Committee and on Report has been as long as six months. No doubt that is a recognition of the range of issues raised in Committee to which there had to be further regard, with substantial consultations being required with outside bodies. Much credit goes to them for working through those issues with officials in the Department.
      I do not want to criticise the Government unduly. Broadly speaking, we are arriving at the right conclusions. However, it is a great pity that we have had to do so through a tortuous and less transparent process than was originally recommended by the Opposition.
      We shall work our way through the, I think, 100 new clauses and amendments that the Government have tabled on Report.
      Dr. Murrison: Ninety-nine.
      Mr. Lansley: My hon. Friend tells me that there are 99, which is just under the ton. I hope that we will work through them with the good humour that has characterised our debates so far.
      4 pm
      Dr. Evan Harris: I associate myself with the content of the remarks of the hon. Member for South Cambridgeshire (Mr. Lansley) and their tone, which was well judged.
      I have a question for the Minister on this group of amendments, which I take from a briefing that I received from the Medical Research Council. I do not necessarily

      31
      agree with the MRC on the issue, but it agrees with the thrust of the Government's approach with respect to the amendments. The MRC states:
      "We agree this is an important issue but we agree that the solution is too stringent. Unlike the case described above"—
      which is the example that the Minister gave—
      "which pertains to diagnosis and treatment, for possible research uses there are research ethics committees".
      The MRC suggests that the power that the Minister is seeking to give to the High Court in these circumstances might usefully rest with ethics committees, not with the court, and that as an additional safeguard, research ethics committees might be required to inform the Human Tissue Authority so that the authority could satisfy itself that such waivers were not being over-used.
      Clearly, the Government do not support that approach and I do not necessarily support it, but I should be grateful if the Minister could clarify why the Government decided not to go down that path in cases where someone who is alive is not traceable or the relatives of a dead person are not traceable, and where valuable research could be done that could not be done in any other way. Is that just one of the things that the medical research community will just have to accept, or was there some other reason for the Government's decision?
      My second point applies to several groups of amendments and relates to the DNA provisions, which were added late to the Bill in Committee—so late that it was not possible for them to be subjected to scrutiny. One issue that was raised in Committee was why, where DNA is mentioned, such as in this group of amendments, RNA is not mentioned also. Identifying information can be obtained from RNA, if I remember my molecular biology, which in general terms I do not, but in this respect I do.
      The matter is raised by the Medical Research Council, which is why I feel more confident to refer to it than I otherwise would. The MRC states:
      "The term 'DNA analysis' is not clearly defined and is of uncertain validity as a concept. There are a number of genetic tests that do not involve analysis of DNA but which yield similar results. Also, DNA is mentioned but there seems no logical reason to omit RNA."
      For example, one can use a test of the sequence of proteins. Where DNA is mentioned, it would have been possible to mention RNA. I queried the omission previously and I remember the Government saying that they would respond. I fear I forgot to follow it up, as they forgot to respond. Perhaps during this stage of the Bill, not necessarily immediately, the Government could clarify why they are confident that there is no loophole where the DNA provisions apply across the board.
      Ms Rosie Winterton: I thank the hon. Member for South Cambridgeshire (Mr. Lansley) for pointing out with what good humour the Bill was considered in Committee. He was wrong to say that that was not the proper forum in which to undertake detailed scrutiny. The Bill is much better for the scrutiny that it underwent at that stage. I hope that by the end of the afternoon the hon. Gentleman will agree that the amendments reflect the consensus that we achieved in Committee.
      32
      With regard to the comments of the Medical Research Council, the Bill and the amendments deal with extremely rare circumstances. In a sense, we are overriding the need to obtain consent, which, as the hon. Member for Oxford, West and Abingdon (Dr. Harris) knows, is one of the fundamental principles of the Bill. We therefore feel that the High Court, with the high level of scrutiny that it provides, is the right place for these cases to be dealt with, and not ethics committees at local level. When information about an individual, who may still be alive, is needed, but there is no consent, or when there is a public health interest, it is important that the matter goes to the High Court.
      With regard to the RNA question, we need further technical advice, and we will come back with further information.
      I hope that the House will accept the new clause.
      Question put and agreed to.
      Clause read a Second time, and added to the Bill.

    New Clause 6

      INTERPRETATION OF PART 1
      'In this Part, "excepted material" means material which has—

      (a)come from the body of a living person, or

      (b)come from the body of a deceased person otherwise than in the course of use of the body for the purpose of anatomical examination.'.—[Ms Rosie Winterton.]

      Brought up, and read the First time.
      Ms Rosie Winterton: I beg to move, That the clause be read a Second time.
      Mr. Speaker: With this it will be convenient to discuss Government amendments Nos. 48 to 64.
      Ms Winterton: In Committee, hon. Members raised a technical point about the scope for misunderstanding in the current definition of anatomical examination given in clause 55, which states:
      "'anatomical examination' means examination by dissection for anatomical purposes",
      which are for the
      "purposes of teaching or studying, or researching into, morphology."
      Use and storage of the body of a deceased person or material from it for that purpose requires the advance written consent of the individual concerned, witnessed by another, and is a licensable activity. The scheduled purpose of health-related research, on the other hand, may be consented to after death by relatives and is not licensable under the Bill.
      Researchers in particular are concerned that there could be confusion about when research on tissue involving examination by dissection requires advanced consent and licensing and when it does not. Basically, there was concern that the stricter requirements would apply to all bits of tissue used for morphological research.

      33
      We therefore propose to clarify the references to anatomical examination by amending clauses 2, 3, 7, 13, 23, 43 and 55. The effect of the amendments to clause 55 is to clarify the definition of anatomical examination so that it is now defined as macroscopic examination by dissection for the purposes of teaching, studying or researching into the gross structure of the human body. That excludes from the definition much of the research about which concerns have been expressed to us.
      The effect of the amendments to clauses 2 and 3 is that the prior written and witnessed consent of the individual is required only in relation to anatomical examinations carried out on whole bodies or material that has come from a whole body in the course of use of the body for the purpose of anatomical examination. The amendments to clauses in part 2 impose a licensing requirement only in relation to whole bodies that are used or stored for anatomical examination or material from such bodies that is stored or used for that purpose.
      I hope that that is clear. As I said, these are technical amendments dealing with matters that were raised in Committee. I hope that the situation is now clarified.
      Dr. Murrison: I congratulate the Minister on her eloquent exposition. It is a pity that the description that she gave could not have been given previously. I underscore the remarks of my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) about pre-legislative scrutiny. Although the change is technical, it is also fundamental. The Minister's description is a return to common sense, because she elegantly described the situation, as we understand it, in a dissecting suite in a medical school, which is the measure's intention. Correctly, she has in mind a gross, large-scale examination of parts derived from a dead person that excludes histology—examining specimens under a microscope. I congratulate her on the change, although it is a pity that it was not made earlier.
      Question put and agreed to.
      Clause read a Second time, and added to the Bill.

    New Clause 8

      ACTIVITIES INVOLVING MATERIAL FROM ADULTS WHO LACK CAPACITY TO CONSENT
      'Where—

      (a)an activity of a kind mentioned in section 1(1)(d) or (f) involves material from the body of a person who—

      (i)is an adult, and

      (ii)lacks capacity to consent to the activity, and

      (b)neither a decision of his to consent to the activity, nor a decision of his not to consent to it, is in force,

      there shall for the purposes of this Part by deemed to be consent of his to the activity if it is done in circumstances of a kind specified by regulations made by Secretary al State.'.—[Ms Rosie Winterton.]
      Brought up, and read the First time.
      Ms Rosie Winterton: I beg to move, That the clause be read a Second time.
      Mr. Speaker: With this it will be convenient to discuss the following amendments: No. 7, in clause 3, page 3, line 40, after 'alive', insert
      'and subsection (2A) does not apply'.
      No. 8, in page 3, line 40, at end insert—
      '(2A) This subsection applies where the person concerned is alive, but lacks the capacity to give consent.
      (2B) Where subsection (2A) applies, "appropriate consent" means the consent of a person who stands in a qualifying relationship to him.'.
      No. 9, in page 4, line 31, at end insert—
      '(8) For the purposes of this section a person lacks capacity to give consent if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of or a disturbance in the functioning of the mind or brain.'.
      Government amendments Nos. 99 to 107.
      Ms Winterton: The Bill was not intended to impact on the common law test of best interests, regarding the activities that can take place in relation to tissue from mentally incapacitated adults. As we have said, such issues—in particular, research—will be dealt with under the forthcoming Mental Capacity Bill. However, we now recognise that, as drafted, the Human Tissue Bill would prevent activities that are currently lawful, where the removal of tissue for a particular purpose—for example, transplantation—is deemed to be in the best interests of the incapacitated individual. The person's best interests would be frustrated, because they cannot give the necessary consent to the subsequent use of the tissue.
      The Mental Capacity Bill is unlikely to be enacted before 2007, and the Human Tissue Bill is likely to be enacted in 2005. That gap makes it necessary to amend the Human Tissue Bill, so that it does not have a detrimental effect in the interim on the use of tissue lawfully removed from incapacitated patients. We therefore propose to amend the Bill by taking a power to make regulations setting out what is required before tissue from those who lack capacity can be used for purposes regulated by the Bill. Those purposes will include obtaining information that may be relevant to the diagnosis and treatment of another person, such as a genetic relative, and transplantation. The intention is to use the regulations to provide that, in the case of incapacitated adults, tissue may be used for scheduled purposes, where that would be in the adult's best interests.
      The regulations would also allow research using the tissue of incapacitated persons, where participation in the research by the person who lacks capacity is authorised in accordance with the clinical trials regulations, which came into force in May. Such use would be subject to the safeguards set out in those regulations, which include that an ethics committee must approve the research. The regulations will also take account of the outcome of debates on the Mental Capacity Bill later in this Session, and research relating to mentally incapacitated adults will be debated in that context. Indeed, rather than setting down the circumstances in the Bill, regulations are proposed because we do not want to pre-empt the debates that will take place later in the Session.

      35
      In due course, the Mental Capacity Bill may replace the regulation-making power by amendment. Similar amendments will be made to the provisions dealing with DNA, so the regulations can say when it is lawful to hold material from an adult who lacks capacity with the intention of analysing the DNA. Those apply also to Scotland, where it will be necessary for the regulations to take account of authority under the Adults with Incapacity (Scotland) Act 2000, whether for research or for any other of the purposes that I outlined.
      Mr. Tam Dalyell: What is the relationship with the Scottish Department of Health, and which other Departments have been involved in discussions? I am not in any way critical; I should just like to know.
      4.15 pm
      Ms Winterton: Particularly with regard to the 2000 Act, the main discussions have taken place with the Department of Health and Community Care in Scotland. I am not entirely sure about the nature of discussions with other Departments.
      Because we recognise that allowing the use of tissue from incapacitated persons is a sensitive issue, we have provided that the regulations should be subject to affirmative resolution to allow Parliament to discuss the details. Prior to that, it will be necessary to undertake further discussions with appropriate Departments in Scotland. That will give Parliament the opportunity to discuss details that may not have been debated elsewhere.
      I commend the new clause to the House.
      Dr. Murrison: I am glad that any regulations will be subject to the affirmative resolution procedure, because this area is a minefield. It is a pity that we do not yet have the Mental Capacity Bill; if we did, we would not need to discuss the matter in quite this way. I am deeply worried about Secretaries of State making regulations that affect people in such situations, although I suspect that, mercifully, they would be needed very infrequently. I assume that in drafting the provision, the Minister had specific instances in mind that drove it forward, because she, like me, will have been very cautious about treading in this extremely problematic area.
      The Minister referred to the measure's potential interaction with the Medicines for Human Use (Clinical Trials) Regulations 2004. I am not entirely clear about how that will work, and I would be grateful if she expanded on it a little further.
      Ms Winterton: With regard to the authority that is required before a person who lacks capacity can participate in a clinical trial, the legal representative of that person must give consent to their participation. A legal representative is a person who has a sufficiently close relationship with the person lacking capacity, or,
      36
      if no such person is available, a doctor or other person nominated by the person's health care provider. The clinical trials regulations set out the detailed information that must be provided and other requirements that must be fulfilled before participation can be authorised. We will look very closely at the requirements under the clinical trials directive to ensure that the regulations fit in with them.
      Question put and agreed to.
      Clause read a Second time, and added to the Bill.

    New Clause 9

      DUTIES IN RELATION TO CARRYING OUT FUNCTIONS
      '(1) The Authority must carry out its functions effectively, efficiently and economically.

      (2)In carrying out its functions, the Authority must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed).'.—[Ms Rosie Winterton.]

      Brought up, and read the First time.
      Ms Rosie Winterton: I beg to move, That the clause be read a Second time.
      Mr. Speaker: With this it will be convenient to discuss Government new clause 10—Power of Human Tissue Authority to assist other public authorities.
      Ms Winterton: The new clauses relate to the duties and powers of the Human Tissue Authority. I shall deal first with new clause 9. It is a shame that the hon. Member for South Cambridgeshire (Mr. Lansley) is not here because in Committee, he asked about including a provision that would require the Human Tissue Authority to adhere to best regulatory practice, minimising burdens and costs. He pointed out that other recently established public bodies had such duties written into their legislation. We have agreed to include such an amendment to make it clear that the authority is expected to be lean, effective, accountable and focused.
      Mr. Stephen Pound: I was impressed by the word "economically" in the new clause. The guidance notes that my hon. Friend issued refer to a total cost to the new authority of approximately £1.5 million per annum. They also mention additional fees and licences. Is £1.5 million a net figure or will it decrease as income from fees and licences increases?
      Ms Winterton: My recollection of the discussion in Committee is that the fees and licences would cover the administrative costs of inspection and issuing the licences. Some costs would accrue to the authority over and above those, such as the costs of issuing the codes of practice, administrative support and so on. If I remember correctly the two sums are separate, but the intention is that the fees and licences will cover the inspection element.
      Dr. Ian Gibson: My hon. Friend talks about a mean, lean organisation. The same was said of the Human Fertilisation and Embryology

      37
      Authority, which our Select Committee examined. The funding for it was doubled. Could not bodies cross-fertilise under an umbrella organisation? After all, they are considering the same matters, which include interacting with the public. Quangos and similar bodies appear to spring up every six months. Is there not a case for getting them together to consider the ethical and moral issues?
      Ms Winterton: Let me correct my hon. Friend: I did not say that the authority would be a mean body; I simply said that it would be lean. However, he is right to point out that several arm's-length bodies exist. I am sure that he knows that a review of those bodies is currently being conducted to ascertain whether there is room to achieve the 50 per cent. cut in their number that the Secretary of State wanted.
      New clause 10 gives the Human Tissue Authority power to assist public bodies. Clause 37 currently allows the authority to make arrangements with other public authorities so that they can carry out any of the Human Tissue Authority's functions. Again, that is relevant to the point that my hon. Friend the Member for Norwich, North (Dr. Gibson) correctly made. We want to avoid duplication of inspections and reduce bureaucracy. However, under the Bill as it is currently drafted, the authority cannot assist other bodies. It would therefore be sensible to enable it to do that. In particular, we have it in mind that the authority could assist Scottish Ministers in regulating live transplants in Scotland, if asked to do that. In this way, the regulation of live transplants would remain consistent across the UK, and we would avoid the need to set up a separate new body in Scotland, which would be inefficient given the small number of cases involved. The HTA will therefore be able to help to minimise the bureaucratic impact on those regulated, and the power would also give the authority sensible flexibility and allow it to assist any UK body.
      I hope that the hon. Member for South Cambridgeshire will be pleased that we have taken up his suggestion, and that the whole House will support the new clauses.
      Dr. Murrison: I am sure that my hon. Friend the Member for South Cambridgeshire will be extremely pleased. Indeed, looking through the new clauses, I am very pleased to see how much of what we suggested in Committee has been taken up and how many suggestions from third parties have also been adopted. Best regulatory practice is a welcome addition to the Bill, for example. I am also pleased that the agency will consult and liaise with other bodies. This has prompted me to look again at the Health Protection Agency Bill, which reaches its Committee stage tomorrow. It, too, places an onus on other bodies to co-operate with the agency that it establishes, and I wonder why no reciprocal arrangement is proposed between that agency and the Human Tissue Authority. Perhaps it might be worth considering introducing such an arrangement, to ensure that other such bodies associated and liaised with the HTA. It would be good if the Minister could give me an assurance that they will do so.
      Rob Marris: I appreciate that my hon. Friend the Minister wishes, as far as she can, to achieve a consensual approach to the drafting of the Bill. However, if most of my constituents read new clause 9, they would be surprised that Parliament wanted to place on the face of a Bill an exhortation—indeed, a legislative requirement—for an authority to
      "carry out its functions effectively, efficiently and economically",
      and to follow
      "the principles of best regulatory practice".
      The implication of the inclusion of those requirements seems to be that some other Government bodies and quangos do not operate effectively, efficiently and economically, and do not follow the principles of best regulatory practice. If that is the case, perhaps the House should turn its attention to those other bodies.
      It is surprising to read the proposals in new clause 9, having heard Ministers constantly saying in Committee and on Report—which is somewhat akin to Committee—to Members who have tabled amendments that they are unnecessary because the provision is already implied or exists elsewhere in the Bill. I should have thought that the wording in new clause 9 was, by necessary implication, an exhortation on every Government Department, quango and similar body.
      Mr. Dalyell: I believe that my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) raised the question of vets in relation to this matter. Did I mishear him?
      Rob Marris: I did not raise the question of vets.
      Mr. Dalyell: Then we shall leave that matter. I should like to ask the Minister about the arrangements with Scotland, as I believe that she has some information about that. I thoroughly approve of these measures being introduced on a UK basis, but it would be nice to have on record the arrangements for transplants in Scotland.
      Ms Winterton: I would say to my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) that best regulatory practice is included in some legislation. Given that questions had been raised about the duties of the authority and whether there would be duplication, we felt that it was important to make matters clear by placing the best regulatory framework in the Bill.
      With regard to Scotland, giving the HTA the power in new clause 10 to assist other bodies, if it is asked to do so, will help Scottish Ministers in terms of regulating live transplants in Scotland. This question involves some continuing discussions, which we have been having with the Scottish Executive, who have been not only working with us, but consulting the public on the issue of the Bill. We will continue to work with them in that way to ensure that we do not duplicate areas in which we could assist.
      Question put and agreed to.
      Clause read a Second time, and added to the Bill.
      4.30 pm

    New Clause 10

      POWER OF HUMAN TISSUE AUTHORITY TO ASSIST OTHER PUBLIC AUTHORITIES
      '(1) The Authority may if it thinks it appropriate to do so provide assistance to any other public authority in the United Kingdom for the purpose of the exercise by that authority of its functions.

      (2)Assistance provided by the Authority under this section may be provided on such terms, including terms as to payment, as it thinks.'.—[Ms Rosie Winterton.]

      Brought up, read the First and Second time, and added to the Bill.

    New Clause 1

      DETERMINATION OF CONSENT FOR REMOVAL, STORAGE AND USE OF ORGANS FROM ADULTS FOR PURPOSE OF TRANSPLANTATION
      '(1) Where part of a body of an adult lying in a hospital or other institution is or may be suitable for use for transplantation, it shall be the duty of the person having the control and management of the institution to ensure that, before any organ is removed from the body, each of the conditions specified in subsection (2) is met.
      (2)Those conditions are—
      (a)that the deceased was, immediately before he died, ordinarily resident in England, Wales or Northern Ireland;
      (b)that the deceased did not, during the relevant period, lack the capacity to decide to make his organs unavailable for removal for the purpose of transplantation;
      (c)that, where the person to whom the duty under subsection (1) applies knows, or has reason to believe, that—

      (i)the body of the deceased person, or

      (ii)relevant material which has come from the body of a deceased person,

      is, or may be, required for purposes of functions of a coroner, the consent of the coroner has been obtained;
      (d)that it has been duly ascertained that the deceased—

      (i)had decided to make his organs, or the relevant organ, available for removal for the purpose of transplantation and had had that decision duly recorded in the register, or

      (ii)had not had a decision to make his organs, or the relevant organ, unavailable for removal for the purpose of transplantation duly recorded in the register; and

      (e) that no person with a right to signify an objection under the provisions of section [duties to persons who stood in a qualifying relationship in relation to transplantation] has done so.
      (3)Where each condition in subsection (2) is met, "appropriate consent" shall have been determined for—

      (a)the removal of organs, or the relevant organ, for the purpose of transplantation,

      (b)the storage for use for the purpose of transplantation of such organs and of associated tissue, and

      (c)the use for the purpose of transplantation of such organs and of associated tissue.

      (4)Where a body is transferred to another institution prior to the removal of any organ, the duty under subsection (1) shall also be transferred to the person having the control and management of the institution to which the body has been transferred.
      (5)In dealing under section 23(1) with the matters mentioned in this section and sections [register of personal decisions about availability of organs for purpose of transplantation] and [duties to persons who stood in a qualifying relationship in relation to transplantation], the Authority shall, in particular, lay down the standards expected in relation to the performance of the duty imposed by subsection (1).
      (6)The person to whom the duty under subsection (1) applies may designate another person to perform activities in relation to that duty.
      (7)It shall be the duty of the person to whom the duty under subsection (1) applies to secure that any person designated under subsection (6) to perform activities is a suitable person to participate in the carrying-on of those activities.
      (8)This section shall not be read as making unlawful anything which is lawful apart from this section.
      (9)For the purposes of this section a person lacks capacity in relation to a decision to make his organs unavailable for removal for the purpose of transplantation if during the relevant period he is unable to make a decision for himself in relation to the matter because of an impairment of or a disturbance in the functioning of the mind or brain.
      (10)In this section and sections [register of personal decisions about availability of organs for purpose of transplantation] and [duties to persons who stood in a qualifying relationship in relation to transplantation]—

      "associated tissue" means tissue the removal of which is integral to the removal of an organ for the purpose of transplantation;

      "death" has the meaning given in accordance with the provisions of section 23(2)(d) and cognate expressions shall be construed accordingly;

      "organ" means any part of a human body consisting of a structured arrangement of tissues which, if wholly removed, cannot be replicated by the body and includes a part of an organ;

      "the register" means the register maintained in accordance with the provisions of section [register of personal decisions about availability of organs for purpose of transplantation];

      "the relevant period" has the meaning prescribed by regulations, but the period so prescribed shall not include the period that—

      (a)begin with the occurrence of an accident that causes the death of the person concerned, and

      (b)ends with his death;

      "the removal of an organ" includes the removal of any associated tissue removal of which is integral to the removal of the organ for the purpose of transplantation.'.—[Dr. Evan Harris.]

      Brought up, and read the First time.
      Dr. Evan Harris: I beg to move, That the clause be read a Second time.
      Mr. Speaker: With this it will be convenient to discuss the following:
      New clause 2—Register of personal decisions about availability of organs for purpose of transplantation—
      '(1) It shall be the duty of the Authority to maintain a register of persons deciding to make all their organs, or specified organs—

      (a) available, or

      (b) unavailable

      for removal for the purpose of transplantation.
      (2)Any person who decides to make all his organs, or specified organs—

      (a) available, or

      (b) unavailable

      for removal for the purpose of transplantation may inform the Authority in a prescribed manner.
      (3)Any person who has informed the Authority of his decision under subsection (2) but then makes another decision may inform the Authority in a prescribed manner.
      (4)Upon receipt of information in accordance with subsection (2) or (3) the Authority shall—

      (a)confirm to the relevant person in writing that the information has been received and

      (b)ensure that—

      (i)an appropriate entry is made in, or removed from, the register, or

      (ii)the appropriate entry is amended.

      (5)The Secretary of State may by regulations prescribe the ways in which an adult may provide information to the Authority for the purposes of this section, including opportunities to provide such information when a person is—

      (a) registering for the receipt of, or receiving, primary medical services,

      (b) applying for a driving licence, or

      (c) making an application for a passport.

      (6) The Authority shall take such steps as it considers appropriate to promote public awareness of the register and of the means by which a person may make an entry in the register.
      (7) Where the authority is satisfied that—

      (a) a person in relation to whom information is held on the register has died, and

      (b) a period of one month has elapsed since his death,

      the Authority may remove the entry in respect of that person from the register.
      (8) Information held by the Authority in accordance with the provisions of this section may only be made available to—

      (a) the person in respect of whom the information is held,

      (b) a person in a qualifying relationship to the person specified in paragraph (a) when that person is deceased,

      (c) a person to whom the duty under section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation] applies, and

      (d) such other persons as may be prescribed by regulations.

      (9) A person commits an offence if he—

      (a) makes information held by the Authority in accordance with the provisions of this section available other than to the persons specified in subsection (8),

      (b) does anything which causes an entry—

      (i) not to be made in the register after the Authority has been informed in a prescribed manner,

      (ii) to be removed without due authorisation, or

      (iii) to be false or incomplete.

      (10)A person guilty of an offence under subsection (9) shall be liable to—

      (a) imprisonment for a term not exceeding 12 months, or

      (b) a fine not exceeding the statutory maximum, or

      (c) both.'.

      New clause 3—Duties to persons who stood in a qualifying relationship in relation to transplantation—
      '(1) It shall be the duty of the person to whom the duty under section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation] applies to—

      (a) inform the person or persons who stood in a qualifying relationship to the deceased immediately before the death of the deceased of his or their rights under this section, and

      (b) to provide him or them with an opportunity to exercise those rights.

      (2) Those rights are—

      (a) to be informed about the operation of relevant provisions of this Act,

      (b) to signify an objection to the removal of a relevant organ for a reason specified in subsections (3) to (5).

      (3)The reason specified in this subsection is that the deceased person had made known his decision to make all his organs, or a relevant organ, unavailable for removal for the purpose of transplantation even though he had not informed the Authority for the purpose of the making of an entry in the register.
      (4)The reason specified in this subsection is that—

      (a) the deceased person had made known his decision to make all his organs, or a relevant organ, unavailable for removal for the purpose of transplantation, and

      (b) he had informed the Authority accordingly, but

      (c) a relevant entry was not made in the register, or

      (d) the appropriate entry in the register was not amended accordingly.

      (5) The reason specified in this subsection is that the removal of a relevant organ for the purpose of transplantation would cause significant distress to any person who stood in a qualifying relationship to the deceased immediately before his death.
      (6) The person to whom the duty under subsection (1) applies may designate another person to perform activities in relation to that duty.
      (7) It shall be the duty of the person to whom the duty under subsection (1) applies to secure that any person designated under subsection (6) to perform activities is a suitable person to participate in the carrying-on of those activities.
      (8) The qualifying relationships for the purposes of this section are—

      (a)spouse or partner,

      (b)parent or child.

      (c)brother or sister.

      (9) The qualifying relationships shall be ranked in the order given in subsection (8) for the purposes of subsection (1).
      (10) Relationships in the same paragraph of subsection (8) shall be accorded equal ranking for those purposes.
      (11) The duty under subsection (1) shall apply in relation to the person or persons whose relationship to the person who has died is accorded the highest ranking in accordance with subsections (8) to (10).
      (12) If two or more persons are accorded equal ranking in accordance with subsections (8) to (10), the duty under subsection (1) shall apply to all of the persons accorded that ranking.
      (13) In applying the principles set out above, a person's relationship shall be left out of account if—

      (a) he does not wish to exercise his rights under this section,

      (b) he is not able to exercise those rights, or

      (c) it is not reasonably practicable to communicate with him within the time available before the organ or organs must be removed.

      (14)Nothing in this section affects the general professional obligations of registered medical practitioners in relation to the family of the deceased.'.
      New clause 5—Elective ventilation for transplantation—
      (1) This section applies where—

      (a)a patient is in a hospital, nursing home or other institution; and

      (b)the person having the control and management of the institution reasonably believes that—

      (i)consent making removal of part of the body of the patient, after he has died, for transplantation lawful has been, or will be, given,

      (ii)part of the body of the patient is or may be suitable for use for transplantation after he has died, and

      (iii)elective ventilation would be appropriate.

      (2) Where this section applies it shall be lawful for the person having the control and management of the institution to administer elective ventilation.
      (3) Authority under subsection (2) shall only extend to the taking of the minimum steps necessary for the purpose mentioned in that provision.
      (4) Authority under subsection (2) ceases to apply once it has been established that consent making removal of the part for transplantation lawful has not been, and will not be, given.
      (5) Authority under subsection (2) shall extend to any person authorised to act under the authority by—

      (a) the person on whom the authority is conferred by that subsection, or

      (b) a person authorised under this subsection to act under the authority.

      (6) In this section, "elective ventilation" means the use of artificial ventilation in a comatose patient who is close to death from severe brain damage for the purpose of protecting part of the body of the patient for transplantation after he has died rather than for the benefit of the patient himself.'.
      And the following amendment thereto: (a), in line 9, after 'died', insert—
      '() a decision of the patient to consent to the activity is in force,'.
      Amendment No. 10, in page 2, line 45 [Clause 1], at end insert—
      '(10) In this section, "use" does not include any activity authorised by or under section 44.'.
      Amendment No. 1, in page 4, line 11 [Clause 3], leave out 'or public display' and insert
      ', public display or transplantation following removal where each of the conditions specified in section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation](2) is met'.
      Amendment No. 2, in page 4, line 23, at end insert—
      '(5A) Where the person concerned has died and the activity involves any of the matters specified in subsection (5B), "appropriate consent" means consent determined in accordance with the provisions of section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation].
      44
      Those matters are—

      (a)the removal of the material specified in subsection (5C) for the purpose of transplantation where each of the conditions specified in section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation](2) is met,

      (b)the storage for use for the purpose of transplantation of the material so removed, and

      (c)the use for the purpose of transplantation of the material so removed.

      That material is—

      (a)an organ,

      (b)associated tissue.'.

      Amendment No. 3, in page 4, line 31, at end insert—
      '(8) In this section "associated tissue" and "organ" have the same meanings as in section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation].'.
      Amendment No. 4, in page 4, line 34 [Clause 4], at end insert
      'except where consent is determined in accordance with the provisions of section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation]'.
      Amendment No. 11, in page 8, line 35 [Clause 11], at end insert—
      '(aa) activities authorised by or under section 44;'.
      Amendment No. 5, in page 14, line 22 [Clause 23], leave out paragraph (d) and insert—
      '(d) the definitions of death for the purposes of this Act, including a definition of death confirmed by brain stem tests for the purpose of section [determination of consent for removal, storage and use of organs from adults for purpose of transplantation];
      (da) the procedures to be followed in relation to brain stem tests for the purpose of confirming death;'.
      Amendment No. 12, in page 14, line 35, at end insert—
      '(ja) activities authorised by or under section 44;'.
      Government amendment No. 66.
      Amendment No. 13, in page 28, line 7 [Clause 44], at end insert—
      '(4A) This section shall not be read as making unlawful anything which is lawful apart from this section.'.
      Government amendment No. 47.
      Amendment No. 6, in page 33, line 19 [Clause 55], after 'Act', insert
      'except section [duties to persons who stood in a qualifying relationship in relation to transplantation]'.
      Dr. Harris: I am grateful for the opportunity to raise the question of presumed consent and I am grateful to those hon. Members who have put their name to the amendment for their indication of support. I hope to set out in my opening remarks the current situation with regard to organ transplant, explain the proposed change, briefly explain what each new clause and amendment would do and then set out the reasons for the change. Finally, I shall deal—in advance, if I may, for a further occasion—with some arguments that Ministers, among others, have used against the proposals.

      45
      I hope also that the Minister responds to my "prebuttal" of her points, if she feels I have them right, rather than simply repeating them without reference to some facts that we seek to express.
      Mr. Andrew Mackay: Optimistic.
      Dr. Harris: The right hon. Gentleman claims that that is optimistic, but I know that we want a good debate rather than simply a repeat of what was said on Second Reading, which, like consideration in Committee, provided an opportunity for differences to be aired. I respect the strong views of those on the other side of the discussion, and I know that those who share my view also respect their strong views. We need to have an exchange of views. If there is an area where the Government feel that the proponents of this measure have it wrong, I am keen that we accept that and revise our position.
      The current arrangements, which are best described as relatives' consent with opt-in, stem from the Human Tissue Act 1961. Although it has been described, in shorthand, as an opt-in system, it is best described as seeking relatives' consent, often on a guess, as to what the person would have wanted, with an opt-in to guide them. If someone is in such a position that their organs could be used after their death for transplantation purposes—that is, they have died and their death has been confirmed by brain stem testing on a ventilator in the intensive care unit with no medical contraindications to organ donation—doctors may approach relatives to seek permission so to use the organs.
      At the moment, relatives, often at the height of their grief—such deaths are often of young people following a road traffic accident or other trauma—are asked to decide whether the organs can be used. In a small minority of cases, the potential donor would have made clear to relatives his or her opposition to donation. That is generally and rightly respected by those relatives, although it need not be if relatives choose not to do so.
      In a larger minority of cases, but still a minority, the potential donor will have indicated a wish to donate by telling relatives, carrying a donor card and/or registering on the organ donor register. Relatives still have to give consent, and in a significant minority of those cases relatives withhold their consent: in the potential donor audit, relatives refused in 11 out of 226 cases in which the organ donor register was consulted. That is not a virtual nothing, in terms of that frequency, but a problem with which both systems must deal. We should not think that it is not also present in the current system.
      In the majority of cases, as recognised by the potential donor audit carried out by UK Transplant, the wishes of the potential donor are unknown. In those cases, relatives are forced to second-guess the wishes of their loved one. In about half those cases, permission is withheld—again, those data come from UK Transplant's potential donor audit for the first few months of 2003. If we make a comparison with previous research, that proportion has increased in the last 10 years from 30 per cent. to nearly 50 per cent.
      Dr. Murrison: On a point of clarity, I think that the hon. Gentleman said, as I think that the record will say,
      46
      that relatives have to give consent. I am not sure whether he meant that. Perhaps he might like to think again about precisely what he meant. In fact, they do give their consent, and it is always sought, and rightly so. We need to be absolutely clear about the letter of the law.
      Dr. Harris: I will repeat what I was seeking to get across: in a larger minority of cases, the potential donor will have indicated a wish to donate, as in the examples that I used, and relatives still have to give consent, or they still have to be consulted for that consent. I will clarify that. As I explained, in a significant minority of cases—each one is significant for the person or people who will die because that organ is not available, so even one case is significant—relatives withhold their consent.
      Under the proposed change, the system would be one in which consent by the potential donor was presumed unless he or she had registered or made known an opt-out. The plan would be that after a widespread media and education campaign, which would be prompted by the change in the law but would take place before it came into effect, every adult would be given multiple and continued opportunities to register their objection to their organs being used after their death for transplantation, and to discuss that view with their relatives. As I described previously, were it the case that someone's organs could be used after their death for transplantation purposes, doctors would have a legal duty to check the opt-out register, to see whether the person had registered an objection. If so, no approach other than the explanation that might be required would be made to relatives, and the wishes of the deceased would be respected. If no opt-out had been registered, relatives would be approached and asked whether they knew of any objection of the deceased that had not been registered. If so, organs would not be taken for transplantation, as previously. If no objection had been registered, and if no objection was known by relatives, medical staff would express an intention to use the relevant organs for life-saving or life-transforming transplantation, in line with the presumed or, where relevant, expressed wishes of the potential donor.
      At that point—this is the soft opt-out proposed by me, and supported by the British Medical Association and others—if relatives demonstrate that they would suffer significant distress as a result of the use of organs in that way, the organs would not be taken. This veto opportunity for volunteered distress by relatives is called the soft system of presumed consent, as used in Belgium, which is to be contrasted with the harder system, with no such veto, as used in Austria, for example.
      Ian Lucas: Can the hon. Gentleman clarify who, in those circumstances, would assess whether the distress was significant?
      Dr. Harris: The same people would make that judgment who make the judgment now when there is indecision or a disagreement among the relatives—the doctors who were caring for the deceased person. It would not be, as in other jurisdictions, doctors with a vested interest for the recipient, but doctors and nurses

      47
      who have invested their time in looking after the deceased and caring, post-bereavement, for the relatives.
      Mr. David Wilshire rose—
      Mr. Kevan Jones rose—
      Dr. Harris: I give way first to the hon. Member for Spelthorne (Mr. Wilshire), who has a particular interest in this matter.
      Mr. Wilshire: Following the previous intervention, do I understand the hon. Gentleman correctly? Is he telling us that somebody somewhere, even if they were not involved in the particular case, would have the power to overrule relatives who were distressed? How on earth can anybody measure the amount of distress coming from the bereavement as distinct from the amount of distress coming from the request to object to a transplant?
      Dr. Harris: These are difficult areas. It is done successfully in Belgium, in respect of both providing more organs and meeting public acceptability. Surveys of relatives show that they are pleased to be relieved of the responsibility of taking a difficult decision at the height of their grief. That is how it would be done here. Clearly, the relatives are distressed as it is, and the current system expects them to take a decision, to second-guess the wishes of the deceased at the peak of their grief when brain stem death will just have been declared after what is normally a short illness following a traumatic injury. In those circumstances, the distress of relatives is already present.
      This system proposes that relatives are approached to ascertain whether there were any unregistered objections and it gives them the opportunity to volunteer the view that they do not wish the transplant to go ahead. The difference is that they will not be asked for their view, because the view of the deceased will predominate, whether it be expressed or presumed. Nevertheless, if the relatives have a view, after they know that the organs will otherwise be used, they can state that they would suffer distress and the judgment would be made in the same sensitive way as at present.
      I hope that the hon. Member for Spelthorne will accept that these are difficult decisions, but that they have to be made. He must remember that there is another set of distressed relatives—those of patients who are literally dying without the transplants. We have to ensure that we weigh up those two interests as sensitively as we can. Other countries have managed it successfully—by the Belgian method, for example, which has been carefully appraised and incorporates taking into account the views of relatives afterwards.
      Mr. Wilshire: I am grateful for that response and if I catch your eye later, Mr. Deputy Speaker, I may comment on the views of other people and third parties. However, would the hon. Gentleman accept that one definition of hell would be to be already deeply upset and passionately opposed to what is about to happen to
      48
      one's deceased relative and then to be told by someone, "I am sorry, but you are simply not upset enough"? That, for me, is a definition of hell.
      Dr. Harris: As I say, the problem that the hon. Gentleman seeks to identify is a problem that occurs now in respect of organ donation where the deceased has a donor card, but relatives may well oppose it. Doctors have a very difficult problem when someone has said in life that they wish to donate, but another group of people are dying and their relatives are deeply concerned about it, and a third party—the bereaved relative whose interests must also be respected—expresses another view. These are difficult decisions to take now—they certainly had to be taken by my colleagues when I worked in acute medicine—and those difficulties will always be with us. We have to set out a framework to ensure that due respect is given to the strongly held views of bereaved relatives. The veto outlined in the provision does precisely that and it does so reasonably.
      Mr. Kevan Jones rose—
      Mr. Dalyell rose—
      Dr. Harris: I am keen to make progress, but I will take these interventions.
      Mr. Jones: I appreciate that the hon. Gentleman is attempting to give relatives some input or a veto. However, what happens when relatives are not present and the decision to transplant organs has to be taken, but relatives subsequently come forward to dissent? Would that not put doctors in the terrible position of having done something to which relatives subsequently take strong exception?
      Dr. Harris: The hon. Gentleman will be relieved to know that that problem is far more likely to arise under the current arrangements because the Human Tissue Act 1961, which deals with circumstances when a donor card or the organ donor register has been used, does not require doctors to delay transplantation, because people can be kept ventilated after brain stem death only for so long while relatives are found. That is the first problem, and that already happens now when there is an indication of the deceased's wish but relatives are not present. I hope that the hon. Gentleman recognises that. In many such cases, if not in the vast majority, the deaths take place in intensive care following an illness where there is a process of diagnosis of death by brain stem injury, and relatives are invariably there, where they exist. It is not a rapid decision. There are some circumstances, however, in which rapid decisions need to be taken, and clause 44 presumes consent for cold perfusion in those cases. I not believe that the problem identified by the hon. Gentleman would be any greater than in the current circumstances that I described.
      Mr. Dalyell: Is there not another definition of hell, which is the agony of the relatives of those desperately in need of a transplant and who see matching tissue going up in crematorium incinerators, when it is likely that the relatives of the deceased would have been only too happy to help someone else?
      4.45 pm
      Dr. Harris: I share that view and I hope that the hon. Gentleman has a chance to catch your eye later, Mr. Deputy Speaker. I know that he has a long history of campaigning on the issue and would be able to develop those points further.
      The differences in the current system and the opt-out system reside mainly in the way relatives are approached. It is not that relatives are approached under one system and not approached under the other. In the current system, relatives are asked to make a decision, usually based on guessing their loved one's wishes or on their own feelings Under a system of presumed consent with opt-out, the absence of an objection is taken as the basis of a presumption of consent by a potential donor who is ordinarily resident, has capacity and is an adult. Relatives are approached only to seek evidence of unregistered objection or opt-out by the deceased, not to make a decision themselves.
      Why do the proposers of the new clause want to change the present system? As I have said, if the present system were working well, improving, doing well enough or offered advantages compared to the one proposed, I would not propose a change. However, it is clear that the present system is not working well enough for prospective recipients, prospective donors or the relatives of the deceased. All those who support change support the current system while we have it, and I hope that it is acknowledged that I and others who support change have worked hard to promote the organ donor register and donor cards. However, we have to recognise that the present system is not working effectively for any of the people involved.
      In terms of the effect on potential recipients, the number of cadaveric organ donors is falling year on year despite efforts made under the present system. The Minister may claim that last year there was an increase, but there was not an increase in the number of cadaveric organ donors in 2003 compared with 2002, nor in 2002 compared with 2001. That is what we are measuring. At the same time, the number in need of a transplant rises every year. That means, tragically, that more and more people are dying while on a waiting list for a transplant or before even making it to the formal waiting list. Many people do not make it to a waiting list because the criteria are tight—because the prospects for transplantation are so limited.
      Potential donors—the deceased whose organs would be used—do not do well out of the present system either.
      Surveys have shown that 80 to 90 per cent. of people would in principle wish their organs to be used for transplantation after their death, if possible. However, under the present system, only 50 per cent. have their organs used, because of high rates of refusal by relatives. That means that many organs whose owners would have wanted them to be used to save lives are being buried or cremated with the deceased in direct contravention of their wishes—although I accept that those wishes are often unexpressed.
      Nor are relatives of the deceased well served by the present system. They are put under pressure to make a decision, often at the height of their grief. There is now research to suggest that half of them make a decision that they later regret. Every time they see the story of a successful transplant in the media, they feel that their
      50
      decision—at a time of heightened grief—was not the one that they would have made if they had known then what they know now.
      Nor is the present system fair on medical staff. Doctors and nurses are asked to approach relatives to make a decision at a very difficult time. Nor does the NHS do well out of the present system. That is not a major consideration, but it has been mentioned by the media. Maintaining thousands of kidney patients on dialysis, instead of treating them with the far more cost-effective option of transplantation, uses up millions of pounds of NHS cash that could be spent on saving or prolonging the lives of others. That is not a key point and it is more ethical than financial, but even the financial arguments are in favour.
      The second point is that presumed consent with opt-out works; it saves lives. Many other countries in Europe and the rest of the world use that system successfully. The average donation rate, in donors per million of population, is 25 per cent. higher in countries with opt-out than in countries that have an opt-in system. Scientific evidence and research backs that up. Several analyses published in scientific journals have looked at the effect of changing to presumed consent with opt-out on rates of organ donation and at other outcomes, such as public satisfaction and relatives' views. They all showed that such a change was successful.
      Some analyses examined the factors that could be judged to account for a higher rate of organ donation in one country than another. All those studies cited presumed consent with opt-out as one such factor and often the only one that could realistically be changed; for example, the rate of road traffic accidents is a factor but it would be hard to change that—one would certainly not want to. Another factor is the proportion of people with a particular religious view; in Europe, Roman Catholicism is associated with a higher rate of donation. Those factors are hard to change, but the one thing that countries can change—the one thing Parliament can change—is the law.
      Dr. Gibson: In those successful countries, have their Parliaments and local organisations attempted to highlight and publicise the need to donate organs? Is there a correlation between that and their success? Does the hon. Gentleman have figures on that?
      Dr. Harris: A change in the law might lead to a temporary increase in donations due to heightened awareness. There was an interesting experiment in Belgium. When the law was changed, and everyone was subject to the same education and publicity, one centre kept to the previous system of seeking formal consent from relatives while another centre switched to the new system. At the second centre, there was a significant and sustained increase in organ donation, which continues to be maintained, but at the first centre, with the original system, the rate, which was lower, stayed the same. Those results were published in peer-reviewed medical literature.
      It is thus not acceptable for the Government to say, as they did in their press release of 14 January, that there is no evidence that presumed consent with an opt-out works. It is clear that there is such evidence in the

      51
      scientific literature. Indeed, all the papers published in peer-reviewed journals indicate that the system works. The Government may not be convinced by the evidence and I respect that view, but to say that there is no evidence or that the evidence is on their side is wrong; it is a misrepresentation and I hope that Members on the Treasury Bench will not continue with it.
      Mr. Dalyell: The hon. Gentleman made reference to the attitude of the Roman Catholic Church, which, of course, varies from time to time, according to whom one is talking to. Before I introduced the first of the ten-minute Bills, my colleagues told me to go and see Cardinal Heenan, so I did and there was certainly no objection at that time from the Roman Catholic hierarchy in England.
      Dr. Harris: None of the major religions opposes either organ donation or switching to a system of presumed consent. There is certainly no evidence of differential take-up for one system or another. We know that ethnic minority populations are less likely to donate organs, yet are more likely to need them—for example, owing to the incidence in the Asian community of diabetes leading to end-organ failure—so we need to increase the supply across the board.
      Mr. Pound: That point has been raised by several people. Does the hon. Gentleman see anything in the Government's proposals that would actually increase the amount of donation, especially among the south Asian community? I am thinking of the work of Dr. Kartan Lalvani, who, for several years, has been trying to increase donation because of the high rate of take-up. Does the hon. Gentleman agree that, almost irrespective of anything else we discuss today, we must concentrate on that aspect? We must increase the amount of those donations.
      Dr. Harris: Absolutely. Regardless of what happens today, we need to support the measures and projects being undertaken by UK Transplant. I welcome much of what the Government have done in respect of the existing system and we also recognise the work being done in those communities by UK Transplant and by the National Kidney Research Fund.
      The third point about the scientific basis to believe that opting out would work is that it would tackle the real cause of low donation rates. A comprehensive audit of potential donor experiences in UK intensive care units has been carried out by UK Transplant—a Government-funded body, charged with running the organ donor system. It considered every death on ICU during a published period in 2003, and which of them had the appropriate medical indications where transplantation might be considered, where brain-stem testing was done and where transplantation was considered and relatives were approached. That showed that the reason why organ donation rates are low and falling is specifically the high rate of refusal by relatives—approaching 50 per cent.—not other factors, such as doctors failing to approach relatives. It is often said, "Oh, we should just improve the number of times that doctors approach relatives. They are being lax.
      52
      They are not tackling the issue because it is so difficult for them to raise." That audit clearly showed that relatives are being approached and that the specific cause of our low donation rates is relatives' refusal. The low rate is not caused by the fact that, for example, organs are not used although permission has been given, which is a factor in other countries that have high wastage rates.
      Dr. Gibson: Does the hon. Gentleman think that there might be a correlation with an anti-science, anti-medical culture that has developed since events such as those at Alder Hey? That might be the underlying reason why people do not entrust organs to the hands of the medical brotherhood and sisterhood.
      Dr. Harris: There appears to be no temporal association with a drop in organ donation and the events at Alder Hey or Bristol—thank goodness—but there has just been a steady and slow drop, and the only data points that we have for relative refusal is 30 per cent. in 1993, from the Gore study, and approaching 50 per cent. from the potential donor audit, being conducted nationally now. We know from opinion polls that people distinguish between the use of organs for research and the use of organs for transplantation. Those people who are badly affected by what happened Alder Hey and Bristol do not oppose presumed consent or organ donation generally for transplantation. I have had discussions with. for example, NACOR, which confirms that that is the case. The focus is on, first, children, and secondly, informed consent for the use of organs.
      David Taylor: Do not surveys frequently show that between 70 and 90 per cent. of people have no objection to organ donation? The hon. Gentleman quotes the figure that 50 per cent. of grieving relatives fail to give permission, but that must only be because they are taking a precautionary approach, never having discussed the issue with their loved ones. Is that not a reasonable stance for them to take?
      Dr. Harris: Yes, given that relatives are forced to make a decision, but it is very difficult for them to know what to do. Indeed, the potential donor audit asked relatives why they said no. In the main, they did not say no because the deceased did not want to donate. In 26 cases, the reason given in the audit was:
      "Next of kin not sure whether patient would have agreed to donation."
      That would be solved by presumed consent, as the relatives would be given a presumption because of the failure to opt out where that occurs. [Interruption.] That is better than guessing. I understand that hon. Members are concerned about that, but relatives must guess at the moment. They are unable to do so; they play safe, so several other people suffer because those organs are not available. However, we know, as the hon. Gentleman said, that 90 per cent. of people support organ donation.
      David Taylor: I am grateful to the hon. Gentleman for giving way again. I would want to support new clause 1 and I strongly support its spirit, but his argument is, in

      53
      fact, seriously flawed. Relatives who had no idea whether their loved ones would have wanted to agree to organ donation will not have then fears assuaged by the fact that a default system is somehow at work. The two things are totally separate, are they not?
      Dr. Harris: No. In fact, that is the key point, as shown by the successful operation of presumed consent in Belgium. First, the opt-out provides the opportunity to discuss such things with the family, so those discussions take place more than when there is an opt-in system with a donor card. We would all wish that those discussions took place more often. Secondly, the fact that someone has applied for a passport or been to the post office and applied for a driving licence and all those other things without registering an opt-out relatively straightforwardly should reassure relatives, as it does in those countries that use such a system, that their loved one did not object, even if, like many people, they did not think about it. That will allow relatives safely to consider such things and to find reassurance in the fact that other people will benefit from their lives being saved by that gift of life.
      I am keen to make progress—I know that other people wish to speak—so I shall now deal with some of the ethical issues. I believe, and the British Medical Association believes, that presumed consent with opt-out is ethical; indeed, it is highly ethical, and many ethicists would argue that it is more ethical than the current system, for a number of reasons.
      5 pm
      First, it creates a default position that life should be saved rather than a default position that life could be lost. Secondly, as the evidence shows, it saves lives that are currently needlessly being lost; and thirdly, it encourages informed decision making by potential donors during life as opposed to what is inevitably subjective second-guessing by grieving relatives after death. Fourthly, it is more likely as we have heard, to respect the autonomy and wishes of the deceased, the vast majority of whom would want to donate, while still allowing conscientious objectors to do so while having protection in law for their objections. Finally, it treats relatives more fairly by not imposing life-and-death decision making upon them at a very difficult time.
      Presumed consent with opt-out meets the wishes of the deceased for the reasons that I have given, in that the vast majority of people wish to donate. As I have said, presumed consent is fairer to relatives, because we know that many relatives regret making decisions to say no when they realise that they could have saved a life. It is fairer to them because, under the soft system, there are the following benefits. They are not asked to make a de novo presumption or guess about the wishes of their loved one, and they are asked for any knowledge of an unregistered expressed objection by their loved one. That is considered a valid opt-out, so that protection exists. After they are informed of the intention to use organs for transplantation on the basis of expressed or presumed consent, they are given the opportunity to volunteer their own objections. Finally, presumed consent applies only to adults over the age of 16. In the case of children, under our proposals, parental consent would be required as now. That, must be made clear.
      Mr. Wilshire: I am doing my level best to follow the hon. Gentleman's ethical arguments, and I can see why he says that there is an element of guesswork as to what the deceased would have thought. However, to argue that presumed consent eliminates any guesswork is not correct. It may well be that the odds of getting it right are greater, but presumed consent will not be right 100 per cent. of the time.
      Dr. Harris: Because presumed consent removes the decision that is often based on a guess from the relatives, it removes the guess. I think that the hon. Gentleman is right that it would meet the wishes of the deceased—I am glad that he accepts this—on the vast majority of occasions. That is not the case at the moment. It also benefits the other group of interested parties: the people who are desperate for the transplantation.
      Mr. Wilshire rose—
      Dr. Harris: I know of the hon. Gentleman's particular interest in the subject, so I shall, of course, give way again.
      Mr. Wilshire: I want to ensure that the record is correct. I do not believe that I said that presumed consent would meet the wishes of the deceased; I said that it might meet the wishes of more deceased, but I most certainly did not say all.
      Dr. Harris: I think the hon. Gentleman was saying—this follows logically—that presumed consent is more likely to meet the wishes of the deceased on more occasions than the current situation in which 50 per cent. of people do not have their organs used even though 80 to 90 per cent. of them are not opposed to the use of their organs. That is a big gap, and no system could be worse than that in terms of meeting their needs.
      In the final part of my speech, I wish to deal with the rebuttals that have previously been made as that will aid the debate. The Government have said in a press release and elsewhere that there is no evidence that such a system would work, but that is simply not the case. I welcome the fact that the Government say that they want to make evidence-based policy, but they should know that there was a report in The Lancet on 30 May 1998, volume 351, by a group describing the evidence that a shift to opt-out had increased the number of cadaveric donors in Spain, Austria and Belgium. It also showed very low opt-out rates—2 per cent. in Belgium—suggesting, much as polls show, that few people oppose donation. It said:
      "In three western countries there is evidence that changing to a contracting out system resulted in an increase in organs."
      The Government may say that that was just a group of junior researchers, some fly-by-nights without much credibility. The lead author was Professor Sir Ian Kennedy, who wrote the Kennedy report on the Bristol heart scandal. He is clearly respected sufficiently by the Government to be appointed to head the new health care commission that inspects the NHS.
      More sophisticated studies have examined possible confounding factors. Ronald Gimbel, an American, and his group examined the situation throughout Europe

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      and tried to identify specific factors that increased the organ donation rate using a regression analysis. He identified four factors, and said:
      "Evidence from this study, and from the studies previously discussed, clearly suggest that the practice of presumed consent (opting-out) legislation has had a significant effect on the number of cadaveric donors per million population. As the gap between the supply and demand for transplant continues to widen, professionals and policymakers should consider revisiting the implications of this legislation, or some hybrid of alternatives, as an effort to expand the 'the gift of life' to those in need."
      The study represents peer-reviewed scientific evidence, so the Minister cannot simply repeat the mantra, "There is no evidence." She may not be convinced by the study. Indeed, she may be able to cite a peer-reviewed scientific study that suggests that presumed consent is not a relevant factor, although I have not read one, but she should not say that there is no evidence for my proposals. I could cite other papers, but I shall not do so for reasons of time. The Government's research shows that presumed consent could work because the potential donor audit identified the problem as relatives' refusal.
      I accept that it was important for such work to be done before any changes were made to the system. The Government claim that the current system is working, but they need to examine the statistics published on UK Transplant's website, because they show a year-on-year decline in organ donation, including over the past year. Statistics for the year ending 31 December 2003 clearly show that the percentage change for total solid organ transplants between 2002 to 2003 was minus 5 per cent: there were 2,219 such procedures in 2003 and 2,333 in 2002. That represents a fall over the past year, in my book. There was an 8 per cent. drop in the total number of deceased donors, from 770 in 2002 to 710 in 2003. Even if the Government choose four quarters at random, they cannot say that we have turned a corner—sadly. I respect the work of UK Transplant, but we must accept that the current situation is not working.
      The Government say that there is a need to consult relatives to identify social factors that might contraindicate transplants, and the Minister repeated that on the radio. I agree, but relatives would be asked that question under the proposed system, as well as being asked whether unregistered objections existed. The Minister cannot claim that the need to consult relatives about a person's social history is an argument against my proposal.
      The Minister has cited the case of a child in France, but the measure would not apply to France. Even if the Bill were amended by the new clauses, it would be unlawful for children's organs to be used for transplant without parental consent. France has not changed its law back from a system of presumed consent, as is set out clearly in the Gimbel paper. If the Minister can cite a different paper or argue with the letter than I received from the French Ministry, that is fine. However, she should not say that France has changed its law back to what it was before.
      The Minister might argue that Spain uses informed consent in practice, despite the fact that it has provisions on presumed consent in law. I accept that that is the case, but Spain has a culture of presumed consent, so it
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      can use informed consent, or relatives' consent. As the country has a high rate of organ transplants for other reasons, it has less need to push presumed consent as much as possible. The situation in Spain is not an argument against presumed consent, but an argument for changing this country's law.
      I have heard that the Government have argued that they have put a Whip on the vote because my proposal represents an expenditure issue. However, that cannot be right, so I think that the hon. Member for Ealing, North (Mr. Pound) spoke for many people when he said that such a suggestion would be ridiculous.
      The Government have argued—this may be the view of the Conservative Front Bench—that as the Bill is all about informed consent, we should not move away from that approach. The current system for organ donation is one not of informed consent but of relatives' consent, and that often boils down to relatives making second guesses at a difficult time. Arguing that the provisions should not be included in the Bill is wrong in principle. Given that such Bills come along only once every 40 years, it is little consolation to suggest that another Bill might come along shortly. It should not be suggested that my proposals are not relevant to a Bill that deals with issues surrounding Alder Hey and the use of children's organs for research.
      I am grateful to the House for allowing me to set out my arguments at such length. I hope that hon. Members accept that I took interventions to allow people to challenge my views and I look forward to the rest of the debate.
      I stress that we support the existing system as far as it goes, but it is not working, there is an alternative, and at the very least the Government should be calling for a public debate. They cannot simply say that we cannot change the law because there has not been a public debate and they are not going to have one. They need to answer to the thousands of people on transplant waiting lists and their relatives, and to those who have been buried or cremated with their organs when they would have wanted them to be used. It is those two groups of people to whom the new clauses speak, and I hope that the Government will listen through us to them.
      Mr. Dalyell: As the hon. Member for Oxford, West and Abingdon (Dr. Harris) said, I have a long history in this matter, going back to 1970 when I introduced a ten-minute Bill. I do not propose to regurgitate history, because things have moved on, but I say one thing to Conservatives: ten-minute Bills usually empty the House. For the Bill that I presented, the House did as usual and emptied. However, there remained the former Conservative Prime Minister, Ted Heath, and he listened to what I said. In the Corridor shortly afterwards, he said, "I was very sympathetic, but you'll never get this past Keith Joseph and Department of Health officials." I say that because at that time there was considerable sympathy for such a proposal on an all-party basis. I say as an aside that, had there been a Labour Government in 1970, David Ennals and others would almost certainly have introduced a Bill on presumed consent precisely along the lines proposed in the new clauses tabled by the hon. Member for Oxford, West and Abingdon.

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      That is history, but to move to the present, and as lots of Members want to speak, I shall merely emphasise one point that the hon. Gentleman made most eloquently. It is totally unsatisfactory that decisions have to be made at the point of maximum grief. Of course relatives do not want to have to jump to a decision after a sudden, terrible accident. Furthermore and very importantly, for very understandable human relations reasons, doctors are rather reluctant to put the question. When a doctor is struggling to save some patient at a time of grief, the system fails. How can we expect a doctor to summon up the energy to ask the dreadful question, "Can we have organs?" One cannot blame them, as human beings, for not wanting to do so. I rest the argument for the moment on the point of maximum grief.
      Given the history of the matter, is it really necessary to have a three-line Whip? [Interruption.] The former Secretary of State for Health—[HON. MEMBERS: "It was not him."] Ah, it was his neighbour. Nevertheless, the former Secretary of State for Health, my right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson), had better speak for himself. I ask my hon. Friends on the Front Bench to be tolerant on this matter.
      Mr. Mackay: As so often, I agree with a great deal of what the Father of the House said.
      May I emphasise, as somebody who at one time was the Government deputy Chief Whip, that I cannot understand why this Government have imposed a three-line Whip on the business before us. This is an immensely sensitive issue and which way each of us should vote is a matter of judgment—often moral judgment. There is no good reason whatever for Government Back Benchers and Front Benchers to be whipped. I commend the Liberal Democrats and my party for allowing a free vote. I put it to those on the Treasury Bench—I notice that there is no Whip present at the moment, but the Minister will no doubt pass on the comments to the Chief Whip—that such behaviour devalues public debate and confidence in the House.
      5.15 pm
      Many issues are party political. Accordingly, and rightly, we are whipped on them. However, there are many issues that attract great interest from outside the House on which the House is not divided along party lines. I suspect that many of my colleagues oppose the new clause, which I support. That is healthy, right and proper. It would have been far better had the debate been completely open and unwhipped. We have harmed public confidence in our House of Commons, and I deeply regret that. I hope that lessons can be learned for the future and that there will be more free votes on issues that are wholly non-party political. That should have been the case today. I strongly endorse the comments made by the Father of the House today and by the hon. Member for Ealing, North (Mr. Pound) last week when he broadcast to the nation in his usual voluble style.
      A large number of right hon. and hon. Members wish to speak and I do not wish to delay the House unduly. We are, I hope, united on one point: we all want more organ donors and to reduce the number of people who are suffering while they wait for a donation and who
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      might lose their lives during that period. I am sure that there is common consent throughout the House on that point. The question is how to get that. I strongly believe that opting out of donation rather than opting into it will increase the number of donations. A minority of people, for ethical and other reasons, do not want to donate their organs. I understand that. Their wishes must be respected, and if Parliament accepts the new clause they will have every right to opt out. Among the great majority of people, however, there is not only a general desire to donate their organs, but a degree of complacency or laziness—they never quite get around to getting an organ donor card. The new clause will put that right.
      I conclude by gently chiding the Minister, which I do not like doing as I have a lot of time for her. She is not a new Labour clone who is unable to speak her mind; she comes from a far more distinguished background of Labour Ministers and I respect her for that. Perhaps it was because it was early in the morning, or perhaps it was because I had only just woken up, but I thought that one of the hon. Lady's replies on the "Today" programme was uncharacteristically insensitive. She said that, instead of doing as the hon. Member for Oxford, West and Abingdon (Dr. Harris) proposes, we should encourage doctors and nurses to persuade patients and their relatives in hospital that donation would be a good idea. With the greatest respect, let me point out that that means a doctor or nurse, at a most sensitive time, telling someone, "Look, you're probably going to die. Why not fill in this donor form?" or saying the same to a patient's relatives. That is unbelievably callous. I am not suggesting that the Minister is unbelievably callous, but that would be the result of her suggestion.
      The ability to opt out of donating one's organs is a much better way forward. I hope that, even at this late hour, the Government have second thoughts and allow the new clause to go a stage further.
      Mr. Frank Dobson (Holborn and St. Pancras) (Lab): As my hon. Friend the Member for Linlithgow (Mr. Dalyell) will confirm, I have opposed the opting-out proposition both from the Opposition Front Bench and as a Minister. However, as I have listened to recent discussions, in particular the speech made by the right hon. and learned Member for Rushcliffe (Mr. Clarke) the last time that we debated the subject and the speech made by the hon. Member for Oxford, West and Abingdon (Dr. Harris) today, I have become more doubtful. We have to recognise that the present system is not working: it does not produce enough organs to meet the needs of people who would be able to live a decent life if they had an organ transplant. I do not think that we can go on as we are, but nor do I think that simply attaching the opting-out proposition to the Bill is the best way forward.
      There are a lot of arguments in both directions. It is ridiculous that we have reached a position in which Ministers assert that the French did something and the proposer of the new clause says that that is not the case. The least that the Government can do is to agree to produce a Green Paper or a discussion document setting out the facts of what has happened in those countries that have introduced an opt-out system. My principal concern about such a system is that there might be a

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      terrible, scandalous incident that would be provoked into public hysteria by the news media. There would then be a huge falling off in the willingness of people to have their organs used. However, it should not be beyond the wit of this Parliament to come up with a proposition that would, generally speaking, protect against that.
      Mr. Dalyell: My right hon. Friend is absolutely right. What scuppered things in the late 1960s and early 1970s was a scandalous incident whereby two patients were moved across my right hon. Friend's city of London to die in the right place, to the advantage of a particular renal surgeon. That was devastating for a cause that was otherwise a sensible one.
      Mr. Dobson: I accept that. I recall the point that my hon. Friend is making.
      It is wrong for the Government to have a whipped vote this evening, but despite that I will probably be voting with them. That is because I would want from the Government Front Bench an undertaking that we shall have a thorough-going examination of the whole issue.
      Mrs. Gwyneth Dunwoody (Crewe and Nantwich) (Lab): I know that my right hon. Friend is putting forward an informed and sensible proposition. However, does he accept that we have been debating these matters not for 10 years or for 20 years, but for as long as I can remember? Many people are dying now and not in the next 20 years. Does he agree that to ask for a Green Paper is, in House of Commons terms, putting back a very difficult decision that many of us do not want to take but one that we have a special responsibility to take?
      Mr. Dobson: I accept all the points that my hon. Friend is making. I accept that it is a difficult decision. There are those on the extreme edges of both arguments who are certain, but there are many in the middle ground who are extremely confused, and who come from both ends of the spectrum. We owe it to them and to the people of this country generally that if we are to change the law, we must get it right. The worst thing that we could do would be to change the law in a way that ended up with a mess. We are not particularly good at making changes to the law on the hoof. We are not too good at making clear and sensible laws at the best of times, but as I have said we are pretty bad at changing things on the hoof. However, there is no reason why, within two or three months, the Government cannot come up with a closely argued proposition, setting out the views of the chief medical officer and others, so that there is thorough-going consideration. Then the Government can introduce a Bill in the next Queen's Speech and get on with things. That is what we should do.
      Dr. Richard Taylor (Wyre Forest) (Ind): I am so grateful to the Father of the House, the hon. Member for Linlithgow (Mr. Dalyell), for mentioning the doctors' dilemma. I was hesitant about putting forward the tremendous problem that practising doctors face at this fearful time. The hon. Gentleman was right to say
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      that it is the worst time for any family to make a decision. It is the time of maximum grief. The thing that has moved me more than anything as a practising doctor who has had to ask relatives for consent for transplantation at this, the worst time, is that they have, on occasions, said to me afterwards, "Thank you very much. I realise what a terrible job it was for you." That has amazed me. That is the most generous thing anybody could ever say.
      I am wholly in favour of the new clause. It would force people to argue among themselves before the moment occurred. At present, relatively few people discuss with their families whether they should fill in an organ donor card, but if there were presumed consent, I believe that many, many more families would talk about it and then, if a disaster happened to a young member of the family, the rest of the family would at least be aware of that member's wishes, and they would expect a doctor to ask at the crucial time. There is no doubt that the new clause would increase the number of organ donations, which are desperately needed by so many people.
      Mr. Pound: I support the grouped clauses moved by the hon. Member for Oxford, West and Abingdon (Dr. Harris).
      It does not need to be put on the record but I shall do so anyway, superfluous though it may be, and say that the majority of the Bill is excellent. It is a first-class piece of legislation that does long overdue work and is entirely worthy of support on both sides of the House. Were it not for the area covered by the grouped clauses moved by the hon. Member for Oxford, West and Abingdon, it would be well nigh the most perfect piece of legislation I have seen. The fact that it even approaches that state of perfection is very much to the credit of my hon. Friend the Minister. However, she may have erred by not allowing a conscience vote on this occasion.
      I understand that there are financial implications, but this is a cross-party issue that so affects all parts of the Hose, as evidenced by the list of supporters of the new clauses. It is very seldom that we see the name of the right hon. Member for Bromley and Chislehurst (Mr. Forth) in the same company as the name of the hon. Member for Oxford, West and Abingdon and, on a humbler and far lower stratum, my own name.
      Mr. Dalyell: One does not wish to shoot one's own troops or one's friends, but my hon. Friend says there are financial implications. Some of us think that the proposed scheme would save money in the medium and long term, rather than cost money.
      Mr. Pound: The Father of the House, as ever, makes an excellent point. It is to his credit that he first raised the issue 33 years ago. I do not think that the measure before us will be weighed in the bankers' scales. I simply understand that there are implications with regard to the infrastructure and that the Government must, rightly and responsibly, pay heed to that matter.
      In a gesture that I shall never repeat, I once offered to advise anyone who wished to nominate a Bill to be put before the House of Commons. That was on the "Today" programme last year, after I had been inveigled by the producer, Mr. Kevin Marsh. If the

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      House is the echo chamber of the nation, the "Today" programme approaches that to a certain extent, though I do not in any way mean to compare you, Mr. Deputy Speaker, to the producer of the "Today" programme.
      By far the most popular topic suggested from across the country was for a Bill precisely along the lines proposed by the hon. Member for Oxford, West and Abingdon. It was not until that rather unfortunate Christmas eve when we were hijacked by gun nuts from various survivalist magazines ranging from Auckland to Alabama that we lost out. I learned a good deal during that time. Principal among the things I learned was never, ever to do it again. The second thing I learned was what strength and depth of feeling mean.
      The Minister referred earlier, as did the hon. Member for South Cambridgeshire (Mr. Lansley), who leads for the Opposition, to the good humour with which business had been conducted today. There was good humour in Committee, as there is on the Floor of the House. I cherish, admire and enjoy that good humour, but for many of our constituents what good humour there is is that of endurance—the bravery that they manage to summon up when they are looking at a very dark future. I mentioned my experience on the "Today" programme. I can also mention Mrs. Foley, a 33-year-old teacher and mother of a seven-year-old child, and a constituent of mine, who has cystic fibrosis and—she will not mind my saying this; she has given me permission to do so—may not live for many more years. She has good humour and immense courage and bravery, but I cannot simply look her and others in the eye and say that in this place, at this time and on this day, I did not do every single thing that I could to try to increase the number of donated organs and consequently the number of transplants, which would make such an enormous difference to people.
      5.30 pm
      I cannot even begin to bring to the table the depth of knowledge and expertise of the hon. Member for Wyre Forest (Dr. Taylor) and various other Members who have spoken, but I spent 10 years working in University College hospital and Middlesex hospital in London. I was the ancillary worker who had to take the relatives into the interview room after their boy had been killed on the A40 or had died in a car crash on Marylebone lane, and who had to stand by, get the tea and be present if the relatives felt faint. I sat in on scores of the very sort of conversations that the hon. Gentleman mentioned. On one or two occasions, yes, the doctor was insulted and called a ghoulish bloodsucker or a Frankenstein, but in the vast majority of cases the reaction was, "We hadn't thought of that; he would really have liked that. He may be gone, but someone else will live." I heard that said over and over again.
      One of the arguments against what is proposed—I am not saying that the Government are suggesting this—is that gung-ho consultants in accident and emergency departments may be a little too anxious to record brain stem death. Consultants in A and E departments seem the most unlikely group of people to want frivolously to go through the enormous amount of paperwork that such a transplant would involve unless it was the most serious possible case and death had been confirmed. My hon. Friend the Member for Linlithgow (Mr. Dalyell) spoke about nightmare cases such as the kidney shuffle
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      across east London, which we remember, but I cannot envisage any case in which an A and E consultant, a registrar or anyone in accident and emergency would act prematurely or in breach of their primary Hippocratic oath because of the prospect of gaining an organ for transplant. I simply do not see that happening.
      The Government have said—and I support them—that one solution is to increase the number of people carrying donor cards. I agree, and I had a great deal of sympathy with my right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) when he called for a Green Paper. The difficulty is that for every France that the Minister raises, I can match it with a Spain and trump it with a Belgium. We can go right around Europe and talk about different cases, interpretations and levels of statistical analysis, but at the end of the day, perhaps, we have to convince the non-experts—the people such as my constituent, my neighbours and, frankly, myself. I simply cannot understand how my constituent would have a better chance of living if she were Belgian rather than British, how we in this country cannot manage what our fellow Europeans can manage so well, and how, as was said earlier, a vitally needed organ can be buried or burned while someone else is dying for it. This seems the most simple and elementary matter of demand and supply. We are simply not maximising the supply, whereas the demand is increasing exponentially.
      If we were to place cards in GPs surgeries, as has been suggested, I wonder how high the take-up would be. Nowadays, Gps—there are many in the House, and they can doubtless speak with far more authority than I can—tend to have about eight to 10 minutes to see a patient. Can anyone imagine a GP talking to a patient and saying at the end of the consultation, "Yes, everything is fine; no trouble at all. By the way, have you thought about carrying a donor card?" The patient may wonder about the secret, subliminal message that lies behind that statement. If my hon. Friend the Member for Dartford (Dr. Stoate) were involved, the message would not be subliminal, because he would probably force the patient to take a donor card.
      I am a strong proponent of compulsory national identity cards, as are most people who care about the safety and integrity of our nation. We face the prospect of issuing such cards, and that offers the perfect opportunity to link what the hon. Member for Oxford, West and Abingdon refers to as "illiberal legislation" with this liberal legislation. Including an opt-out on ID cards is a remarkably sensible idea.
      My hon. Friend the Member for Enfield, North (Joan Ryan) has displayed an extraordinary degree of scientific understanding and great sensitivity in the long conversations in which other people and I have expressed our concerns. I am extremely grateful for her understanding and sensitivity, and I respect and admire her and the Minister for spending so much time on the matter. However, the problem is that the Government are squeamish.
      Some hon. Members are simply not prepared to argue the case for a national system of donations, and some are terrified that the tabloid press will come up with stories about Frankenstein, Dracula and Burke and

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      Hare—I genuinely believe that that concern informs much of the language in the explanatory notes. By arguing the case for a national system of donations—I accept that I am moving into uncharted waters—we ask people to recognise that each of us is a member of the same national community, and that we have the opportunity to give as well as to receive. I recognise that the area is difficult, but we must examine it because it lies at the core of the issue
      Mr. Tony McWalter (Hemel Hempstead) (Lab/Coop): My hon. Friend mentions the prospect of the press taking up the cudgels on the misuse of the new rule in the new clause, but they might also take an interest in other cases. An 18-year-old friend of mine died at Christmas in Papworth hospital, while waiting for someone with a donor card to die, when we all knew that many other people, whose organs would have saved that boy's life, were dying.
      Mr. Pound: I thank my hon. Friend for that comment. Individual cases are one of the hardest points in the debate, and they are one of the factors that make objectivity so difficult—I realise that I have mentioned an individual case myself. Sometimes hon. Members examine the actuarial rather than the actual and the theoretical rather than the real. No hon. Member is untouched by experience of someone dying for the want of a transplant, and we have all met people in that situation in our family lives, our surgeries and our communities. Some of us strive for objectivity, and some of us are more successful than others in achieving it.
      I have immense sympathy for the constituent of my hon. Friend the Member for Hemel Hempstead (Mr. McWalter), and I know how the family must have felt. This afternoon, however, we have it in our gift—I use the word "gift" advisedly—to turn back the tide. Imagine sending to the nation the message that we are all our brothers and sisters' keepers, and that we have a mutual responsibility. The tabloids may come up with lurid examples, but, please God, we do not need their permission to legislate.
      I ask the Government seriously to consider the new clauses, which have been crafted with great skill and which touch an area of concern right across the country. If they were to reconsider the matter, whether in the form proposed by my right hon. Friend the Member for Holborn and St. Pancras or in any other form, they would not only make friends but save lives, and there can be no higher or finer calling than that.
      Mr. Dalyell: On a point of order, Mr. Deputy Speaker. I hope that this is in no way taken to be a criticism of, let alone to be offensive to, the Minister or the Government Whip, but from time to time in the House of Commons the tenor of the debate—the cross-party feeling—is that something should be altered and that only a Secretary of State, who is a Cabinet Minister, can make a decision on it. I do not know what he has to do that is more important than to listen to the House of Commons on this matter, but should he not at least be told what is being said, in the light of which he may wish to suggest a relaxation of the Whip?
      Mr. Deputy Speaker (Sir Michael Lord): As a very senior and experienced Member of this House, the hon.
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      Gentleman will be aware that that is not a matter for the Chair. Everybody has seen today's Order Paper, and it is entirely for the Government to decide whom they wish to put forward for the Front Bench.
      Mr. Wilshire: It is something of an irony that the speaker who immediately follows that point of order by the Father of the House is an Opposition Whip. I make it clear that I want to state only my own personal views and that although I do not seek to dragoon anybody into voting in any particular way, I hope that my personal arguments might persuade Members on both sides of the House to oppose the new clause. In response to the comments of tho hon. Member for Ealing, North (Mr. Pound), nothing that I say will be coloured by what the media may say about me or about anybody or anything else.
      On Second Reading, I explained why I feel so involved in this matter and have such strong views about it; I therefore see no need to take up the House's time by repeating those remarks. For the purposes of this debate, suffice it to say that when my daughter died all those years ago, I regret that I was not asked and I was relieved that I was not forced to object. Those two points have always driven my views in these matters.
      I entirely accept that the hon. Member for Oxford, West and Abingdon (Dr. Harris) is motivated by finding a way to help other people, as is every other Member who has spoken or will speak in this debate. I want them to understand that those of us who take a different view are not against helping others. If there are ways in which we can improve the number of organs that are available, count me in, provided that we do not go down the route, as I see it, of the ends justifying the means.
      I accept that improvements are required, and I will support them, but I will not support this particular proposal. I do not believe that it is selfish to put the deceased or the deceased's family ahead of a third party. To suggest that those of us who take that view are being selfish is unkind and unfair, because we do not see it like that. The hon. Member for Oxford, West and Abingdon made the fair point that on some occasions the deceased leaves the express wish that his or her organs may be used, yet in some circumstances the relatives can object. I would have no difficulty in buying into an amendment that stated that a clearly expressed wish of the deceased stands above all else. I can accept that—I am not opposed to all change. However. I find it difficult to accept the hon. Gentleman's suggestion that we are best guessing. As I said, perhaps we would make fewer mistakes under his arrangements, but we would not eliminate all mistakes. If the hon. Gentleman does not like best guessing, the amendment retains it but in a different form.
      5.45 pm
      The hon. Gentleman justified the new clause by saying that he envisaged many opportunities for people to opt out. If there are to be such opportunities, it follows that there will be many opportunities for people to opt in. I happen to prefer opting in to opting out. He also said that the new clause would take the decision making out of the hands of relatives. Other hon. Members have explained why they believe that that is a kind thing to do, but from my experience, it is not a kind thing to do.

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      I accept that some people who are faced with the traumatic experience of someone who is dear to them dying will find it almost impossible to cope with such a request. It would genuinely add to their grief. However, others—I have spoken to some over the years—somehow found it helpful in a moment of appalling grief when someone said, in the middle of catastrophe, "Here is something that you could consider doing that would perhaps make the grief more bearable." Although some people would find the request almost impossible to handle, others would find it helpful to be asked.
      I am deeply sorry that nobody asked me at the time. However, I think that I know myself well enough to say that if any organs had been removed from my daughter and I could have had the opportunity to object but the matter was taken out of my hands, I would have been outraged for the rest of my life. I appreciate that children are exempt and I shall comment on that shortly.
      Let me consider the text of the new clause because some points might help colleagues to form a view. Subsection (1) of new clause 1 refers to
      "part of a body of an adult lying in a hospital".
      I appreciate that, when I explained what happened to me, I was referring to a 12-year-old daughter. Some debate took place about whether an adult should be considered to be 16 or 18. However, I sense that those who support the new clause hold that it is wrong, insensitive or somehow not right to include children in it, and we now have a definition of children. I gently say to the hon. Member for Oxford, West and Abingdon that everyone is somebody's child. If it is wrong to include a child who is under 18, is it not also wrong to include a 40-year-old child when a mother or father who are still alive could have the same strong views about their child? The child argument does not get us very far.
      Dr. Evan Harris: I did not want to interrupt the hon. Gentleman, but there is a distinction. Law—including the measure—recognises that autonomy and competence to consent come with adulthood. Some pragmatism has been applied in that the measure does not allow a Gillick-competent child to benefit—if I may use that word, given that there would be no benefit to that child—from presumed consent because a line is clearly drawn at the age of 16. Although everyone is someone's child, I urge the hon. Gentleman to consider the recipients of transplants and their relatives. They would not want to die or their relatives to die because of difficulties caused by someone who did not want the organs of their adult child to be removed even if that child did.
      Mr. Wilshire: Of course I understand what the hon. Gentleman is saying and I appreciate that, when dealing with legislation we must, on occasions, take a legalistic view of it. However, the significance of the debate about whether this should be a free vote or a whipped vote is that it flags up the fact that we are in the territory of personal, subjective beliefs and convictions, rather than that of what the lawyers might say. I understand that there have to be legal definitions in this regard, and I am grateful for the fact that the age has now been set at 18, but if we are going to invoke the concept of the child and its parents, I must emphasise that I believe that we are all somebody's child. That is all that I am saying, and it is a subjective point which the hon. Gentleman may or may not set much store by.
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      New clause 1(2)(e) is at the heart of this proposal, in that it states that unless someone has registered an objection, things can go ahead. I would support the hon. Member for Oxford, West and Abingdon in this if he were to say that this provision involved a required request rather than presumed consent. If we were being asked to legislate that people must be asked, I would be with him. I understand the point made by the hon. Member for Wyre Forest (Dr. Taylor). It is incredibly difficult to approach people at the moment of a bereavement, and I am not sure that it is any easier to say "Please may we?" than "Do you mind if we do?" I would have thought that both were equally difficult. All that I can say is that it would sound so much kinder to be asked, "Do you mind?" rather than, "Do you object?" It would be so much more considerate of the views of the bereaved to ask whether they minded, rather than asking whether they wanted to object. Someone could end up in a much worse position for the rest of their life if they had to say, "I'm against this", as opposed to being able to say, "I'd rather not say yes at the moment." To object could leave a scar, whereas saying yes or no to the question "May we?" might not do so.
      Dr. Evan Harris: Again, I hesitate to interrupt the hon. Gentleman, but I want to make it clear that the proposal would not involve any such question being asked. People are sometimes scarred by having objected because they felt that their relative had suffered enough, for example, or for similar reasons that are often cited, but this measure would remove that possibility because they would be asked whether the deceased had made any objection. If they had, the relative would be notified that the plan was to use the deceased's organs and would be given an opportunity to volunteer an objection. However, they would not be prompted to make an objection, because consent would be presumed if the deceased had made no objection.
      Mr. Wilshire: Again, I understand what the hon. Gentleman is saying, but I come at this from a somewhat different angle. However, the object that we are both trying to achieve is the same.
      New clause 3(2)(b) states that people may
      "signify an objection to the removal of a relevant organ for a reason specified in subsections (3) to (5)."
      I tried to say in an earlier intervention that, if we start getting the law involved in these matters by saying that there has to be "significant distress" involved, I cannot get my mind round how we should deal with such situations. If we are saying that any asking at this moment of maximum grief is wrong, it would simply add insult to injury to try to measure the amount of distress involved. If the hon. Member for Oxford, West and Abingdon is suggesting that there can be reasons for relatives to object, I could begin to go along with him if he also said that all that the relative needed to do was to say no, rather than have us try to measure whether that was reasonable or unreasonable, or whether it was a frivolous "no", a moderately held view or a deeply held view. If we could just settle for a yes or no, that would be the best way of going about it.
      Another aspect of new clause 3 that worries me is that a relative can be overruled if
      "it is not reasonably practical to communicate with him within the time available".

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      That seems to be an invitation to lawyers to wrangle over what constitutes a reasonable amount of time, or a reasonable amount of effort to find someone. We would eliminate all that by opting for informed requests, because someone would then have to be asked, and they would have to be given the opportunity to answer. If that is thought to take too long, we return to the argument about whether all this is being done in the interest of the third party whose life could be saved, or of the deceased and their family. I can only say that one has to take one's own view on that.
      I have always done my best to argue this case as best I can, but in the end, it is a subjective judgment. All that I can say to the House is that I remain opposed in principle to presumed consent. For me, the way to achieve our objective is through more education and discussion and through encouraging and helping members of the medical profession to make these requests. All of that is kinder and gentler, and it will achieve the same result in the end.
      I have raised some practical issues about the implementation of this proposal, and if the House votes to accept the new clause, for whatever reason, and the Government find themselves in another place with this provision in the Bill, will the Minister consider amending it to take some of the sting out of it for those of us who are against it in principle? I am prepared to back change, provided that it helps not only other people but the family involved. In such circumstances, the family comes first. If we work at this, and if we encourage people and explain to them what we want to achieve, I believe that more transplants will become available on the NHS. However, I do not want to see presumed consent or the idea of society taking over the possession of the deceased's body.
      Dr. Howard Stoate (Dartford) (Lab): I am grateful to have caught your eye, Mr. Deputy Speaker, in this important debate on an extremely sensitive and difficult issue. The House is at its best when it debates difficult issues that affect all our constituents, and I am sure that many, if not most, hon. Members will have had experience of constituents who are on waiting lists for transplantation and are in dire need of help, or who have relatives in that situation.
      These are difficult issues for us to grasp, and I am grateful to the hon. Member for Oxford, West and Abingdon (Dr. Harris) for tabling the new clause, because it gives the House a good opportunity to discuss them. People have very strong views on them—we have heard opposing views being expressed here today—and take them seriously. They have clearly thought about them carefully, because they affect us deeply.
      As someone who still practises a certain amount of medicine, I come across all sides of the argument. I have, spoken to many people about carrying donor cards, which are available in the vast majority of GPs' surgeries, and I am sure that a large number of my GP colleagues discuss the issue with their patients whenever they get the opportunity, and encourage them to carry the cards. I have also spoken to people who have been asked whether they would allow a deceased relative's organs to be used for transplantation, and I have had patients who have benefited from transplantation themselves.
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      The economic argument is an interesting one. At one time, I had the distinction of being the most expensive GP in the country, because I had a patient who was on an extremely rare and expensive immunosuppressant drug while waiting for a heart-lung transplant, and the cost of it sent someone with a black briefcase down from the Ministry to talk to me about why I was spending so much of Her Majesty's money on this patient. Of course, once that patient had had their successful heart-lung transplant, my drug bill went back to somewhere approaching the mean. So there are economic arguments on both sides, and many interesting ways of looking at the issue.
      The public have extremely strong views on this matter, but the problem is that they do not always express them. I have been a doctor for many years, and it has become apparent to me that, although people may have deeply held convictions in this regard, they often do not know how to talk about them or who to talk about them with. Just because someone does not opt out or in does not necessarily mean that they do not have deeply held views on the issue.
      6 pm
      I chair the all-party group on men's health, and one issue that comes up time and again is that men in particular find it extremely difficult to seek help when they have a genuine health problem. Often, they simply do not come forward until the disease is well progressed or they present late with very serious illnesses such as heart disease or cancer. When they do present, they often suffer worse outcomes and die younger as a consequence.
      Just because somebody does not necessarily express a view on something in public does not mean that they do not hold very strong views about it. That is why I have real problems with a presumed consent clause. I understand all the reasons that were cogently put forward by the hon. Member for Oxford. West and Abingdon, and I have great sympathy with his arguments, but I have real concerns and I shall vote against his new clause, for reasons that I too hold deeply.
      Having spoken to many patients—many people who could be donors—I know that people have not a superstition, but a deeply held view about what should be done with their body. They still consider their bodies their property—even after they have died, when it could be argued that the property belongs to nobody as the person has left and the body is a corpse. However, that is not the case in the mind of a large number of people who still feel very strongly. People make elaborate plans for their own funerals and how their remains should be dealt with because they have such deeply held views about what should happen to them even after death.
      I listened carefully to the arguments relating to the need to have more organs available. Nevertheless, I must show great respect for people whose unspoken views are often deeply held.
      David Taylor: Would my hon. Friend care to say why his patients—often men whom he says have deeply held views about their own bodies and what might happen to

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      them after death—in many cases fail to communicate that information either to relatives or via any system for registering their wishes?
      Dr. Stoate: That is an interesting question and my hon. Friend has raised an important point. At a recent meeting of the all-party men's health group, a patient was prepared to come forward to talk about his experiences and why he was such a late presenter. This chap had had rectal bleeding for 10 months before plucking up the necessary to go and see his GP to discuss it and get something done about it. It would be quite wrong to say that he did not care about his rectal bleeding, because clearly he did care deeply about it.
      This chap kept coming up with all sorts of reasons to put the visit off and not to go, saying, "I'm under stress at work and just having an off day. It's probably piles. It's nothing to worry about." He managed that self-deception for 10 months before admitting it and going to his GP, who said, "Actually, mate, you've got bowel cancer." Fortunately, even though he had waited 10 months, he was able to have a successful operation. As far as anyone can tell, he has been cured. The fact is that men find it exceptionally difficult to talk even to their closest relatives about these deeply personal issues.
      We can call that machismo, male pride or anything we like—it is not all that well understood—but there is no doubt that that is the situation. Over the decades, I have had patient after patient after patient who left coming forward to the doctor very late. When they do come, they often do not know what they want to say and it is difficult to coax out of them the real reason for their visit. They will come along to talk about their skin problem, but they really want to talk about their psychosexual difficulties. Getting round to that is very difficult indeed.
      My point remains that people have very deeply held views that they cannot, will not or would rather not discuss with their relatives, friends or medical advisers. For that reason, I have real problems with an opt-out scheme that would presume that just because people do not come forward they are implicitly consenting to this process. I shall give an example that Members of the House will well understand.
      In local elections, it is common for only 25 or 30 per cent. of people to turn out to vote. Does that mean that the other 70 per cent. have no view? Clearly it does not. Any Members who have been on the doorstep and talked to people as they go round their constituency will know that people have exceptionally deeply held views, but they do not necessarily think that voting is the way to express them. If the House were to say, "If 70 per cent. don't vote, we must presume that they entirely agree with Government policy because they have not voted against it," that might be nice in that it would provide a warm glow and allow me to think that my constituents like me more than they probably do, but we would not be doing ourselves justice in making such an assumption.
      Dunwoody: I am listening with great care to this argument and I hope my hon. Friend will forgive me if I say that I find it mildly patronising. Many people find it difficult to articulate their views, but if they are asked about something as important as looking after their
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      health they find the words. They may not find the right ones and they may not use the words that he and his profession would recognise, but most manage to say what concerns them.
      If my hon. Friend really is saying that because there is a problem with communication, we cannot allow such legislation to go forward, I say to him that there is a major difference between voting in an election whatever happens, people get an interesting House of Commons whether they vote or not—and the issue we are discussing, which is rather more significant.
      Dr. Stoate: My hon. Friend makes an important point. I always respect what she has to say as she holds strong views on these issues, and I welcome her intervention, but I do not agree. Having been a doctor for a long time, I know that, unfortunately, people do not find the words even when they know themselves to be severely ill. Any doctor in the House would, I am sure, be able to echo that. The experience is that many patients do not present with life-threatening illness often until it is too late. For all sorts of reasons that I have already outlined, that is the case. People do not express their views to their friends, their family or their doctor when they would perhaps otherwise like to do so. For those reasons, I feel strongly about this.
      Having said that, we all want more organs to be available for transplantation as it is grossly unacceptable that so many people should be suffering, and even dying on a waiting list, because of a lack of available organs. That is a tragedy. It is the duty of the Government and the House to do all they can to increase the number of organs that are available for transplantation, but I happen to think that this would be the wrong way to do it.
      We need a far more sophisticated education programme and we need to make it far more of a duty for doctors, nurses, health professionals, ambulance crews, those responsible for public information campaigns and those who supply information through the media to talk up the reason why people should be donors. An example is the blood transfusion service, which, through a combination of clever advertising and public awareness campaigns, generally manages to ensure a sufficient supply of blood freely given to save the lives of others. The same could be done with a carefully worded public awareness campaign on this issue.
      Mr. Paul Burstow: Back in April 2000, the hon. Member for Broxtowe (Dr. Palmer) introduced a ten-minute Bill on presumed consent for organ transplants and the hon. Gentleman was a sponsor of it. It is entirely valid for a Member to reach a different conclusion at a later stage on the basis of evidence, but I have not heard that evidence so far. I wonder why he has changed his position.
      Dr. Stoate: That is an interesting point and I am grateful to the hon. Gentleman for bringing it up. I supported my hon. Friend's Bill because I think that such things should be debated in the House. I was keen for his Bill to be discussed, even though it was only a ten-

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      minute Bill, because we should have the opportunity, albeit for a mere 10 minutes. to raise the issue so that it can be flagged up and the public can be aware of it.
      David Taylor: My hon. Friend is most generous in giving way yet again. Is he saying that, with more imaginative and innovative approaches—for example, ones similar to those that organisations such as the National Blood Service tend to use—to promoting actual consent, he would be confident that sufficient had been done to reduce the large and widening gap in respect of the number of people waiting for an organ transplant, which has grown by more than a third in 10 years?
      Dr. Stoate: That is the question. I do not know that that would bridge the gap, but it should be tried. We do not do enough to promote the benefits of carrying organ donor cards. We have failed to some extent, as a Government and as a House, in not doing what we could to promote the scheme. I would like everything possible to be done to ensure that people are aware of it and are encouraged to carry cards.
      Dr. Julian Lewis: I have been listening to what the hon. Gentleman has been saying with a lot of sympathy. Over the years, I have carried various donor cards, which became increasingly dog-eared and were eventually discarded. Also, at various times, I have signed various forms. Why, in the 21st century, when we know so much about network databases, does it still seem unclear to at least one Member of Parliament whether there is a national database, which, if people signed up to just once to give their organs, could put an end to the matter and save an awful lot of distressing questions and answers?
      Dr. Stoate: The hon. Gentleman raises an interesting point: there is a national database, which I gather is based in Bristol, but it is not well publicised. That is the problem—the public do not know of its existence.
      Dr. Evan Harris: The hon. Gentleman is being uncharacteristically unfair on the Government, who have introduced a number of new initiatives to promote the organ donor register and the donor card. The fact is that those are not working well enough. People sign the register in ever-increasing numbers, but the number of donors is going down. Does he accept that that is probably why Elizabeth Ward, who was the inventor of the kidney donor card, and founder of the British Kidney Patient Association, supports these new clauses—she knows that an opt-in scheme could never work well enough to save as many lives as we could under a presumed consent scheme?
      Dr. Stoate: That matter should be tested, and we need to do more. The fact remains that we are not doing enough at the moment to promote the scheme, and I am sure that we could do a lot more.
      I will not detain the House further. I agree entirely with increasing the number of organs available for transplant, and I know that patients of mine would benefit from readier availability. I am sure that everyone
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      in the House would welcome that. The question is: how should it be done? My view is that an opt-out scheme is a step too far, and that public opinion would oppose it.
      Mr. Desmond Swayne: I congratulate the hon. Member for Oxford, West and Abingdon (Dr. Harris) on his new clause, and on the powerful argument that he used when he moved it. He is assured of my support in the Lobby tonight.
      I wish to speak to new clause 5, which stands in my name, and to which the hon. Member for Oxford. West and Abingdon has tabled an amendment, which, I accept, very much improves it. I see new clause 5 as complementary to new clause 1 or any other means by which we could secure a greater number of potential donors, be it an increase in the use of donor cards or whatever. That is because increasing the number of donors does not necessarily mean an increase in the number of usable organs. That is the key point. Members have referred to the experience of Belgium, which has seen a 30 per cent. increase in the number of successful transplant operations, and which has a system in place akin to that proposed in new clause 1. I do not doubt that it would not have achieved that success had it not also had a system of elected ventilation in place.
      Elected ventilation is the subject of new clause 5. Members will be aware of precisely what elected ventilation means, as they will all have received a letter from Mr. Charles Curry, about six weeks ago, explaining it. It is the procedure by which someone is put on a ventilator not to make them better or in the hope that they will recover but purely to preserve their organs for transplantation. It now turns out that in this country, that is unlawful. Some four years ago, Mr. Jetmund Engeset, the surgeon responsible for transplant operations in Aberdeen, came down to meet Members and assured us that, were elected ventilation available to him, he could increase the number of successful transplant operations in Aberdeen by 100 per cent. I was also impressed when Professor Terry Feest came to the House to discuss elected ventilation, because, until 1994, he used it at Exeter and doubled the number of successful transplants carried out. Only when he published his results in The Lancet and a discussion about elected ventilation ensued was it discovered, on advice from the Department of Health, that it was unlawful.
      As I understand it common law requires that a procedure can only be carried out on a patient if it is for his benefit. Clearly, if someone is ventilated purely to preserve their organs for transplant, that is not for their benefit but for someone else's. It therefore falls foul of the law. Elected ventilation was therefore discontinued, with a consequent reduction in the number of successful transplants and organs that became available.
      6.15 pm
      It seems to me that we have an opportunity to correct that situation. We are told, however, that it is not as important as it once was: because of the increasing number of what are called non heart-beating donors, as technology has moved on, we can afford to take the organs out of the cadaver and use them—we do not need to keep people ventilated to have the organs fresh, if I

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      might use that term, from a heart-beating donor. That is an overstatement, however: we are now able to get a certain number of kidneys and livers from cadavers, but overwhelmingly, it is much better to have them from heart-beating donors. At the moment, there is no prospect of getting lungs and hearts from non heart-beating donors. Are we to write those off, and say that we do not need the procedure? I would suggest not.
      Incidentally, there was a discussion some three weeks ago, and a great deal of media coverage, about the shortage of transplant surgeons that now arises because of the antisocial hours associated with that branch of the profession. Organs become available at a time of night or day that is not suited to anyone's convenience. Nevertheless, it seems to me that the precipitate decline in the number of surgeons, which is consequent on the unpredictability of that profession, would be assuaged at least to some extent by reintroducing the practice of elected ventilation.
      There are disadvantages to elected ventilation. One of the arguments made against it is that it makes use of desperately needed intensive care beds. That argument will continue, although many will argue that it does not require intensive care beds, and that what it requires is less than the high-intensity care bed. We as parliamentarians, however, should not intrude on that argument. It is for clinicians to argue about what is the best use of a particular bed at a particular time, and it is not for us to frame laws and prevent people from doing things as a consequence.
      There is also some disquiet among members of the BMA that elected ventilation can in certain circumstances give rise to the persistent vegetative state. Again, clinicians can argue about that and reach conclusions among themselves. It is not a matter for Parliament in framing the law.
      We had an effective way of increasing the number of successful transplants. When it was in use, it doubled the number of effective transplants.
      Dr. Julian Lewis: Before my hon. Friend finishes his speech, may I say that if there is a Division on new clause 1, he and I will find ourselves in opposing Lobbies for the first time in the seven years that we have both been in the House? There is no reason, however, why someone with my views cannot totally support what he says about new clause 5. The question of keeping organs in a fit state to be transplanted, once the necessary consents have been obtained, is entirely separate from the question of presumed consent. I assume that he would accept that.
      Mr. Swayne: My hon. Friend is right that I differ from his judgment on anything only rarely. We will certainly be in different Lobbies tonight, but I entirely accept what he said in his words of support for new clause 5.
      Mr. Christopher Chope: Before my hon. Friend finishes, will he comment on why the Government seem to have been so reluctant to accept this proposal? Does he share the frustration of Mr. Curry that the Government have not answered the questions that he raised in correspondence with them?
      Mr. Swayne: My hon. Friend is right. I have raised the issue on several occasions over the last five years both from the Front Bench as a Conservative health spokesman and from the Back Benches as I do now, but I have never had a satisfactory answer. Ministers have tended to say that it will become unnecessary, if it is not already unnecessary, because of the advances in science and the ability to gain organs from non heart-beating donors, but I simply do not believe that. I accept that there is some opposition on grounds of the competition for respirators, for example, in hospital intensive care units. However, I believe that that is a matter for clinicians, not Ministers.
      In summary, we had a system that doubled the number of transplants when it was used. An interpretation of the common law brought about circumstances in which it had to be discontinued. It seems to me that we have a perfect opportunity to put that right tonight and I cannot imagine why we should not take it.
      Ian Lucas: We all accept that this is an extremely difficult and contentious issue. We have had an illuminating debate about it, but the balance of contributions has focused on the rights of those who are awaiting treatment. We all accept that they are in an invidious position and we all want to do as much as possible to assist them. I have to say that if, two years ago, I had been asked to vote on this particular issue, I might well have voted differently from how I intend to vote this evening.
      I believe that we have not concentrated enough on the rights of those who are left behind. I want to say a few words about the relatives of those who may lose people very close to them. It is important to consider the backcloth to the legislation. In respect of the new clause, we have not considered it enough. The Human Tissue Bill was introduced in response to the Alder Hey and Bristol royal infirmary cases, which involved individual rights being ignored by people in authority. The Bill is fundamentally about ensuring that those terrible events do not recur. When we vote this evening, we need to reflect on the fact that we are operating against a backcloth of enhancing individual rights against abuse.
      Some constituents who came to see me to talk about the Bill particularly influenced me. They were bereaved some 30 years ago, but were no less bereaved on account of the length of time that had passed. They had never been to see their MP before, but they told me about their children. I accept the fact that the Bill does not relate specifically to children, but my constituents' views are relevant to our debate. They told me how their rights had been disregarded and their views overridden by people in authority who had not listened to what they had to say. I cannot accept that the introduction of a doctrine of presumed consent sits correctly with the backcloth that I have described.
      David Taylor: I am very sympathetic to my hon. Friend's position, having been a bereaved parent myself some 27 years ago, but is it not the case that the new clause introduces presumed consent for transplantation use, not retention for research? Surely there is a huge difference between the two.
      Ian Lucas: That was not a difference that my constituents raised with me. They were suspicious of authority and of people with authority. I believe that they have the right to be so suspicious because of the way in which individuals in authority had treated them.
      What disturbs me most is the provision in new clause 3(5), according to which someone in authority has the power to make a judgment about individuals who have just been bereaved. The person in authority has the right to assess whether a particular individual is suffering "significant distress"—not "distress", but "significant distress". With the best will in the world, how can it be right and proper for any doctor—or, indeed, anyone—to make an assessment that the distress caused by bereavement is not "significant" enough to allow the bereaved relatives to prevent organs from being used?
      Dr. Julian Lewis: Does the hon. Gentleman accept that there are further complications on that point? What if people have religious objections to their relatives' organs being used in that way? Would such objections be regarded as "significant distress"? What about the Muslim community, Jehovah's Witnesses or people who belong to minority groups, for example? Would the distress caused by offending religious beliefs be "significant" enough to overrule people's views?
      Ian Lucas: The hon. Gentleman makes a valid point. As a lawyer, the words "significant distress" immediately rang my alarm bells. I can see applications for injunctions being made, and litigation becoming rampant in this field. Judges could be called out of bed at all hours to take life-or-death decisions, which would make the process of bereavement even more painful than it is now.
      Dr. Evan Harris: If anyone were at the point of calling lawyers, it would be accepted under the regulations as evidence of people reacting under "significant distress". [Interruption.] It is quite clear what significant distress is, and that is above the threshold. In the case of Jehovah's Witnesses, there are several safeguards. There is the opportunity for the individual to opt out; there is the opportunity to tell relatives that someone is a Jehovah's Witness; and if someone is not a Jehovah's Witness, relatives who are Jehovah's Witnesses still have the opportunity to make the point that they would be significantly distressed, even though doing so would deny a recipient who is not a Jehovah's Witness the opportunity of receiving the organ from someone else who may not be a Jehovah's Witness. Nevertheless, that is the safeguard in the new clause. It should, I hope, meet the hon. Gentleman's concerns.
      Ian Lucas: I am afraid that it does not meet my concerns at all. In my view, the phrase "significant distress" can create the invidious position whereby someone in a position of authority overrides the rights of people who have to cope with bereavement for the rest of their lives. I say again that the legislation should be about protecting individuals against people who abuse their position. The new clause is not an appropriate way of amending the Bill.
      Rob Marris: Peter Cox died in 1989. He was aged 24. He had a brain tumour. His parents, my constituents
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      Rosemary and John Cox, have tirelessly campaigned on this issue since. I have met them many times and discussed the issue with them. I have little doubt that they will be watching our debate today with interest.
      6.30 pm
      The hon. Member for New Forest, East (Dr. Lewis) asked whether there was a national register of some sort. One of the reasons the NHS organ donor register exists is the work of Rosemary and John Cox. In the five years after their son died, they campaigned for such a register. When Peter died, they found that there was a register of those waiting for organ transplants, but no national register of those who had opted into organ donation. It took five years to get one set up, which is a relatively short time in today's society. The register was set up in 1994 and is based in Bristol, as my hon. Friend the Member for Dartford (Dr. Stoate) said. I pay tribute to the work of Rosemary and John Cox, but I suspect that I will disappoint them today by the way in which I vote or abstain on the new clauses.
      This debate has addressed a difficult moral issue. I do not have a pager, so I do not know if it is true that the Government will subject Labour Back Benchers to a three-line Whip on the issue. If that is the case, I will need some convincing arguments from my hon. Friend the Minister. I see that my right hon. Friend the Secretary of State for Health has joined us. I would be interested to hear the Government's arguments on why the vote should be subject to a three-line Whip.
      The Secretary of State for Health (Dr. John Reid): The answer is simple. It is because the decision about one's own body should be for the conscience of individual citizens. It is not for his Parliament, by free vote or otherwise, to impose on individuals a requisition of their bodies after death for the use of the state. That is why there is no free vote. We are giving the freedom of conscience to the people of this country, and we are not prepared to work on the assumption that Parliament should dictate to them that their bodies belong to the state after death.
      Rob Marris: I am grateful to my right hon. Friend for clarifying that point. I found his intervention very helpful, and we may achieve more clarify as the debate continues. I started the debate broadly in favour of new clauses 1, 2 and 3. As the debate has continued, I have changed my position somewhat, partly because of such points as the one succinctly made just now by my right hon. Friend. The debate evokes difficult moral dilemmas for many people and, in that sense, it is a moral decision, not a political decision. I get the feeling that expediency is taking over: we have to change the regime because we cannot get enough organs. I am not entirely convinced that that is the right way to proceed morally, nor that it would work in practice.
      I spoke to John Cox over the weekend and he put the argument, forcefully and cogently, in terms of cost. Other hon. Members have adverted to the cost comparison between a kidney transplant and the need for immunosuppressants thereafter, and the continuation of dialysis. Those are interesting arguments, but they are ones of practicality and expediency. They are brought in to try to sway the moral balance, but that is mixing apples and oranges.

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      We need to consider what has happened to the national organ donor register. By the end of 1995, 2.25 million people had joined the register. By the end of 1999, four years later, that figure had roughly tripled, to 7.5 million. By November 2002, the figure had passed 10 million and now, a year and a half later, it has passed 11 million. The number is increasing and I agree with my hon. Friend the Member for Dartford, who practises medicine, about what we—as a Government and a society—should do to encourage further increases.
      David Taylor: The trend of increases is encouraging, but we have some 45 million adults in the United Kingdom. The number on the register is only some 25 per cent., which suggests that 75 per cent. of potential donors are untouched by the scheme. How might we increase the numbers signing up to the register?
      Rob Marris: We could do more, although I do not want to sound like a hand-wringing politician who says, "Something must be done". I also question my hon. Friend's assumption that the 75 per cent. who have not signed up to the register would wish to do so. That assumption may be unwarranted. It is possible—although, I concede, unlikely—that that 75 per cent. have considered the issue seriously and decided not to opt in and have their organs taken. The hon. Member for Oxford, West and Abingdon (Dr. Harris) mentioned surveys on that point, but we must be careful not to jump to conclusions about who might wish to participate in the scheme.
      We cannot assume that people who have not signed an organ donor card—I first did so in 1974, when the card applied to kidney transplants—simply do not know about the scheme. We have used the distribution mechanism of the DVLA and doctors' surgeries, so many people know about the scheme and have decided not to participate.
      Mr. Kevan Jones: Publicity is widespread and most people know about the scheme, but it takes a conscious effort to contemplate one's own mortality and opt into the scheme. Does my hon. Friend agree that the ultimate point is that it is down to the individual what happens to their body after they die?
      Rob Marris: My hon. Friend makes a powerful point. Just as the hon. Member for New Forest, East was not aware that there was a national register, I did not know that it existed until I met my constituent, John Cox, some four years ago, and I had carried a donor card for nigh on 30 years. I think of myself as a reasonably educated person, and there are probably many such people who still need to be reached by the scheme. I got a driving licence 30 years ago, so I had never been told about the scheme by the DVLA.
      Dr. Evan Harris: The hon. Gentleman rightly rejoices that the number of people on the organ donor register has increased from some 2 million in 1995 to 11 million now. Does he accept that, despite that increase, in the same period the number of cadaveric solid organ donors has fallen from 875 to 710 a year? That is one of the reasons why John Cox and his daughter, Christine Cox, wrote to me to say—as they confirmed in the
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      Sunday Express—that they support the new clause. They do not think that the organ donor register for which they campaigned is doing the job well enough.
      Rob Marris: The hon. Gentleman is more qualified than I to interrogate the cadaveric figures. Does the NHS have the infrastructure to deal with potential donations of organs? The problem may be bottlenecks in the NHS that extra Government resources will address. I do not know whether that is the case, and perhaps the hon. Gentleman can tell me.
      Dr. Harris: The most likely reason for the decrease is the relative refusal rate, which has gone up from 30 per cent.—shown in Sheila Gore's study in 1993—to nearly 50 per cent., shown in the UK Transplant potential donor audit. That is why the figures have gone down despite the organ donor register. It is also why we need to recognise that the present system is not working and to change to the new system.
      Rob Marris: That is an interesting intervention. If the rate of relative refusal is increasing, it suggests that increasing numbers of people are concerned about organ donation. The new clauses would therefore go against that trend.
      Dr. Harris: I understand the point that the hon. Gentleman makes, but at the same time surveys of public opinion show that between 80 and 90 per cent. of people are willing for their organs to be used. What has changed is the response of grieving relatives, not the wishes of individuals, which—as the hon. Member for North Durham (Mr. Jones) pointed out—should be paramount in the case of their own organs.
      Rob Marris: It is difficult to tell from survey evidence, as we know from opinion polls in elections. When relatives are asked, the trend is in the opposite direction to that which the hon. Gentleman wants to see.
      Dr. John Reid: It is worth checking when the decline in relative refusal rates started. I think that it is recent, and one of the reasons may be the shock and horror felt about what happened at Alder Hey. If the increase is the result of something that was imposed on people against their will, it is another reason why we should be very careful about the decision we make tonight.
      Rob Marris: I thank my right hon. Friend for that intervention. When the Government respond to the debate, will they give us reassurance, which my right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) sought earlier, about what they are doing in two spheres? What will they do further to promote the current system and to initiate public debate on the issue? The Government may say that they will do nothing and, from what my right hon. Friend said earlier, I suspect that may be the case. However, I should like to know what they would do to promote public debate, as one of the reasons why I shall not vote for the new clause is that I have sat through the whole debate on this group, which has focused on new clauses 1, 2 and 3—[Interruption.] I estimate that the debate will be over by 7.30, but that is a matter for the House and for you, Madam Deputy

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      Speaker. Were the debate to end at 7.30, the House of Commons would have spent three hours debating the issue—only three hours.
      My hon. Friend the Member for Crewe and Nantwich (Mrs. Dunwoody) said that the subject had been debated endlessly and, yes, it has been debated a lot and has been the subject of private Members' Bills and so on. However, at every general election the composition of the Chamber changes: new Members enter Parliament. The House of Commons has not held a full debate on an issue that Members on both sides of the House accept is very difficult, in terms of both the moral and the practical questions. To tie the matter up by three new clauses—although they seem well drafted—in three hours of debate does not do it justice and it is not the right way for Parliament to proceed. When my hon. Friend the Member for Ealing, North (Mr. Pound) was talking about the new clauses, he twice referred to new clauses 1, 2 and 3 as a Bill. He is right; they should be a separate Bill, not tagged on to the Human Tissue Bill, which came about owing to all the horror of Alder Hey and so on. The two should not be mixed, which is exactly the discussion I had about three months ago with my constituent, John Cox, at the time of Second Reading.
      Mr. Dalyell: A crucial difference between the 1970s and now is that the British Medical Association has changed its mind on presumed consent.
      Rob Marris: I am aware that the BMA has changed its mind. The hon. Member for Oxford, West and Abingdon referred to that point when he was moving the new clause. It is important to take it into account but it should not be a determinant of the debate, nor—even though the supporters of the new clauses have the best of motives—should we be bounced into putting a Bill on organ donation and consent relating thereto into the Human Tissue Bill. We are mixing up those two things and we should not do so.
      Dr. Murrison: The debate on this group has been far ranging. I begin by pointing out that the new clause will be the subject of a free vote for Conservative Members. I was interested to hear the Secretary of State's comment that he was taking a collective view for his party. However, we feel that the judgment must be made individually, according to conscience, which is why we shall have a free vote. I understand that the minor parties will do likewise.
      Mrs. Dunwoody: I am sure that the hon. Gentleman will like to know that Labour party rules say clearly that on a matter of conscience Labour Members may vote as they wish.
      Dr. Murrison: It is not for me to intrude on private grief. That matter is for the Labour party, which is not the subject of our debate today.
      I want to address new clause 5, which was very well introduced by my hon. Friend the Member for New Forest, West (Mr. Swayne). He brought to the attention of the House a procedure that he believes could increase the harvest of organs for donation—that of elective ventilation. We heard earlier that the BMA had changed
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      its mind about presumed consent; it appears that it has also changed its mind on elective ventilation. The procedure no longer has the support of the BMA, but I understand that the association welcomes debate of the issue—as should we all—and I congratulate my hon. Friend for bringing it to our attention.
      Elective ventilation is an invasive procedure and is carried out purely to allow for the development of brain stem death and consequent organ removal. Although it was the subject of fairly positive guidance from the Department of Health in the mid-1990s, it was subsequently deemed illegal as it would be battery and could thus not be in the interests of the patient. How could it be?
      The procedure introduces the possibility of harm to patients and my hon. Friend touched on that in relation to persistent vegetative state. Elective ventilation carries the possibility not of the development to which the procedure is geared but of persistent vegetative state, which is of course not in the patient's interest. Indeed, encouraging such a development is not in the interest of any of us. However, it is a risk of elective ventilation and we should bear that in mind.
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      We should also bear in mind the pressure that the procedure would put on ITU beds and the emotional pressures for the staff of those units. ITU staff are very much geared towards curing people and the procedure would obviously not cure the person who was principally concerned—the person being electively ventilated. The procedure involves a certain mind shift for the people who staff ITU so well, and I do not think that it would attract universal acceptance from them.
      My hon. Friend the Member for New Forest, West commented on the Exeter study carried out in the mid-1990s. Over the weekend, I went to the trouble of looking up the old papers on that. I looked at the report and the extensive correspondence that followed, which was not universally appreciative of the procedure. At that time, there was much controversy about its value and acceptability.
      One problem is the definition of the point of apnoea—a person's last gasp—which is necessary in order to determine exactly when one institutes elective ventilation. The definition is not as straightforward as Members might suppose; it can be difficult at times to assess when that point has occurred.
      Mr. Dalyell: In previous legislation, that problem was addressed by putting the decision in the hands of two clinicians, once clinical death had been established, neither of whom was a renal surgeon and likely to benefit. Is not that a satisfactory definition?
      Dr. Murrison: But at what point does one define death? Is it the point at which somebody's heart stops, as is usually the case, or should brain stem death be the definition? Many of the problems relating to the studies in the mid-1990s arose from Exeter's attempt to redefine the point of death. From my experience, I know that sometimes it is extremely difficult to do that. People do not usually take a dramatic last gasp; it is far slower than

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      that and the point of apnoea—as other medically qualified Members will know—is actually the point of asystole, when one can no longer detect a pulse.
      Dr. Harris: I agree with the hon. Gentleman's analysis. The BMA ethics committee certainly opposes elective ventilation in the circumstances set out under the new clause, but what if the patient had given an advance directive permitting elective ventilation, knowing of the possible risk and that their best interests might not be served, so that their wish to donate organs could best be met? That question is addressed in our amendment to new clause 5 and it is probably worth further consideration.
      Dr. Murrison: I am grateful to the hon. Gentleman for that intervention and I welcome his amendment. It makes a flawed measure a little bit better. Of course, such an advanced declaration would at least allow the professionals involved the confidence that they were acceding to an individual's wishes, but that is not quite the same as the specific consent that we are talking about generally in this group of new clauses and amendments.
      People would need to know specifically whether they were consenting to such a procedure, because it is quite separate from the sort of things that they might envisage or expect under the consent procedures that we are debating more generally. However, with respect to the hon. Member for Oxford, West and Abingdon (Dr. Harris), amendment (a) does not necessarily address some of the other difficulties that I have raised, although I accept that—with respect to my hon. Friend the Member for New Forest, West—it would make new clause 5, which is flawed, a little better.
      The more general debate relates to presumed consent and new clauses 1 to 3. The most telling remarks that I read on that issue come from James Kennedy, who is director of the Royal College of Nursing in Scotland. He said:
      "The tragedy of the recent organ retention scandals has made it absolutely clear that it is entirely wrong for healthcare professionals to ever presume consent."
      Working through the Bill, as my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) and I have done these past few months, it has been clear that consent is central to the measure. Indeed, the Bill is all to do with consent, as was pointed out by the hon. Member for Wrexham (Ian Lucas). Consent is the common thread that runs through the Bill. Indeed, there is no point in it if we do not address consent and put it at the very heart of what we are debating. The events at the BRI and Alder Hey and the Isaacs inquiry all lead to the Bill, and they all address problems to do with consent, yet we are dealing with a group of new clauses and amendments that—with respect to the hon. Member for Oxford, West and Abingdon, whose intentions are entirely sound and accord with my own—would cut across the general direction of travel that relates to informed consent.
      I shall now move on to deal with some of the specifics of my disquiet about the measure. The hon. Member for Oxford, West and Abingdon referred to a number of international comparators. My word, there are a lot of them and they bear close scrutiny, but they do not all
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      point in one direction. We could perhaps consider Sweden, which has the sort of system that he recommends, yet its organ donor rate is no greater than our own. We could consider Brazil, which has a big population, and note that it went down the route of presumed consent, but that it rescinded that measure some time later after popular pressure. We could consider the marked regional variations that occur in countries with certain systems—our own and those that have an opt-out system. We must ask why that is, and I suspect that it is because of differing practices in those countries, thus suggesting that more needs to be done to consider why certain areas have a better harvest rate than others. Clearly, the differing rates are not to do with the overall system that applies in those countries.
      The system of required request—a clumsy term, but nevertheless perhaps a useful procedure that applies in the United States—might deserve a look. It is defined thus:
      "That it shall be illegal, as well as irresponsible and immoral to disconnect a ventilator from an individual who is declared dead following brain stem testing without first making proper enquiry as to the possibility of that individual's tissues and organs being used for the purposes of transplantation."
      In other words, the onus is put on those involved to ask the question and establish whether a person is suitable to participate in transplantation.
      My suspicion—it is more than a suspicion, as it comes from personal experience—is that, in the heat of the moment, the last thing that a busy practitioner wishes to be involved in is the difficulty of approaching bereaved relatives with such a difficult situation. We have discussed whether more or less distress may be caused to all involved by opting in or opting out, but at the end of the day such things are deeply distressing both for relatives and for practitioners. However, we must press the issue as far as it relates to those who are employed by the NHS. It may very well be that a required request formalises what I know is best practice throughout the NHS in considering whether individuals might be suitable for transplants.
      I am also against the measure because the people who opt out will be a skewed population. We know that the articulate, the middle class and those from certain sectors of our society are keen on taking affirmative action of one sort or another. It is likely that those who perhaps do not find it easy to articulate a view or, indeed, whose lives are chaotic in a way that would make such issues a lower priority for them might be disadvantaged as a result. We should remember that silence may also indicate a lack of understanding, rather than agreement with a certain policy. That is important to bear in mind. We also need to bear in mind, of course, the fact that the UK transplant community is pretty well split on the issue.
      Of course, we need to bear in mind the views of UK Transplant itself, which is not in favour of presumed consent and offers other mechanisms as a way to increase our harvest of organs. One can think of non-heart-beating donors or living donors. It may be worth while considering the electronic patient record in due course, as a way to increase our harvest of organs where appropriate. Although I applaud the intentions of the hon. Member for Oxford, West and Abingdon—of course, all hon. Members share them—I fear that he has

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      failed to take account of the broad spectrum of organisations involved in such procedures in tabling his series of new clauses and amendments.
      My hon. Friend the Member for Spelthorne (Mr. Wilshire) put a particularly telling argument. We all bring certain things to the House and our experiences are very important in what we bring to the House, and his experience is this respect is extremely important. This is an extremely subjective matter. Fortunately, most of us have not had first-hand experience of it.
      It is important to bear in mind the fact that significant distress is very much a subjective matter. Indeed, it is culturally and ethnically informed in respect of the giver of the distress, the owner of that distress and the interpreter of that distress. The concept of significant distress would be extremely difficult in the context in which the hon. Member for Oxford, West and Abingdon suggested that it should be used.
      In short, I cannot recommend the new clause to my colleagues, although it is for them to make up their minds, but I will leave them with the thought that presumed consent is no consent at all.
      Ms Rosie Winterton: This has been a very thoughtful and considered debate, and hon. Members on both sides of the House agree that we must increase the number of organ donations made in this country. The debate has been about how we achieve that. The new clause and amendments proposed by the hon. Member for Oxford, West and Abingdon (Dr. Harris) would introduce a system of presumed consent. However, I have to tell right hon. and hon. Members that that would undermine the Bill's fundamental principles. We strongly believe that if we want people to donate organs, whether for research or for transplantation, we should ask them for their permission. As my right hon. Friend the Secretary of State has said, the state does not own our bodies and neither do researchers nor clinicians.
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      Organ donation is a gift from an individual that helps to save the life of another individual. It is also a gift to society. We believe very strongly that we should not assume that someone wants to make that gift. The fundamental principle that runs through the Bill is that consent, and informed consent, lies at the heart of the decisions that individuals take. My hon. Friend the Member for Dartford (Dr. Stoate) has direct experience of this issue and, as he said, people come at it from different directions and with different principles to govern their decisions. As I say, we are talking about people making a gift to society, and we must make sure that we enable that gift to be made without presuming that everybody wants to make it.
      As my hon. Friend the Member for Wrexham (Ian Lucas) pointed out, the background to the Bill is the tragedies that occurred at Alder Hey and Bristol. I know that no Member of the House could fail to be moved by the distress that was caused to families at that time. They suffered not only bereavement, but then discovered that organs from their children had been removed without their knowledge. The Alder Hey, Bristol and Isaacs
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      inquiries showed that that had become widespread practice and related not just to children, but to adults as well. Proper consent had not been given.
      That is why the Bill came into being. We cannot take one part away from it—the part relating to transplants—and say that we will apply a different set of principles to that. That would not only undermine the Bill's principles, but would run counter to everything that we have been told by parents, families and the public. That would undermine the undertakings that we gave as a result of those reports—that we would make sure that such situations never happened again.
      In preparing the Bill we consulted extensively, but we found no evidence that the public would give overwhelming support to a system of presumed consent. Believe me, to get a system of presumed consent, it is necessary to obtain overwhelming public support. We found that the great majority of people do not feel that the state should determine what happens to their bodies after death. What we allow to be done to our bodies is a personal matter for individuals and for the people closest to them.
      Alder Hey, Bristol and the Isaacs inquiry revealed a breakdown of trust between the medical profession, researchers and the public. We said that the Bill would rebuild that trust and would provide a secure system whereby what happened when consent was not sought could not happen again.
      David Taylor: Will my hon. Friend explain in a little more detail how new clauses 1, 2 and 3 undermine the assurances rightly given to parents of children whose organs were retained at Alder Hey and elsewhere? The new legislation rightly deals with that problem, but children are not covered by the proposals on organ transplantation. Is that not an entirely separate issue?
      Ms Winterton: As hon. Members pointed out earlier—in particular, the hon. Member for Spelthorne (Mr. Wilshire)—even if someone is over 18, there will still be situations in which a parent may have to make a decision about their child. It would take only one case in which somebody did not realise that, under this system, they actually had to opt out of giving consent to their organs being removed, for there to be the kind of public outcry that would completely undermine the work that we have tried to do in recent years to rebuild trust so that people feel confident about coming forward and donating their organs for transplantation or research. We cannot take one part out of the equation. Bereaved parents or people from different religions might suffer great distress and find it unacceptable if they had not realised what they had to do. It would be extremely difficult to devise a system in which one could be assured that everybody knew that they had to opt out if they did not want their organs to be removed. That is why we cannot support the new clauses.
      Many hon. Members have cited evidence based on experience in other countries that has appeared in different journals in support of presumed consent. However, I challenge some of the assertions that have been made. For example, the increase in the number of organ donations in Belgium followed, it is true, the introduction of its first-ever transplant law. That made organ donation legal in statute. However, there is no

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      evidence that the law on presumed consent led to the increase. In the north of Belgium, where they have always operated a system of informed consent, the rates stayed the same.
      In Austria, the passing of a presumed consent law failed to increase donation rates. The increase actually followed a change to the organ retrieval arrangements that were implemented three years later.
      In Spain, the presumed consent law has never been used. The Spanish take pride in the fact that relatives are always asked, but they have a low refusal rate. Spain has the highest rate of organ donation in the world, and it is based not on presumed consent but on a model of organ donation devised by Dr. Rafael Matesanz, who said:
      "Most of the Spanish people are in favour of organ donation but they want to be consulted."
      The Expert Transplant Committee of the Council of Europe has made its advice clear in a document called "Meeting the Organ Shortage". It states that
      "presumed consent laws, when fully accepted, seem to benefit donation but, in practice, are often not applied mainly because of reluctance within the medical and legal communities to enforce donation".
      In fact, out of 29 European countries surveyed, 19 have presumed consent, but only seven use it.
      My right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) asked whether we could produce some of the arguments in a little more detail. I confirm that the chief medical officer still holds the opinion that he held when we published "Human Bodies, Human Choices", and I am happy to give the undertaking that we will publish some of the detailed research and the response to it.
      I assure the House that we have used the evidence from the United Kingdom and countries such as Spain to develop our transplant framework "Saving Lives, Valuing Donors" that I launched in July last year. That strategy's aim is to maximise all forms of organ donation by involving the public, the wider NHS and the transplant services. We want 16 million people to be on the organ donor register by 2010, and we also want to increase the number of living organ donors and develop the use of non-heartbeating donors. We have already employed 35 donor liaison nurses to work with staff in critical care units to help to identify potential donors and ensure that relatives are approached by people with appropriate training and given proper support at a critical time.
      Although I thank the right hon. Member for Bracknell (Mr. Mackay) for his initial kind comments, he accused me of being rather callous when I talked about approaching relatives. All the evidence from other countries shows that the important factor is the system in place to ensure that people are able to make the right approach to relatives at the relevant moment. The hon. Member for Spelthorne was as eloquent as ever when he illustrated how a different approach could be more callous. If an approach was made with the implication of saying, "We have the right to take these organs from your loved one; do you have any objections?", it would be more callous than the current approach. Many people who suffer bereavement are comforted by knowing that they will be able to help to save other people's lives. The situation that I outlined
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      was not meant to be callous. The approach works effectively in other countries and is one of the reasons why organ donation rates are higher there.
      Mr. Dalyell: No one imagines that my hon. Friend or anyone else who shares her opinion is callous. However, a problem has been raised several times during the debate: is it sensible and rational to put such an awful question at a time of maximum grief when relatives are least able to give the kind of decision that they might give 24 or 48 hours later? It is the point of maximum grief that is unsatisfactory.
      Ms Winterton: Under the new clause, relatives would still have to be asked whether they objected.
      Dr. Evan Harris: May I clarify the situation, even though I thought that I had done so earlier? If no opt-out were recorded, relatives would be asked whether they knew of an unregistered opt-out. If they did not, it would be explained that the intention would be to use the organs for transplantation. Relatives would have the opportunity to raise their objections, but they would not be sought specifically. If they raised objections and said that the procedure would cause them to suffer significant distress, doctors would have the right not to take the organs, as is the case under the current system. Relatives would be asked only the question of whether there was an unregistered opt-out, but they would receive information and have the opportunity to offer their views.
      Ms Winterton: The hon. Gentleman's comments give rise to two points. We know that relatives are always asked at the moment whether anything in the potential donor's recent history would mean that a disease such as AIDS might be passed on to a recipient. He also knows that if relatives object at that time and do not want to co-operate because they are upset by the situation, the donation will not go ahead, even if the potential donor would have consented.
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      I tell my hon. Friend the Member for Linlithgow (Mr. Dalyell) that in both situations, an approach would be made to relatives during which they would be asked a question. However, an approach made with the implication that relatives will be told, "We're going to take the organs anyway", would be more callous than the alternative approach. People exercise their judgment in such situations, which is why I question the point made by the hon. Member for Westbury (Dr. Murrison) about required request. We should leave things up to professionals in difficult circumstances rather than providing that requests must be made in every situation, because that requirement would put an enormous burden on staff and I am not sure that they would co-operate in difficult circumstances.
      Dr. Murrison: May I correct the Minister's inference? The system of required request, or required referral, ensures that professionals ask the question in general circumstances, but allows them to decide whether it is appropriate to broach the matter with relatives in specific circumstances.
      Ms Winterton: I accept that point, but people clearly need proper training before making such requests—we would certainly want to ensure that they were not made inappropriately.
      In addition to the measures that I outlined earlier, we have employed 23 living donor co-ordinators to work with families considering live donation. We have funded 12 programmes to increase the number of organs donated by non-heartbeating donors. Several hon. Members have noted those important programmes because they enable people other than those dying in intensive care units to donate their organs. We have appointed additional transplant co-ordinators to ensure that there is a minimum of one co-ordinator per million people in all regions. We have backed up those programmes with some £7 million investment in the NHS through UK Transplant.
      Several hon. Members asked about the results of our initiatives. Between 1 April 2003 and 31 March 2004, the UK saw the highest number of organ transplants ever recorded—2,863 were carried out. There was a 20 per cent. increase in non-heartbeating donation, and 860,000 people added their names to the NHS organ donor register, bringing the total number to more than 11 million. I join my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) in thanking Rosemary and John Cox for everything that they have done to make that happen.
      I assure hon. Members that we will continue to do everything that we can to get more people on to the NHS organ donor register. I recently held meetings with representatives from the National Union of Students because it is important for us to use every opportunity to get young people on the register. We have agreed a scheme to go around freshers' fairs in the autumn, and examined programmes through which people may tick a box to sign on to the register when they reapply for new driving licences. There are many schemes that we can consider and, as I am sure that every Member of the House of Commons will want to play their part in doing that, we are examining ways in which they may do so.
      The statistics show that our strategy is beginning to work. We have seen a sustained increase in organ donation rates for the first time in seven years. As I said, Spain does not have a system of presumed consent, yet has one of the highest rates of organ donation. Following the kind of changes that we have made, it took Spain 10 years to reach its current level of organ donation. We hope to achieve such a level more quickly.
      I reassure my hon. Friend the Member for Ealing, North (Mr. Pound) that we will look at issues such as health space—the electronic patient record, which the hon. Member for Westbury also mentioned. I assure my hon. Friend that there is nothing in our conclusion on presumed consent that is in any way connected to finance. That is not something we have considered at all. Our argument is about the principle of the Bill.
      The Bill contains measures that will improve the current situation still further by clarifying two critical issues for transplantees. First, the uncertainties in the Human Tissue Act 1961 will be removed. The Bill makes it clear, not just to clinical teams but to families and those close to potential donors, who can consent and how. Secondly, the Bill makes it clear that preserving organ function after death is lawful. Again, there was uncertainty about that.
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      We have tabled some amendments on the issue of cold perfusion. I understand that the hon. Member for Oxford, West and Abingdon has withdrawn his amendments on that matter. After discussion in Committee, we reflected further on the issue. The amendments are intended to ensure that preservation does not fall foul of the consent requirements of the Bill, and therefore defeat the purpose for which clause 44 is drafted. The effect of Government amendment No. 66 is to ensure that, where a body is retained under the authority conferred by clause 44, the objective of the clause is not defeated by requirement for consent under clause 1.
      The Government oppose new clause 5 tabled by the hon. Member for New Forest, West (Mr. Swayne) because we believe that the practice of elective ventilation remains ethically unacceptable and unlawful, and is in any case unnecessary nowadays. By putting a dying patient on a ventilator shortly before death, there is a risk of prolonging the dying process, and in a few cases of causing the patient to enter a persistent vegetative state. They could then remain in a coma for years. Obviously, such outcomes are not in the best interests of the patient, and in our view that is ethically unacceptable.
      Mr. Pound: I was trying to find an appropriate pause when I could intervene. I apologise if this intervention is inconvenient or inappropriate. My hon. Friend has reassured me that finance is not an issue—that infrastructure costs are not the issue. Why, then, is this matter not subject to a free vote?
      Ms Winterton: I had hoped that I had explained that the whole basis of the Bill is informed consent. As I have said. to remove one part of that—the bit referring to transplantation—would go against everything that we have said in response to the inquiries at Alder Hey and Bristol, and to the Isaacs report, and the undertakings that we have given to patients and families. That is why the Government feel that that is the principle of the Bill and that it should not be removed or undermined.
      To return briefly to the issue of elective ventilation, there are also practical arguments that make any such procedure unnecessary. As we set out in "Saving Lives, Valuing Donors", the results of using organs from non-heartbeating donors are, for kidneys and probably livers, as good as those from heartbeating donors. So, I am afraid that the Government cannot accept the new clause.
      Amendment No. 47 is in this group because it relates to transplantation. We became aware that the definition of transplantation in clause 55 does not include skin transplants, which a possible nowadays. So, a minor textual adjustment allows transplantation to include material applied to the body as well as material placed in the human body.
      To sum up, the fundamental principle of the Human Tissue Bill is that it is for us as individuals to decide for what purposes our bodies and bodily material should be used. If we have not ourselves made our wishes clear, consent must be obtained from someone we have nominated or from those closest to us. Appropriate consent must be obtained to use human organs and tissues whether from the living or after death. I reiterate

      89
      that that has governed our approach to the Bill from the very beginning. We have given very clear commitments to patients, families and staff in the NHS that that was the principle to which we would stick. We have based our approach on the issue of presumed consent on evidence from other countries. As I hope I have been able to illustrate, it is not having the legal basis of presumed consent that makes the difference. It is the system of organ donation in practice that makes the difference. We are investing more than £7 million in a system to maximise organ donation, and we are seeing the results of that.
      Following what happened at Bristol and Alder Hey, trust was undermined between patients and the public and the medical profession and researchers about the system of removing organs without consent. We cannot accept an amendment that would set us back years in terms of the trust that we have been able to build up. We believe that our approach is the right one for patients; that it is the right one for relatives; and that it is the one that the public endorse. I therefore urge my right hon. and hon. Friends to reject the new?clause.
      Dr. Evan Harris: This has been an excellent and good-natured debate. I do not think that anyone doubts the sincerity of the views held by Members on either side of the House on this issue, although I am sure there is much doubting of sincerity in other debates. We have benefited from being able to have an open debate on the subject.
      I am a member of the BMA medical ethics committee and a co-chairman of the all-party kidney group, but my main interest in the issue comes from my years as a senior house officer in renal medicine and in acute medicine, where I saw organ donations from both sides. That is why I think something has to be done. I recognise that I come rather late to the debate, given that the hon. Member for Linlithgow (Mr. Dalyell), who spoke in this debate, introduced a private Member's Bill on the subject some years ago, as have the hon. Members for Nottingham, East (Mr. Heppell), who is now a Government Whip, for Broxtowe (Dr. Palmer), for West Bromwich, East (Mr. Watson), for Mitcham and Morden (Siobhain McDonagh) and the right hon. and learned Member for Rushcliffe (Mr. Clarke)—as well as my own Bill.
      When the Bill introduced by the hon. Member for Broxtowe was pressed to a Division on First Reading, it was passed by 113 votes to 25, and 88 Labour Members voted in favour of presumed consent and only five against it. That perhaps explains why the Government have imposed a three-line Whip tonight. There will be a free vote for those on the Liberal Democrat Benches—and on the Conservative Benches—despite the fact that it is Liberal Democrat policy to support presumed consent. I know that some of my hon. Friends will not vote with me, and that is their right, because it is a matter of conscience.
      Dr. John Reid: I have already explained to the hon. Gentleman why there is no free vote on this issue. It is nothing to do with those figures; it is to do with the simple fact that the conscience that has to be exercised as regards one's own body is one's own conscience, and it is not the role of this Parliament to remove from individuals the right to exercise their own choice. That
      90
      is the sole reason why there is not a free vote. By allowing for a free vote, we would not be extending the power of people to exercise their conscience. We would be taking that power off them by assuming their consent.
      Dr. Harris: On that basis, the right hon. Gentleman would not allow a free vote even on a private Member's Bill because he does not think that Parliament has any legislative role in this respect. Yet Parliament is indeed legislating today to remove autonomy from individuals and transfer it to their grieving relatives. That is what current legislation and the Bill do. Parliament is therefore entitled to express a view on the issue. It is sad that the Secretary of State will not trust Members of Parliament to represent the views of the country and will not allow a free vote. It may well be that we would not win the vote, but it should at least be free.
      7.30 pm
      The hon. Member for Westbury (Dr. Murrison) opposes presumed consent. He quoted anecdotes drawn from the experience of Sweden. Those anecdotes may well be correct; the problem is that there is anecdote to support both sides of the argument. That is why I urge hon. Members, when considering whether presumed consent with opt-out would work, to look to the published review literature in peer-reviewed scientific journals that attempts to adjust for local factors, such as the fact that countries have different rates of road traffic accidents. During the debate, no one has disputed the two reviews that I quoted that show that, on balance, this legislative proposal does have an impact.
      The hon. Gentleman said that the transplant community is split. I hardly think that that is the case, given that the British Transplantation Society voted 80 per cent. to 20 per cent. in favour of a change in the law to presumed consent with opt-out, having previously taking a different view. That society represents doctors, nurses, technicians and transplant co-ordinators involved in the field. He argued that UK Transplant opposes presumed consent, but that is a Government body. I doubt that he has asked the individuals who work within UK Transplant for their individual views, as I have. If he did, I suspect that he would hear a different opinion.
      Dr. Murrison: The hon. Gentleman disparages UK Transplant. He should know that it represents the views of a raft of bodies and individuals engaged in transplantation. He should be guided by such an august body.
      Dr. Harris: UK Transplant's job is to implement Government policy, and I think that it does so rather well. The Government are making a big effort using the existing system. The fact that it does not work is not the fault of the Government or of UK Transplant.
      The hon. Gentleman argued for required consent—that is, forcing doctors to raise the issue with relatives, based on the presumption that not doing so is why we are not getting the organ donations we need. However. the Government's own study, the potential donor audit carried out by UK Transplant, shows that in 255 of the 278 cases of people in intensive care units between April and June 2003 who were suitable for potential donation

      91
      the subject was considered, and in only 23 cases was it not. A record of conversations with the relatives appears in the case notes of 244 of those 255 cases; only in 11 cases is there no such record, although that is likely to be because relatives' views were already known. Even if it were appropriate—the Minister said it is not—the hon. Gentleman's would be a fruitless approach.
      The Minister said that we should not presume that all wish to donate. That is not the effect of the new clause. The new clause provides for an opt-out of which those who do not wish to donate can avail themselves. The hon. Lady should not misrepresent the proposal.
      The Minister's main argument was that the new clause represented a different approach from that taken in the rest of the Bill—that the common thread of the rest of the Bill is what she describes as informed consent. I hope that I accurately reflect her argument. However, I question whether the rest of the Bill is about informed consent in relation to transplantation so much as it is about relatives' consent, which is not the informed consent of the individual, but often a guess at what that individual would have wanted. In any case, the Bill does not always refer to informed consent: the Government have had to table an amendment to clause 44, which deals with cold perfusion, to make it clear that it does not follow the main thrust of the Bill, in that people are presumed to consent to cannulation of their renal artery for preservation of renal function while further inquiries are made. Presumed consent therefore already appears in the Bill. It is right to have it for the purpose of transplantation, and the Minister would be right to extend the principle.
      The hon. Lady says that there is no evidence of overwhelming public support for presumed consent. That may be so, but neither is there evidence of lack of public support for it. As the right hon. Member for Holborn and St. Pancras (Mr. Dobson) suggested, there should be a consultation specifically on the issue. He suggested a Green Paper; I ask that the Government conduct some form of exercise to establish the level of public support. If there were no public support for the new clause, I would withdraw it. Opinion polls have shown that there is public support; the Minister has not shown that there is none. That is why I think we can go ahead.
      We can debate what the Belgian and the Spanish experience show. The Minister is not convinced by the evidence, but I am glad that, today, she retreated from her original position, which was that there was no evidence to support the assertion that presumed consent may well work. We can and should have that debate. I hope that, at the very least, we shall have the chance to have it.
      Rob Marris: The hon. Gentleman talks about having further debate. I invite him to withdraw the motion in view of the fact that this debate has lasted three hours and four minutes and, judging by the notes in his hand, is likely to take, at most, about five minutes more. Does
      92
      he really think that such a major change in UK law is best achieved after less than three hours, 10 minutes of debate? I do not think that it is.
      Dr. Harris: I draw the hon. Gentleman's attention—[Interruption.]
      Madam Deputy Speaker (Sylvia Heal): Order. We are nearing the end of an important debate and the volume of conversation is too high.
      Dr. Harris: I draw the hon. Gentleman's attention to the fact that there have been private Members' Bills on this subject. Another may well be needed. Furthermore, there is another House, which has not yet considered the matter—another House that contains a considerable amount of expertise. If the new clause is accepted, there will be further opportunities both in that House and when the Bill is sent back to this place to consider the matter further. The hon. Gentleman should therefore be reassured.
      The Secretary of State made two interventions. We thank him for having come to the Chamber to participate in the debate—I think it was the hon. Member for Linlithgow who suggested that he did so. The right hon. Gentleman said that the decline under the present system might be due to what happened at Alder Hey. That is a common fear, but the figures that I handed to him in graphic form, to make it absolutely clear, suggest that the decline has been a steady one over 10 years. The present system is not working. The Minister of State might have been able to announce today that the figures for the last 12 months—not a calendar year—which were not on the UK Transplant website last week, show an improvement. I hope that that improvement can be sustained, but we have had false dawns before. The current system is not working. That is why the Coxes, who invented the organ donor register, and Elizabeth Ward, who invented the kidney donor card, all support the new clauses. They know that what it proposes would be more effective.
      The Secretary of State's main point was that my proposal represented a nationalisation of organs. It does not. It would return to ourselves autonomy in determining what happens to our organs. Yes, the vast majority of people want to donate, but under my scheme, they would have the opportunity to opt out if they did not. Instead of allowing 50 per cent. of grieving relatives at the height of their grief to make a decision that many later regret and that goes against the wishes of the person whose organs they are, presumed consent with opt-out maximises the autonomy and the right of decision of the persons whose organs they are.
      We need a fair test of the House. With a three-line Whip in operation on the Government Benches, I do not think that we will have a fair test. I hope that we will have an opportunity to test the views of the nation through some form of deliberation or consultation. The best we can do today is to divide the House and show that many hon. Members on both sides feel that we owe it to people on the transplant waiting list to do more for them, we owe it to relatives to reduce the stress that they

      93
      face when asked to make donation decisions, and we owe it to people whose organs they are to restore their autonomy.
      Question put, That the clause be read a Second time:—
      The House divided: Ayers 60. Noes 307.

      Division No. 208]

      [7.39 pm

      AYES

      Bottomley, Peter (Worthing W)

      Marshall-Andrews, Robert

      Breed, Colin

      Mates, Michael

      Brooke, Mrs Annette L.

      Moonie, Dr. Lewis

      Burstow, Paul

      Page, Richard

      Burt, Alistair

      Pike, Peter (Burnley)

      Chidgey, David

      Pound Stephen

      Clarke, rh Kenneth (Rushcliffe)

      Rendel, David

      Cook, rh Robin (Livingston)

      Robertson, Hugh (Faversham &

      Corbyn, Jeremy

      M-Kent)

      Cotter, Brian

      Russell, Bob (Colchester)

      Dalyell, Tam

      Sanders, Adrian

      Duncan Smith, rh lain

      Sedgemore, Brian

      Dunwoody, Mrs Gwyneth

      Shephard, rh Mrs Gillian

      Fabricant, Michael

      Short, rh Clare

      Forth, rh Eric

      Simpson, Keith (M-Norfolk)

      Gale, Roger (N Thanet)

      Skinner,Dennis

      Gidley, Sandra

      Squire, Rachel

      Gillan, Mrs Cheryl

      Stunell Andrew

      Hancock, MiKe

      Swayne, Desmond

      Harris, Dr. Evan (Oxford W &

      Taylor, David (NW Leics)

      Taylor, Matthew (Truro)

      Abingdon)

      Taylor, Dr. Richard (Wyre F)

      Hogg, rh Douglas

      Teather, Sarah

      Holmes, Paul

      Thomas Simon (Ceredigion)

      Hopkins, Kelvin

      Tyler, Paul (N Cornwall)

      Hughes, Simon (Southwark N)

      Wiggin Bill

      Jones, Lynne (Selly Oak)

      Williams, rh Alan (Swansea W)

      Kirkwood, Sir Archy

      Willams, Hywel (Caernarfon)

      Lamb, Norman

      Williams, Roger (Brecon)

      Luff, Peter (M-Worcs)

      Wright, Tony (Cannock)

      McDonnell, John

      McWalter, Tony

      Tellers for the Ayes:

      Marsden, Paul (Shrewsbury &

      Mr. Andrew Mackay and

      Atcham)

      John Barrett

      NOES

      Ainger, Nick

      Buck, Ms Karen

      Ainsworth, Bob (Cov'try NE)

      Burnham, Andy

      Alexander, Douglas

      Burns,Simon

      Allan, Richard

      Byers, rh Stephen

      Allen, Graham

      Caborn di Richard

      Anderson, rh Donald (Swansea E)

      Cairns, David

      Anderson, Janet (Rossendale &

      Cameron, David

      Darwen)

      Campbell, rh Sir Menzies (NE

      Armstrong, rh Ms Hilary

      Fife)

      Atherton, Ms Candy

      Campbell, Ronnie (Blyth V)

      Baird, Vera

      Caplin, Ivor

      Barnes, Harry

      Casale, Roger

      Battle, John

      Caton, Martin

      Beith, rh A. J.

      Cawsey, Ian (Brigg)

      Bennett, Andrew

      Challen Colin

      Benton, Joe (Bootle)

      Chapman Ben (Wirral S)

      Best, Harold

      Chapman Sir Sydney (Chipping

      Blears, Ms Hazel

      Barnet)

      Blizzard, Bob

      Chope, Christopher

      Boateng, rh Paul

      Clark, Paul (Gillingham)

      Bradley, rh Keith (Withington)

      Clarke, rh Tom (Coatbridge &

      Bradley, Peter (The Wrekin)

      Chryston)

      Bradshaw, Ben

      Clarke, Tony (Northampton S)

      Brady, Graham

      Clifton-Brown, Geoffrey

      Brennan, Kevin

      Clwyd, Ann (Cynon V)

      Brown, rh Gordon (Dunfermline

      Coffey, Ms Ann

      E)

      Cook Frank (Stockton N)

      Brown, Russell (Dumfries)

      Cooper, Yvette

      Browne, Desmond

      Cormack, Sir Patrick

      Bryant, Chris

      Corston, Jean

      94

      Cousins, Jim

      Humble, Mrs Joan

      Cran, James (Beverley)

      Hutton, rh John

      Crausby, David

      Iddon, Dr. Brian

      Cryer, Ann (Keighley)

      Illsley, Eric

      Cummings, John

      Ingram, rh Adam

      Cunningham, rh Dr. Jack

      Irranca-Davies, Huw

      (Copeland)

      Jackson, Glenda (Hampstead &

      Cunningham, Jim (Coventry S)

      Highgate)

      Cunningham, Tony (Workington)

      Jackson, Helen (Hillsborough)

      Darling, rh Alistair

      Jamieson, David

      David, Wayne

      Jenkins, Brian

      Davidson, Ian

      Johnson, Miss Melanie (Welwyn

      Davies, rh Denzil (Llanelli)

      Hatfield)

      Davies, Geraint (Croydon C)

      Jones, Helen (Warrington N)

      Davis, rh David (Haltemprice &

      Jones, Jon Owen (Cardiff C)

      Howden)

      Jones, Kevan (N Durham)

      Dean, Mrs Janet

      Jones, Martyn (Clwyd S)

      Dhanda, Parmjit

      Jowell, rh Tessa

      Djanogly, Jonathan

      Joyce, Eric (Falkirk W)

      Dobbin, Jim (Heywood)

      Kaufman, rh Sir Gerald

      Dobson, rh Frank

      Keen, Alan (Feltham)

      Donohoe, Brian H.

      Keen, Ann (Brentford)

      Dowd, Jim (Lewisham W)

      Kennedy, Jane (Wavertree)

      Duncan, Peter (Galloway)

      Key, Robert (Salisbury)

      Eagle, Angela (Wallasey)

      Khabra, Piara S.

      Eagle, Maria (L'pool Garston)

      Kidney, David

      Edwards, Huw

      Kilfoyle, Peter

      Efford, Clive

      King, Ms Oona (Bethnal Green &

      Etherington, Bill

      Bow)

      Farrelly, Paul

      Knight, rh Greg (E Yorkshire)

      Field, rh Frank (Birkenhead)

      Knight, Jim (S Dorset)

      Fisher, Mark

      Ladyman, Dr. Stephen

      Fitzsimons, Mrs Lorna

      Lammy, David

      Flint, Caroline

      Lansley, Andrew

      Foster, rh Derek

      Lawrence, Mrs Jackie

      Foster, Michael Jabez (Hastings

      Laws, David (Yeovil)

      & Rye)

      Lazarowicz, Mark

      Francis, Dr. Hywel

      Leigh, Edward

      Francois, Mark

      Lepper, David

      Gerrard, Neil

      Letwin, rh Oliver

      Gibson, Dr. Ian

      Levitt, Tom (High Peak)

      Gilroy, Linda

      Lewis, Ivan (Bury S)

      Green, Damian (Ashford)

      Lewis, Dr. Julian (New Forest E)

      Grieve, Dominic

      Liddell-Grainger, Ian

      Griffiths, Win (Bridgend)

      Linton, Martin

      Hain, rh Peter

      Lloyd, Tony (Manchester C)

      Hall, Mike (Weaver Vale)

      Llwyd, Elfyn

      Hamilton, David (Midlothian)

      Love, Andrew

      Hanson, David

      Lucas, Ian (Wrexham)

      Harman, rh Ms Harriet

      McAvoy, Thomas

      Harris, Tom (Glasgow Cathcart)

      MacDonald, Calum

      Havard, Dai (Merthyr Tydfil &

      MacDougall, John

      Rhymney)

      McGuire, Mrs Anne

      Hayes, John (S Holland)

      Mclsaac, Shona

      Healey, John

      McKenna, Rosemary

      Heath, David

      Mackinlay, Andrew

      Henderson, Doug (Newcastle N)

      McLoughlin, Patrick

      Hendrick, Mark

      McNulty, Tony

      Hepburn, Stephen

      MacShane, Denis

      Heppell, John

      Mactaggart, Fiona

      Hesford, Stephen

      McWilliam, John

      Hewitt, rh Ms Patricia

      Mahmood, Khalid

      Heyes, David

      Mahon, Mrs Alice

      Hill, Keith (Streatham)

      Maples, John

      Hinchliffe, David

      Marris, Rob (Wolverh'ton SW)

      Hodge, Margaret

      Marsden, Gordon (Blackpool S)

      Hood, Jimmy (Clydesdale)

      Marshall, David (Glasgow

      Hope, Phil (Corby)

      Shettleston)

      Howarth, rh Alan (Newport E)

      Mawhinney, rh Sir Brian

      Howarth, George (Knowsley N &

      Meale, Alan (Mansfield)

      Sefton E)

      Merron, Gillian

      Howarth, Gerald (Aldershot)

      Milburn, rh Alan

      Howells, Dr. Kim

      Miliband, David

      Hughes, Beverley (Stretford &

      Miller, Andrew

      Urmston)

      Mitchell, Austin (Gt Grimsby)

      Hughes, Kevin (Doncaster N)

      Moffatt, Laura

      95

      Mole, Chris

      Smyth, Rev. Martin (Belfast S)

      Moore, Michael

      Soley, Clive

      Moran, Margaret

      Southworth, Helen

      Morgan, Julie

      Spicer, Sir Michael

      Moss, Malcolm

      Spink, Bob (Castle Point)

      Mountford, Kali

      Starkey, Dr. Phyllis

      Mudie, George

      Steinberg, Gerry

      Munn, Ms Meg

      Stevenson, George

      Murphy, Denis (Wansbeck)

      Stewart, David (Inverness E &

      Murphy, Jim (Eastwood)

      Lochaber)

      Murrison, Dr. Andrew

      Stewart, Ian (Eccles)

      Naysmith, Dr. Doug

      Stinchcombe, Paul

      Oaten, Mark (Winchester)

      Stoate, Dr. Howard

      O'Brien, Bill (Normanton)

      Stringer, Graham

      O'Brien, Mike (N Warks)

      Stuart, Ms Gisela

      O'Brien, Stephen (Eddisbury)

      Swire, Hugo (E Devon)

      O'Hara, Edward

      Syms, Robert

      Olner, Bill

      Tami, Mark (Alyn)

      Opik, Lembit

      Taylor, Dari (Stockton S)

      Organ, Diana

      Taylor, Sir Teddy

      Osborne, Sandra (Ayr)

      Thomas, Gareth (Clwyd W)

      Paice, James

      Timms, Stephen

      Picking, Anne

      Touhig, Don (Islwyn)

      Pickthall, Colin

      Truswell, Paul

      Plaskitt, James

      Turner, Andrew (Isle of Wight)

      Pollard, Kerry

      Turner, Dennis (Wolverh'ton SE)

      Pond, Chris (Gravesham)

      Turner, Dr. Desmond (Brighton

      Pope, Greg (Hyndburn)

      Kemptown)

      Prentice, Gordon (Pendle)

      Turner, Neil (Wigan)

      Prescott, rh John

      Twigg, Derek (Halton)

      Primarolo, rh Dawn

      Twigg, Stephen (Enfield)

      Prosser, Gwyn

      Tynan, Bill (Hamilton S)

      Purchase, Ken

      Tyrie, Andrew

      Purnell, James

      Vaz, Keith (Leicester E)

      Vis, Dr. Rudi

      Quin, rh Joyce

      Walley, Ms Joan

      Randall, John

      Ward, Claire

      Rapson, Syd (Portsmouth N)

      Watts, David

      Redwood, rh John

      Webb, Steve (Northavon)

      Reid, rh Dr. John (Hamilton N &

      White, Brian

      Bellshill)

      Whitehead, Dr. Alan

      Robathan, Andrew

      Wicks, Malcolm

      Robertson, John (Glasgow

      Widdecombe, rh Miss Ann

      Anniesland)

      Williams, Betty (Conwy)

      Robertson, Laurence (Tewk'b'ry)

      Wilshire, David

      Robinson, Geoffrey (Coventry

      Winterton, Ann (Congleton)

      NW)

      Winterton, Sir Nicholas

      Roche, Mrs Barbara

      (Macclesfield)

      Rooney, Terry

      Winterton, Ms Rosie (Doncaster

      Roy, Frank (Motherwell)

      C)

      Ruane, Chris

      Wood, Mike (Batley)

      Ruffley, David

      Woolas, Phil

      Russell, Ms Christine (City of

      Worthington, Tony

      Chester)

      Wright, Anthony D. (Gt

      Ryan, Joan (Enfield N)

      Yarmouth)

      Sarwar, Mohammad

      Wright, David (Telford)

      Savidge, Malcolm

      Wyatt, Derek

      Shaw, Jonathan

      Young, rh Sir George

      Sheridan, Jim

      Singh, Marsha

      Tellers for the Noes:

      Smith, rh Andrew (Oxford E)

      Vernon Coaker and

      Smith, Llew (Blaenau Gwent)

      Charlotte Atkins

      Question accordingly negatived.

    Clause 1

      AUTHORISATION OF ACTIVITIES FOR SCHEDULED PURPOSES
      Ms Rosie Winterton: I beg to move amendment No. 108, in page 2, line 32, at end insert—
      '(6A) Subsection (1)(d) does not apply to the storage of relevant material for use for the purpose of research in connection with disorders, or the functioning, of the human body if—
      96

      (a)the material has come from the body of a living person, and

      (b)the research falls within subsection (6C).

      Subsection (1)(f) does not apply to the use of relevant material for the purpose of research in connection with disorders, or the functioning, of the human body if—

      (a)the material has come from the body of a living person, and

      (b)the research falls within subsection (6C).

      Research falls within this subsection if—

      (a)it is ethically approved in accordance with regulations made by the Secretary of State, and

      (b)it is to be, or is, carried out in circumstances such that the person carrying it out is not in possession, and not likely to come into possession, of information from which the person from whose body the material has come can be identified.'.

      Madam Deputy Speaker: With this it will be convenient to discuss the following:
      Government amendments Nos. 109, 67, 19, 20, 110 to 112, 21.
      Amendment No. 17, in page 36, line 8 [schedule 1], after 'training', insert
      'to which paragraph l 3 does not apply'.
      Amendment No 15, in page 36, line 20, after 'Research', insert
      'to which paragraph 13 does not apply'.
      Government amendments Nos. 22, 23, 68.
      Amendment No. 18, in page 36, line 28, at end insert—
      '13 Education, training or research with local research ethical committee approval, carried out using relevant material not otherwise needed after completion of treatment or investigation for which the patient's consent was obtained in writing or by tacit consent for the removal of the sample of relevant material.'.
      Government amendments Nos. 69, 24, 70, 113.
      Ms Winterton: These three sets of amendments are grouped together because they deal with the use of so-called residual or remnant tissue—that is, tissue removed lawfully from living patients in the course of diagnosis or surgical intervention.
      I shall speak first to Government amendments Nos. 108 to 113, which deal with research use of residual tissue. We discussed the matter extensively in Committee. Following the Committee stage, the Government received many direct representations from academic researchers. Hon. Members may also have noticed that there was a campaign in the news media by the same stakeholders. The research community said that obtaining consent to use tissue removed for medical treatment and diagnosis from living patients—so-called residual or remnant tissue—would be so onerous and costly that it would stifle research. I met a number of the stakeholders from the research and academic communities and have considered various options for dealing with the matter.
      The Government are clear that they do not wish to impose excessive burdens on those who process the many diagnostic and clinical samples of blood, urine

      97
      and tissue taken in the NHS. Obtaining consent in relation to all such samples to make them available for research would be a disproportionate burden. However, there is a need to maintain scrutiny and control over the research use to which such samples are put. We therefore propose to amend the Bill to allow research using material from living patients to go ahead without consent, but with safeguards.
      The first safeguard will be that the research must be ethically approved in accordance with regulations made by the Secretary of State, which we expect will provide for approval by a research ethics committee. The second safeguard is that the researcher must not possess information as to the identity of the person from whom the tissue came; in other words, the research must be anonymised. We believe that these safeguards will maintain the essential principles of the Bill and provide appropriate controls, while allowing medical researchers the access to human tissue that they need.
      Dr. Evan Harris: I have raised this issue with the Minister before: does she propose that the anonymisation should be irreversible—in other words, that someone could never find out who the tissue belonged to—or does she propose that a third party, but not the researcher, could if necessary find out where the sample came from? In what circumstances does she believe that the anonymity could be broken, if it could be?
      Ms Winterton: Anonymisation does not mean that the patient and the tissue would be permanently unlinked. Further information could be sought from the records, but the researcher should not get identifying information, and the ethics committees would be able to consider what arrangements were appropriate in each case.
      Dr. Harris: I understand that point and I am satisfied about it. Further information could be obtained, but not identifying information. But what about the circumstance in which something that might be of interest to the person concerned or to their benefit is found in the research, or perhaps something is found that is prognostically significant but to their disbenefit? Would that information be able to flow back, and if so, is that true anonymisation? Should there be consent for that? Some people may not want to know, and if they are never asked for consent to the use of their anonymised tissue, they may be burdened with information that they never wanted to have.
      Ms Winterton: That is an issue that I would expect the research ethics committee to consider before any research started. It is likely that the research ethics committee would say that in order to be able to use any information that came from the research, consent would have to be sought from the individual. Research ethics committees would have to consider the matter when granting permission for research in the first place.
      I shall now move on to the set of amendments dealing with the use of residual tissue for medical education and training. In Committee the Government were made aware of similar concerns about the provisions on
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      consent to the use of residual human tissue for education and training. The Bill as drafted provides that the use of tissue from living patients for on-the-job training in pathology laboratories, for example, should not require consent, as it is considered part and parcel of the diagnostic and care process. However, use of tissue from living patients for education in more formal settings does require consent.
      In Committee hon. Members raised the issue of the practical difficulty for teachers of distinguishing between those two types of education and training. That led us to reconsider the issue. In the second set of amendments we now propose to allow all education and training using tissue from living patients that relates to human health and to disorders and functioning of the human body to be carried out without consent. That means that references to education and training would be moved from part 1 to part 2 of schedule 1. Consequential amendments relate to clause 8 and schedule 5.
      Use of residual human tissue for education and training in research techniques, which is a more easily distinguished topic, will remain subject to consent. Members of the academic, teaching and research communities have indicated that they are satisfied that this approach will allow them access to the tissue that they need for research and education.
      Dr. Harris: Perhaps I have not understood the architecture of the Bill, as amended. If the education and training in research techniques were done on anonymised tissue, subject to the approval of a research ethics committee, would it be exempt from the requirement for consent, as the research is, or does the wording mean that while doing the research on anonymised tissue, one could not teach post-doctoral or postgraduate students how to do that research, because that would constitute a part 1, schedule 1 purpose?
      8 pm
      Ms Winterton: Yes, that is the case. There is a clear distinction for education and training on research techniques. They will remain subject to consent, because of the results that may come from them. Members of the academic, teaching and research communities have indicated that they are satisfied that that approach will meet their requirements.
      Dr. Harris: The Medical Research Council is still concerned about this matter. The Minister has created three categories: education and training, which do not need consent; research, which does not need consent if the information is anonymised and there is research ethics committee approval; and education and training in research techniques, which always need consent. If research is being conducted on anonymised samples with research ethics committee approval, it should still be possible to carry out education and training on the research techniques involved as long as anonymity remains in place.
      Ms Winterton: The carrying out of the research under the Bill as amended is subject to ethics committee

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      scrutiny where consent is not in place. Using tissue to train people in a research technique, such as the use of particular equipment, is a different matter, and it is not central to providing services. Training researchers while carrying out approved research would be allowed. The authority will elaborate on that point in guidance, but there is a difference between carrying out research that has not been approved by a research ethics committee and training researchers during research that has been approved by such a committee.
      The last set of Government amendments in the group consists of amendments Nos. 67 to 70, which deal with the use of residual tissue in relation to testing in-vitro diagnostic medical devices or test kits. The amendment to clause 1 is a technical amendment removing a potential regulatory overlap. Manufacturers of in-vitro diagnostic test kits such as those for pregnancy or HIV use human tissue in order to comply with their duties to evaluate their products before placing them on the market and before batch release. That is regulated by the EC directive on in-vitro diagnostic medical devices, which is implemented in the UK by the Medical Devices Regulations 2002. The directive has its own requirements concerning consent to such use. To be certain that we do not interfere with that established regulatory regime, we propose to amend the Bill to make it explicit that storage and use of tissue for IVD testing covered by the directive are excluded from the scope of the consent provisions.
      Mr. Lansley: The amendments that are designed to achieve that aim insert the words "performance assessment" as one of the purposes in part 2 of schedule 1, and there are consequential changes in schedule 5, but I am not entirely sure that I understand by what mechanism that phrase is defined in a way that limits its application to the directive. Is the Minister confident that performance assessment would not be given a wider construction than simply in-vitro diagnostic equipment?
      Ms Winterton: I am quite confident that it would not be.
      Subject to the specific exclusion to which I have referred, schedules 1 and 5 are amended to clarify that use of human material in IVD kit testing is otherwise within the purposes regulated by the Bill. As I said, that is achieved by adding performance assessment to the purposes listed in part 2 of schedule 1. That will ensure that storage and use for testing done pursuant to the directive is covered by the regulatory regime in part 2 of the Bill. It will also ensure that other IVD kit testing using tissue from living patients may be carried on without consent for that purpose. That will make it clear, for example, that surplus diagnostic tissue can continue to be used to calibrate and assess the comparative performance of medical devices without specific consent. The Medicines and Healthcare Products Regulatory Agency also routinely undertakes or commissions such performance assessment of devices for NHS use.
      We regard that activity as a necessary adjunct to the provision of care and diagnostic services in much the
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      same way as clinical audit and quality assurance. However, the purpose of quality assurance, which is already included in part 2 of schedule 1, was not considered certain to encompass the activities undertaken in testing the devices, so to clarify the position, we are taking the opportunity to add a new purpose to cover the point.
      I commend to the House the sensible amendments that I have outlined, which are intended to remove uncertainties and ensure that the points made in Committee are reflected in the Bill.
      Mr. Lansley: I think that I had some part in speaking to amendments whose purpose was to raise exactly the points to which the Minister has now responded. I am not sure that I did so exclusively, as other Committee members advanced much the same arguments.
      To that extent, I welcome the Government amendments. I do not want to explore them in too much detail, but I want to be clear that there are one or two consequential issues. I mentioned one in an intervention, as I was not entirely sure about it. The Minister's subsequent remarks made it clear that the extent of the medical devices regulations is probably sufficiently wide for us not to have to worry about the point that I raised, but I am not quite sure that performance assessment has been properly or fully defined. Perhaps we could check up on that point at a later stage.
      The substantive purposes of the amendments are significant. Let us cast our minds back to when the Bill was being constructed. It was constructed around a range of unhappy and tragic circumstances, but those circumstances often related principally to organs and tissues from people who had died. To that extent, although we had regard to the principle of informed consent throughout our consideration of the Bill, we were conscious that in remedying the many mischiefs that had been exposed after the events at Alder Hey and the Bristol royal infirmary, as well as in other places across the country, we wanted not to damage research and the functioning of the NHS.
      It was striking that the research community, pathologists and those representing the families who had lost loved ones and been affected by unauthorised organ and tissue retention tended to take the view that the Bill had gone too far. I am grateful that the Minister has recognised that the Bill has gone too far, but it is important that, as we carefully draw that line again, we do not run the risk of trespassing on the sense that families and patients need to have—the sense that what is done will be done with their consent or will have proper safeguards built around it if it does not require such consent. We need to achieve that in precisely the way that the Minister described.
      One of the most important distinctions is built in by Government amendments Nos. 21, 22 and 23, whose purpose is to remove from part 1 of schedule 1, which deals with purposes normally requiring consent, the structure of education and training, as set out in paragraph 3, and to divide it into two parts. There will

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      now be education and training that relate to human health, which goes beyond the previous reference to
      "incidental to medical diagnosis or treatment",
      which is distinguished from education and training relating to longer-term research.
      The 5.5 million cervical smears were used in Committee as an example to illustrate what is meant by "relating to human health". As I understand it, it is impossible to determine which smears are relevant for the purposes of education and training until beyond the point at which it would be incidental to medical diagnosis or treatment to identify them. Under the Bill as drafted, in order to use smears for education and training, which is vital in establishing what biomedical scientists are looking for, one would automatically have to return to a subset of those 5.5 million women to obtain their specific consent, and, sensibly, no one in Committee regarded that as the right path down which to go. In that example, the need to make the provision wider than
      "incidental to medical diagnosis or treatment"
      is clear.
      Difficulties will inevitably arise in distinguishing between research and education and training, but, if I understand how things work in the NHS, a clear distinction exists on whether one is engaged in education and training or whether one is engaged in research. By definition, if one is engaged in research, one has secured ethical approval for it, and the requirement for consent should flow from that approval, even in relation to education and training.
      Unless my hon. Friend the Member for Westbury (Dr. Murrison) pulls me back, we are happy with the changes to schedule 1. We must be careful on schedule 1, because it lies at the heart of the Bill. and if we were to include a provision that goes a step too far, we would undermine the Bill's whole purpose.
      Government amendment No. 108 and its related consequential amendments disapply the requirement for appropriate consent for particular purposes, before those purposes become lawful. If ethically approved research is undertaken in accordance with regulations and is carried out in a way in which information is effectively anonymised, Government amendment No. 108 ensures that such research does not require appropriate consent to become lawful. It is important to make it clear that the provision relates to material taken from a living person's body.
      Those representing families affected by those issues have made it clear in conversation that they are prepared for such a change, because the legislation's structure clearly distinguishes between organs and tissues taken from living persons, where, as amendment No. 18 tabled by the hon. Member for Wyre Forest (Dr. Taylor) puts it, "tacit consent" has been given for the donation of tissue. Those families take the view that it is reasonable to go down that path. As in the case of the changes to schedule 1, the boundary between education and training for human health and education and training for research is important.
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      8.15 pm
      We must understand what "anonymised" means in those circumstances, and the hon. Member for Oxford, West and Abingdon (Dr. Harris) asked some typically penetrating questions, which are beyond my ken, on that matter. I discussed that issue with staff at the Sir Magdi Yacoub centre at Harefield hospital, who explained that they separate data concerned with research projects conducted by Imperial college from data concerned with the clinical care of the patients from whom the tissues were derived. The dividing line is between data that links tissues to individuals and data that is part of the clinical record.
      The answer to the question asked by the hon. Member for Oxford, West and Abingdon is that it is possible for the research team to ask the clinical team questions, and for the clinical team to provide answers. It is possible to ask such questions, but the answers should not allow the research team to identify the patients concerned. The robustness of the approval and the separation of clinical databases and research databases are important in that context.
      I did not make any of those points in order to object to the amendments, which remedy what the medical research community feared would be serious adverse consequences arising from the Bill, and I hope that the House accepts them.
      Dr. Evan Harris: I concur with much of what has been said. I shall raise three issues with Minister, two of which I have already raised in interventions in order to give her prior notice.
      My first point, which the hon. Member for South Cambridgeshire (Mr. Lansley) also raised, concerns the flow of further information, where research is conducted on anonymised samples under ethics committee approval. The Minister explained, quite reasonably, that researchers could ask for further clinical data if it helps their research, and, again, that could be subject to research ethics committee oversight. I served on an ethics committee for a number of years, and we used to consider such requests regularly.
      My question concerns research that could impact on a patient, who might have an interest in either knowing or not knowing about it. It is probably best to use an example: let us say that many appendixes are used anonymously for research, and a new technique is developed to enable one to see whether Creutzfeldt-Jakob disease infection is present in those tissues. Some patients might want to know if a bit of their tissue, albeit one researched on anonymously without their consent, contains CJD, if that data were useful to them in prognostic terms, especially if a treatment were available to prevent the onset of symptoms.
      Although that example is hypothetical, the ethics committee on which I served considered many similar cases. Alternatively, a patient might not want to know that they had such a condition, because, for example, no treatment were available or because the treatment would not enable them to obtain life insurance. Will that be possible, subject to ethics committee approval, or does the Minister expect those insights to be

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      understandable at the outset, in which case the ethics committee would not have allowed the provision of anonymous research samples?
      Ms Winterton indicated assent.
      Dr. Harris: What will happen when such insights come as a surprise and are not forecast? Such occasions will not be rare, because we expect science to move on. Collections of remnant tissue may well become useful in research and new techniques, which is why so much fuss is made about them. I want the Minister to guide me on whether we should be careful about allowing research to be done on anonymised tissues, in order not to get into that situation in the first place. What would we do if 1,500 appendixes were needed quickly to test a CJD detection technique? Those questions are not straightforward, but if we are creating a new legislative framework, we must consider them before the Bill leaves both Houses. Even if the Minister cannot give a definitive answer now, I hope that that point will be considered at a later date.
      My second point concerns education and training in research techniques. The Minister suggested that the situation will lie in the extremes: either such education and training will not require consent, irrespective of whether it is beyond the treatment and diagnostic phase—that is the position that we discussed in Committee and from which the Government have retreated—or it can be done only with consent and therefore cannot involve anonymised samples. In fact, a great deal of education and training takes place on the correct preparation of slides and their presentation in respect of cervical smears, on blood testing and on the fixing and analysis of surgical remnant samples of the kind that are likely to be anonymised and therefore not to require consent. I hope that the Minister is not saying that it will not be possible to teach people how to prepare slides and to teach cytology techniques on those sorts of sample, which are the majority. That would mean having to try to identify a sub-group in the community from whom to get consent—from patients
      who probably do not want to be reminded that they had a blood test or smear. I would be grateful for the Minister's clarification on that, because it is possible that an error is being made.
      I raised my third point in a meeting with the Minister in which she explained how she thinks that the regulations will work in relation to not requiring consent for anonymised samples. She said that samples that are anonymised and have ethics committee approval will not require consent. However, I got the impression from earlier conversations that there will still be a question on a consent form for an operation which would be, "Are you happy for your tissue to be used on an anonymised basis?" I question whether that is sensible, because even if the answer was no it would not be unlawful for that tissue to be used. When one gets 60 surgical samples back, and the piece of paper does not go with 10 of them—say, elective tumour resections—an error could be made. However, it would not be an error in law because there is no bar on using anonymised samples for a study that has ethics committee approval.
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      That is misleading to patients and creates an extra burden of bureaucracy in elective cases. In the case of a big lump of tissue such as a heart, which perhaps should not be used for research, even anonymised, because the person undergoing the heart transplant operation might not expect it, the ethics committee would prevent it. We should leave it to the committee to do that instead of requiring the insertion of a question about anonymised tissue on consent forms. The quality of the consent is the same when it is implied by holding one's arm out as it is when one ticks a box for a straightforward operation. The same information should be required; the fact that one consent is in writing does not mean that it is any more of a consent than the other. Does the Minister still think that there will be the extra complication that she envisaged?
      Other than that, I welcome the fact that the Government have made changes to this part of the Bill. Some of the amendments are similar to those that the hon. Members forWyre Forest (Dr. Taylor) and for South Cambridgeshire and I tabled in Committee. At that time, they received rather less than long shrift, and I am glad that the Minister has thought again.
      Dr. Richard Taylor: I wish to speak to amendments Nos. 15, 17 and 18, which stand in my name. I tabled them at the beginning of May in the hope of reminding the Minister of the points that she said she would reconsider in Standing Committee. That approach seems to have borne fruit.
      I recently received a letter from the chairman of the British Society for Clinical Cytology which emphasised the crucial nature of these amendments. She said:
      "During the last few months I have attended two international conferences in South America—at the first one I was too embarrassed to mention the"
      Human Tissue Bill,
      "but at the second its possible implications were well known around the world. It is quite clear that the latest Department of Health guidelines, without the backing of law, have already put the UK way behind in research and development. Lets hope to goodness that the amended law will allow some ground to be made up.
      That is typical of the concern with which people regarded the unamended Bill. I therefore congratulate the Government on their amendments, which will correct the situation and add the protection of anonymity.
      I remain puzzled as to what caused that seismic change in Government thinking. In Committee, hon. Members argued long and hard for such changes to the Bill because we had all received letters from pathologists of different sub-specialties and from their professional organisations. The hon. Member for South Cambridgeshire (Mr. Lansley) hit the nail on the head when he said that a Standing Committee is not the best forum to obtain consensus. I realised that when I served on one for the first time and found that there was always a Government Whip there to make absolutely sure that nothing went through against the Government's wishes.
      I hope that you will allow me to digress for two minutes, Mr. Deputy Speaker. During our proceedings on the Asylum and Immigration Bill, the hon. Member for Cannock Chase (Tony Wright) said:

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      "As I see it, there is no way that legislation this fundamental will be accepted by the other place, so the Bill will presumably return to this House in a form that the Government think that they can get through, which will involve its amendment."—[Official Report, 1 March 2004; Vol. 418, c. 674.]
      In an Opposition Day debate that the Liberal Democrats introduced on young people and democracy, we considered things that put people off politics. I referred to the practice of sending an unamended measure to the House of Lords so that there would be room for amendment when it came back, and I likened the Government to a second-hand car salesman.
      I wonder whether such comments made the Government change their mind. Whatever has led to that, I am delighted. I hope that Standing Committees may become better forums for changing views, even when they contradict that of the Government. I am convinced that the Government's amendments do all that is necessary, and I shall therefore not press the amendments that I tabled.
      8.30 pm
      Ms Rosie Winterton: I thank the hon. Member for Wyre Forest (Dr. Taylor) for not pressing his amendment. I am delighted that he is delighted about what happened in Committee.
      The hon. Member for Oxford, West and Abingdon (Dr. Harris) asked about consent forms when tissue is intended for research purposes. The Human Tissue Authority will consider that in guidance but I hope that, if an individual says that they do not want their residual tissue to be used for research, it will not happen. I acknowledge that discussions must take place about the way in which that will work. However, I hope that respect will be shown.
      The hon. Gentleman also asked about training in research procedures. I believe that I answered that question previously, but I emphasise that training in diagnostic and care procedures and in medical education must be regarded as part of the package of providing diagnostic and care services. We recognise that training is essential for protecting future services. However, we also acknowledge that research is different from care and we therefore have different specific consent requirements for research.
      Training in research techniques should be aligned with the research provisions. Clearly, when a trainee is observing a research procedure, there is no difficulty. If a postgraduate student has a research proposal that a research ethics committee approves, the learning would be part of the research, which would proceed in the usual way. However, it is different if tissue samples—and we could be considering sizeable lumps—are to be used solely to teach someone how to use a piece of equipment. In that case, consent would be needed.
      In the case of unexpected information being found during research, I hope that the research ethics committees would generally be able to tell whether such information would be discovered and rule accordingly. By and large, they would ask for consent if they believed that such information was likely to emerge. However, we need to leave such matters to the Human Tissue Authority and the management of the research ethics committees so that they can introduce some flexibility within the general parameters.
      Amendment agreed to.
      Amendments made: No. 109, in page 2, line 38, after '(4)', insert', (6A) or (6B)'.
      No. 67, in page 2, line 42, at end insert—
      '() Nothing in this section applies to—

      (a)the use of relevant material in connection with a device to which Directive 98/79/EC of the European Parliament and of the Council on in vitro diagnostic medical devices applies, where the use falls within the Directive, or

      (b)the storage of relevant material for use falling within paragraph (a).'.—[Derek Twigg.]

    Clause 2

      "APPROPRIATE CONSENT": CHILDREN
      Amendments made: No. 48, in page 3, line 16, leave out from 'activity' to end of line 17 and insert
      'is one to which subsection (4A) applies,'.
      No. 49, in page 3, line 18, at end insert—
      '(4A) This subsection applies to an activity involving storage for use, or use, for the purpose of—

      (a)public display, or

      (b)where the subject-matter of the activity is not excepted material, anatomical examination.'.

      No. 50, in page 3, line 24, leave out from 'activity' to end of line 25 and insert
      'is not one to which subsection (4A) applies,'.—[Derek Twigg.]

    Clause 3

      "APPROPRIATE CONSENT": ADULTS
      Amendments made: No. 51, in page 3, line 41, leave out from 'activity' to end of line 42 and insert
      'is one to which subsection (3A) applies,'.
      No. 52, in page 3, line 43, at end insert—
      '(3A) This subsection applies to an activity involving storage for use, or use, for the purpose of—

      (a)public display, or

      (b)where the subject-matter of the activity is not excepted material, anatomical examination.'.

      No. 53, in page 4, line 10, leave out from 'activity' to end of line 11 and insert
      'is not one to which subsection (3A) applies,'.—[Derek Twigg.]

    Clause 5

      PROHIBITION OF ACTIVITIES WITHOUT CONSENT ETC.
      Ms Rosie Winterton: I beg to move amendment No. 29, in page 5, line 22, at end insert—
      '(1A) A person commits an offence if—

      (a)he falsely represents to a person whom he knows or believes is going to, or may, do an activity to which subsection (1), (2) or (3) of section 1 applies—

      (i)that there is appropriate consent to the doing of the activity, or

      (ii)that the activity is not one to which the subsection applies, and

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      he knows that the representation is false or does not believe it to be true.'.

      Mr. Deputy Speaker (Sir Michael Lord): With this, it will be convenient to discuss Government amendment No. 30.
      Ms Winterton: On Second Reading and in Committee, several hon. Members argued that the Bill as drafted fails to deal with a position whereby a person knowingly and deliberately deceives a colleague into believing that consent has been given for the use of tissue or organs for research. That is because the criminal offences in the Bill are directed only at the person who stores and uses the material without consent. I gave an undertaking that we would reconsider that issue, which has been of concern to pathologists. They consider it unreasonable that they will be in the frame for the criminal penalties that relate to consent when they may be acting in good faith, whereas a clinician who knowingly misleads them by saying that consent has been granted when it has not, will not commit an offence under the Bill.
      Similarly, a coroner—or a coroner's officer or technician—who claims that consent was not necessary because there was authority from a coroner to perform the activity in question would also be outside the scope of the offences. In a case in which a clinician, technician or coroner deliberately and falsely said that appropriate consent or a coroner's authority was in place, and another person stored or used the tissue believing this to be true, this latter person might be able to use the reasonable belief defence against any charge. But in that case, nobody would be liable under the Bill, which we recognise would defeat the purpose of regulation.
      After consideration, we propose that an amendment be made to extend the criminal offence, which currently applies to people who carry out an activity without appropriate consent, so that it also applies to people falsely claiming that the necessary consent has been given or is not needed. Amendment No. 29 sets out the new offence. Amendment No. 30 is consequential on this, removing use of existing holdings of human tissue from the scope of the offence, in keeping with our general approach to existing holdings of issue.
      We hope that these offences will merely be a backstop to be put in place to demonstrate the seriousness with which we view the issue of consent. We believe that general standards of good practice will be more than sufficient to ensure that there should be no need to invoke the offences.
      Dr. Murrison: I am grateful to the Minister, and her last comment that she hopes that the offences will be hypothetical was important, because I seriously believe that no charges under this provision will ever be brought. Indeed, members of the research community feel slightly threatened by the possibility of being criminalised in this way, and they need reassurance. It is also important, hypothetically, that those who seek redress should have access to the individual who is to blame. It would be wrong to make a law under which a complainant did not have someone to put the finger on, but this provision makes that possible. The Bill
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      previously failed to do so, because there would have been a defence if a researcher had not been correctly informed as to whether consent had been obtained, and nobody would have been able to be "nailed" for the offence, so to speak. The amendment will remedy that. With that in mind, I support the amendment and its consequential amendment.
      Amendment agreed to.

    Clause 7

      EXISTING HOLDINGS
      Amendments made: No. 54, in page 7, line 5, leave out
      ',other than anatomical examination'.
      No. 55, in page 7, line 6, leave out
      ', other than anatomical examination'.
      No. 56, in page 7, line 7, at end insert—
      '() Subsection (1) does not apply where the existing holding is a body, or separated part of a body, in relation to which section 8(3) or (5) has effect.'.
      No. 30, in page 7, line 8, after '5(1)', insert 'and (1A)'.
      No. 57, in page 7, line 14, leave out
      other than anatomical examination'.—[Derek Twigg.]

    Clause 8

      EXISTING ANATOMICAL SPECIMENS
      Amendments made: No. 19, in page 8, line 14, leave out '3 or'.
      No. 20, in page 8, line 14, after '7', insert 'or 10'.—[Derek Twigg.]

    Clause 11

      REMIT
      Ms Winterton: I beg to move amendment No. 71, in page 9, line 30, leave out from 'if' to end of line 31 and insert—

      '(a) it relates to the body of a person who died before the day on which this section comes into force or to material which has come from the body of such a person, and

      (b)at least one hundred years have elapsed since the date of the person's death.'.

      Mr. Deputy Speaker: With this it will be convenient to discuss Government amendments Nos. 72, 73 and 74.
      Ms Winterton: These amendments fall within the policy area of the Department for Culture, Media and Sport. Nevertheless, I am delighted to present them. In the present draft of the Bill, "qualifying museums" are excluded from the remit of the Human Tissue Authority and from the licensing regime, as it is not our policy intention to regulate museums holding human remains in the same way as tissue banks. Since we discussed the Bill in Committee, however, the archaeological community has pointed out that the Bill as drafted might criminalise the examination of excavated remains to discover the cause of death, if this were undertaken without a licence, and not for the purposes of a "qualifying museum'.

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      Determining the cause of death is an activity that archaeologists undertake occasionally, and not all archaeologists' work would necessarily be connected with the purposes of a "qualifying museum". The identification of diseases causing death may help to shed light on past human health, and the examination of fatal wounds sometimes seen on skeletons may be undertaken to shed light on warfare and violence in past societies. Under the Bill as drafted, this activity might fall within the remit of the Human Tissue Authority and the licensing regime, which could result in its coming within the scope of the offence set out in clause 22, which carries a potential prison term of up to three years if the activity is undertaken without a licence.
      It was obviously not the Government's intention that the archeological community should be subject to the regulatory regime imposed by the Bill. The Government are therefore proposing amendments that will except human remains from the licensing provisions where those remains come from an individual who dies before the new regime comes into force and where there is a gap of more than 100 years between the date of death and the undertaking of a regulated activity.
      For example, public display of a prehistoric skeleton will be unregulated whereas display of remains from a person who died six months after the relevant provisions come into force will be regulated. That includes Gunther von Hagens' plastinates. This will align the remit of the Human Tissue Authority and the licensing system with the consent requirements in part 1 and the DNA provisions in part 3.
      In the light of that, the Government are also proposing to remove the qualifying museum exemption. As we said in Committee, the vast majority of remains in museums date from before 1900. That was the basis for the qualifying museum exemption. However, if the licensing regime is restricted to activities in relation to remains of people who have been dead for fewer than 100 years, as the vast majority of the human remains in museums are older than that, the Government see no need for the qualifying museum exemption.
      Additionally, the removal of the exemption responds to representations made by hon. Members on Second Reading and in Committee that we should ensure that the display of more modern remains, and other activities undertaken in relation to such remains, should be regulated irrespective of where that takes place.
      All those amendments will impose very few extra burdens on the museum sector and will avoid the unintended imposition of regulatory burdens on activities such as archaeology. It is anticipated that the cost to licensed institutions will be proportionate to the number of remains held by them that fall within the remit of the Human Tissue Authority and the licensing regime. As museums hold few remains that are likely to fall into that category, the impact on the museum sector will therefore be very small. Licensing will be imposed only in respect of modern remains, which the Government believe should be licensed.
      We therefore propose that amendments to clauses 11, 13 and 33 be made to achieve that effect and that clause 42, which provides the exemption for qualifying museums, be omitted. I commend the amendments to the House.
      Dr. Murrison: We broadly welcome the amendments. We have all seen on our television screens the delightful archaeological programmes that deal with, among other things, debate on cause of death, usually related to mediaeval remains. In that context I am a little dubious, I suppose, about the 100 years that the Minister cites. Most remains in which we have an interest relating to cause of death, mortality and morbidity are probably a great deal older. Indeed, 100 years is not a long period in terms of people's knowledge of antecedents and so forth. So, 100 years seems a strange cut-off point and I would be interested in the Minister's explanation of how it came to pass.
      Government amendment No. 74 is also welcome, although I do not know whether it is bad form to construct a clause and then delete it entirely at this stage. It seems very strange, but I nevertheless welcome the removal of the special exemption given to so-called qualifying museums. Several of us discussed in Committee our unhappiness with various displays that we have seen recently, in particular those of Professor Gunther von Hagens involving his plastinates. At best, we can say that those offended the sensibilities of a number of our constituents. Had they looked into this matter, many of them would have been rather surprised had such displays been exempted from a measure of this sort. I am glad that that is no longer the case and that qualifying museums will be subject to the rigour of the Human Tissue Authority. That is to be warmly welcomed.
      I wonder a bit about the costs of licensing for museums. The Minister says that they will be small, but I can think of museums with reasonably extensive remains of more than 100 years old. I suspect that they are less than reassured by her comments and will be wondering what cost they will have to face, given that in many cases their budgets are not large. It would be good to have a more precise estimation of what sort of financial burden licensing will be for them.
      8.45 pm
      Ms Rosie Winterton: At this point, I cannot give the hon. Gentleman such an estimate of the cost to museums. Clearly, however, officials in the Department for Culture, Media and Sport have been liaising closely with museums, and have made it clear that there will be very little burden on the museum sector. As I said, the cost to licensed institutions will be proportionate to the number of remains held by them within the remit of the Human Tissue Authority.
      With regard to the point about 100 years, the issue is that that is in uniformity with the clauses on DNA and consent, which were designed so that there would be no living memory of patients. I hope that the House will support the amendments.
      Amendment agreed to.

    Clause 13

      LICENCE REQUIREMENT
      Amendments made: No. 58, in page 10, line 20, leave out from 'than' to second 'of' in line 21 and insert
      in the course of an activity mentioned in paragraph (a) or (b))'.
      No. 72, in page 10, line 36, leave out from `if' to end of line 37 and insert—

      '(a) it relates to the body of a person who died before the day on which this section comes into force or to material which has come from the body of such a person, and

      (b)at least one hundred years have elapsed since the date of the person's death.'.—[Derek Twigg.]

    Clause 23

      PREPARATION OF CODES
      Ms Rosie Winterton: I beg to move amendment No. 75, in page 14, line 13, after 'prepare', insert 'and issue'.
      Mr. Deputy Speaker: With this it will be convenient to discuss the following: Government
      amendment No. 25.
      Government amendment No. 26 and the following amendment thereto: (a), in line 2, after '(2)', insert '(e), (g),'.
      Government amendments Nos. 76 and 77, 27, 78 to 84 and 28.
      Ms Winterton: First, I will deal with Government amendments Nos. 75 to 84 regarding approval of the codes of practice.
      Most of the codes of practice required under the Bill are currently subject to the Secretary of State's approval and must be laid before Parliament, but there is no procedure for their scrutiny. In Committee, Members raised the issue of making those important codes subject to a process of parliamentary scrutiny, to allow an opportunity for their contents to be considered.
      We have taken note of those representations and, on further reflection, we consider that where the codes may have a significant role in the regulation of licensed activities, parliamentary scrutiny would be appropriate. We now propose amendments to provide that the codes approved by the Secretary of State should be laid before Parliament and subject to approval by the negative resolution procedure before they may be issued by the Human Tissue Authority. To achieve that, amendments are proposed to clause 23, and provision for the negative resolution procedure is introduced in clause 26.
      Government amendments Nos. 25 to 27 deal with the need for a code of practice on obtaining consent from living patients. We know from debate on Second Reading and in Committee that pathologists and researchers are anxious about what constitutes consent under the Bill, as a criminal penalty attaches to carrying on many activities without consent. Provision for the Human Tissue Authority to lay down the standards expected in relation to obtaining consent to store or use tissue from deceased persons is explicit in clause 24. The reason for that is that it is necessary to set out in the Bill that those standards must include advice on the hierarchy of qualifying relationships when consent is to be given after a person's death.
      Hon. Members may recall that amendments were tabled in Committee and that considerable debate took place about the need to make explicit the fact that the Human Tissue Authority would also provide a code of
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      practice giving guidance on obtaining consent from living patients. As presently drafted, the authority would be able to issue such a code on consent and we would expect it to do so, but we recognise the value of providing reassurance to those who are concerned about consent. We therefore propose that the Bill should make it explicit that the authority will issue a code of practice on obtaining consent from living patients.
      The amendments will achieve that, placing a new duty on the Human Tissue Authority to deal with consent in its codes of practice in clause 23, and clause 24 then sets out the particular matters that such a code must deal with in respect of the hierarchy of qualifying relations that are relevant to obtaining consent from those close to a deceased person.
      The Government are not persuaded of the need for amendment (a) to Government amendment No. 26, which was proposed by the hon. Member for Oxford, West and Abingdon (Dr. Harris). We believe that it is unnecessary because the authority can—[Interruption.] Is the hon. Gentleman not intending to press the amendment?
      Dr. Evan Harris: I was saying to the Minister that it was a probing amendment in the hope that she would explain, as she is now, why she removed the reference to clause 23(2)(e) and (g).
      Ms Winterton: The authority can issue codes of practice on whatever it thinks fit within its remit, and clause 23 requires it to deal with certain important matters. As we intend to amend that clause, it will spell out that the codes must deal with consent in respect of the removal, storage and use of human tissue from the living and those who have died, and the storage and use of whole bodies. That includes the need to obtain consent from families in order to carry out post-mortems and remove material from the body. To the extent that the matters listed in clause 23(2)(e) and (g) deal with the need to obtain consent from families, they are already covered by the Government amendment and there is no need to repeat the provision.
      Dr. Murrison: Broadly speaking, we welcome that. The need for a code of conduct on consent is acknowledged and that has to be right. We debated the matter at some length in Committee, and I am pleased that the Government have brought forward these amendments. The hierarchy of consent deals with the position of grandparents, which I also recall was debated at length in Committee. I am also pleased that Ministers have recognised the importance of grandparents.
      Government amendment No. 25 changes "relevant material" effectively to
      "the body of a deceased person, or relevant material which has come from a human body".
      Will the Minister speak to that and explain in more detail the need for the amendment, because I did not quite catch it in her remarks?
      Government amendment No. 26 and the Liberal Democrat amendment (a) thereto are a recognition of concerns expressed in Committee that consent was not a matter to which the Human Tissue Authority had to have regard. The Liberal Democrat amendment rightly

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      points out that families really do matter in the context of consent. Indeed, we debated that earlier today in respect of different groups of amendments. The point would fall quite neatly in line with Government amendment No. 27, if the Government were minded to accept it, but I understand that amendment (a) is merely a probing amendment designed to underscore the importance of families and to ask why two paragraphs were not specifically mentioned in the Government amendment.
      Government amendment No. 78 does not make sense to me, so the Minister might like to reflect a little more on the wording and tell us what the provision means. Perhaps the amendment could be changed again to reflect more closely her meaning. If the amendment to clause 26 were accepted, subsection (1) would read:
      "The Authority may not issue a code of practice under section 23 deals with a matter mentioned in any of paragraphs (a) to (c)"
      and so forth. That is a bit of a non-sequitur. Unless I am missing something, the wording does not make sense, so I would be grateful if the Minister would explain it.
      Dr. Evan Harris: I rise briefly to thank the Minister for explaining why our amendment (a) is not necessary. I also want to beat her assistant to it in pointing out to the hon. Member for Westbury (Dr. Murrison) that amendment No. 79 inserts a "that" to correct the grammar in the clause that he read out. However, I shall leave it to the Minister to say whether she feels that the meaning has been changed rightly or wrongly by the amendments. We also welcome this group of amendments.
      Ms Rosie Winterton: There seems to be some nodding from officials about the possible ungrammatical nature of the amendments, but I shall consider the issue further. Inadvertently, I forgot to cover Government amendment No. 28, which relates to a technical point about the use of the word "child" in the Bill. It was mentioned earlier in the debate and it has been drawn to our attention.
      The word "child" is variously used to mean a person under 18 years or someone's potentially adult offspring, depending on the context in which it is used. The current definition of "child" in clause 55 is a person under the age of 18, except in the list of "qualifying relationships" at subsection (10) of the clause. It is in the context of "qualifying relationships" that a person could be the adult child of a deceased person, and so able to consent to post-mortem donation. However, the term "child" is also used in the context of qualifying relationships at other points in the Bill, for example at clause 24, so the amendment clarifies that any reference to a child in that context is a reference to a person who is the offspring of another person, whatever their age. Elsewhere in the Bill—for example in the context of consent from a living person to use of their own tissue—a child is a person under 18 years of age. The amendment is simply to clarify the position in either case.
      The hon. Member for Westbury (Dr. Murrison) raised a particular point about the deceased person in amendment No. 25. The amendment extends the requirement for consent from material to the body of the deceased person, to make the provision comprehensive and so that the code will cover all situations in which consent may be required.
      Amendment agreed to.

    Clause 23

      PREPARATION OF CODES
      Amendments made: No. 59, in page 14, line 19, leave out 'conduct' and insert 'carrying-out'.
      No. 60, in page 14, line 25, leave out `conduct' and insert 'making'.
      No. 25, in page 14, line 33, after 'of', insert—
      '(i) the body of a deceased person, or'.
      No. 26, in page 14, line 44, at end insert—
      '(2A) In dealing under subsection (1) with the matters mentioned in subsection (2)(h) and (i), the Authority shall, in particular, deal with consent.'.
      No. 76, in page 15, line 9, after 'practice', insert 'issued'.
      No. 77, in page 15, line 10, at end insert—
      '() A code of practice issued under this section shall come into effect on such day as may be appointed by directions.'.—[Ms Rosie Winterton.]

    Clause 24

      PROVISION WITH RESPECT TO CONSENT
      Amendment made: No. 27, in page 15, line 14, leave out subsection (1) and insert—
      '(1) The duty under section 23(2A) shall have effect, in particular, to require the Authority to lay down the standards expected in relation to the obtaining of consent where consent falls by virtue of section 2(6)(b)(ii) or 3(5)(c) to be obtained from a person in a qualifying relationship.'.—[Ms Rosie Winterton.]

    Clause 26

      APPROVAL OF CODES
      Amendments made: No. 78, in page 16, line 15, leave out 'Where a proposed' and insert
      'The Authority may not issue a'.
      No. 79, in page 16, line 15, after '23', insert 'that'.
      No. 80, in page 16, line 17, leave out from 'section' to end of line 18 and insert 'unless—

      '(a) a draft of it has been sent to and approved by the Secretary of State and laid by him before both Houses of Parliament, and

      (b)the 40-day period has elapsed without either House resolving not to approve the draft.'.

      No. 81, in page 16, leave out line 27.
      No. 82, in page 16, line 29, at end insert 'and'.
      No. 83, in page 16, line 31, leave out from 'department,' to end of line 33.
      No. 84, in page 16, line 37, at end insert—
      '() In subsection (1)(b), "40-day period", in relation to the draft of a code of practice, means—

      (a)if the draft is laid before one House on a day later than the day on which it is laid before the other House, the period of 40 days beginning with the later of the two days, and

      (b)in any other case, the period of 40 days beginning with the day on which the draft is laid before each House,

      no account being taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.'.—[Ms Rosie Winterton.]

    Clause 29

      PROHIBITION OF COMMERCIAL DEALINGS IN HUMAN MATERIAL
      Ms Rosie Winterton: I beg to move amendment No. 31, in clause 29, page 19, line 2, leave out from beginning to 'material' and insert 'any controlled'.
      Mr. Deputy Speaker: With this it will be convenient to discuss the following: Government amendment No. 114.
      Government amendments Nos. 32 to 46.
      Government amendment No. 65.
      Ms Winterton: In Committee, hon. Members tabled several amendments that reflected the concerns of the pharmaceutical industry. The amendments and the correspondence cast doubt on whether clinical research activities, such as indemnity payments to participants in clinical trials and payments to companies that source tissue for research projects that are at present legitimately carried on for profit, would remain lawful following the passage of the Bill as drafted. In Committee, I undertook to review clause 29.
      Having examined the issue, we took the view that those concerns are justified. We understand that payments are not made in respect of human tissue itself, but that payments of the kind that I have mentioned would be within the scope of the offence as drafted. However, it was clearly never our intention to interfere with commercial activities that had been lawfully and ethically carried on for many years. We therefore propose to amend the Bill to confine the offences connected with advertising and supply of human tissue for reward to transplantable tissue only. That solution would, as we intended, extend the existing offences of commercial dealings in organs, which are transferred from the Human Organ Transplants Act 1989, to cover supply of any tissue for transplantation.
      Other amendments to clause 29 will allow for the possibility of commercial tissue banks by permitting more than just expenses to be recovered in respect of the storage of tissue and for people involved in the chain of supply of transplantable tissue to pass on costs that they have incurred. Grouped with those amendments is Government amendment No. 65, which relates to the Asylum and Immigration (Treatment of Claimants, etc) Bill. The amendment is minor and consequential and is required because that measure is ahead of the Human Tissue Bill in its passage through Parliament.
      It being Nine o'clock, MR. DEPUTY SPEAKER put the Question already proposed from the Chair, pursuant to Order [15 January].
      Amendment agreed to.
      MR. DEPUTY SPEAKER then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
      Remaining Government amendments agreed to.
      Order for Third Reading read.
      9 pm
      Ms Rosie Winterton: I beg to move, That the Bill be now read the Third time.
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      In Committee and today during Report, we have given the Bill very detailed consideration, and I hope that hon. Members and others who have shown keen interest in our deliberations will agree that we have been able to refine it in ways that will ensure that it is not only welcome and necessary—as I believe it is—but also workable and pragmatic. I am grateful to Members on both sides of the House, especially to the Members of the Committee, for the warmth with which they received the Bill, and for the unfailingly constructive way in which they have engaged with it.
      I am particularly grateful to the Under-Secretary of State for Health, my hon. Friend the Member for South Thanet (Dr. Ladyman), for the help he gave me during Committee. He made several memorable comments that will be written into the Bill's history, because he brought to our discussions his particular expertise. I also thank officials for their help and I hope that Members on both sides of the House felt that that help was extended to them, too, and that we achieved consensus on the Bill and managed to reflect the views of stakeholders and others with a keen personal interest in the measure.
      The process of preparing the Bill and of bringing it through the House has involved consultation, consensus and co-operation. We have been able to discuss it—I hope openly—not only with MPs but with family groups, researchers and other key stakeholders. We have had the opportunity to listen and have been able to make improvement;, which will, I hope, like the principles of the Bill, receive broad support.
      In that respect, the Bill's progress has been a happy experience. But all Members will agree that what never left our minds was the appalling experience, suffered by far too many people, that led us to the awful realisation that practice in post-mortems and in tissue use had become far out of step with the public's expectations. As we said earlier, the former Secretary of State for Health, my right hon. Friend the Member for Darlington (Mr. Milburn), announced in January 2001 publication of the report of the inquiry into the Royal Liverpool children's NHS trust—the Alder Hey report—and of the report by the chief medical officer on the retention and use of tissue and organs. It is now a little over three years since that happened, and the House is ready to send to another place the Bill that has resulted from that review. Many people might say that that has taken a long time, but we have been dealing with complex. sensitive and, sometimes, very fraught issues. We have achieved a lot in drafting the Bill, and I am glad that, in the end, it has enjoyed support from hon. Members on both sides of the House.
      Dr. Murrison: The Minister rightly determines that the Bill's provenance lies in the events at Alder Hey. Will she also record that, before those events, the tragic events at the Bristol royal infirmary gave rise to the revelation of what was going on at Alder Hey? It is important to record, especially for those who have been distressed by them in the south-west, that the events at the BRI gave genesis to the Bill.
      Ms Winterton: Of course, and as the hon. Gentleman knows, I referred to that fact earlier in my contributions. I should like to refer not only to the Bristol inquiry report in 2000, but, of course, to the Isaacs report, which

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      gave rise to the realisation that the uncontested retention of tissue from adult post-mortems was also a widespread practice.
      What happened as a result of those terrible tragedies was not only a source of enormous distress to the families who were affected by those events, but has produced in recent years a loss of confidence and, for many, a diminution in their trust that science and medicine would respect people's interests and act only for the best. That, too, is a tragedy, as it is only with trust and confidence that we can truly progress with the important research that will support further advances in medicine. That is why it was so important in drafting the Bill that we were able to come up with proposals that will go a long way to restore that trust and confidence. I believe that they will succeed.
      I have certainly met—I am sure that other hon. Members have done so—bereaved families who are still shaken by the experience that they went through, but who have been determined to play their part in helping to produce legislation that they accept will not help them but that they know will help others in the future. Their role, quite frankly, has been invaluable, and their generosity should not go unmarked today. Many in the health community have also shown remarkable commitment to and support for this reform.
      In Committee, hon. Members expressed reservations about some of our proposals, but I am glad that we have been able to work with them to include some necessary safeguards, so that the research that they were concerned about can be carried on.
      The Bill will provide the clarify to enable people to act and the oversight to ensure confidence. It will establish a regulatory framework with a Human Tissue Authority, so that oversight and monitoring of the new arrangements can take place. Moreover, the new authority will also be the source of advice, information and guidance that will enable people—the public and professionals—to understand fully what their rights, responsibilities and options are.
      Mr. Lansley: Since we were in Committee, the Secretary of State has announced a further stage of his review of arm's-length bodies and, since the abolition of the Retained Organs Commission, the Human Tissue Authority has been included in his review. What intentions does the Secretary of State have towards the HTA under that review?
      Ms Winterton: The HTA comes under the scope of the review, and that fits in with the spirit of the amendments that were proposed in Committee and that we have accepted today. We want to make sure that there is no duplication in any of the work of the arm's-length bodies, and we want to examine where it might be appropriate to put different arm's-length bodies together. However, no decisions have been made and announcements will be made shortly about that. I assure the hon. Gentleman that our vision that the authority will be independent and made up of experts and others who have an interest in the subject will be preserved.
      Mr. Lansley: We observed in Committee that the structure of licensing intended for the HTA is very similar to that for the Human Fertilisation and
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      Embryology Authority. Although the Secretary of State may not have framed it as such yet, if it is his intention to combine the work of the HFEA and the HTA, it would be certainly be advisable to say that before asking the other place to consider the matter in detail.
      Ms Winterton: I will certainly pass on the hon. Gentleman's advice.
      The Bill now provides the clarity to enable people to act and the oversight to ensure confidence but, most of all, it represents a move into the future. That is a future in which the relationship between patients and professionals has been redefined for the good of each and to the benefit of us all. For those reasons, I commend the Bill to the House.
      9.12 pm
      Mr. Lansley: I am grateful to have the opportunity to say a quick word on Third Reading. I am sure that the House will join me in thanking the Minister and the Under-Secretary of State for Health, the hon. Member for South Thanet (Dr. Ladyman), for the way in which they have conducted proceedings on the Bill. It is not a routine commendation to say that the Bill has been debated in good humour; that is true not least because of the Minister's approach to these matters.
      It is not easy for a Minister to navigate from the position that she and the Under-Secretary took in Committee on some of the amendments to the points that they have made on Report. She has managed to do that without the remotest sign of embarrassment, which is commendable and bodes well for her future ministerial career.
      Like the Minister, I want to thank others, not least my hon. Friend the Member for Westbury (Dr. Murrison). He has done, as they would say in the trade, the heavy lifting on our side. I am acutely conscious that, whereas the Minister has no medical qualifications but has the benefit of advice, I have no medical qualifications and relied heavily on my hon. Friend's advice. The Committee also benefited from the contributions of the hon. Members for Oxford, West and Abingdon (Dr. Harris) and for Wyre Forest (Dr. Taylor). That is an illustration of how we can bring together in the House a degree of expertise and a degree of ignorance and combine them happily.
      A number of the issues that we raised on Second Reading just over six months ago have now been taken on board. I shall not repeat everything that I said when I spoke to the first group of amendments, but as I said to the Minister before Second Reading, the Bill should have been committed to a Special Standing Committee—it was a great pity that that did not happen—so that we could take evidence, even if there had not been full pre-legislative scrutiny.
      It was amply illustrated in Committee that hon. Members, including my hon. Friend the Member for Westbury and me, were putting forward well-argued points made by outside organisations such as the Medical Research Council, the Wellcome Trust, the BioIndustry Association, the British Medical Association, organisations representing the family

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      support groups and the National Committee Relating to Organ Retention. Those outside bodies used us as a mechanism to make points in Committee, but although we put their proposals on the table before Ministers we got limited shrift, as the hon. Member for Oxford, West and Abingdon suggested. However, our persistence seems to have paid off, so we can give thanks to those groups and the departmental officials for working together since the Committee to allow us to reach a more satisfactory conclusion today.
      Several improvements have been made to the Bill as a result of that process. We debated widening the scope of education and training—I gave an example regarding cervical smears—and the Bill has been amended to reflect our concerns. The situation regarding the tacit consent involved in retaining residual tissue from living persons was mentioned as far back as Second Reading. We talked in Committee about the need to protect clinicians and researchers from risk if they obtained material without consent although they thought that that had been given, and I am glad that the Government have responded to our points. We suggested in Committee the requirement for regulatory best practice to cover the Human Tissue Authority, and the Government have accepted our point. We argued in detail in Committee about the requirement for codes of practice to deal with consent more explicitly, and although the Government resisted our suggestion at the time, they have now accepted it. We talked in Committee about the risk that commercial undertakings engaged in legitimate work connected with research could be criminalised as a consequence of the provisions in clause 29 on commercial trafficking, and the Government have now accepted our arguments. We had one success in Committee when the role of grandparents was recognised, although I suspect that the Minister could not think of an argument against our suggestion then because I dare say that she would have decided to go away to think about that, too.
      We have made a lot of progress, so that should give a greater sense of security to those in the medical and research professions. We have tried to minimise the risks that they will face individually due to the creation of the criminal offences and the burdens that they will face collectively when trying to undertake successful research. Although a lot of our discussion in Committee and on Report was geared up to striking such a balance for those people, the Bill still provides the families who suffered from the unauthorised, and sometimes malign, retention of organs and tissues with an expectation that such things will not happen again.
      The Minister and my hon. Friend the Member for Westbury mentioned the Redfern report on Alder Hey and the report on the Bristol royal infirmary tragedies. Those reports disclosed several specific incidents that occurred and the clandestine nature of the way in which tissues and organs were retained at Alder Hey. Many of us were disturbed that the reports exposed a culture in the NHS of retaining organs and tissues that often did not comply with the consent requirements in the Human Tissue Act 1961. Sometimes there was a patronising
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      assertion that it would be better not to tell people and that what they did not know would not hurt them. Well, what they did not know did hurt them, and hurt them very deeply. It is absolutely right that, as the Minister said on Second Reading, that must not happen again.
      We may be about to complete our consideration of the Bill, but it has to go to another place. Ministers may be tempted to assume that, given the positive reception that all the amendments considered today were given, it is the end of the story. There is one thing that I must raise in addition to the future of the Human Tissue Authority even before it is to be established.
      Clause 9 relates to the position of coroners. It will not have escaped the Minister's notice that, in some instances, the tragic circumstances that gave rise to the necessity for this legislation included occasions on which post mortems had been carried out by or on behalf of the coroner, The case of my constituent, to whom I referred on Second Reading and whose circumstances were reported on in detail in the Isaacs report, resulted from a coroner's post mortem. My constituent can hardly feel the security about the future that she wishes to feel if the Bill simply says that anything done by or on behalf of the coroner will not be affected by the legislation and the issue is to be followed up by the Home Office at some future point.
      Ms Winterton: The hon. Gentleman is right to raise the issue. As he knows, the Home Office is responsible for the coroners' rules, which set out among other things the duties respectively of coroners and of pathologists undertaking post mortems on their behalf. The Under-Secretary of State for the Home Department, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins), wrote to me on 22 June confirming that the rules will be revised as soon as is practicable and at the latest by the end of the year. They will be revised so that it is clear to coroners and pathologists when the coroners' jurisdiction has expired, who must communicate with families about tissue retention and when they should do so. I assure the hon. Gentleman that Home Office and Department of Health officials are and will remain in close touch on that issue.
      Mr. Lansley: I am grateful to the Minister for that intervention, because it adds substantially to the point relating to coroners. I was suggesting that there was a serious deficiency. Although I have not had a chance to look at precisely what the Minister said, I think that my noble Friends will want to explore the point when the Bill reaches another place. I hope that the Minister and her Home Office colleagues will be in a position to expand on that. It was clear in Committee that, although activity carried out ultra vires by coroners or on behalf of coroners will be subject to the Bill, the matter is not confined to coroners' statutory obligations. It includes non-statutory obligations, and therefore, the scope of coroners' rules is the critical issue. I am sure that, in order to be confident that the Bill and the rules fit together to provide the necessary security for patients and families, my noble Friends will want to know more precisely what the rules will look like if they are to be amended later this year.

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      With those points that I have raised with the Minister, I echo my thanks to my colleagues and others for the way in which our discussion has been conducted. I hope that my noble Friends do not find that we have erred in our consideration in this place.
      9.24 pm
      Dr. Evan Harris: I want to start by referring to the Alder Hey and Bristol tragedies. They were the genesis of the Bill, and it is right that we remember that. Despite our heated debates about transplantation and presumed consent today, there is no doubt that significant damage was caused to families not only at those two hospitals but, as we discovered, at hospitals throughout the country. I hope that those families will take some comfort from the fact that a good Bill is now leaving this House in a decent state. They were the inspiration and, in some cases, the driving force behind putting the legislation right and recognising the need for a modern approach to the way in which the health professions and the NHS deal with the living, and with the dead and their organs. The key lesson is that although sometimes the professionals' sincere desire was to protect families from too much information, we have to beware the danger of paternalism and of acting against people's interests, their autonomy and their right to make decisions. The medical profession in particular must be wary of that, given the power relationships that arise from technical expertise and knowledge. In that respect, the Redfern report and the Bristol inquiry report were seminal and very useful in getting us to this point. The new framework, in which we have—rightly, I think—avoided putting consent on a statutory footing, but created a new statutory basis for dealing with such issues none the less, will be useful.
      There is another side to the issue: the continuing ability of health professionals and medical researchers to do their job. I have always made clear my family connection in that my father was for many years professor of child health at Alder Hey and was, before leaving, involved in the appointment procedure for Professor van Velzen. In that respect, he was mentioned in the Redfern report. I do not think that that report was handled entirely satisfactorily: everyone mentioned in it who bore the title "doctor" was referred to the General Medical Council, including non-medical people for whom GMC was not responsible. My father was found to have no case to answer before the GMC. I hope that the Government recognise that a balance has to be found between the effective conduct of health care and medical research and the prime need of patients and families to have their autonomy respected.
      There is an ongoing problem with the number of people who are willing to enter paediatric pathology. We have to deal with that problem. The measured tones of our debates have helped, given that there was an opportunity inadvertently to make the problem worse. The coverage of allegations surrounding child abuse and cot deaths show that paediatricians continue to receive adverse publicity, especially those working in the difficult field of child protection. We have to bear in mind that, whatever the drawbacks and problems we have encountered, the situation would be much worse without health care professionals practising in these difficult and often unrewarded fields. There is little, if any, private practice in paediatrics and in that type of research.
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      I endorse the observation made by the hon. Member for South Cambridgeshire (Mr. Lansley) that pre-legislative scrutiny of the Bill would have been extremely useful. The Minister of State says that Committee stage is scrutiny and she feels that there is nothing wrong with that, but it is not ideal, because one has to discuss the issues in a confrontational setting—even though we managed to do so politely and graciously—and, if messages are understood, they are taken away to a dark hole and new amendments emerge on Report. In contrast, pre-legislative scrutiny, especially if it had involved some form of Select Committee, would have allowed the representations that the Government heard, and to which they responded, to be made in the open, and our Standing Committee would not have had to dwell on some of the points that have now been corrected. I think that all members of the Committee can take some credit for the improvements to the Bill that were made at that stage. I remember suggesting that the use of anonymisation might be a way forward for research, to varying degrees of shrift, and that education and training might not necessarily be seen as they were originally. Many suggestions were made by the hon. Members for South Cambridgeshire, for Westbury (Dr. Murrison) and for Wyre Forest (Dr. Taylor), which have seen their echoes in Government amendments. I now want to mention two forty-fours.
      Clause 44 is important and should not be overlooked. It provides an opportunity for us to set clearly the rules for cold perfusion, and use non heart-beating donation as a way to increase the number of organs that are available from that source. That has not had the attention that it deserves because the issue was not that contentious, but it may be significant. It is one of three sources, including live donations, from where we would hope to get more organs.
      Government amendment No. 44 has, as it were, dropped off the Amendment Paper. I think that it read "leave out from 'beginning' to 'and'" in clause 29. By sheer luck, I spotted that it should have read "from 'beginning'"? to the second "and". I am sure that when the last group of amendments was moved, when the guillotine fell, the Minister was about to thank the Liberal Democrats for pointing out that new amendment No. 114 was required, to which the Secretary of State put his name, to make the provision robust so that we could send the Bill to the other place—
      Ms Winterton: I can confirm to the hon. Gentleman that I was about to thank him. It was helpful.
      Dr. Harris: I remember that when I asked my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) during the passage of the Greater London Authority Bill, which contained hundreds of clauses, whether he had had any successes in Committee, he said that he had inserted one comma, and that he felt that that was a great victory.
      There is the issue of DNA and RNA. I feel guilty for the lack of attention that I paid to molecular biology when I was at university. I was out campaigning—rather hopelessly in those days—for my party. The Minister said that she would look again at whether the provisions for DNA and RNA need to be re-examined; I hope that I shall be able to wave that as a sign that I was awake at some stage of my training.

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      Consideration of the Bill in Committee was enjoyable. The Minister is able to say no so nicely. In contrast, her colleague, the Under-Secretary of State for Health, the hon. Member for South Thanet (Dr. Ladyman), says no rather less nicely but still in an engaging way. I think that we learned in Committee that all parties were in favour of grandparents. I expect that we shall see a commitment to have more grandparents in all our manifestos.
      I thank the hon. Member for Wyre Forest, my consultant, for the advice that he gave me, which was in much more moderate terms than my consultants used to give me when I was a junior hospital doctor. I thank also those organisations that took the time to brief us, and my researcher, Laure Thomas, for her sterling efforts.
      The hon. Member for South Cambridgeshire said, importantly, that the Government were keen to ensure that the Bill went to the other place with no threads hanging, because the Lords would not be able to resist the temptation to pull them. The Government have done well to cram in so many of their amendments tonight. After all, who knows what the other place would have done on these issues?
      We will not all agree, but I think that there is some unfinished business on transplantation. It may be that we shall not be able to make progress on presumed consent with this Bill. However, Ministers should know that the issue will not go away. It is an important Bill and I am glad that it has left the House in its present state and not so much in the state that it came before us in Committee. The Government should be congratulated because broadly the structure is the same. Broadly, the Bill commanded cross-party support
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      throughout, and that is indicated by the fact that none of us anticipates a Division on Third Reading, and rightly not.
      Question put and agreed to.
      Bill accordingly read the Third time, and passed, with amendments.

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

    STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES
    That this House takes note of European Union Document No. 15185/03, draft Council Regulation amending the Staff Regulations of officials and the Conditions of Employment of other servants of the European Communities; supports the Government's view that this is a major step in the Commission's reform programme in establishing a modernised human resources policy for the European Union institutions; and welcomes the adoption of the new Staff Regulations in promoting merit, efficiency, staff development and providing for significant long-term savings in the European Union budget.—[Mr. Ainger.]
    Question agreed to

  DELEGATED LEGISLATION
  Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6)(Standing Committees on Delegated Legislation),
  DELEGATED LEGISLATION

    POLICE
    That the draft Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2004, which was laid before this House on 27th May, be approved.—[Mr. Ainger.]
    Question agreed to

  Planning (Sedgemoor Group)
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. Ainger.]
  9.35 pm
  Mr. Stephen O'Brien: I and my constituents are pleased that through your good offices, Mr. Speaker, I have the opportunity to raise issues that are causing real concern—damage to property, the use of police time and, at times, fear of the threatening and abusive behaviour of a very small number of young teenage boys in the rural and village communities in the Eddisbury constituency.
  The full title of the debate—"The Operations of the Sedgemoor Group and the planning system"—indicates why it is important and appropriate to air these matters on the Floor of the House. I have been in touch with the Minister and his office today in advance of the debate, so the right hon. Gentleman is aware of the key planning issue that arises concerning Government and his departmental responsibilities.
  Let me give some background. Like many other constituencies, the Eddisbury constituency in south and mid-Cheshire is characterised by a large number of people living in rural and partially rural communities, with one large conurbation—in Eddisbury's case, Winsford. The parliamentary constituency boundary encompasses parts of three local planning authorities, which inevitably leads to disparities. Those authorities are Crewe and Nantwich borough council, Vale Royal borough council and the Chester City district council.
  Although the fear of crime has escalated in rural communities in particular over recent years, the actual statistical experience of crime in those communities, from a relatively low base compared with most urban and suburban environments, does not necessarily reflect rising levels of petty crime and antisocial behaviour, as much of that goes unreported. In this context, I am glad that in Cheshire we have a welcome commitment from the chief constable to seek to increase the presence of police constables in our rural communities. Even though that is happening at a slow pace, communications between the police and those communities have been improving.
  Against this background, in Eddisbury we have the operations of a private sector provider of homes and educational services for some of the most challenging, difficult, often damaged and vulnerable young people in our society, almost invariably from outside our local area. Sedgemoor College Ltd., based in Somerset, is the parent company of a group of companies that provides these facilities in Cheshire, notably in Eddisbury, and in other parts of the country. Its operations are regulated by the Commission for Social Care Inspection, which replaced the National Care Standards Commission on 1 April this year.
  Sedgemoor's business is to buy or, not infrequently, to rent residential dwelling houses and place in them, say, four young people and two adult carers—in any event, no more than six people per home. The demand for this type of business has grown in response to the Government's inclusion policies and the closure and reductions in public sector-provided care homes, such as the closure, under the previous Labour/Lib Dem
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  administration at Cheshire county council, of Brook Farm school in Tarporley in the heart of my constituency. The school catered for both residential and day pupils with emotional and behavioural difficulties. Despite my and many others' long-fought campaign to keep it open, in the end we secured only a stay of execution for a year. It was a facility supported and welcomed by the Tarporley people in their community and it still, sadly, lies empty and unused.
  The children with whom we are concerned are typically boys in their early to mid-teens who have been through a series of support channels and processes in or near the original family home. When local options have failed and their behaviour has not improved as a result of these earlier interventions, or where, sadly too often, their own family context is the cause in whole or part of the youngsters' behavioural problems, but where matters have not reached the point of a conviction carrying a custodial sentence or where that has been served, the boys are placed by the social services departments of the local authorities in their original home area in Sedgemoor-type care homes outside their original area, on a contract with a provider such as Sedgemoor. I am informed that that costs the local council tax payer in the original district approximately £2,000 a week, or about £100,000 to £120,000 per pupil per annum. Not surprisingly, such companies are showing successful financial returns.
  Before I proceed further, I want to make it crystal clear, given the understandable sensitivity of the subject, that neither I nor anyone I represent in Eddisbury is arguing that we should not all continue to have the interests of children, however difficult and disruptive, as the highest priority. The issue is the appropriate care, security, nurturing and opportunity, including social and educational opportunity, for them. That support and provision should not, of course, be at the expense of the peace and freedom from fear of the law-abiding people in the communities where that care is provided.
  Although the quality of care and supervision of those homes is an issue, it is not central to this evening's debate. But let me put it on record that it is not enough just to say that there are qualified carers in the homes. Carers must be of suitable calibre and have the personality, experience and authority that can effectively foster, guide and, yes, control those troubled youngsters in the context, as an experienced and talented social worker said to me last Friday, of a range of provision, only part of which, whatever the merits of the inclusion agenda. can be the sort of open homes that I have described. Where such homes are put into rural communities, it is incumbent on the provider, at all its levels, to generate through prior consultation and local communication licence to operate, just as every other private sector company has to do.
  Some assert that revealing the names of the homes could put the children at risk. Frankly, that is unrealistic. Local communities always come to know of such homes rapidly, even where they are established without a public planning process, not least because of increased police attendance or an upsurge in local antisocial behaviour by teenage boys who are not known to anyone locally. In any event, secrecy and lack

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  of transparency and accountability raise suspicions in the local community, so they are deeply counterproductive.
  Given that the law prevents such youngsters from being locked in their home, wardens can only seek to warn or follow them when they go wandering out into the local community. An inordinate amount of police time is taken up in searching for missing youngsters from the homes. About four hours is taken for every incident. Amazingly, it has been suggested to me that, because these children need care, I should not be raising these issues. If I did not do so, I would be giving in to a form of emotional blackmail and not doing my representative duty.
  I believe that Sedgemoor has five current operations in my constituency. Some are residential homes and others are educational facilities that are attended daily. They are at Beeston, near Bunbury, Wrenbury, Newhall, Rushton and Audlem, which are all small rural and village communities. Sedgemoor has informed our local police that, until recently, when so much public attention started coming its way, it was seeking to expand in Cheshire, and especially in Eddisbury. Two or maybe even three applications for new facilities have now been withdrawn following local pressure. I pay tribute to Chester city councillor Neil Ritchie, to Crewe and Nantwich borough councillor Brian Dykes and to the evidence given by local people living near existing Sedgemoor facilities.
  I have a burgeoning file of complaints—it is sitting here on the Bench next to me as evidence—and police reports, allegations and evidence about smashed car windows, threatening behaviour, broken house windows, road sign vandalism, damage to gardens and fences and provocative disturbances that often occur late at night and into the early hours, much of which I have passed to the local authorities, the police and the Commission for Social Care Inspection.
  In all cases of applications or incidents, I have taken up the issues with the relevant authorities and the police have been concerned and attentive. That includes the personal interest of our chief constable, Peter Fahy, to whom I also pay tribute, not least when he joined me in a meeting with local representatives to discuss these issues on 23 April. Tonight's debate reflects one of the conclusions of that meeting, which was attended by 50 community representatives from across my constituency.
  Naturally, I have raised my concerns with Sedgemoor directly, not least with one of its directors when they participated in a lobby of Parliament initiated by the Association of Independent Child Care providers to complain about the eightfold increase in stamp duty land tax, about who inspects the inspectors and about other matters dealt with in the Children Bill. Sedgemoor now says that it has removed one or more of the most recalcitrant children from the homes that have been affecting and blighting local communities in my constituency.
  While all those things rightly raise issues as to the appropriate national policy and the most effective way of during for and rehabilitating these young people, the thrust of the issue for the Minister is the planning system
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  that applies to such homes. If an educational establishment is proposed, an application will be required, unless the building is already permitted under the C2 use class to be used in that way. If the proposal is to establish a residential home for these young people, the precedent is less helpful. The needs of the community can be addressed only providing that there is prior knowledge and scrutiny of any proposal for such a home. That is not available if specific planning permission in a public forum is not required.
  The easiest way to highlight the problem is to quote the official responses that I have received from Crewe and Nantwich borough council. On 17 March, in reply to a letter from me, the chief executive, Mr. Alan Wenham, said:
  "The Council has recently had to deal with a number of planning applications submitted by Sedgemoor college. They have largely been applications for Certificates of Proposed Lawful Development to use an existing dwelling to house up to 6 people—normally 4 children and 2 carers. The Authority has been powerless to do anything other than grant the certificates, because the Use Classes Order accepts that where up to 6 people live together as a family (whether or not they are related), there is no change of use.
  The certificates have been issued in the knowledge that the occupants of some Sedgemoor College properties have caused problems in their local areas, resulting from noise, disturbance, vandalism and general anti -social behaviour. Local residents have naturally been concerned that the establishment of care homes would undermine their quality of life. However successive planning inspectors on appeal have taken the view that whilst the fear of such behaviour is a material consideration, it should not be a determining factor in making the decision.
  The homes work within a framework established by the National Care Standards Commission and it is understood that if there is a problem with the operation of a particular home, the Commission has the power to close it."
  After receiving that letter, I submitted an extensive bundle of legal precedents compiled by Councillor Ritchie, and received a further clear and helpful reply from Mr. Riddell Graham, executive director of legal services and solicitor to the council of Crewe and Nantwich borough, which encapsulates the planning problem. I shall quote relevant extracts from that letter, in which Mr. Riddell Graham restates his chief executive's comments and examines the precedents in helpful detail:
  "First, as of course you will appreciate, there are some situations where planning permission is not required at all. So a planning application is not needed and the grant of a permission or refusal does not arise. Two of these situations are particularly relevant to this issue. One is where a proposed new use falls within the same use class as the existing use. So, for example… if a building is used as a dwellinghouse for a family living together and someone wants to use it for up to six residents living together as a single household, then permission is not required, since both uses fall within class C (3) of the Use Classes Order 1987. A second situation where planning permission is not needed is where there is no material change of use. 'Material change' is only defined in a limited way in the planning acts although widely considered in decided appeals and cases. The governing factor is a comparison with the previous use of the land or building and this will always be a question of fact and degree— The most relevant case which Councillor Ritchie provided is the North Devon case"—?
  I can give the Minister the details—
  "which illustrates these matters very well. There, the applicant, (an operator of registered children's homes) asked the planning authority for a Certificate of Lawful Development for a three bedroomed semi-detached house in a residential area used as a dwellinghouse (Class C3). The applicant wanted the Authority to

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  agree that there was no change of use because its proposal still fell within class C3, albeit a different section, namely C3 (b) i.e. a dwelling house used by 'not more than six residents living together as a single household (including a household where care is provided for residents)'. If there was not change of use class, planning permission was not required. The High Court said there was a change of use class. The judge decided that the residents, on the facts, were not living together as a single household. However, he went on to decide that, even though there was a change of class, there was no material change of use, so planning permission was not needed."
  Mr. Riddell Graham's long and helpful letter concludes with the following summary:
  "while I understand the points Councillor Ritchie is making, I take the view that the cases he mentions tend to support, rather than detract from, this Council's approach. I do not suggest that this is necessarily a satisfactory state of affairs, although it is the case that small group homes, rather than large institutions, play an important role in the Government's community care policy.
  Ultimately, I suppose, the acceptability of these changes depends on how well-run the homes are and whether the Use Classes Order, approved by Parliament in 1987, is still relevant in today's circumstances."
  That is the nub of the issue.
  The report of the planning officers on the application in Tilston in my constituency, which has since been withdrawn, reveals that once an area is found—in that case, by Sedgemoor—a clustering programme is often applied to enhance the geographical proximity of the operations. No doubt that is a commercial driver, but it is hardly likely to enhance community consent, not least because of the shared information that rapidly travels across any constituency.
  The planning document states:
  "Local concerns have been raised about the location of the application site. It is not disputed that the site is within a rural area. Many local residents have expressed the view that this is unsuitable given the almost complete absence of local services and facilities, particularly relating to social outlets of the kind that are attractive to boys within the proposed occupational age range of 11–16 years. The procedure for selection of such properties is by assessment of geographical proximity to the residential units operated by Sedgemoor College in which the young people reside."
  The document goes on to discuss the need for particular types of education:
  "The pupils would originate from outside the County, but would reside within Cheshire to attend this proposed education establishment… Sedgemoor College operates over 80 residential/educational establishments nationally, very many of these being located in similar rural locations."
  The real issue however is the apparent intent of Sedgemoor in view of that planning position. I shall quote a letter dated 22 November 2002, from Mr. John Watts of Olorun Planning Partnership Ltd. to Mr. Jon Swift at the Sedgemoor head office. It relates to an application in another area but was used in attached papers in a submission to Crewe and Nantwich borough council concerning an application that we have reason to believe has since been withdrawn in the light of all the public focus in my constituency over recent weeks and months. The letter states:
  "I attach a letter dated 19 November 2002, from the Bassetlaw District Council, confirming that the use of this property as a Children's Home falls within Class C3.
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  This response repeats that of East Northamptonshire Council with S'Amagatai"—?
  the name of the house, I think—
  "at Rushden. Hopefully, with these two responses 'under our belt' we can conclude that we have achieved what we set out to do. Removing the need for planning applications (including Certificates of Lawful Development), thus removing Sedgemoor's use of dwelling houses as children's homes from the public attention they usually attract. Perseverence does have its rewards!
  With the success of these two results, it is probably safe to conclude that I have now established a straightforward 'formula' by way of a relatively standard letter to planning authorities for the use of a dwelling house as a children's home (not exceeding 6 children).
  Please let me know if you would like me to repeat this 'formula' with future properties."
  I leave that on the record as apparent evidence of concern about the approach to this process and the need for transparency and prior open and public consultation to ensure that communities are encouraged to enhance their understanding and thus their approach to welcoming, we would hope, such homes into their communities. If that is not undertaken, it is likely than an initial hostility will be created from which it is almost impossible to recover, giving rise to a serious challenge not only to the children's interests, but to the whole inclusion agenda.
  There is one final caveat. Where these use classes were last looked at, there was concern that if the sixth person in residence quasi-family rule was changed, that might preclude or diminish a small care home for the elderly. That is a fair concern. I call on the Minister to consider the growth of such facilities for young people, be they by applications or certificates of lawful use. Until he and the Government have had the chance to review the position, with a view, I hope, to redesigning and redefining the Use Classes Order specifically to deal with the accommodation of these young people, a condition and qualification should be made to define that by reference to an age range—say, under 20 or even lower—to ensure that the provision of small care homes for the elderly is not adversely prejudiced, given the crying need for the expansion of that provision.
  I am grateful to the Minister for listening carefully to my submissions on behalf of my constituents. In looking forward to his reply, I have to say that I note with some dismay the e-mail that I received today from Councillor Brian Dykes of Bunbury, whom I had e-mailed to tell him that I had, with great gratitude, secured this debate. He says:
  "In reply to your e-mail all had being going well until Friday (last) 25 June when here in Bunbury problems arose again these started at around 6.30pm, with damage to motor cars and broken household windows this also happened again on Saturday and Sunday evenings, the police have been informed and have attended"—?
  the particular place near Bunbury, as well as a place at Rushden—
  "to speak to the young boys concerned.
  It does appear that after all our problems the boys are still having freedom to roam our villages and return when they wish which appears to be after midnight and a night of trouble. With the still added problem that the staff at these homes are not showing any authority with the boys and allow them to 'come and go as and when they wish.'"

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  He then wishes me every success in the debate, saying:
  "we really do need extra strong support in ensuring these homes are run correctly or, sadly closed as one may say."
  Will the Minister give an undertaking to consider the matter urgently and, in particular, to reflect on this aspect of planning law? That would give us an early chance to have the necessary prior consultation and to examine the appropriateness of providing care in such communities.
  In considering planning law, the regulations and the guidance, I ask the Minister to consider the following specific issues: the definition of family for the use classes order of 1987: the introduction of a separate, defined use class under the order for children's care homes, with an age stipulation to avoid unintentionally affecting care homes for the elderly, and a moratorium on permitting any more such orders or, when permission is not required, on the issue of certificates of lawful use until the conclusion of the Government's reflections on this evening's debate. I hope that they will make a further determination to recast the definitions to achieve what I have suggested.
  Given the arguable absence of a requirement for even the certificates, I hope that the Minister will at least consider favourably giving guidance to local planning authorities, the police and local social services departments, and advice to the Commission for Social Care Inspection, that no more such homes be established until the Minister has had a chance to reflect. That would inject the necessary engagement into the debate about the conditions and context in which such care is offered and made available to local communities.
  I emphasise again that there is genuine anxiety among local people where the homes are based about the behaviour and conduct of the children and the planning requirements for opening new homes. Although we all have a deep concern and interest in ensuring that the young people are given proper care, supervision, security and the chance to be rehabilitated, it is the duty of those who run the homes and receive large sums of taxpayers' money through social services departments throughout the country to ensure that they are properly managed and that the understandable anxieties of local people are addressed.
  I believe that my proposal provides a constructive way forward for the Government, elected representatives at all levels of our democracy, the people and the communities that we represent, the police, the planning officers and authorities, social services, the care home providers and, above all, the children, who are often the most scarred and vulnerable but none the less threatening in our communities.
  9.56 pm
  The Minister for Housing and Planning (Keith Hill): I congratulate the hon. Member for Eddisbury (Mr. O'Brien) on securing the debate and providing the opportunity to discuss the Sedgemoor Group and the planning system, especially the operation of the use classes order, Class C3.
  I appreciate the concerns of the hon. Gentleman's constituents about the matter. Indeed, as a constituency Member of Parliament I experienced similar issues in
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  the mid-1990s and I raised them in more than one Adjournment debate. I am sure that the hon. Gentleman agrees that it was a positive move by the Government to bring such small children's homes into a regulatory framework.
  I understand that the Sedgemoor Group's business centres on providing child care, namely education and residential care, for children and young people. The group currently has an extensive range of satellite houses, each accommodating between two and four young people of the same sex. The satellite staff teams are managed and supported directly by qualified senior care managers.
  It goes without saying that our children and young people deserve the best possible start in life. They need a caring and nurturing environment that helps them to value themselves and their community. I hope that that will be provided in caring and loving homes. Unfortunately, some children and young people have complex needs that families are unable to provide. Some need to be looked after because of family breakdown and others need to be looked after for their own safety. We as a society need to help those children and young people. The Sedgemoor Group looks after some of them.
  Given the nature of the group's operations, especially its close involvement with young people with various forms of difficulties and complex needs, there is a possibility of problems arising in the integration of children and young people in the local community. That has evidently occurred in the hon. Gentleman's constituency. That is clearly regrettable and creates the need to seek solutions to the problems. However, before I consider planning issues, I want to refer to other possible recourses in dealing with those problems.
  The Commission for Social Care Inspection is responsible for registering and regulating residential care providers, including children's homes. The commission issues the certificate of registration and, as part of that process, homes are inspected at least twice a year with one announced and another unscheduled visit. If local people are worried about the operations of the homes, they should contact the Commission for Social Care Inspection, which is required to examine the issues raised. However, it is obvious that the police also have an important role to play and they should be contacted if residents have concerns about the homes and the behaviour of the youths who are resident in them.
  It must be clear to everyone that swift and effective action will be taken against unacceptable behaviour, and that rowdy and nuisance behaviour must be stopped immediately. One way of doing that might be to agree an acceptable behaviour contract. That is a voluntary agreement designed to engage an individual in acknowledging his or her antisocial behaviour and its effect on others, with the aim of stopping that behaviour.
  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.—[Vernon Coaker.]
  Keith Hill: We also introduced antisocial behaviour orders in 1999, and have recently legislated to improve their effectiveness in the light of the experience of their

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  operation. ASBOs are civil orders, similar to injunctions. They prohibit individuals from specific antisocial actions and are available for any person aged 10 or over who has acted in an antisocial manner likely to cause harassment, alarm or distress and who is likely to do so again. The local community can contact their antisocial behaviour co-ordinator, who is best placed to give advice on their particular situation and offer possible solutions. Indeed, if there is poor management and bad behaviour, the solutions for these problems seem more likely to be found via the inspectorate and the police than the planning system. Nevertheless, the hon. Gentleman has made it clear that there is a view in some quarters that part, if not all, of the solution to the problems experienced in Eddisbury might be found within the planning system.
  The planning system is designed to regulate the development and use of land in the public interest. It is used to direct development to appropriate locations, to ensure that society has the right buildings and infrastructure in the right place at the right time to enable it to function in the interests of all its members. Development control procedures mean that before carrying out some forms of development, including changes of use, planning permission should first be obtained. Such intervention in the development process by the responsible local planning authority is justified on the ground that it is in the public interest.
  However, in any one year there are likely to be many hundreds of thousands of developments and changes in the use of properties. Therefore, in order to simplify the process, to reduce bureaucracy, and to make the planning system work effectively, certain powers exist to allow the general requirement for planning permission to be modified. Among these provisions is the use classes order. This works by setting out groups of similar activities, the use classes, and making it clear that changes between different activities within the same group do not require planning permission. This is because development is deemed not to take place.
  This deregulation is increased by the general permitted development order, which also removes the need for planning permission for certain changes between activities in different groups or use classes. I might mention at this point that, despite the various deregulation procedures in place to help to reduce the burden, the number of planning applications made to local planning authorities remains high. In the last year, some 674,000 applications were submitted, compared with 634,000 the year before. In other words, without these general permissions and elements of deregulation, the local planning authorities would simply be swamped.
  The hon. Gentleman's specific concern is with the operation of the use classes order, particularly class C3. I shall quote from that use class—I dare say that the hon. Gentleman has used the same quotation himself, but I am sure that he will bear with me—which allows:
  "Use as a dwellinghouse (whether or not as a sole or main residence)—?
  by a single person or by people living together as a family; or
  by not more than 6 residents living together as a single household (including a household where care is provided for residents)."
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  In simple terms, when a dwelling is occupied by a traditional family but is in future to be occupied by no more than six sharing the dwelling, such a household would normally fall within class C3 and planning permission would not be required.
  This part of the use classes order has remained unchanged since the order was put in place in its present form in 1987. In 2001, we commissioned Baker Associates to carry out a review of the use classes order and aspects of permitted development. On class C3, the review concluded that no change should be made to this part of the order. I announced this conclusion to the House on 27 November 2003, and I can restate that clear position today.
  I am certain that this will disappoint the hon. Gentleman, but it is important that we do not overburden the local planning authority with unnecessary bureaucracy. I might also say to him that I shall continue to reflect on the points he has made; that is the purpose of such debates as this. Nevertheless, there would need to be compelling and universal reasons for change.
  That said, it is for the local authority to determine case by case to which category a particular premises belongs. Accordingly, if in the view of a local authority there was a material change in strict land use terms—that is, movements of traffic, noise, security arrangements and so on—in the use of a particular dwelling house to the extent that it could be classified no longer as C3 but as C2, the local authority can so determine. However, I need to point out that such decisions can be subject to later challenge in the courts.
  I might also add that the one area where a local authority could intervene is under article 4 of the Town and Country Planning (General Permitted Development) Order 1995. This provides the means by which a local planning authority can issue a direction to control development that would normally go ahead without planning permission. Although, in most cases, article 4 directions require the consent of the Secretary of State before they come into effect, in this case they can come into effect immediately they are served by the council. However, they cannot be imposed where the works have already been completed.
  Moreover, local authorities are advised in appendix D of Environment Circular 9/95 entitled "General Development Order Consolidation 1995", that it will rarely be justifiable to withdraw permitted development rights unless there is a real and specific threat to an interest of acknowledged public importance, necessitating tighter planning control in the public interest.
  So, I have to advise the hon. Gentleman that he is probably wisest to continue the work he has clearly already undertaken with his local communities, the Sedgemoor Group, the police, the Commission for Social Care Inspection and the local antisocial behaviour co-ordinator to find a different solution. These are primarily management and behaviour issues. Imposing solutions through the planning system seems inappropriate.
  Question put and agreed to.
  Adjourned accordingly at seven minutes past Ten o'clock.

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Leicester.

Lord Rosser
Richard Andrew Rosser, Esquire, having been created Baron Rosser, of Ickenham in the London Borough of Hillingdon, for life—Was, in his robes, introduced between the Lord Faulkner of Worcester and the Baroness Gibson of Market Rasen.
Baroness Murphy
Elaine Murphy, having been created Baroness Murphy, of Aldgate in the City of London, for life—Was, in her robes, introduced between the Baroness Scotland of Asthal and the Baroness Greengross.

Road Fatalities
2.48 p.m.
Lord Bradshawasked Her Majesty's Government
What progress they are making in respect of the 10-year plan in reducing road fatalities.
Lord Davies of OldhamMy Lords, statistics bulletin Road Casualties Great Britain 2003: Main Results, published by the Department for Transport last Thursday, indicates that we are more than half way towards delivering the national target, set in the road safety strategy in 2000, of a 40 per cent reduction in road deaths and serious injuries by 2010.
However, the number of road fatalities has levelled off, as we noted in our first review of the road safety strategy. This is a complex issue, which is receiving in-depth analysis and special focus as we develop the strategy further.
Lord BradshawMy Lords, I thank the Minister for that Answer. I noticed that he focused his attention on road deaths rather than on road deaths and serious injuries. They are usually considered together. Since 1998, there has been no reduction in the number of road deaths and therefore the achievement of a 10-year target will be difficult. While I note that a special study is taking place, it is time that we brought forward a special strategy for reducing the number of road deaths. Will we see such a strategy and a new road safety drive as a result?
Lord Davies of OldhamMy Lords, I agree with the noble Lord that there are areas of real concern, not least the feature that the decline in road deaths has levelled out. We are concerned that some of them can be attributed to special groups of road users, the outstanding one for increasing road deaths being motorcyclists. The overall position with regard to our strategy is encouraging and we are making good progress towards the target for 2010, but I agree with the noble Lord that we need to look again at specific aspects of it.
Baroness WhitakerMy Lords, can my noble friend confirm that the number of road deaths among adults in this country is nevertheless among the lowest in Europe?
Lord Davies of OldhamMy Lords, it is indeed, and we should congratulate our community on that fact. We have the safest roads in Europe, but that does not alter the fact that there are areas where we could make a real improvement. One significant point is that our

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record on deaths and serious injuries among children is not good in comparison with that in other parts of Europe.
Baroness Oppenheim-BarnesMy Lords, can the Minister say what investigations have taken place into why there is such a high percentage of motorcyclists among the fatalities? What steps are being taken to consult insurance companies about their position in insuring motorcyclists who have been involved in a number of accidents?
Lord Davies of OldhamMy Lords, the increase in the number of deaths among motorcyclists is substantially a reflection of the fact that more motorcyclists are on the roads. Ownership of motorcycles has increased significantly, as has the percentage of very powerful machines. Many very serious injuries are often incurred by mature men riding very powerful machines, and the insurance industry is taking due note of that statistic.
Baroness Thomas of WalliswoodMy Lords, the Minister was talking about the increase in the number of motorcyclists. First, can he tell me whether the increase in the number of accidents is low or high in comparison with the increased number of motorcyclists, and, secondly, can he tell us anything about injuries to older people, particularly pedestrians?
Lord Davies of OldhamMy Lords, with regard to the noble Baroness's first question concerning motorcyclists, as I indicated, there has been a substantial increase in the number of powerful motorcycles purchased by an increasingly wealthy population. That increase has occurred predominantly among more mature men, and the very high, and alarming, statistic of the increase in road deaths relates to that group. I have no specific figure for the number of accidents among the older population, but I can make the general point that the number of road deaths among car occupants is in decline. Steps are being taken to make cars safer for their occupants—and, more importantly, for the elderly population and pedestrians—by reducing, through better technology, the impact that cars have on pedestrians.
Baroness Finlay of LlandaffMy Lords, is the Minister able to tell us what has happened to cyclists and, in particular, what impact the wearing of cycle helmets has had on the number of deaths among cyclists involved in road accidents?
Lord Davies of OldhamMy Lords, I cannot isolate specifically the statistics relating to the wearing of helmets but I can report to the House that the statistic on serious injuries and deaths among cyclists is encouraging. It is in sharp contrast to what I identified as our most worrying statistic, which relates to motorcyclists.
Lord Hunt of Kings HeathMy Lords, surely the evidence from Australia shows that if the wearing of
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cycle helmets is made compulsory, there is a reduction in the use of cycles by bicyclists and there also seems to be an adverse effect on car drivers, who go faster in those circumstances. Will my noble friend assure me that he will look into that research carefully before the Government give any support to the compulsory wearing of cycle helmets?
Lord Davies of OldhamMy Lords, as I indicated, we keep the overall strategic position under constant review, particularly when significant changes take place in the statistics. I recognise the point that my noble friend made about the compulsory wearing of helmets, but that is not contemplated at present.
Lord RotherwickMy Lords, the incidence of drink driving and motorcycle fatalities has been increasing while, in recent years, the number of road traffic officers has reduced by about 12 per cent. Is it not about time that we had those road traffic officers back in order to stop the figures increasing?
Lord Davies of OldhamMy Lords, we certainly need to control drink-driving offences, although there has not been a very large increase in such incidents. Safety on the roads has also suffered a major onslaught from the breaking of speed limits. In that area, it is clear that there has been a happy correlation between increased enforcement and the reduction in the number of accidents.
Lord AveburyMy Lords, in what proportion of road deaths is alcohol a factor, and why have the Government rejected the advice of the BMA to reduce the blood-alcohol limit from 80 to 50 milligrams?
Lord Davies of OldhamMy Lords, at present, drink-driving seems to be under control. However, the figures are not good enough, and we have clear targets in place to reduce the overall number of accidents by 2010. But at present there is no indication that we would improve the statistics in that regard by reducing the blood-alcohol limit.

Examination Boards: Minority Subjects
2.57 p.m.
Lord Faulkner of Worcesterasked Her Majesty's Government
Whether Latin, Greek and other minority subjects are being properly supported by examination boards.
The Parliamentary Under-Secretary of State, Department for Education and SkillsMy Lords, we are satisfied that Latin, Greek and other minority subjects are being properly supported. The examination boards collaborate, with the encouragement of the Qualifications and Curriculum Authority, to ensure that minority subjects are offered by at least one of the boards. Although one board has

5
decided to stop offering Latin and Greek at GCSE and A-level, these subjects continue to be available through another board.
Lord Faulkner of WorcesterMy Lords, I thank my noble friend for that reply. But is it not the case that the AQA, the Assessment and Qualifications Alliance, to which I think my noble friend referred, took its decision to drop Latin and Greek without any consultation whatever with the teaching profession or with the societies that promote classical studies in this country? Bearing in mind that the AQA, unlike the Oxford and Cambridge Board, has had a particular affinity with intelligent pupils in state schools who have been able to learn Latin and Greek, often with teachers giving their time not as part of the school curriculum but outside the curriculum, is it not deplorable that the AQA should have taken that decision without consultation and that it will deprive many children in state schools of the opportunity to learn these important languages?
Baroness Ashton of UphollandMy Lords, I am not convinced that these children will be deprived of learning a language. As I indicated, another board will continue to offer the subject. But I say to my noble friend that I have no doubt that the AQA, as a charity independent of government, will take time to reflect on the widespread criticism of its decision and the impact that it could have.
Lord RedesdaleMy Lords, can the Minister say whether the decision taken by the AQA will affect a large number of other subjects? According to documents produced by the AQA, all subjects where fewer than 1,000 students take the exam are to be sliced. One casualty—no alternative board to the AQA is offering this course—is archaeology, which no child in the country will be able to take as a qualification at GCSE.
Baroness Ashton of UphollandMy Lords, GCSE operates in such a way as to ensure that if a board proposes to withdraw a subject, it will be available through another board. That is my understanding of the position. If the noble Lord has another view on archaeology, I shall be very happy to discuss it with him. But that would be the position should it appear that a subject was being withdrawn altogether.
The Earl of DundeeMy Lords, if the Minister accepts that a little Latin or Greek does not do us any harm, should not all those hoodwinked to the contrary now apply themselves to much clearer writing of the following lines: mea culpa, mea maxima culpa?
Baroness Ashton of UphollandMy Lords, I wondered how long it would be before Latin found its way into your Lordships' House. It has been in the department all morning, especially from the Secretary of State. There is nothing wrong with students wanting to apply themselves to Latin, and to Greek. I declare an interest as the mother of a son who studies it as an
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extra subject outside the curriculum. The critical point is to ensure that students of Latin and Greek are able to take examinations in those subjects if they so wish.
Baroness WarnockMy Lords, are there any plans to issue guidelines which would distinguish Latin from Greek or other minority subjects on the grounds of its extreme utility in the learning of European languages? Is the Minister aware that voluntary Latin classes, which are frequently offered by schools, have a significant effect on the ability of pupils later to learn other languages?
Baroness Ashton of UphollandMy Lords, I understand what the noble Baroness says. Some schools would translate that into saying that it is important to understand the root of languages, and that would apply to Latin or Greek. In 2003 there were 9,350 students studying GCSE Latin and about 900 studying GCSE Greek.
Baroness HaymanMy Lords, while supporting the views of the noble Baroness, Lady Warnock, on the teaching of Latin, I wonder whether my noble friend has explored the role of examining boards in innovative projects for the bilingual teaching of modern foreign languages. Has the situation improved from that which pertained in my son's school some time ago when a very good project for teaching GCSE geography in the medium of Spanish had to be abandoned because the examining board stopped providing for such examinations and no other board would do so?
Baroness Ashton of UphollandMy Lords, I was pleased to hear about that experiment but sad to hear of its demise. Indeed, as Minister responsible for languages, I funded the pilot project that enabled young people to learn a subject such as science or geography through the medium of another language. I cannot answer the question specifically. I shall endeavour to write to the noble Baroness. I would hope that we have moved on from that position, especially in the light of the pilots, and were able to offer such exams.
Baroness Sharp of GuildfordMy Lords, does the Minister not agree that it was most unfortunate that the AQA did not consult any teachers or the classical teaching association? Is that not a very bad example to set? Surely, if an examination board wants to close down a minority subject it should at least consult the teachers concerned.
Baroness Ashton of UphollandMy Lords, the noble Baroness echoes the comments of my noble friend Lord Faulkner and, indeed, as I have indicated, the widespread criticism that the decision was taken without consultation, which has not gone unnoticed within the department. However, these are independent bodies. The critical factor from our perspective is to ensure that children are able to take GCSEs in these subjects.
Baroness SeccombeMy Lords, what representations have the Government received about the AQA board's

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decision? Is it possible to take mainly AQA examinations with the exception of Latin and Greek and to take those examinations through another board?
Baroness Ashton of UphollandMy Lords, I am not sure that I understood the second part of the question.
Baroness SeccombeMy Lords, if students take mainly AQA board exams, would they then be able to take Greek and Latin through another board?
Baroness Ashton of UphollandMy Lords, I am grateful to the noble Baroness. First, I am not aware that any formal representations have been made to the department. Secondly, notice has been given that the AQA examination will end. I understand from the way that the syllabus is constructed that that was within time to enable students to assess their ability to take the OCR-based curriculum, which is slightly different from that of the AQA, but is extremely good and exciting.
Lord Lea of CrondallMy Lords, can my noble friend confirm that the examination board could be overridden by the curriculum council if the curriculum council thought that there was a case for certain examinations to be offered but that it was not cost-effective to do so?
Baroness Ashton of UphollandMy Lords, my noble friend is right. The AQA took that decision because of those students taking Latin and Greek approximately two-thirds were already taking the OCR board syllabus. Therefore, this was a "numbers" question. Certainly, it is true that the Qualifications and Curriculum Authority can intervene to ensure that subjects remain available.

Prisons: Chief Inspector's Recommendations
3.5 p.m.
Lord Aveburyasked Her Majesty's Government:
What steps they will take to ensure that recommendations made by the Chief Inspector of Prisons are implemented promptly.
The Minister of State, Home OfficeMy Lords, all prisons, public and contracted, and immigration removal centres produce action plans following inspections based on the recommendations of Her Majesty's Chief Inspector of Prisons. Ministers see the original plan and receive an update 12 months after publication. The system generally works well and the vast majority of recommendations are accepted and acted upon.
Lord AveburyMy Lords, I thank the noble Baroness for that reply. I note that the vast majority of the chief inspector's recommendations are implemented between one inspection and the next. However, have Ministers
8
analysed the reasons for the failures such as that at Lindholme, where the chief inspector had to repeat 57 of the recommendations that she had made on her previous visit, or at Styal, the women's prison, where six suicides occurred due to drug-related causes after the chief inspector had recommended the introduction of a detoxification regime? How can such situations be allowed to continue for as long as 18 months between one inspection and the next?
Baroness Scotland of AsthalMy Lords, as the noble Lord will know, such recommendations are taken very seriously indeed. However, there are significant situations both in Lindholme and in Styal. Noble Lords will know that Lindholme, for instance, is both a prison and a removal centre which share the same site. That inevitably creates difficulties. Following the recent findings of Her Majesty's Chief Inspector of Prisons, we are concerned to ensure that we address all those issues, and I can tell the noble Lord that they are being addressed. He will also know that there were resource issues in setting up the detoxification unit at Styal. Although some problems remain, I am assured that Styal is improving. I pay tribute to the staff there who have been working so hard to ensure that the needs of those women are being met.
Lord ActonMy Lords, does my noble friend agree that the Chief Inspector of Prisons is doing an admirable job? Can she say whether there are any plans either to change or to merge her job?
Baroness Scotland of AsthalMy Lords, I am very happy to agree with my noble friend that the chief inspector does an excellent job. There are no plans to change the nature of the job that she currently performs.
Viscount BridgemanMy Lords, what steps have been taken or are being taken to address the criticism of the Immigration Service by Her Majesty's Chief Inspector of Prisons, in her 2002–03 report, in which she described its attitude towards arrangements for repatriating foreign nationals who have served their prison sentences as "dilatory"?
Baroness Scotland of AsthalMy Lords, the Government have taken those recommendations very seriously indeed. There have been reviews of how those matters are dealt with. As the noble Viscount will know, there are plans to cease using the provision at Lindholme—to return to that issue—as soon as reasonably practicable. As soon as the estate elsewhere can cope with those who are currently at Lindholme we will make arrangements for them to be moved.
Lord Corbett of Castle ValeMy Lords, can my noble friend say why in every circumstance the Prison Service is given 12 months to implement the chief inspector's recommendations? Would it not make better sense to grade the recommendations so that those that can be implemented more easily are given a shorter period and a real spotlight is put on those that

9
can be put right in less than 12 months? Can she also tell us what is the period between the chief inspector submitting the report and its publication?
Baroness Scotland of AsthalMy Lords, taking the last matter first, noble Lords will know that in the past it used to take anything up to a year to have such reports published. It now takes about 15 weeks, which is a great deal more speedy. The most important recommendations are dealt with quickly on a priority basis. It is right to remember that of all the recommendations made in her most recent annual report, the chief inspector said:
"In spite of overcrowding, follow-up inspections of 22 prisons last year showed that they had been able to achieve, wholly of in part, 1500 of our recommendations for change".
So, there is an acceptance by the chief inspector that real energy and success is coming from the recommendations.
Lord DholakiaMy Lords, does the Minister accept that 12 to 18 months, from the time of inspection to that of implementation, is a long time? Will she consider the need to make the independent monitoring board—the former board of visitors—responsible for monitoring progress, particularly in the discipline and control of our prisons?
Baroness Scotland of AsthalMy Lords, the noble Lord makes an interesting point. However, I think it would be unfair to say that 12 to 18 months is the norm; as he will know, that has been the exception rather than the norm. The issue clearly needs to be addressed and I will take the noble Lord's suggestion into consideration.
Lord Hurd of WestwellMy Lords, perhaps I may revert to the point raised by the noble Lord, Lord Acton. The Government told us some time ago that they were conducting a review of all five of the criminal justice inspections. Does the Minister's answer to the noble Lord, Lord Acton, mean that they have decided that there will be no change at least in the status, independence and authority that the Chief Inspector of Prisons and her team possess?
Baroness Scotland of AsthalMy Lords, we have tried to make it absolutely clear that even if there is to be a change in the number of inspectorates, the role performed by Her Majesty's Chief Inspector of Prisons is critical. Any replacement will not undermine the nature, extent or efficacy of that inspection.
Lord AcknerMy Lords, will the Minister tell us which recommendations in the past 12 months were not carried through because of lack of resources?
Baroness Scotland of AsthalMy Lords, I am not able to give the noble and learned Lord a detailed exposition, save to say that there were resource implications, for instance, in implementing a new system for detoxification at Styal. That took a little time, but, as your Lordships
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will know, the resources were considerable and the Government addressed the matter as quickly and effectively as possible.

NHS Continuing Care
3.12 p.m.
Baroness Greengrossasked Her Majesty's Government
When they are going to issue clear guidance to local authorities and the National Health Service on a definition of continuing care outside of a hospital, so as to avoid people being incorrectly charged.
The Parliamentary Under-Secretary of State, Department of HealthMy Lords, the recent ministerial Statement made in both Houses showed that the strategic health authorities have investigated 6,713 cases where people may have been wrongly denied continuing care and found that 770 were eligible for recompense. A report on the revised criteria used in a sample of strategic health authorities will be published before too long. In the light of that and progress in completing the 5,000 or so investigations under way, the Government will consider whether any further guidance is necessary.
Baroness GreengrossMy Lords, I welcome what the Minister says about the efforts his department is making to recompense those people who have been wrongly charged for care. I am still concerned that past mistakes identified by the health ombudsman's report last year will continue so long as there is such enormous confusion among social services departments, the NHS and others about what qualifies as continuing healthcare.
Surely a healthcare need is a healthcare need. Does the Minister agree that we must focus on a person's health needs and not whether that need is for personal or nursing care; and that the Department of Health guidelines must reflect that?
Lord WarnerMy Lords, it is worth bearing in mind that the department's guidance, which was issued in 2001, was based on the Coughlan legal judgment in 1999, which followed an ombudsman report. In her 2003 report the ombudsman said that she did not underestimate the difficulty of setting fair, comprehensive and easily comprehensible criteria dividing between social services and health. That is absolutely right. We believe that these are complex issues where it is inevitable that there will be a degree of individual judgment depending on the circumstances of the case.
Lord Clement-JonesMy Lords, the Minister talked about the guidance perhaps being revised. The health ombudsman criticised it 18 months ago. Is it clear that there are substantial variations in the assessments made by strategic health authorities, and is it high time that the Government produced new guidance?
Lord WarnerMy Lords, the noble Lord should bear in mind that the health ombudsman made six

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main recommendations in her report in February 2003 and essentially we are implementing them. As I said. we have commissioned an independent review of the strategic health authority's guidance and we will consider that and the results of the investigations in the summer before deciding whether further guidance is needed.
Baroness PitkeathleyMy Lords, does my noble friend agree that the guidance is urgently needed, not only for government and local agencies but also for the families who are, after all, the providers of most continuing care except in the Department of Health definition? In that regard, does he agree that the Carers (Equal Opportunities) Bill of my noble friend Lord Ashley, which was before the House on Friday, will be significant in enabling families to obtain the right amount of information about what services are available and their rights to them?
Lord WarnerMy Lords, having enjoyed my Friday morning on that Bill, I am more than delighted to assure my noble friend that it is an excellent Bill and I hope that the House will give it a speedy passage.
Baroness Masham of IltonMy Lords, would it not be easier to drop means testing and would it not be quicker and more successful for those people who sometimes cannot wait for assessment and care?
Lord WarnerMy Lords, we have said on many occasions in this House and in the other place that free personal care for everyone is not the Government's policy. The £1 billion or so that it would cost will be better spent developing community-based services for those who need them, particularly those in greatest need.
Earl HoweMy Lords, will the Minister say how strategic health authorities set about the process of trawling for cases? Have they only reviewed those older people or their families who have come forward to ask for their cases to be reviewed?
Lord WarnerMy Lords, there has been a variety of measures. The publicity given to the issue meant that a much larger number of applications was made in relation to previous cases. In some cases the strategic health authority had access to the records and had begun the process, so it is a mixture. We have now had about 12,000 people applying to have their cases reviewed. As I said in my Answer, so far only 770 cases have resulted in recompense being required.

Traffic Management Bill
3.17 p.m.
Lord Davies of OldhamMy Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 39,
Schedule 1,
Clause 40,
Schedules 2 and 3,
Clauses 41 to 50,
Schedule 4,
Clauses 51 to 61,
Schedules 5 and 6,
Clauses 62 to 70,
Schedule 7,
Clause 71,
Schedule 8,
Clauses 72 to 74,
Schedule 9,
Clauses 75 to 81,
Schedule 10,
Clauses 82 to 88,
Schedule 11,
Clauses 89 to 95,
Schedule 12,
Clauses 96 and 97.—(Lord Davies of Oldham.)
On Question, Motion agreed to.

Companies (Audit, Investigations and Community Enterprise) Bill [H.L.]
The Parliamentary Under-Secretary of State, Department of Trade and IndustryMy Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 12,
Schedule 1,
Clauses 13 to 22,
Schedule 2,
Clauses 23 to 24,
Schedule 3,
Clause 25,
Schedule 4,
Clause 26,
Schedule 5,
Clauses 27 to 30,
Schedule 6,
Clauses 31 to 39,
Schedule 7,
Clauses 40 to 61,
Schedule 8,
Clauses 62 to 64.—(Lord Sainsbury of Turville.)
On Question, Motion agreed to.

Statute Law (Repeals) Bill [H.L.]
Report received.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
3.18 p.m.
Report received in respect of proceedings on recommitment.
Clause 10 [Failed asylum seekers: accommodation]:
Lord Aveburymoved Amendment No. 1
Page 11, line 27, leave out from beginning to end of line 14 on page 12.
The noble Lord said: My Lords, we discussed this matter in Committee, but nothing that we have heard then or since has endeared us to the idea that failed asylum seekers should be compelled to take part in unpaid community service as an additional condition that they have to satisfy to be offered accommodation or to continue staying in that accommodation. Under proposed new subsection 4(6)(b) of the Immigration and Asylum Act 1999 they must also comply with unspecified other conditions imposed by the Secretary of State.
As if that did not give the Secretary of State enough leverage over the failed asylum seeker, under proposed subsection 4(6)(c), the provision of any accommodation is a matter for his discretion,
"to a specified extent or in a specified class of case".
The people to whom these provisions apply have already had to demonstrate that they are unable to return to their countries of origin. Up to now that has meant Iraqis and Afghans because—the Minister will correct me if I am wrong on this—it was considered too dangerous to return to those two countries.
As far as I am aware, the provision has never been extended to any other nationality; I refer, for example, to Somalis, although Somalis were deemed to be unable to return to Somalia until fairly recently when the IND started surreptitiously returning them via Dubai in uninsured planes belonging to an airline nobody had ever heard of. From the beginning of 2002 to the end of the first quarter of this year, 7,630 Somalis had had their applications refused. Assuming that 20 per cent of those were unsuccessful on appeal, there are over 6,000 Somalis still living in the UK, even taking into account the handful of returns. None receive benefits or accommodation, nor are they allowed to work.
I should also like to mention the case of the Zimbabweans who are excluded from hard-case support under the 1999 Act. They are in a unique situation. On 15 January 2003 the Home Office suspended removals to Zimbabwe. Then, following the rigged elections in March, it froze indefinitely compulsory return while encouraging failed Zimbabwean asylum seekers to return on a voluntary basis. Predictably, hardly any have done so.
The result is that since the beginning of 2002 around 3,700 Zimbabweans have been added to the pool of destitute former asylum seekers in the UK. Some may well be supporters of the regime who made false claims to escape the anarchy and the economic meltdown of Zimbabwe. If such individuals could be clearly identified, no reasonable person would object
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to their compulsory return. No doubt the Minister is aware of the allegations made on the BBC "Five Live Breakfast" report that a Birmingham-based group, Zimbabwean Community UK, has provided false documentation and national insurance numbers that allow supporters of the regime, including children of Mugabe's Cabinet Ministers and others, to pose as members of the opposition and falsely claim asylum. If that is true, ZCUK and its management are guilty of criminal offences. I hope its activities will be stopped and that the police will use their powers under Part VII of the 1999 Act to obtain any documents that may still exist relating to the false claims made through that organisation. The BBC should be asked to hand over any documents in its possession relating to the matter.
At the other end of the scale, we all know of Zimbabweans who have gone through the system unsuccessfully, even though an unbiased person looking at their claims would be at a loss to understand how they were refused. A torture victim whose father was murdered spent 10 months in Lindholme Detention Centre and was unable to prepare his case properly. The adjudicator rejected a faxed copy of his MDC membership card as a fake and when he managed to obtain the original in time for the tribunal he was told that it was inadmissible because it could not look at fresh evidence.
The Zimbabwe Association knows of a number of people in similar situations. I met one at the launch of Andrew Meldrum's book Where We Have Hope last Friday, a medical doctor who has not been allowed to practise in the UK. So when the Minister says, as he did on 15 June, that people denied accommodation have failed completely to become refugees he may be right in a narrow legal sense, but not in terms of compliance with the Refugee Convention. Whether or not someone is a refugee is a matter of fact, whereas the question of whether he attains the status of a refugee is determined not solely by the merits of his claim, but on a number of other factors, including the quality of representation, the assessment of his credibility and the possibility of getting evidence to support the claim from his country of origin.
None of that enters into the decision about hard-case accommodation. As the Minister explained in Committee, to qualify for this privilege a person must have been given permission to apply for judicial review; be unable to return because there is no transport service available; be awaiting travel documentation; be ill or pregnant; or be under rare or exceptional circumstances. I understand that only about 400 to 500 people qualify under one or other of the headings, although we have no statistics on the matter and no idea whether in future there are likely to be the same number or for how long they might remain on the books.
If the recipients are almost entirely Iraqi or Afghan, presumably once air services resume they will be shipped back to their countries regardless of deteriorating security situations and absence of employment opportunities in both countries. I note that 204 Iraqis and 165 Afghans were removed or went home voluntarily in the first quarter of this year. I should be most grateful if the Minister could explain under what circumstances a person belonging to

15
either of those two nationalities still qualifies for hard-case accommodation. That would have a bearing on the future take-up and cost-effectiveness of establishing the schemes which are envisaged in Clause 10. If the total drops much below the present level, there might be only two or three people in a typical local authority area and, as the noble Baroness, Lady Anelay, pointed out, the cost of the scheme might easily outweigh the benefits of the work these people undertake.
Local authorities will have to identify unskilled operations needing minimal induction and training; to discuss the choices available to trades unions; and to establish a programme for managing the forced labour, including training, supervision and reporting on any failures to comply with requirements. Setting all this machinery up for a rapidly changing labour force of two or three people in a particular local authority area sounds like a big money loser and it would be useful if the Minister could give us some idea of the arithmetic behind the introduction of Clause 10.
However, it is not only on the ground of probable waste of taxpayers' money that we object to the compulsory labour element in this clause; we say that it is inappropriate to impose what amounts to community penalties on people who, through no fault of their own, are unable to return to their countries of origin. That is a matter of principle for us. There are all sorts of practical arguments against conscripting a handful of failed asylum seekers in places such as Manchester, Leeds, Newcastle or Birmingham to dig old people's gardens or rub out graffiti. But even if they could be solved this is forced labour.
The Minister says that he is satisfied that the provision does not contravene Article 4.2 of the ECHR. If he turns out to be wrong, it would not be the first time that the Home Office has ignored the warnings of Parliament. I beg to move.
The Chairman of CommitteesMy Lords, I should point out that if this amendment is agreed to, I will not be able to call Amendments Nos. 2 or 3.
Lord Mackay of ClashfernMy Lords, I thank the Minister who is to reply to the amendment for giving us such a practical demonstration of the fact that Ministers in this House speak for Her Majesty's Government as a whole and not for any particular department.
Baroness Carnegy of LourMy Lords, I endorse what my noble and learned friend has said. The Liberal Democrats feel strongly about the suggestion that failed asylum seekers, while appealing or who for other reasons have not returned to their home country, should not be asked to do community work in return for accommodation. They feel it is forced labour. I said in Committee and I reiterate that this is a very tricky point. The public are likely to understand that people who are still in this country, having failed to get asylum, should be required to do something in return for accommodation.
The trouble about the provision at the moment is that it is half-baked. The noble Lord almost admitted that, although he would not have used such an impolite adjective to describe the Government's current situation. There is a great deal we do not know about it, and we will probably deal with some of the detail when we discuss Amendment No. 2. As a general principle, I do not think it is forced labour. People are being asked to do this in return for being given accommodation by the people of this country when they have no real right to it. I should have thought that they would not mind that; such people will be extremely bored while they are waiting. They will not have anything to do, and it will be quite interesting to help the local community in which they live. So I do not share the Liberal Democrats' objection to this. But we do need to know a good deal more about the detail before we know whether it is a workable and good idea.
The Countess of MarMy Lords, I have a certain amount of sympathy with the noble Lord, Lord Avebury. I remind noble Lords of my interest as a lay member of the Immigration Appeal Tribunal.
I have no objection to people having to earn their corn. There is no problem with that. What I am concerned about is the Minister's comparison of this sort of job creation, such as it is, with the New Deal. I asked him last time—he was unable to give me the answer, perhaps he can do so now—how much each job has cost under the New Deal, and I have a feeling that the cost of providing work for something like 500 people—I think the Minister said that in Committee—will be inordinate. I would be grateful if he could clarify that point before I decide.
Baroness Anelay of St JohnsMy Lords, in Committee the Government were unable to give details of the justification for the new clauses that they were bringing forward at the eleventh hour in this Bill, by way of recommitment—particularly details of how the various policies would actually operate. I made it clear in Committee that we on these Benches do expect to be able to support the policy intention behind the 13 new clauses, but that we are still very concerned about the haste with which they have been drawn up, and the possibility that there could be flaws and unintended consequences. It is a case of the Government making up policy on the hoof.
Our concern has already been justified by the fact that the Government have brought forward further amendments today, to two of the new clauses which were accepted by your Lordships in Committee on recommitment. The Government say that the provisions of Clause 10 do not contravene the ECHR. Well, I hope that they are right. The Home Secretary certainly has a track record of charging ahead with flawed proposals that are then challenged successfully in the courts. That is bad for everybody concerned: bad for the reputation of Parliament; bad for the taxpayer for having to foot the bill, and bad for the Government overall, because it means people lose trust in what they are trying to implement.

17
I do not, however, support Amendment No. 1 of the noble Lord, Lord Avebury, as I am still prepared to listen to the Government's justifications for the clause, and their plans to make it work. If I can be flippant for one moment, I would say that the Government got one out of 10 in Committee, if I am being very gracious. I hope that the score might go up today.
In that vein, I have tabled probing amendments of my own that follow consideration of this amendment. In Committee, I remarked that I understood that, under the current system, failed asylum seekers—and we are talking only about those who have failed all the various avenues of appeal open to them—who are in receipt of hard case support are already allowed to make a contribution to our community by taking up voluntary work. The Minister did not seek to contradict me on that point, so I assume that must he the case. I would be grateful if he could confirm that, and if he could tell the House how many of the failed asylum seekers have, over the past year or two, actually volunteered to take up voluntary work in order to give something back to this community from which they are getting support. Of course, these are people who should not be here and who are awaiting removal.
I would also be grateful if the Minister would give the House some indication of the experience the voluntary organisations have had in managing such persons. I raised these issues in Committee, so they do not come as a surprise to the Minister. I hope he has had a chance to consult his officials between then and now, and has a response. The noble Lord, Lord Avebury, was right to refer back to my concerns about costs in managing this. I will go into more detail in my Amendment No. 2. It has certainly been my experience that when voluntary organisations are managing people, they want them to be true, openhearted volunteers, otherwise it becomes very expensive and difficult either to train them or to get any meaningful contribution out of them. It is a very difficult area for voluntary organisations.
The noble Lord, Lord Avebury, referred in his closing remarks to numbers and costs. I will deal with that in detail, on the more practical side of my amendments. But the noble Lord, Lord Avebury, has addressed the whole issue of principle about whether or not people should do what he calls "forced labour". I call it directed labour, but it is certainly a contribution to the community in recompense for the financial assistance and accommodation which that person has received here.
My noble friend Lady Carnegy of Lour was right to direct us to the fact that the public is likely to have some sympathy with the idea that people should give something back to a community which has been supporting them, when those people have no valid claim to remain here. It is also right that some persons cannot return, as yet, to their country of origin. The noble Lord, Lord Avebury, has mentioned Zimbabwe, and he has far better information about particular details of individual cases than most other Members of this House. As a class case, that is a prime example of a country to which it is difficult for people to return.
18
My noble friend Lady Carnegy was also right to refer to public concern—echoed by the noble Countess, Lady Mar—when she talked about the issue of the New Deal. It is not just the Minister who likens this to the New Deal. The Home Secretary also did so in the press release that came out in April, when this idea was first vaunted after the so-called summit on immigration that the Prime Minister called at Downing Street. The difficulty I have with that attempt to liken this to the New Deal is that the implications for the people concerned are at the other end of the scale. For example, if you are going on the New Deal, it is holding out a hope for a better future in employment to you. This is certainly no New Deal, even in my eyes—I say to the noble Lord, Lord Avebury—because this is not a launch pad to success, it is a launch pad back to failure. I found that an extraordinary comparison.
A comparison that we do need is the one that the noble Countess, Lady Mar, brings forward, and that is one of costs and management. I shall return to the detail of that in Amendment No. 2. But the Minister has a duty to look at the whole principle of directed labour, and how that falls within all the rules by which we are governed through ECHR and other international agreements, as well as commonly accepted views about what you can and cannot force people to do with the ultimate penalty of withdrawing from them the roof over their head.
The Minister of State, Office of the Deputy Prime MinisterMy Lords, given that the first three amendments are all on the same clause, are obviously not grouped, and a lot of general points have been raised, I will try to stick to the points relating to Amendment No. 1 so that I am not repetitious when I come to points relating to Amendment No. 2. There has been a decision to keep them separate, although they revolve around the same issue, notwithstanding the fact that the noble Lord, Lord Avebury, said that he was opposed to the whole point in principle. He made a speech that was slightly disconnected from the amendments, because he was raising other matters unrelated to the accommodation situation of failed asylum seekers in receipt of special hardship money—of which, as I said in Committee, there are about 500.
I respond first to the noble and learned Lord, Lord Mackay of Clashfern. We are flexible Ministers, and it makes the job more interesting, no doubt about it. My colleagues in the other place do not quite understand it, but I am gradually educating them. I thank the noble and learned Lord for his remarks.
If there is an opposition in principle, then nothing I say is going to make the slightest bit of difference, even though I will try and meet the arguments—some of which, of course, are ones that I repeated in Committee. On the other hand, we need a system to work and, as I said in Committee, this system will be subject to detailed regulations which I am not, of course, in a position to share with the House at the present time. They will be by affirmative resolution, so this is not the last point in the primary legislation that we shall deal with this. We will have an opportunity in the detail of the regulations to look at all of the circumstances, because we have to do that.
It is true that failed asylum seekers can volunteer at present. I do not have any statistics about it. There is nothing in this world to stop anybody volunteering for anything. By definition there would not be. There is obviously an issue about paid employment. People are not able to take paid employment, but that does not mean that they cannot volunteer. To my certain knowledge, some failed asylum seekers do volunteer in various parts of the country but I do not have any statistics. Of course, those people may not be failed asylum seekers subject to hardship money.
There are a lot more failed asylum seekers than the 500 covered by this clause. We must be clear about that as the statistics that the noble Lord, Lord Avebury, gave involved a substantially greater number than that. This clause concerns people who are in receipt of hardship funds under Section 4. The central point of principle of the amendment and the new clause is that people should not get something for nothing.
As I said in Committee, we are committed to offering support under Section 4 to those who cannot maintain themselves and who are not in a position to leave the UK immediately. They will be due to leave at some time in the future but when they will leave cannot be predicted. We discussed this matter in Committee. Where a person is complying with the necessary redocumentation procedures and is seeking to return home voluntarily but cannot because there is no viable route, we should not leave him destitute. That is what Section 4 money is for.
This provision is not a punishment. I made that absolutely clear. It is simply a requirement that those in receipt of that support put something back into the community. I did not give examples but I made it quite clear that the contribution would be expected to be local to the circumstances of the person concerned. He would not be bused around the country on, in effect, gainful employment as a result of this. It would be local to his living circumstances and maybe would even be related to his own community. I gave those examples. I do not think I have any more but by the time that we come to regulations we certainly will have. We expect the work to be carried out in the immediate environment of the person who is receiving support. Indeed, it could be the upkeep and maintenance of his own accommodation, which might be being done by someone else at present. It will be local community work. That is what we will delineate in the regulations.
Other points that were raised in Committee were touched on again today. All the activities will be of value. They will not simply be activities performed for their own sakes. The activities must be beneficial to the public or to a section of the public. That is what the clause requires. The value of the activities is more difficult. I mentioned New Deal but we are dealing with a different situation. I fully accept the point that New Deal is about prospects for the future. This is slightly different but we are demonstrating that there are people with expertise in developing programmes. They could utilise their experience to develop a strategy for giving something back rather than for getting people into long-term work because these
20
people have no prospect of long-term work in this country. We will utilise people's skills. That makes good sense and I admit that we do not take account of them at present.
This is a slightly different situation for this narrow group of about 500. We are looking to put a flexible measure on the statute book that can meet circumstances that can change from time to time. We may be legislating for today and using figures based on today but we want to put something on the face of the Bill, and in the regulations, that can meet changed circumstances in the future. As a point of principle, that is what we are seeking to promote.
I also accept that there is a logical case for people to say, "Let them work and earn their keep". But since the time that I had day-to-day responsibility for this, we have repeatedly said that that sends the wrong signal. It sends the wrong signal so that people come here to claim asylum when basically they are economic migrants. That is why we have opened up many other managed migration routes so that people do not have to claim asylum or to put themselves in the hands of people traffickers. If we allowed paid employment, which has got a seductive ring to it, it would send the wrong signal to people in various communities. We want to maintain the distinction, which sometimes gets mixed up, between immigration and asylum. They are quite different.
I do not think that there is any argument, except perhaps from the noble Lord, Lord Avebury, that these are people who have been through the system and failed. I fully accept the examples that he has given. I do not deny them at all. But these are all people who have gone through the whole of the system and have no further prospect of any judicial or legal arrangements for making their claim for asylum. Their claims are finished and have been dismissed. They are at the end of the line. It is simply that for various reasons they cannot get on a plane or a boat to go back home and they cannot maintain themselves. I cannot say whether the people returning to their own countries are just going to Iraq and Afghanistan. It varies from time to time. I know from papers that crossed my desk when I was at the Home Office that there were people of other nationalities who could not be returned, even though they were failed asylum seekers. However, that was nothing to do with Section 4. There are other situations.
3.45 p.m.
Lord AveburyMy Lords, can the Minister give me one example of another country, besides Iraq and Afghanistan, to which a person is unable to return?
Lord RookerMy Lords, it depends on the person's circumstances. If it is by nationality, then I cannot answer the noble Lord off the top of my head and I will take advice. But there have been occasions when people, who were not from Iraq or Afghanistan, could not be returned, even when their asylum claims failed,

21
because of their particular circumstances. I not sure whether that would apply to a particular nationality in general. But I know from the time that I was at the Home Office that there are cases.
There is further work to be done. I freely admit that and I said so in Committee when we touched on consultation. I want to make it absolutely clear that there will be major consultation with the stakeholders before the regulations are laid and brought before this House. I could not come to the House with the
regulations—assuming that this clause gets into the Bill and that it receives Royal Assent—unless we had consulted on the practicalities, systems and processes that will be put in place. We will consider the precise form of this exercise but we recognise that many of the organisations referred to in earlier debates will be able to inform our thinking.
We do not have a closed mind on this or a secret scheme that we want to impose. We want to get the principle of the legislation on the statute book to give us the authority to go out to negotiate and consult with practioners who have experience. Some of them have had failed asylum seekers working for them on a voluntary basis so they will have experience that will help to shape the regulations. I repeat that the regulations will be subject to the affirmative procedure so that we will have a full and frank debate on them before the system comes in.
Parliament and the public need to make sure that the asylum and immigration processes are being managed properly. It is true that these are extra measures that were not in the Bill to start with. They are allied with and connected to the success in halving the number of asylum applications. The more balanced and proactive approach to managed economic migration is helping to achieve that end. But one single policy objective will not solve the problem. We need to do them all. That is why we have opened up other routes of managed economic migration in recent years so that there is no need for people to claim asylum when they are economic migrants after a job and a new life.
We think that requiring people whose asylum claims have failed to participate in community activity while the taxpayer is supporting them enhances the balanced approach. It helps to send the right signals down the line. We know that policy changes and sending signals down the line affect the flow of asylum claims. There is no question about that and we have known it for years. We recognise that there is a cost to the taxpayer in providing support under Section 4 and I freely admit that I cannot put a figure on it. The cost per job might be irrelevant at the present time. When the regulations come forward we shall have more information about finance which can be given to this House.
Nevertheless, we are legislating in principle and flexibly for the future and not just for present circumstances. As we are legislating for the future one cannot predict exactly what the costs will be. The failed asylum seekers who are unable to participate in community activities should contribute to the cost to
22
the taxpayer by giving something in return while waiting to return home. All we are doing is asking a small number at present—we hope that it does not grow—of recipients under Section 4 to make a short-term contribution to their keep.
The noble Lord asked about that and I have touched on the question of cost. As part of the consultation we shall have to provide information regarding the cost of the programme and how we deliver one which is flexible enough to meet the circumstances.
As regards Somalia, I was conscious of what the noble Lord said today and what he said at Committee. Since 31 March this year we have been enforcing the return of a small number of Somali failed asylum seekers to Mogadishu, as the noble Lord is aware. This is not a policy change. Since October 2002, when we ended blanket country-specific exceptional leave policies, all asylum applications from all nationalities are considered on their merits. That renders Somali failed asylum seekers removable. The returns started when we opened a route to enable us to effect returns to Mogadishu. We are not returning vulnerable categories and are returning only very small numbers to southern Somalia. That is the current situation; it is not a policy change.
I freely admit that these assurances are not much greater than I was able to give at Committee. It is a point of principle. In due course we shall have detailed regulations. Heaven knows how long they will be, but I expect that they will be in greater detail than the clauses on the face of the Bill as they have to show how the system will work, the cost and the appeal mechanism. I made it quite clear that funds will not be cut off just because someone cannot carry the appeal process through. I shall touch on this matter when we come to the other amendments. I do not want to go down that route at present because the first three amendments all deal with the same group of people.
With these assurances I hope that this amendment will not be pressed. It is an issue that we shall return to when the regulations are brought to the House, if not at Third Reading.
Lord AveburyMy Lords, I have to disappoint the Minister if he hopes that the reply he has just given will satisfy us on these Benches. The only information we extracted from him, which was something of which we were aware already, was that there are compulsory returns to Mogadishu. I was very disappointed that the Minister was unable to give us any information about the composition or the nationalities of the people at present receiving Section 4 support. He could not even say whether there were any other nationalities among them apart from the Afghans and Iraqis I have already mentioned.
To make a half-baked proposal, as the noble Baroness, Lady Carnegy of Lour, described it, without any further information about the cost or the impact on the local authorities which will have to run the scheme, is grossly unsatisfactory. I ask for the opinion of the House.
3.54 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
*Their Lordships divided: Contents, 40; Not-Contents, 123.

Division No. 1

CONTENTS

Addington, L.

Maddock, B.

Alton of Liverpool, L.

Northover, B.

Avebury, L.

Oxford, Bp.

Beaumont of Whitley, L.

Phillips of Sudbury, L.

Bradshaw, L.

Redesdale, L.

Carlile of Berriew, L.

Rennard, L.

Clement-Jones, L.

Rodgers of Quarry Bank, L.

Dholakia, L.

Roper, L. [Teller]

Ezra, L.

Sandberg, L.

Falkner of Margravine, B.

Scott of Needham Market, B.

Finlay of Llandaff, B.

Sharp of Guildford, B.

Garden, L.

Smith of Clifton, L.

Goodhart, L.

Steel of Aikwood, L.

Hamwee, B.

Taverne, L.

Harris of Richmond, B. [Teller]

Thomas of Walliswood, B.

Holme of Cheltenham. L.

Tordoff, L.

Leicester, Bp.

Wallace of Saltaire, L.

Lester of Herne Hill, L.

Walmsley, B.

Mackie of Benshie, L.

Waverley, V.

McNally, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Gibson of Market Rasen, B.

Ahmed, L.

Gilbert, L.

Allenby of Megiddo, V.

Golding, B.

Amos, B. (Lord President of the Council)

Gordon of Strathblane, L. Goudie, B.

Ampthill, L.

Gould of Potternewton, B.

Andrews, B.

Graham of Edmonton, L.

Archer of Sandwell, L.

Grocott, L. [Teller]

Ashley of Stoke, L.

Harrison, L.

Ashton of Upholland, B.

Hart of Chilton, L.

Bach, L.

Haskel, L.

Berkeley, L.

Hayman, B.

Bernstein of Craigweil, L.

Henig, B.

Bhattacharyya, L.

Hilton of Eggardon, B.

Boothroyd, B.

Hogg of Cumbernauld, L.

Borrie, L.

Hollis of Heigham, B.

Brooke of Alverthorpe, L.

Howarth of Breckland, B.

Campbell-Savours, L.

Howells of St. Davids, B.

Carter, L.

Howie of Troon, L.

Christopher, L.

Hughes of Woodside, L.

Clark of Windermere, L.

Hunt of Kings Heath, L.

Clarke of Hampstead, L.

Irvine of Lairg, L.

Corbett of Castle Vale, L.

Jones, L.

Crawley, B.

King of West Bromwich, L.

David, B.

Kirkhill, L.

Davies of Coity, L.

Lea of Crondall, L.

Davies of Oldham, L. [Teller]

Levy, L.

Dean of Thornton-le-Fylde, B.

Lipsey, L.

Desai, L.

Lofthouse of Pontefract, L.

Dixon, L.

Macdonald of Tradeston, L.

Drayson, L.

McIntosh of Haringey, L.

Dubs, L.

McIntosh of Hudnall, B.

Elder, L.

MacKenzie of Culkein, L.

Evans of Temple Guiting, L.

Mackenzie of Framwellgate, L.

Farrington of Ribbleton, B.

Marsh, L.

Faulkner of Worcester, L.

Masham of Ilton, B.

Filkin, L.

Mason of Barnsley, L.

Fitt, L.

May of Oxford, L.

Fyfe of Fairfield, L.

Merlyn-Rees, L.

Gale, B.

Mishcon, L.

Gavron, L.

Mitchell, L.

24

Monson, L.

Smith of Leigh, L.

Morgan, L.

Stallard, L.

Morris of Aberavon, L.

Stone of Blackheath. L.

Morris of Manchester, L.

Strabolgi, L.

Palmer, L.

Taylor of Blackburn, L.

Patel of Blackburn, L.

Temple-Morris, L.

Pendry, L.

Thornton, B.

Peston, L.

Tomlinson, L.

Pitkeathley, B.

Triesman, L.

Plant of Highfield, L.

Truscott, L.

Ramsay of Cartvale, B.

Tunnicliffe, L.

Randall of St. Budeaux, L.

Turnberg, L.

Rendell of Babergh, B.

Turner of Camden, B.

Richard, L.

Uddin, B.

Rooker, L.

Warner, L.

Rosser, L.

Warnock, B.

Sainsbury of Turville, L.

Weatherill, L.

Sawyer, L.

Whitaker, B.

Scotland of Asthal, B.

Whilkins, B.

Sheldon, L.

Williams of Elvel, L.

Simon, V.

Williamson of Horton, L.

Slim, V.

[*See col. 31]
Resolved in the negative, and amendment disagreed to accordingly.
4.4 p.m.
Baroness Anelay of St Johnsmoved Amendment No. 2:
Page 11, line 39, leave out "appear to the Secretary of State to be" and insert "the Secretary of State has reason to believe are"
The noble Baroness said: My Lords, we now reach a couple of probing amendments in quick succession, Amendments Nos. 2 and 3, which will look at the specific details of the Government's proposals. I am grateful to the Minister for saying that he would save his notes on the details until these amendments. In normal circumstances, I would happily have grouped them with Amendment No. 1. I was not in a position to be able to do so today because it struck me that the vote on Amendment No. 1 might be lost. Since it has been lost, if I had grouped my amendments with it, at Third Reading it could be judged that the issue had been decided, and I would not be allowed to bring back the amendments. The advice is always not to group them. I always seek advice on this from independent sources such as the Public Bill Office. One must always be careful. Therefore, my amendments have not been grouped.
It is important to look at the detail. The Minister has sought to pre-empt the questions by saying in the debate on Amendment No. 1 that he still does not know any answers. I hope that he might now know one or two, if not all the answers. I am probing the issue of what kind of purposeful activity the Secretary of State can order a failed asylum seeker to do under the provisions of Clause 10. In his previous remarks, the Minister said that with regard to the issue of the voluntary work that is or is not undertaken by those with a special category, he is not able to give details today. I am disappointed by that, because I would have thought that before the Government pushed ahead with introducing this skeleton proposal, they would have looked at alternative proposals already in place to see whether they were successful. The prime

25
alternative would involve establishing whether provisions stating that one can do voluntary work have proved to be successful, and how much they cost to manage. The Government have failed to do that. They have simply pressed ahead with a policy of compulsion without proving either way if the existing policy of volunteering works. It looks again as though we have a headline without any story behind it.
What progress have the Government made, if any, since Committee stage in working out how the new policies will be put into effect? The noble Lord, Lord Rooker, said that the details will come in regulations. At this stage, the Government have a duty to explain to the House and to the public what reasons they have for bringing forward this policy and how it will operate.
Looking at Amendment No. 2 in detail, the Government's drafting of Clause 10(7)(a) gives the Secretary of State the power to direct a person to work at anything that appears,
"to the Secretary of State to be beneficial to the public or a section of the public".
My amendment removes the vagueness that is implied by "appears", and requires the Secretary of State to have some proper reason that the directed labour would be for the good of the public or part of it. The question must be what kind of directed labour the Government have in mind. So far, all that the Minister has said to the House is that it could be local to them. That seems sensible. He says that there could even be some running repairs on the accommodation that they are enjoying. I have seen many television programmes about houses of horrors. It sounds as if another television series could be spawned here about failed asylum seekers and what they do to their accommodation. How people's abilities are best used during the brief period that they hope to remain here before they are removed is a serious matter. At least, we hope that it is a brief period; they might hope that it is longer.
How will the Government decide whether the directed labour is for the good of the public or part of the public? Will they take into account the cost of managing that directed labour? Or will cost be a separate matter, and will they simply go for looking at the type of activity, whatever the costs of implementing the management of that? Do they expect the cost of managing each placement to be more or less the same as the cost of managing community penalties?
The Minister has recently said that the costs that he will be able to talk about today are the costs as they stand now and that things can change. Of course, numbers of failed asylum seekers can change. That is right; they can wax and wane, but surely the cost of managing schemes does not necessarily change if one has in mind the proper administration of these schemes. I am looking at the cost of the placement, not the global costs, which I appreciate will change according to the number of failed asylum seekers who may be subject to this direction. Of course, one must recognise that the Government do not necessarily have to direct all failed asylum seekers to carry out directed
26
activity—just some may be involved. The numbers may change, but surely the management of the placement should be estimated.
My concern, as I mentioned in Committee, is simply that the management of this scheme may be out of all proportion to the benefit that may be gained by any part of the community. What discussions have the Government already had with the Local Government Association about their willingness to become involved? What have been the results of those discussions? Have the Government had discussions with any private companies about taking on the management of such schemes?
At Committee on recommitment, the Minister said the Government:
"do not, at this stage, want to be restrictive"—[Official Report, 15/6/04; col. 648.]
about what labour will be redirected. They want flexibility. He repeated the term flexibility again today, but it is only common sense that an individual should be asked to do only that work that is appropriate to them and within their capability.
I am not opposing that idea, but the Government have so far hidden their lack of policy about the scheme behind this general argument that in this clause we should write a blank cheque for whatever the Government think they might do at some stage in future. I beg to move.
Lord AveburyMy Lords, I dread to think what might happen to the accommodation if the failed asylum seekers are let loose on the plumbing or the electrics. I wonder whether the Minister, when he gives further thought to this idea, will conclude that to match the capacities of failed asylum seekers to tasks which are available within the locality, as he explained, and can be properly managed by the local authority will be extremely difficult.
People who have particular skills, such as the doctor I mentioned from Zimbabwe, who in any case is not eligible for Section 4 support, which does not apply to Zimbabweans, would not be able to work in the local hospital because the Minister carefully underlined the fact that none of this work is long-term in nature. So there will be people with skills that might be employed for the good of the community but which cannot actually be incorporated into these schemes because they are not of the nature that the noble Lord, Lord Rooker, has described.
As regards Amendment No. 2, in the name of the noble Baroness, Lady Anelay of St Johns, the Minister said in another context on the last occasion that he did not think that,
"in practice there would be any significant difference between these two forms of wording".—[Official Report, 15/6/04; col. 677.]
Where it appears to the Secretary of State to be so, then he has to have reason to believe that it is so.
I have found examples of both usages in previous legislation. In Section 6 of the British Nationality (Hong Kong) Act 1990, a person shall not be registered as a British citizen if the Secretary of State has reason to believe that he is not of good character. Section 33 of the

27
Companies Act 1989 allows the Secretary of State to withdraw recognition from a body that qualifies auditors in other jurisdictions where he has reason to believe that membership of the body no longer meets the required standards. On the other hand,
"appear to the Secretary of State"
is a more common usage in immigration legislation, as for example in Section 22 of the 1999 Act, which allows the Secretary of State to make transitional provisions regarding a code of practice to avoid unlawful discrimination such as appear to him to be necessary or expedient. I an not sure whether it is necessary to spell out the equivalent of the two expressions, since on the basis of Pepper v Hart, a court would be able to make reference to the Minister's statement of 15 June.
Baroness Carnegy of LourMy Lords, my noble friend is absolutely right to probe the Minister about what kind of jobs failed asylum seekers are likely to do under this scheme. When the Home Secretary gets the bit between his teeth, he does sometimes come out with some fairly draconian ideas. We need to look at this whole provision pretty carefully, when we know what it is.
In the mean time it is doubtless helpful for the Government to see what the problems and possibilities are. The most important point about these community activities is that they are seen by those failed asylum seekers who are doing them and by the public as genuine, useful, local projects. They should not be artificial. If work is made deliberately for this purpose it will be very disillusioning for everybody. The failed asylum seekers will be carrying the reputation of this country home with them, and it is very important that they do not have as the last thing they remember being made to do a useless job, on pain of losing support. It is very important that it is a serious, proper job.
4.15 p.m.
As I mentioned in Committee, I go back in my public life as far as the Manpower Services Commission, in which I played a considerable part over several years. One of the problems then was measures for the long-term unemployed, and how to get genuine jobs from local authorities and voluntary organisations which people could see were useful. They were not necessarily jobs training them for the future, but they helped them by alleviating long-term unemployment and giving them satisfaction and a certain will to work when they could get a job.
It proved very difficult to do, and there was a lot of disillusionment when the public saw jobs being created which cost a lot of money to provide, to so little advantage for the community because they were artificial jobs. I think it is a problem that the Home Secretary should recollect; it occurred up to a point with the New Deal, although not in quite the same way. The Home Secretary is, luckily for him, a great deal younger than me and probably does not
28
remember the problems there were. It would be worth looking back at the records to see what the problems were.
It may be that when the cost is worked out and the job satisfaction is, over a limited period, seen to be low for the participants while the disillusionment of the public is seen to be high, it would be better to have a voluntary scheme. That would be seen as something quite different and could in fact be cheaper. I hope the House does not feel I am wasting time by mentioning these facts, for I think they are relevant.
The Countess of MarMy Lords, the noble Baroness, Lady Carnegy of Lour, has made some very valid points. I, too, remember the Manpower Services Commission, the Youth Opportunities Scheme and all sorts of other schemes that have been given a whirl, so to speak. I used to serve on a committee with a lady who would start off by saying something like "Wouldn't it be nice...". We always knew that "Wouldn't it be nice..." meant that something totally impractical was coming out. That is what I am reminded of in this case. We have seen in the Daily Mail that everybody is upset that we are providing all this accommodation and food for all these people who should not be here anyway, so let us make them work for their food. Well, that is fine, but at what cost? I keep trying to extract from the Minister what the cost is.
There will now have to be a management team in every local authority area that has failed asylum seekers. Whether they have one or one hundred does not make any difference; the management costs will be the same. The costs per job may be different, but the management costs of setting up the framework will be there and it seems likely to me that they are going to be expensive. We need to know how much the Government expect it to cost. There are all sorts of other instances from which they can extrapolate figures. Maybe it is just 'Wouldn't it be nice...'.
Lord RookerMy Lords, I shall address the points that the noble Baroness, Lady Carnegy of Lour, made about what were not perhaps the halcyon days of the Manpower Services Commission. I just ask her to remember that the Home Secretary, David Blunkett, entered the House of Commons in 1987. He entered as leader of Sheffield City Council. Therefore in the early 1980s I think he was more than well aware of the Manpower Services Commission, since as I recall its headquarters were in Sheffield. I, too, remember the criticisms in the early 1980s and some of the make-work schemes, and the way the MSC was really taken for a ride by lots of false community groups who went out and printed notepaper and created a group overnight, and got their handouts.
However, we are not living in the same world. Today some 28 million people are working in this country, but back in the early 1980s anyone would have said that that would be impossible to achieve. It is also virtually impossible today to be better off on benefits than working. We are living in a different world, one in which careful and sophisticated research is undertaken into training for genuine economic activity. That is not to criticise the MSC, which was a pathfinder operation

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in those early days. I do not knock it. At the time there was a crisis with 3 million people unemployed. Something had to be done. However, the experience of the past decade or so, stretching back to the days before the present Government, means that we have enough expertise to ensure that we can provide good and purposeful activity.
I do not have individual figures for the costs. Indeed, even though the amendment is probing in nature, it is worth pointing out in response to what was said about the use of the words in other legislation that we do not believe that the proposed wording in the amendment would alter in any way the meaning of the clause, and is therefore unnecessary. Parliamentary counsel concurs with that view.
We want the Secretary of State to have some flexibility. We do not want to be restrictive at this stage. Community activities will not be limited to one particular task to be performed by everyone. Local authorities may or may not be involved. We have not conducted any consultation at the present time. This is a late addition to the Bill and, while it is not a unique procedure, it is unusual to recommit to the Committee stage. But we thought it best to raise and debate the issue in Parliament and then conduct the detailed consultations. However, we would certainly want to utilise any available skills of those affected and we would seek their views and preferences on the nature of the activities that would be most suitable for them.
As I said, however, there is no practical difference between the wording in the Bill and that of the amendment. The Secretary of State would be responsible for determining what activities would be suitable, and it is not that he would be able to act on a hunch. He could not get out of the wrong side of the bed one morning and decide to impose restrictions or suggest other activities. He must act reasonably in all cases. If not, his actions would be brought before the courts and subject to judicial review. It is not that he could act on a whim.
At this stage, and on the narrow issue of the wording and how the Secretary of State can lay down what might be thought of as suitable activities, I am quite happy to have this looked at again for the next stage, Third Reading, to clarify why this flexibility is needed.
I have not talked about work, accommodation and so forth. I was not thinking of a plumbing gang, or one of electricians, or a group knocking down walls and rebuilding staircases. The work may involve decorating or clearing rubbish, or perhaps cleaning stair and hallways, or maintaining gardens. It may also involve environmental work in the immediate vicinity of the failed asylum seeker, or assisting a local support group involved in similar activities, perhaps relating to the community to which the asylum seeker belongs. But, as I said, we have not conducted any detailed consultation; that is to follow. However, at this late stage, we have a radical and important proposal—I do not deny that—dealing with the policy point of ensuring that when asylum seekers go home, as they will
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eventually, they are not able to say to their compatriots, "You can always get something for nothing in the United Kingdom". That message will stop.
Baroness Anelay of St JohnsMy Lords, I am grateful to all noble Lords who have supported my objective here, which was to probe further what the Government are seeking to achieve by this policy proposal. The noble Lord, Lord Avebury, made the very proper point that some people among the target population will have skills that could be of real benefit to our community, but will not be in a position to use them because their stay over here will either be short or its length will not be determined. They will be difficult to manage effectively because they will not be able to say for how long they will be able to commit themselves.
The noble Lord, Lord Avebury, mentioned doctors in particular. We will all have seen the press reports over the past couple of weeks claiming that there is a considerable number of doctors among failed asylum seekers who could be of assistance, but who at the moment are not able to give anything back to the community. However, if the Government are able to make use of those skills in a constructive and cost-effective way, I do not think that any Member on these Benches would have qualms about the policy. We seek only a clearer picture of the kind of work that the Government are going to direct.
My noble friend Lady Carnegy took our minds back to the days of the Manpower Services Commission. I accept the historical case and the points made by the Minister, but I think that my noble friend sought to point out that whatever are the activities undertaken by failed asylum seekers under this scheme, they cannot be artificial, otherwise the scheme will not carry any credibility among the public, who will be paying for its management. It is important that the activities are of real benefit.
The noble Countess, Lady Mar, referred to the fact that the costs will be borne around the country. Someone will have to manage failed asylum seekers, even if there is only one such person in an area, on one occasion over a period of five years. A management team with the appropriate skills will have to be set up and those skills maintained because they cannot be allowed to fall away. Those probing questions were very valid.
The Minister looked first at the actual wording of the amendment, as must all Ministers, and responded by saying, as he did in Committee, "Bad luck, don't think that this adds anything to the Bill because it means exactly the same as the wording we have already". It is intriguing to note that on certain occasions in the past the Home Office has agreed to the addition of the words "reasonable grounds for believing"; but I shall not quibble on that. Provided that the Government intend that there should be a reason for the Secretary of State to believe that there will be a benefit before he makes a direction, that would satisfy me. My amendment seeks to probe the nature of the new beast of directed labour.
The Minister said that the Home Secretary wants flexibility. The department is looking forward to considering how to develop the policy and will put it out to consultation. But the difficulty here is that, when the Home Secretary was asked by the press why he was doing this when the announcement was first made, his response was clear: because the Government had time to recommit it to the House of Lords and the procedure could be dealt with in this place. That is certainly a good reflection of his view of this House and I am pleased that he values us so highly. I shall remember that on the next occasion we engage in ping-pong. Given that he values us so highly as to make recommitment possible, I hope he will remember that the recommitment of these clauses will work effectively only if we have something that we can scrutinise properly. At the moment, I feel that I am tugging at cotton wool and not getting very far.
However, given that the Minister has, as always, properly and generously said that he will look again at these issues before Third Reading, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy SpeakerMy Lords, before proceeding to the next amendment, I must correct the voting figures for the Division that took place earlier on Amendment No. 1. The Not-Contents should have been 124 rather than 123.
4.30 p.m.
Baroness Anelay of St Johnsmoved Amendment No. 3:
Page 11, line 45, at end insert—
"() prescribe the circumstances in which failure to comply with any requirement to participate in community activities shall constitute a breach of that requirement;"
The noble Baroness said: My Lords, Amendment No. 3 looks at a very different aspect of the proposals for directed labour and concerns what the Government have done to look at the way in which breaches of the conditions imposed by the Secretary of State will be handled. New Clause 10 gives the Secretary of State the right to make it a condition of a failed asylum seeker receiving accommodation to participate in community activities.
I made it clear in Committee on recommitment, at col. 656 on 15 June, that the Government should explain to the House how they will deal with breaches of any requirement that is imposed as a result of subsection (6). Who will make the decision in the first instance about whether a person has properly performed their directed labour? Will there be guidelines to cover all organisations which take on the management role? Who will monitor the application of those guidelines? Will it be the IND? Who will do that?
I have in mind the debate on 17 June 2004 on the statutory instrument that brought into effect the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2004 (Hansard: col. 908). That code prescribes stringent monitoring arrangements. It also
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puts the burden of proof on the offender to prove to the police that the condition has been met. That raised in my mind where the burden of proof lies in that. Is that the kind of approach that the Government intend with regard to the imposition of conditions in Clause 10?
Does the failed asylum seeker have to prove that the conditions have been met? Or does the Secretary of State have to prove that they have not been met? Where does the burden of proof lie in this respect? I beg to move.
Lord AveburyMy Lords, I certainly agree with the noble Baroness, Lady Anelay, that we need more information about that. If you take the case that the Minister advanced, that the person would be working locally and he might even be doing some repairs on the accommodation given to him under these conditions, will a building inspector come along and look at the work? Does it have to be carried out properly? Or is it satisfactory that the person simply attends for a number of hours specified in the guidelines, irrespective of the quality of the work that he has done?
I said on the previous amendment that I dread to think what would happen if these failed asylum seekers are let loose on the plumbing or the electrics of the accommodation that they occupy. But supposing that they are, many of them will not be skilled in plumbing or electricity, and the quality of the work may be—to put it mildly—a little variable. Does that matter? If the person has applied himself simply to the task specified for a given number of hours, has he complied with the conditions which are laid down?
None of these questions has been answered. The Minister keeps on telling us that there will be guidelines at some point, but it is not satisfactory for Parliament to adopt a scheme on the blank-cheque assumption that at some point the guidelines will lay down properly exactly how the scheme is supposed to work.
Baroness Carnegy of LourMy Lords, the noble Lord, Lord Avebury, is absolutely right, as is my noble friend. When the Minister was answering the last amendment, he said—probably addressing his remarks to me that it was important that the message that the failed asylum seekers took home when they eventually went, was that you do not get something for nothing in this country. Of course, I agree with that. That is a message that needs to go abroad with them and be spread about among their colleagues, and so on, who might be contemplating the same course of action as they have followed.
But there is another message about the justice that they met in this country. It is very important that they go away feeling that they knew what they were supposed to do in this job, they knew what they had to do in order to succeed and they knew in what respect they would fail. So it has to be absolutely clear. That message has to go abroad as well. The two should go together. I am sure that the Minister is nodding; he sees the point of what I am saying. But it means that this

33
scheme has got to be pretty clear and—to use a Scots expression—"I ha'e ma doots" whether that is possible.
The Countess of MarMy Lords, the Minister keeps saying that we will see all these facts emerging in secondary legislation, but he must bear in mind that we have no ability to turn back secondary legislation. We might on paper, but that is very rarely done, and particularly if it is an affirmative instrument. So we are being presented with a fait accompli, not knowing what the "fait" is that is to be "accompli".
I am very unhappy about everything that is presented to us in these amendments. They were late, as the noble Baroness, Lady Anelay, has reminded us. The problem has been about for a very long time, as I said to the Minister in Committee. Her Majesty's Government are being unreasonable in asking us to agree something which has no basis, no solid foundations. We cannot do it.
Lord Donaldson of LymingtonMy Lords, might I raise what I admit to be a lawyer's point, though I also think it is a point of good governance? You should not have a series of requirements and go on to provide what happens if you ignore them. The requirements themselves should contain their own exceptions. You either require, or you do not. That approach is, I think, a novelty. Certainly it is something which, as a lawyer, I very much regret.
Lord Mayhew of TwysdenMy Lords, would the Minister undertake to give a clear answer to the point raised by my noble friend Lady Anelay about the burden of proof and where it lies and what the standard of proof shall be? Whether he or she has accommodation is of great importance to the failed asylum seeker. It is of extreme importance that this House should know what the legislation will provide so far as where the burden of proof lies.
I wonder whether the Minister is satisfied that a matter of that importance should be left to secondary legislation—to the regulations themselves when they are brought forward. I would like him to consider the suggestion that it ought to be on the face of the Bill.
Lord RookerMy Lords, I agree entirely with the point made by the noble and learned Lord, Lord Mayhew. That is one of the areas that we only glanced at in Committee. I hope therefore that the assurances I am about to give will satisfy noble Lords on that point.
Amendment No. 3 would insert the provision for the Secretary of State to prescribe the circumstances in which failure to comply with the condition to perform community activities would constitute a breach of that requirement. The clause as contained in the Bill already allows the Secretary of State to set out in regulations the circumstances where a failure to comply with a condition of support under Section 4 would lead to termination of that support. So, in some ways, we do not believe that the amendment is necessary, but it is clearly helpful.
I will remind my right honourable friend the Home Secretary—as I have done in the past—that the level and quality of scrutiny of Ministers in this House is far superior to that in the other place. I will not be contradicted by anybody on that, because I have experience of both. But one does need something to scrutinise, and I fully accept that I have not got all the answers here today. What I want to do is set out in broad terms how we envisage the arrangements working although I accept that I have to come back with more precise details later.
In introducing the new clause in Committee, I emphasised how we believe that those in receipt of Section 4 support should give something in return. It follows from that that there should be a sanction if someone fails to comply with a requirement of that support. So, a person failing to comply with a requirement to perform community activities—and I emphasise that they are community activities—or failing to comply with the other conditions under which Section 4 support is provided, would be liable to have that support removed.
It is worth stressing that we have recognised that there will be exemptions from the requirement to undertake community activities. We need to take account of situations where a person is unfit or unable to participate, or situations where they are temporarily unable to do so—where, for example, they are attending an interview to get their travel documentation organised. That is not a five-minute task in these circumstances. So when I refer to a breach for a failure to undertake community activities, I am dealing with those people who are able to participate and, indeed, expected to do so.
We have to he reasonable in operating this system. We do not envisage a situation where support would be terminated immediately as soon as we identify that a person has not taken part in an allocated activity on a particular day. We would naturally want to establish why that person had failed to participate in the community activities and whether there was a good reason for not having done so.
This means contacting the individual and the organisation managing the community activities or accommodation. I am presuming that a record system will be clearly set up and that there would not be any argument about whether the person had turned up to the activity in the first place. The records should be adequate for that. So, if a person has not turned up, we need to find out why.
Where we believe it to be appropriate, the failed asylum seeker might be issued with a warning. It would be quite reasonable not to apply the sanction at the point when it was first thought a breach had occurred. This would remind the individual of the requirement to perform the community activities as a condition of receiving support and the consequences of failing to do so. This is similar to normal, good human relations practice in industry for breaches of contracts of employment and so on.
Failure to participate again after the warning would lead to a termination of support unless there was a reasonable excuse for not having done so. We would need to consider all the circumstances of individual cases. However, I hope that it will not be seen as a matter of a person not turning up and of support being immediately withdrawn. That will not be the situation.
I should remind your Lordships' House—I alluded to this in Committee without giving any detail—that there will be a clear safeguard of a right of appeal to the asylum support adjudicator, who will be able to examine the reasons for the Secretary of State's decision and consider whether it was reasonable in all the circumstances.
It is important to emphasise that a person from whom Section 4 support is withdrawn will be able to reapply provided that he or she accepts the conditions under which the support is provided. So there is a very clear way in which a person can avoid the consequences of termination of the support.
I cannot go into further detail at present. I hope to come back with more information at Third Reading and by the time of the regulations, which I freely accept are not amendable. But there is nothing new in bringing forward a proposal in principle in primary legislation that is to be operated by regulations which, although not amendable, can be subjected to fairly detailed scrutiny.
The safeguard in this legislation is that the Secretary of State cannot act on a whim—he has to act reasonably—and there will be a right of appeal to the asylum support adjudicator against the Secretary of State's decision on the circumstances of the person concerned. I hope that these assurances will be sufficient for today. I hope to come back with further information at later stages of the Bill.
Baroness Anelay of St JohnsMy Lords, I shall cut to the chase first and then go into more detail. We will need to return to this matter at Third Reading. I thank the Minister for making it clear that he expects that to be necessary and that he will try to come forward with further information.
The Minister said that there is nothing new about this; that it is not very rare to have a recommitment at this stage. It certainly is very rare. I know that it occurred in the Nationality, Immigration and Asylum Act 2002 because I was the beneficiary of that in my first ever Bill as a spokesman on Home Office matters. So I have been there, done that and got the T-shirt. However, it is certainly unusual.
I know that at the moment in another place the Government are seeking to insert a completely new section of policy into the Domestic Violence, Crime and Victims Bill. We shall have words to say about that when the Bill returns to this House. I am going to assist the Government—I am going to say something nice
about them, just briefly—because the difference with
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that Bill is that the Government have gone out to consultation first. They have now received some responses into which the Commons can now get its teeth, if that is not a mixed metaphor, and we shall have further discussions when that Bill returns here.
The difficulty with this Bill is that we have the headlines without too much of a story. Although the story is beginning to be written through the good offices of the Minister, we have not got the consultation. This is why we are all finding it very difficult to assist the House and the public generally to get a better picture of what the Government are trying to achieve. I think that I am on the Minister's side on this issue, which many others are not. So if I can make his life difficult, I am sure other people do far better.
4.45 p.m.
I am grateful to the noble Lord, Lord Avebury, for returning to the issue of whether it is the quality or quantity of the performance that will be important. When he asked his question, it reminded me that another cost that we will have to throw into the pot is that of insuring these people and those working with them when they are taking part in these activities. That may well be a considerable amount.
My noble friend Lady Carnegy rightly referred to the importance of clarity in this policy. I am concerned that unless there is certainty in the policy proposed, there will be challenges to it and the Home Secretary will be back in court again.
I am grateful to my noble and learned friend Lord Mayhew for considering not only the issue of the burden of proof, which I raised, but also the important issue of the standard of proof. When the Minister responded to my noble and learned friend, he explained how the picture looks so far and how the process will go ahead. He was trying to be as helpful as possible. He said that the sanctions have to be reasonable; that one has to establish why a person has failed to perform work and whether there is good reason; and that he or she could be cautioned first.
I shall read very carefully in Hansard the Minister's explanation but it looks to me as though the burden of proof will shift as the decision-making process goes on. The burden of proof seems to start with the department and then shift to the individual. I want to consider carefully this issue and may wish to return to it in the future.
I was particularly intrigued by the comments of the noble and learned Lord, Lord Donaldson. He said that this provision was something of a novelty and I shall want to consider his view between now and Third Reading. Before I sit down, I give way to the Minister.
Lord RookerMy Lords, for the avoidance of doubt, when I said that this is not unusual I was referring to the fact that this is primary legislation which will be activated by regulations. The procedure of recommitment is unusual—I accept that—but it is not unique; it happened

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with the Water Bill and the previous asylum Bill. But it is not unusual to have the operation of the detail in regulations.
Baroness Anelay of St JohnsMy Lords, I agree entirely with the Minister. I am sure that we will both work together to ensure that what is unusual does not become practice—because it would certainly be bad practice. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Accommodation for Asylum Seekers: local connection]:
Lord Rookermoved Amendment No. 4:
Page 13, line 11, after "apply" insert—
"(a) to the provision of accommodation for a person in a district of a local housing authority if he was subsequently provided with accommodation in the district of another local housing authority under section 95 of that Act, or (b)"
The noble Lord said: My Lords, as I have explained previously, Clause 11 is designed to support the Government's policy of dispersing asylum seekers to appropriate areas of Great Britain in those cases where they are in need of accommodation and encouraging and supporting them to settle in the dispersal areas. It seeks to ensure that, in so far as possible, an asylum seeker establishes a local connection with his or her dispersal area for the purposes of Part VII of the Housing Act 1996—that is, the homelessness legislation.
This will mean that local authorities in other areas can refer former asylum seekers to the local authority in the area where they were dispersed, if they are owed a main homelessness duty and have not established the local connection for any reason in the area where they are making their homelessness application.
Amendment No. 4 seeks to solve an operational difficulty of Clause 11. As drafted, Clause 11 provides that a person establishes a local connection—we discussed in detail in Committee the purpose of the need for a local connection, so I shall not go into that—with any area where he or she is provided with accommodation under Section 95 of the Immigration and Asylum Act 1999. However, in some cases, accommodation may be provided under Section 95 in
more than one area. That may include accommodation provided on an emergency or interim basis prior to dispersal.
That does not fully achieve the Government's policy for two main reasons. First, it is intended that asylum seekers should establish a local connection with the area to which they are dispersed, but, generally, not with an area where they are provided with emergency or interim accommodation. Dispersal areas are carefully selected for their capability to support longterm integration of former asylum seekers. Emergency or interim accommodation is not necessarily in an area which has the infrastructure to support integration. Secondly, although it is not exclusively the case, much emergency and interim accommodation is located in London and the south-east where the pressure on
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social housing and other local government services is most acute. Of course that was the very reason why dispersal was introduced in the first place.
If an asylum seeker were to establish a local connection with an area prior to dispersal—for example, where he was provided with emergency accommodation in a district in London—and then, following a positive decision on his asylum claim, he became a refugee and sought homelessness assistance in that London district, the housing authority in London would be unable to refer the case back to the housing authority in the dispersal area. That is because one of the conditions for referral of a homelessness case is that the applicant has no local connection with the district of the authority to which the application has been made.
Moreover, even where a former asylum seeker makes a homelessness application in an area where he has no local connection, it would confuse matters if he had established a local connection in more than one other area as a result of being provided with accommodation under Section 95 in those areas. Amendment No. 4 would therefore ensure that the local connection is established with the last district where accommodation is provided under Section 95.
In the context of the asylum dispersal process, the last place where Section 95 accommodation is provided will be the dispersal area, rather than an area where emergency or interim accommodation has been provided. In cases where asylum seekers are not dispersed—that can be for many reasons—and are provided with accommodation under Section 95 in the area where they make their application for support, a local connection would be established in that area.
Finally, I address a point that I undertook to consider when we debated Clause 11 in Committee. Some concern was expressed that the clause heading was somewhat misleading in its reference to asylum seekers, since the clause deals with homelessness assistance for former asylum seekers who have been granted either refugee status or some other form of leave to remain. I have taken advice on the matter and I am satisfied that the clause heading is, in fact, correct. While it is true that we are looking at whether former asylum seekers have established a local connection, they will have done so when they were asylum seekers—that is, prior to the decision on their asylum application. We therefore consider that the clause heading as drafted is proper, which I was very interested to learn. I beg to move.
Baroness Carnegy of LourMy Lords, the Minister has explained the matter very carefully. I think that I understand what he has said. May I take it that the clause heading will still apply if the amendment is accepted?
Lord RookerYes, my Lords.
Baroness Carnegy of LourMy Lords, while we are discussing the reasons for dispersal, will the Minister explain one matter? I read in the press that 25,000 empty houses across the country are rented by the

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Government for the purpose of housing asylum seekers. They are empty but are costing the public £100 million a year. They are still empty because, when they rented the houses, the Government omitted to include a get-out clause to enable them to escape from the commitment when they no longer wanted the houses. Will the Minister confirm that? If it is true, it would be the most extraordinary waste of public money, and are the Government trying to do anything about it?
Lord RookerMy Lords, I cannot answer the detailed point that the noble Baroness raised. If we had a large increase in the number of asylum seekers but not had accommodation available, we would have been rightly chastised. A degree of flexibility must be built into the system. I am not dismissing the costs that the noble Baroness quoted. Running the system costs more than £1 billion per year, which is the cost to the taxpayer. Some of those properties may have been held for a long time and rented on long-term contracts—which was the case when the national asylum support system started. As a result of dispersal and the potential collapse of social services in Kent, East Sussex and some of the London boroughs, there was a desperate need to spread asylum seekers around the country. Many emergency and quick-fix measures were taken, which the Government were duty bound to take, but I make no apology for that whatever.
I cannot comment on individual contracts, but there will always be empty properties simply because of the ebb and flow of the asylum list. The number of asylum applications has been cut in half and not every asylum seeker seeks accommodation. When a person claims asylum, we do not know whether he has accommodation in his community until he actually makes a claim. That is the reality. We cannot plan for what will happen when 70,000–80,000 asylum applications per year are being made. That figure has halved in the recent past so there is bound to be a surplus from time to time. I have given the noble Baroness a common-sense answer, without going into the detail of the 25,000 properties which she cited. It would not be possible for me to do that in any event.
On Question, amendment agreed to.
Clause 12 [Refugee: back-dating of benefits]:
Lord Rookermoved Amendment No. 5:
Page 14, line 23, leave out "paragraph" and insert "paragraphs 61 and"
The noble Lord said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 6, 7, 8 and 9. Clause 12 expressly revokes the regulations which set out the current backpayments system that was established in Section 123 of the Immigration and Asylum Act 1999. I am pleased to announce that Amendments Nos. 5, 6, 7 and 8 make additional minor consequential changes to the regulations on housing benefit and council tax benefit as a result of these changes. They are not matters of substance.
Amendment No. 9 deals with an earlier backpayments scheme established under Section 11(2) of the Asylum and Immigration Act 1996. It would
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revoke the regulations which preserve it for transitional purposes. Although the vast majority of claims for backpayments of income support are now made under the 1999 Act, to which I referred earlier, we want to ensure that the policy is applied consistently. Our policy is that backpayments will cease for all those who are recorded as refugees after the clause comes into effect, irrespective of when they made their claim for asylum; that is, irrespective of whether the application is covered by the 1999 Act or the 1996 Act. I beg to move.
Lord AveburyMy Lords, the amendments shed light on another example of the hasty and sloppy drafting of clauses in the Bill, particularly that of Clause 12, which repeals the backdating of benefits. References to benefits payable to refugees are buried in a whole warren of statutory instruments and the drafters of Clause 12 obviously picked up just some of them.
Section 123 of the Immigration and Asylum Act 1999 allowed a person who was recorded as a refugee, and who had not been entitled to any of the benefits specified in Section 115 during the period when his claim for asylum was under consideration, to claim back payment of the amount of benefits of various kinds to which he would have been entitled but for the provisions of Section 115. The repeal of Section 123 makes it necessary to remove the references in the secondary legislation to the benefits treatment of refugees since, at the point they are recognised, they will be dealt with in the same way as a British citizen.
5 p.m.
The two sets of regulations already amended by Clause 10, which are now to be further amended by Amendments Nos. 5 to 8, have been updated several times already. Although Google finds some of the previous amendments, in the public domain there does not seem to exist a consolidated version of either the Housing Benefit (General) Regulations or the Council Tax Benefit (General) Regulations. How on earth benefit practitioners, let alone claimants, manage to find out whether they have any entitlement under those labyrinthine instruments is impossible to imagine.
On a previous occasion, Lord Williams of Mostyn said that he was thinking of having a T-shirt printed that read:
"'I have always been attracted to Keeling schedules—Earl Russell'".—[Official Report, 13/11/00; col. 120.]
It would be even better if the departments which pile regulations on regulations, year after year, were compelled to publish on their websites the Keeling schedules of the statutory instruments concerned that they no doubt produce for their internal use.
At least Amendment No. 9 refers to regulations made in 2000 which have not yet been amended, so one could begin to see what it meant before the Minister's explanation. Regulation 12(1) simply applies Regulation 12(2) to a person who claimed asylum before 2 April 2000 and was then successful. But Regulation 12(2) refers to the income support

41
regulations, which are not available in consolidated form. We understand the logic of repealing the backdating, although we disagree with the Government's arithmetic; we shall come to that tomorrow evening. We can only hope, without much confidence, that the whole set of provisions in the clause that deals with backdating has finally been identified, and that others will not emerge after the Bill has left us and it is too late to deal with them.
Lord RookerMy Lords, I should say, on a point of principle, that I do not know the details of the regulations on housing benefit and council tax that get consolidated. However, I have always thought it most unfair that the only general annual consolidation of the legal arrangements was in tax Acts. It seems as though the whole system is geared up for to tax practitioners and everyone concerned with that, but benefit lawyers and others assisting people in receipt of and claiming benefit do not get the consolidation that the tax lawyers get on a regular basis. What is more, that is not conducive to the good conduct of public administration. I have no policy to enunciate today about that, but in some ways I agree very much with what the noble Lord said.
On Question, amendment agreed to.
Lord Rookermoved Amendments Nos. 6 to 9:
Page 14, line 24, leave out "paragraph" and insert "paragraphs 50 and"
Page 14. line 35, leave out "paragraph" and insert "paragraphs 60 and"
Page 14, line 36, leave out "paragraph" and insert "paragraphs 50 and"
Page 14, line 36, at end insert—
"(2A) Regulation 12(1) and (2) of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (S.I. 2000/636) (which save for transitional purposes the effect of provision made for back-payment of benefits for refugees under section 11(2) of the Asylum and Immigration Act 1996 (c. 49)) shall cease to have effect."
On Question, amendments agreed to.
Clause 13 [Integration loan for refugees]:
Baroness Anelay of St Johnsmoved Amendment No. 10:
Page 15, line 8, leave out "appearing to him to be" and insert "he has reason to believe are"
The noble Baroness saidMy Lords, in moving Amendment No. 10, I shall speak also to Amendments Nos. 11 to 15. The purpose of the amendments is to ask the Government to put on record some explanation about their new loans for refugees and how they will be operated. I live in hope.
In Committee, the Minister said:
"I have some notes but they do not go into detail. I shall have to do that on Report and when we come to the regulations".
Now is his opportunity for the first stage of the explanation. He said that the Government were,
"currently conducting detailed work across departments—including the Department for Work and Pensions and, obviously, the Treasury—to establish how the loan might best be delivered. I am not in a position to give that information today".—[Officiol Report, 15/6/04; cols. 673–74.]
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What information can he give to the House? What progress has been made?
Amendment No. 10 returns to the familiar theme of asking the Secretary of State to be required to take actions based on objective rather than subjective grounds. I accept the assurances given by the Minister to my earlier amendment, with regard to the fact that he considers that the Secretary of State is bound to act reasonably. Subsection (3) provides that regulations shall specify matters that appear to the Secretary of State to be relevant when he is deciding whether a loan should be made.
I have kept the amendment not only because I did not have reassurance on it previously, but because, when I considered the drafting of subsection (3) a little further, I wondered whether it was curious in terms of its construction. Does it accurately reflect what the Government intend? It makes it look as though the matters that the Secretary of State shall specify do not have to be those that appear relevant. That cannot be what the Government intend, but it is simply a result of the way in which the subsection is constructed. The reference to relevance is in the subsidiary part of the sentence, which seems to refer to only the additional matters, not the main ones. Might the Minister ask the draftsmen to have a look at that before Third Reading?
Amendment No. 11 has been tabled to ask the Minister to explain why the Government have restricted so closely the list of criteria set out in subsection (3)(a). The list illustrates the reasons why someone might receive a loan. My amendment says that the Government should also take into account the refugee's family responsibilities—whether he or she is responsible for a child or dependent adult. It also includes in the criteria consideration of whether the refugee has a partner or spouse with assets or income that can properly be taken into account. One assumes that that would be relevant to the criteria. Surely there would not be occasions when the Government would wish to avoid taking such matters into account.
In Committee on recommitment, the Minister said:
"At this stage... we do not wish to be prescriptive about the matters that may be taken into account when considering whether to make the loan".)
One could be awkward—I enjoy being awkward—and say, if that is the case, why have a list at all? The Government must have started to think about the criteria, because they have started to have a list. There is always the same old problem as soon as one has a list—important issues appear not to be on it. I am certainly not arguing for the absence of a list. I am arguing for greater cogency from the Government about explaining to the House how they will make their decisions.
Amendment No. 12 would give the Secretary of State the ability to make the loan available by paying it in instalments rather than in one lump sum. Might the Government not consider that to be a useful tool? Surely there will be times when a person's financial circumstances change for the better shortly after the award of a loan. It might then be appropriate to give

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the Secretary of State the chance to stop paying any further amounts, rather than having to pay the whole lump sum in one go and then have all the attendant problems of trying to recover amounts later on, if that is what he decides to do.
Amendment No. 13 makes it clear that, when the Secretary of State makes a loan, he should make provision about the level of interest to be paid. In Committee, the Minister said in reference to loans:
"As a matter of general principle, we do not intend that interest will be payable".—[Official Report, 15/6/04; col. 678.]
That raised two questions. First, for what reasons would one not charge interest? Secondly, could the clause be used to charge some people interest and not others, at different levels? If so, could the grounds on which that decision was made by the Secretary of State be challenged as unfair and, if so, how?
Amendment No. 14 is an old friend—the changing
of a "may" to a "shall". In this case it is simply there to ask the Government to explain the purpose behind paragraph (e), which gives the Secretary of State the power,
"to attach conditions to a loan (which may include conditions about the use of the loan)".
What kind of conditions do the Government have in mind—that the loan should be repaid within a
specified period, or used to buy a particular piece of furniture or kitchen equipment?
The last amendment in the group—Amendment No. 15—deletes subsection (3)(i). I remarked in Committee that I think the paragraph an extraordinary part of the clause. So far as I can see, it gives the Secretary of State discretion to do whatever he likes, regardless of what is in the rest of the clause. It looks as though the Government decided that they could no longer work out what the clause should provide and therefore it is a catchall to say that the Secretary of State can do what he likes.
I remain convinced that this is too much of a blank cheque but I am open-minded. I hope that the Minister can give us further information on why this apparently blank cheque has a bit of writing on it to which one can sign up. I do not want to see a system put in place that forces the Government to provide loans whatever the circumstances. Equally, I want a system put in place that is fair to the beneficiaries—the refugees we are trying to assist to become integrated in this country.
At col. 680, the Minister offered to give further consideration to the drafting to which I referred in Amendment No. 15. I tabled that amendment simply to give him an opportunity to fulfil that commitment. I beg to move.
Lord AveburyMy Lords, Amendment No. 15 concerns the discretion which is given to the Secretary of State under paragraph (i). Will it be exercised differently for the three classes of asylum seekers according to the incomes they received when their applications are under consideration?
As a result of the withdrawal of the backdating, we will have, first, people who have received the full support, the equivalent of 90 per cent of income support; that is,
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subsistence payments plus accommodation costs. Secondly, there will be people who have received only of subsistence; that is, 70 per cent of income support. Thirdly, there will be people who, unfortunately as a result of Section 55, have received no support and will have been living on thin air during consideration of their application. The discretion of the Secretary of State under paragraph (i) could be applied differentially in favour of people who have been kept on short commons during the period of their application.
However, under subsection (3)(a)(i) and (ii), a person's income or assets and his likely ability to repay the loan must be taken into consideration by the Secretary of State. Therefore, a person who has been kept on the lowest possible income—or zero income because of Section 55—is likely to be denied a loan because the Secretary of State will be doubtful of his ability to repay. Such a person will have lost out twice. He will first have been deprived of support during the whole period of his application and then when he asks the Secretary of State for a loan he will be refused because his ability to repay will be in doubt. Was that really the intention behind the provision?
Baroness Carnegy of LourMy Lords, if the Government decided to have a loan scheme, they must have considered some of the aspects raised by my noble friend Lady Anelay in these amendments. It will be interesting to hear how far the Government have gone on the thinking behind these provisions and to hear the Minister's reply to the noble Lord, Lord Avebury, who knows at first hand how the interaction of benefits with such a loan will work.
In particular, the Government should be able to answer Amendment No. 11 about whether children and dependent adults will be taken into account and likewise,
"the income or assets of a person's spouse of partner".
I am particularly interested to hear the response to Amendment No. 15 because the wording of paragraph (i) is extraordinary. The Secretary of State seems to be able to do anything he likes about anything. Reading the Bill, I cannot see how the discretion is limited.
5.15 p.m.
Lord RookerMy Lords, perhaps I may start first on a winner—Amendment No. 12—because I moved my pages around as noble Lords spoke. It seeks to ensure that a loan can be made by instalments. We are intrigued by the amendment and at first glance what we understood to be the motivation behind it would appear to have considerable merit. There is no question about that. However, although we have included a provision on the face of the Bill to prevent a refugee receiving more than one loan, in the case of a larger loan there may be much sense in staging payments to the applicant.
It is the impression that the spirit of the noble Baroness's amendment could be achieved by the clause as drafted: by conferring a discretion on the Secretary of State to make a loan by instalments. This might go

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some way to providing a reassurance, but we are going to take that amendment away and look at it. I hope to come back with further clarification at Third Reading.
The rest is not all negative, but I thought I would start with that amendment because it was my best shot. I hope that I can satisfy noble Lords with a little more detail than I was able to give on the first two or three amendments.
Amendment No. 10 seeks to amend those matters that the Secretary of State may take into account in determining whether or not to make a loan from those that appear to him to be relevant to those that he has reason to believe are relevant. We discussed the matter in Committee and we discussed a similar amendment in relation to Clause 10. I hope to provide further reassurance that we believe the amendment is not necessary.
I have explained that in relation to Clause 10 we continue to believe that in practice there is no difference between the wording that appears in the Bill at present and that proposed in the amendment. Where it appears to the Secretary of State that a matter is relevant, I think we can also say that he has reason to believe that that is the case.
From our previous discussion of the amendment, I understand that the noble Baroness seeks reassurance that the decision to make a loan will be based on objective grounds. As I will explain in more depth in response to the next amendment to the clause, the Government are keen to ensure that matters to be taken into account by the Secretary of State are sensitive to the particular features of refugees. Of course, the Secretary of State will have to act reasonably in determining matters that shall be taken into account when considering the loan application.
Amendment No. 11 seeks to add two further matters to those that the Secretary of State may specify in regulations that he shall take into account in determining whether or not to make a loan. These are,
"whether or not that person is responsible for a child or dependent adult",
and,
"the income or assets of a person's spouse or partner".
The Government are aware that refugees are newcomers to the country and in many cases have not had either the time or the means to establish the necessary credit- worthiness to access low-cost loans through the commercial sector. It is self-evident that before they become refugees they cannot work. That is not to say that they are completely asset-free. Although the Home Office has no desire to enter the banking industry, we do wish to ensure that refugees can access a fund to help them establish themselves in the UK. It is important therefore that the criteria used to assess whether or not a loan should be made recognises that refugees cannot be considered against the same criteria applicable to the rest of the population. It is important we give this careful consideration if we are to identify criteria which do not militate against refugees receiving a loan.
Furthermore, the Government wish to make loans according to need and may wish to take into account a person's income and assets. I believe that in doing so it would make sense to consider the demands placed on the income and assets, such as the obligation to care for a child or dependent relative.
The Government wish to move towards a system that allocates funds on the criterion of need, but it is important to balance that with administrative costs. I have no doubt I shall be reminded of that sentence when we come back to the subject we debated in the first group of amendments today. Noble Lords are aware that the loan scheme will be funded solely from savings made from the abolition of back payments. We are committed to identifying a system to disburse loans which costs as little as possible in terms of administration, thereby leaving as large a proportion as possible for refugees. I emphasise that the loans will come from the savings. Therefore, so as not to undermine what I said about the first couple of groups of amendments and so as not to have my words thrown back at me, a financial "curtain" will apply.
The list in subsection (3) is not intended to be exhaustive; rather, it is an illustration of matters which the Secretary of State may include in regulations as matters that he shall take into account when determining whether or not to make a loan. It will be for regulations, subject to the affirmative resolution procedure, to reflect the detailed consideration being undertaken at present by the Home Office, the Treasury and the Department for Work and Pensions.
Amendment No. 13 seeks to remove the word "interest" from Clause 13(3)(d) and replace it with the words,
"the rate of interest that shall be charged to each recipient of a loan made under the regulations".
As I explained in Committee, the Government do not, at this stage, have any intention of charging interest on refugee integration loans. However, we think it is important that the Secretary of State has the flexibility to make provision about interest in the event that it is needed in the future. Should a decision be taken to charge interest on any loan in the future, I would expect comparisons to be drawn with other loan schemes in operation across government, such as the student loan system. Certainly, in the event that it was decided in the future to charge interest, I believe that it would be a "low-cost" loan under the terms of the Consumer Credit Act. Any future interest rate attached to the loan scheme would be in regulations, subject to the affirmative resolution procedure.
As drafted, Clause 13 enables the Secretary of State to make provision in regulations about interest, should that be necessary in the future. We do not consider the elaboration of the amendment to be necessary on the face of the Bill, and we ask that it is not proceeded with. I hope that what I have said will be sufficient in that respect.
Amendment No. 14 seeks to make it mandatory for the Secretary of State to attach conditions to the use of a loan. It is intended that the refugee integration loan will be used on items and activities that facilitate

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integration. Those could include a deposit for rented accommodation, vocational training, work tools or clothes, and furniture and so on. That is by no means an exhaustive list; it is simply an illustration and a flavour of the Government's intention regarding the use of the loan.
It is important that we retain sufficient flexibility to make a loan for a purpose which facilitates integration but which has not been thought of before. People can be very innovative. They get on their bikes, as it were, and reach this country through all the barriers. Many innovative, entrepreneurial people are out there and they will think up reasons for wanting to integrate activities which we would never think of putting in legislation but which we would want to support. Therefore, we need flexibility, and we do not think that it is right to place a mandatory duty on the Secretary of State to make regulations specifying the conditions which will be attached to the use of the loan.
Amendment No. 15 seeks to remove the regulation-making power which enables a discretion to be conferred on the Secretary of State. I reassure noble Lords that the intent behind subsection (3)(i) is to confer a discretion on the Secretary of State for the purposes of a refugee integration loan. That, and only that, is what the discretion is about. The inclusion of this provision is merely a safeguard to ensure that the pot of money available for disbursement of refugee integration loans can be targeted to refugees who need most help with their integration. Of course, in exercising that discretion, the Secretary of State will have to act in accordance with the regulations and with more general public law principles. Again, as noble Lords would expect, the detail of this provision will be devolved to secondary legislation, where the extent of the discretion will be set out in regulations and will therefore be clear and transparent for all to see.
I thought that I was to respond to one other issue. I may have missed one out but I think that I have covered the points raised in the amendments. I hope that I have given more detail of the way in which we intend to operate the loan and of the purposes of the loan. It is not a loan for all or a loan for any purpose; it is for refugee integration. That is its central purpose.
Lord AveburyMy Lords, before the Minister sits down, could he answer my question about the exercising of the Minister's discretion in relation to the three different categories of persons who receive varying levels of support during the period of their application from 0 per cent up to 90 per cent of income support? How will the Minister's discretion be used to take account of the fact that these people are in varying degrees of destitution?
Lord RookerMy Lords, I do not have a formal answer to that, but the facts are as I set them out in my response to the amendments. At the point that the loan is made, the following questions will be asked. What are the person's assets and income? What does he want the loan for? Is it consistent with the regulations? Is it
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for the purpose of refugee integration? I say to the noble Lord that, with the best will in the world, it is no good trying to rewrite the history of the people who came to this country before they became refugees. I
think that that is what the noble Lord is seeking to do.
Baroness Carnegy of LourMy Lords, before the noble Lord sits down and with the leave of the House, can I ask him to expand a little more on what he said about Amendment No. 15, which seeks to leave out the words,
"may confer a discretion on the Secretary of State"?
He said, in effect, that this discretion is simply to create an integrated loan system. But subsection (3) states:
"Regulations under subsection (1)... may confer a discretion on the Secretary of State".
How does that limit the discretion in the way that he described? Does the drafting establish that and, if so, where?
Lord RookerMy Lords, I am not a lawyer but the fact is that this has happened before in other legislation. Paragraph (i) relates to Clause 13 and to the purposes which this part of the Bill sets out for the refugee integration loan. I said that the intent behind subsection (3)(i) is to confer a discretion on the Secretary of State for the purposes of a refugee integration loan and not for any other purpose.
The inclusion of the provision is merely a safeguard to ensure that the pot of money available for disbursement of refugee integration loans can be targeted to refugees who need most help with their integration. But the point is that, when he exercises that discretion, the Secretary of State cannot act on a whim or a hunch; he will have to act in accordance with the regulations in which the discretion will be set out clearly and transparently and, of course, as I said, he will have to act in line with more general public law principles. Therefore, the provision is exclusively for the purposes of operating a policy of a refugee integration loan.
Baroness Carnegy of LourMy Lords, if the House will permit me, I understand that and I am sure that the Minister is absolutely correct. It is simply that it seems to me that the drafting of the Bill does not give that assurance. The assurance will be in Hansard but it is not on the face of the Bill. The Bill simply states:
"Regulations under subsection (1)... may confer a discretion on the Secretary of State".
Lord RookerMy Lords, if there is any doubt about this matter, I shall take away the drafting and have a look at it. The note that I have is clear but the point may not be clear in the Bill. Therefore, if we need to match the note with the Bill more clearly before Third Reading, we shall do so. I cannot make a concession now; to say that we shall go away and change the Bill would be ridiculous. But if I need to make it clearer, I shall seek to do so at Third Reading.
5.30 p.m.
Baroness Anelay of St JohnsMy Lords, I am grateful to the Minister, who recognises that we are trying to achieve the same objective as the one contained in the speaking notes he used today. What he said on the record today for Hansard gives the kind of clarity which my noble friend and I would wish to see on the face of the Bill. I am grateful for the fact that he will consider the matter again. We appreciate that he may come back with the same advice, but at least we shall have the opportunity further to consider it.
Lord RookerMy Lords, I have just translated a note, which I hope is helpful to the noble Baroness. Subsection (3)(i) has to be read in conjunction with Clause 13(1), which states:
"The Secretary of State may make regulations enabling him to make loans to refugees".
Clause 13(3) then states what those regulations will include. It would be helpful to have, which we cannot, a slide presentation. We would then be able to explain the way in which a clause is constructed, and that various parts are activated by other parts. In other words, subsection (3)(i) does not stand on its own. It has to stand with the trigger mechanism of Clause 13(1). In other words, the Secretary of State is constrained. His discretion is not total. To that extent there is a constraint on him which is consistent with what I said. I hope that drawing attention to those two parts of the clause further clarifies the answer.
Baroness Anelay of St JohnsMy Lords, I do not think that my noble friend and I were quibbling with the interpretation which the Minister has just deciphered from the note from his advisers. Certainly, our concern is that even reading subsection (3)(i) in the context of Clause 13(1), the difficulty may be that it would give the Secretary of State—not this one but a future one who is far less liberal—the opportunity completely to ignore subsections (a) to (h) in the guidance and change regulations so that they were far more draconian than this. We are trying to assist all liberal—with a very small 'l'—governments in future to do what is right.
I am grateful to the noble Lord for saying that he will consider this again. I think that we shall all need to do that. It may be that we all agree in the end that the Bill should stay exactly as it is. In this particular group of amendments, I am now beginning to see the curtain drawn aside on some of the provisions that underlie the new clauses introduced by the Government. I am beginning to have a feeling for how the loans will operate. I hope that that will be read across into some of the other provisions.
I turn to Amendment No. 12. I am grateful to the Minister for saying that he will consider again my proposal that the Secretary of State might be able to make the loans by way of instalments. It was intended, as he perceived it, to be a helpful suggestion. Where a fairly substantial loan may be made, it could be for the benefit of all that that is done in instalments rather than by one lump sum.
I am grateful for the way in which the Minister sought to address the issue of Amendment No. 14, which concerns the conditions on the use of the loan. He said that he was giving not a prescriptive list but an illustrative list. I am sure that noble Lords will take it in that spirit. That is the kind of thing we want to hear; that is, how the Government anticipate that the loans might be used. From what he was trying to explain, I think they will be used to enable activity not to disable it. That is what we want to see.
As regards Amendment No. 10, the Minister gave the usual answer that the drafting does not change anything and that the Secretary of State has to act reasonably. I would be grateful if he could consider again the drafting of subsection (3)(a) and allay my concerns, perhaps by letter between now and Third Reading, that the drafting achieves what the Government intend.
I am concerned that we shall need to consider again Amendment No. 15, but I say that in a constructive sense. I understand that within the context of the regulations in subsection (3) the Government may need subsection (3)(i) to get round the circumstances where the Secretary of State needs to discriminate against and between different types of people who want to make an application for a loan and may want to discriminate on good, not bad, grounds.
There may be occasions where the Secretary of State needs a get out clause, whereby if he has made an award to one person, he cannot be judicially reviewed by another because he has failed to give a loan to them. So, I do not seek to take away the power from the Secretary of State to act equitably on behalf of the taxpayer. What I seek to do throughout all this is to ensure that the rules are applied properly on behalf of all. It is with that approach that I say that I may want again to consider one or two of these issues at Third Reading. Certainly, I shall want to give the Government the opportunity to fulfil their commitment to consider again Amendment No. 12 even if they decide that there is no reason to go ahead with it. At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments. Nos. 11 to 15 not moved.]
Clause 19 [England and Wales]:
Baroness Anelay of St Johnsmoved Amendment No. 16:
Page 18, line 36, after "district)," insert—
"() may only be given if each party to the marriage attends the office of the superintendent registrar at the time of the presentation of the notice under section 27 of the Marriage Act 1949,"
The noble Baroness saidMy Lords, in moving Amendment No. 16 I shall speak also to Amendments Nos. 17 and 25. I made clear in Committee that as far as we are concerned, the trade in sham marriages for the purposes of obtaining residence in the UK is obnoxious. However, we recognise that there are sensitive issues here which must be considered when one is restricting the right of people to marry. We recognise that we must not discriminate against people who arrange their marriages for different reasons in

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different ways. However, it is not acceptable for people to use marriage merely to obtain residence in this country.
In Committee I referred to the press release that was issued by the Government on 22 April. That states that both parties would need to attend one of the specialist register offices in person to obtain authorisation. My problem, when looking at the drafting of the clause, was that I could not see that specific requirement. I asked the Minister if he could point me to the provision and did not receive an answer on that occasion so I simply tabled Amendment No. 16 to ask him for an explanation today. My amendment would require both parties to attend the specialist register office.
I turn to Amendment No. 17. Subsection (3)(c) provides the Secretary of State with the power to specify which other people will be permitted to marry. The purpose of my amendment is simply to ask the Government what will be their reasons for exempting any person or class of person from the operation of this subsection.
In Committee, the Minister gave some indication of when permission to marry would be refused. He stated:
"when the individual is here unlawfully, when the individual has leave to remain in the UK for less than six months, and when it is reasonable for that person to return to their country of origin and apply from there for entry clearance".—[Official Report, 15/6/04; col. 684.]
As ILPA point out in its briefing, the meaning of that is not altogether clear, particularly to which group of people the "reasonable to return" test may apply, although the noble Lord, Lord Rooker, stated later in the debate at col. 698 that those with valid leave to remain of over six months would be allowed to marry.
The problem throughout the debate was that we were not given a clear indication of which categories of people would benefit under subsection (3)(c). I received today from the noble Baroness, Lady Scotland of Asthal, a letter dated 25 June—I will not say "post-haste" because the post was slow; perhaps it was "post-slow"—in which the noble Baroness seeks to address this issue in further detail. Is the Minister able to confirm on the record today the point that was put to me? I believe the letter was sent also to the noble Lord, Lord Avebury, who momentarily is not in his place, but it will not have been seen by outside bodies. The letter states:
"The exact details of this will be set out at a later date"—
I have heard that before—
"but we envisage that those people legally resident in the UK and who have been granted six months or more leave would normally be granted approval to marry, in what will be known as a certificate of approval. Where a person does not meet this criteria, they would be required to return home and apply for entry clearance from abroad unless on the facts of the particular case it is unreasonable to expect a person to leave UK and apply for entry clearance from abroad. This covers all non-EEA nationals, and not simply overstayers and short term visitors, partly on practical grounds. It would be unreasonable and potentially unworkable to expect registrars to investigate the immigration status of all the non-EEA nationals giving notice of a marriage for valid leave to remain. This would require registrars to become pseudo immigration officers, familiar with every stamp, vignette and
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category of leave to remain. By requiring non-EEA nationals to have either entry clearance as a fiance) or marriage visitor or a certificate of approval we are intentionally limiting the burden on registrars and the scope for abuse".
I would be grateful if the Minister could place on the record from the Dispatch Box that that is his understanding of how the subsection would operate.
I turn to Amendment No. 25, which returns to a matter I raised in Committee on 15 June at col. 690 of Hansard. I argued that it was important that there should be some effective system of reporting to Parliament on the clause's operation. It is the first stage of what we hope may be an effective policy to deter those who trade in sham marriages.
We need to know more fully the nature and scale of the abuse so that we can properly assess the effectiveness of the provision in tackling it. In response to my amendment at that stage, the Minister agreed that it was important to keep Parliament informed about the way in which the powers are used and he undertook to review with ministerial colleagues what might be the most appropriate form of a reporting mechanism.
My amendment is intended to encourage the Minister to tell the House what further consideration the Government have given the matter. It would require the reporting system to give the following information as a starting point, although of course other information could be valuable: how many applications have been made and refused in cases where subsection (3) is in effect in England with similar requirements for the provision's operation in Scotland and Northern Ireland.
It is right that the Government should provide information about why applications are refused. If we do not know that, how can we judge whether the refusals are in cases where people simply fail to bring the right evidence with them even though they possess it? We want to be able to see the size of the problem where people are making fraudulent applications. We also need to be given information about the costs involved for those who make applications for marriage within the rules imposed by the new clauses. I beg to move.
Baroness Carnegy of LourMy Lords, my noble friend has done the House a service in asking the Minister to consider those points. They are all important. It was obvious in Committee that the Government had not considered carefully enough a number of matters.
Reading the Committee debate in Hansard, I was impressed by the enormously tolerant, patient and statesmanlike speech made by the noble Lord, Lord Ahmed. Listening to him when he spoke I took in only part of what he said, but reading his speech I saw that it was carefully crafted and put in careful terms so as not in any way to stir up problems for the Government on the matter: there were issues to which he sincerely believed the provisions did not attend.
The Minister overreacted a little. He may have been, as I was, unable to take in fully the tone of the speech and its contents when he listened to it. I had not

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realised its nature as I listened. The noble Lord asked valid questions, some of which are related to what my noble friend said in moving her amendment.
5.45 p.m.
When the Opposition calls for annual reports it is often a matter of form to ask for such a provision and a matter of form that the request is refused. But in this case something has to be done to ensure that Parliament can take account of what happens as a result of the provisions. There are definite causes for anxiety for residents of this country who legitimately want someone to enter the country to marry them and who may find that there are difficulties because it is suspected that such people are coming in for the wrong reasons—reasons of obtaining residence when there is not a proper wish to marry.
I hope that the Minister and indeed the Home Secretary will pay attention to what the noble Lord, Lord Ahmed, said. I respect what he said very much and I am sure that other Members of the House will too if they have taken the time to read his speech. I will be interested to hear what the Minister has to say in response to my noble friend because the points she made are important.
Lord AhmedMy Lords, I am grateful to the noble Baroness for supporting some of the issues I raised last week. Will the certificates of approval apply also to marriages that take place in Church of England churches and chapels or do they apply only to registrars? When the special registrar gives permission and the couple are required to write to the Home Secretary for approval, how long does the Minister think it will take for the Home Office to reply and which documents will be required for permission to be given?
I was in my place last week and I will be interested also to hear what the Minister has to say tonight.
Lord RookerMy Lords, when I replied to my noble friend last week I sought to answer most of the issues that he raised. I want to respond in detail to Amendments Nos. 16, 17 and 25 because they are specific and targeted. There is also the following group of amendments, which seeks to remove six or seven clauses, in which different issues are raised. I want to be able to reply to every point raised because I want to lead the debate so that everyone is happy and clear about what we intend, but it would be easier for me to answer first Amendments Nos. 16, 17 and 25 and then answer the principle issue in the second debate.
Amendment No. 16 would mean that we explicitly state in Clause 19 that each party must attend the designated registration centre to give notice of their marriage. That is unnecessary because the requirement is already set out in the marriage legislation. Specifically, Section 27 of the Marriage Act 1949 requires that each of the parties to a marriage gives notice in the prescribed form to the superintendent registrar. Section 28 of that Act requires that the notice is accompanied by a declaration in writing, made and signed at the time of giving notice by the person giving the notice.
Section 28(2) specifically requires that any such declaration must be signed by the person giving the notice in the presence of the superintendent registrar to whom the notice is given. Therefore the effect of those provisions taken together is that each party to the marriage is required to attend the office of the superintendent registrar at the time of giving notice of the marriage.
However, we believe that the noble Baroness's intention was to have both parties attend the designated centre together. I can confirm that although the tabled amendment does not meet the policy end, Immigration and Nationality Department officials are currently considering introducing such a clause. I shall return to the issue and I shall return anyway to report back on the results of the consideration.
Amendment No. 17 would have the effect that regulations specifying the categories of person to be exempted under subsection (3)(c) would themselves justify the exemptions. As I am sure noble Lords will agree, that would be an odd measure to adopt.
Regulations are designed to set out what the law is and not why it is. I can assure the noble Baroness that, in accordance with existing parliamentary process, we will produce a memorandum for scrutiny—as for the Joint Committee on Statutory Instruments and the House of Lords Select Committee on the Merits of Statutory Instruments—justifying our regulation, as is the usual practice. That will be done. The process already provides a requirement for the Government to justify the terms of their regulations and allows for scrutiny of those reasons in the committees.
Amendment No. 25 would require the Immigration and Nationality Department to produce an annual report of the operations of Sections 19 to 25. I can assure all noble Lords that the Government accept it is important that the operation of these new powers is properly reported to Parliament. It is absolutely crucial that people outside the country and abroad fully understand what is happening with these powers. However, there are certain details within these amendments which would render them impractical in our view. Under subsections (2)(a), (2)(b) and (2)(c) the report would include a record of the number of notifications accepted and refused by registrars and the reasons for those refusals.
The details the amendment would require to be collected in the first three categories do not appreciate how marriage law operates. A person who wishes to marry does not apply for the notice to be entered in the marriage notice book, entered on a marriage schedule or for the registrar to act. If a person meets the statutory criteria, he can give his notice of marriage and these procedures follow automatically. If not, then notice of marriage cannot be given in the first place.
In other words, there is no refusal as such. That is why it would be difficult to collect the statistics. If a registrar is not satisfied that the criteria have been met, he cannot act. Registrars and the registrars general receive many inquiries about the criteria that have to be met in order for a notice to be given and give advice accordingly. They will often be unaware of whether the

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person who wishes to marry meets the criteria and would, therefore, be unable to record whether a person failed to meet the requirements we are introducing or, indeed, any of the other criteria, because it is just a general inquiry.
The collection of this information and the recording of all inquiries, which is what the amendment would require, would add considerably to the work of registrars, certainly increase the cost of the service and serve no purpose in countering sham marriages. This reply is not wholly negative. I give your Lordships forewarning of that.
Subsections (2)(d) and (2)(e) require the report to include the number of applications for entry clearance for the purpose of marriage, for permission to marry from the Home Office, and the number of applications approved and those refused and the reasons for any refusals.
The Immigration and Nationality Department and UK Visas are to produce management information of the numbers of successful and unsuccessful applications they process and consideration is being given to how best to publish the figures for entry clearance and Home Office permission. As I said earlier, we consider such reporting to be very important. However, the reasons for those refusals are not recorded in a format which is easy to report on and this information would not be recorded in the reports.
At subsection (2)(f) the amendment calls for information on the number of notices that involve a person who is subject to immigration control and who is exempted in regulations made by the Home Secretary. That information would have to be obtained from registrars. They could provide the overall numbers of non-EEA nationals who give notice of marriage, but a breakdown of the different categories to give the number of those who fall within this category would have to be done clerically as a separate procedure. That too would prove to be a time-consuming task and certainly increase the cost of the service.
Under subsection (2)(g) we are asked to include in any report the amounts charged and received in fees under Section 25. As I said, the fee will be levied according to Treasury guidelines on a cost recovery only basis and will be set out in secondary legislation, allowing Members of the House an opportunity to debate it if they feel that it is unreasonable.
A memorandum trading account will be drawn up for sight by Immigration and Nationality Department officials and the Treasury. This is not a public document, but a summary of it will appear in the published resource accounts of the Home Office. It will show full income, full costs and overheads and any surplus or deficit. The Government feel that these documents will provide sufficient scrutiny of the charges. Therefore, we do not believe that it is necessary to include this information in a separate document; it will come out in one in the normal course of events.
I hope, therefore, that those comments meet the spirit of the annual report requirement; that the information I have given regarding some of the details is accepted as practical arguments against going down that route, but nevertheless being open about it; and that the reply I have given to Amendments Nos. 16 and 17 is acceptable. I shall save the rest—otherwise I will just repeat myself—for the more important debate, when I can also reply to my noble friend Lord Ahmed.
Baroness Carnegy of LourMy Lords, before the noble Lord sits down, he said in relation to my noble friend's Amendment No. 16 that he would be looking at the attendance by both people at the superintendent registrars at the presentation of the notice. If so, would he also look at Clause 21 of the Scottish provisions, which is differently drafted but which as far as I can see has the same requirement? If a change were to be made, it would need to be made in both.
Lord RookerMy Lords, I had assumed by the way the group of clauses is drafted, that if there were such a change of substance it would, where necessary, flow over to Northern Ireland and Scotland. I am not saying that it would be automatically exactly the same, but that there would be the consequential changes.
Baroness Anelay of St JohnsMy Lords, I am grateful to the Minister. I intended that this group of amendments should stand separate from the debate on the principal clause, so I am grateful for the way he approached his answer.
With regard to Amendment No. 25, which talked about annual reports, my noble friend is right; it is the habit of oppositions to ask for annual reports and the habit of governments to find them quite inconvenient. The Minister tried to point out, somewhat effectively, the difficulty of obtaining some of the information I sought in my own amendment, but pointing out what information might be available and how it might be presented.
I shall look very carefully at what the Minister said, but I certainly think on first reflection that it is acceptable to me. Certainly, my intention is not to try to seek some information trawl which is not cost-effective and which does not form the basis for proper development of policy later; quite the reverse. The difficulty has been that perhaps some of the information on which proper government policy on these issues should be based has not been available and therefore it leads people to suspect that the Government's intentions are not necessarily properly founded. There could be some uneasiness in some parts of our community about why the Government are proceeding on this particular tack.
It is all very easy for governments to react to government, I mean newspaper headlines—sometimes they are government headlines anyway; they spin so well. But I mean that they might react to newspaper headlines on alleged bogus marriages. Certainly the Written Answer that my honourable friend Humfrey Malins received in another place last week shows that there perhaps was a significant increase in alleged bogus marriages over the past year or two, but we need

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Parliament to be able to act properly on verified information. That is all I seek to achieve in Amendment No. 25.
I refer briefly to Amendment No. 16. I am grateful to the Minister for saying that this issue is being considered. He was right: I am looking specifically at the importance of both parties attending at the new specialist register office. The Minister has made it clear that this is the first stage in a series of policy issues trying to prevent the use of sham marriages as a way of getting residency here, without in any way encroaching upon people's right to enter into marriage for different reasons at different times. It is not looking at different cultural approaches to marriage. It is important that the superintendent registrars are given the opportunity to use the expertise that they will build up over the years in a very effective way. If they do not have both people there, I do not see how on earth they are going to be able to divine properly, on real grounds, whether or not there is more information That they can elicit before they refuse to enter a marriage in the marriage book. I am grateful to the noble Lord for his indication on Amendment No. 16. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
[Amendment No. 17 not moved.]
Lord Aveburymoved Amendment No. 18:
Leave out Clause 19.
The noble Lord said My Lords, let me say at the outset that we acknowledge—as I said on a previous occasion when we discussed the marriage clauses—that people are entering sham marriages with a view to gaining the right to reside in the UK. We agree with the Government in their intention to prevent this racket, but we consider they are going about it in entirely the wrong way.
Let me start by looking at evidence of the level of abuse of the current system. The Minister said that registrars had reported 2,251 suspected sham marriages to date in 2004, compared with 2,700 for the whole of 2003. I emphasise the word "suspected", because in the letter that we have just had from the Minister—it came into my hands as I entered the Chamber—this has become reported as 2,251 sham marriages. These are not sham marriages until they are proved to be so, although I accept that such a proportion of them as has yet to be determined will turn out to be sham marriages. I take the point that the noble Baroness, Lady Anelay, made at the conclusion of her remarks.
I understand, although the Minister did not give these figures, that there were 1,205 Section 24 reports in 2002, and just 756 when reporting began in 2001. Undoubtedly, there has been a steep increase in the level of Section 24 reports, which—as the Minister acknowledged when we were discussing it before—might have been partially stimulated by the registrars' awareness that action was being taken. Following the Home Secretary's Statement of 22 April, there was then, as Mr Blunkett
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foreshadowed, a major new enforcement effort targeting sham marriages and those who organise them, with the aim of arresting those engaged in such marriages and, where appropriate, prosecuting the organised criminality behind them. This means that effective powers already existed in criminal law. The question that arises in my mind is why the Government waited for five years—from 1999, when reporting began, until 2004—before taking the action that the Home Secretary describes.
The Minister further told your Lordships on June 15 that, in May, enforcement officers attended some 200 suspected sham marriages and, as a result, they arrested over 100 alleged offenders and a further 28 marriages did not proceed as a result of the enforcement action. I emphasise that all this took place without any change in the law whatever. The Minister did say that registrars may refuse to take notice of a marriage when they believe that a forged document had been used, and the Immigration Service was going to provide training and support to registrars to help them detect those documents. If, as I understood him, the Minister was saying registrars already have that power, then can he tell your Lordships, for example, on how may occasions it has been exercised so far as regards the 2,251 Section 24 reports of suspicious marriages in 2004?
It is already impermissible for someone in the UK on a short-term basis to obtain leave to remain on the basis of a marriage, as announced by the Home Secretary in February 2002, and implemented by a change in the rules in April 2003. If such a person, a non-EEA national, does enter into marriage with a British citizen, then he or she cannot, under paragraph 284 of the rules, obtain an extension of stay on the basis of a marriage, but has to return to the country of origin and make a new application to enter as a spouse. That remains unaltered by these provisions.
The Minister said that permission to marry under these provisions would be refused in cases where the individual is here unlawfully, when the individual has leave to remain in the UK for less than six months, and when it is reasonable for that person to return to their country of origin and apply from there for entry clearance in order to marry. Let us see what difference this would have made to the 2,700 suspicious marriages in 2003. If any of the non-EEA partners to those marriages were here unlawfully then they acquired no rights and were still removable. If they were here for less than six months, then under paragraph 284, as I have already explained, they would have had no right to an extension of stay. If they had a limited need to remain for more than six months, then they would have been entitled to apply for permanent leave to remain on the basis of the marriage. Then the IND would have had to satisfy themselves that the parties intended to live permanently together, that they had adequate accommodation and that they could maintain themselves without recourse to public funds. My questions to the Minister are whether the 2,700 suspicious marriages have been tracked, and what happens when the non-EEA parties to those marriages log an application to remain on the basis of the marriage?
In the first two cases, they should have been refused. In the third, they could have been refused if they were not living with their spouse or had had recourse to social security. Even if they had managed to satisfy all those requirements, they would be on probation for two years following the grant of leave to remain. If any evidence emerged during that period that the marriage was not genuine, then their leave to remain could be cancelled. In Committee on 15 June, col. 684, the noble Lord, Lord Rooker, said that these clauses,
"would provide a significant deterrent against those intending to enter into a sham marriage... The chances of couples coming into contact with immigration officials will be much higher",
making them,
"less likely to engage in a sham marriage".
Apparently, the more vigorous enforcement of the existing law has already had a major impact, and we are not satisfied that what is now proposed is effective, proportionate and compatible with the ECHR.
Under Section 28A of the Marriage Act 1949, as amended, registrars are entitled to demand evidence of nationality from a person who gives notice of an intended marriage. Under Clause 19, notice can only be given to one of some 50 special registrars designated for the purpose, but all other registrars will have not only to look at evidence of nationality—which I suppose will be the passport, in most cases—but will
also have to verify that the person is not subject to immigration control, otherwise the application would have to be transferred to one of the 50 special registrars.
Every registrar will need sufficient training and advice to enable him or her to perform checks on a party who may be subject to these provisions so that, if necessary, that party can be directed to a Clause 19 registrar. That part of the Government's scheme may impose new burdens on all the registrars and cause delays—as the noble Lord, Lord Ahmed, has already pointed out in the earlier amendment—to perfectly legitimate intended marriages. It does, however, allow the IND to concentrate its attention on a limited number of registrars.
Although the right of spouses to live together in the UK has been subject to immigration controls for many years, this is the first time that the person's natural right to get married in the UK had been questioned. That is going to impede the matrimonial plans of the many people from the black and Asian communities who still have close family ties to their countries of origin, and perfectly naturally look for partners in those countries. We say that such a fundamental change also needs to be enacted—if at all—after thorough consultation with the agencies representing all the ethnic minorities concerned, as well as with independent experts who could advise us on the human rights implications. Such has been the haste of the Government that even the JCHR has not been able to look at these new clauses, which are being dealt with by the unusual procedure, already referred to, of recommitment—a wholly unsuitable mechanism for radical proposals affecting the very institution of marriage. In the few days that we have had to consider
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the matter, ILPA has said that these provisions are a misconceived assault on our civil liberties that will undoubtedly lead to challenges in the British courts and in Strasbourg. JCWI's opinion is that the removal of the right to marry without the Home Secretary's permission is fundamentally retrograde and unjustified. It says that it may be a breach of the ECHR.
The new provisions quite clearly discriminate on grounds of national origin, as they do not apply to marriages in which neither party is subject to immigration control. The noble Lord, Lord Rooker, seemed to consider that that was entirely legitimate and non-discriminatory when he said that nationality was the trigger and that there is nothing discriminatory about it. It is most unfortunate that the Minister himself is unaware that in law discrimination on grounds of nationality is considered to be discrimination on racial grounds. Furthermore, UK and EEA nationals resident in the UK will clearly be affected. There will be discrimination against all those who wish to marry a person subject to immigration control. Certain ethnic communities in Britain, with close social ties to those subject to immigration control, are bound to be affected more than others. Remember the last minute amendments that were introduced into the 2002 Act, including the notorious Section 55, which has now been hit below the waterline by the Court of Appeal. Remember the saying: "enact in haste, repent at leisure". I beg to move.
6.15 p.m.
Lord DholakiaMy Lords, I support much of what my noble friend Lord Avebury has said. There is no dispute that sham marriages must be condemned. But the entry clearance officer has ample powers to determine whether the purpose of the marriage is genuine when considering a person's application before he comes to this country. Once a person is in this country under any grounds, including being a visitor, he is not allowed to change his status. There are adequate safeguards under current legislation. If upon receiving notice of a marriage, a marriage registrar has reasonable grounds for suspecting that it will be a sham marriage he must report his suspicion to the Secretary of State. The Secretary of State has ample power to refuse registration or naturalisation or whatever the case may be in terms of British citizenship. Why is that power not being used? It is clearly specified in Section 24 of the Immigration and Asylum Act 1999.
A sham marriage is defined as one between a foreign non-EEA national and another person, whether British or an EEA national, entered into for the purpose of avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules. When this provision was introduced in the Immigration and Asylum Act 1999, we contended that the new power was unnecessary and intrusive. The Home Secretary subsequently announced in the 2002 White Paper Secure Borders, Safe Havens that he intended,
"to make it more difficult for those who seek to stay on the basis of a bogus marriage".

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In April 2003, he increased the probationary period for leave to remain on the basis of marriage from one year to two years and prevented those with six months' leave or less from switching into marriage by obtaining leave to remain as a spouse.
My noble friend Lord Avebury has already cited the noble Lord, Lord Rooker, who said on 15 June that this provision would provide a significant deterrent against those intending to enter into a sham marriage. He said that the chances of couples coming into contact with immigration officers will be much higher and that will make them less likely to engage in a sham marriage. This argument does not hold water since those entering into sham marriages are doing so with the intention of deceiving immigration officials at a later stage and, in any event, that permission will be granted if someone has a valid passport with more than six months' leave.
What are the implications of this? It is clear that the proposed new measures are far more sweeping than the current powers. On any occasion when one party to a marriage is a foreign national, the couple will effectively be singled out for special scrutiny. The requirement for all UK registrars, except those designated, to refuse to accept notice from a couple when one party is subject to immigration control is of even greater concern. In practice, this will mean that all registrars will have to undertake immigration checks on any couple where they suspect that one party falls within this definition. Marriage registrars are not immigration officers and should not be used as agents of immigration control.
As my noble friend Lord Avebury has pointed out, the power to prevent a marriage going ahead will amount to a breach of Article 12 of the European Convention on Human Rights, which covers the right to marry and found a family. Preventing an EEA national marrying a national of another country may also be unlawful discrimination and contrary to European treaties. Although the right of spouses to live together in the United Kingdom has historically been subject to immigration control, the right to get married has never been questioned in this manner.
This is an attack on minority groups. The Home Secretary has already questioned the practice among many young black and Asian British citizens to marry people who are not settled in the UK so this is not the first time we have heard this argument. In 2003, he put into place a number of measures restricting the ability of foreign nationals married to British citizens to seek leave to stay in the UK with their spouses and he extended the probationary period of the marriage before they can obtain settlement. The latest raft of proposed measures simply represents a further attack on the right of black and ethnic minority individuals to marry the spouse of their choice.
Additionally, my noble friend Lord Avebury has raised the point that the amendment discriminates against anyone who is not a member of the Church of England. The Church of England does not require the permission of the Home Secretary following the grant of a licence or the reading of the banns of matrimony. This point remains to be clarified.
The requirement to seek prior written permission from the Home Secretary for a marriage in the United Kingdom is an attack on the right to marry and is therefore a breach of Article 12 of the European Convention on Human Rights. The amendment that has been proposed previously does not assist. It simply makes us more concerned. We are concerned about several areas. The removal of the right to marry without the Home Secretary's permission is fundamentally retrograde and unjustified and may be a breach of the ECHR. It is not clear in what circumstances permission to marry will be issued by the Home Secretary. The JCWI, a prominent organisation working in this field, remains opposed to the principle of making marriage registrars into agents of immigration control. The proposals will certainly lead to discrimination against couples where one or both partners is from a black or ethnic minority group. The proposals represent an attack on members of minority faiths who may not be able to celebrate the civil and religious ceremonies together. A burden will be placed on marriage registrars that they will be unable to fulfil because of the highly technical immigration law. For these reasons, we oppose this clause.
The Countess of MarMy Lords, we have got things the wrong way round here. Why do we have bogus marriages? Because people who we are married to United Kingdom citizens very often find that they are allowed to stay. Why do we not make it clear, either at the point of marriage or beforehand, that marriage will not under any circumstances constitute a reason for allowing someone to stay in this country over and above the reasons that he already has? Then the couple can either undertake the marriage or wait until the permission to stay is granted and then marry. Why do we not do that? All this rigmarole with registry offices and everybody else involved is taking it the wrong way round.
I disagree with noble Lords who say that this is racial discrimination because I know of a number of cases of Australians and New Zealanders who have tried this ruse to stay. I rest my case.
Lord Phillips of SudburyMy Lords, the noble Countess, Lady Mar, makes an admirably simple point from her vantage point as a very experienced lay member of the tribunal. I would like to make a few remarks confined to the provisions of Clause 19(3)(b) and very much support the general tenor of the way in which my noble friend Lord Avebury moved his amendment, supported by my noble friend Lord Dholakia.
One must sympathise with those who have to implement this byzantine jungle of regulations and law. In saying that I also recognise that it is extremely difficult for the Minister to respond to the micro-points made as regards these clauses. It must be a formidable task. I have good news for him because my point is rather a simple one. I know that is sometimes a prelude to the reverse, but I mean it.
At the previous stage the Minister said,
"There is no way that we would put something on the statute book that would, if you like, force a child to be born deliberately out of wedlock. The regulations will be drafted to accommodate such circumstances".—[Official Report, 15/6/04; col. 696.]
I believe that was an admirable sentiment really designed to reassure the House that there was no intention by the Government that any of these provisions should have an adverse effect on family life, bearing in mind the vulnerability in which many families already exist.
Clause 19(3)(b) gives one class of case in which the superintendent registrar can enter a marriage notice in his books where the person concerned,
"has the written permission of the Secretary of State to marry in the United Kingdom".
That is one exceptional class where the superintendent registrar can say that he will proceed with the marriage.
The community concerned is very anxious to know more about that. Under what circumstances will the Secretary of State give permission to marry? There is no apparent requirement here for the framework of consideration of applications for this consent to be the subject of regulations although the following subsection does require them. I ask the Minister to reassure the House that this important subsection will be the subject at least of guidance which will enable all concerned to see the basis on which he would give consent to marry. For example, will he list publicly the criteria? What would he do about those who are not lawfully present here but who, if they returned to their country of origin, could be the subject of health problems or safety considerations if a civil war were in progress? For someone who applies under the subsection I have mentioned, how long will it take to obtain a response? What evidence will the Secretary of State require in order to make a decision on whether he will be given written permission to marry?
These are practical questions and none of them is on the face of the Bill. As I said, there is no requirement for regulations. The Minister cannot be expected to respond with criteria now, but I ask him to assure the House that if this part of the Bill is enacted there will be very open consultation followed by publicly published criteria which will enable all concerned to judge their application. Above all, perhaps it would help the powers that be and the civil servants involved to deal with the requests made under the subsection.
Baroness Carnegy of LourMy Lords, I am interested that the Liberal Democrats have introduced what seems to me to be a wrecking amendment for this part of the Bill. Presumably, Clauses 21 and 22 are agreed by the Scottish Executive although immigration and asylum are matters reserved to Westminster. Many of the aspects of this part of the Bill have to be implemented under matters that are devolved to Scotland including the marriage laws and so forth. That is why there are specific Scottish amendments.
The Liberal Democrats are trying to wreck two clauses which, as I understand it, the Scottish Executive wishes to be implemented. I can understand why it wants it because it is also very worried about sham marriages as we are here. The noble Lord, Lord Dholakia, in his very
interesting and, as ever, very well informed speech, said that he considered the clauses now under discussion unnecessary and why that is so. I shall listen with great interest to what the Minister has to say about it. So far I do not believe that we have heard an answer to what the noble Lord said.
If the clauses are unnecessary that partially solves my problem. However, I still believe that the political effect of the Liberal Democrats at Westminster trying to blow up two clauses of their political colleagues who are part of the partnership in the Scots Parliament, is slightly strange. Perhaps the noble Lord, Lord Avebury, can justify that because I am interested as a Scot who follows very closely what the Scots Parliament does. I have not had the opportunity to discuss this matter with any of his colleagues, but it will be interesting to hear what he has to say about it. I am sure that the Liberal Democrats have had discussions. I shall listen with great interest to what the Minister has to say.
Baroness Anelay of St JohnsMy Lords, I agreed with the noble Lord, Lord Avebury, when he said in moving the amendment that he wanted a system which was effective, proportionate and met the requirements of the ECHR. So do we on these Benches. But by striking out these clauses I do not believe that he will achieve that effect. If he were minded to put the matter to a Division I would not be able to support him.
I find difficulty in that the Government have still not given all the information which we need to determine whether the method proposed is going to be effective. The question put by the noble Countess, Lady Mar, was very refreshing. She asked whether we were starting in the wrong place and whether there are other proposals that could be more effective in attacking what I may call real sham marriages. I believe that noble Lords will know what I mean.
The noble Lord, Lord Avebury, was right when he referred to the Home Office letter which sets out what was given in a Written Answer last week about the number of alleged sham marriages over the past year or two. I call them alleged sham marriages because the noble Lord is right that they have not all been proved to be sham yet. We are told that there are reports of them being suspicious or sham, but we have not got a hold on the level of the problem. That is why this debate is very useful in trying to take us further forward. I do not believe we have reached the stage where we really know how the Government are going to tackle the problem or the scale of it.
I have already had my chance to ask detailed questions on my own amendments. However, I would be grateful if the Minister could give us a picture of what would happen if I, for example, were a superintendent registrar and people came before me. What would be the process, so that he can reassure the House that it will be effective, proportionate and meet with the requirements of the ECHR? For example, what kind of evidence is a

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specialist registrar going to be allowed to ask for and to use as a basis for a decision on whether to enter the marriage in the marriage book?
For example, it has been alleged that some registrars under the current system have seen the same person come back time and time again. A familiar face appears wanting to be married yet again. Under the new system, if the specialist registrar sees the same person turn up to get married, perhaps eight times in a row, do they have the right to ask something as simple as proof that a divorce has been obtained since the last time the person asked to get married?
What kind of authority will superintendent registrars have? We do not want them to end up being a tool of the Immigration Service. It is up to the Immigration Service to do its job. Registrars should be looking at the validity of the marriage and the ability of those appearing in front of them to marry lawfully under the laws of this country.
Although I could not support the noble Lord, Lord Avebury, if he were minded to take this to a Division, I still think that the Government have a long way to go before they are able to justify the provisions of these clauses as they stand. On these Benches, we want them to be able to do so. We want to get there, but we have not arrived yet.
6.30 p.m.
Lord RookerMy Lords, I first apologise to the noble Baroness, Lady Anelay, for not answering the specific question that she asked me on the last group of amendments, which was to confirm the quotation that she read out from the letter from my noble friend Lady Scotland of Asthal. I can confirm that she read word for word from the letter. I hope that she has had two copies of the letter. I left another one at the back of the Chamber here today just in case, given the little run-in that I had last week about distribution of post in this place. I apologise for that, but I can confirm that she was quoting from the letter. I am sure that in accordance with normal convention, these letters will end up in the Library.
We are dealing here with a narrow area, which we discussed in Committee. If I have any criticism of any of the speeches, and it applies to more than one, it is that there has been some loose language. The phrase "the right to marry", as in "the Home Secretary needs to give you permission to exercise the right to marry", as though it applied to everyone in all circumstances, gives the impression that anyone, no matter what nationality, needs some new barriers or new hoops to go through. That is not the case. That kind of loose language could give the wrong impression to people outside this House and in other countries. This is not a general requirement regarding the right to marry.
I shall separate out my points, and I shall come to some statistics. I freely admit that I do not have all the necessary statistics. First, I will answer from my notes some of the questions that have been raised, because it will set things in context. Three or four major points have been raised.
I shall address the alleged breach of Articles 12 and 14 of the European Convention on Human Rights. So far as Article 12 is concerned, I understand that the right to marry is subject to national laws governing the exercise of the right. The Commission has not been inclined to regard the right to marry a chosen partner in a contracting state as one that overrides national immigration laws. That is because the parties may marry elsewhere. If this is impossible in a particular case, Clause 19(3)(b) will ensure that the Secretary of State can consider whether it is reasonable to require the person to leave the UK, and if not, he can give them the permission to marry here, ensuring that Article 12 is complied with.
Lord Phillips of SudburyMy Lords, does the noble Lord realise that he has used the expression "right to marry" twice in what he has just said?
Lord RookerYes, my Lords, because it was in context. I am answering specific points. I can pick up in Hansard tomorrow which noble Lords used the phrase in the flow of the narrative of the language relating to the powers of the Home Secretary and needing to give permission to marry. I do not think that the noble Lord was one of them.
That is not the case, because it would apply in general to everyone. We are talking here about a narrow, specific group of people. It is perfectly possible to marry whoever you want. We do not want to stop that. It is perfectly possible to enter this country solely and only for the purpose of marriage: thousands of people do that. They go through a process. They come here with the right to marry; they have entry clearance for the purpose of marriage. We are not interfering with that at all. To listen to some noble Lords, a certain impression is being given.
I hope that I got my paragraph about Article 12 on the record. Article 14 does not prohibit differential treatment to different categories if there is a reasonable and objective justification for the differences. We think that it is clear that such a justification exists here.
A question was asked about registrars needing to see evidence of nationality. I understand that nationality must be stated in a notice of marriage now. Registrars are already given specific guidance on documentation. The new provisions do not change this position. Section 24 reports, let us say when false details are given, raised by the noble Lord, Lord Avebury—
Lord AveburyMy Lords, one thing that has puzzled me is how the registrar—not the special registrar, the ordinary registrar who receives a notice of marriage—knows that someone is a non-EEA national if that is not declared on the application.
Lord RookerMy Lords, I have just said that they are required to give their nationality. There are 26 countries in the EEA; 25 EU countries plus Norway, and there are some special arrangements for Switzerland. There are

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26 countries in the EEA, so there is no argument about not knowing which countries they are. They are the 25 EU countries plus Norway.
Lord AveburyMy Lords, if the person who is a non-EEA national fails to declare that, but makes an application with a registrar on the basis that he is an EEA national, how does the registrar who is not the special registrar detect that falsehood?
Lord RookerMy Lords, it would be like anything else. He is giving false information on the notice of marriage, and I assume that that is a criminal offence. We are not seeking to be draconian; this is a proportionate response to a problem. I do not know, but if the registrar has any doubts, he might ask for evidence of the nationality. He would reasonably have to be required to have some doubts. I cannot say how that would operate in detail. It would be like someone lying about whether they were free to marry. They are required to put down their current marital status. They are required to put their address, their occupation, and maybe that of their parents. They can lie in any of these matters. The crooks and the spivs and the people making money out of this will lie. They tend not to lie to the same registrar month after month after month. I was reading about a case the other day where someone had gone to at least 18 different registrars. That was how you did it; you did not go to the same one. That person is now a guest of Her Majesty.
This relates to the point that I made about Section 24 reports when false details are given. The registrar can only report a suspected sham marriage after notice has been given. If a false address is quoted, notice will not be taken, and there can be no report to the Home Office. You have to know that it is a false address. They may use a process of checking the electoral register or council tax records if they have a reasonable doubt. Those are accessible for such purposes.
I am sorry, I am not sure who asked why we cannot just allow those marrying here to stay on that basis. It was the noble Countess, Lady Mar, I apologise—
The Countess of MarMy Lords, I did not say that. I said that they could not use marriage as a basis for staying in this country.
Lord RookerMy Lords, the noble Countess is quite right. That is the question that she asked, and it may not be the question that I am answering. I shall take further advice on that. When the noble Countess asked the question the other way round, I thought that my noble and learned friends would say, "Hang on, once you are married you cannot bring in a new set of rules to say that you cannot stay in the country". That is what I am expecting to hear. The noble Countess is right that this does not answer her question. She was saying that you could get married, but you cannot stay in the country necessarily as a consequence of getting married.
The Countess of MarMy Lords, I was saying that once people have come into this country, and they
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have applied either for asylum or to stay in this country for some other reason, it should be made clear to them right from the beginning that marriage on its own will not allow them to stay in this country.
Lord RookerMy Lords, that is absolutely right, but I suspect that once the marriage has taken place—and this is the whole point of the exercise—a whole new, different set of laws come into being that will probably protect their position. That may be the advice that I shall receive before I sit down.
I will start the response to the amendments in some detail, because this is an important matter. It is a sensitive area for government to legislate on. I quoted the Marriage Act 1949; this is not something that gets updated frequently. I take the point about acting in haste; we do it at our peril. There are plenty of records from my short time—30 years is a short time—of legislating in haste and then thinking that something was not such a good idea. We must get this right. It is fundamental in terms of individuals' lives. However, taking all the clauses out of the Bill—that is, Clauses 19 to 25—would be unwise.
In Committee on 15 June, I said that registrars had reported 2,251 alleged sham marriages so far this year. That compared with 2,712 in the whole of 2003; 1,205 in 2002; and just 756 when reporting began in 2001. The reporting period has effectively been since 2001.
In May, following the Home Secretary's announcement of 22 April, the Immigration Service increased its enforcement against sham marriages. As a result, last month, in May, 60 people were arrested, and there have been further arrests this month. However, it is naive to overestimate the effect of that on the number of Section 24 reports being made by the registrars.
The Immigration Service did not increase its enforcement effort in order to receive more Section 24 reports. It increased it because it had already seen a massive increase in those reports. In fact, between January and April this year, registrars had already made 1,453 reports of suspicious marriages. Following the increased enforcement action, that increased by 800 reports in May, and the Immigration Service has received further reports this month.
There has been criticism of the number of arrests in the past 12 months as compared with the number of reports made by the registrars. I would like to make it clear that while reports often lead directly to arrests at register offices, it would be unrealistic, to say the least, to expect every report to lead to an arrest. In some instances the reports are made after the marriage ceremony has taken place, and sometimes, despite a report being made, there may be insufficient grounds for enforcement action.
In deciding whether to attend a register office the Immigration Service has to consider what resources are available for competing demands and balance that against the need to take direct action, or use the report to help form a decision on any resultant application. Reports received from registrars will therefore always

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lead to action, be it sometimes direct in the form of arrests, or perhaps sometimes indirect action such as the refusal of an application.
Registrars are aware of this, and it is wrong to suggest that they would report any marriage where they have the slightest doubt in the hope that some action would be taken. I regret if any nuance of the language I used in Committee gave that impression. It certainly was not intended.
During the Committee debate noble Lords expressed a great deal of concern that the new measures may institute a similar regime to that which existed under the primary purpose rule which this Government abolished in 1997. As I stated in Committee on 15 June, that is not the case. We have absolutely no hidden agenda to restore the primary purpose rule. I genuinely would not be prepared to stand at this Dispatch Box if that were the case. I had enough constituency problems over the years with the primary purpose rule. It beggars belief the distress that its operation caused.
The raison d'être of the primary purpose rule was to attempt to judge whether the applicant was entering the marriage primarily to gain access to the UK. It was ineffective and certainly pernicious, penalising lots of genuine marriages and dividing families. The administrative burden on the immigration system was absolutely catastrophic. It also stopped other genuine cases being looked at. It was imposed in 1980 by the previous administration, forcing applicants over one hurdle after another both at the point of entry clearance when they were applying and at appeal. This very unfair rule did not work to filter out those who sought to cheat the system. I want to make it absolutely clear that it was not abolished because of its failure to deal with sham marriages, but because of its inequitable treatment of genuine marriages.
There was no connection between sham marriages and the abolition of the primary purpose rule, and we have no intention whatever of reintroducing such a requirement.
6.45 p.m.
Our lawful status eligibility requirement in the third subsection of Clauses 19, 21 and 23 will not be used to judge the genuineness of a relationship. In other words, whatever is in this set of clauses will not be used by the Home Office or registrars to judge the genuineness of a relationship. It has nothing to do with that whatever. Where a person applies for entry clearance as a fiancé or marriage visitor their application will be considered under paragraphs 290 and 41 of the immigration rules, as is already the case. Where they meet this criteria their leave will be granted.
The exact details will be set out at a later date, but we envisage that those who are legally resident in the UK and who have been granted six months or more leave would normally be granted approval to marry, in what would be known as a certificate of approval. Where they do not hold the appropriate leave to remain—that is, they have something less than six months—they will be expected to leave the United
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Kingdom and apply for entry clearance from abroad, like hundreds of thousands of others do, unless on the facts of a particular case it is unreasonable to expect them to do so. In the example I gave, such a consideration would be given where a lady is heavily pregnant and therefore unable to travel.
I must say that the phrase 'unable to travel', as written here, is almost the answer of a wordsmith or jobsmith. The fact is, as I said at Committee stage, it is not our intention deliberately to force children into being born out of wedlock. The ability to travel might be a factor for a heavily pregnant woman, but I cannot see the marriage being refused for that. It would be wholly inequitable because we would be bringing in legislation almost forcing children to be born out of wedlock.
The applications for certificates of approval will be charged on a cost recovery basis. We are not yet in a position to put an exact figure on the charge, but we estimate that it will be similar to the charges for leave to remain applications. Applications for entry clearance as a fiancé and a marriage visitor will continue to be charged at £260 and £36 respectively.
The power to exempt certain categories of person is being left to secondary legislation in order to allow the Government flexibility in the operation of the clause. For example, although it is already possible to identify categories who could become exempt, it is likely that new categories will exist in future and it may be similarly appropriate to make those exemptions.
The reports from registrars and other sources have shown that those entering into sham marriages, or alleged sham marriages—there have been some arrests, although of course I only read about convictions in the press, like anybody else—have increasingly been favouring marriage to EEA nationals. This is because under EU law, third-country nationals who marry EEA nationals currently have a number of immigration advantages under EU law over those who marry British nationals.
Specifically, and first, they are not subject to the "no switching" rule which prohibits visitors and certain other categories of foreign nationals from applying for leave to remain as the spouse of a British national, as they benefit from treaty rights once married. Secondly, they are entitled to bring a wider range of dependants to the United Kingdom. Thirdly, they do not need to live together for a marriage to be considered genuine and subsisting.
As such, the easiest way to stop people from abusing the marriage and immigration laws in this way is to stop them getting married in the first place. The proposed government amendments will prohibit persons with no leave to remain or limited leave to remain in the UK from marrying in the UK. If you have leave to remain in the UK for more than six months, and if you have come here for the purpose of marriage with entry clearance as a fiancé, then there will be no problem whatever. It will also stop foreign nationals entering the UK as visitors, and entering into sham marriages with EEA nationals as a means of remaining in the United Kingdom.
The introduction of designated register centres will enable us to focus our enforcement efforts into a more concentrated area, and allow intelligence and expertise on marriage abuse to be built up in these dedicated centres. We also believe that this will have a deterrent effect. The chances of couples coming into contact with immigration officials will be much higher, which will not be welcome for those who are not genuine, those who do not have the right documentation or appropriate leave to remain. That will make them much less likely to try.
As I have already made clear, the designated centre proposal will not restrict the locations at which a non-EEA national will be able to get married. They will be free to marry wherever they wish. What matters is the location at which they give notice of the marriage. I repeat that we envisage having around 50 designated centres so that they will be convenient for people to get to. Just as is the case for British nationals, they will be free to marry anywhere they want, in conformity with normal marriage arrangements.
We will continue to seek to minimise the burden placed on genuine couples wishing to marry in the UK while ensuring that the Immigration Service will be able to retain a sufficient concentration of expertise. Home Office officials are currently in consultation with UK registrars about how many offices will be designated.
I also want to make it perfectly clear that we are not seeking to discriminate against people who are members of a religion other than the Church of England. The Marriage Act 1949 provides for marriage in the Church of England and the Church of Wales to take place after either ecclesiastical preliminaries or civil preliminaries. The vast majority of Anglican marriages take place after ecclesiastical preliminaries in the form of banns or the common licence. All other marriages, whether civil or by any other religious rites, must be preceded by civil preliminaries. The difference in the preliminaries is fundamental marriage law, and certainly outside the scope of this Bill. It will not be affected by any of these amendments.
The Government will continue to pursue a policy of managed migration to the UK, with procedures in place that allow us to facilitate genuine applicants from whom our society derives real benefit. They include those who wish to enter into a genuine marriage with a UK or EEA national and settle here. The ability to maintain effective immigration control is crucial to promoting community cohesion and good relations between people of different nationalities. I repeat: we have no intention of bringing back the primary purpose rule; none whatsoever.
Abuse of the marriage laws, under which people are able or perceived to be able, to circumvent the Immigration Rules creates mistrust, fosters resentment between different groups and undermines the integrity of the institution. We are confident that these amendments will help to protect the institution of marriage within the UK while enabling us to maintain appropriate and secure immigration controls. I do not want to read headlines of people being found entering into 6, 7 or
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20 sham marriages. All such headlines do is undermine community cohesion and genuine people coming to this country for the purposes of business, settling down, getting married and so forth. However, the media respond to what is actually happening on the ground. I said earlier: legislate in haste, repent at leisure. On the other hand, if you see a problem and do nothing about it, you are guilty if it gets worse. In this case, the figures show that we have seen the problem coming. It may be that we are later than we should be, but the figures justify these amendments and we believe that they form a proportionate response to the evidence we have at the present time. They are also fully compatible with our obligations under the European Convention on Human Rights.
I hope sincerely that noble Lords will not seek to take out the whole raft of these clauses. It would serve no purpose and would not help to solve a problem that has already been identified.
Lord DholakiaMy Lords, would the noble Lord be prepared to consider the excellent suggestion made by the noble Countess, Lady Mar? Could it be looked at in detail so that we could consider at Third Reading whether there is any merit in her proposal?
Lord RookerMy Lords, yes, in due course I shall have a reply for the noble Countess. But I suspect that there will be plenty of legal arguments for why we cannot go down that road. However, I am not a lawyer. I draw on my experience as a former constituency Member dealing with hundreds of such cases. There were doubts, disputes, appeals and, sometimes, people had to leave the country. People also came into this country, both male and female, and abused the rules. Although I left the Commons three years ago, I still have cases going through the system. However, I shall get a considered response for the noble Countess, Lady Mar, and copy it for the House.
The Countess of MarMy Lords, would the noble Lord be willing to have a chat with me outside the Chamber about my suggestion?
Lord RookerMy Lords, yes, but I want to make it clear that I am not the Home Office policy Minister or the immigration Minister. Therefore all I could do is listen to the noble Countess. That is better done on the Floor of the House so that I can report back to the policy Ministers that we have questions that need answers. However, as a Member of the House, naturally I will listen and talk to any colleague at any time.
Lord Phillips of SudburyMy Lords, would the Minister also be kind enough to respond to the point I made about Clause 19(3)(b) about setting criteria?
Lord RookerMy Lords, I am sorry that I did not go through that specific question. I agree with the noble Lord, Lord Phillips. He said that he had a fairly simple point on the way in which the Home Secretary will give permission, and it deserves an answer. For most people it will be automatic in the sense that they meet

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the criteria—they have leave to remain for over six months. However, where they only have leave to remain for under six months and there are special factors to be taken into consideration, they will need the certificate. I have already mentioned the example of a lady who is heavily pregnant. However, we do need to clarify the criteria.
Lord AveburyMy Lords, I should say at the outset that I am not going to press the amendment to a Division, so the noble Baroness, Lady Anelay, can relax. My reason for not doing so is, as I have already said twice, that we believe that measures do have to be taken against sham marriages, although we do not consider that these clauses are the right way to go about it. While we have much sympathy with the proposal put forward by the noble Countess, Lady Mar, we are not going to be put in the position of denying any weapons to the Government in the campaign against sham marriages just because we believe that a better solution would have been possible.
In the time available to us, we could not possibly have drafted a complete alternative to these clauses, let alone to have consulted, which we believe ought to have been undertaken with representatives of the ethnic minorities and those concerned with the human rights aspects here. Whatever the noble Lord may say about the meaning of Articles 12 and 14, the fact is that the matter has not yet been considered by the Joint Committee on Human Rights and the House has not yet received its advice. So we have no idea whether the committee concurs with the explanation given by the Minister or whether it will question the risk of a possible violation of Articles 12 and 14 arising.
I am most grateful to all those who have spoken in support of these amendments, in particular my noble friends Lord Dholakia and Lord Phillips, and to those who have spoken to the amendments even though they have not actually supported them.
My reply to the particular question put by the noble Baroness, Lady Carnegy—who I think has ascribed to me Scottish nationality, which I would love to possess but can claim to be only one-quarter Scots; I have a Scottish grandmother and many Scottish ancestors further back—is that if we had been able to produce the complete alternative scheme to cope with sham marriages that I would like to have seen, we would have said that this had to be a matter for consultation with our Scottish colleagues. Indeed, I turn the question around and ask to what extent the Minister has engaged in discussion with Scottish interests on these clauses.
Regarding the comment of my noble friend on Clause 19(3)(b), the Home Secretary will have to make a judgment on the genuineness of the relationship when he gives permission to those who have been legally resident in the UK for more than six months and who have been considered prima facie eligible for the grant of a certificate of approval. The only point in having such a provision on the statute book is that there are cases where that permission would be refused. The noble Lord said nothing about the criteria that he would use in applying his discretion against such a person in refusing the grant
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of a certificate. That is where the primary purpose comes in—that the only grounds on which it is conceivable that he can refuse to grant a certificate to such a person would be that he thinks that the marriage is being entered into with a view to gaining some advantage under the immigration Act.
7 p.m.
The Minister has not told us the outcome of the 1,453 cases reported under Section 24 between January and April, let alone the 2,700 that came to the notice of the Secretary of State during 2003. What he did say was that some action was always taken on these reports. I will repeat my request to the noble Lord to come forward before Third Reading with a total analysis of those cases, saying in how many cases there was a prosecution, in how many cases it led to doubts about the validity of the marriage which fell short of the prosecution, and in how many cases the marriage was in the end deemed to be genuine in spite of the suspicions voiced by the registrars. As I said on the last occasion, if I was a registrar faced with that duty, I would be inclined to report all cases where there was any doubt whatever, leaving it to the Secretary of State to sort out those on which action needed to be taken.
I think that the Minister underestimates the anxiety which these proposals have caused in the black and ethnic minority communities. As I said on the last occasion, it is not simply up to him to satisfy your Lordships that these clauses should go on to the statute book; it is up to him to engage in a campaign with the ethnic minorities to ensure that they know that discrimination is not intended and that their marriages will not be impeded or interrupted. I leave it to the noble Lord to engage in that activity. I hope that that will begin immediately and not wait until the clauses are on the statute book.
Baroness Carnegy of LourMy Lords, with the leave of the House, the noble Lord was a little lighthearted on the point about Scotland. He was proposing that two clauses should be removed from the Bill. I was asking him whether he had consulted his colleagues who form the Government in Scotland, whom I do not believe want those clauses removed. I suggest to the noble Lord that when he does that kind of thing, it would be wise to do a bit of consultation. He tells me that he has a Scottish grandfather, I think he said—
Lord AveburyGrandmother.
Baroness Carnegy of LourMy Lords, I would reply that both my grandmother and my great-grandfather were born in India, so that gives me an interest in this matter! That is by the way, but when moving such amendments the noble Lord's party should consult colleagues and make sure that they would be happy if there was no clause about marriage in the Bill. I think the reaction in Scotland would have been quite interesting.
Lord AveburyMy Lords, the answer to the noble Baroness is that they do not have to be happy or

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unhappy, because I am withdrawing the amendment. But, as I said, if we had proceeded with the amendments then obviously we would have had to engage in consultation with our Scottish colleagues. I said—if the noble Baroness was listening—that I hope that the Minister has taken the trouble to consult with the Scottish Executive and the Scottish Parliament, and that the clauses drafted in relation to Scotland have had the approval of those organisations. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 [Supplemental]:
[Amendment No. 19 not moved.]
Clause 21 [Scotland]:
[Amendment No. 20 not moved.]
Clause 22 [Supplemental]:
[Amendment No. 21 not moved.]
Clause 23 [Northern Ireland]:
[Amendment No. 22 not moved.]
Clause 24 [Supplemental]:
[Amendment No. 23 not moved.]
Clause 25 [Application for permission under section 19(3)(b), 21(3)(b) or 23(3) (b)]:
[Amendment No. 24 not moved.]
[Amendment No. 25 not moved.]
Clause 29 [Entry clearance]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 26:
Page 30, line 14, at end insert—
"( ) Immigration rules specified for the purpose of this section may include the requirement that a person who is normally domiciled outside the United Kingdom who travels to the United Kingdom to study shall provide evidence that he is registered to study at an education establishment that has been approved for the purpose by the Secretary of State."
The noble Baroness said: My Lords, Amendment No. 26 is a probing amendment. Its purpose is to ensure that Immigration Rules may include a requirement that somebody who lives overseas who comes here to study should not be able to abuse the process by which student visas are obtained in order that they may obtain entry when they have no intention of carrying out bona fide studies at bona fide colleges.
As my noble friend Lady Carnegy has pointed out to me, it is a good job that this is a probing amendment because it is not effectively drafted. It looks as though the amendment covers people who live normally within the EEA areas—the new areas from which they have the right to study at any college they like because they have right of residence here. I am targeting my concerns at those who have no right to remain here unless they get leave to do so.
The Minister acknowledged in Committee that the Government propose to draw up a register of approved colleges, and that if a student is not registered at one of those then they will not be able to get a student visa. At that stage the Minister was not
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able to give much of an answer to the questions I put about how the register would operate and on what principles it would be based. He said that we would have a chance to return to the matter at Report. So I am giving him the chance to return to that with this amendment.
The questions that I would like to put to the Minister are as follows. What will be the criteria that will determine a college's eligibility to get on to the register it i the first place? Does the Minister accept that it is vital that there should be quality control involved? Does he accept that it is important that the college should have to demonstrate that it meets the current Home Office criteria for a "bona fide" institution, for example, one that involved running full-time courses with qualified staff and keeping registers of attendance? Has the DfES agreed to that as a requirement?
Which department will operate the list as far as immigration control is concerned? Surely it should be the Home Office since its decision to grant or withhold permission to enter the UK is the key to the whole matter. Why will the Government not put the provisions regarding the register and a right of appeal for colleges which are excluded on to the face of the Bill—to give clarity and fairness? If they fail to do that, they leave everything to administrative action—or inaction—and we are left with neither clarity nor equity.
If there are no statutory provisions regarding the register, is it the case that the Government may not charge fees for registration and inspection? If so, surely that means that the Government would impose further burdens on the taxpayer for a system that should surely be self-funding.
I anticipate that the Minister on this occasion should be able to give full answers to all these questions on the implementation of the proposals, but of course there have been significant developments since the Committee stage. Both of those developments I hope would mean that the Government have the full answer now, because, first, there was a DfES press release on 18 June which announced the creation of a register to be fully in place by the end of this year. It said it would cover,
"educational providers who are able to provide evidence of their legitimate business".
That worries me. What does "evidence of legitimate business" mean? Does that mean it is not necessarily a bona fide college—it can just cough up accounts to prove that it has been taking money from people? How does that operate?
The press release goes on to say:
"The register will be made available to the Home Office"—
that is good—
"to support them in making their decisions on granting leave to enter for study. The Home Office propose that once the register is established, leave to study will not be granted to a student wishing to attend a college not on the register".
We are then told that there is a consultation going on and that the Secretary of State for Education and Skills will give an update in the next month. But the editor's note has a kick in the tail. The timeframe in that editor's

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note says that the register is up and running from May this year—that is, now—for all publicly funded accredited providers. Can the Minister confirm whether that is the case and that the Home Office is operating on that basis?
The editor's note says that from May until the end of the year the DfES will "market"—its word—the scheme to private providers. What is going on? The press release makes no mention at all of any procedure by which education providers can appeal against rejection of their application to be on the register. What about the register itself? Considering I have my noble friend Lady Carnegy behind me, is it going to be UK-wide? If it is operated by the DfES instead of the Home Office, does that mean that Scotland is covered?
The second event for which I hope the Minister has a full barrage of answers is the evidence given to the Public Accounts Committee on 21 June on the issue of bogus colleges. Mr Bill Jeffrey, the director-general of the IND, is reported in The Times on 22 June as having told the Public Accounts Committee that:
"In the last month we have visited 400 colleges about whom we had some doubts. We have established that 100 are not genuine and are doing something about that. Others require more careful investigation".
I congratulate those carrying out the investigations into bogus colleges. We hope that it is done in a thoroughly robust manner and has a robust outcome.
However, I am concerned that he went on to say that anyone applying for a course at one of the 100 bogus colleges will automatically be refused a student visa. That is fine. If they are bogus colleges, it is excellent—but we do not yet know whether they are; we do not have any proof that they are bogus.
I was further worried when an official at the Home Office said that it was not willing to identify those 100 bogus colleges. So we have the worst of administrative action here. We have people saying, "There are bogus colleges but we are not going to tell you which they are. We are going to refuse people permission to go to them". To me, this is an example of where the Government may be doing the right thing, but they are doing it in such a way that it makes one think that they may not be doing the right thing. That cannot be good for the education sector as a whole.
I would like to see transparency in the way in which the register is operated. I hope that it will be operated directly by the Home Office; not by the DfES, but in agreement with it. I beg to move.
Lord AveburyMy Lords, as I understand it—the Minister will correct me if I am wrong—the Secretary of State already has the power to refuse a visa to someone who applies to come here and attend a bogus college established as a means of evading immigration controls. As the noble Baroness, Lady Anelay, told the House, the Home Secretary announced last week that colleges and other educational establishments will have to register, and visas would be issued only to students attending courses at the registered establishments.
It is already a requirement of the rules that a person applying for entry as a student must show that he has been accepted for a recognised course of study at a bona fide private education institution which maintains satisfactory records of enrolment and attendance, and that he or she is able and intends to follow either,
"a recognised full time degree course at a publicly funded institution of further or higher education; or a weekday full time course involving attendance at a single institution for a minimum of 15 hours organised daytime study per week of a single subject, or directly related subjects".
It appears that the Secretary of State has suddenly woken up to the bogus colleges' scam and the police have taken belated action against some of the more blatant of them. If someone is operating a business to enable people to enter the UK as students and not providing them with 15 hours of organised daytime study, a criminal offence is being committed by the managers of the business. There were indeed arrests, as the noble Baroness, Lady Anelay, said, following the raids last week on alleged bogus colleges in south London and Essex.
Incidentally, I note that these raids seem to have been confined to very limited areas. We all know that there are private education institutions offering, for example, courses in English as a foreign language in many other places, such as Hastings and other seaside towns. I am not saying that any of them are sham colleges; it is simply that the practice of bringing foreign students into this country for these purposes is not confined to London and Essex. If there have been as many as 100 bogus colleges identified, as the noble Baroness said, one would have expected the raids to be rather more widespread than they were.
A person who has been given a visa or entry certificate to attend one of those colleges should have his leave to remain withdrawn. It would be interesting to know what action has been or is being taken to ensure that the persons enrolled at these bogus colleges leave the country. I should be grateful if the Minister could tell us a little more about the students who were enrolled at the 100 alleged bogus colleges that have so far been identified, and what is being done about the remaining 400 colleges which are still under investigation.
7.15 p.m.
I thought that the Home Secretary said that the proposed register would be up and running by the end of the year. Although the noble Baroness said that part of it is already in operation, I think that is the part that relates to public institutions, which are not the target of the measure. We are referring here to the private educational establishments. No one coming here to attend university would bother to make such an application if he or she intended solely to evade the Immigration Rules. He or she would choose one of the private educational establishments set up for the specific purpose of getting around the immigration controls.
Are the Government satisfied that in the remaining six months, when they register the private institutions, that the police have the resources and the intelligence to enable them to deal with this racket? Have diplomatic posts overseas been alerted to it so that entry certificate applications can be refused in cases where the bogus colleges are confirmed?
Baroness Carnegy of LourMy Lords, the noble Lord has made some very important points, as has my noble friend. She mentioned to the Minister that he had undertaken to tell us how the list of colleges was going to be extended to the whole of the United Kingdom. There is a lot of anxiety across the country, particularly in colleges which want no muddying of the waters between their bona fide activities and their dependence on the custom of people from outside the European Union. There should be clarity in all this. If the Minister can tell the House how this is being dealt with and by what dates, it would be enormously comforting.
Lord RookerMy Lords, I cannot tell the House about recent action in regard to the 100 so-called bogus colleges because there is a possibility of legal action. That is one of the reasons why no list has been published. Also, some of the addresses have proved to be completely fictitious. These matters are under active consideration and inquiry. It is self-evident that once the list is available, people will know which colleges are which but, at this point in time, those are the reasons why no list has yet been published.
I certainly understand the reasons behind the amendment. I undertook to provide more details of the Government's intention to address the problem of students who enrol at bogus colleges or at establishments that do not maintain proper attendance checks.
We are looking at the possibility of creating a register of bona fide or approved colleges and making enrolment at a registered college a requirement of the Immigration Rules. The order-making power provided by the new Clause 29 could then be used to specify this requirement. The consequence of such a specification would be that an entry clearance application refused on these grounds would not attract the right of appeal. As I have said before, it makes no sense to provide a right of appeal in these circumstances as there are no arguable issues to be addressed—a college either is or is not registered.
During the debate in Committee I said that I would answer a number of concerns. I hope to do so now. I was asked what work the department has carried out with educational institutions on addressing the problem of student migration abuse. On 22 April we announced a raft of measures designed to tackle the problem as part of our wider review of managed migration. We have consulted extensively with sector representatives on our proposal and are continuing to work with stakeholders on the development of the new measures.
In doing so, we recognise that the vast majority of overseas students are genuine and we value the substantial economic and cultural benefits that they bring to the UK. We are determined to ensure that our international reputation overseas as an education provider is not undermined by those who seek to abuse the student migration system. Our proposals are designed to protect genuine students and genuine establishments by targeting the unscrupulous providers.
I was asked to confirm that the Home Office intends to launch immediate checks on all claimed educational establishments and to set up an accreditation and monitoring scheme for all colleges by the end of the year. As part of the managed migration review, the Students Taskforce is investigating colleges which appear to be suspect and, as has already been said, it has recently made an initial assessment of 400 colleges. The result of these further enquiries is that applications to those institutions which were found to be illegitimate can now be refused.
In addition to that work, the new registration scheme for all genuine colleges that was announced by the Secretary of State for Education and Skills on 18 June will be operational by the turn of the year. The scheme will include all publicly funded institutions. Once the register is operational, student visas will not be issued for colleges that are not on the register. We are also working with the English language sector to encourage comprehensive accreditation of English language schools so that, in due course, visas will be issued only to English language students who are coming to the UK to study at an accredited school.
I do not think that we will be accrediting schools on the basis of quality. It is not our function to adjudge the quality of the education on offer. We have a world-class record in providing education services to overseas students, but quality is not the issue.
I was asked also for an assurance that the Immigration and Nationality Directorate will provide colleges with a list of students who have been issued with visas on the basis of an offer letter from a college. The Department for Education and Skills is consulting with representative bodies from the education sector on establishing a system for colleges to notify the Government of students who do not turn up or fail to attend. I am not able to give an assurance about how the system will operate, because the detail is still being worked out. I have played that record many times this evening, but there will be plenty of opportunities to put the detail to the House. All concerned are anxious to ensure that any notification system will result in the minimum possible resource burden on colleges, whether they be public or private, and that only the genuine no-shows should be reported to us.
We have discussed our proposals with representative bodies in the education sector, including the Association of Colleges, the United Kingdom Council for Overseas Student Advisors and the Association of Registered English Language Schools. They support our aim of preventing the reputation of the UK education sector being undermined by fraudulent students or colleges. Some of the bodies have expressed concerns about resource burdens on the institutions that arise from the

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proposals. The Association of Registered English Language Schools is fully supportive of our plans for accreditation of English language colleges and the Department for Education and Skills' proposals to introduce a register of genuine providers have been widely welcomed.
I was asked also how the registration of colleges will be earned or achieved. In checking the legitimacy of providers, the Department for Education and Skills will look at the evidence that any genuine learning provider will be able to provide, such as the details of their premises, accounts and exam achievements. Work on developing the criteria and the process for accreditation for registration is ongoing, and the Department for Education and Skills is committed to providing further details about the scheme later in the summer.
Whether there will be a right to appeal for establishments which are not included in the register will depend on the detail of the scheme. It is clear that a set of criteria is needed and that those criteria must be met. I cannot go so far as to say that there will be an appeal system, but consultation is taking place. Providers and their representative organisations will have every opportunity to feed into the consultation before more details of the scheme become available.
I can therefore assure the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman, that the proposition in Amendment No. 26 that the power in Clause 29 could be used to specify a requirement relating to approved educational establishments is one with which the Government are in full agreement. That can be achieved using Clause 29 as drafted. It is not considered to be necessary to refer to the example in the legislation.
I hope that with that further explanation—I accept that it is not complete—noble Lords will accept that we are moving forward. The register which is being developed by the Department for Education and Skills will be used by the Home Office to verify that providers are bona fide for the purposes of immigration. The department has fully consulted the Home Office in developing the register. We are confident that the criteria being developed will allow the Home Office to ensure that bogus operators, who have no intention of providing learning, are not able to bring visa students to the UK. The register is not intended to address issues of quality.
A great variety of learning is available in the UK in both the public and the private sectors. That is one of our strengths. The register will help remove the risk of bogus providers while still being useful to the Department for Education and Skills in bringing together information on all providers. I hope that the House finds that further information to be useful, but I suspect that we shall come back to the issue, as we must do, when we have worked out the scheme in some detail.
Baroness Carnegy of LourMy Lords, the Minister has not mentioned consultation in Scotland. The associations of which he spoke are not Scottish.
Lord RookerMy Lords, I have a feeling that the United Kingdom Council for Overseas Student
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Advisors may well cover Scotland. I referred to the UK education sector being undermined by fraudulent students from fraudulent colleges. Therefore, I have to take it as granted that consultation will be carried out with the special Scottish interests among colleges. Some colleges may be based in England; some may be based in Scotland. Therefore, they must all be included in the consultation.
Baroness Anelay of St JohnsMy Lords, I thank the Minister. He referred to the fact that the education sector supports the Government's proposals. It certainly supports the proposition that there should be a register of bona fide colleges. Our only dispute is with how effective such a register may be, given that the DfES proposal appears to be one that could allow in colleges that would still be considered bogus by organisations such as ARELS. I was glad to hear the Minister refer to the Association of Recognised English Language Services by its old name. When organisations change names, as it has recently, it always creates difficulties.
I agree with the Minister that the list, when it is drawn up, should be operated by the Home Office. I just want to be sure that the current standard that the Home Office has set is the minimum that will be transferred to the new register. When I spoke about quality, I did not mean assessing whether the education being provided is first class or acceptable. I was asking whether it will fit in with the current standard that the Home Office exercises. That would be the minimum that we would consider appropriate.
I am glad that discussions on the criteria for accreditation are continuing with the DfES. It is not right to take the matter further at this stage because I shall now go back to Universities UK, ARELS and the Association of Colleges and see what other issues they would like me to raise at Third Reading. I shall then give the Government a further opportunity to address the issue of the right of an education institution to appeal against the refusal to allow it on to the list. The matter of appeal by the student has not been raised at all by the education institutions; rather, they are concerned that bona fide colleges might not be included on the list and might need the specified right of appeal. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Aveburymoved Amendment No. 27:
Leave out Clause 29.
The noble Lord said: My Lords, Clause 29 gives the Secretary of State the power to remove appeal rights against the refusal of entry clearance applications in circumstances to be determined by Statutory Instrument. The clause does not reveal what the Government have in mind. The only clue is that the decision to refuse must have been taken on grounds that,
"relate to a provision of immigration rules".

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Since virtually all applications are made under the rules, and those that are not do not attract the right of appeal anyway, the provision is potentially very far reaching.
We believe that the preservation of appeal rights is vital in the interests of justice and the maintenance of standards in decision-making, so we are seriously concerned about the clause as drafted, which appears to give the Government carte blanche to remove appeal rights against all entry-clearance refusals, except those that raise issues under the Human Rights Act or Race Relations Act. In that sense, the proposal is breathtakingly wide, and the Government have given no justification whatever for seeking to take those tremendous powers.
7.30 p.m.
The powers extend decisions based on not only any existing rules but, as the Minister frankly explained when we discussed the matter in Committee, any future rules that may be made hereafter. The only example that he gave of how the clause might operate in practice, which he said was not meant to be exhaustive, was that it could be made an additional requirement of the rules—we have just discussed the matter—that, to qualify for a student visa, the bona fide private educational institution at which the applicant had enrolled had to be on the proposed register. Therefore, it can be provided under the clause that, if an applicant has enrolled in an establishment that is not on the register, he can be refused with no right of appeal.
At present, if the system is working properly, there is presumably a list of establishments that are not bona fide, and entry-certificate applications naming them would be refused in any case. If the applicant then appealed, there would be an investigation of what was provided by that establishment. That would be the last thing that the operators of the bogus colleges would want. As the Minister said, once the register is in operation it will be a question of fact whether a school or college is on it. We would have no objection to there being no right of appeal against the negative decision based on the fact that a non-registered establishment is named in the application.
That example points to the way in which the clause ought to have been drafted. It should have said that a person may not appeal if the grounds of refusal are that he has failed to comply with a factual requirement of the immigration rules. That would be compatible with existing limitations such as in, for instance, Section 88 of the 2002 Act. When a person does not have a document required under the immigration rules such as a work permit, is not a Commonwealth citizen when that is a requirement, or is older than is allowed to be an au pair or working holidaymaker, there is no right of appeal. That is not unreasonable because those are objective criteria already set out in the rules, and
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appeals against refusal on those grounds could not succeed. Similarly, visitors have no right of appeal, except if they seek to visit family members. Students cannot appeal if they seek to follow a course of less than six months' duration.
The press release that announced the amendments said that the Home Secretary would,
"remove appeal rights in non-asylum cases when a person is refused entry to the UK because they fail to meet certain predetermined mandatory requirements, for example, attempted entry as a student when they do not have a place at their stated college".
That example was not helpful, because "prospective students" are already denied appeal rights by Section 91 of the 2002 Act.
If the Government would amend Clause 29 so that it could be used only to take away rights of appeal where the refusal was based on the applicant's failure to satisfy a factual requirement of the immigration rules, we would support them. We cannot accept the catchall provision that appeal rights may be removed where the decision is taken on grounds that merely relate to a provision of the rules. We ask that the Minister take the clause away and amend it to honour the undertaking that he gave that it will apply only to,
"provisions in the Immigration Rules that are based on objective criteria".—[Official Report, 15/6/04; col. 709.]
That means provisions about which there can be little doubt as to whether the necessary requirements have been met. I beg to move.
Lord RookerMy Lords, I can only repeat what I said in Committee. I give my reassurance again that the order-making power will be used only in respect of decisions based on objective criteria. As I said in Committee, the availability of judicial review in cases that will have no right of appeal as a consequence of Clause 29 underlines that assurance. It would be against the Government's interests to create a situation whereby high numbers of cases were judicially reviewed. That is what would happen if the Government sought to remove the right of appeal for decisions that were not based on objective and factual criteria.
The High Court was consulted before the Government tabled Clause 29, and indicated broad support for the measure, provided that it was to be used in the way in which I have described. I almost say "I rest my case", because that is the nub of the matter. If the Government are seen not to operate the provision, that would go against what the High Court said when we consulted it, and we would pile up a load of judicial review cases, which would be in no one's interests.
The Delegated Powers Committee scrutinised Clause 29 and accepted that there may be a need to respond to evidence of abuse. The committee considered the power acceptable in the light of the affirmative procedure. I confirm what I said in answer to the noble Countess, Lady Mar, when I was asked if there would be a possibility of judicial review from abroad. The answer is yes. If I said more I would risk repeating myself. We have to operate the provision as I set out. The High Court would

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not buy it if we did not do so, and if we did not do so everyone would know about it because the court system would be clogged with judicial review cases.
Lord AveburyMy Lords, I am a bit mystified about why the Minister is reluctant to amend the clause to incorporate the undertakings that he gave in Committee and just now.
Lord RookerMy Lords, we have opportunities for constant review of legislation as it goes through. The best brains in Whitehall are on the case. If we can clarify and make more transparent what we seek to do, to meet the points raised, we will do so. We intend to use the factual requirement only in relation to objective requirements. There are difficulties in defining "objective", which is probably part of the problem. There would be similar difficulties in defining factual requirements. The safeguard is the affirmative resolution procedure, which we will set out.
As I said, the High Court was consulted about the clause and indicated broad support—I do not say detailed support—provided that it was used in the way that I described. If the way that I have described it could be used better to clarify part of the clause, we will do that. I am not saying that we will shut the door, but on the other hand I cannot say that we will take the matter away and bring it back at Third Reading. I shall seek to have an answer on the matter for the noble Lord at Third Reading.
Lord AveburyMy Lords, I am still a little surprised that it is so difficult to draft an amendment to the clause that would give effect to what the Minister said. We would have to rely on a Pepper v Hart analysis of what he has said, instead of having the matter in terms on the statute book, which is always less satisfactory. I am most grateful to him for saying that he will have another look at the matter before Third Reading. Without holding him to any specific government amendment, I sincerely hope that he will be able to come forward with some words to give effect to what he said this evening. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 48 [Commencement]:
Lord Aveburymoved Amendment No. 28:
Page 43, line 20, at end insert—
"( ) Section 12 shall not come into force until the integration loan scheme under section 13 has come into effect."
The noble Lord said: My Lords, when the loan scheme was discussed previously, there seemed to be consensus that it should come into effect at the same time as the backdating of benefits ends, to ensure a relatively soft landing. As the Bill stands, from the moment that backdating comes to an end, successful asylum seeker A starting the rest of his life in the UK will be worse off to the tune of several hundred pounds compared with B, whose application was approved the
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day before. Yet A might have lodged his application earlier than B, and might have been unlucky in having a less efficient solicitor, or the caseworker who dealt with him in the IND might have gone on leave at the critical moment.
At the very least, Parliament ought to ensure that B is entitled to the loan on offer under Clause 13, so that he is not in a worse immediate cash-flow situation than A, even if he has to pay the loan back as soon as he starts to earn. That is the purpose of Amendment No. 28.
The Minister was unable to answer some of the questions that were put to him about the loan scheme on 15 June. I hope that in the intervening fortnight he has been able to take advice on them. I asked whether the Government had discussed their proposals with the banks and what the banks thought about the Home Office going into competition with them. If the Minister says that the reason for not using the banks is that these loans are to be interest free—as he explained and as he has said again this evening—why cannot the IND reimburse the banks for the interest they would otherwise have received on the individual loans of these amounts, taking into consideration a guarantee of repayment by the Government? Doing it that way would have avoided the necessity for the Home Office to dabble in a business of which it had no knowledge or experience.
I asked how much has been spent by the Home Office so far in designing the loans scheme. Crucially, the noble Lord, Lord Hylton, asked whether every successful refugee would be eligible or only those who had accepted an offer of accommodation from NASS. The subsistence-only applicants would have been out of pocket to a far greater extent and therefore in greater need of a loan.
We asked how much it would cost to set up a mechanism for what is specified in the clause and how much it would cost to vet and approve the applications when the scheme is up and running—a task which the banks undertake regularly in the course of their normal business.
We asked whether the calculation of the amount available for lending would begin from the time when the back payments were abolished and whether potential applicants would have to wait until the funds had built up to a certain level of capital. Of course, if the banks ran the scheme, these problems could be overcome because the initial capital required would be zero and the running costs of interest reimbursement would be partly or wholly funded by the savings in back payments. I beg to move.
Baroness Anelay of St JohnsMy Lords, in Committee I asked questions about the gap between the end of the backdating of benefits and the start of the loans scheme because I thought it strange that the Government were not giving an assurance that there would not be one. The only assurance which came forward was, "Don't worry, it's not likely to be a big one". It is unusual to deny people their entitlement and not put in place immediately the alternative recourse

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to funds, particularly when the people have been correctly adjudged as refugees and are to be integrated into society. My question today must be: what will determine the length of the gap between the ending of the backdating of benefits and the start of the loan scheme?
Earlier today, the Minister told us that the loan scheme will be funded from the cancellation of the backdating of benefits. It will be completely self-supporting from that time. Two questions follow from that. First, which year of the backdating of benefits expenditure will be taken as the base when deciding what lump of money will go to the new fund? Having decided what that lump of money is, can the award start from day one, or must the Government build up their savings before they start making loans?
Another question occurred to me while listening to the noble Lord, Lord Avebury, reflecting on the questions posed in Committee by the noble Lord, Lord Hylton. What happens if I am at the end of the queue for loan applications and the money has run out in that financial year? Does it mean that I will receive no money—is this a stand-alone fund?—or does it mean that I must hope that the Government will make an ex gratia payment? We need to know who will qualify and how, and how the budget will be managed.
7.45 p.m.
Lord RookerMy Lords, I have been waiting almost all night to make this response, but that might have been a mistake. This is on the narrow issue of commencement and all these questions are "legit". I am tempted to say that I wish I had been asked them earlier when we were dealing with the issue, but I did not have the answers. I certainly do not have them now, but I have a key answer.
On the issue of commencement and the gap, I can get the answer out of the way. I am pleased to be able to inform noble Lords that in the period between discussions in Committee and today, further considerations have been given to the matter. I can provide the assurance that there is no reason why there should be any gap whatever. It is the Government's intention that there should be none. On the other hand, we do not feel it necessary to provide in legislation that there should be seamless transition. When we discussed the matter in Committee, that was the key.
Furthermore, as the loan fund will come from the savings, it also begs the question, "Until we get the savings, how can we give any loans?". I am speaking without notes, but I understand that a mechanism has been agreed with my friends in the Treasury that a sum will be placed at the use of the Home Office. Obviously, the loans would start at a few and gather in number. In other words, there would be a known budget. I do not know on which year it would be based—it could be the previous year or an average of the last three—but the sum of money would be made available for use by the Home Office.
We are going into the banking system here rather than using the private banks, therefore loans will be available from day one for people in need. However, as I have said repeatedly, the fund is made up from the savings. It is not inexhaustible and it is not a loan system for anyone based on need. There will probably come a time during each year—I do not know—when the fund for that year will be exhausted. That will inevitably be the case because it will be funded out of the savings. It is not new money in that sense. However, it will be available from the beginning of the loan scheme. Obviously, there will be nothing in the kitty until the savings have been made, so a nominal sum will be transferred. As the savings accrue, the loans can be made, but the applicants will not be dependent on the savings because there will be a budget for the year. There is no intention for there to be a gap.
I will seek to get further particulars on the other quite legitimate questions asked by the noble Lord, Lord Avebury, as I am clearly duty-bound to do on this and other clauses that we discussed today. They are added to the list of questions for which I will have to find answers.
Lord AveburyMy Lords, the noble Lord has been good enough to give us the answer to our main question, but not to many of the others. We were in fact repeating the questions that we asked at an earlier stage. The noble Lord said he was tempted to wish that questions had been asked earlier, but they were. We hoped that by now he would have been able to come forward with some answers.
The reply he gave to the noble Baroness, Lady Anelay, was a matter for dismay. The scheme envisaged that the money would run out at certain points in the year and that anyone unfortunate enough to be in the queue for a loan at that moment would be out of luck. That is unacceptable. As the Treasury is in effect granting the Home Office an overdraft to begin the scheme, it could be asked to do so if there were meritorious applications for loans from credit-worthy individuals at points in the year when the funds allocated to the loan scheme had been exhausted. Why should not there be a repeat of the initial top-up with the Treasury lending money to the Home Office? It could then continue to make loans to bone fide applicants from the refugee community who otherwise would have to be told, as the noble Lord explained, "I'm sorry, but the money has run out for this year. You'll have to apply again on 1 January 2005".
We are grateful to the noble Lord for having undertaken to give answers to the other questions. I hope at least that we will be able to have a more informed discussion of the loan scheme at Third Reading. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Consolidated Fund (Appropriation) Bill
Brought from the Commons, endorsed with the certificate of the Speaker that the Bill is a Money Bill, and read a first time.

Mersey Tunnels Bill
7.50 p.m.
Read a third time.
Clause 2 [Amendment of the 1980 Act: levying, revision and application of tolls]:
Lord Hunt of Wirralmoved Amendment No. A1:
Page 2, line 16, at end insert—
("(2) No tolls may be demanded under that Part at any time in the year 2008.")
The noble Lord said: My Lords, I am very grateful for this opportunity to discuss a number of amendments which have been tabled in my name. However, first—particularly in the presence of the chairman, my noble friend Lord Geddes—I am sure that I speak for all Members of this House in saying how much we appreciate the very hard work carried out by the Select Committee on the Mersey Tunnels Bill. We are very grateful to the noble Lords, Lord Bradshaw and Lord Brookman, the noble Baroness, Lady McIntosh of Hudnall, the noble Lady, Lady Saltoun of Abernethy, and of course the chairman, my noble friend Lord Geddes.
Although I do not agree with the view of members of the committee that the Bill should proceed without amendment—hence, I am moving a number of amendments today—I think that, thanks to their careful and hard work and their probing, a number of facts have emerged which I believe will be material as we seek to consider whether the Bill should be amended.
In order to put my amendments in context, perhaps I may summarise. The first amendment deals with the question of whether any tolls should be charged in the year 2008. I shall return to the arguments in a moment, but I believe that noble Lords will be aware that in 2008 Liverpool will become the European Capital of Culture.
The subsequent amendments deal, first, with what the money produced from tunnel tolls can be spent on; secondly, whether or not there should be a reduction in the amount of the increase each year, or however often the increase occurs, to take account of efficiency savings; and, thirdly, once the debt incurred in the construction of both tunnels has been paid, whether that is the time to reduce the tolls to the level of operating costs, as envisaged in the County of Merseyside Act 1980, or whether this Bill should be allowed to proceed on the basis that that legislation is repealed. I hope that that is a valuable context for the spirit in which I seek to move amendments on Third Reading.
The first amendment to Clause 2 would insert on page 2 at line 16 the provision that:
"No tolls may be demanded under that Part at any time in the year 2008".
When I made the promoters aware of this amendment, I sought to reassure them that I did not wish to press it, other than to probe the extent of the support that will be allowed by Merseytravel to that key year in Liverpool's history—2008. I want to suggest a number of alternatives which they might like to consider.
First, in 2008 a number of key events will take place in and around the city of Liverpool and, indeed, on the Wirral side. I declare my interest as having been Member of Parliament in the other place for a Wirral constituency for 21 years. In the very special year of 2008, we shall see the culmination of much that the local Members of Parliament and the local people have been pressing for for many years—namely, at last, a focus of investment in Liverpool and recognition of the cultural buildings and the cultural events that take place there every year.
In later debates, we shall hear that some of the problems with congestion around the tunnel occur on the Wirral side early in the morning as people seek to go to work. I shall be relating that to another amendment a little later. The promoters may well consider—I very much hope that they can give an assurance in this respect—whether or not at off-peak times the tunnel tolls could be reduced or removed altogether in order to encourage the free access of Wirral and Liverpool people to the events that are taking place in 2008.
This amendment has been the focus of local press comment. Indeed, it has been suggested by Esther McVey, one of our local personalities in Merseyside, that there must be a way in which the local transport authority could recognise that something special should happen in 2008. I recognise that this was not an issue before the committee, but I should like to hear some assurance that there may well be a concessionary scheme or some encouragement, particularly to younger people and pensioners, to travel to events during 2008.
As I understand the position, the finances of the tunnels are in robust shape. Indeed, as my noble friend Lord Geddes may recall, it was admitted before the Select Committee that at present there is no case for increasing the tolls and, under the existing procedure, there would need to be a case in order to increase them. Therefore, with the finances of the tunnels in robust shape, there is the opportunity to increase the number of concessions available during parts of the day other than at peak times.
I hope that noble Lords will understand that I wanted to table this probing amendment in order to hear a statement on behalf of the promoters that they will at least consider a way of enabling poorer people, in particular, in Liverpool to use the tunnels. I refer to people who may be able to afford a car but who will find the tunnel tolls during 2008 an additional burden which might prevent them attending some of the great events.
The year 2008 will be a fabulous year in Merseyside and in Liverpool, in particular. Let us hear what the promoters will do to ensure that everyone can attend those very important events during the course of Liverpool's European Capital of Culture year in 2008. I beg to move.
Lord Smith of LeighMy Lords, perhaps I may respond immediately on that point. I thank the noble Lord for the spirit in which he moved the amendment. Merseytravel—indeed, the whole of the north-west—was delighted when Liverpool was made European Capital of Culture 2008. Merseytravel will certainly play its part in ensuring that it is a success. It has already named one of its refurbished trains "Capital of Culture", and it is hoped that Merseytram will be operational by 2008, enabling it to meet the needs of the anticipated additional visitors. There will be park- and-ride schemes and other ways in which the transport planning of Merseyside will meet the needs of the 2008 Capital of Culture bid. I am sure that the style in which it does so will be appropriate to the Capital of Culture. I suggest that if anyone wants to sponsor a statue of Wayne Rooney in Liverpool, I am sure that Merseytravel will be interested in that.
The noble Lord made the point that the tunnel has a surplus at present but, if no charges were made during 2008, I think that it would cost Merseytravel some £30 million at current costs. It would have to be funded in some way. Either an additional £50 could be put on each council tax across Merseyside or the tunnel's debts could be added to, which is perhaps something that the noble Lord would not want to do.
As the noble Lord will recognise, if, as his amendment suggests, there were no tunnel charge in 2008, serious congestion would occur on both sides of the tunnel, raising pollution levels at both ends. I do not think that that is the kind of improved atmosphere that Liverpool is looking for in its City of Culture year.
The noble Lord said that there may be ways in which Merseytravel can see how it can help to market events on the different sides of the river. I am sure that it will do so. I hope that the noble Lord will reflect on that and withdraw his amendment.
8 p.m.
Lord GeddesMy Lords, with considerable apologies to the noble Lord, Lord Smith of Leigh, we had a conversation earlier and I thought it might be appropriate if, as chairman of the Select Committee, I spoke at this stage. However, on reflection, the amendment was not a subject that the Select Committee in any way considered or heard evidence on. Perhaps, if noble Lords would allow, it would be more appropriate if I explained the considerations of the Select Committee after my noble friend Lord Hunt has moved his next amendment.
Lord Rodgers of Quarry BankMy Lords, in speaking to Amendment No. A1, despite having
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missed Second Reading, perhaps I may be permitted to say a few words about my hinterland, to use the current expression, within the context of the Bill.
I think I can claim to be the only Member in the Chamber this evening who was present when the first Mersey tunnel, the Queensway, was opened on 18 July 1934, almost 70 years ago. I was five and sitting on the shoulders of my father as King George V and Queen Mary carried out the ceremonies before driving off through the tunnel to Birkenhead.
Although private Bill procedures are tortuous, archaic and expensive, many Bills are relatively uncontroversial. To my regret, this Bill has dragged on for two and a half years, a stretch of time far greater than that of any public Bill. I have read both the Second and Third Readings in another place but have found it difficult to measure the weight of the speeches and whether Members were mainly entertaining each other or trying to make serious progress. I exempt, of course, any such shortcomings about the debate in this Chamber in February. In particular, the noble Lord, Lord Hunt of Wirral, spoke in his usual persuasive and fair-minded way. I have had a soft spot for the noble Lord because he went to school in Liverpool within a mile or so of my own school, Quarry Bank, although some years later. Alas, my sentiment does not extend to his arguments.
Almost 10 years ago, I played some part in trying to win for Liverpool the title of the European City of Architecture. When Liverpool decided to compete to become a European Capital of Culture, I joined in the campaign. Growing up in Liverpool I used to visit the Walker Art Gallery, attend concerts at the Philharmonic Hall, go to theatres, especially the Playhouse and use the great reference library in William Brown Street. Those were permanent cultural features of the city and Merseyside.
In the light of that distinguished heritage and the prospects for the wider events in 2008, it really is nonsense to pretend that Liverpool will suffer a penalty unless Mersey tunnels are suspended. Neither those who are already committed nor those who are only curious will be put off by such a modest tone. They are far too robust for that.
I hope that the noble Lord, Lord Hunt, will withdraw his amendment and turn, if he wishes, to more substantial amendments.
Lord Alton of LiverpoolMy Lords, the noble Lord, Lord Rodgers of Quarry Bank, has several things in common with me on this question, not least that together we both campaigned for the city to become the City of Architecture. Indeed, he and I took part in a debate in your Lordships' House with the noble Baroness, Lady Hooper, who was also a key figure in campaigning for Liverpool to become the Capital of Culture in 2008. We have one other matter in common. For 18 years, as the noble Lord knows, I represented the Edgehill and Mossley Hill constituencies where his old Quarry Bank school was situated. I always regarded it as one of the most important parts of the

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time I spent in another place to campaign alongside him in various remarkable by-elections during the 1980s.
However, tonight we are on different sides of this argument. I very much side with the noble Lord, Lord Hunt of Wirral, in what he has said.
Before serving 18 years in another place, I served on the local councils in Liverpool and on Merseyside. For a time I was deputy leader of Liverpool City Council, but I was also a member of the Merseyside County Council. Indeed, I was a member in 1974 when the second of the tunnels, the Wallasey Tunnel, was opened. I served at that time also as chairman of one of the highway committees of Liverpool City Council.
It was part of the folklore of Liverpool then, as it remains now, that there would come a time when tolls would no longer have to be paid and the capital debt would either be paid off or—as long ago as the 1920s, when the first tunnel, the Birkenhead Tunnel, was opened—become toll free within 20 years of opening. None of that happened.
Like the noble Lord, Lord Rodgers, I followed the debates both in another place and in your Lordships' House. I feel that he is being slightly unfair to Members of another place. Mr Frank Field, for whom I think many Members of your Lordships have enormous admiration, put up a very strong case from the Labour Benches as to why we should use the opportunity of the Bill to deal with this part of Merseyside folklore once and for all and to confront the idea that tolls can carry on rising exponentially and can somehow be used as a regressive form of taxation to put right the problems of public transport on Merseyside.
Here again I part company from those who, rather sensibly on the whole, run Liverpool City Council. I think that on this occasion they are wrong. The fact is that people coming through the Mersey tunnels, whether they drive a Mercedes or a Mini, pay the same toll. That becomes an impediment to the growth of Merseyside rather than something that unites it. In 2008, in the year of the Capital of Culture, the point alluded to in this probing amendment, we have probably the greatest opportunity we have had since World War II finally to regenerate the economy of Merseyside in a spectacular way: culturally, socially and economically.
This wonderful opportunity has been brought about by political unity on Merseyside. All of the political parties have been united about this and there is unity on the point among the five local authorities on Merseyside. Instead of allowing the tunnels to continue to be an impediment to that, we should finally liberate them and address this issue. It is not a matter which the Merseyside tunnel authorities can be expected to deal with by themselves. It requires a lead from Government.
I was therefore very disappointed that, in another place, Mr John Prescott and transport Ministers lined up in order to support the Bill. Anyone reading the accounts of those debates would think that this was a government Bill rather than a Private Bill.
This evening, in a characteristically measured speech for your Lordships' House, the noble Lord, Lord Smith of Leigh, referred to congestion. It is worth pointing out to your Lordships that on an average day the eight lanes of the Mersey tunnels carry about the same traffic as the four lanes of the toll-free Runcorn bridge. The Dartford crossing has the same number of lanes as the Mersey tunnels but carries twice as much traffic. The case about congestion and overuse has not been made properly. In any case, toll increases seem to have little effect on peak-time traffic, and off-peak the tunnels are underused.
I can remember well the debates during the 1970s about the congestion around both the Birkenhead and the Wallasey tunnels. That was dealt with by the creation, in Wallasey in particular with the motorway feeding into the tunnel, of a large area where cars could park and by removing the payment booths from Liverpool to the other side of the river. There is no congestion whatever in Liverpool, even of cars feeding into the tunnel during peak hours.
We have an opportunity to deal with a range of questions. I share the view of noble Lords on the Liberal Democrat Benches who argue that we need a more environmentally friendly public policy, but I do not believe that we will achieve it through a regressive form of taxation. It would be rather like arguing that the congestion charge in London, which I support, should be limited only to people coming in from Southwark or Wandsworth. That is the practical effect that the tunnels would have through the argument for using funds generated by the Mersey tunnels for the assistance of public transport on Merseyside.
The year 2008 will mark a turning point for Merseyside. It would be good if that could be reflected in some way in this Private Bill before your Lordships' House. I have great pleasure in supporting the probing amendment moved by the noble Lord, Lord Hunt.
Lord Hunt of WirralMy Lords, I am grateful to those noble Lords who have contributed to the debate. I welcome the words of the noble Lord, Lord Alton of Liverpool, who is well known in and around Merseyside for fighting for the area's regeneration. I thank him for all his past hard work. I have enjoyed working closely with him to bring that about.
The noble Lord, Lord Rodgers of Quarry Bank, went to Quarry Bank school, so he is the noble Lord, Lord Rodgers of Quarry Bank, in every sense. I say to him that this Bill is not the first Bill. There was an earlier similar Bill, which had the aim of selling for a period of 25 years the right to run the tunnels and collect the tolls. That Bill was eventually abandoned, so the length of time has been due to a lack of clear policy direction in relation to private legislation.
Under the earlier Bill Merseytravel estimated that it would have received a premium of £50 million, plus £15 million per year in rent, which is a total income of £425 million. The first Bill involved big money, but this Bill is completely different. It is a short private Bill amending the provisions of the 1980 Act. I agree with the noble Lord, Lord Alton of Liverpool, that the

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debates in the other place were very much on whether the undertakings embodied in statute on how the tunnel toll income would be spent were to be broken. That is what the debate is all about.
It has been a useful opportunity to air some of the considerations that led me to table the amendment. In the Select Committee in response to a good probing question from the noble Baroness, Lady McIntosh of Hudnall, Mr Wilkinson of Merseytravel said,
"My Lords, the simple answer is that under the current legislation governing Mersey Tunnel finances, a toll increase would not be justified".
That was clearly stated before the Select Committee. We shall return to that issue later.
I should explain that it was never my intention suddenly to withdraw over £30 million per year from Mersey Tunnel's finances. I got what I was looking for; namely that the noble Lord, Lord Smith of Leigh, in a measured way—I agree with the description by the noble Lord, Lord Alton of Liverpool—agreed to consider the areas that I identified. It has been a valuable debate.
I appreciate greatly the contribution of the noble Lord, Lord Geddes, and I look forward to his next contribution. I thank the noble Lord, Lord Smith of Leigh, and ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [Amendment of the 1980 Act: Levying, Revision and Application of Tolls]:
Lord Hunt of Wirralmoved Amendment No. 1:
Page 3, line 35, leave out from beginning to end of line 33 on page 4.
The noble Lord said: My Lords, we now come to a far more substantial amendment, as noble Lords will appreciate. On page 3 of the Bill under Schedule 1 there are a number of uses to which the tunnel tolls can be put. I focus on new Section 91(3)(e), which states that the tolls authorised to be demanded, taken and recovered may be applied by the authority, Merseytravel,
"in making payments to the Authority's general fund for the purpose of directly or indirectly facilitating the achievement of policies relating to public transport in its local transport plan, or for other purposes".
Again the Select Committee came to the rescue, although not as far as I now propose in the amendment, in seeking undertakings from the promoters. In the appendix to the special report of the Select Committee there is authority from Bircham Dyson Bell on behalf of the promoters, Merseytravel, to undertake to my noble friend Lord Geddes in his capacity as chairman of the committee that,
"Merseytravel will only use the power sought by the new section 91(3)(e) of the County of Merseyside Act 1980 (the 1980 Act) to apply tolls 'in making payments to the authority's general fund … [including—those words] for other purposes' for the following 'other purposes'".
Then, directly or indirectly repaying the debt, a matter to which we will return in a moment. Secondly,
"implementing the powers relating to noise insulation works".
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Thirdly, and most importantly,
"directly or indirectly facilitating the achievement of policies relating to public transport proposed to be included in Merseytravel's local transport plan (as defined by the Bill) but which are not at the relevant time so included".
8.15 p.m.
So far, so good. But I would just mention to noble Lords that a survey was carried out by Merseytravel in advance of submitting the Bill. My noble friend Lord Geddes and other members of the Select Committee may recall that there was some exchange about the survey. I think that my noble friend, the chairman, had doubts about whether the numbers involved were sufficient in order to rely on the results of the survey, and the noble Lord, Lord Bradshaw, intervened to support the promoters and to say that 2 to 2.5 per cent of respondents to a survey could be counted on and reasonably valuable. I believe that my recollection is correct.
Therefore, the Select Committee was reasonably told by the promoters that the survey could be relied upon. What I do not think came across was that the overwhelming majority in the survey said that the tunnel toll should not be applied to these "other purposes". They were guided by the statutory provision under Clause 99 of the County of Merseyside Act 1980 that, after paying for the operating costs, the tolls could only be applied to reduce the debt, and once the debt had been reduced accordingly, the tolls would be lowered to cover the operating costs.
I shall return to the matter in a later amendment, but I just make reference to Clause 99 because, as I believe the noble Lord, Lord Alton of Liverpool, has already pointed out, there has been this understanding locally for years now that the income produced by tunnel tolls would be utilised to repay the debt. In fact the figures—and I have the latest figures with me and if any noble Lord wants further information I can supply it—are more or less that the current tunnel toll income is about £32.5 million per year and that the direct operating costs of the tunnels amounts to just under £12.5 million.
Therefore, there is a considerable sum of money there, even before any increases are allowed, which can go primarily towards repaying debt. A great deal has happened to repay the debt. We should be aware that the debt has reduced substantially, which of course was always intended. The debt rose to somewhere close to £150 million in or around 1992. The latest figure given to the Select Committee is that, thanks to these surpluses, the debt has now fallen to £94.6 million. So it has fallen from nearly £150 million to £94.6 million, thus giving rise to the belief locally that with this accelerated repayment of debt there is a real opportunity at last to fulfil the undertaking given not only to local people but in the statute—the County of Merseyside Act 1980—that the tunnel tolls will fall once the debt has been repaid.
The Earl of OnslowMy Lords, could the noble Lord, Lord Hunt, explain what the running costs are, for my own clarification? Are they basically interest and wages? If the debt is abolished, and you do not have people to man the booths, your running costs fall very substantially indeed.
Lord Hunt of WirralMy Lords, I believe we will see that a great deal has been done to improve the efficiency of the tunnel toll collection, with the result that we have seen year-on-year real terms reductions in operating costs. We will hear from the noble Lord, Lord Smith of Leigh, who I am sure will give us the correct analysis of operating costs.
In 1994, operating costs were in excess of £9 million. I believe that that mainly covered wages, but it also covered a series of other costs that fall on the operation of the tunnels. Those costs have increased over the 10-year period to £12,422,000. However, that hides—and we should compliment those involved on this—quite a revolution in efficiency at a time when income has been rising. Over the same period the revenue account increased from £26,445,000 to £32,340,000 last year. So there has been an increase in revenue and an increase in efficiency. However, it still leaves this very substantial gap between the operating costs and the revenue, which, until now, has primarily gone to repay debt, as is required under statute. The result has been that the debt has decreased in the way that I have demonstrated.
What has now happened is that the good people of Merseyside have been told that the goalposts are going to be moved. "I know," it is said, "we undertook only to repay debt. I know that that is contained in statute. I know that we have always given an undertaking that the tunnel tolls will fall once the debt has been repaid. But we are now going to change the law. We are going to introduce a private Bill saying that not only can the tunnel tolls be increased when there is no need to increase them, but the increase will produce additional revenue. That will not go towards the maintenance of the tunnels, but will be used for a whole series of other projects".
The people of Merseyside, particularly the people of Wirral, object to that quite considerably. They have always believed that this undertaking, being enshrined in an Act of Parliament, was one that meant something.
I have put to the promoters—perhaps the noble Lord, Lord Smith of Leigh, can expand on this—that there was this undertaking, and they have agreed that the undertaking was made. But the situation has changed. There are other transport needs which require financing. Although that financing should perhaps be raised in another way, in the view of the electors of the area, the promoters of this Bill have got their eyes on the surplus, and the increase in the surplus.
One might ask why that is so. This is where the noble Lord, Lord Geddes, and his committee come into play. Some statistics and facts that were produced to them were never revealed in the other place. That evidence
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was revealed to the committee, but it has been quite difficult for me to get my hands on copies of some of it. Fortunately, through diverse channels, it has fallen into my possession.
The evidence shows that under the Bill as it is now proposed, the intention is that the toll will inexorably rise every year, by RPI, without the need for a case as to why that should be so. Tolls may not rise when the increase is below 5p, but they will rise. A table has been presented showing that tolls will increase, from their present level of £1.20, to £2.40 in 25 years' time. But what is fascinating is that a huge surplus will be generated by this doubling of the tolls. What is going to happen to that? First of all, how much is it? In the table that the promoters produced, over the 25-year period the amount of surplus over and above repayment of debt, operating costs and refurbishment amounts to £288 million. So an additional £288 million is to be raised from those paying tolls.
Lord BradshawMy Lords, the noble Lord has given the impression that he is now producing to the House for the first time the facts that he is quoting. These facts were stated in public over two days. Every Member of the House was able to come and listen to what happened in Committee. Indeed, they would have been facilitated in asking questions or examining witnesses and in anything else. I cannot remember whether the noble Lord, Lord Hunt, did so. He is suggesting to the House that we somehow acted in secret.
Lord Hunt of WirralNo, my Lords, not at all. I am praising the Select Committee for having obtained these facts for the first time. This Bill has not just occurred. It did not just appear before the Select Committee met. If it had not been for the work of the noble Lord and his colleagues on the Select Committee, I do not believe that these facts would have seen the light of day. It is thanks to their probing and their rightful demands that these facts have now come forward. I say that the Select Committee is to be congratulated and the noble Lord, Lord Bradshaw, is one of those I congratulate on having produced these figures. He does not dispute them because they are correct, of course.
An additional revenue of £288.9 million is to be produced from the motorists using the tunnel, even though there is no need for the extra money to be produced. What is the money going to be spent on? As the noble Lord may recall, in the Select Committee the barrister giving evidence on behalf of the promoters described the projects worth £288 million as a "wish list" of public transport projects that are in the local transport plan. What is all this money going to be spent on? It would be spent on more smart bus services—one of the "flagships"—upgrading the Merseyrail system, electrifying the rail line, a new railway station, improving freight lines and on improving the information supply on all public transport improvements. Then there is the gem. Mr Wilkinson said,
"We … have a scheme afoot for the provision of a three-line Mersey tram, a light-rail system to be built over the next decade".

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So now we know where the money is going. It is not going to improve the tunnels, as was promised year after year by the local authorities and by the Government, and which was embodied in statute. There is this wish list of transport projects.
My amendment would remove the wish list. Let me explain. It may be said that I am being irresponsible because if the amendment is passed then there is nothing to spend all this money on. My answer to that is not to increase the tunnel tolls. As far as I can see, the only reason to increase the tunnel tolls is to provide the additional revenue of £288.9 million to be spent on a range of other transport projects. That is not the way to utilise tunnel revenues.
I made the point at Second Reading that when I was a little boy—I think I was about six at the time—I was told that when I grew up, the tunnels would be free. Councillor Dowd made fun of that in the local newspapers. It has always been part of the belief locally that the tunnel tolls would come down when the debt had been repaid. My amendment seeks to remove the ability to spend on transport projects which have nothing at all to do with the tunnels.
My final point is that another graph was produced to the Select Committee as Exhibit B regarding the financial projections. It shows that under the current legislation the toll income at £1.20 per motorist will more than cover operating costs and refurbishment, even though that is calculated at £300 million over the next 25 years, and debt charges. So there is no need at all to increase tolls over the next 25 years to produce the income. The only reason to increase the tolls in the way I have described is to fund other transport projects.
I hope noble Lords are persuaded that there is at least a case to consider here, which is whether or not the motorist should pay an additional tax, because in effect that is what it is.
8.30 p.m.
Lord Lea of CrondallMy Lords, the noble Lord said that he agreed with the noble Lord, Lord Alton, who argued that the difficulty was that it would be very regressive to have the increases. But improvement in public transport is progressive and not regressive. That is precisely the answer to the noble Lord, Lord Alton. I wonder whether the noble Lord, Lord Hunt, has an answer to that simple piece of analysis.
Lord Hunt of WirralMy Lords, the answer which the noble Lord, Lord Alton of Liverpool, may give himself is that they are regressive increases which are completely unnecessary.
Lord Lea of CrondallMy Lords, the point I was making is that if a chap in a Bentley is handing out £50 notes to get out of my way and go through the tunnel, that is all there is to it. But if the money is spent
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on public transport which is not regressive but progressive in terms of income distribution, does not that cancel out the argument?
Lord Hunt of WirralMy Lords, it does not. We are not talking about a man in a Rolls-Royce shelling out huge sums of money. We are dealing with a part of the country where there is real deprivation. Therefore, if the toll is paid by the nurse travelling to work and the cleaner travelling to Liverpool, and it is set at too high a level, then jobs will be destroyed and the situation is going to become very serious.
Birkenhead and Wallasey, the areas immediately adjacent to the tunnel, are sometimes described as areas for the rich. I invite the noble Lord to go to those places, where he will find deprivation the like of which he will not find anywhere else in the country. The poor motorist should not be taxed in order that some marvellous new infrastructure can be funded such as the Mersey tram. Already the cost of travel and motoring is very high. We are talking about people who need a car because there is no public transport available for cleaners, nurses and those who work unsocial hours. I hope that the noble Lord will reflect on that.
Lord Faulkner of WorcesterMy Lords, is not the point about dealing with nurses and other lowly paid people trying to get to work to provide public transport to enable them to do so? It is exactly that group that has suffered as a result of the 36 per cent increase in real terms in bus fares since 1992, and the 3 per cent real terms increase in rail fares in Merseyside over the past 14 years at exactly the same time as motoring costs there and across the country have been falling year by year by 11 per cent. It is entirely regressive.
Lord Hunt of WirralMy Lords, what the noble Lord is saying—in what was not a question or a point of information but seemed to be a speech—was, "thou shalt not travel by car". It is perfectly in order for anyone else to travel by car, but if you are poor, do not travel by car; travel by public transport.
Lord HarrisonMy Lords, it is said that in the case of the person driving in a Mercedes through the Wallasey or Birkenhead tunnels, or the person driving in a smaller car, the taxation raised would be regressive; but where they are joined together, and where it is suggested that they comprise 3 per cent of the population of Merseyside who must avail themselves of the tunnels in order to cross from the Wirral into Liverpool, that they are shouldering an additional burden beyond the normal income tax, beyond the normal council tax, that no other people in the 97 per cent remaining in Merseyside would have to sustain. In that sense, it is not only regressive in the sense that it distinguishes between the Mercedes driver

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and the driver of a smaller car, but it distinguishes between one person and another who pay the same taxes but must pay an additional tax.
Noble LordsOh!
Lord ChanMy Lords—
Lord Hunt of WirralMy Lords, I want to respond to the noble Lord, although I do not want to carry on for much longer, because this will widen into an important and serious debate. I completely agree with the noble Lord, and I hope that the noble Lord will reflect on the points made from just behind him and recognise that this is an all-party approach. It is not about one side against another, it is about local concerns across all parties. Mike Storey, the Leader of the Liberal Democrats in Liverpool, has said that he opposes this Bill. I hope that the Liberal Democrat Benches will listen to that. There is a wide range of outraged public opinion about what is happening here, and I hope that this House will listen to the voice of the people. I give way.
Lord ChanMy Lords, I thank the noble Lord for giving way. As we have already said, and we have heard this many times, Birkenhead and parts of the Wirral are some of the most deprived areas in the north of England, if not all of England, and they are as poor as some of the areas in Liverpool. The difference regarding the tunnel issue is that—
Lord Hunt of WirralMy Lords, I know that the noble Lord will make his contribution during the debate, but I had better move the amendment. I acknowledge the intervention, and I agree with the noble Lord. I beg to move.
Lord Smith of LeighMy Lords, if I may at this point also respond, I shall try to speak just to the amendment, and I shall try to be measured and brief. As the noble Lord, Lord Hunt of Wirral, said, this matter was fully debated in the Select Committee. I am astonished that the noble Lord seemed surprised at the effectiveness of the committee under the skilled chairmanship of the noble Lord, Lord Geddes, in scrutinising this legislation. Do we not always say that your Lordships' House is much more effective at scrutinising legislation than another place? Are we surprised that this information came out only at the Committee stage in your Lordships' House? I am certainly not surprised, and it is due to the work that the committee does.
Interestingly enough, I was going to quote substantially from what the noble Lord, Lord Hunt of Wirral, said, because he is absolutely right that, because of the work of the Select Committee, Merseytravel gave the undertaking that the Select Committee asked for prior to using the particular money. We are at the heart of the matter here about the purpose of this Bill. As the noble Lord suggested, from the time that the first tunnel was built—the noble Lord, Lord Rodgers, was there to see it—but also the
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time of the later tunnel, transport priorities and issues in Merseyside, as in other parts of the UK, have fundamentally changed. What we are trying to do is come to terms with the increased use of the car, and the problems that the increased use of the car has for major conurbations in the country. This particular legislation is trying to balance up the costs of using public transport and the costs of using the motor car.
We are talking about very modest increases in the costs of using the tunnel; up to 10p over three years will be the kind of increase in the tunnel tolls at this particular rate. This is not new. The application of money from motorists to use for public transport purposes was agreed in the Dartford—Thurrock Crossing Act 1988. That and the Firth of Forth road bridge Act are examples of where this principle is in place.
What Merseytravel wishes to do is to ensure there is a proper alternative for motorists so they do not have to use the car to go to work, but that we provide proper, safe, appropriate public transport right across Merseyside to enable people to get to work and help the regeneration of the city without actually causing it to close down. I think this was well argued and debated in the Select Committee and we should not try to overturn its excellent recommendation. I hope that noble Lords will not accept this amendment.
Lord GeddesMy Lords, it may be for the convenience of the House if I intervene at this stage to say a few words as chairman of the Select Committee to which this important Bill was committed at Second Reading in February. I am extremely grateful to my noble friend Lord Hunt of Wirral, and indeed to the noble Lord, Lord Smith of Leigh, for his kind words about myself and members of the committee. In that context I too would like to thank the members of my committee, who I will not say worked long since we sat for only two days, but worked extremely hard. I am very grateful to the noble Lord, Lord Bradshaw, who is in his place, to the noble Lord, Lord Brookman, the noble Baroness, Lady McIntosh of Hudnall, and the noble Lady, Lady Saltoun of Abernethy.
Noble Lords will not be surprised to hear that all members of the committee—excluding their chairman, of course—pulled their weight in no uncertain terms. The chairman had some problems every now and again in trying to make sure that the weight did not tilt too far one way or the other. I think we looked at the Bill in as objective a way as we either could or should, or was possible.
We immediately came to the undisputed conclusion that there were five significant points in the Bill as it stood. In no particular order, they were: the introduction of the retail prices index—RPI—as far as the increases in tolls were concerned; the intervention of the Secretary of State; the use of toll money to fund other forms of transport; this contentious phrase "related or other purposes" to which my noble friend Lord Hunt of Wirral referred; and what can loosely be described as the noise blight on the Liverpool side of the tunnel.
We had no difficulty at all, very early in our discussions, in sorting out the problems of the Secretary of State, the "related and other purposes", and the noise blight. Indeed, my noble friend has referred to those. The committee asked—or I asked on their behalf—for an undertaking from the promoters, and that was given and is indeed in the annex to the report of the committee. So, in that respect, I hope that those three points may be put to one side.
8.45 p.m.
The contentious issues were those of the introduction of the retail prices index and whether the revenue from the tunnel tolls could be used for other forms of transport. While we sat for only two days, noble Lords who have taken a close interest in this will have observed that there are some 60 pages of minutes of evidence. Quite a lot of work was done by the promoters, the petitioners and the members of the committee.
Regarding the retail prices index, it became clear to us that, under the Transport Act 2000, there was full justification for hypothecation—if that is the right word; it is a long one to use at this hour—to use revenue from one source for a related source. We did not discuss, because it was not our duty to discuss, whether we thought the Transport Act 2000 was a good piece of legislation or a poor piece of legislation. It was a fact. As members of the Select Committee, we had to take account of it. We heard and accepted evidence that there are two other comparable tolled crossings in the United Kingdom, although both are in England: the Dartford crossing and the Severn crossing. Both crossings are subject to the RPI and therefore, in our opinion, the move from application to the Secretary of State to an RPI mechanism was logical. Indeed, we considered that the application to the Secretary of State was something of an historical anachronism, so it made sense to put all three in the same bracket.
We also heard evidence that under the Transport Act 2000 the Dartford Tunnel tolls had already been hypothecated and were being used to fund other forms of transport in the area. I think it is fair to say that we were impressed by that evidence and, again, I should say that we were seeking uniformity across these three major tolled crossings. However, the Severn will not come into play in this context for some time because the second Severn bridge is a much newer construction and its debt is quite far down the line.
Those are the reasons why we came to our conclusions, first, with regard to the introduction of RPI and, secondly, with regard to hypothecation to other forms of transport. I repeat, it was not our job to discuss the pros and cons of the Transport Act 2000. We took it as a fact.
I should like to make two further points. At this hour we do not want to speak at length, but if points arise within the discussion on these amendments, it should be noted that I am trying to encompass all my comments on the amendments as if they were grouped
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together rather than jumping up and down. That would be most uncomfortable for myself, let alone for other noble Lords.
My noble friend Lord Hunt of Wirral was, let us say, a little unfair—I put it as politely as that—when he stated the case of the evidence produced for the committee about what revenues would be raised when the tolls were increased by the RPI. That evidence was given to the committee for illustrative purposes only. I make that point very clear to the House. It was not a statement made by the promoters that that was what they would do. We asked the question: "What would happen if …?", and that is what we were given.
Certainly the promoters made a clear statement on a number of occasions that while under the Bill they would have the ability to increase the tolls by the RPI, that did not necessarily mean that the tolls would be so increased. Indeed, I have personal experience, along I am sure with many other noble Lords, of the Dartford crossing. While the owners have the statutory right to increase the tolls by the RPI, to the best of my knowledge the toll for a car has been £1 for as long as I can remember, and it was certainly still £1 when I last used either the tunnel or the Queen Elizabeth II bridge. So we must be careful not to get it into our heads that this is going to be a willy-nilly inexorable increase by the rate of the RPI every year. It may be, but again it may not. So the point made by my noble friend was, I repeat, for illustrative purposes only.
My noble friend raised one other point quite early on in the first amendment, that there was no case to increase the toll. I am afraid I am now repeating myself, which I did not mean to do. I have just said that there was no evidence given to us by the promoters that there would be an irrevocable increase in the toll.
I make just one other point. It is a little wide of the amendments, but I would like to put it on the record for the assistance, I hope, of any future Select Committees. In this particular case, the promoters were represented by learned counsel; the petitioners were not. I will try to pick my words as carefully as I can, but I think it would be fair to say that the petitioners' case was every bit as impressive, if not more so, than the promoters'. I just put in a plea that if either side in such circumstances wishes to retain the use of, I am sure, extremely expensive counsel, perhaps they could advise counsel that addressing a Select Committee of your Lordships' House is not the same as addressing a jury of 12 good men and true at the Old Bailey.
Lord HarrisonMy Lords, I support the amendments of the noble Lord, Lord Hunt of Wirral. I declare an interest as a former Member for Merseyside at the European Parliament, having responsibility not only for Wirral but also for Huyton borough, Widnes and Runcorn. The relevance will come out later in my remarks. During that period I was responsible with many other good people for obtaining objective 1 status for Merseyside, which included the second largest borough of the five boroughs, of the five councils, which was Wirral. It

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was recognised by Brussels that there are areas of real deprivation in Wirral, which may not be known to all your Lordships.
The Bill adds insult to injury. The injury has already been talked about at some length. That injury started 70 years ago when it was declared that when the debt charges had been paid off, the people of Merseyside would celebrate the opportunity to use the tunnels built then and some years later—the Wallasey tunnel—toll free. That is now not going to happen. It rests on the promoters to say in answer to the people of Merseyside—who had that belief for so many years—why that promise has now been reneged upon.
In the course of this debate, the supposed parallels between the Merseyside tunnels and tunnels and bridges elsewhere have been mentioned, including both the Dartford tunnel bridge and the Severn bridge. I make it clear that there is absolutely no parallel whatever. Those two instances are clearly major regional, indeed national, thoroughfares. The Merseyside tunnels serve people locally so that 85 per cent of those who use those tunnels are local to Merseyside, to Wirral. The 15 per cent who come from outside include Chester and Cheshire, where I live, and, importantly, north Wales. I reiterate the point that the only choice that anyone has south of Liverpool to cross into Liverpool is to take an alternative 50-mile run through Huyton in order to get into the city. Those of us who live on the other side are obliged to use the Mersey tunnels, as for instance I am when I have to make regular visits to Broadgreen Hospital every six months or so.
Comparison has been made with the Dartford and Severn bridges and so on, but I should like noble Lords who know a town or a city well, perhaps through representing it, to imagine that a certain area of that town or city—for example, the south-west—was isolated and that, unlike in any other suburb, its people were obliged to pay a toll to gain access to the centre. You would think that unfair—but it is exactly what is being proposed here. It would be unfair on the people of Wirral, principally, who mostly use the tunnels for accessing Liverpool, that such a burden should fall particularly on that area.
It has been said by some of my colleagues on these Benches that we should look at the transport policies which will ensue from the surplus. I shall return to that issue later.
What are the insults that are added to the injury of the failure to write off a debt, which people have wanted for the past 70 years? First, the Bill confirms the worst fears enshrined in our novel idea that once the debt had been paid the tolls would be lifted; that dream has now faded for the people of Merseyside.
Secondly, it is suggested that the RPI should be applied on a regular basis, wholly regardless of the costs and needs of running the tunnels. We know that at the moment the revenues are something like £32 million and that the costs of running the tunnels are only some £12.5 million—a huge difference. Would it not be wiser to retain the system that we have had for some time whereby proper application is made
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to an independent body and a judgment is given on the facts presented? In that way, we can arrive at a proper increase, if an increase is required, for any such tolls. To increase fees by the RPI alone is to do so without regard to true costs.
Let me ring an alarm bell by telling your Lordships that retained in this legislation is the existing system whereby the promoters can go back to the independent body and ask for an increase above the retail prices index if required. To some of us, that looks like having your cake and eating it.
I also suggest that the automatic application of the retail prices index for the tolls would encourage complacency among those who run the system and would mean a lack of accountability and transparency because the costs would not be examined in as much detail as they are currently.
The third insult is that the tunnels under the Mersey river will be used as a milch cow to provide surpluses of money to be applied to other purposes. It will establish a kind of de facto ultra vires: "We will take money in for the purposes supposedly of running the tunnels, but we will take more money from you for other purposes". As the noble Lord, Lord Hunt, illustrated, such purposes can be related to transport policies. In the original proposals, I understand, they could have been applied to tourism purposes. No one in this House is more enthusiastic about supporting the tourism industry than I am, but I suggest that it is not a proper application of the revenue to take those moneys and apply them to something which, by now, is quite unrelated to the initial purpose.
9 p.m.
Is there a case for the Bill? We are told that the present procedure is cumbersome. I remind noble Lords that, under the present procedure, only one month of consultation is required by those who wish to put in objections to any toll rises. If the present procedure is cumbersome, let us address that matter and not tack on to it so many of the other issues which have now been added to the Bill.
Is there a need for safety? Of course, safety is a hugely important issue. However, the November 2003 issue of Merseytravel News—that is, the promoters themselves—declared that the two Mersey tunnels are among the safest in Europe. Indeed, a consortium of motoring organisations in the United Kingdom and in the European Union ranked the Wallasey tunnel and the Birkenhead tunnel number one and number three respectively in terms of safety. Safety is hugely important, but the promoters are over egging the argument in saying that there is a huge problem there.
It is argued that more money is needed for prudential finances. The truth of the matter is that since 1992, those authorities which run the tunnels have always been in surplus. Indeed, as recently as 2002–03, they paid off £3 million of debt—good for them—but early. How were they able to do that if other purposes needed to be served in the interim? I believe that the committee which was chaired by the

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noble Lord, Lord Geddes, also learned from Merseytravel that, assuming an inflation rate of 2.5 per cent and a 1 per cent increase in the vehicles going through the tunnels, there would be no requirement for raising the tolls until 2028. That is a clear indication that the surpluses of Merseytravel and the tunnels are well into the black.
The Bill provides for noise insulation for the Wallasey tunnel. That would benefit people that I have represented for many years and cost £300,000. I think that all of us would agree with it, but I wonder why it took 30 years for anyone to decide to do something positive to help those whose houses lie over Wallasey tunnel cutting obtain home insulation.
I turn to congestion. If it is a problem, it should not be used as an ad hoc pretext for introducing congestion charging. If it is thought that congestion charging of some description is required, Merseyside requires a comprehensive approach which takes in all of Merseyside, including Huyton in the east which I represent. During the 10 years in which I was an MEP for that area, I was summoned a number of times by people in Runcorn and Widnes to complain about the surplus traffic there because cars turned away from the prohibitive charges of the Mersey tunnels, but I was not alerted to the problems of so-called congestion at the Mersey tunnels.
I am a regular user of those tunnels. Only the weekend before last, my family and I visited the Mersey River Festival in Liverpool. We had a trouble-free passage through the tunnels then and on return. The myth about the congestion of the tunnels is simply that. The Dartford crossing has eight lanes—the same number as contained in the Mersey tunnels. Why can it adequately take double the traffic that flows through those tunnels?
The noble Lord, Lord Hunt of Wirral, said that opposition had been drawn from all sides of the political spectrum. I join my Labour MEP colleagues on the Wirral, all of whom except one oppose the Bill, for understandable reasons. I join the AA and RAC, who condemn it. I join the Wirral chamber of commerce, which says that the proposal is detrimental to the wider Merseyside economy. I join the Liverpool chamber of commerce, which points out that Warrington, a near neighbour of ours, now advises inward investment for the setting up of factories, because if one goes to Warrington one goes toll-free.
For all those reasons, I support the amendment, which goes to the nub of the matter. It will confine the moneys raised through the tolls of the Mersey tunnels for the purposes for which they were originally set; namely, to make sure that the refurbishment and running of the tunnels could be adequately carried out for the people of Merseyside. This is a bad Bill. I hope that noble Lords will think about it very carefully and reject it.
The Earl of OnslowMy Lords, I voice my support for one reason and one reason only. My only interest to declare is that, when my father-in-law ran the
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Liverpool Garden Festival, my wife, my three children and I went from north Wales in a car and did not have a single penny on us, so I had to give the toll man a cheque for 60p or something. It was one of the more embarrassing moments of my life. I am delighted to see that Liverpool has become the city of culture. After all, it was founded on the slave trade and produced the only Irish Home Rule MP on the English mainland. Those historical anomalies appeal.
What worries me very considerably is the integrity of government. If governments undertake that something will happen, they must carry that out. They must not say, simply because circumstances alter, "We see a moneybag there; we're going to help ourselves to it". One cannot say in an Act of Parliament, "When the debt is paid off we will stop the tolls being charged", and then, because one sees that things are going rather well and the money will be paid off early, help one's self to that money. Frankly, that is dishonest.
I know that the Dartford tunnel has the powers, but two blacks do not make a white. When the Dartford tunnel's debt was paid off, it was originally going to be toll-free, but along came the Government and said. "Yippee! There's some money. We're going to hypothecate it and nick it". That is not an acceptable way for any government to behave.
I also suggest that, under the hypothecation of revenue—that is what we are talking about—Liverpool's aim of spending £X will mean that it will not have to raise so much council tax for all the things that it wants to do, because it will have another source of revenue. One man's tax benefit is another man's tax payment and there is no way around that. I sincerely hope that for the integrity of Government and the principle of non-hypothecation of taxes, the amendment will be carried.
There is a splendid passage in Gibbon's The Decline and Fall of the Roman Empire. He says of Septimius Severus:
"He promised only to betray, he flattered only to ruin; and however he might occasionally bind himself by oaths and treaties, his conscience, obsequious to his interests, always released him from the inconvenient obligation".
It strikes me that Liverpool Council is finding that its conscience is obsequious to its own interests and will release it from any inconvenient obligations if it can lay its hands on extra money from the Mersey Tunnel.
Lord LukeMy Lords, like the noble Lord, Lord Alton, I find it pleasant to be here with what I might call "Liverpool supporters" from both sides of the House. I remember well the debate we had about Liverpool and the City of Culture. Many of us were delighted that Liverpool won that competition. What I want to say is in no way anti-Liverpool.
Unfortunately, we are talking about money raised to cross a big river by tunnel into a great conurbation which will try to use that money in future to do its own business; to make its own provision for public transport. There is nothing wrong with providing public transport, but the local authority is trying to use money which, to my mind, is not its.
It is wrong for money obtained on one premise to be spent on another. I would disagree with my noble friend Lord Geddes if he said that what is happening at Dartford and on the Severn is all right but it is not all right on the Mersey. I believe that it is quite wrong at Dartford and on the Severn and it is wrong for the Bill to raise money which is nothing more or less than a tax. It is discriminatory and thoroughly unfair and I strongly support my noble friend's amendment.
Baroness Scott of Needham MarketMy Lords, I shall be brief. We have been joined on these Benches by my noble friend Lady Falkner of Margravine. My noble friend is a new Member of your Lordships' House and, like all new Members, I am sure that she has been busily reading her Companion. I am also sure that she must be completely bemused by what would appear to be the collapse of the normal rules.
Here we are, at Third Reading, having exactly the same debate, but at considerably more length, as those we had at Second Reading. We also established a committee which spent two days looking in great detail at the issues and now, simply because some Members of your Lordships' House do not like its conclusions, we are being forced to listen to the whole thing again and rerun it. It seems to me that someone from any other parliamentary democracy in this world Would find it quite extraordinary that an important but nevertheless entirely local issue was being considered in this way.
I have no Liverpudlian credentials, which I make clear at the outset, but I have a background in local government and a passion for it. I have spent 12 years developing local transport plans, and the idea that Members of your Lordships' House in this forum, however much they believe in what they are saying or however much experience they might have, can sit and unpick the local transport plan which has been developed by the people of Merseyside through their elected representatives is bizarre. Equally bizarre is the notion that somehow one can separate the issue of the tunnels from the issue of the buses or the ferries. When one is planning a transport network for any area, it is clear that all those issues are interlinked. One part cannot be unpicked from the other.
I shall say no more now other than simply to urge Members of your Lordships' House to defeat this amendment. If the work of the local transport authority were to be defeated tonight by noble Lords who have the stamina to be in the House at 9.15 or 9.30 at night, that would be a travesty of democracy, and personally I should be ashamed to be part of that.
9.15 p.m.
Lord Alton of LiverpoolMy Lords, in seeking to elucidate the procedures of your Lordships' House for her noble friend, the noble Baroness who has just resumed her seat suggested that, at this stage in the proceedings of a Bill, there was something mildly improper in the noble Lord, Lord Hunt of Wirral, moving amendments or in your Lordships debating those amendments. There is nothing improper in that. Until the Bill is enacted, if it is to be enacted, we are
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here to scrutinise it, to flesh out the intentions of the promoters and to seek clarification of the intentions behind the Bill.
In his formidable address this evening, the noble Lord, Lord Harrison, pinpointed some of the key questions. He made it very clear that there is no partisan dispute here. It is not, as the noble Baroness has just implied, an entirely local issue. On Merseyside, it is a very important local issue, and I can assure the noble Lord, Lord Luke, that he will not find disfavour in the city of Liverpool because the traffic moves in both directions through the Mersey Tunnel. Instead of being barriers, as they have become, the tunnels should be part of the central gathering together of the Merseyside community, assisting in its economic, social and cultural life. Therefore, I believe that his remarks in the House tonight will be welcomed.
In his earlier intervention, the noble Earl reminded us of the importance of history and, indeed, he mentioned the Romans. I know that they built roads and viaducts but probably not tunnels, but he was right to remind us of the cynicism that can be engendered when Acts of Parliament are passed and promises are made which are not then delivered. If there are national implications from tonight's proceedings, cynicism is certainly one of them.
Promises are made again and again that 20 years will elapse after the original construction of the first tunnel and then all the original debts will be wiped out, the construction costs will be paid and then it will become part of the national road network. The same was said when the second tunnel was opened. Of course, those promises came to nothing.
The noble Lord, Lord Smith of Leigh, said that this is a reasonable measure and that it will not be misused. Even the chairman of your Lordships' Select Committee, the noble Lord, Lord Geddes, in a very important and measured contribution said that he did not think that it would necessarily lead to an exponential increase in tolls. But the truth on Merseyside is that the triumph of experience over hope has meant that there has been an exponential increase in tolls as the years have gone by. Therefore, there is every reason to assume that the same will happen again.
There is another reason why this is not only a local issue: it is because we are now seeing an inconsistent pattern of decisions being made in many parts of the country. The noble Lord, Lord Harrison, talked about parallels with Dartford and the Severn, and those have been referred to in other speeches. Perhaps I may extend that parallel to Scotland.
The organisation called SKAT (Skye and Kyle Against Tolls)—strongly supported, incidentally, by its local Member of Parliament, Mr John Farquhar Munro, a Liberal Democrat—has been calling for the abolition of tolls. Mr Jim Wallace used to serve with me in another place. Indeed, when I was Chief Whip of the noble Baroness's party, he was the Deputy Whip when he served as a Member of Parliament in Shetland. These days, he is serving as the Deputy First

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Minister. On 3 June, he announced to the Scottish Parliament that Skye tolls will be abolished, possibly as early as this year.
Another group is CAST (Campaign Against Severn Tolls). It is led by Mr John Warman, a councillor in—
Lord Faulkner of WorcesterMy Lords—
Lord Alton of LiverpoolMy Lords, in a moment. Mr John Warman is a councillor in Neath Port Talbot and is another member of the noble Baroness's party. I am not saying this to embarrass her; I am pointing out that there are inconsistent views in many parts of the United Kingdom, and to suggest that this is merely a local issue, as though we are wasting your Lordships' time this evening, is quite improper.
Baroness Scott of Needham MarketMy Lords, if the noble Lord wishes to embarrass me he will have to try much harder than that. In that case, Scottish politicians are discussing a Scottish issue and it is a question of appropriateness. I suggest that here it is not entirely appropriate for Members of your Lordships' House to spend so much time discussing issues that we have already discussed at Second Reading and in Committee and to go into levels of detail which I do not think we are properly equipped to deal with here.
The Earl of OnslowMy Lords, I have been on two Private Bill committees, among others, and on both occasions the House behaved exactly like this. It did not agree with what was said by the committee, and chucked it out. I happened to agree with the committee and I was very cross. That is what happened and it is a perfectly normal procedure, which has been going on for a long time. If we cannot act as a Parliament, what is the point of us? Some may ask that anyway, but that is beside the point.
Lord Alton of LiverpoolMy Lords, to bring us back to order I think I should now give way to the noble Lord, Lord, Faulkner of Worcester.
Lord Faulkner of WorcesterMy Lords, I am grateful to the noble Lord. Before he leaves the Scottish point entirely, the opposition to tolls on the Skye Bridge was not a transport issue; it was the fact that the bridge was privately financed and the revenue from the tolls was going to a private company. That is wholly different from the concept of the Mersey tunnels where the toll revenue will be used for the benefit of the people of Merseyside, on public transport and other desirable projects.
Lord Alton of LiverpoolMy Lords, if it were going to be used for the benefit of the people of Merseyside, it should be raised through national taxation based on people's ability to pay. What is unfair is to tax on a second headcount a small group of people. As the noble Lord, Lord Hunt of Wirral, pointed out, people living in communities in places such as Birkenhead and
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Wallasey are living in some of the most underprivileged parts of the country. Although I often share many of the points of view of the noble Lord, I do not on this occasion.
The tunnels have not made losses since 1992. It is worth remembering that something like £0.5 billion has been collected in tolls since the first tunnel was opened. This is not just a local issue. These are vast sums of public money. It is quite improper that the money should be raided in the way that the noble Lord suggested, and simply misappropriated and used on people's private wish lists. It should be used in order to liberate the tunnels and then if money is to be raised for these other projects, let it be done through taxation.
The tunnels have not made losses since 1992 despite the fact that all expenditure on renewals, whether or not exceptional, is financed from tolls rather than from borrowings. It is also despite the fact that the tunnels are required to make payments of some £3.7 million per year in respect of the losses that were initially financed from rates between October 1988 and March 1992. Indeed, in the last published accounts the authority decided that there was sufficient money to repay an extra £3 million of external borrowings, not on the projects to which the noble Lord just referred. As the debt falls each year, the annual charge for interest and for further loan repayment falls making it unlikely that the tunnels will make losses.
In the years from the opening of the Birkenhead Tunnel in 1934 to October 1988 the authorities paid less money into the tunnels than they took out as a contribution to their ferries. They put in £1.5 million but took out £3.6 million for ferries. Following the opening of the Wallasey Tunnel in 1971, the tunnels made losses. These losses were the responsibility of the authorities but they were allowed to add them to the tunnels' debt until 1988. They—by that time Merseytravel—were forced to stop this from October 1988. From then until March 1992 the losses were borne by Merseytravel and ultimately ratepayers and community charge payers.
As the noble Lord, Lord Harrison, indicated, that has had a grievous effect on the Merseyside community. That is borne out by the Liverpool Chamber of Commerce and, indeed by the Wirral Chamber of Commerce, who state:
"While the Chamber favours enhanced and improved public transport it does not believe that this should be achieved by penalising business through increased tolls. The Chamber's view is that tolls are detrimental to the wider Merseyside economy and that of the Wirral in particular"
In the briefings they have prepared for tonight's debate, the AA and the RAC make similar points. The AA state:
"Motorists on Merseyside have paid tolls to drive under the Mersey for nearly 70 years. The Mersey tunnels are vital transport arteries and the tolls should not be an extra burden to family budgets, or an additional cost to industry and commerce on Merseyside".
The RAC says that the RAC Foundation is opposed to using revenue from the tolls as subsidies for ferries and other public transport services. The tolls were never intended for that purpose and toll-paying

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motorists would see no benefit from such subsidies. Any surplus income from the tolls should be used to pay off the debts from the tunnels. That point is contained in Amendment No. 1.
No one on Merseyside has ever been in any doubt about the original commitment to make the tunnels toll-free, either by repayment of the original construction costs or by 1954, 20 years after the opening. Since then, £0.5 billion has been collected in tolls. Since 1992, as I said to your Lordships, the tunnels have been in surplus. The cynical Merseyside public have rumbled that successive tunnel operators simply see that the tunnels are a convenient milch cow, as the noble Lord, Lord Harrison, said, and they will go on pumping it for their own pet projects.
Instead of the tunnels acting as a stimulus for economic and social unity on Merseyside they have become a barrier and divide one district from the other four. I am going to take my lead from the noble Lord, Lord Geddes, because the amendment encompasses the point of all the amendments before your Lordships and I certainly do not intend to say any more tonight. The debate on the Bill and the amendments gives the Government an opportunity to deal with a historic anomaly and a longstanding injustice.
If in tabling the amendments he hastens the day when a government are willing to do something about it, the noble Lord, Lord Hunt of Wirral, will be entitled to the long-term gratitude of the people of Merseyside.
Lord Hunt of WirralMy Lords, this has been a fascinating debate. I was surprised but not astounded that the noble Lord, Lord Smith of Leigh, did not take issue with me on any of my main substantial points. First, he did not dispute that increasing the tolls is completely unnecessary. There is no economic case for increasing the tolls at the present time. That was what Merseytravel explained to the Select Committee and he has not disputed it.
Secondly, he did not dispute the fact I put forward that, in the words of the promoters, there is a wish list of projects on which the surplus money is to be spent that will increase inexorably with the amount that the tolls are increased unnecessarily. The wish list includes a range of things and the noble Lord did not dispute any of the illustrations I gave; for instance, the Mersey tram.
Lord Smith of LeighMy Lords, the wish list is contained in the local transport plan produced by the Mersey Passenger Transport Authority and supported by the five districts of Merseyside.
Lord Hunt of WirralMy Lords, I am thrilled that the noble Lord used my phrase, "wish list" because that is my point. The local transport authority wishes to spend tunnel income on a range of other projects that may have nothing to do with the tunnels. It may wish to help fund another toll-free bridge—that is another project in the pipeline. There was a debate in the other place as to whether it should be toll-free. It
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comes as no surprise to this House to hear that all sides of the House were united in believing that another bridge across the Mersey must be toll-free.
The reason is that we are talking about one of the poorest urban areas in the United Kingdom and also in the European Union, with only 73.1 per cent of the average EU GDP. Why on earth do we penalise the motorist seeking to get to work, to much needed jobs—indeed, to place in jeopardy their jobs—by seeking to increase tolls unnecessarily to provide income for the wish list?
I appreciate the work carried out by my noble friend Lord Geddes and his colleagues on the Select Committee. They did a first class job. They produced the list of wish list projects and the £288 million figure. I acknowledge with him that it is for only illustrative purposes, because it covers the next 25 years. There could be no other explanation for these figures, other than they are for illustrative purposes. So I join the noble Lord in acknowledging that.
However, there is another point which has not arisen in the debate, which is that we hear from the Deputy Prime Minister that Merseytravel is going to be abolished. It will be replaced by a travel authority covering the whole of the north-west. Therefore, the provision is not only for illustrative purposes, it sets in concrete a sort of regime of increasing tolls which will fund transport projects that have nothing to do with the tunnel. That was really my point. I acknowledge the valuable work of the noble Lord and his colleagues.
All I shall say is that I am sure that I am going to upset some noble Lords who have spoken in the debate. If we are to complete this business by 10 o'clock, I do not think that I have time to respond to all noble Lords who have spoken.
I hope that the noble Baroness who spoke on the issue of democracy will recognise that the people this affects most of all, the tunnel users, will be delighted that we have spent some time in this Chamber debating the problems they will face. I believe that there will be an acknowledgement that it was this Chamber which debated these key issues and not the other place. That is no reflection on people such as Ben Chapman because they sought to raise these issues. I acknowledge that the noble Lord, Lord Harrison, made a very valuable speech, and indeed may be very upset with what I am about to do, as did the noble Lords, Lord Chan and Lord Alton. In all the circumstances, this has been a good debate and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Wirralmoved Amendment No. 2:
Page 5, line 47, leave out "the same percentage as" and insert "the percentage given by the formula—
RPI-X
where—
RPI is"
The noble Lord said: My Lords, I just want to press the noble Lord, Lord Smith of Leigh, on the acknowledgement by Merseytravel that if it is allowed

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to increase the tolls every year it will at least allow efficiency savings to be set by the Secretary of State so that the increase will be RPI-X. I believe the issue is set out very clearly in the amendment. I beg to move.
Lord Smith of LeighMy Lords, I thank the noble Lord for the brevity with which he introduced the amendment. I shall try to be brief in response, but I may have to be a little longer. I have more sympathy with this particular amendment because there is an understandable fear that if Merseytravel were allowed to increase the amount of tolls by inflation year on year, what then is its incentive to operate in an efficient manner?
I hope that I shall be able to show that those fears are misplaced. Like the rest of local government, Merseytravel is subject to a best-value regime. That means that both external auditors and elected members have a duty to ensure that the authority is operating as efficiently as possible. The amendment will be an additional layer of bureaucracy operating through the Secretary of State and duplicating the provisions of the existing legislation.
Fundamentally, the Bill's intentions are part of the transport strategy for Merseyside and it will not allow the real cost of the tunnel to fall in relation to other forms of transport, as we have already debated. It is also important to add that in the past when Merseytravel deemed that the economy of Merseyside could not stand increases, which were then permitted under existing legislation, it did not bring them in for several years. So I hope the noble Lord will realise that this is not a public utility, and I hope that the best-value regime will counter his fears.
Lord Hunt of WirralMy Lords, I am very grateful to the noble Lord, Lord Smith of Leigh, for that response. I accept the assurance he has given. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Lord Hunt of Wirralmoved Amendment No. 4:
Page 6, line 26, at end insert—
("(12) The provisions of this section relating to the revision of tolls shall not apply if there is no net debt outstanding. Instead tolls must be set at a level just sufficient to cover the payment of the costs and expenses incurred in managing, operating and maintaining the tunnels undertaking.
(13) For the purposes of subsection (12), "net debt" means the amount of any debt less reserves and unapplied toll income.")
The noble Lord said: My Lords, we come to another very key amendment, which is the undertaking in the County of Merseyside Act 1980 that once the debt which was incurred in building the tunnels has been repaid, the tolls will be reduced to a level sufficient to cover the operating costs. This was part of the undertaking—which I must say was referred to very eloquently by the noble Lord, Lord Alton of Liverpool—that not only
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would the tunnel tolls be utilised in reducing the debt, but once the debt had been paid off—which now seems likely in a comparatively short time, bearing in mind the length of time the tunnels have been in operation—then the tolls would be reduced.
I referred earlier to Clause 99 of the County of Merseyside Act 1980. This, I remind your Lordships, is the law at the present time. The promoters are seeking to repeal the County of Merseyside Act 1980, insofar as it deals with this issue. Clause 99 states,
"On the completion of the payment of all sums specified … the tolls authorised by this Part shall be reduced to such level as shall be appropriate for meeting the costs specified in paragraphs (a) to (c)".
What that means, my Lords, is fulfilment of the undertaking that I thought the noble Earl, Lord Onslow, referred to very eloquently: that as soon as the debt has been repaid then the tolls would be reduced. I think the noble Lord, Lord Harrison, and the noble Lord, Lord Chan, have already referred to the solemn and binding undertakings not only spoken, not only understood by all those who live locally, but actually enshrined in an Act of Parliament.
Admittedly, it is a private Act of Parliament. It is quite difficult to get a copy of the County of Merseyside Act 1980. Indeed, the Printed Paper Office said "Please don't take it away, it's the only one we have". But it is terribly important, because it contains an undertaking to the people of Merseyside that the tolls would be reduced as soon as the debt had been paid.
I think I have already referred to the illustrative figures that the noble Lord, Lord Geddes, and his committee were able to have produced before them. They show that, first, there is no need for the tunnel tolls to be increased. Secondly, the only real justification, for illustrative purposes, for increasing the tolls is to provide money for a wish list of projects covering areas which have nothing to do with tunnels, and nothing to do with the motorists paying the tolls, contrary to the solemn and binding undertaking made to them many years ago that one day the tunnel tolls would be reduced.
We have something absolutely fundamental here. It does not inhibit Merseytravel in any way at all. It merely says that once you have repaid the debt, then you must reduce the tolls. That, surely, is the basis on which the whole administration of the tunnels has been conducted for many years. I beg to move.
Lord ChanMy Lords, as a resident of Wirral, I rise to support this amendment. It illustrates—and here I thank the Select Committee for asking some questions—best value. It is not that we resent paying tunnel tolls, but we want to make sure that it represents best value and that the views of users are taken into consideration. Merseytravel does not have any representatives of users on its board at all. That, perhaps, is part of the trouble here: there is no guarantee that the users' views have been taken into consideration.

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What we have heard tonight demonstrates that, because profits have been made in the tunnel tolls collected over the past 10 years, we have the assurance that this authority would use the money in a way supported by all the users. We also realise that we cannot have a wish list of the projects that we want. As one who has been living and working on Wirral for 25 years, and in several hospitals in Liverpool, I say it is just not possible to have public transport at night. That will cover nurses and other related workers so I support this amendment.
Lord GeddesMy Lords, I had no intention of intervening again and I am in no way a parliamentary draftsman. But it has only just occurred to me that if the amendment proposed by my noble friend Lord Hunt of Wirral is to go in as a new subsection (12), at line 26 on page 6, it could well be in contravention of, or not in happy juxtaposition with, subsections (4) and (5) on page 4 of the Bill. I have a feeling, although I repeat that I am not a parliamentary draftsman, that the two do not sit very comfortably together.
Lord Hunt of WirralMy Lords, I am very happy to rush to reassure the noble Lord, Lord Geddes, that they do sit beautifully together. I am so advised by parliamentary draftsmen who spent some considerable time looking at this issue.
If I may summarise, the amendment does not bind what the money is spent on, but once the debt has been repaid, it overrides the need to increase the spending over, above and beyond the operating costs. I suppose that under the Bill, if the amendment is passed, the wish list could well become a reality, but would have to stop once the debt was repaid. As always, my noble friend raised a very important point but it is one that has exercised the grey matter of those much more accomplished than me in thinking through these issues. I assure the noble Lord that it is in order. I agree very much with the points raised by the noble Lord, Lord Chan. In a way, I rather regret that I cannot divide the House on this. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Smith of LeighMy Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Smith of Leigh.)
Lord TriesmanMy Lords, I thank noble Lords on all sides of the House who contributed to a powerful and positive debate. In particular, I thank the noble Lords, Lord Hunt of Wirral and Lord Smith of Leigh, who have been the principals in the discussion. I also particularly thank the noble Lord, Lord Geddes, not just for the report of his committee but for the balance and wisdom that he injected into the discussion, which I deeply appreciated.
The Government have previously stated that they have no objections to the aims of the Bill, which they regard as useful and prudent. The four main aims of
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the Bill are first, to permit Merseytravel to increase tolls at the tunnel, based on the retail prices index formula, without having to seek the permission of the Secretary of State for Transport. As has been pointed out in your Lordships' debate, this is a discretionary power that uses the RPI, which is a sensible, almost universally accepted standard that, broadly speaking, deals with the movement in the real value of money. It is appropriate as a sensible response on this occasion.
Secondly, the Bill will remove the present requirement to reduce tolls once debts arising from the construction and operation of the tunnels have been repaid. Thirdly, it will permit Merseytravel to use some of the proceeds from toll revenues for wider transport objectives in Merseyside. As the noble Baroness, Lady Scott of Needham Market, said, this obviously relies to a considerable extent on local judgments made by local authorities in a way that suggests that they are taking a serious view of what is needed for their communities.
Finally, it will give Merseytravel the ability to undertake and finance noise insulation work to properties on the Kingsway tunnel approach to roads on the Wirral. The first of the aims of the Bill is broadly similar to those which already apply at the Severn and Dartford crossings. I believe that the noble Lord, Lord Geddes, made the point about consistency and uniformity. Whatever one thinks of the consistency and uniformity which was being sought, it is none the less quite right to say that it is intended to achieve that. I say with great respect to my noble friend Lord Harrison that I do not think that the dissimilarities are so great as to suggest that that is not an appropriate way of measuring this piece of legislation.
Lord HarrisonMy Lords, does my noble friend acknowledge that the percentage of people who use the Dartford tunnel and bridge and the Severn bridge represent about 85 per cent of local people? I believe that he would not.
Lord TriesmanMy Lords, as I said, I believe that the arrangement suggested is broadly along similar lines. It makes arrangements which will allow for the use of revenues in a way that is broadly similar. That is a proposition to which the Government are not opposed especially as the tunnels are owned and operated by a passenger transport authority made up of members from the Merseyside local authorities and as such subject to democratic accountability in those areas.
The Bill will also allow Merseytravel to apply to the Secretary of State for Transport for an above the RPI increase under similar procedures which already apply at the tunnels and at nearly all other statutory, tolled undertakings in England. It seems eminently sensible to retain this ability to be able to deal with the unforeseen circumstances that can occur. The Government are satisfied that the second undertaking given by Merseytravel to the Select Committee that above RPI increases will be applied only in exceptional circumstances demonstrates Merseytravel's commitment not to take such increases lightly.
As regards the second of the aims, the Government are aware of the strength of local feeling. That has been absolutely clear in this evening's debate—and who can doubt it, based on what has been said? There is a good deal of local feeling about allowing Mersey tunnel to dispense with the requirement to reduce tolls once the debt has been repaid. Schedule 1 of the amended Bill contains a subsection (5) to the amendment of Section 91 of the 1980 Act. This new subsection places a duty on Merseytravel to consult with the people of Merseyside once all debts have been repaid, on the justification for not reducing tolls and retaining the ability to increase them.
I have been riveted by the arguments both at Second Reading and this evening, which bore some relationship to the Second Reading debate as regards the promises that were made 70 years ago. I was wondering, not frivolously, that when cars were preceded by men with flags, which was the law of the land, whether the apprehensions that occurred at that time were based probably on an indelible belief that it was indispensable to the safety of all of those using the roads. The truth is that, in dealing with road transport, circumstances change very considerably.
I do not believe in all conscience that any of us would simply apply the criteria that were used 70 years ago. People would not do it because they wished to betray their word, which they should not, or to induce cynicism, as the noble Lord, Lord Alton, suggested that such use might do in the processes of government; but only in order to try to reflect on what is happening now—the demands of safety, traffic management and the environmental demands which I have no doubt were not in anybody's mind when these issues were first discussed.
I ask noble Lords to consider whether it is appropriate on this occasion, as the noble Earl, Lord Onslow, has invited us, to be bound by the past or to be serious about what might be required in the future.
The third aim of the Bill is broadly in line with the options available to local authorities through legislation that allows them to introduce road user charging.
The Government are satisfied that the criteria for the purposes of the toll revenue may be applied as sought by new Section 91(3) of the County of Merseyside Act 1980, taken together with the safeguards contained in new Section 91(4) of the 1980 Act, and the first undertaking given by Merseytravel to the Select Committee with regard to other purposes. These provide adequate assurances that the management, the operation and the maintenance of the tunnels will take precedence and that revenues will not be used to fund irrelevances.
The noble Lord, Lord Hunt, has questioned the appropriateness of what I think he was describing in the case of Merseytravel as a tax on tunnel users to fund other transport projects on Merseyside. I do not mean to put words in his mouth; if I have, no doubt he will correct me. My noble friend Lord Harrison was
120
also driving at that expression. The use of net proceeds from tolls and/or charging revenue for wider transport objectives, is not unique. The Government have already introduced similar powers in legislation allowing for the introduction of road user charging in a variety of contexts, and in these cases the relevant legislation suggests that the net revenue from road user charging must be used for transport purposes, and so it is in this case.
The Government welcome the introduction of the powers sought in the final aim, as we understand that this is responding to long-standing concerns voiced by local residents. It is plainly high time to deal with the noise pollution option. It is easy to see why the discomfort of people should be addressed in this way and why it is important to remedy it now. The Government are satisfied that this Bill has, rightly, been subject to the full scrutiny of Parliament and a good deal of detailed scrutiny tonight and that all sides have had an opportunity to voice their opinions. No-one could say that that has not happened tonight. In view of that, and because the Bill does not contradict Government policy, the Government have no objections to the Bill receiving Royal Assent.
Lord Hunt of WirralMy Lords, I am grateful to the Minister who, throughout the passage of the Bill, has maintained the correct approach by the Government on private Bills, which is a neutral approach. He has reinforced that again tonight. I thank him for that, because when it comes to issues as controversial as this, which transcend parties, that is not the time for the Government to come in and dictate which way the House should vote. I welcome what the Minister has said tonight.
I also hope that he will acknowledge that I have, in a series of debates, sought to improve the Bill. Indeed, I made the amendments that I have proposed available to the promoters of the Bill as long ago as May. I asked them to come and meet me so that we could find a way through to meet the substantial concerns that exist locally. I had issued the same invitation to them last November. I was almost a spectator at a meeting between three Labour Members of Parliament, Merseytravel, and me. The conversation was the most heated that I have ever heard, with the director general of Merseytravel threatening one of the Labour MPs with a defamation action if the Labour MP repeated what he had said in the Gallery outside the House. I then became aware that there were considerably strong and robust feelings on all sides. That is why in May, I said to Merseytravel, "These are the two key amendments that I will be seeking to move at Third Reading. Can we discuss them? What is your attitude to them?"
Today, I received a letter from the promoters, which sets out some reasons, and ends up saying,
"For these reasons Merseytravel does not consider that any of your amendments is acceptable or that any useful purpose would be served by meeting you to discuss them".
I say to the noble Lord, Lord Smith of Leigh, that his demeanour in this debate has been very constructive and very positive, but I do think that those instructing

121
him to move, That this Bill do now pass, need a little bit of a lesson in how to treat an aged Member of this House who has offered the opportunity to improve the Bill, recognising the hugely emotive issues that we have heard about.
I think that it has been a good debate. On the question of noise pollution, in acknowledging what the noble Lord, Lord Triesman, has said, I think that it escaped the Select Committee, and indeed the Government and the promoters, that thanks to this Government's Local Government Act 2000 power already exists to insulate those properties. Under Section 2 the Act states that:
"Every Local Authority are to have power to do anything which they consider is likely to achieve any one or more of the following objects … (c) the promotion or improvement of the environmental well-being of their area".
So I rushed to a learned Silk, of which there is a smattering in and around this Chamber, and was assured that that provision for the money to be found and these homes to be insulated, thanks to the Government's Local Government Act 2000, is perfectly in order. Indeed they have not been insulated for 30 years, so for 30 years people have been waiting and most of them have moved on somewhere else, but there is the power under the Local Government Act to do that.
Armed with that, and for all the reasons I have endeavoured to give, I hope that the noble Lord, Lord Smith of Leigh, will seek to persuade us that the Bill should pass when he replies to this debate. I hope he will recognise that there is now a feeling that existing legislation covers the undertakings that have always been given.
I say to the noble Lord, Lord Triesman, that it was not 70 years ago. On the construction of the Birkenhead tunnel a promise was made that when the debt was repaid the tolls would disappear altogether. There was then a need for a second tunnel, the Wallasey tunnel. Because of interest rates and construction costs at the time, the debt suddenly ballooned to £150 million. But again it was repeated in the 1980 Act that once the debt had been repaid—admittedly, £150 million—the tunnel tolls would fall. So it is not only 70 years ago, it has been every year since, until this Bill comes forward to repeal the existing statutory undertaking that the tunnel tolls would be reduced.
There was also consultation, which I did not include in my earlier comments because I found I was being interrupted on all sides and therefore I felt that the debate should proceed. But as I mentioned, there was indeed a survey of local people—a survey which we are told by the promoters was perfectly adequate with a good return—in which 71 per cent of those who responded said that they believed that as soon as the debt was repaid the tunnel tolls must fall. Also, 67 per cent said that the only purpose to which the surplus revenues from the tunnel tolls could be put was to repay debt after the operating cost.
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That is why I believe many parties, including the leader of Liverpool City Council, Mike Storey, are opposed to this Bill. That is also why I believe that this Bill should not pass.
Lord Smith of LeighMy Lords, the noble Lord has left me two minutes before the estimated rising time of the House in which to reply to his suggestion that this Bill should not pass. Perhaps I may remind noble Lords that this Bill had a very adequate Second Reading. It was considered by a Select Committee which was unanimous in its recommendations that, other than the undertakings which were freely given, the Bill should go forward in this House unamended. We have had a long debate this evening and a number of amendments moved by the noble Lord, Lord Hunt, all of which, after considerable debate, he decided to withdraw. If he did not think the Bill was adequate in those areas, he had an opportunity to press those amendments, but he chose not to do so.
I believe that the Bill should be passed. We understand that Merseyside is beginning its renaissance. The regeneration of Merseyside is now happening. If that development is going to take place, it needs a transport system that will allow it to continue. The Bill views the Mersey tunnels not merely as a means of access between the two parts of the city, but as an integral part of the Merseyside transport system. It seeks to try to achieve some modal shift, which will not happen if we do not have the money to invest in public transport in Merseyside. I do not know when my noble friend Lord Harrison used the tunnels, but when travelling in peak hours, he would find that they operate at approximately 95 per cent of capacity. The growth of traffic predicted over the next few years will mean that they become fully congested.
We have had an unusually long Third Reading debate. I hope that the House will accept the recommendations of its Select Committee by supporting the Bill and the principles behind it.
10.1 p.m.
On Question, Whether the Bill do now pass?
Their Lordships divided: Contents, 75; Not-Contents, 65.

Division No. 2

CONTENTS

Acton, L.

Desai, L.

Addington, L.

Dholakia, L.

Andrews, B.

Dixon, L.

Barker, B.

Donoughue, L.

Beaumont of Whitley, L.

Drayson, L.

Berkeley, L.

Dubs, L.

Bradshaw, L.

Evans of Parkside, L.

Campbell-Savours, L.

Falkner of Margravine, B.

Chandos, V.

Farrington of Ribbleton, B.

Clinton-Davis, L.

Faulkner of Worcester, L.

Cohen of Pimlico, B.

[Teller]

Corbett of Castle Vale, L.

Gale, B.

Crawley, B.

Gilbert, L.

Davies of Coity, L.

Goodhart, L.

Davies of Oldham, L.

Gordon of Strathblane, L.

Dean of Thornton-le-Fylde, B.

Gould of Potternewton, B.

123

Grantchester, L.

Oakeshott of Seagrove Bay, L.

Greengross, B.

Pendry, L.

Grocott, L.

Ramsay of Cartvale, B.

Hamwee, B.

Rennard, L.

Harris of Richmond, B.

Rodgers of Quarry Bank, L.

Hart of Chilton, L.

Roper, L.

Hollis of Heigham, B.

Rosser, L.

Hughes of Woodside, L.

Sawyer, L.

Hunt of Kings Heath, L.

Shutt of Greetland, L. [Teller]

Judd, L.

Simon, V.

Layard, L.

Smith of Clifton, L.

Lea of Crondall, L.

Smith of Leigh, L.

Livsey of Talgarth, L.

Taylor of Blackburn, L.

Lofthouse of Pontefract, L.

Thomas of Walliswood, B.

Macdonald of Tradeston, L.

Tordoff, L.

MacKenzie of Culkein, L.

Triesman, L.

McNally, L.

Tunnicliffe, L.

Mar and Kellie, E.

Warwick of Undercliffe, B.

Masham of Ilton, B.

Whitaker, B.

Massey of Darwen, B.

Whitty, L.

Miller of Chilthorne Domer, B.

Williams of Crosby, B.

Morgan, L.

Woolmer of Leeds, L.

NOT-CONTENTS

Allenby of Megiddo, V.

Brooke of Sutton Mandeville, L.

Alton of Liverpool, L.

Brougham and Vaux, L.

Anelay of St Johns, B.

Carnegy of Lour, B.

Astor of Hever, L.

Chan, L.

Attlee, E.

Colwyn, L.

Biffen, L.

Cope of Berkeley, L.

Blatch, B.

Cuckney, L.

Bridgeman, V.

Denham, L.

124

Dixon-Smith, L.

Noakes, B.

Dundee, E.

Northbrook, L.

Elton, L.

Northesk, E. [Teller]

Fookes, B.

Norton of Louth, L.

Gray of Contin, L.

O'Cathain, B.

Greenway, L.

Onslow, E.

Harrison. L.

Patten, L.

Hayhoe, L.

Pearson of Rannoch, L.

Henley, L. [Teller]

Renton, L.

Hodgson of Astley Abbotts, L.

Roberts of Conwy, L.

Home, E.

Seccombe, B.

Hunt of Wirral, L.

Sharples, B.

Jones, L.

Shaw of Northstead, L.

Kalms, L.

Shrewsbury, E.

Kimball, L.

Skelmersdale, L.

King of Bridgwater, L.

Stevens of Ludgate, L.

Liverpool, E.

Tebbit, L.

Luke, L.

Thomas of Gresford, L.

McColl of Dulwich, L.

Ullswater, V.

Maginnis of Drumglass, L.

Waddington. L.

Mancroft. L.

Wakeham, L.

Mayhew of Twysden, L.

Wilcox, B.

Miller of Hendon, B.

Willoughby de Broke, L.

Monro of Langholm, L.

Wolfson of Sunningdale, L.

Montrose, D.

Resolved in the affirmative, and Motion agreed to accordingly.
On Question, Bill passed.
House adjourned at eleven minutes past ten o'clock.

  Guernsey: Contribution to UK Defence
  Lord Smith of Clifton
  asked Her Majesty's Government:

  What contribution Guernsey makes, financial or otherwise, to the United Kingdom's defence; and how this contribution is calculated. [HL3243]

  The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton):
  Since 1 April 1987, Guernsey has made a voluntary annual contribution towards the costs of defence and international representation undertaken by the United Kingdom. The contribution has two elements. The insular authorities have assumed responsibility for the maintenance of the Alderney breakwater (which was completed in 1865 to shelter the British fleet). Prior to April 1987 the cost of maintaining the breakwater was met by Her Majesty's Government. At 2003 prices the average annual cost since 1987 associated with the breakwater is £780,000. Guernsey also remits to the UK the fees collected for the issue of British passports. These amounted to £216,201 in 2003.

  Lord Smith of Clifton
  asked Her Majesty's Government:

  Whether the United Kingdom has any defence role with regard to Braye Harbour in Braye Bay behind the Alderney breakwater. [HL3244]

  Lord Falconer of Thoroton:
  The United Kingdom is responsible for the defence of all of the Channel Islands, the Bailiwick of Guernsey, which includes Alderney, and the Bailiwick of Jersey. There is no specific defence role with regard to Braye Harbour.

  Lord Smith of Clifton
  asked Her Majesty's Government:

  How Guernsey's maintenance of the Alderney breakwater, at an approximate cost of £450,000 per annum, contributes to the defence of the United Kingdom and to meeting the United Kingdom's NATO commitments. [HL3245]

  Lord Falconer of Thoroton:
  The cost of maintaining the Alderney breakwater, borne by the insular authorities since 1987, is one part of the voluntary annual contribution made by Guernsey towards defence and overseas representation, which are the responsibility of the United Kingdom. This contribution is not linked to any specific defence expenditure.
  WA2

  Bosnia-Herzegovina: EU Presence
  Lord Astor of Hever
  asked Her Majesty's Government:

  Whether they will place in the Library of the House a copy of the letter detailing the future scope of the European Union Bosnian Mission recently signed in Brussels between the Dutch, Luxembourg and British delegations and the Bosnian Prime Minister. [HL3275]

  The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean):
  We are not aware of any such letter.

  Lord Astor of Hever
  asked Her Majesty's Government:

  What NATO presence is expected in Bosnia-Herzegovina when the European Union takes over the SFOR operation there; and what will be the British contribution to it. [HL3276]

  Baroness Symons of Vernham Dean:
  No final decisions have yet been taken on the size of the NATO presence which we expect will stay on in Bosnia-Herzegovina once SFOR withdraws. We expect the NATO presence to be a few hundred strong, and that it will focus on defence reform and some operational tasks including detaining indicted war criminals and counter-terrorism. The UK intends to support the continuing NATO presence by seconding a small number of staff to the NATO HQ in Sarajevo although no firm decisions have yet been taken. The UK's main military commitment in Bosnia will, however, be through the proposed EU-led military mission, for which we have offered to take the first lead.

  Bosnia-Herzegovina: War Criminals
  Lord Astor of Hever
  asked Her Majesty's Government:

  What mandate has been given to SFOR by the North Atlantic Council to assist the International War Crimes Tribunal for the former Yugoslavia; and whether this mandate has been fulfilled; and [HL3277]

  What mandate has been given to SFOR by the North Atlantic Council to assist the Bosnian authorities in apprehending the alleged war criminals still living in Bosnia-Herzegovina; and [HL3278]

  What plans there are for the formation of a special NATO force tasked with apprehending war criminals in Bosnia-Herzegovina. [HL3279]

  Baroness Symons of Vernham Dean:
  NATO Stabilisation Force (SFOR) is authorised to apprehend persons indicted for war crimes (PIFWCs) in the course of its normal duties. This authorisation stems from its mandate under the Dayton peace accords and UN Security Council resolutions to ensure peace and stability in Bosnia and Herzegovina.
  WA3
  We expect the NATO presence to comprise a few hundred personnel, and focus on defence reform. We also expect that it will undertake some operational tasks including playing a role in detaining PIFWCs and counter-terrorism activities.

  Iran: Recruitment of Suicide Bombers
  Lord Avebury
  asked Her Majesty's Government:

  Whether, as participants in the Coalition Provisional Authority in Iraq, they have received reports about the recruitment of suicide bombers in Tehran and the arrest of would-be bombers on the Iran-Iraq border. [HL3310]

  Baroness Symons of Vernham Dean:
  We have made strong representations to the Iranian authorities about the recruitment of suicide bombers in Tehran. My right honourable friend the Foreign Secretary spoke to Iranian Foreign Minister Kharrazi about this, and Her Majesty's Ambassador in Tehran reinforced the message with Mr Kharrazi's deputy.

  We made clear that this recruitment was unacceptable and went well beyond the acceptable limits of free speech. It was a clear incitement to terrorism, including attacks on coalition forces in Iraq.

  The Iranian reponse has been that this did not represent official Iranian government policy. Nevertheless, we remain deeply unhappy that such an event should ever have been allowed to take place at all.

  Israel and Palestine: Public Opinion
  Lord Hylton
  asked Her Majesty's Government:

  Whether they are evaluating the results of large-scale testing of public opinion in Israel and Palestine by One Voice; and what conclusions they draw from it. [HL3348]

  Baroness Symons of Vernham Dean:
  We are aware of the work of One Voice and commend the initiative, which gives Israelis and Palestinians a chance to look beyond the conflict to areas of common ground. We hope the initiative will engender further debate and create an environment of hope for the future.

  Like the Geneva Accord and People's Voice initiatives, this shows yet again the longing for peace and a just resolution of the conflict which exists amongst Israelis and Palestinians. We keep this in mind as we continue our efforts to restart a sustainable peace process.

  Home Office: Purchase of Alcohol
  Lord Avebury
  asked Her Majesty's Government:

  How much was spent on purchasing alcohol by the Home Office in each of the financial years 1997–98 to 2002–03. [HL2824]
  WA4
  The Minister of State, Home Office (Baroness Scotland of Asthal):
  The information requested is not held centrally, and to obtain would incur disproportionate cost. However it is Home Office policy that alcohol should not be provided from public funds for staff at official events held during normal working hours except where senior management celebrate success and achievement.

  Anti-social Behaviour Orders
  Baroness Stern
  asked Her Majesty's Government:

  How many young people under the age of 18 were held in custody for breach of an anti-social behaviour order as their primary offence between January and March; and [HL3218]

  How many young people under the age of 18 were held in custody for breach of an anti-social behaviour order as their primary offence since 19 April; and [HL3219]

  How many young people under the age of 18 were held in custody for breach of an anti-social behaviour order as their primary offence between 31 May and 6 June; and [HL3220]

  How many young people under the age of 18 they estimate will be held in custody for a breach of an anti-social behaviour order as their primary offence during the year 2004–05. [HL3221]

  Baroness Scotland of Asthal:
  The Youth Justice Board has provided the following which relates to England and Wales:

  Prior to 21 April 2004 the YJB did not keep a separate record of anti-social behaviour order breaches.

  Information on the number of young people under the age of 18 who entered custody for breach of an ASBO as their primary offence between January and March 2004 is, therefore, not available.

  Between 21 April 2004 and 16 June 2004, 26 offenders aged under 18 entered custody under sentence and 42 entered custody on remand with a breach of an ASBO as their primary offence.

  Between 31 May 2004 and 6 June 2004, three offenders aged under 18 entered custody under sentence and eight entered custody on remand with a breach of an ASBO as their primary offence.

  An estimate of the number of young people under the age of 18 who will be held in custody for a breach of an ASBO as their primary offence during the year 2004–05 is not available.

  Custody in this context covers those held in local authority secure children's homes, secure training centres and Prison Service establishments.
  WA5

  Iraq: Treatment of Prisoners
  Lord Lamont of Lerwick
  asked Her Majesty's Government:

  Why the practice of hooding prisoners at the moment of arrest has been used in Iraq; and why it was not stopped by Ministers when it was reported on television. [HL2786]

  The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach):
  The practice of temporarily obscuring the vision of an apprehended person is used for security reasons, for example, to prevent those persons who have been apprehended from recognising locations. The MoD does not believe that using hoods in such circumstances is illegal. None the less direction was given in September 2003 that UK forces should completely cease the practice and that blindfolds should be used instead.

  Army Recruitment
  Lord Astor of Hever
  asked Her Majesty's Government:

  Further to the statement by the Lord Bach on 16 June (HL Deb, col. 752) that "there is a pause on some recruits starting their phase one basic training courses. That is likely to be in place until October", how they reconcile this with his later statement that "there will not be a postponement of basic training until October" and that "there is certainly no ban on recruiting" (HL Deb, col. 753). [HL3314]

  Lord Bach:
  There is no ban on recruitment and no one expressing a wish to join the Army is turned away. Some individuals who have successfully passed through the recruit selection process may be given a date to commence their phase one (basic) training later in the year. This practice, which has been introduced as an expedient to help to maintain balance in Army manpower numbers, is likely to continue until October.

  Water Fluoridation
  Earl Baldwin of Bewdley asked Her Majesty's Government:
  Further to the Written Answer by the Lord Hunt of Kings Heath on 31 January 2001 ( WA 66), and in view of the promotional role of the British Fluoridation Society, what financial contributions they have made or will make to the society for the years 2003—04 and 2004—5; and whether they intend to continue to make contributions; and [HL3247]
  Whether they have yet decided whether or not to provide funding to enable the York review of water fluoridation, conducted in 2000 by the National Health Service Centre of Reviews and Dissemination, to be incorporated in the Cochrane Library, together with future fluoridation studies as they become available. [HL3248]
  The Parliamentary Under-Secretary of State, Department of Health (Lord Warner):
  The School of Dental Sciences at the University of Newcastle has today announced the results of a study comparing the bioavailability (absorption) of fluoride in water in which fluoride occurs naturally with artificially fluoridated water. The report of the study, copies of which have been placed in the Library, shows that the researchers found no evidence for any differences between the absorption of fluoride ingested in artificially fluoridated drinking water and in drinking water in which the fluoride is present naturally at fluoride concentrations close to one part per million. Nor did they find any evidence for difference between the absorption of fluoride from hard and soft waters at these fluoride concentrations.

  These findings provide further reassurance of the safety of fluoridated water. All water contains some fluoride and about half a million people in an area stretching from Hartlepool in the north-east to Essex receive naturally fluoridated water at concentrations close to the one part per million level at which water is artificially fluoridated. No health effects, other than enhanced resistance to tooth decay, have been detected in residents of this naturally fluoridated area.

  In the report Water Fluoridation and Health, published in September 2002, the Medical Research Council made the investigation of the bioavailability of fluoride its first priority for further research. With the favourable outcome of this study the Chief Medical Officer and Chief Dental Officer have been able to complete their advice on the implications of the MRC report for policy on fluoridation.

  The advice confirms that government should continue to support research to strengthen the evidence base on the benefits to oral health and safety of fluoridation. In this connection CMO/CDO recommend that the research community is consulted about:

  developing a scientifically robust design for evaluation of potential new fluoridation schemes under the Water Act 2003;

  investigating cancer rates in relation to fluoride in water;

  other research projects that would contribute to the evidence base—eg dental fluorosis, adult dental health, impact of water fluoridation on quality of life; and economic impact; and

  monitoring fluoride exposure using data already collected as part of the national diet and nutrition survey and future such surveys to be used to monitor fluoride exposure.

  Further research on fluoridation would need to be considered against other priority calls on the Department of Health's research and development budget.

  The favourable outcome to the research on bioavailability has also enabled us to take decisions on the management of research information on fluoridation. The department already funds the National Primary Care Research and Development

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  Centre at Manchester University. The oral health unit, which has been established within the centre, will be responsible for maintaining a national information base on research studies on fluoridation taking account of the report of the systematic review of water fluoridation carried out by York University. The unit is associated with the Cochrane Oral Health Centre which is also sited at the University of Manchester.

  The function of the British Fluoridation Society is now to promote the benefits of the fluoridation of water in reducing tooth decay. To this end we have allocated £85,000 to the society in 2003–04 and have committed £87,000 for 2004–05.

  Permanent Vegetative State
  Lord Patten
  asked Her Majesty's Government:

  Whether the use within the National Health Service of the adjective "vegetative" to describe a long-term clinical state from which some patients recover in whole or in part is discriminatory towards those patients. [HL3270]

  Lord Warner:
  The term permanent vegetative state (PVS) is a well established medical diagnostic term with clear criteria and definitions set out in guidance from the Royal College of Physicians and internationally recognised bodies. When PVS was first described, there was some uncertainty on how to diagnose the condition. There were some cases of people who it was thought could be in PVS and who did recover. Following analysis of people who have and who have not recovered, diagnosis of PVS is more certain.

  Union Flag: Armagh Courthouse
  Lord Kilclooney
  asked Her Majesty's Government:

  What arrangements are in place to fly the Union flag at the courthouse in Armagh City; who has responsibility to implement these arrangements; and whether the Union flag was flown at the courthouse on the date of Her Majesty's official birthday. [HL3259]

  The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin):
  The flying of flags on courthouses in Northern Ireland is regulated by Flags Regulations (NI) 2000 as amended by the Flags Regulations (NI) Amendment 2002. The Northern Ireland Court Service issues instructions to court security officers when the Union flag should be flown. The Union flag was not flown at Armagh courthouse on 12 June 2004 due to an administrative oversight.

  Hyde Park
  Lord Berkeley
  asked Her Majesty's Government:

  What area is to be fenced off to the public for a forthcoming event in Hyde Park, London; how long the public will be excluded from the area; and how much income the Royal Parks Agency expects to
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  receive from the organisers of the event; and [HL3285]

  Why contractors are permitted to park their cars on the North Carriageway in Hyde Park; and [HL3286]

  Why the Royal Parks Agency has given priority to parking for contractors' cars over cycles on the North Carriageway in Hyde Park by closing that road to westbound cycles; and what alternative route has been signposted. [HL3287]

  The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey):
  The area that has been fenced off covers 14.7 hectares.

  The enclosed area will not be completely closed to the public except on concert days. From 28 June until 5 July the fencing at the Marble Arch end of the site will be removed, opening half the site to the public. From 5 July the site will return to its current size until 13 July, when it will be reduced by one-third until the final concert on 15 July and it is expected to have been completely removed by 21 July. One footpath across the site will be kept throughout that period open except on concert days.

  The Royal Parks will receive in excess of £1.1 million from concerts in Hyde Park this summer.

  Contractors building the concert site come from all over the country. They are allowed to park on North Carriage Drive because it is close to the site they work on and there is nowhere else they can park within reasonable distance. Allowing them to park close to the site reduces the site construction period and consequently disruption to park users and avoids the need to take parking spaces out of public use.

  No alternative route has been signposted and cyclists travelling from east to west will be able to continue on the Marble Arch gyratory system, leaving at the next exit and travelling along Bayswater Road, which runs parallel to North Carriage Drive.

  Picketts Lock
  Lord Moynihan
  asked Her Majesty's Government:

  What is the source of funding for plans to provide £4 million for Picketts Lock from 2003 to 2005; why the funding is being given; what the money is to be spent on and by whom; who will monitor the expenditure; and why it is entered as a separate expenditure within the Department for Culture, Media and Sport annual report 2004. [HL3295]

  Lord McIntosh of Haringey:
  The £4 million funding for Picketts Lock will come from the capital modernisation fund and will be used to create a Lee Valley Regional Athletic Centre that will benefit not only elite athletes but also local school children and the surrounding community.

  The money will be used by the Lee Valley Regional Park Authority which proposes to build an indoor 200 metre track with spectator seating, a 132 metre sprint track, a throws area and an outdoor 400 metre track

  WA9
  also with spectator seating. Spending for the project will be monitored by Sport England.

  The expenditure is listed separately in the Department for Culture, Media and Sport annual report as the project does not fall under any other DCMS non-departmental public body grant in aid allocation.

  Sport: Participation
  Lord Moynihan
  asked Her Majesty's Government:

  How the Department for Culture, Media and Sport is monitoring its 2002 public service agreement to increase significantly the take-up of sporting opportunities by new users aged 20 and above from "priority groups".[HL3297]

  Lord McIntosh of Haringey:
  One of Sport England's objectives is to "increase participation in sport in order to improve the health of the nation, with a particular focus on priority groups". Sport England's delivery of this objective is measured against a number of key performance indicators set out in its funding agreement with the Department for Culture, Media and Sport (DCMS). DCMS officials monitor progress through monthly meetings with Sport England and by reviewing the report and accounts that Sport England is required to submit to the department annually.

  Public Spaces
  Baroness Miller of Chilthorne Domer
  asked Her Majesty's Government:

  Whether, in accordance with the local government White Paper 2001 and the spending review 2002, they have published a strategy for reviewing the powers and responsibilities that
  WA10
  govern the provision and maintenance of public spaces, including beaches.[HL3282]

  The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty):
  On 31 October 2002, Defra published the consultation paper, Living Places: Powers, Rights Responsibilities. This consultation set out a number of options for reforming legislation relating to public space. A summary of the consultation responses was published in July 2003. Defra has made clear that should new or amended legislation be necessary or desirable following this consultation we would seek to introduce it if a suitable legislative opportunity arose.

  Environment: Public Awareness Campaigns
  Baroness Miller of Chilthorne Domer
  asked Her Majesty's Government:

  What campaigns they or their agencies are planning to run between June and October 2004 with the aim of raising public awareness of environmental, countryside and marine issues. [HL3283]

  Lord Whitty:
  The Department for Environment, Food and Rural Affairs gives an annual grant to the environmental charity ENCAMS, which will launch a youth litter, graffiti and abandoned vehicle campaign during the period June to October 2004. Major countryside campaigns run during this period by the department and the Countryside Agency will include the promotion of a new Countryside Code and the new statutory right of access to open country and registered common land under the Countryside and Rights of Way Act 2000. In addition, the department will be participating in National Parks Week, which is being co-ordinated by the Association of National Park Authorities. There are no specific campaigns aimed at the marine environment.

  Mathematics Teaching
  The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland):
  My right honourable friend the Secretary of State for Education and Skills (Mr Charles Clarke) has made the following Written Ministerial Statement.

  I have today placed in the Library of the House copies of a booklet outlining the steps we are proposing to take in response to Making Mathematics Count, the report of the post-14 mathematics inquiry chaired by Professor Adrian Smith.

  The report was published on 24 February and at that time I publicly welcomed it. Over the past few months I have been considering the recommendations very carefully, with advice from Adrian Smith and key partners in England, and now feel I am in a position to announce how I plan to take forward the key elements of the report.

  The response applies to England only. The devolved administrations of Wales and Northern Ireland are considering the report's recommendations and developing their own responses. The report did not make specific recommendations for Scotland but the Scottish Executive will take the analysis of policy and provision into account.

  The proposals address the four key areas identified in Adrian Smith's report: the supply of mathematics teachers, supporting teachers' continuing professional development, curriculum pathways, assessment and qualifications, and providing strategic leadership.

  My proposals for strategic leadership include the appointment of a chief adviser on mathematics within the DfES to oversee implementation of the mathematics strategy and to raise the profile of the subject. Anita Straker of the Centre for British Teachers has been appointed on an interim basis.

  My proposals to improve the supply and retention of teachers include:

  raising the value of the teacher training bursary for mathematics graduates from £6,000 to £7,000 from September 2005;

  increasing the value of the golden hello for new mathematics teachers from £4,000 to £5,000 for trainees entering PGCE courses from September 2005 onwards;

  subject to the statutory advice of the School Teachers' Review Body, removing the cap on pay for mathematics ASTs, currently just under £50,000, guaranteeing them a minimum salary of £40,000;

  doubling the number of undergraduates on the student associates scheme from 5,000 this year to 10,000 places by 2005–06, a high proportion of which will be in the shortage subjects. This programme
  WS2
  encourages good quality undergraduates to consider training as teachers by giving them experience of working in schools as volunteers.

  My proposals to support teachers' continuing professional development include:

  setting out priorities for the new National Centre for Excellence in Mathematics Teaching which will provide strategic direction and leadership and, in partnership with the Advisory Committee for Mathematics Education, draw together the wider mathematics community to contribute their expertise and leadership. We expect to invite tenders by March 2005;

  discussing with the profession the use of one inset day for subject-specific professional development from 2007;

  developing pools of mathematics expertise within schools to increase the relevance and range of CPD opportunities on offer at a local level.

  My proposals for the curriculum, assessment and qualifications include:

  deciding on the introduction of a two-tier mathematics GCSE this autumn once evaluation of the pilot is complete following this summer's exams. This could be taught nationwide from September 2006;

  asking the QCA to develop guidance for an extension curriculum separately at key stage 3 and 4 to stretch more able learners;

  looking to the working group on 14–19 reform to draw on the recommendations for curriculum pathways in the Smith report. Their final report is due in the autumn;

  looking to the QCA to work closely with the wider mathematics community as well as ACME on taking forward these and other proposals.

  I believe that together these proposals will provide an effective answer to the challenges ahead and that they represent a fair balance between the needs of mathematics as a subject, what is reasonable in the context of other subjects and what is affordable. Needless to say, taking these proposals forward successfully will depend to a large extent on the advice and continuing support of the mathematics community and I will be looking to them for this.

  New Forest National Park
  The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty):
  My right honourable friend the Minister for Rural Affairs and Local Environmental Quality has made the following Written Ministerial Statement:

  Today, I am pleased to announce my decision on the proposal for a New Forest National Park.

  I have carefully considered the inspector's report on the public inquiry into the New Forest National Park (Designation) Order 2002 made by the Countryside

  WS3
  Agency under the provisions of the National Parks and Access to the Countryside Act 1949. In line with the inspector's recommendations, I have decided that the area now proposed for designation meets the criteria and purposes of a national park and should be managed by a national park authority to be established under the provisions of the Environment Act 1995. I have decided to confirm the designation order, with modifications, so creating a New Forest National Park.

  I accept the boundary recommended by the inspector with some modifications. The inspector has recommended the exclusion of some areas that are within the boundary proposed in the Countryside Agency's designation order, and the addition of three small areas which were not included. I am minded to agree the three additions, expanding one of them to take in a further area of land outside the designation order boundary. In addition, I have decided to retain two areas within the park that the inspector recommended should be excluded.

  Under the provisions of the National Parks and Access to the Countryside Act 1949 details of the proposed additions to the designation order boundary will be made available to the public for a minimum of 28 days to enable any objections and representations to be made. Details of where and when details of the proposed additions can be viewed, and the time limits for the receipt of objections and representations, will be advertised shortly in the national and local press. I will consider all duly made objections and representations and if necessary call a public inquiry or a hearing to consider them. When the boundary is finalised, I will announce the confirmation of the designation order with its final modifications as well as the date for the creation of the New Forest National Park.

  When I confirm the designation order, I propose also to commit to confirming the order made by the Countryside Agency to revoke the South Hampshire Coast Area of Outstanding Natural Beauty to coincide with the park coming into being. The New Forest National Park as now proposed would cover over 95 per cent of the land currently designated as the Area of Outstanding Natural Beauty and it would be inappropriate to have concurrent national landscape designations.

  Depending on the successful conclusion of the further steps required to confirm the designation order, I propose to bring forward a further order under the provisions of the Environment Act 1995 to create a national park authority. I expect the new authority to take on its full range of statutory powers and functions from 1 April 2006.
  WS4

  Medical Supplies Agency: Key Targets 2004-05
  The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach):
  My honourable friend the Parliamentary Under-Secretary of State for Defence (Mr Ivor Caplin) has made the following Written Ministerial Statement.

  Key Targets have been set for the chief executive of MSA for financial year 2004–05. The targets are as follows:

  Key Target 1To build and deliver, to schedule and within budget, all modules on the operational build programme as agreed with our key customer, the Defence Medical Services Department (DMSD), and to meet all authorised operational requirements for equipment, medical consumables and blood products. Also to meet unplanned requests from DMSD based on operational need.

  Key Target 2To build and deliver, to schedule and within budget, all modules on the exercise and training build programme as agreed with DMSD, and to meet all authorised requirements for equipments, medical consumables and blood products.

  Key Target 3To meet demands for non-operational customers in UK and overseas as follows:

  (a) Urgent (Priority Code 5)

  Cat B consumables—ready for despatch same day
  as receipt of demand

  Cat E equipment—with 24 hours initial contact
  made with supplier and customer informed when delivery will be despatched

  Cat E equipment delivered via Ludgershall despatched same day

  (b) Routine (Priority Code 9–16)

  Cat B consumables—ready for despatch within four working days.

  Cat E equipment—within three days initial contact made with supplier and customer informed when delivery will be despatched.

  Cat E equipment delivered via Ludgershall despatched within three days.

  Target 95 per cent achievement applies to a and b.

  Note: Target for Cat B consumables relates to items held in stock or readily available from trade.

  Key Target 4To work with our customers and stakeholders with the objective of delivering the key elements of the MSA change programme, which will deliver significant improvements in the effectiveness and efficiency of the medical supply chain, contribute to CDL's strategic objectives and improve delivery to our customers.