Sitting of 3 February 2005

Preamble
The House met at eleven of the clock (Prayers having been read earlier at the Judicial Sitting by Lord Bishop of Southwark): The CHAIRMAN OF COMMITTEES on the Woolsack.

Zimbabwe
Lord Blakerasked Her Majesty's Government:
Whether the situation in Zimbabwe will be discussed at the forthcoming meeting of the G7 Finance Ministers in London.
Lord Davies of Oldham: My Lords, the Chancellor set out his priorities for the February G7 Finance Ministers' meeting in his recent speech at the DfID/ United Nations Development Programme seminar, "Words into Action 2005", held on 26 January. In that speech he highlighted the responsibilities of both developed and developing countries to meet the challenges of Africa, especially in the fight against corruption. The focus for the agenda will be on tackling some of the key issues affecting Africa: aid, trade, debt, health and education.
Lord Blaker: My Lords, I am obliged to the noble Lord for that Answer. Given that the Prime Minister has declared that this is the "year of Africa", should not the conference be taking note of the fact that the catastrophe in Zimbabwe is not only political, but economic, financial and social for the whole of southern Africa?
The noble Lord mentioned AIDS. Is he aware that AIDS is being spread to other countries of southern Africa by individual Zimbabweans who are fleeing to other countries in search of work, to make money to send back to their families at home? Could not a strong statement by the G7, stressing the importance of the other African countries to resolve the Zimbabwe crisis in accordance with their treaty obligations, be of value—especially if it were endorsed by Nelson Mandela, who will attend the conference?
Lord Davies of Oldham: My Lords, of course I share with the noble Lord the anxiety about what he defined as the catastrophe of Zimbabwe. He will recognise that the G7 Finance Ministers are meeting to consider overwhelmingly the economic issues of Africa and the major project of dealing with the whole of Africa, of which Zimbabwe is not typical, but presents a particular challenge that the noble Lord has identified. He referred to health; we all recognise that HIV/AIDS is a real issue for the whole of the continent. However, the main objective for the Finance Ministers is to concentrate on those broad issues which cover the whole of Africa in a positive way and it would not,
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therefore, be entirely appropriate for them to spend a great deal of time considering the particular issue of Zimbabwe.
Lord Avebury: My Lords, although I applaud the general approach of the Chancellor, should not the G7 Finance Ministers commission a report on the impact of Mugabe's policies on foreign direct investment, not just in Zimbabwe, but in the whole of the region?
Lord Davies of Oldham: My Lords, that is a constructive suggestion and the noble Lord will recognise that world organisations, particularly the International Monetary Fund, are looking carefully at the catastrophic development of the Zimbabwean economy and its wider impact. I assure him that the issue that he wishes to be addressed will be subject to real interest among the Finance Ministers who will attend the G7.
Baroness Park of Monmouth: My Lords, does the Minister agree that financial action in countries emerges to a great extent from its political procedures? The Iraqis have just had a successful vote abroad. Nearly 2 million Mozambiquis living in South Africa were allowed to vote in their country's election, but up to 2 million Zimbabweans living abroad were not allowed to do so. Will that point be put forcefully by the G7 Ministers to the SADC countries, because it is totally unrealistic that the SADC countries are supposed to be observing the election, but that nothing should be done to enable the people who have a right to vote to do so?
Lord Davies of Oldham: My Lords, the noble Baroness has introduced an interesting point. I recognise entirely that the finance and economics of the situation are dictated by political arrangements and the catastrophe of Zimbabwe represents political failure, too. She will know that we shall examine the question of further economic measures after the Zimbabwean elections have taken place, but we share with her our real anxieties about the nature of those elections. In a sense, these issues need to be addressed in the broader context of the political and economic situation, not specifically by the Finance Ministers.
Lord Northbourne: My Lords, does the noble Lord accept that one of the most important economic issues for Africa is creating investment in order to create employment and that the political situation in Zimbabwe is absolutely central to the likelihood of foreign investors investing in Africa south of the Sahara?
Lord Davies of Oldham: My Lords, Zimbabwe is clearly important, but we should not exaggerate its importance in relation to the whole of Africa. The commitment of the G8, under the chairmanship of my right honourable friend the Prime Minister, is to focus on the whole continent of Africa, which has many problems—and we have a strategy for beginning to tackle some of them effectively. The importance of

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Zimbabwe should not be exaggerated in those terms. There are many common issues across the whole of Africa, which can appropriately be addressed by the advanced countries. The forum of the G8, which is political, will concentrate on those issues. Of course, the G7 Finance Ministers will make their contribution to those developments.
Lord Lawson of Blaby: My Lords, the Minister mentioned in his Answer, very properly, that the Chancellor of the Exchequer's proposals at the G7 Finance Ministers' meeting would be made against a background of corruption, which is the great disease of Africa and until that can be tackled, there is no hope for the economies of the African continent. What proposals do the British Government have to extirpate or, at least, greatly to diminish the extent of the cancer of corruption in Africa?
Lord Davies of Oldham: My Lords, the noble Lord has highlighted the general issue that is of greater concern to the wider world and relates to that earlier question about investment in Africa; namely, that investment must be for the benefit of the peoples of the African countries, rather than the select few who, in the past in some countries—as the noble Lord has identified—have been able through corruption to channel resources to limited numbers. My right honourable friend has made it absolutely clear that one of the G8's key objectives in making progress on the whole strategy for Africa is eliminating corruption.
Lord Puttnam: My Lords, while sympathising—
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, I beg the noble Lord's pardon, but we have completed eight minutes and we should move on.

EU: ACP Economic Partnership Agreements
11.8 a.m.
Baroness Whitakerasked Her Majesty's Government:
Whether they support the proposed economic partnership agreements between the European Union and the African, Caribbean and Pacific states.
Lord Triesman: My Lords, the European Union is an important trading partner for the 77 African, Caribbean and Pacific states and the proposed economic partnership agreements offer the opportunity for integrated trade, political co-operation and development assistance. The Government are working closely with the European Commission, other member states and NGOs to ensure that the agreements remain development focused.
Baroness Whitaker: My Lords, I thank my noble friend for that positive Answer, but can he do his best
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to see that the "Singapore issues"—that is to say, those concerning liberalisation of investment, competition policy and government procurement—are not inserted from the start as part of the agreement, but phased in, taking account of the capacity of the ACP states, and with the EU helping to build up their capacity?
Lord Triesman: My Lords, we certainly will do our best. I believe that we have achieved a central role in the EU in this regard. The Government believe that agreement on stable investment regimes and a positive competitive climate will foster the development of competitive industries in the African, Caribbean and Pacific countries. We therefore believe that agreements on investment rules and competition policy should be a useful element in the wider partnership agreements. But—and it is an important but—the agreements have to be tailored to suit the relevant region involved.
My noble friend helpfully highlights the resource constraints on many developing countries and their governments, which we recognise. We have commissioned independent research on the best form of investment agreements and competition policy to further the development of those countries.
Lord Renton: My Lords, would it not be a mistake for the Government to support that agreement until the opinion of the British people has been revealed by the holding of the referendum on the European Union which the Government are committed to hold?
Lord Triesman: My Lords, I am absolutely intrigued—as the House will be—to know that the referendum is to be on continued membership of the European Union. I have long suspected that that was the case. In respect of the point made, the development of trading policies and the attempt to assist the developing countries in fair trade will not wait for that kind of development. Whatever the outcome may be in any referendum, these trading agreements are vital to the health and development of the poorest countries in the world. We should put our shoulders behind that.
Lord Oakeshott of Seagrove Bay: My Lords, would the Minister accept that the trade justice movement—led by Oxfam, Christian Aid and ActionAid—has serious concerns about the process by which these economic partnership agreements are being negotiated? One example is the recent opening of the Kenyan sugar market which meant that its industry was effectively wiped out, with very serious consequences in western Kenya. While we are all in favour of free trade, would he assure the House that the watchword for negotiating these agreements must be consent, not compulsion?
Lord Triesman: My Lords, in an earlier answer I was trying to emphasise that the agreements would necessarily be introduced over time. They will be—I apologise for the jargon—asymmetrical for some time. But I think that the United Kingdom is broadly right in taking this direction. Were we to go back and ask for a changed mandate in the EU, which plainly would be a possibility, there is a real risk that the change would

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not be so development friendly. Many of the more protectionist nations in the EU would probably come further to the front. That is perhaps particularly true of the accession countries, which do not have much of a tradition in this development focus. I take the noble Lord's point and I hope that timing and phasing will be the answer.
The Earl of Sandwich: My Lords, the Minister sounds very confident about the new economic partnership agreements. Would he recognise that the African, Caribbean and Pacific countries will be in a worse position than they are presently under the Cotonou agreement? Further, would he recognise that they are in a trap of deadlines? They are in this principle of reciprocity, which means that they will have to be compatible with the World Trade Organisation and trade equally with the developed nations. How will we get them out of that trap?
Lord Triesman: My Lords, the trap described by the noble Earl is a broader trap than perhaps he indicated. A significant number of developing countries are not in these agreements at all. All those countries will have to be treated on a par with one another under the WTO rules—which insist, in my judgment quite rightly, that whatever the past regimes, all the countries in the developing world must have equal access to the trading arrangements. That is the full impact of the rules. It will mean that those who have had preferential arrangements, compared with other developing countries, will wish to continue those preferential arrangements, but that seems hardly likely to succeed if everybody is to be treated the same.
Baroness Rawlings: My Lords, despite the Minister's Answer to the original Question, and following on from the noble Earl, Lord Sandwich, what steps will Her Majesty's Government take to postpone the proposed EPAs in light of the WTO's consultative board report? That report called for developed countries' governments to show restraint in pursuing regional trade agreements to avoid damaging the multilateral trading system, especially since it warned that such agreements are not as beneficial for developing countries as the EU and US claim?
Lord Triesman: My Lords, the timetable for the negotiations that we are engaged in has been established for some time. I do not think that the United Kingdom on its own can unravel that timetable, but we have not got to the point at which it will come to culmination. It is possible—the Government have made the point on a number of occasions—that there are alternatives to EPAs for those nations that believe that it is an onerous obligation. I will not go through those alternatives in detail because there are a significant number of them. There is nothing that compels any nation to enter into any of those agreements.
Broadly speaking, and even with the anxieties about the past preferential arrangements perhaps no longer being continued beyond 2005–06, most of the nations
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involved are actively engaged in these negotiations in trade groups. They have found that their capacity is far greater if they negotiate in trade groups rather than individually and bilaterally.

Neighbourhood Watch
11.17 a.m.
Baroness Harris of Richmondasked Her Majesty's Government:
In light of their proposal to decline an emergency grant to the National Neighbourhood Watch Association, what are their proposals for the continuance of that association.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, the National Neighbourhood Watch Association is a charity funded by commercial sponsorship since its establishment in 1995. My honourable friend the Minister of State for Crime Reduction, Policing, Community Safety and Counter-Terrorism has agreed to meet the association to discuss the funding situation. We continue to support grassroots' neighbourhood watch activity through, for example, the funding of free public liability insurance for local groups and a national neighbourhood watch conference in March.
Baroness Harris of Richmond: My Lords, I thank the Minister most warmly for that promise. I wonder whether she is aware of the new management structure and that two large companies have both offered £50,000 each and another £10,000 for an annual income for national neighbourhood watch. I am sure that with the Minister's promise, national neighbourhood watch will continue to flourish and bring in all the disparate small groups around the country.
Baroness Scotland of Asthal: My Lords, I thank the noble Baroness. I know that my honourable friend will be very interested to hear what the noble Baroness has said.
Baroness Gardner of Parkes: My Lords, has the Minister seen the full-page letter in today's edition of the Times from the new Commissioner of the Metropolitan Police Service? He says:
"We know people do not define how safe they feel by crime statistics alone. They define it by how their neighbourhood, their journey to work and their leisure time are affected by so-called anti-social behaviour".
He goes on with a whole paragraph about how the police intend to make safer neighbourhoods a major project. Certainly, it is very important that the association of neighbourhood watches should continue because it will be necessary for the police to work in conjunction with neighbourhood watch. Does the Minister agree with that view?
Baroness Scotland of Asthal: My Lords, we absolutely agree that the police should and do continue to work very closely with neighbourhood

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watch. I reassure the House that even if through some unfortunate circumstance the national association failed, that does not mean that the neighbourhood watch local schemes would be adversely affected.
Noble Lords will know that neighbourhood watch has been in being since the 1980s and the association was created only in 1995. Our support for neighbourhood watch schemes remains resolute.
Lord Williamson of Horton: My Lords, does the Minister recognise that, at least in my area, the neighbourhood watch is considered much more important than many of the Bills on which we spend possibly useful hours in this House? Does she agree that, because it depends on a huge number of volunteers, the movement is inspired by confidence? It is very important to avoid discord and disaffection, and I hope that that can be done.
Baroness Scotland of Asthal: My Lords, I agree with the noble Lord's comments. We wish the national association well, but we reassure local groups, many of which are not affiliated to the national association, that they will continue, and our support will remain.
Baroness Gibson of Market Rasen: My Lords, this is an important question. Can my noble friend tell the House whether the Government are giving any assistance to other organisations that work on the ground with neighbourhood watch? I know that in Greenwich and Woolwich there is a group of organisations that work together. Can the Minister tell the House about any help that the Government are giving such groups?
Baroness Scotland of Asthal: My Lords, the Government are giving help to the voluntary sector. In addition, through the crime and disorder reduction partnerships we are able to brigade together local initiatives, local authorities, the statutory sector and the non-statutory sector, and they work together very closely. In addition, good work has now been undertaken by local criminal justice boards. The chief officers are able to analyse and assess the needs of the community better. All of those efforts—the public joining together with the statutory agencies—are making a real difference to safety on our streets and I congratulate them all on their industry and their commitment.
Lord Dholakia: My Lords, does the Minister agree that there is a need for a central co-ordinating body? Will she take into account the comments made by the chief constable of Hertfordshire, Frank Whiteley:
"NNWA has played an important role in the continued success and development of Neighbourhood Watch schemes across the country. Their absence would be a significant loss to Neighbourhood Watch and to the Police Service nationally".
Baroness Scotland of Asthal: My Lords, we will certainly take that into account. I remind noble Lords of what I said about the conference that we are holding in March 2005. The Home Office is also working on a
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forum, which has been very well supported. The forum is looking at how better support can be given to neighbourhood watch, not only by producing material that it needs, but also by assisting it in other ways. We hope that the efforts that we are all trying to bring together will ensure that even if, through some tragedy, the national association did not continue, we would have a forum that would enable the work to be done. But, obviously, we wish the national association well.
Lord Greaves: My Lords, the Minister's comments about neighbourhood watch are welcome, but does she recognise that in many areas there is a plethora of people tripping over each other in the streets? We have community beat managers, community support officers, the local branch of the community safety partnership, neighbourhood wardens funded under the Neighbourhood Renewal Fund, and we are about to get neighbourhood management staff funded under the housing market renewal pathfinder. We are awash with these people. Does the Minister recognise that when the funding for all the trendy schemes is being cut in the future, or they are being closed down altogether, the tried and trusted, reliable neighbourhood watch, organised by local volunteers, will be there to pick up the pieces and keep things going?
Baroness Scotland of Asthal: My Lords, I thank the noble Lord for outlining in such detail all that this Government have done to make things better. Some people may see the co-ordination of that work as trendy. We see it as essential. I assure the noble Lord that our efforts in that regard will continue, as well as our co-ordination, which is growing better by the day.

Flooding: Growth Areas and Insurance
11.24 a.m.
Baroness Scott of Needham Marketasked Her Majesty's Government:
What is their response to comments by the Association of British Insurers that up to 10,000 of the homes built in south-east England by 2016 would be located in the floodplain and could be uninsurable.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, the Government welcome the ABI report. The ABI report shows that in the growth areas, as in other parts of the country, effective land planning policies will help to minimise flood risk. Some sections of the press have misinterpreted the report as showing that 10,000 new homes in the growth areas would be at significant risk. That figure comes from the report's baseline scenario, which assumes that the current planning policy guidance note 25, dealing with development and flood risk, is not applied to new developments in the growth areas. That is clearly unrealistic.
Baroness Scott of Needham Market: My Lords, does the Minister accept that government pressure on local authorities in the south-east to provide large numbers of new houses will inevitably put pressure on areas that are subject to flood risk? Can he say whether the Government are prepared to invest more in flood defences, or to work with the insurance industry to make sure that low-cost housing in particular is not built on areas that are vulnerable to flooding?
Lord Rooker: My Lords, it naturally follows. It would be barmy to go ahead with large numbers of dwellings in areas where the flood risk was great. The risk has to be measured. There is policy guidance. We welcome the report. It is a very useful contribution. Its recommendations, along with those of the Environment Agency, are just the thing, as the Minister said in the press notice issued by the ABI itself. We welcome the report, and we want to work with insurers to minimise the problems. We cannot remove the flood risk, because we are an island nation. We have a very high degree of flood risk. We are working on it, particularly in the gateway, where the risk is very high.
Lord Crickhowell: My Lords, can the Minister assure me that when the Environment Agency advises that houses should not be built on the flood-plain, it is the firm policy of the Government that government departments and local authorities should ensure that houses are not built in those places?
Lord Rooker: My Lords, it is up to the local planning authority. Of the planning decisions taken in 2003–04, 88 per cent were decided in line with the Environment Agency's flood risk advice. That percentage is higher than that of a couple of years earlier, so greater notice is being taken. I am not saying that decisions are 100 per cent in line. There are always variations, and arguments about risk. But the concept is that policy guidance should be followed. That is what planning policy guidance note 25 is all about. That guidance is currently under review. We have had six months' consultation, and we intend to review and strengthen the guidance later this year.
Lord Bridges: My Lords, have the Government studied the American scheme to cover insurance on properties on the Atlantic coast in the case of catastrophic damage? It is commercial insurance, run by a company that normally meets damages out of premium income, but when the damage is very widespread, the federal government will underwrite the losses. A scheme of that kind could be developed in this country, and it may well be necessary on the east coast, where the Government are declining to maintain the existing sea defences. I should declare an interest, as my home is close to the flood plain and is 16 feet above sea level.
Lord Rooker: My Lords, the short answer to the noble Lord's initial question is "no". I have no knowledge of that scheme. It may be that Defra is aware of it.
Notwithstanding that, I am told that there are very few properties in this country for which it is not possible to obtain insurance. Work is going on to strengthen flood
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defences. In the gateway, they are to a very high level. The risk is one in 1,000, which is very high. Work is going on on the 2100 plan, which assesses the situation over the next 100 years and covers the whole of the south-east, including the barrier and the tributaries of the Thames.
Lord Campbell-Savours: My Lords, is there any evidence that local authorities are ignoring the guidance?
Lord Rooker: My Lords, as I said to my noble friend, 88 per cent of decisions in 2003–04 were decided in line with the Environment Agency guidance. The issue is that the planning application needs to be brought to the attention of the Environment Agency, so it is not 100 per cent coverage. My noble friend asked whether the guidance is being deliberately ignored or flouted. There is a good deal of co-operation between my department, Defra, the local authorities and the Environment Agency to make sure that we get this right and to strengthen the flood resilience processes in our planning policies.
Lord Dixon-Smith: My Lords, in his responses, the Minister has indicated that there are various ways of overcoming the dangers of uninsurable property in flood-plains. But the serious question is whether the Government are satisfied that the regulatory processes of development are sufficiently robust to ensure that uninsurable houses are not constructed in flood-plains? Following on from that, there is always a cost implication. Is the Minister satisfied that these restrictions do not endanger the Government's programme for affordable housing?
Lord Rooker: My Lords, one cannot yet be certain where the developments will be in many of the growth areas. It is early days in a 20-year programme. In some of the growth areas, particularly in Ashford, which is potentially at risk, there has been a satisfactory outcome between the delivery vehicle led by the local authority, the Environment Agency and the developers, to make sure that the building is not at risk in the areas of greatest risk on the flood plain. The same kind of work is going on in the other growth areas such as Milton Keynes in the south Midlands. The idea is to make sure that we get a solution. We have always to be spending money on flood risk and flood resilience. But we have to measure the risk. It is only since 2001 and the issue of the guidance on development and flood risk that we have had a system for planning which seeks to measure the flood risk in the first place.

Business
Lord Davies of Oldham: My Lords, with the leave of the House, at a convenient point around 1.30 p.m., my noble friend Lady Symons of Vernham Dean will repeat a Statement, which is being made in another place, on proposals for the EU in 2005.

Business of the House: Debate this Day
Baroness Symons of Vernham Dean: My Lords, on behalf of my noble friend Lady Amos, I beg to move the first Motion standing in her name on the Order Paper.
Moved, That the debate on the Motion in the name of the Lord Mitchell set down for today shall be limited to two hours.—(Baroness Symons of Vernham Dean.)
On Question, Motion agreed to.

Business of the House: Commissioners for Revenue and Customs Bill
11.31 a.m.
Baroness Symons of Vernham Dean: My Lords, on behalf of my noble friend Lady Amos, I beg to move the second Motion standing in her name on the Order Paper.
Moved, That leave be given to advance the Second Reading of the Commissioners for Revenue and Customs Bill from Tuesday 8 February to Monday 7 February.—(Baroness Symons of Vernham Dean.)
On Question, Motion agreed to.

Disability Discrimination Bill [H.L.]
11.32 a.m.
Report received.
Lord Skelmersdalemoved Amendment No. 1:
Before Clause 1, insert the following new clause—
"PUBLIC REPRESENTATION

(1) In the 1995 Act, Part 2 shall have effect with the following amendments.

(2) In section 4C(3)(a) the words "and in respect of which they are entitled to remuneration" are omitted.

(3) In section 4C(3)(b) at the end the words "or regional or local authority" are inserted."

The noble Lord said: My Lords, this Bill brings public authorities within the scope of the Disability Discrimination Act for the first time, covering local authorities, hospital authorities, schools to a great extent and various others.
However, I find it anomalous that office holders must be paid if they are to be covered by the Act as regards it being illegal to discriminate against or harass disabled people, or make reasonable adjustments for them. There is an amendment in the Marshalled List in the name of the noble Baroness. Lady Masham, and others about that.
One can think of many occasions when someone is unpaid, but still directs things and other people within the province of local authorities. This amendment would extend the protection of disability legislation to the holders of public appointments made by Ministers, government departments, the Scottish Administration and the Welsh Assembly who do not receive
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remuneration. It would also cover appointments made by regional and local authorities such as some school governors.
The record of many public bodies in promoting the inclusion of disabled people is poor. Government figures show that only 3.1 per cent of public appointments are held by disabled people. Among the reasons why disabled people are excluded from public life is the failure of many public bodies to make reasonable adjustments to allow disabled people to participate in their work. Factors acting against the involvement of disabled people include public bodies choosing to meet in inaccessible locations, not providing loop induction facilities and/or failing to provide relevant material in alternative formats. In some instances, public bodies can practise outright discrimination against disabled members.
The Disability Discrimination Act 1995 (Amendment) Regulations 2003 extended the protection of the Act's employment provision to public office holders where,
"they are entitled to remuneration",
and where the,
"post is one to which appointments is made by a Minister of the Crown, a government department, the National Assembly for Wales or any part of the Scottish Administration".
This has created the anomalous situation that a disabled person seeking or holding a public appointment which is subject to some remuneration, no matter how small, is protected under the Act, while an unremunerated post holder is not so protected. The reason why some public appointments are remunerated while others are not are often very strange, historical and arbitrary. For example, members of the Industrial Development Advisory Board, which has
"wide powers to provide selective financial assistance to industry",
are unpaid while non-executive board members of local primary care trusts receive, I am told, £5,673 a year. Similarly, lay magistrates, who have the power to impose custodial sentences, are not paid, while members of area courts boards, whose functions are purely advisory, receive £1,300 a year.
lthough we covered to an extent this subject in Grand Committee, I cannot see why the Government believe that there is a sustainable argument that unremunerated public posts and appointments by regional and local authorities should not enjoy the same statutory protection. I beg to move.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, this clause is intended to protect disabled people from discrimination if they are involved in public representation. I believe that the noble Lord, Lord Skelmersdale, expressed his concerns very clearly. This is precisely what we would expect to achieve once the DDA has been amended by this Bill. Current DDA protection, together with the changes in the Bill, will ensure that the DDA's protection will be at least as comprehensive as that provided by the Race Relations Act.

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As I explained during Grand Committee, the Disability Discrimination Act 1995 (Amendment) Regulations 2003 transposed the disability aspects of the European Framework Directive on equal treatment in employment. So in brief the DDA now protects those who are appointed to an office to discharge functions personally, are remunerated, as the noble Lord, Lord Skelmersdale, identified, and who perform their duties under the direction of another, and those who are appointed by government or on advice of Ministers.
Clause 1 will extend DDA cover to local councillors, fulfilling a promise made in Towards Inclusion. In addition, Clause 2 will ensure that in broad terms all activities in the public sector are covered by the DDA including functions relating to public office holders.
There were some concerns on the first day of Committee about the cover which Clause 2 will afford office holders, once our package of provisions is in place. In particular school governors were mentioned. The debate was led by the noble Lord, Lord Skelmersdale, and it prompted me to consider carefully whether the Bill met our intentions. It does appear that public office holders would not be covered as comprehensively as we had intended.
At the moment, Clause 2 covers the appointment of a person to a post, but not the relationship once a person is in post. In our attempt to prevent an overlap of provisions within the DDA, we inadvertently failed to protect public office holders when in post. So it is very useful that we were able to explore the matter as we did in Grand Committee.
Clearly, we shall be putting this right to ensure comprehensive protection for holders of public office. We will bring forward an amendment as regards Clause 2 to ensure that Section 21B(1)will also apply to public functions exercisable in relation to office holders once they are in post unless they are covered elsewhere in the DDA.
The appointment of a school governor is a good example of something already falling within Clause 2. With our amendment all school governors, as we always intended but did not achieve, will be protected when in post. To give a further example, members of the management boards of the new NHS foundation trusts will also now be protected. I am grateful for the scrutiny offered. I hope that the noble Lord, Lord Skelmersdale, will withdraw his amendment knowing, as I say, that we have responded to his concerns and that we shall be coming forward with an amendment of our own.
Lord Skelmersdale: My Lords, I am not gob smacked—that is a very inelegant expression—but I am overcome. Of course I shall withdraw the amendment and will look forward to the government amendment when it appears at Third Reading.
The matter that I did not mention about this particular amendment is that Part 2 offers better protection in situations of direct discrimination and harassment. There is a lower threshold under Part 2 in respect of the duty to make reasonable adjustments—and these provisions relate to the Act not the Bill. Unlike Part 3,
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failure of the duty to make reasonable adjustments cannot be justified under Part 2. Therefore, I hope that when we see the government amendment at Third Reading these discrepancies will also be covered within it.
However, as I said, I am very pleased. I hope that this reassurance will enable us to make better progress on the Bill than might otherwise have been the case. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Lord Ashley of Stokemoved Amendment No. 3:
Before Clause 1, insert the following new clause—
"DISABLED PERSONS' RIGHTS TO INDEPENDENT LIVING
Persons with disabilities are to be entitled to the same choice, control and freedom as any other citizen, at home, at work, in education and as a member of the community."
The noble Lord said: My Lords, I move Amendment No. 3 as a declaratory clause at the suggestion of my noble friend Lord Carter. He rightly felt that as it was originally placed after Clause 3 it might be taken to refer only to public authorities: whereas a declaratory clause at the front of the Bill would, as I wish, apply to all disabled people in all contexts. But, as my noble friend Lady Hollis wisely said, the rights for disabled people must be not only declaratory but also deliverable. That is the essential point for us today.
I do not intend to speak in detail about the campaign for Independent Living's "seven pillars", which cover accessible housing, education and employment opportunities, advocacy services, community care, information and welfare benefits, including direct payments, because my noble friend Lady Hollis made it clear in Grand Committee that the Government are well aware of these aspects. Indeed, they are happily working on them.
The noble Baroness was right to point to all the actions taken by the Government to address these concerns. I am heartened that the Disability Rights Commission is working intensively on the Independent Living project, and that the Prime Minister's Strategy Unit is also dealing with it. In its report, the Prime Minister's Strategy Unit emphasised that past responses to needs have often created dependency instead of promoting independence, and that disabled people have been expected to fit into services rather than services being personalised to respond to individual need.
So, where does that leave us? When well meaning efforts are made to help disabled people. they could be undermining rather than improving the concept of independent living. Therefore, what is needed is a fundamental reappraisal of all our policies, with the

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achievement of independent living for disabled people as the clear and unambiguous goal. I believe that that is the major challenge to us as legislators. I hope that the House and the Government will support this new clause. I beg to move.
Lord Addington: My Lords, I totally support the aims of the noble Lord, Lord Ashley. I look forward to the Government's response and how they are going to try to work this provision in, because it must be included. It is totally in keeping with the logic put forward that this provision should be worked into the Bill and government policy.
Lord Carter: My Lords, my noble friend Lord Ashley named me as the person who suggested that the amendment, if accepted, should be treated as a declaratory clause rather than remaining in its previous place in the Bill, which we discussed in Grand Committee. We have received some briefing from the Disability Rights Commission on the issue. Obviously it agrees with the principle, but states that:
"We are currently compiling the evidence base for new enforceable rights in these areas and will shortly be conducting a full assessment of the costs and benefits. We will also be developing the necessary legislative provisions to give effect to this vision".
Does that mean that this could be done by regulation in some way and that it would be more defined, rather than the general and declaratory clause that my noble friend suggests? Perhaps the Minister could tell us of the Government's intention. Of course the amendment, in a sense, has been slightly overtaken by the recent publication of the Strategy Unit's report, which sets out a very exciting programme for the Government on how they intend to deal with the issues of disability up to, I think, 2025. If we link that in to yesterday's Statement on the DWP's five-year plan—and there is a lot in both those documents—and couple it with the work that the DRC is doing, would that be enough to satisfy my noble friend?
Lord Skelmersdale: My Lords, the Government have been very energetic, although they have come somewhat late to the area of disability discrimination. They have had three orders under the original Act—certainly two—and now have produced this Bill, which went through a pre-legislative scrutiny process. We have the report to which the noble Lord, Lord Carter has just alluded. It is clear that their intention is to pursue through legislation many of the elements contained in that report. Certainly, one of those would be the total inclusion of the rights of disabled people that are the subject of this amendment.
I agreed with the philosophy and principle in Grand Committee and I do not dissent from that now.
Baroness Hollis of Heigham: My Lords, the amendment moved by my noble friend aims to insert a new clause at the front of the Bill which would set
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out a declaratory statement on disabled people's entitlement to equal treatment in a range of areas.
As my noble friend anticipated, the Government have already made clear their commitment to extend rights and opportunities for disabled people so that they can participate fully in society. We have demonstrated this commitment through a wide range of measures. We were not late to the area—I think it was 1998 when, for example, the Government introduced their Bill on the DRC giving it teeth to intervene in promoting the rights of disabled people. So, ever since we have been in office, with the help of my noble friends Lord Ashley, Lord Morris and Lord Carter—to name but three; and I am sure that others will not mind my not listing them—we have been energetic in seeking to extend properly to disabled people the civil rights that of course they are fully entitled to exhibit and to hold. We have demonstrated this commitment through a wide range of measures. The Bill enables us to deliver further on our pledge.
The DDA, established by the previous Administration with all-party support, already provides significant protection from discrimination for disabled people and, once enacted, the provisions in the Bill—particularly those placing additional duties on public bodies—will ensure that disabled people will enjoy comprehensive rights. I know from comments in Grand Committee that this view is shared around the House, including by noble Lords opposite.
However, the Government recognise that promoting equality and independent living for disabled people goes far wider than simply legislating to outlaw disability discrimination. As my noble friend will recall, in debate in Grand Committee, I made reference—as my noble friend Lord Carter has today—to the then forthcoming publication of the Prime Minister's Strategy Unit report, Improving the Life Chances of Disabled People. That report was published on 19 January and sets out a 20-year vision and a radical strategy for achieving that vision. Independent living—increasing disabled people's ability to live independently at home, at work and in the community, by giving them more choice, empowerment and freedom—is one of the key areas addressed by the report.
Your Lordships will no doubt be familiar with the wide-ranging recommendations in the report, but I shall outline briefly those which are particularly pertinent to the issues raised by my noble friend's amendment.
The main recommendation is for a new system of individualised budgets—recommendation 4.5. That will bring together a range of different funding streams that help with personal care, support, equipment and adaptations. Disabled people will be able to use their individual budget in the form of cash—direct payments—directly provided services, or a mixture of cash and services.
There are also recommendations relating to the expansion of user-led organisations, such as recommendation 4.3, which will give disabled people access to advocacy services and support in using individual budgets, and to the availability of information and advice. Those of us who were involved in

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establishing direct payments many years ago will know that one of the biggest problems we faced in doing so was producing the support mechanisms for people to be able to manage budgets. For the first time in their lives they were employing people as opposed to being the recipients of other people's attention. It was a change in mindset which needed backing by very practical measure. I should like to think that we have some way towards achieving that.
This provision will build on other provisions that we have in place or are planned, such as the provision of £1.3 million funding in each of the last three years to support the development and expansion of self and citizen advocacy services in learning disability. I hope that your Lordships will welcome these measures which will bring about real improvements for disabled people.
The Strategy Unit acknowledged that many issues are still to be addressed in delivering this new system, which is why early pilots will be developed. I am assured, in response to the question from my noble friend Lord Carter, that we do not need regulations to do that. My department will be working closely with the Department of Health and the ODPM to take these matters forward.
In addition, and importantly, we will be setting up a task force for independent living. This will enable all those with an interest—Ministers, officials in central and local government, disabled people and other organisations—to develop further the thinking on independent living and individualised budgets. Disabled people will thereby be at the centre of a support system and not dependent on it. It should provide a forum for identifying options and opportunities that bridge the social care, health, employment and housing interfaces.
It is through the improved civil rights provided by the Bill, and practical measures such as those that I have outlined, that we will achieve greater rights to independent living for disabled people. As my noble friend knows, this amendment in itself would add nothing to those measures. However, as an opportunity to state our philosophy early on in today's Report stage, I hope he will acknowledge that he shares our vision and will therefore feel able to withdraw what is essentially a declaratory amendment.
Lord Carter: My Lords, before the Minister sits down, I do not think that she mentioned the proposal on disability issues in the five-year plan report which was discussed yesterday. It was proposed that an interdepartmental office be set up under the leadership of the DWP which would ensure that all departments involved in disability issues were brought together into one office and one committee. Presumably it will work within the DWP but have other departments working with it. I thought that we should have done this when I was in government, but I am delighted that we doing are it now.
Baroness Hollis of Heigham: My Lords, my noble friend is absolutely right, and I apologise for overlooking the point. When we come on to subsequent amendments,
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he will see that the DWP is seeking to take the lead on other initiatives which conventionally have lain with other government departments, precisely because my honourable friend Maria Eagle is the Minister for Disabled People. It is important that the energy provided by having that located within the Department for Work and Pensions helps to coordinate all our initiatives and keeps the energy flowing across government. I hope that, with those assurances, my noble friend Lord Ashley will be able to withdraw his amendment.
Lord Ashley of Stoke: My Lords, I thank my noble friend for that important statement. I would far sooner that the amendment was accepted by the Government. but I accept that the Government have made enormous strides for disabled people. Of course I accept my noble friend and the Government's good faith and promises. I am conscious of the need for brief speeches and short debates. However, this debate really has enormously helped independent living. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Discrimination by public authorities]:
Baroness Masham of Iltonmoved Amendment No. 4:
Page 3, line 32, at end insert—
"( ) In the 1995 Act, after section 21(2) there is inserted—
"(2A) In determining their duty under subsection (2), NHS hospital trusts shall ensure that adequate equipment is available to enable disabled persons to be diagnosed and treated to the same standards as other persons.
(2B) When assessing the reasonableness of providing equipment under subsection (2A), NHS hospital trusts must not refuse to provide equipment on the grounds of cost alone, unless those costs are grossly disproportionate.""
The noble Baroness said: My Lords. I have always been a supporter of the National Health Service. Amendment No. 4 ensures that adequate equipment is available to enable disabled persons to be diagnosed and treated to the same standards as other persons. Subsection (2B) states that the equipment should be supplied unless these "costs are grossly disproportionate".
Disabled people often find themselves in a very difficult situation if they go for an investigation or treatment and no suitable equipment is available. There has been a European regulation about moving and handling, the result of which is that hospital staff no longer lift patients. Staff are now protected. However, unless adequate equipment and training are available, both disabled patients and their helpers, if they have one, are being put at risk. If equipment such as examination plinths and X-ray tables do not raise and lower to the correct height, hoists and ramps can be used; otherwise a helper, who might be an elderly woman, might have to heave a disabled son or husband up, doing herself damage.
The noble Baroness, Lady Pitkeathley, who knows so much about carers, would have liked to be here to support the amendment, but she is interviewing today and cannot attend. She has, however, given me permission to say that she is concerned about this matter. She knows how important it is to have a

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correct diagnosis of a serious condition, and that carers are putting themselves at risk by being the only ones helping disabled people in these circumstances. Not having the correct facilities puts the disabled person in a very stressful position. If patients are denied access to diagnosis and treatment because they are not given adequate facilities, surely they are being discriminated against. So far, there is not a level playing Field.
I am sure that the whole House would want to protect hospital staff from injury. But I hope that the House will also feel that disabled people should not be denied treatment because the correct aids are not provided.
Disability covers so many conditions, including—to mention just a few—multiple sclerosis, rheumatoid arthritis, arthritis, motor neurone disease, learning difficulties and physical disabilities, amputation, some heart conditions, stroke, osteoporosis, chronic back pain, spinal injuries and cerebral palsy. There is a multitude of neurological conditions such as Parkinson's disease, polio, muscular dystrophy and brittle bones. The list goes on. One in five of the population has a disability.
Disabled people, like anyone else, can get cancer, gall stones, appendicitis and gynaecological problems, to mention only a few. They need assistance—not to have a blind eye turned to their needs as often happens at present. I attended a meeting on Tuesday where the speaker was the chairman of the Healthcare Commission, Sir Ian Kennedy, who works for improvement in the National Health Service. He admitted that there needs to be more knowledge about disability needs, but he is only one of many people.
I hope that this amendment will help to highlight an issue that is a health and safety matter for disabled people and their personal helpers. There are so many needs in the National Health Service and foundation hospitals that the needs of disabled people are often forgotten. Sometimes their only means of getting needs met is through litigation. That should be avoided at all costs; therefore, I beg to move this amendment.
Noon
Baroness Neuberger: My Lords, I support the noble Baroness, Lady Masham, in her amendment. Although I understand that financial considerations might make some additional equipment seem prohibitively expensive, it is commonplace for people with disabilities to find that they cannot access quite ordinary services within the NHS. Those of us who have worked in the National Health Service—many noble Lords are in that position—know from observation and experience that that is true.
However, there is also much research evidence from a variety of sources. I was particularly struck by the research commissioned by the Rowntree Foundation, from Jenny Morris, on the plight of people with physical impairments and mental health needs.
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Entitled One town for my body, another for my mind, it was published last year and makes the case extremely powerfully.
It seems as though services cannot comprehend that more than one thing or condition might need attention or special provision. In Jenny Morris's research, people describe being unable to get into a mental health unit because there was no ramp and they were in a wheelchair—hardly a major requirement for the NHS to think about and then provide. Similarly, inpatients found that services were so poorly organised that getting to meals or ordinary daytime activities was physically impossible. Steps up and down, and lack of ramps, lifts and hoists made it more and more dispiriting and impossible. That is clearly absurd; it is not equal treatment, or equal provision of services, or non-discriminatory, but it is commonplace.
In another example, a woman inpatient, Jane, described her room having,
"an incredibly heavy door. The shower was lethal: there was no alarm, no handrails or anything, and it was very slippery".
The research showed time and again that staff were not exactly unkind, they were just busy and not very helpful. This evidence, which has been accumulating now over many years, has convinced me that we must take the matter seriously. We must add to that our ageing population, with the number of people with physical disabilities therefore likely to grow, and their carers, particularly their partners, often growing old and frail alongside them.
If the Disability Discrimination Bill is to mean anything, it must mean those who fund, provide and work in public services taking such situations seriously. Exhortation and encouragement have not worked thus far. For that reason, I believe it right and appropriate to include this provision in the Bill, and I strongly support the amendment.
Lord Ashley of Stoke: My Lords, I, too, support the amendment. I am far from satisfied with the Government's response. Here we face a very familiar situation: a powerful case made by my noble friend, on the one hand, and the Government, on the other, saying that it adds nothing to existing legislation. We have heard that excuse so often that it is becoming threadbare. It does not wash because, as the noble Baroness, Lady Masham, said, disabled people are not getting the facilities that they need. That could be through prejudice or neglect or for any one of a hundred reasons.
If existing legislation is failing, as it is—the evidence from my noble friend Lady Masham in Committee and in this House was stunning—the Government should do something about it: they should accept this amendment. I hope that my noble friend Lady Hollis will see fit to change her view and talk not about the past and existing legislation but about this amendment and what it can do for disabled people.
Lord Carter: My Lords, I was tempted to support this amendment until I did some research on the matter. Before referring to that, perhaps I may say how

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struck I was by the noble Baroness's remark on the problems of lifting. I was reminded that for nine years, before I entered government, I was the executive producer of the weekly "Link" programme, which was broadcast every Sunday for people with a disability. My noble friend Lady Wilkins was also involved. We produced a video called "Link on Lifting", which is still in circulation. I have no financial interest in it whatever, but it is an extremely good example of how to lift and how not to lift.
It occurred to me when we discussed the issue in Grand Committee that it would be covered by Clauses 2 and 3, dealing with discrimination by public authorities. I was supported in that by the briefing from the Disability Rights Commission. I am not sure whether the noble Baroness has seen it. It says:
"The DRC believes that the public sector duty will provide us with the necessary instrument with which to tackle this issue. We are currently consulting on a draft Code of Practice explaining the requirements of the duty, and think this is an excellent example which we would certainly want to include".
It concludes:
"we are satisfied that the new public sector duty provides the firmest foundation for making progress on this serious problem".
There has been a gap in the legislation, which has led to the situation described by the noble Baroness and others. I hope that the Minister will be able to confirm that, once the Bill becomes law, Sections 2 and 3 will cover that satisfactorily, so that if a hospital were to discriminate through the non-provision of equipment, it would be caught by the new Act.
Lord Rix: My Lords, perhaps I may add a personal note. I have a daughter with Down's syndrome, aged 53, who now is totally incapacitated and has to be hoisted literally out of bed into an armchair to feed and so on. She has always to be lifted or hoisted. Therefore, I fully support the amendments. Unfortunately, my daughter is a frequent visitor to hospital. The one that she attends is very good in this respect but I know many others that fall short of those standards.
Baroness Howe of Idlicote: My Lords, I support the amendment and the intentions behind it, although there may be another way of dealing with it. The Government have come a long way—so far, that the proposed provisions should be an obvious part of the amended Bill. Apart from the very able way in which situations were described, two very important points—that one in five people have some form of disability, and the point about ageing made by the noble Baroness, Lady Neuberger—surely make the case so satisfactorily that the Government can accept the amendment.
Lord Walton of Detchant: My Lords, I, too, support the principle underlying the amendment. I spent 50 years in the clinical practice of neurology and carried out a great deal of research on muscular dystrophy and other neuromuscular diseases. In the early days, when I began that work, there was, I am afraid I have to say, an attitude of neglect, often relating to people who were
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seriously disabled by such diseases, who were never given the opportunity to receive the rehabilitation and support that their condition deserved.
There is no question that there has been a vast improvement over the past 50 or more years. Nevertheless, much more remains to be done. My only concern about the wording of the amendment is the use of the words "grossly disproportionate". I am concerned about how that wording in a legal document could be construed by hospital and other authorities. There have been so many new developments of sophisticated and highly expensive communication aids and much more that to provide everything that could conceivably help disabled people might just impose a financial burden upon the health service that it would be incapable of sustaining.
However, I hope that the Government will consider these matters sympathetically and carefully to see if they can come up with wording that would satisfy the very noble motives expressed by my noble friend Lady Masham and others.
Lord Turnberg: My Lords, I support the idea behind the amendments. I know that in theory at least any patient in hospital cannot be discriminated against but that is theoretical. As a practising physician for many years, now retired some years ago, I know that that practice was not always followed through. Although the wording may not be exactly what is required, I hope that the principle and the idea can be incorporated into the Bill.
Lord Skelmersdale: My Lords, in Committee, the noble Baroness, Lady Masham, moved a similar amendment on the problems from which disabled people suffer when on hospital visits, especially in radiography departments, where some people find that they are not given proper help to get on to beds so that they can be X-rayed, and so on. Various noble Lords have illustrated that this morning. The noble Baroness pointed out that patients with a disability should have the facilities to be diagnosed and treated; otherwise as the noble Baroness, Lady Neuberger, said, they are discriminated against.
The Minister gave the impression that there were other current duties, responsibilities and functions of hospitals elsewhere in legislation, and that the amendment proposed by the noble Baroness, Lady Masham, would add nothing to help. Clearly, if the Department of Health measures exist, they are not working. The question arises: "How can they be made to work?". The noble Baroness, Lady Masham, said that she would try to talk to the noble Lord, Lord Warner, on this. I do not know whether she has; but the situation is bad.
This Bill provides for a duty on public authorities. The Minister did not react when I said on the first amendment that hospitals were covered by the Bill. Was I right? If I am, I accept what the Minister said on that in Committee. The noble Lord, Lord Walton, is right that this new amendment differs only by the addition of the second paragraph. I have no doubt that the Minister will be picking holes in it, especially in the last two words, "grossly disproportionate", which

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refer to costs. Costs in the health service, and anywhere else where the Government have a role, are always extremely difficult. None the less, in recent years the Government have been literally pouring money into the health service, not always to the greatest effect. I am sure that many hospitals and hospital trusts could make much better use of the money that they are given, but that does not alter the fact that the situation is bleak. I do not know whether it is getting worse; some have suggested that it is getting better. None the less, something must be done, and done fast.
Baroness Hollis of Heigham: My Lords, this has been an interesting and important debate. The noble Lord, Lord Skelmersdale, and my noble friend Lord Carter were both exactly right that behind it is a misunderstanding of what this current Bill does. If the Bill works as we expect it to, I am confident that the bleak situation asserted by the noble Lord. Lord Skelmersdale, should no longer apply.
By amending Section 21 of the DDA, this amendment would require NHS hospital trusts to provide adequate equipment for the diagnosis and treatment of disabled people when considering their duty to make reasonable adjustments. Furthermore, as noted by the noble Lord, Lord Walton of Detchant, it would preclude the trust, when considering this aspect of reasonable adjustment, from refusing to provide the equipment on the grounds of cost except where the cost was "grossly disproportionate".
12.15 p.m.
We have considered the amendment. I sympathise with the situation of disabled people. All of us with family members who suffer from disabilities have been in somewhat analogous situations. However, this is a matter of the practical provision of health services, which needs to be considered and addressed by the NHS and its trusts. An amendment to disability discrimination legislation is the wrong approach, but also this amendment is superfluous in the light of existing and planned DDA provision. Coming back to the comments of the noble Baroness, Lady Neuberger, we are ensuring that adequate safeguards are in place to prevent discrimination against disabled people in the provision of hospital services, through the existing provision in Part 3 of the DDA, and the new duties that we are placing on public authorities in Clause 3. The noble Lord, Lord Skelmersdale, identified that exactly. We are doing in Part 3—because hospitals are public authorities in the most general sense—what the
noble Baroness is calling for. It is in the Bill; it has not been in legislation in the past, but it will be in the Bill, subject to the agreement of your Lordships and the other House.
Hospital trusts, as service providers, are already required even now under the old DDA to make reasonable adjustments to enable disabled people to
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access their services if it would otherwise be impossible or unreasonably difficult for them to do so. The Bill extends to adjustments to physical features, including certain equipment. That means that the example given by the noble Baroness, Lady Neuberger, of someone in a wheelchair seeking to enter a mental health unit should be overcome by the provisions in the Bill for portable ramps, and so on. Some of the service provisions have come into force only since the regulations of October 2004, and others will come through as a result of the Bill. I honestly and sincerely believe that together they render redundant the noble Baroness's amendment.
This goes back to the comment of the noble Lord, Lord Walton of Detchant. The amendment seeks to restrict trusts below that level in terms of practical provision in their consideration of what is reasonable, which is the test throughout the legislation, by preventing them making decisions based on cost alone except where that cost was "grossly disproportionate". But trusts would not make those decisions on cost alone. They have to consider the circumstances of a case, and balance a range of factors including issues such as practicability, staff training, the proximity of another hospital with similar highly specialised equipment, as well as costs. The long list of disabilities rightly quoted by the noble Baroness, Lady Masham, might suggest to many of us that that may require different responses according to the needs that disabled people bring to the health service. Those sorts of decisions may well wisely be left to the local health trust to respond to within the unavoidable framework pressing down on health authorities to ensure that their services under Part 3 as a public authority in no sense discriminate against disabled people.
The Department of Health is committed to ensuring that the NHS fulfils its duties under the DDA. It is already working with the Disability Rights Commission on measures to support the NHS in improving access to services. Together, they have produced good practice guidance with practical suggestions about how managers and healthcare staff can make a real difference to the way in which services are delivered for disabled people. Indeed, in examples quoted by the noble Baroness on Second Reading and in Grand Committee, the hospitals had made adjustments by providing appropriate equipment, but problems arose because in one instance the equipment was temporarily out of order and in the other it was temporarily in the wrong place.
That is highly regrettable, but that sort of human error may not be different to the situation when I was having a baby and the oxygen tank ran out halfway through; my husband had to drive around town looking for another oxygen tank. For the intermediate three hours I was without any pain relief. That was an error. I am not suggesting that my experience was more serious—it was probably far less serious—than the situation facing the noble Baroness. However, the point is that the oxygen tank should have been there, it should have been working, and there should not

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have been a problem. I suggest that this amendment would do nothing to address such occurrences. The hospitals were already fulfilling their broad duty, but there was human error. I hope that the noble Baroness will accept that the new duty that we are placing on public authorities—
Lord Walton of Detchant: My Lords, before the noble Baroness sits down, perhaps I may ask an additional question. Does she agree that the National Institute for Clinical Excellence has among its responsibilities a concern with the evaluation not only of drugs and other procedures in the NHS but the evaluation of aids to the disabled and that it is likely that it will continue to evaluate those and to give instructions to health trusts to use the appropriate aids for disabled people?
Baroness Hollis of Heigham: Yes, my Lords. That is my understanding. I am grateful to the noble Lord. I shall talk to my noble friend Lord Warner to make sure that any recommendations and good practice are disseminated as widely as possible.
I gently suggest that the amendment in the name of the noble Baroness, Lady Masham, would have been highly pertinent two or three years ago. Since then we have had the service regulations in October, only a few months ago, and the Bill's proposals. Together they achieve exactly what the noble Baroness has been calling for at the broader level. Within that, questions about costs and reasonableness have to be left to the local trusts in their wisdom, which most know what the call on their services will be.
If a disabled person suffers a substandard service from a hospital trust there is already a variety of means of redress through the NHS complaints processes and the local trust complaints procedures through to the health service ombudsman. In cases where there has been a breach of duties under the DDA, patients and their supporters and families may pursue the normal enforcement procedures, including seeking advice and assistance from the DRC and the conciliation service and by taking legal action through the courts.
I suggest to your Lordships that the amendment would add nothing to the Bill. The Disability Rights Commission—which I am sure all your Lordships would agree speaks for the disability movement overall and has been working closely with the Government on the Bill—agrees with the Government's reading of their responsibilities under the Bill. It concurs with the Government's view, not that of the noble Baroness, Lady Masham.
We have had a useful debate. I have promised that I will continue with my honourable friend Maria Eagle to take up issues and to press the Department of Health on issues such as standards for clinical excellence—we will do our best. This discussion has been useful and helpful in illuminating these issues in the health service. Given those assurances, I hope that the noble Baroness, Lady Masham, will be able to withdraw her amendment.
Baroness Masham of Ilton: My Lords, I thank all noble Lords who have spoken and especially those who have supported the spirit of the amendment. Yesterday I read in the Times that there is a huge backlog of many thousands of complaints in the National Health Service and it has had to take on extra staff unexpectedly.
After the Committee stage I wrote to the noble Lord, Lord Warner. That was at least 10 days ago. It shows how slow the Department of Health is to respond, because I have not yet received a reply. I am worried about such an important issue as equipment in the National Health Service being submerged with other public authorities. I am concerned about severely ill people who have an extra problem of an added disability, whatever it may be. The lists of disabilities that I gave concern those who have a problem with mobility; there are so many more.
I do not want the issue to be merged in; it is too important. Eminent doctors who have worked in the National Health Service for years have seen the problems as have I and many of your Lordships. Therefore I should like to test the opinion of the House.
12.25 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 80; Not-Contents, 103.

Division No. 1

CONTENTS

Addington, L.

Livsey of Talgarth, L.

Allenby of Megiddo, V.

Lyell, L.

Ampthill, L.

Maclennan of Rogart, L.

Avebury, L.

McNally, L.

Beaumont of Whitley, L.

Maddock, B.

Bowness, L.

Maginnis of Drumglass, L.

Brougham and Vaux, L.

Mar and Kellie, E.

Carlisle of Bucklow, L.

Marlesford, L.

Chester, Bp.

Masham of Ilton, B.[Teller]

Chorley, L.

Methuen, L.

Colwyn, L.

Neuberger, B.

Craig of Radley, L.

Newby, L.

Crickhowell, L.

Norton of Louth, L.

Dholakia, L.

Oakeshott of Seagrove Bay, L.

Dundee, E.

Park of Monmouth, B.

Dykes, L.

Peel, E.

Eden of Winton, L.

Redesdale, L.

Ezra, L.

Renton, L.

Falkner of Margravine, B.

Roberts of Llandudno, L.

Ferrers, E.

Rodgers of Quarry Bank, L.

Garden, L.

Roper, L.

Geddes, L.

Russell-Johnston, L.

Glenarthur, L.

Ryder of Wensum, L.

Goodhart, L.

Saltoun of Abernethy, Ly.

Greaves, L.

Sandwich, E.

Harris of Richmond, B. [Teller]

Scott of Needham Market, B.

Hooson, L.

Selsdon, L.

Howe of Aberavon, L.

Sharp of Guildford, B.

Hurd of Westwell, L.

Shaw of Northstead, L.

Hylton, L.

Shutt of Greetland, L.

Jopling, L.

Soulsby of Swaffham Prior, L.

Kimball, L.

Taverne, L.

Knight of Collingtree, B.

Tebbit, L.

Lester of Herne Hill, L.

Thomas of Gresford, L.

Liverpool, E.

Thomas of Walliswood, B.

379

Tordoff, L.

Walmsley, B.

Trumpington, B.

Walpole, L.

Ullswater, V.

Williamson of Horton, L.

Vallance of Tummel, L.

Willoughby de Broke, L.

Wallace of Saltaire, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Irvine of Lairg, L.

Ahmed, L.

King of West Bromwich, L.

Andrews, B.

Kirkhill, L.

Ashton of Upholland, B.

Lea of Crondall, L.

Bach, L.

Lipsey, L.

Bassam of Brighton, L.

Macdonald of Tradeston, L.

Billingham, B.

McIntosh of Hudnall, B.

Blood, B.

MacKenzie of Culkein, L.

Boothroyd, B.

Mackenzie of Framwellgate, L.

Borrie, L.

McKenzie of Luton, L.

Brookman, L.

Maxton, L.

Burlison, L.

Merlyn-Rees, L.

Carter, L.

Mitchell, L.

Christopher, L.

Morgan of Drefelin, B.

Clarke of Hampstead, L.

Morris of Aberavon, L.

Clinton-Davis, L.

Ouseley, L.

Condon, L.

Patel of Blackburn, L.

Corbett of Castle Vale, L.

Pendry, L.

Craigavon, V.

Plant of Highfield, L.

Crawley, B.

Puttnam, L.

David, B.

Ramsay of Cartvale, B.

Davies of Oldham, L. [Teller]

Randall of St. Budeaux, L.

Dean of Thornton-le-Fylde, B.

Rendell of Babergh, B.

Desai, L.

Richard, L.

Dixon, L.

Rooker, L.

Drayson, L.

Rosser, L.

Dubs, L.

Rowlands, L.

Elder, L.

Royall of Blaisdon, B.

Evans of Parkside, L.

Sainsbury of Turville, L.

Evans of Temple Guiting, L.

Sawyer, L.

Farrington of Ribbleton, B.

Scotland of Asthal, B.

Faulkner of Worcester, L.

Sewel, L.

Filkin, L.

Sheldon, L.

Gale, B.

Symons of Vernham Dean, B.

Gavron, L.

Temple-Morris, L.

Gibson of Market Rasen, B.

Tomlinson, L.

Goldsmith, L.

Triesman, L.

Graham of Edmonton, L.

Truscott, L.

Grocott, L. [Teller]

Tunnicliffe, L.

Harris of Haringey, L.

Turnberg, L.

Harrison, L.

Turner of Camden, B.

Hart of Chilton, L.

Wall of New Barnet, B.

Haworth, L.

Walton of Detchant, L.

Henig, B.

Warnock, B.

Hilton of Eggardon, B.

Warwick of Undercliffe, B.

Hollis of Heigham, B.

Wedderburn of Charlton, L.

Howarth of Breckland, B.

Whitaker, B.

Howells of St. Davids, B.

Whitty, L.

Howie of Troon, L.

Wilkins, B.

Hoyle, L.

Williams of Elvel, L.

Hughes of Woodside, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
12.36 p.m.
Lord Skelmersdalemoved Amendment No. 5:
Page 4, line 5, leave out from "Crown" to end of line 7.
The noble Lord said: My Lords, it is entirely reasonable that the Security Service, the Secret Intelligence Service and the government communications service, that we usually call GCHQ, should be excluded from the definition of "public authorities" for the purpose of the Act. It is also right
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that members of the Armed Forces should be excluded. As the Minister pointed out at Second Reading, the objective of the Armed Forces is to be trained and ready to serve in theatres overseas, whether to fight or peace keep, as we have and are seeing in Iraq at the present time, or to aid civil power in emergency, as is happening in the countries around the Indian Ocean affected by the tsunami.
I put down an identical amendment in Grand Committee to investigate why the Armed Forces should be excluded only when they are temporarily assigned to the Government Communications Headquarters. Although the noble Baroness told us that it was intended that the exemptions referring to national security are designed to ensure that information of a sensitive nature is not disclosed in proceedings under the DDA, this does not answer the point I was trying to make. Members of the Armed Forces should always be excluded from the Act, whatever activity they are engaged in, whether temporarily or not. I hope that they are and that the Minister will point me to an obscure section that says that they are. Assuming that she can, I see no need to have them in new Section 21B(3)(f). I beg to move.
Baroness Hollis of Heigham: My Lords, there may be confusion—although I suspect that there is not really—between the responsibilities under the Bill as regards employment—I confirm that the Armed Services are excluded from the disability discrimination responsibilities and duties regarding employment—as opposed to services where we do not think it is necessarily reasonable to exclude the Armed Forces simply because they are armed forces. As the noble Lord, Lord Skelmersdale, will be aware, the Armed Forces are already exempt, as I say, from Part 2 of the Act and we have no plans to remove that exemption, so I can give the noble Lord the assurances that he sought.
However, no such exemption exists in relation to Sections 19 to 21 in Part 3 of the Act, which deal with access to goods and services. Here we are not talking about Armed Forces training, fighting, in deployment or following their duties. For example, if an Army base were to open up its rifle range and invite members of the public to try their hand at target practice—that may seem a silly example but I am trying to make a distinction between employment and services here—or if it provided hospitals that civilians may use—that is relevant given our previous discussion—it would be offering a service. As such, it would be covered by the duties of reasonable adjustment in Section 21.
We intend to adopt a very similar approach for Armed Forces functions covered by Clause 2. If the Armed Forces were to engage in a public consultation exercise, they would need to ensure that disabled people were able to take part. Such consultations might be on whether to extend a firing range or allowing access to open spaces for the first time. Of course, in such circumstances, the features of Clause 2 that permit an authority to justify a failure to make an

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adjustment or less favourable treatment, or to argue that a particular adjustment is unreasonable, will also apply.
But we believe that it is appropriate for national security reasons to grant a limited exemption in respect of any functions that are carried out to assist GCHQ. This will ensure that sensitive information is not disclosed in court proceedings under the DDA.
With those assurances and an explanation of the limited exemption—we have no intention of changing the way the existing parts of the Act apply to the Armed Forces; the exemption simply replicates the equivalent provisions of the Race Relations (Amendment) Act 2000—I hope that the noble Lord will feel able to withdraw his amendment.
Lord Skelmersdale: My Lords, I understand the argument put forward to explain why the employment elements of the newly amended Act are excluded. I also take the point that the provision of goods and services needs to be excluded. As a child, I made a monthly visit to a military hospital for blood tests. It was the most convenient place that was equipped with rapid analytical services. So I am conscious of the example given by the noble Baroness. The other one I found, as I believe she did, a little strange. None the less, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Skelmersdalemoved Amendment No. 6:
Page 4, leave out lines 10 to 12.
The noble Lord said: My Lords, I apologise for having had to table this amendment. I have done so because in Grand Committee I was not quick enough to push the Minister to answer the question I had posed. At the time we were discussing whether the definition of "public" authority in Clause 2 should include Members of Parliament. I was concerned that no publicly elected authority should be excluded from the workings of the Act. I accepted that MPs, noble Lords, and Members of the Scottish Parliament and the Welsh Assembly should be excluded, as recommended in the report of the Disability Task Force, From Exclusion to Inclusion. That was on the basis that internal proceedings, Standing Orders and the like, should be used to secure reasonable adjustments for their Members. Furthermore, and perhaps more seriously, I accepted the Minister's comment that the imposition of non-discrimination issues in relation to Members of these directly elected bodies would put their activities in the realm of tribunals and, ultimately, the courts, so undermining the constitutional principle of "exclusive cognisance".
That is fine as far as it goes, and like the Minister I hope that these bodies will act as though they are covered by the Act. Certainly, as regards your Lordships' House, adaptations have been made that have made access for disabled people considerably better since I first arrived here. We have, to name but a few, lower pavements, ramps, drinking fountains and the provision of wheelchairs available to any who need them. All that is good.
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On that basis, after taking evidence from the House authorities, the Joint Committee agreed with the task force. None the less, the Government's watchdog in this area, the Disability Rights Commission, believes that this subject needs further consideration. I am sure that it will give it that consideration in due course and decide whether to make representations to the Government.
Grouped with this in Grand Committee was an amendment to which I believe the Minister did not respond properly. In my original perusal of the Bill I was struck by subsection (5) of new Section 21 B, which is the subject of this amendment. Not content with exempting nationally elected bodies and the other groups listed in subsection (3) from the workings of the Act, the Government are taking a power to exclude other persons of a prescribed description. This is potentially a very wide power indeed. We are entitled to investigate exactly why the Government feel it necessary to take it, and what sort of other persons might be covered by it. I beg to move.
12.45 p.m.
Baroness Hollis of Heigham: My Lords, although we discussed this amendment in Grand Committee, obviously I did not respond in a way that the noble Lord, Lord Skelmersdale, thought satisfactory. The amendment would remove the regulation-making power in Section 21 B(5) which is necessary in order to allow for some degree of flexibility in stipulating the bodies to be subject to the new provisions.
In our previous discussions I stressed that the Government's general principle is that bodies should not be excluded from these important new provisions unless there are very strong arguments that exclusion is necessary for such reasons as national security, the maintenance of judicial independence or the sovereignty of Parliament. But it is only prudent to allow for circumstances when it might be necessary to specify whether it is appropriate for a particular activity of a public authority to be covered by these provisions.
It is true that we could seek to amend the relevant new sections through primary legislation every time it was necessary to do so. However, that takes time and the Government do not think it an appropriate use of this House's time when the kind of exemptions we might need to make are most probably minor and technical in nature. An exemption might be needed for something as simple as a change in the name of a body. I noted also in Grand Committee that the Select Committee on Delegated Powers and Regulatory Reform is content with this approach.
Once again, there is no hidden agenda or anything suspicious here. All the bodies the Government intend to exempt from the duties are set out in Clause 2. We do not intend to use this power at present, but the flexibility it gives is comparable to other regulation-making powers that are already included in the Act passed by the previous administration. For example. Section 19(5) would allow the Government to disapply the duties imposed by Sections 19 to 21 to the provision of prescribed circumstances, while Section 28A(2) allows

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the Government to apply or disapply the duties imposed by Section 28A to prescribed circumstances. Section 35 would allow the Government to disapply Section 34 from prescribed taxi licensing authorities. I suspect that the noble Lord will again accuse me of speaking in Sanskrit, but I am trying to demonstrate that this is a conventional power taken over to some degree from the existing DDA.
With that assurance, I hope that the noble Lord will withdraw the amendment.
Lord Skelmersdale: My Lords, sometimes the noble Baroness speaks so fast that it is difficult to follow her. However, in her original example she mentioned Clause 19(5), which is set out in heavy type in the Keeling version she so helpfully provided earlier. It is therefore included in the Bill.
Having said that, I was not fast enough to pick up the other sections of the Act to which the noble Baroness referred. I understand that flexibility might be needed, but it is still a very vague form of flexibility. For example, the change of name of an organisation is often enshrined in legislation. We have considered numerous health Bills over the years in which bodies were either created or changed their name. Such changes are usually in the Act of Parliament, so I do not see why it should not be possible, in the Act of Parliament which changes their name, to amend this Act if that is appropriate.
I shall not pursue the argument today. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 7 not moved.]
Lord Higginsmoved Amendment No. 8:
Page 4, leave out lines 22 and 23.
The noble Lord said: My Lords, this amendment, tabled in my name and that of my noble friend, reflects a probing amendment moved in Grand Committee. However, as sometimes happens with probing amendments, one gets a surprising answer. We had not only a surprising answer, but a puzzling answer.
From the reply of the noble Lord, Lord Davies of Oldham, the provision is,
"a technical provision which is designed to ensure that the prohibition of discrimination in the exercise of public functions does not overlap with provisions elsewhere in the Act".
In the subsequent discussion he seemed to say that, if the amendment were accepted, it would mean that we were adopting a piecemeal approach—"piecemeal" was the crucial word—to making changes in the anti-discrimination provisions, of which we were in favour anyway.
The noble Lord said, for example, that the amendment,
"would indeed potentially enforce upon public authorities a narrow and very limited advance which itself would militate against meeting the standards to which we are already committed".—[Official Report, 13/1/05; cols. GC 75–76.]
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We were puzzled then why it would not be a good idea to adopt a piecemeal approach if that sped up the protection that the Government had in mind, rather than waiting until they go forward on any whole aspect of the matter. It is not in the least clear why going some way along a road makes it more difficult for you to reach its end. For that reason, we remain puzzled. Perhaps the Minister will clarify the situation. I beg to move.
Lord Davies of Oldham: My Lords, I am sorry that the noble Lord remains puzzled, and I hope to be able to resolve the issue in a way in which I was obviously not successful in Grand Committee. However, we have taken careful note of the discussion on that occasion, which helped to clarify our minds on how we tackle the issue.
Amendment No. 8 would remove one of the anti-overlap provisions from new Section 21B. Generally, anti-overlap provisions are necessary to ensure that different parts of the 1995 Act do not apply to the same situation at the same time. That avoids confusion for all parties and possibly the issue of double jeopardy. The debate in Grand Committee prompted us to look further at the points raised by the noble Lord. We seek to be clear that we achieve our policy intention. One very clear lesson that we draw from the debate is that the provision itself is somewhat less than clear, although I would not go so far as to say it was confusing.
The provision would be necessary if, and only if, three conditions were fulfilled. The first is that a public authority uses a transport vehicle in discharging public functions regulated by new Section 21B. The second is that the vehicle could be regulated under Part V of the Act. The third is that the Government must have decided not to use a relevant regulation-making power for public policy reasons. We looked at the matter further, and we cannot identify any situations in which all three conditions apply.
In their usual sympathetic way, noble Lords will be aware that there are times when public authorities use vehicles regulated by Part V—they may run local bus services, or specialised door-to-door services. But if authorities offer services to the public, or to a section of the public, they already fall within the scope of Sections 19 to 21ZA of the existing Act, and not the new provisions that Clause 2 would introduce. There is no overlap between new Section 21B and Part V in such situations, so new Section 21B(7)(c) appears unnecessary.
Authorities may also use buses to move their employees about. For example, a hospital might offer its employees a shuttle bus between two different sites. Such a situation would be regulated by Part II of the Act, because it is part of the relationship between the hospital and its employees. Again, there is no overlap between new Section 21B and Part V there, so new Section 21B(7)(c) appears unnecessary.
The only circumstances of which I can think where public authorities use vehicles in discharging functions that fall within the scope of new Section 21 B of the Act

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and are not covered by the existing provisions are police transporting persons under arrest in secure vehicles. But in such circumstances, the vehicles are not covered by the regulation-making powers in Part V of the Act, so there again does not appear to be an overlap.
We have consulted parliamentary counsel further on the matter and, in conclusion, the Government agree that this part of the Bill should be altered as suggested by the noble Lords, Lord Higgins and Lord Skelmersdale. I thank them for raising the question in Committee and persisting with it today, and for scrutinising this legislation so effectively. That is why we are here. I congratulate them. We are pleased to accept the amendment.
Lord Higgins: My Lords, I have repeated on previous occasions the remark by Iain Macleod that one does not shoot Santa Claus. I am delighted by the Minister's very clear exposition of the situation. I doubt whether those in another place would have come to the same technical point and reached such a desirable outcome. I hope that he realises that this will be a major plank in our general election campaign and will be declared a great victory of the Conservative Party over the present Government.
Lord Davies of Oldham: My Lords, I assure the noble Lord that they are fairly relaxed about the issue at the other end.
Lord Higgins: My Lords, be that as it may, I am grateful to the Minister. We have certainly made a major improvement to the Bill.
On Question, amendment agreed to.
Baroness Darcy de Knaythmoved Amendment No. 9:
Page 6, line 10, at end insert "and is therefore justified only in relation to acts that are in the public interest"
The noble Baroness said: My Lords, the amendment returns to the quest to ensure that the less well intentioned public authorities cannot use subsection (5) to justify discrimination against people with disabilities. That concern was raised by Sir Peter Large, who your Lordships will be aware died on 23 January. His vision, clear mind and meticulous attention to detail will be hugely missed. He sent me his thoughts for this amendment 36 hours before he died.
Sir Peter was delighted that the Minister had confirmed, in Grand Committee at col. GC 83 of the Official Report for 13 January, that both planning and planning permissions were covered by Clause 2 as functions, and that the DRC's guidance would distinguish between functions and services and explain how any areas of uncertainty were to be handled. Again, the Minister's response at cols. GC 83–84 fully clarified the meaning of the justification of a proportionate means of meeting a public authority's legitimate aim. That is very welcome. Sir Peter was still concerned that there needed to be very clear and firm guidance from the DRC in that respect. I hope that the Minister will confirm that that will be the case.
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Sir Peter's other concern was that the matters of public interest limitation should be in the Bill, coupled with "proportionate" and "legitimate aim"—hence the amendment. However, I am advised by a special adviser to the DRC that the question of whether something is in the public interest is incorporated within a consideration of whether the authority is pursuing a legitimate aim. That is already there. The specialist adviser continued:
"We would be concerned that adding the above words could actually make it easier for public authorities—for something to be in the public interest could be interpreted as purely a question on the relative numbers affected—rather than the degree of harm to the minority group—and crucially not including (as proportionality does) a consideration of whether there is an alternative policy which is less harmful of the minority group".
Heaven forfend. I would therefore be grateful if the Minister could confirm that her legal advice was the same.
My first amendment was too tight and my second too loose. I do not know whether Sir Peter would have hit on a third way but—subject to the Minister's assurance on DRC guidance and her legal interpretation of the effect of my amendment—subsection (5) has the balance right. I beg to move.
1 p.m.
Lord Oakeshott of Seagrove Bay: My Lords, we on these Benches share the concern of the noble Baroness on this issue and look forward to hearing the Minister's reply.
Lord Morris of Manchester: My Lords, again I congratulate the noble Baroness on her presentation of the case for the amendment. Like her and, I am sure, like very many others on both sides of both Houses of Parliament, I mourn the passing of Sir Peter Large. It was my great good fortune to have his friendship—ever closer as the years went by—from very soon after I entered Parliament over 40 years ago. I paid tribute to him in Committee, on 13 January, when noting that the source of the amendment moved there was Sir Peter. He was a man of dauntless courage, absolute integrity and excelling humanity, whose passing is an immense loss to the whole disability movement.
In his notes on the amendment, written the day before he died, Peter expressed his appreciation of a number of responses made by my noble friend Lady Hollis in Committee and to which the noble Baroness, Lady Darcy de Knayth, has referred today. However, he remained convinced that the way in which Section 21D(5) is now drafted could lead to some public bodies discriminating unfairly against some disabled people. He said that, to avoid that happening, there needs to be additional explanation of the legislative significance of the subsection in the notes to clauses and very clear explanations of its significance in the guidance that the Disability Rights Commission will produce on Clause 2.
While we cannot predict what issues will fall foul of the "legitimate aim and proportionate" ruling, examples could, in Sir Peter's view, include the closure of streets to

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traffic; car-free housing developments; establishing home zones; park-and-ride schemes; setting out nature trails; and introducing congestion charging and road charging schemes. All of these are extremely important and his fear was that without further guidance the interests of disabled people could be harmed.
Again, it appears that regulations made under Section 21D(7) will have effect only as a long-stop after some treatment or failure to comply has caused harm. Unfortunately, it may then not always be possible to effect redress retrospectively. I trust that my noble friend will, as before, respond as positively as she can to these concerns and indeed to all aspects of the persuasive case for the amendment so admirably moved by the noble Baroness.
Lord Carter: My Lords, like other noble Lords, I pay tribute to Sir Peter Large. When I was the Opposition spokesman on disability for some 10 years, I worked extremely closely with him and much more recently, as chairman of the Joint Committee, I had intended to visit Sir Peter Large, accompanied by my honourable friend Tom Clarke, who is a member of the committee, to receive his evidence because he was too unwell to come to London. In fact, on the day on which we had intended to visit him, he was again unwell and we never did make the visit. Much of what has happened in the disability area since the 1990s is down to the spade work carried out by Sir Peter Large over many years.
The amendment deals with a complicated, technical point, which I did not fully understand until it was explained to me by one of the specialist advisers to the Joint Committee, who assured me that it was correct, that the measure in the Bill is right and that there is a good statutory reason why the wording is as it is.
Baroness Hollis of Heigham: My Lords, like the noble Baroness, Lady Darcy de Knayth, and my noble friends Lord Morris and Lord Carter, I would also like to be associated with the tributes to Sir Peter Large. I came across him when under the tutelage of my noble friend Lord Carter. In the early 1990s I was deputy assistant second speaker on disability issues in your Lordships' House and I worked closely with DIG (the Disability Income Group) and with Pauline Thompson, who went on to become a good friend of many of your Lordships. First, the work of Sir Peter Large and then that undertaken by Jane Campbell on independent living turned the mindset of people like myself who came fresh to disability issues from a very different area. He will be hugely missed. His family will know that his achievements live on after him. He has made a most remarkable contribution to changing the mindsets of governments to a whole range of issues associated with disabled people.
Amendment No. 9 provides us with a further opportunity to consider the justification defences set out at Section 21D(5). The noble Baroness has rightly been determined that this should not be a get-out-of-gaol-free card for public authorities tempted not to
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meet their responsibilities to disabled people or even to trip easily into a sort of Benthamite head count—500 against 100, therefore 500 wins.
We discussed some of these issues in Committee and since then the discussions have moved on. The noble Baroness asked me to clarify two issues: first, whether the DRC will issue guidance on the correct interpretation of the justification defence at New Section 21D(5); and, secondly, whether the Government share the DRC's view that this amendment could weaken the protection that the subsection would afford to disabled people. I am glad to be able to reassure the noble Baroness on both points.
The Bill will give the DRC the power to issue guidance on all the provisions in Parts 2 to 5A of the Act, including the subsection we are discussing. In the briefing for today's debates, the DRC stresses that our debate on this clause in Grand Committee was very useful and that it would reflect those discussions in their revision of the statutory code of practice on Part 3 of the Act. So, yes, the DRC will issue guidance on this point and the Government will work with it to ensure that it conveys the full weight of this test.
On the second point, we share the DRC's view that the second prong of the test—the requirement that the action should be proportionate—carries the real weight of the test and ensures that the test is robust. We agree that the additional words inserted by the amendment could weaken the test, as mentioned by the noble Baroness; in other words, she feared that it could become looser. In addition, we are concerned that it could have undesirable and unforeseen consequences.
It is an important principle that concepts that apply across different strands of discrimination legislation should be expressed consistently. The form of words that the amendment would alter already appears in Section 14A of the DDA, in the definitions of indirect discrimination in the Race Relations Act and in the new regulations prohibiting discrimination in the area of employment on the grounds of sexual orientation or religion.
If we were to make the proposed amendment to Section 21 D(5) of the DDA it might imply that public authorities could have legitimate aims for the purposes of these other enactments that were not in the public interest. The Government would not wish to give that confused and erroneous impression.
I am grateful for the opportunity to revisit the issue. I hope that I have addressed the two concerns raised by the noble Baroness and given her the assurances that she sought. Therefore, I hope she will feel able to withdraw her amendment.
Baroness Darcy de Knayth: My Lords, I thank the Minister and all noble Lords for their remarks about Sir Peter Large. I am sure that Sheenah, his wife, will be very grateful for them. I also thank the Minister for her clear explanation of the legal interpretation and her further remarks about it already being a recognised point. It takes ages for case law to be built up so to start all over again would be a severe disadvantage. I am

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also grateful for the Minister's explanation of her assurance that the DRC guidance will be firm. With that very clear response, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Duties of public authorities]:
[Amendment No. 10 not moved.]
Baroness Hollis of Heighammoved Amendment No. 11:
Page 8, line 3, leave out "that is unlawful under this Act" and insert "of disabled persons that is related to their disabilities"
The noble Baroness said: My Lords, my late husband used to say that one thing you had to know about people was whether they like their compliments backhand or forehand. I think that the withdrawal of Amendment No. 10 counts as a backhand compliment to the Government.
Both on Second Reading and in Grand Committee we debated whether the drafting of the public sector disability duty set out in new Section 49A was sufficient to cover the full range of areas where public authorities might take action to improve the lives of disabled people.
I should like to pay tribute to the very moving speeches made by my noble friend Lord Carter and by the noble Lords, Lord Rix and Lord Adebowale—who sends his apologies for his absence today. I pay tribute also to the other speakers, including both the Front-Benchers and my noble friend Lord Ashley of Stoke. All of them put forward strong arguments and gave real-life examples which provided a strenuous test of how the duty was drafted. I pay tribute also to the work of the Disability Charities Consortium, which has worked in a very positive and constructive way both to highlight the issues of concern and to propose potential ways forward.
At the end of our last debate, I undertook to examine the arguments made by your Lordships—led by my noble friends Lord Carter and Lord Rix—and to consider whether the Bill as drafted, was sufficiently strong in encouraging public bodies to act in these areas. I am pleased to say that as a result of those deliberations, we are able to bring forward the amendments to this clause that stand in my name.
Amendment No. 11 is intended to ensure that public bodies consider how to eliminate harassment of disabled people as they exercise their functions. It is worded to make it absolutely clear that the focus of this duty is on the problems that disabled people face as a result of their disability. We would not wish to introduce a duty that was so unspecific that it might require public authorities to consider tackling, say, over-enthusiastic banter between rival football fans, if this were unrelated to disability, just because some of the fans in question were disabled.
Amendment No. 13 is intended to ensure that the duty requires public bodies to consider properly, when exercising their functions, what they can reasonably do to eliminate ignorance and prejudice in the wider community and what they can do to encourage disabled people to participate actively in public life.
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The Government believe that these two amendments will address the concerns expressed about the drafting of the duty and also the absolutely appalling instances—by which I was taken aback—that were raised in Committee. Public bodies will have a clear duty to have regard not only to the need to combat discrimination and promote equality of opportunity, but also to the need to influence attitudes and to educate people about disability. They will have a duty to create a climate where disabled people are fully able to participate in public life as school governors, directors of NHS trusts and as other players in the community.
The DRC recently started consultation on its draft code of practice on the duty to promote equality. The final version of the code will need to take account of any revisions your Lordships and Members of another place may make to the Bill. We will be engaging with the DRC to ensure that this code and all other planned guidance fully support the effective implementation of every part of this duty. So the DRC will use its promotional and enforcement powers to ensure that this duty is thoroughly embedded across the public sector.
With those remarks, I have absolutely no doubt that these government amendments will be supported by your Lordships' House today. I beg to move.
1.15 p.m.
Lord Carter: My Lords, Amendments Nos. 11 and 13 meet exactly the arguments that were produced in Grand Committee. I am delighted not to move Amendment No. 10 and I shall certainly not move Amendment No. 12. Amendment No. 13 improves on the drafting of Amendment No. 12, in the second paragraph of which we seek to establish,
"the need to promote civic participation of disabled people".
The government amendment speaks of the need to "encourage participation", which is stronger. I am extremely grateful to the Minister. She listened to the argument and accepted it.
Lord Rix: My Lords, like the noble Lord, Lord Carter, I warmly welcome the government amendments. They supersede our amendments which were debated in Grand Committee. As president of Mencap, I am particularly pleased to see our more than four years of campaigning on the issue of bullying and harassment, particularly of people with a learning disability, brought to a successful conclusion. Once again I take pleasure in thanking the Minister for her sympathetic understanding of the problems that face disabled people. Perhaps I may ask just one favour. Would she be kind enough to write to me giving me some idea about the implementation, the codes of practice and the role of the DRC in these matters? But for the moment, I shall shut up, sit down and once more say thank you.
Lord Addington: My Lords, "thank you" is the most appropriate thing to say here. Thank you to the Minister for bringing it forward and thank you to all those in government who won the fight to ensure that

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this provision was put in the Bill now. I know that these matters can sometimes be rather painful affairs, having been called in to watch one or two. This amendment means that there is a chance that the Bill will not be one in a succession of such Bills. It may be allowed to grow and progress in this field, rather than require us to go back and draft another Bill in order to rectify any problems that emerge. The amendment allows the Bill to be progressive. For that reason it should be doubly welcomed.
Lord Ashley of Stoke: My Lords, perhaps I may very briefly congratulate the noble Lord, Lord Carter, on this achievement and, even more rarely, congratulate my noble friend Lady Hollis on the Government's acceptance of it.
Lord Tebbit: My Lords, I wonder whether the Minister can give us some examples of what she would expect local authorities and other public bodies to do to promote the interests of disabled people. It would be helpful if we knew what she had in mind. I am always worried about legislation that is vague and sounds wonderfully good when we are perhaps not quite certain what it would require people to do.
Baroness Hollis of Heigham: My Lords, I should like first to say how much I appreciate the warm response for the amendments. The noble Lord, Lord Addington, made a very apt remark by describing this amendment as progressive. One of the phrases that I have been using in discussing the Bill is, "We want to bank this but continue to build". This is a bank-and-build Bill in which in all cases I am trying to see how we can ensure continued momentum and not simply write the legislation off after it is passed.
The noble Lord, Lord Tebbit, asked for examples. The sort of thing that I would expect—I am inventing an example off the top of my head—is that disabled people should have a full role to play on school governing bodies. Why? Not only because, as individual citizens, they have a right to participate in aspects of public life in that way, but also because they have a particular experience to bring to bear which might be of real value in a school's response to the needs of certain disabled children. They can perhaps bring an added value.
What might a local education authority or chairman of governors do in that situation? I would expect that when they are canvassing or setting out terms for parent elections, they will encourage disabled people to put themselves forward and make themselves known to the local authority. As a leader of a local authority, I worked off a list of those who wished to be school governors. We hope that they will put their names forward and indicate in their qualifications that this is a positive value that they could bring to the board. Some of these governors will be elected, if they are parent-governors, and that will still be a matter for the parents.
In that way we can positively encourage disabled people to come forward and positively encourage others to recognise not only their rights but the
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additional and valuable contribution that they could make, say, in schools. As I say, I am inventing an example. That is something that is not done now in my experience but could be done.
Lord Tebbit: My Lords, I am grateful to the Minister for giving way. She has given a very good example, but I hope she will understand that it makes me slightly uneasy when she says that it came off the top of her head. I would have thought that it had been carefully considered in the department earlier, together with a lot of other good reasons.
Lord Skelmersdale: My Lords, before the Minister answers that, will she accept that these two amendments, which have rightly been welcomed on all sides of the House, are about social inclusion and that is why they are necessary?
Baroness Hollis of Heigham: My Lords, yes, I could go on to develop some of the points raised by the noble Lord, Lord Rix, about seeking to change attitudes towards people with learning disabilities. Often there are quite unacceptable responses and stigma—ill-informed, ignorant and so on—whether it be in cafes, restaurants, hotels or wherever. We want local authorities and those bodies to have a positive attitude and to recognise the rights of disabled people and how they can fully partake in public life. We also want to encourage the rest of society—not only employers but service providers and the like—to recognise the valuable contribution that disabled people, whatever their disability, can make to that society. I am expecting the DRC to be up there, actively helping us do precisely that.
I hope that, with those remarks, your Lordships will feel able to support the Government's amendment.
On Question, amendment agreed to.
[Amendment No. 12 not moved.]
Baroness Hollis of Heighammoved Amendment No. 13:
Page 8, line 9, at end insert—
"(e) the need to promote positive attitudes towards disabled persons; and
(f) the need to encourage participation by disabled persons in public life."
On Question, amendment agreed to.
Lord Skelmersdalemoved Amendment No. 14:
Page 8, line 14, leave out from "includes" to "; but" in line 15 and insert "every body or other person specified in Schedule 1A or of a description falling within that Schedule"
The noble Lord said: My Lords, the Bill as currently drafted defines a public authority as,
"any person certain of whose functions are functions of a public nature".
That definition is the same as that used in the Human Rights Act 1998.
There appears to be a problem here. The Joint Committee on Human Rights, in its recent document, The Meaning of "Public Authority" under the Human

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Rights Act—that is the seventh report of the Session 2003–04—highlighted that this definition has been applied by the courts in an inconsistent and restrictive manner. This has left those providing important public services from the state and private sectors uncertain of their responsibilities. While pure public authorities may be clear about their obligations, hybrid organisations, such as voluntary sector service providers about which we will speak a little later, funded by statutory services and registered social landlords may not.
It has therefore been suggested to me that public authorities be defined in the Bill by the provision of a list. We consider that there is an imperative need for certainty as to who is and who is not subject to the new positive duties. This would enable public authorities and the public, in particular disabled people, to know with absolute certainty which authorities are subject to the statutory duty. The provision of a list would also make the Bill's duty on public authorities consistent with other discrimination legislation such as the Race Relations Act, which also provides a list of public authorities.
The point made by the Minister in Committee that lists get out of date is well made, so Amendment No. 15 enables the Government to legislate to amend the list should it be necessary. It is clear that any such list should be kept under review. With the backing of the Joint Committee, I beg to move.
Lord Carter: My Lords, the noble Lord, Lord Skelmersdale, is correct in saying that in the Joint Committee we debated extensively whether there should be a list of public authorities or the general authority as set out in the Bill. On balance, we came down in favour of the list, but the argument was a fine one.
I see that the noble Lord has 60 authorities and I assume that it is the list from the Race Relations Act. He indicates that I am right. It is of course in the Race Relations Act and the Northern Ireland legislation, but it is not in the Human Rights Act. The Government have argued that a list quickly becomes out of date.
If we were to have a list, I should have thought that it would be appropriate to use the negative procedure rather than the affirmative procedure. Merely to change the name of an organisation, or something of that nature, it would seem odd to use the affirmative procedure in Parliament. We argued the matter in the Joint Committee and on balance we just came down on the side of the list. However, I equally understand the Government's argument that a list is quickly out of date and that even with the negative procedure parliamentary time would be needed if anyone cared to pray against the order. I shall be interested to hear what the Minister said.
Baroness Hollis of Heigham: My Lords, the noble Lord, Lord Skelmersdale, raised an issue we touched on in Committee; that is, how to ensure that the public sector duty is properly applied across the whole range
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of public authorities. How do you make sure that it applies where we want it to and does not apply inappropriately?
These amendments seek to replace the generic definition of "public authority" with an approach based around a prescriptive list of bodies. It has been argued that only by having a list can bodies be sure who is covered and only by having a list can people outside have confidence that they are covered.
I disagree. The Government have thought about this very carefully and have tried to sort out whether we should go down one path or the other. We believe that the best approach is to set out a clear statement of principle that bodies which carry out functions of a public nature are subject to the duty in the new Section 49A unless the law expressly excludes a body from the coverage of the duty. This approach is similar to that adopted in the Human Rights Act. The Joint Committee on Human Rights—and this is important—did not believe that generic definitions should be replaced by a list, but instead be backed up by guidance. Therefore, there is a discrepancy between the Joint Committee on Human Rights and my noble friend's committee.
However, the DRC can issue guidance, so we are consistent with the approach. That approach is similar to that adopted in the Human Rights Act and others in which a generic definition of "public authority" is used; for example, the Companies (Audit, Investigations and Community Enterprise) Act 2004.
Let me explain why we believe it to be the case. First, last year the Joint Committee on Human Rights considered in some detail the meaning of "public authority" in the Human Rights Act. It considered whether it was appropriate to recommend a list-based approach as an alternative, but dismissed the idea as it did not feel that it would be advantageous to do so. It felt that a generic definition avoided the risk of a list becoming restrictive in its application, and that even with a list there was still room for judicial interpretation. It was talking about the term "public authority" in relation to the Human Rights Act, but we think it has relevance here.
Secondly, I think it is clear to those people working in public bodies that they are carrying out functions of a public nature. The police know that; the NHS knows that; teachers working in schools know that; as do people working in government departments and local councils. I do not believe that anyone would argue that these key bodies are not public authorities, so there is no advantage in listing them.
That leads me to my third point, which I think is well illustrated by the list of bodies created by the amendment. The amendment proposes a list of bodies and a mechanism for amending it by regulation. That list, in the view of the Government, does not go far enough. While impressive in coverage, it fails, for example, to take account of the full range of bodies disabled people would expect to be covered. For example, important parts of the NHS, such as strategic health authorities, would not find themselves subject

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to the duty with the list as it currently stands in the amendment. I suspect that if we were to scratch away we would find others which had not been included.
For the list to cover the public sector properly, the list would need amending regularly as the public sector changes in a way that is unnecessary if a generic description or a definition of "public authority" based on what bodies are, and what they do, is applied.
Therefore, we believe that a generic definition is stronger and more helpful. We believe that the presumption that the duty applies across the public sector is a strength. It is a principle that the public sector understands and it is a principle which ensures that the duty continues to apply and cannot be allowed to become out of date, for example, by a government failing to amend a list promptly.
These amendments would undo all of that and, therefore, the Government are opposed to them. Perhaps I may say that the Disability Rights Commission prefers the Government's approach—the generic approach—and is right. Given those arguments, together with the fact that the DRC favours the Government's approach, I ask the noble Lord, Lord Skelmersdale, to withdraw the amendment.
Lord Ashley of Stoke: My Lords, my noble friend puts her case very well. I, too, was torn between the two paths and was, at first, inclined to support the views of the noble Lord, Lord Skelmersdale, but I have changed my mind because, when one thinks of the problems and difficulties associated with a list, one realises that the matter will become embedded in a fog of confusion. The fact that the list will quickly become dated is crucial. We would have amendment after amendment to the list and people would not know where they were.
I cannot believe that any list, however comprehensive, would cover all the organisations, so, by definition, those organisations that are not on the list would be deemed not to come under the Act. That would be unfortunate. That problem, as my noble friend said, can be met by a statement of principle. I am strongly opposed to the amendments, formerly having been a supporter of them.
Lord Skelmersdale: My Lords, I accept, of course, that the arguments are extremely finely balanced, as the noble Lord, Lord Carter, said. They are so finely balanced that the noble Lord, Lord Ashley, has changed his mind since we last considered these matters. I also recognise that the DRC and the Royal National Institute for the Deaf are opposed to the amendment, whereas the Law Society has promoted it. I shall consider what has been said. I certainly take seriously the criticisms of the amendment, especially the new schedule that it proposes. This matter really boils down to the fact that the Government do not wish to keep such a list up to date. That is probably the truth of the matter.
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Finally, I was surprised not to be teased on my natural aversion to lists, about which I spoke in Committee and, I believe, at Second Reading as well. I would have faced that criticism, had it arrived. It has not and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 15 not moved.]

European Union
1.33 p.m.
Baroness Symons of Vernham Dean: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Foreign Secretary. The Statement is as follows:
"With permission, Mr Speaker, I should like to make a Statement on prospects for the European Union over the next year.
"A year ago, I made a number of proposals to the House to improve the way in which the Government are held to account for the conduct of European Union business. One of these was the publication of regular White Papers on Prospects for the European Union, the first in April last year (Cmnd 6174). As with the White Papers which I published on the EU constitution negotiations, I hope honourable Members will feel that this fuller and more timely information on EU business has helped to stimulate wider debate and discussion. Such discussion shapes and strengthens the Government's position in European negotiations.
"I am. therefore, today publishing a White Paper setting out prospects for the European Union in 2005. Let me highlight three of the main areas of work which it covers: on enhancing prosperity across Europe and in this country; on working together to tackle common threats to our security; and on preparations for the United Kingdom's presidency of the EU later this year.
"In the European Union, Britain is part of the world's largest common market of 450 million consumers—giving new opportunities to our businesses, greater choice and quality to British consumers and boosting jobs and growth here and across Europe. But there is more to do to ensure that we get the maximum benefit from that market, by pursuing further liberalisation and reform.
"We will, therefore, continue negotiating a directive to liberalise services across the EU. Services account for 70 per cent of the EU's output, but at present only 20 per cent of trade. Creating a true single market in this sector would boost growth in the EU and improve the price, choice and quality of services on offer to businesses and consumers. The Government are also working for better implementation and enforcement of the Financial Services Action Plan, which offers great benefits in another sector where this country is particularly strong.
"We are also working to ensure that European Union law, so vital for the operation of the single market, is the most effective possible for business.

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The Government have been working closely with the Irish, Dutch and Luxembourg presidencies on regulatory reform in Europe and we have now extended that to include the Austrians and Finns, who follow us in the EU presidency next year. I also welcome the strong lead from Commission President Barroso, whose five-year plan, published on 26 January. made clear that better regulation is a priority for the new Commission. We will be working with the Commission to ensure we have better assessment of the impact of new proposals and systematic reviews of existing EU legislation.
"The White Paper also highlights the continuing negotiations on the European Union's budget. The Government are working especially with Germany, France, the Netherlands, Austria and Sweden, to ensure that future EU budgets are limited to 1 per cent of Europe's economic output and that this money is spent where it most adds value. We also continue to make clear that the UK's budget abatement remains fully justified. We, like all other countries, have a veto on any changes proposed in this area.
"As well as the economic aspects of our EU membership. the White Paper also sets out many areas in which our common work in Europe makes the United Kingdom safer and more secure. It shows how we are improving co-operation between police forces and other authorities so as better to tackle international organised crime and terrorism across national borders. It highlights our work to ensure that European measures to stop asylum-shopping and to create a level playing field on asylum across the EU are properly implemented and evaluated. It describes work on concluding readmission agreements with countries outside the EU.
"The coming year will be an important one for the EU's crisis management and aid operations abroad, which themselves make a direct contribution to our own security. The largest EU military mission to date will help to build stability in Bosnia, under a British commander, Major-General David Leakey. EU police missions will continue to work in Bosnia, Macedonia and the Democratic Republic of Congo. A new European Defence Agency, under a British chief executive, Nick Witney, will increase Europe's capacity more quickly to deploy effective forces in response to international crises and ensure that they can work better together.
"The Government will continue to play a leading part, along with France and Germany, in European efforts to ensure that Iran's nuclear programme is for peaceful purposes. What we have decided to date, with Iran suspending the processes which could produce fuel for a nuclear bomb, demonstrates the value of this common approach.
"The EU is the largest provider of development assistance in the world. As well as delivering Europe's contribution to reconstruction in the areas hit by the tsunami in Asia, we will work to strengthen the EU's work to support Africa.
"As the House is aware, the United Kingdom will hold the presidency of the European Union from July. Our presidency will focus on the themes of
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security, stability and prosperity, both within the EU and outside. Africa and climate change, the priorities of our concurrent presidency of the G8, will be important parts of the European Union agenda. We will continue to push for economic reform and better regulation in Europe to deliver long-term improvements in growth and we will steer preparations for the next stage in the world trade negotiations.
"This White Paper makes clear the central importance for the United Kingdom of our work throughout the European Union. And it shows Britain delivering in Europe—delivering because we are engaging with our partners on issues which no country can tackle alone.
"This Government has put Britain hack where we belong: not carping from the sidelines, but as a leading power in Europe. We are winning clear benefits for British consumers, for British businesses and for British families in areas which make a real difference to their lives. Through Europe we are increasing Britain's power and influence in the world.
"Our approach has helped us to deliver the European Union's greatest ever enlargement and agreement to historic membership negotiations with Turkey which will begin in October under our presidency. It has got us a European Commission which has made jobs, growth and better regulation a top priority; European defence arrangements which work with, not against NATO; and European co-operation on foreign policy which is delivering real results, as in Ukraine. And, again thanks to this Government's approach, we have delivered a constitutional treaty which every other country in Europe is calling a great British success. I look forward to debating the facts of that treaty, not the myths of the party opposite, in the months ahead.
"Ten years ago this country was isolated in Europe. Today we are where we belong: leading reform in Europe, and working together to enhance Britain's prosperity and power. That is the difference between this Government and those who want to detach us from Europe—a difference which is clear from this White Paper. We are confident about Britain's future in Europe; and we are determined to continue shaping that future in the interests of businesses and people in this country. I commend this White Paper to the House".
My Lords, that concludes the Statement.
1.42 p.m.
Lord Howell of Guildford: My Lords, I am grateful to the noble Baroness for repeating the Statement, particularly as this is the middle of lunch, which is not a very congenial time and may account for the slightly thin attendance of noble Lords on either side. Nevertheless, this is an important Statement, not least because of our forthcoming presidency of the European Union from July and Britain's presidency of the G8 throughout the whole year, although I think that Ministers will find that the presidential chair is not quite as marvellous a position

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from which to change things as some of these statements seem to indicate. Experience tells us otherwise on that point, but that remains in the future.
We all recall the similar White Paper last year, Prospects, and the need to update that halfway through the year since, as always, prospects have a maddening habit of not turning out exactly as planned. I know that was intended at the halfway stage and maybe we will have another halfway paper this year.
This year we learn that the Union has a multi-annual strategic programme as well as various action plans and our old friend the Lisbon agenda, which was going to transform everything and in relation to which the wording in this year's Prospects is identical—except for the change of date from 2002 to 2003—to last year's Prospects. If strategic programmes and Lisbon agendas could create jobs we would have a very different situation from the one that is faced now in Europe in which, for instance, Germany has to cope with 5 million unemployed.
Will the Minister concede—I am pretty sure that she will not but it is worth asking—that there is a good deal of opinion and propaganda in this document which does not exactly match the facts? For instance, the new constitution does not, as the document claims, clearly set out,
"the European Union's powers, rights and duties".
On the contrary, it greatly blurs them with all the talk of shared competences, as many completely unbiased legal experts have pointed out.
The White Paper says nothing whatever about the higher legal order which this new constitution imposes on us. It says nothing about the further damage to our trade and investment which the constitution involves and which I think the majority of British businessmen are now rightly concerned about. It says nothing about the loss of veto under the new constitution in—I do not know how many areas, is it 51 or 63? We have a different number all the time. It says nothing about the huge opportunities for a better Europe which rejection of the constitution would open up, including opportunities for radical agricultural and fisheries reform, but much more as well.
To quote the Foreign Secretary's words, which the noble Baroness has repeated, I too look forward to debating the facts of the new constitution and not the myths of the party opposite.
The paper is robust about the budget—that is very good, although I hope that holds against the arguments and opinions of other very weighty voices in Brussels, but it is quite frank that the Lisbon agenda has been a flop. The services directive, which is mentioned in the Statement, has presumably now been sunk by the latest view taken by the French, who are determined to oppose it.
Is it not a fact that the continental economies have been brought to a standstill by the outdated European social model, which appears to be just as much behind the revamped Lisbon mark two agenda announced yesterday as it was behind mark one? The point that in
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this information technology age economic growth is more grassroots driven than ever before, has clearly been grasped increasingly by China and India but not it seems by the social democrats in Brussels or their Whitehall apologists. Does this paper not confirm that control over much of our asylum and immigration policies has indeed been surrendered, with more to come?
Lastly, on the foreign affairs side, the Foreign Secretary, Mr Straw, writes that,
"a unified Europe carries more clout in all these areas".
That is probably not true in this network age, but even if it was, it would be valid only where the whole European membership was agreed—which is patently not so on the Middle East, which is the most crucial and sensitive area of foreign policy of all. As for our concerns about Zimbabwe, that gets only a flick on the wrist in this Prospects paper. On Africa, could we please make sure that European Union aid initiatives—which have rightly had a very bad press—are confined to co-ordinating rather than complicating our own on the whole rather effective aid programmes. A fifth wheel on the coach is not necessary.
My belief is that the best kind of Europe, for whose freedom and unity so many of our citizens have fought and died, comes from the grassroots and the people and is not imposed by elites. That is why we want to bring this issue of the right way forward in Europe to a referendum as soon as possible. Can the Minister therefore firmly and finally refute the story that this Government would—should they be re-elected—try to put it all off for almost another two years? That really would be a slap in the face of democracy.
1.48 p.m.
Lord Roper: My Lords, I join with the noble Lord, Lord Howell of Guildford, in thanking the Minister for repeating the Statement, even if I cannot share all the other sentiments which he expressed. It is also extremely useful that we have an opportunity to comment, if briefly, on the White Paper published this morning. I want to turn to that question of our parliamentary consideration of these matters at the end of my remarks.
The White Paper is a very valuable document. It adds to the information and transparency of the work of the European Union and sets out a large range of areas where the Union makes a substantial contribution to this country and its citizens. It is certainly a valuable contribution to the wider debate on the European Union, which is an essential precondition for the referendum on the European Union constitutional treaty, which we are told we should expect next year.
I will raise some questions on the three areas that the Statement sets out as being central to this paper. First, I address the issue of enhancing prosperity across Europe and in this country. On the issue of the Lisbon agenda, I am also concerned that when Wim Kok, the former Dutch Prime Minister, prepared his report he

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suggested that the ambitious Lisbon agenda had not been achieved. It is therefore important that President Barroso has set out some further actions.
I hope that the fact that there are references to the liberalisation of services in the Statement and in the White Paper will ensure that the Government, together with a number of partners in the EU, will pursue this matter. There is no doubt that there are differences of view in the European Union on this issue, and it is important that we build support to carry this into effect.
The paper also refers to the Government's use of their presidency to continue the development of a European Union medium and long-term strategy for tackling climate change. I am particularly grateful to see that another priority will be to advance our air transport White Paper commitment to include aviation in the EU emission-trading scheme. It would be useful if the Minister could tell us when that is likely to happen.
I now turn to the second part of the Statement, which refers to the work of the EU in tackling common threats to our security. I am glad to see that the way in which the EU has been able to take over responsibilities from NATO in Bosnia is referred to. But it is also important that we get more information about the role of the European Defence Agency, to which some reference is made in the paper. There are some people who want to ensure a way of having a closed European market for defence procurement. I believe that that would be a great mistake. I hope the Minister agrees that it should be an instrument enabling us to use our resources together to ensure better value for the money that European taxpayers spend on defence and so that we are able to deploy our forces more effectively together. Would the Minister agree that if that is done, we could have a win/win relationship as far as concerns the European Union and NATO? Would she also agree that we can avoid the zero sum definition of the relationship between the European Union and NATO that is sometimes suggested?
Penultimately, I come to the issue of the presidency. Would the Minister agree that, while the presidency is a period when it may be difficult to take too many initiatives because one is trying to build consensus, the concept that has been developed, of having a chain of presidencies linked together and working together, may enable the presidency to exercise more influence?
Finally, I turn to the issue that is referred to in the opening paragraph of the Statement. The Foreign Secretary refers to a number of proposals he made in his Statement last year to improve the way in which the Government are held to account for the conduct of European Union business. One of those proposals was for a new committee, involving both this House and the other end, to consider European Union matters. I do not expect the Minister to give me an answer today about what has happened to that, but I should say that some of us will be pursuing through the usual channels the way in which that committee, which we discussed and considered in the Procedure Committee, could come into effect.
1.53 p.m.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lords, Lord Howell of Guildford and Lord Roper, for their responses. I particularly thank the noble Lord, Lord Howell, for his appreciation of us being here when many of our colleagues are not, and the noble Lord, Lord Roper, for his fuller appreciation of the content of the Statement.
The noble Lord, Lord Howell of Guildford, is right. This is an important Statement. But having listened to his colleague in another place, Mr Ancram, I point out to him that he took a rather different view from Mr Ancram, who asked my right honourable friend the Foreign Secretary why he had bothered to make the Statement. I am glad to have an appreciative audience in the noble Lord, even if he is in a rather lonely position in his party.
The noble Lord said that the presidential chair is not an easy chair to occupy in the European Union. He is quite right. A number of us remember that from when we last held the presidency, in 1998. It is not easy. But I remember that on that occasion my right honourable friend the Prime Minister was able to make considerable headway, for example, over Turkey's candidature for the European Union. The noble Lord will recall that at that time the Prime Minister was in a lonely position in the EU. I believe that subsequent events have shown how right he was to stick with Turkey's candidature because, in holding out that possibility for Turkey, we have seen so many economic and, particularly, human rights reforms in that country. It shows that a firmly and properly handled presidency can deliver good results.
We want to keep papers up to date. That is why my right honourable friend has published this White Paper. We want to ensure that there is a proper, full and honest debate about the constitution. which will have to be considered in due course.
Both noble Lords were very concerned about some of the issues in the economic and social reform agenda, the so-called Lisbon agenda. The noble Lord, Lord Howell, thought that we had not made a great deal of progress. The fact is that, although there has been action on the Lisbon agenda, much more needs to be done. I shall enumerate some of the things that have happened. Six million jobs have been created in the EU since 1999. The opening up of EU telecommunications has reduced the cost of telephone calls. In this country, they have been reduced by about 50 per cent. The liberalisation of EU energy markets is bringing about better pricing and efficiency. The opening up of air transport has created new and rapidly growing markets in budget airlines. We have seen a number of things that are the direct result of the Lisbon agenda.
Both noble Lords are quite right that more has to be done. The noble Lord, Lord Roper, mentioned Wim Kok's November report and the commission made clear that we have to go further, particularly in meeting the challenges of global competition and demographic change. A more business-friendly Lisbon programme was announced yesterday. It is focused on generating

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growth and jobs, and on improving the quality of regulation to make sure that it does not impose unnecessary red tape in the European Union. I believe that that goes to the point made by the noble Lord, Lord Roper, that these are issues that are, as yet, unfinished, incomplete business.
The noble Lord, Lord Howell, said that he hoped that we will be able to debate the EU Constitution but that he did not feel that the paper that Her Majesty's Government have recently published on this issue sets out the real competencies of the EU. I take issue with him over that. For example, we have tackled the issue of EU primacy. Time and again, I have heard from the Benches opposite that this is the first time that we have had EU primacy in legal matters. But we all know that EU primacy in legal matters has existed since 1972, and that is now spelled out. The issues where there has been obfuscation in the past are the issues that are being set out. What may be difficult for the party opposite is that it will have to own up to signing up to a lot of those competencies.
We have also seen that there is no loss of the veto in any of the areas where we said that we would not give the veto up. We have been as good as our word, which is why so many of our European Union partners have seen the constitution as being very British influenced. But QMV cuts both ways. There are places where we want to see the extension of QMV, because it will help in the reform that the noble Lord and many members of his party want to see in the European Union.
I shall not go into the question of what the French have said on the services directive, but I think the noble Lord will find that M. Chirac has said that he is satisfied with the commission's approach on it. I agree that that does not look altogether consonant with the remarks of some of his Ministers.
The noble Lord asked why the Government have ceded to Brussels the power to set asylum and immigration policy. It is not true that QMV means that the opt-in is meaningless. There is no question that the UK will lose control of our asylum and immigration policies. The opt-in protocol that we negotiated at Amsterdam remains.
The noble Lord also asked why the CFSP did not cover the Middle East. The CFSP, and the ESPD that flows from it, are issues that we have discussed many times in your Lordships' House. The noble Lord knows that the Middle East peace process has been discussed in the EU. Through our membership of the quartet, we have supported the peace plan and, particularly, the road map in the EU. I believe that the noble Lord has crossed the processes with the policy issue of what is happening in the Middle East, whereas the common foreign and security policy is largely a question of the processes that we need to arrive at the consensus.
We believe that the CFSP is a vital foreign policy tool for the United Kingdom. Under the guidance of Mr Solana we believe that it has scored notable successes. One of those is through the quartet mechanism which is so important in the Middle East.
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The noble Lord asked about the referendum. We discussed this matter and its timing the other day. The noble Lord was kind enough to say then how pleased he was with my frankness about the necessity for secondary legislation. I remind the noble Lord that the timing is very much in the hands of both Houses. It depends on how long it takes to get through the necessary secondary legislation.
The noble Lord, Lord Roper, asked about aviation. The United Kingdom will actively pursue the inclusion of intra-EU aviation in the EU emissions trading scheme. We shall continue to explore the scope for the use of other economic instruments to tackle aviation emissions.
The noble Lord also asked a number of questions about the European security strategy. We believe that it is delivering more robust, proactive policies in many areas, enhancing our policies on tackling terrorism and WMD. As we said in the White Paper, the EU will be focusing on these areas in the coming year.
The noble Lord asked about a Joint Committee of both Houses. That proposition was put forward by my right honourable friend the Foreign Secretary. I am glad that the noble Lord is still very interested in that proposition. I shall try to ensure that he has a more satisfactory answer on that point than I am able to give him at the moment. At a personal level, my enthusiasm for it remains unabated.
2.2 p.m.
Lord Hannay of Chiswick: My Lords, I hope that the Minister will accept my thanks for having included in the Statement the reference to the services directive, which is of great importance to the single market. Will she confirm, as I believe she hinted in her reply just now, that the legal base for that directive is one which requires qualified majority voting and therefore that neither the French President nor the French Prime Minister, if they ever get their statements into concordance, is in a position to prevent the adoption of the directive? Can the Minister look at what I believe is called "the Narrative" when it relates to the EU and G8 presidencies and summits and the relationship between developmental issues and security issues?
We had a very long and good debate last night in which the noble Baroness contributed very positively on this matter. I believe that there was unanimity that there is a very close cross-linkage. However, it was not referred to in the Statement; nor was attention drawn to the fact that the right honourable gentleman the Prime Minister will be going to New York in September as the president of the EU and therefore Britain will have a major investment in obtaining a successful outcome on UN reform which we were debating. To my mind, a place in the Narrative is necessary and perhaps the noble Baroness can look at that.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lord, Lord Hannay. I shall take the last point first. They are distinct presidencies and obviously they have to be kept distinct for the integrity of the organisations of which the United Kingdom will

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be holding the presidency. The noble Lord is quite right. Yesterday evening I drew the correlation between the two and remarked that I thought one would strengthen the other.
It is my view that the last time we held both presidencies, in 1998, the way in which they reinforced each other was enormously helpful to the success of both presidencies. I am sure that my right honourable friend the Prime Minister will be using all his many powers of persuasion to further our arguments over UN reform at the appropriate juncture.
The noble Lord also asked me about the services directive. Much to my embarrassment, I cannot tell the noble Lord whether it is a matter for the qualified majority vote. I will write to the noble Lord and be absolutely clear on that point. Although I believe it is, I am not entirely certain about it. I gather that I am not alone in that.
Although it is true that Mr Raffarin said that the directive was unacceptable, and that the French would use all means to oppose it, Mr Chirac told us that he was satisfied with the Commission's approach. It is a complex dossier, but the benefits to Europe as a whole are clear. Before we go further in speculating about French blocking we ought to be clearer about the French position.
Lord Dykes: My Lords, I, too, thank the Minister for her encouraging remarks in contrast to the rather lugubrious and reactionary offerings of the opposition Front Bench spokesman. Regarding what is termed in the trade Wim Kok Mark 2 Lisbon revised agenda, the Luxembourg presidency has suggested that each member state should submit its own reform suggestions and policies. These need to be promulgated at the ECOFIN meeting on 8 March and presumably the European Council on 22 and 23 March. Will Her Majesty's Government be making some priority suggestions in that context?
Baroness Symons of Vernham Dean: My Lords, I take issue with the noble Lord. I do not believe that the noble Lord, Lord Howell, is ever lugubrious. He treads a rather delicate path on this matter, as no doubt he has to. As regards the Wim Kok agenda, the United Kingdom has wanted this reform agenda. We shall be working very closely with our allies to ensure that we achieve real progress. Our ambition to make Europe the most competitive knowledge-based economy in the world by 2010 underpins the community's actions and priorities over the next five years.
I can tell the noble Lord that we shall be pressing for the 2005 spring Council in March to adopt a set of clear commitments which will accelerate the reform process and boost employment and growth in Europe.
Baroness Billingham: My Lords, I also thank the Minister for the Statement. I shall focus my attention on climate change. I am delighted that the EU presidency is treating it as one of the prime issues for attention. I and other Members of this House have
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said that nothing is more important than the work on climate change that is taking place in the European Union.
I was very privileged to be a member of a sub-committee of the EU which produced a report very recently. The evidence and the people who gave it are relying on the EU to underpin the work to be done if we are to counter the disastrous potential effects of climate change. I should like the Minister's assurance that the European Unions emissions standards will continue to be robust and followed through by all the member states.
Perhaps I may follow the request of the noble Lord, Lord Roper, on aviation and emissions. It is potentially so controversial. The matter has to be grasped by the EU in the short term. I ask for the Minister's assurances on both those issues.
Baroness Symons of Vernham Dean: My Lords, the United Kingdom remains committed to international action to tackle climate change, including through the UN framework and the Kyoto Protocol. We are continuing to work with international partners. We are trying to work with the United States and large developing countries to point out the cost of inaction, to build on science and to highlight the opportunities. I answered the point raised by the noble Lord, Lord Roper, on EU emissions trading schemes to tackle aviation emissions. We will be actively pursuing the inclusion of an intra-European Union aviation arrangement as well as the EU emissions trading scheme.
This is an enormously important issue. No doubt some of your Lordships will be present for the debate later this afternoon on science and foreign policy. I suspect that a good deal of the argument will centre on climate change. I say to the noble Baroness that my own department, the Foreign Office, has taken enormous pains over the past couple of years to ensure that we have a scientist within—embeddecl in—a number of our key embassies around the world. Much of his or her time is taken up in dealing with this important issue.
Lord Garden: My Lords, I add my words of welcome to the important White Paper. Perhaps I may press the Minister on the points made by my noble friend Lord Roper on the new European Defence Agency. The Statement refers to it, as does the White Paper. We have the new headline goal of 2010. We seem to have lost the old Helsinki headline goal of—whatever it was—2002 or 2003 that did not happen. It is important that the European Defence Agency focuses on that. Can she assure us that it will not turn into another defence procurement agency, as there are signs that it may?
Baroness Symons of Vernham Dean: My Lords, I really do hope not. I think that that would be a disastrous way for the defence agency to progress. The noble Lord and I have previously had an opportunity to exchange views on the issue. I assure him that our view is that the European Defence Agency will make a

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major contribution to the development of real capabilities—that is what we are about—in European Union member states. The close involvement of the United Kingdom in leading work to establish the agency has, I think, been fundamental in establishing this all-important capability-based approach. So, I do agree wholeheartedly with the noble Lord that we do not need another procurement agency; what we need is an agency that will be focused on capacity to deliver.
Baroness Royall of Blaisdon: My Lords, I, too, warmly welcome the White Paper, but principally as a means of engaging the public and Parliament in combating ignorance and meeting what I believe is the communication deficit. Does my noble friend think that discussions on the financial perspectives will be concluded under the Luxembourg presidency? I am still slightly baffled as to how the Government can marry their belief that their priorities for the EU can be met within a budget of 1 per cent.
Baroness Symons of Vernham Dean: My Lords, we believe that the priorities can be met within a budget of 1 per cent. I am grateful for my noble friend's overall support for the publishing of the White Paper. I, like she, believe that this is an enormously important addition to sparing discussion on these issues and trying to deal with what my right honourable friend the Foreign Secretary described this summer as the myths rather than the reality of Europe.
My noble friend is right: there is ongoing discussion within the European Union about the budget within which we will operate. I think that my right honourable friend's Statement made that clear. My noble friend will know that the Government's view is that we should ensure that the budget is settled within 1 per cent of the gross national income; but others would wish to see the budget set at 1.26 per cent, which is a considerable increase on what Her Majesty's Government have decided is appropriate.
On the timing of the political agreement, the target remains June 2005. Of course we will work very closely with our colleagues in the Luxembourg presidency to achieve as much progress as possible in the first half of this year. We recognise that there are a wide range of issues which may cause that target date to slip. But if that is the case, we will be happy to continue the negotiation under our presidency.
Lord Truscott: My Lords, my noble friend made a welcome commitment that the British presidency of the EU would focus on the themes of security, stability and prosperity, both inside the EU and beyond—themes that were also emphasised in the White Paper. Does she welcome recent opinion polls on the constitutional treaty which seem to indicate that the public is more favourably inclined towards the treaty than previously thought?
Baroness Symons of Vernham Dean: My Lords, I very much welcome those opinion polls. I welcome them because I think that they are part of British
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people looking at what is really in this constitutional treaty. One should perhaps read beyond some of the newspaper headlines and some of the more robust criticisms—some of which is fairly colourful—that we hear from some political commentators who, themselves, seem deeply confused about what is in the treaty. This is an important treaty. I am not one of those who think that it is a trivial matter. But it is a treaty which covers a great deal of ground that has already been covered in previous treaties. As people increasingly recognise what the treaty is about and—as much—what the treaty is not about, they will find that they are more persuaded by the Government's arguments.
Baroness Crawley: My Lords, I beg to move that the House do now adjourn during pleasure until 2.30 p.m.
Moved accordingly, and, on Question. Motion agreed to.
[The Sitting was suspended from 2.16 to 2.30 p.m.]

Disability Discrimination Bill [H.L.]
Consideration of amendments on Report resumed on Clause 3.
Lord Addingtonmoved Amendment No. 16:
Page 9, line 2, at end insert—
"( ) A public authority for the purposes of subsection (1) includes a body responsible for a school as determined in accordance with Schedule 4A to the Act."
The noble Lord said: My Lords, I hope I will not have to detain the House too long with this. This amendment is an attempt at clarification. I spoke to a similar amendment during the Grand Committee. It may just be the fact that I am not that quick on the uptake or that the noble Baroness, Lady Hollis. was going a little too fast for the rest of us to catch up. But the amendment comes down to the fact that schools do not seem to be caught within specific duty.
If it is just that we missed it earlier on, and we did not quite get the reference that brings them into the whole purpose of specific duty, then that is fine. But could the Minister please tell us where we have missed it? If schools get it wrong, the people who actually suffer—the pupils—will have an incredibly slow start in life. If the Minister could tell us where this is covered I will quite happily withdraw the amendment. If she cannot give a clearer and more defined answer which someone with my slow uptake can follow, I think we have a problem. I beg to move.
Baroness Wilkins: My Lords, I apologise for being slightly late. I would very strongly like to support the intention behind this amendment. The Government can be very justly proud of the introduction of the public sector duty in this Bill. It will have a major impact on disabled people's lives. Over half of public authorities are schools, so unless the Government

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make a specific commitment to place specific equality duties on schools then half of public bodies would be excluded from the public sector duty.
The school system is not delivering equality of opportunity for disabled people. For instance, the number of disabled people who go into higher education at the age of 18 is less than half of their non-disabled peers. I do hope that the Minister will be able to assure the House that schools will be subject to the specific disability equality duties in Clause 3 and that schools will be required to publish disability equality schemes.
Baroness Hollis of Heigham: My Lords, we discussed this issue in Committee and I had hoped that I was able to assure noble Lords that an amendment of this nature is unnecessary.
In July 2004 the Government issued their consultation document, Delivering Equality for Disabled People, on extending the Disability Discrimination Act to the functions of public bodies, and in particular on the introduction of a duty to promote equality for disabled people. This duty applies right across the public sector, including schools and other educational bodies.
What we are debating is whether the regulations mentioned in Section 49D(1) will prescribe the duties that will apply to public bodies in order to ensure better performance of the general duty to promote under Section 49A(1). It is not so much whether the duty will apply to schools, but how the duty applies in schools. That is the only difference between us.
I explained in Grand Committee that we are putting a range of measures in place to improve schools' performance for disabled children. For example, we are actively looking to improve data in relation to disabled pupils, and will use the accountability mechanisms of the new relationship with schools. This will include annual self-evaluation reviews, a single conversation with a school improvement partner, and three-yearly Ofsted inspections to identify and clarify areas of weakness and underperformance and equity gaps in attainment between different groups of pupils.
The recent Ofsted report Special Educational Needs and Disability—Towards Inclusive Schools found that the revised inclusion framework we introduced through the Special Educational Needs and Disability Act 2001 had contributed to a growing awareness of the benefits of inclusion and to some improvements in practice. The report highlights the need for further progress and acknowledges that we are taking action through our policies—in particular our special educational needs strategy, Removing Barriers to Achievement—to bring about further improvements.
I believe that the SENDA duties need time to bed down and that our policies to improve provision for disabled children require time to take full effect. In that context, as we all recognised at Committee, we need to think carefully about whether it is appropriate to place further specific duties on schools at this point.
In answer to the noble Lord, Lord Addington's question, there is no specific duty imposed on schools in this Act as it is at the moment. However we are
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keeping the matter under review and new Section 49D provides us with exactly that flexibility. We already have the power in the Bill and we can impose further specific duties at a later date, should it become clear that it is necessary to achieve the improved outcomes that we all seek for disabled people.
The effective implementation of the duty to promote equality in schools is an issue that the DRC wishes to see resolved. They share the concerns of the noble Lord and say: "We firmly believe it can be resolved without any amendment to the Bill". They say this because we have powers within the Bill to take that action by amendment.
Within that context, where we are still working with schools, we have come a long way. We still have some way to go but we have the powers already there. The Bill does not need changing but we obviously have to bring all parties into a common understanding of what needs to be done. I hope that the noble Lord will feel able to withdraw his amendment.
Lord Addington: My Lords, in listening to the Minister's reply I am convinced that the Government's intentions are good on this. But I am afraid that it is one of the ones that we will need to have a watching brief on to make sure that it works properly. I would prefer it on the face of the Bill because it would be much easier to refer back to. Having said that, if the Government invite us to keep a watching brief then we shall do it. Let us hope that we do not have to call back to this subject at a later date. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Higginsmoved Amendment No. 17:
After Clause 5, insert the following new clause—
"SCHOOL BUSES
The provision of the 1995 Act, this Act and the regulations made under them shall apply equally to school buses regardless of whether they are provided by local authorities or privately."
The noble Lord said: My Lords, I beg to move Amendment No. 17 which stands in my name, which inserts a new clause on school buses as it stands on the Marshalled List.
We are all anxious to make progress and I hope not to delay the Committee for too long, but there does seem to be a considerable amount of confusion about the position of school buses. The DRC, for example, in one of its briefs, says the position under the DDA as far as school buses are concerned is complex. School buses may be of three sorts. They may either be operated by the local authority; by a private company acting on behalf for example of the parents; or there may be a situation where the bus is operated by the local authority but it charges fares to some of the passengers because there is excess capacity beyond the amount which they are to provide for free, which is a convenience.
I am sure that we are all anxious that school buses should be appropriately designed or modified to cope with the problem of disabled children as it is important that they should be able to get to school without any

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form of discrimination. Where the problem seems to arise is that it is not entirely clear whether a school bus whose fares are paid for by the parents is a public service vehicle because it has fare-paying customers. Do the Government regard them as fare-paying customers, or not?
The situation also appears rather disturbing in the light of an article in the Sunday Telegraph on 12 December 2004, which arose from a conference which apparently the Department of Transport held. The article suggested that school buses will now be regarded as public service buses and subject to the regulations. It may or may not have misunderstood the situation. Consequently, they will have to have a destination board on the front, for example, and meet other requirements that do not seem wholly appropriate for school buses.
There is also a problem, as I understand it, because of the age of the bus. If a bus is new and it is operated by the local authority, apparently it is exempt; whereas if the same bus is used by school children whose parents are paying for the use of that bus, it appears that they may be committing an offence under the DDA.
The other problem is timing. It is suggested that if an operator goes out and buys two bangers built before 2000, they are legal, but if he uses a new coach under the new provisions, that is illegal. I would be grateful if the Minister could quickly clarify the situation of school buses. The DRC goes into all the legislation and references back and forth. We do not need to go into that. We just need to deal with it in general terms.
Lord Davies of Oldham: My Lords, I am grateful to the noble Lord for his keen interest in this issue, which is important. I am also grateful for the way in which he moved the amendment. I shall try to respond in the same spirit. The amendment has some technical deficiencies, but I do not want to debate those at this stage. We are looking at the real issues that concern school buses and I will address my remarks to those. School buses are already required to comply with the relevant accessibility regulations under the DDA when they are operated as public service vehicles. The question of who operates them is immaterial.
A public service vehicle is defined in the Public Passenger Vehicles Act 1981 by reference to whether separate fares are charged. The accessibility regulations apply to new public service vehicles of a prescribed description used in prescribed circumstances. The current regulations apply to new public service vehicles introduced into service on or after 31 December 2000 with a carrying capacity of more than 22 passengers which are used on local and scheduled services. Any bus used on school service that meets those requirements in terms of size and date is caught by the accessibility regulations. That applies whether the service is provided by a local authority or a private operator—that makes no difference at all.
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I mentioned that there is a technical problem in the amendment. In effect, the amendment fails to define what is meant by "school buses". Either buses or coaches can be used to provide a school service, but both have different meanings in construction in use in legislation and in terms of the DDA. We would be in real difficulty if the amendment were pressed and accepted. I assure the noble Lord that where fares are charged and the bus comes within the framework of a public service vehicle, it is caught by these requirements.
We are looking at the more general issue. We are carrying out an inquiry. We are commissioning a research project to examine the case for the application of accessibility regulations to school buses, and a contract for that is being put out across the field. The noble Lord will recognise that there are competing points of view on these issues. Many of these vehicles would need to be used for other purposes in public service, and they are likely in due course to be sold on. If they are not compliant, they cannot be used as public service vehicles in any other context. There is a built-in dynamic.
2.45 p.m.
Lord Tebbit: My Lords, I am grateful to the noble Lord for giving way. He referred to the definition of a public service vehicle as a vehicle with more than 22 seats. Am I correct in thinking that, particularly in rural areas, it is not unusual to find so-called minibuses that are much smaller than 22-seaters? Are they brought in, in any way, by this legislation as it stands or by the amendment proposed by my noble friend Lord Higgins?
Lord Davies of Oldham: My Lords, the noble Lord will recognise why a concept of size is related to this. If one must make provision for the disabled in such a way that the number of seats is reduced, the impact on the service and the vehicle will be different according to whether the vehicle has 22 or more seats, and very different indeed if it is a minibus. If it is one as small as an eight-seater, you could easily halve the capacity and make the concept somewhat unrealistic. Every figure is arbitrary, but we have a figure of 22 seats to take account of that.
In our survey, we will look at the issues raised by the noble Lord. School transport raises specific issues, as noble Lords recognise, but the Bill makes watertight provision for cases where it applies to public service vehicles. We have a dynamic that relates to the fact that the owners of such vehicles often want to use them in other contexts, when they would have to meet these requirements. If they wanted to sell them on to be used in other circumstances, they could be sold on only if they met these requirements. The issue of specialist school buses is not easy to resolve, but we are carrying out a full inquiry on it.
Lord Higgins: My Lords, before the noble Lord sits down, I seek to clarify something. My understanding is that local authority vehicles are described as "exempt". Do they none the less still have to conform to the provisions of the DDA? Secondly, is it the case

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that a bus that is effectively chartered by parents who pay for it is a fare-paying bus? Does that mean that it must be regarded as a public service vehicle and consequently have to have a destination board and everything else?
Lord Davies of Oldham: My Lords, I sought to make clear that the local authority fits into the same category as all the others. It is not a question of who operates the vehicle. It is a question of the specifications of the vehicle. As for examining the issue with regard to vehicles with fewer than 22 seats, we could prescribe for that in the regulations in due course and make requirements for those vehicles. I discussed that a moment ago with the noble Lord, Lord Tebbit. We would have the powers to do that, but at this stage we are identifying public service vehicles with 22 seats or more. That is the category that we are dealing with.
On the issue of charter buses, the question is the fare-paying passenger. As the noble Lord has just identified, the crucial issue would be how the parents raised the resources for the charter bus. Certainly, if any of the students on the bus made a contribution by dint of their travelling on the bus it would come within these requirements, providing that it met the other specifications that I have identified.
Lord Higgins: My Lords, before the noble Lord sits down, can I be clear that if a bus is run around south London and so on by a group of parents—or perhaps the school—and they cover the costs, does that make it a fare-paying bus and does it mean that it is a public service vehicle, and will it have to have a destination board and everything else?
Lord Davies of Oldham: My Lords, the noble Lord is pressing the issue further than I can go. That is a detail on the way in which the parents would draw in the resources to make the charter impossible. If they are charging students on the bus and the students are obliged to pay, there is no question. I hear what the noble Lord is saying that there may be other arrangements that I have not addressed so far. I will write to him about that fairly narrow and technical point and make sure that he is fully apprised of the situation before Third Reading.
Lord Tebbit: My Lords, this is a good example of the way in which legislation can become extremely complex to achieve something reasonably sensible. That worries me enormously—I believe it worries the Minister a little; that involves trying to knit together and make sense of the various provisions so that we do not find a judge at some stage asking what is a public service vehicle and finding that the legislation does not give him clear guidance.
Could the legislation, in particular for smaller vehicles, specify having to make provision if there is demand for it? That is, we do not want every 22-seater bus that might conceivably be used for the purpose to be required to be able to carry severely disabled passengers when there may be few passengers to be so carried. We can stumble too easily into making provision for which there is no real requirement.
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Perhaps it would therefore be better to have legislation to specify—and perhaps the Minister could consider the issue in this light—that if there was a requirement for a 22-seater bus or smaller, it should be met but, if not, we should not impose such an obligation on the makers and operators of every bus, however small.
Lord Higgins: My Lords, no doubt the Minister will take that point into account in correspondence and we can make progress on that basis and if necessary return to the matter at Third Reading. I fully accept that the amendment was probably defective: it had the terrible crime of being understandable. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Rail vehicles: application of accessibility regulations]:
Lord Higginsmoved Amendment No. 18:
Page 12, line 40, at end insert—
"( ) In section 46 of the 1995 Act after subsection (5) there is inserted—
"(5A) The Secretary of State shall set a date in regulations by which time all rail vehicles must be regulated rail vehicles and this date must be no later than 1st January 2017.""
The noble Lord said: My Lords, in moving the amendment I shall speak also to Amendment No. 26. The House will recognise that Amendment No. 18 is important. Some of the representations that we have received, for example from the Disabilities Charities Consortium, suggest that regardless of age, social class or impairment, inaccessible transport is still the single most important issue facing disabled people.
We have examined in considerable depth the compliance or otherwise of railway carriages with regard to the disabled provisions. The amendment contains two elements: first, it specifies a deadline for the arrangements to be concluded; secondly, it specifies a specific date. I shall take the second point first.
There is widespread agreement by outside bodies—almost every disability body takes this view—that an end date should be specified in the Bill rather than in regulations. They have put forward a number of reasons: for example, the sooner the end date is known by the industry, the sooner we will be able to plan for compliance. Previous experience has shown that the activity of complying with such regulations can be left until the last minute, and so the earlier the date, the earlier plans will be put in place.
The stability of the end date is also vital. If it is written in the Bill primary legislation will be necessary to alter it. That will prevent the date from being altered nearer the deadline, which could happen if the process were carried out solely by regulation. The industry will be clear as to its obligations under law and disabled people will be aware of what they can expect to happen and when. There has been massive consultation, including by the task force and the formal consultation by the Department for Transport; and the Joint Committee looked into the matter.

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There is clearly a lack of confidence on the part of some disabled organisations as to the way in which the arrangements would be carried out or whether they have been carried out as expeditiously as they might have been in the past. It is therefore essential if not today then at Third Reading that there should be a specific deadline date in the Bill.
The date that I have put in these amendments is 2017. We debated that point at great length in Committee and I do not want to go over it again. The 2017 date was supported by the DRC, the DPTAC, the DCC, the Joint Committee on the draft Bill and the House of Commons Select Committee on Transport, so there is a great deal of pressure for 2017. None the less, as matters have proceeded through the House I have detected some change in attitude towards that date and 2020 is now being bandied around. It is sooner than the date 2025 that was originally suggested by the Government.
In Committee we became clear that, as the noble Lord, Lord Carter, will bear out, we were either going to have 2017 with lots of exemptions or 2020 without exemptions. Therefore, if we are going to go for 2020, we need to be assured that the list of exemptions will be carefully monitored and regulated. There are later amendments from the Liberal Democrats as well as us that deal with that matter; I shall deal with them when I come to them.
If we can make progress on that issue, it would be appropriate to go for the later date rather than the earlier date at Third Reading. We will need to consider the matter in the light of all the discussions we are having today. The crucial point is that there should be a date. The exact date we should select will depend on how far we are reassured with regard to the control over the exemptions, which I am told amount to a large number, although their individual importance may vary a great deal. We will come to that in relation to later amendments.
I hope that the Minister can respond positively. I beg to move.
Lord Oakeshott of Seagrove Bay: My Lords, I would like to make it clear that we support the official Opposition in their view that a firm date should be in the Bill. For all the reasons that the noble Lord gave we believe it is important. It is vital that everyone involved knows that the date is clearly nailed down with no wriggle or room to be amended. On balance, having considered carefully the Government's explanations and our discussions with the industry about cost, we feel that the right compromise for the date is 2020.
3 p.m.
Lord Carter: My Lords, I wish to add a few words but I shall be extremely brief. The noble Lord, Lord Higgins, summed up my position exactly, which is that if the 2020 date is adopted—which is now the Government's declared intention, so they should have
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no problem putting it on the face of the Bill—with a robust exemptions procedure, everyone concerned with the matter will be very pleased.
Lord Vinson: My Lords, will the Minister clarify the position so that we can consider these clauses against the wider framework? I understand that the provision calls perfectly properly for accommodation for disabled people. That would mean the elimination of about three seats. Therefore, on a 12-coach train that is normally full, 36 passengers would have to stand who would otherwise not have to do so. I query whether we have the proportionality right as regards the obligation we are placing on the future design and construction of these coaches and whether adequate thought has been given to ensuring that we have the right balance as between the interests of the disabled and those of the "abled".
Lord Ashley of Stoke: My Lords, for once, I agree with every word spoken by the noble Lord. Lord Higgins. He put the case extremely well and was well briefed by the Disability Charities Consortium and I agree with its views too. I believe that it has now come round to the date of 2020 rather than 2017. 1 believe that the noble Lord, Lord Higgins, recommended the former date to my noble friend, or certainly will do so on Third Reading. However, the concomitant of that—this is a very important reservation—is that there should be no exemptions. I know that we shall discuss exemptions when we debate Amendment No. 19 and other amendments, but it is very important that the message goes to the Minister that the acceptance of the later date of 2020 is conditional on there being no exemptions.
Lord Tebbit: My Lords, if the Minister has difficulty in accepting the measure, whether it involves the date of 2017 or 2020, there is another way to skin the cat; that is, to put in the Bill a requirement that the regulations be made by a particular date. That would put the pressure on government to get going. They would have to flag up what they were going to do in those regulations which we could say would have to be made by, say, 2009. If the Minister cannot accept the broad thrust of these amendments with either of the dates that have been discussed, that would be another way to skin the cat.
Lord Davies of Oldham: My Lords. I have very limited experience of skinning cats and therefore I shall not follow the noble Lord too far in that analogy, not least because I hope that I shall be able to persuade him that the strategy that we are adopting makes sense. After all, we spent considerable time discussing this issue in Committee, which has resulted in brief speeches being made today, for which I am grateful. I recognise the strong sentiments behind those speeches. I shall try to keep my remarks to the minimum but, as the noble Lord indicated, this is an issue of considerable importance.
Up until now attention has been focused on what the date should be, and whether it should be on the face of the Bill. This amendment addresses one of these

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points by requiring regulations to be made which would set the end date, but at the same time it ties our hands by placing on the face of the Bill the latest date by which all rail vehicles must be regulated.
Before I turn to the detail of the date itself I would like to say that we welcome the acknowledgement in this amendment that placing the date in regulations is a more practical approach. It is consistent with the approach we have taken for buses and coaches, and which we propose to adopt in respect to taxis in due course.
However, the existing provision in Clause 6 already enables us to set the end date in regulations. We have made clear that we will do so to honour our commitment to implement the DRTF recommendation. I suggest therefore that there is no need to place an explicit requirement in the Bill provided the date for compliance is clear regarding the Government's strategy on implementing the Bill. As the noble Lord indicated, I am tempted to stray towards the debate that we shall have on later amendments on the regulatory procedure. I would be out of order if I did that, but suffice it to say that during the discussion on the regulations I hope that I shall establish exactly what he has indicated he needs satisfaction on; namely, how we propose to implement the measure in regard to a definable date.
We realise that there is considerable support for making an end date of 2017, but as I explained in Committee, the Government consider 2020 to be a more reasonable end date. The noble Lord recognised that a considerable difference in costs was involved as between the two dates. We have set an end date of 2020 for coaches. The most obvious competitor and comparator of rail vehicles are long-distance coaches. We would face a very considerable cost—a sum of nearly £170 million—if we brought the relevant date forward to 2017. 1 believe that the noble Lord, Lord Vinson, asked me to be explicit on that point.
I make it clear that you do not have non-compliant vehicles on one date and compliant vehicles on the next. By definition this is a process of working towards a date. It is all about new build and refurbishment where vehicles are taken off the lines to be brought up to standard and to meet the requirements of the Bill. I make the obvious point with regard to the 2020 date. We expect 1,742 non-compliant vehicles to have been replaced by the end of 2018 out of the 2,200 vehicles that would be caught by the end date. The task could not have been done unless the work had been carried out earlier. Noble Lords will recognise that no intelligent rail company, or manufacturers who undertake the new build and refurbishments, will cram all that work into the last six months resulting in every rail vehicle being off the lines with a consequent collapse of the service. This is bound to be a planned process involving a considerable amount of investment.
Once we know what the end date will be, work will begin to meet that date. I refer to the somewhat arbitrary distinction that was drawn with regard to the 2017 date. It is not a matter of making a three-year distinction; the process will have been put in train to make the vehicles fully compliant for 2020. Inevitably,
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a great deal of work will have been carried out prior to that date. We have given a firm commitment to use the provisions that would be afforded by Clause 6 of the Bill. We have demonstrated that by consulting previously on our initial policy proposals and indicating that the next stage will be to consult on the draft regulations themselves, which we will debate later. We are not backing away from setting an end date. We simply believe that it is too inflexible to put it on the face of the Bill. In addition to the question of' costs, I emphasise that the date of 2020 is set in regulations with regard to coach transport.
Amendment No. 26 is somewhat unnecessary. When we have made regulations to set the end date it will be a statutory requirement for all rail vehicles that continue in service after that date to comply with the regulations unless an exemption is in place. We shall discuss in a later amendment, which we shall discuss shortly, how those exemptions will be controlled by the parliamentary process in regulations.
We remain concerned about including any date in the Bill because that would be too rigid. But we do believe that the package of proposals we have presented—
Lord Ashley of Stoke: My Lords, let us suppose we accept the date of 2020, but it is not in the Bill. Let us further suppose that the railway industry typically drags its feet and then, closer to the time, finds that it cannot meet the date. The pressure on the then government, whoever it is, to defer the date will be enormous. The railway industry could again be recalcitrant, resulting in the date being pushed further and further back. If the date is set out in the Bill that cannot be done.
Lord Davies of Oldham: My Lords, the date will be set out in the regulations which, so far as the industry is concerned, will have the same effect. My noble friend will recognise that we will be working towards a date that is some distance away—15 years ahead—which gives us time to develop the regulations and put them in place. We have done that for the coach industry. We intend to tackle the issues regarding that industry in regulations.
I am not sure that it is entirely fair to say that the rail industry typically drags its feet on these matters. Investment in new rail build has grown apace over recent years. Indeed, my noble friend will recognise the degree of compliance with the issues under debate already reached in our modern rolling stock even though the industry is not yet subject to regulation. So I defend the rail industry as regards its intentions in this regard. I can give him an assurance on that.
The package of proposals we are putting forward represent a balance between the needs of disabled people and the operational concerns of the rail industry. No one underestimates the costs involved in the adaptation of existing rolling stock and the demand for new build. On the certification and enforcement regimes that we propose for rail vehicles, the Government recognise the need to strengthen the existing arrangements. When I reply to the debate on the later amendment. of which the

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noble Lord, Lord Higgins, has given notice, I will attempt to show how strong those are in order to allay the concerns voiced by my noble friend Lord Ashley.
On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Vinson: My Lords, will the noble Lord respond to the question I put to him? I do not query in any way the desirability of the regulations, rather I query their proportionality. I am also not querying the date by which they should be introduced. But if, as I am led to understand, the full implication of these regulations would mean that on a long-distance journey some 36 more passengers would have to stand, have we got the proportionality of the degree of modification required to meet the requirements of the disabled balanced properly against the need to seat as many ordinary passengers as possible? That is the root of my question.
Lord Davies of Oldham: My Lords, the answer to the noble Lord is straightforward. We are talking about each individual rail vehicle. We intend that each vehicle should offer access to disabled passengers. If not, the danger is that a train could be composed of a dozen carriages, none of which complies. We are not in a position to estimate the provision for disabled people who may want to avail themselves of the service offered by particular lines or individual services. However, we will guarantee that every disabled person seeking access to a carriage will find that it provides that opportunity. It will also have a toilet appropriate to accommodating their needs.
The noble Lord is right to say that these provisions will be made at some cost to other passengers in the sense that seats will be given up, incurring a cost implicit to the rail system. But of course good is never achieved without cost.
3.15 p.m.
Lord Carter: My Lords, will my noble friend answer a simple question? At the back of the Government's response to the Joint Committee report is set out a provisional implementation timetable of the main provisions in the Bill. For June 2006 it states:
"Rail commencement plus revised Rail Vehicle Accessibility Regulations".
Will those regulations include the date of 2020?
Lord Davies of Oldham: My Lords, I am going to indicate that we have some flexibility with regard to the regulations. We want to engage in a discussion on that and, indeed, I am tempted not to tread on the ground of the forthcoming amendment. I want to demonstrate to the House how open we are, but there is a danger that if I make that speech now, it would be entirely inappropriate. If my noble friend exercises a little patience, I shall be able to reassure him on his point.
Perhaps I have been rather more emotional about this issue in my response to the noble Lord, Lord Vinson, than is entirely proper. However, it
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should be recognised that this Bill makes substantial progress so far as concerns disability rights. I want also to emphasise that certain aspects of each rail vehicle will have to be adapted. If a carriage is equipped with a toilet, provision must be made for disabled passengers. That is not to say that every single railway carriage will need to be fitted with proper disabled access, but we will ensure that, as far as possible, disabled passengers seeking access to our trains will know that provision is made on each train to meet their needs. However, should someone ask me what will happen if a very large group of passengers all with the same needs should board a train, obviously I cannot answer that question. Within the bounds of reasonable intention, however, we are seeking to ensure that rail vehicles are adapted in such a way that we can guarantee that disabled people are able to exercise their rights to travel as much as anyone else.
Turning to the regulations, my noble friend is dragging me down a path where I ought not to go because I am supposed to be addressing these issues a little later. However, in response to his direct question, it is the case that the regulations to be produced in 2006 will include an end date. He has already stolen most of the lines that I would have used in response to a later amendment.
Lord Higgins: There is a slight sequential problem here, but the noble Lord, Lord Ashley, is right to reinforce the point. If we are aiming for a later rather than an earlier date, it is crucial that the exemptions should be very carefully constrained. As the Minister has just pointed out, it is hoped that we will be able to clear up the matter when addressing subsequent amendments.
On the question of whether there should be a date in the Bill, I am somewhat concerned by the noble Lord's reply. I thought that the amendment was drafted quite well. Now I am worried whether it is not drafted rather too well from the Government's point of view. The Minister seemed to imply that my amendment as tabled in the Marshalled List would confer a degree of flexibility. That was not our intention and will certainly not be our intention at Third Reading. For all the reasons I gave in my opening remarks, it is crucial that there should be a specific and inflexible date in the Bill. That is a separate issue from what the actual date should be. No doubt we shall touch on the issue again at Third Reading. At this stage of the debate, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Addingtonmoved Amendment No. 19:
Page 13, line 15, at end insert—
"( ) In section 40(7) of the 1995 Act (PSV accessibility regulations), after "Disabled Persons Transport Advisory Committee" there is inserted ", Disability Rights Commission".
( ) In section 46(11) of the 1995 Act (rail vehicle accessibility regulations), after "Disabled Persons Transport Advisory Committee" there is inserted ", Disability Rights Commission".
( ) In section 47(3) of the 1995 Act (exemption from rail vehicle accessibility regulations), after "Disabled Persons Transport Advisory Committee" there is inserted ", Disability Rights Commission"."
The noble Lord said: Amendments Nos. 19, 20, 21 and 25 are tabled in my name and that of my noble friend Lord Oakeshott of Seagrove Bay. They have a central theme, which is to ensure that it is easier to monitor what is actually happening in terms of exemptions for railway carriages, and their compliance.
I shall start at the beginning and work my way towards the most substantive amendment. Amendment No. 19 would ensure that the Disability Rights Commission is brought closer into the process of granting concessions. The commission is the most knowledgeable body and, in my experience, by far the best representative of the interests of the disabled. It should be brought forward in this process.
Amendment No. 20 puts a limit of five years on the length of time for which any exemption can be granted. I have looked at the problem, and am one of the people who came across it first as a result of my membership of the Merits of Statutory Instruments Committee. I discovered that very long exemptions were being granted. They should be five years and, if there is still a problem at the end of five years, people can come back and get an extension.
Before the Minister started speaking on the previous group, I thought that Amendment No. 21 might have been the weakest, but then he said that progress targets must come through when we get towards a final end-date. The amendment proposes a series of end-dates and progress targets for various types of rolling stock. If those are not acceptable, there should be some points of progress. In any form of long-term exemption, the great way to prolong something is to say, "Let's put it off, because it's a long-term problem. Let's not worry about it now—it's not on my shift". Then if it is a medium-term problem, people just tinker around with it and put plans in place but do not do anything. Then it is a short-term problem and is too difficult. In the Merits Committee, I discovered that 64 exemptions had been made under that process. Since 1998, more than 50 per cent of carriages have broadly had some form of exemption. Something should he done to stop that process going on.
Amendment No. 25 might have stood by itself. It states that there should be an annual report to Parliament. I hate to go back to the Merits Committee again, as the noble Lord, Lord Hunt, is not in his place. In that committee, it is okay to get an individual exemption—that is a one-off—but two means you are getting to a problem. If you have three, four or five, that is a big issue. Then you suddenly realise that there will be great holes in the amount of accessibility on a train journey, and people in wheelchairs or who have problems moving can start to feel that they may well not be able to plan train journeys. That is why we tabled the amendment. There has been movement from the Government, or at least interest and concern displayed by them, since the committee gave tongue to the fact that the problem was happening too frequently. I happened to be the torchbearer on this occasion. There must be a report to Parliament. A Minister must be brought to account for the matter.
As we seem to be splashing into later debates, I have to say that Amendment No. 23, tabled by the noble Lord, Lord Higgins, would enhance the process. When he speaks to it, I hope that he will take on board that I support him. It deals with the affirmative procedure for the matter. Individually, there is still one motion. If we bring the two together we will probably have a process which the Government will have real trouble ignoring. I am afraid that the rail industry has struck me as coffin-waving. It says that things are all too difficult, that it will have to pull trains off, and so on. That will not be allowed to happen. We will actually have an idea of what it is doing overall. If there is inactivity, we will know.
That cannot be totally removed from the idea of the end-date, but making sure that Parliament is regularly made aware of the matter is important. It is important for the future as well. Many of us involved in the Bill will remember it for a long time, but it is conceivable that no one involved in the process now in Parliament will still be here in 15 years. That may be a slightly extreme example, but there will not be that many of us. We have to make sure that the matter is regularly brought before Parliament so that it knows what is going on. We pump lots of money into the rail system: we are at least entitled to see that it enacts the intentions of Parliament. I beg to move.
Lord Higgins: My Lords, I will not go over the9 ground that the noble Lord covered adequately so far as Amendments Nos. 19, 20 and 21 are concerned. I look forward with interest to what the Minister says. However, Amendment No. 25 seems very important against the general background of being reassured that the exemptions granted are not excessive. I hope that the Government are able to accept that amendment. If not, we will have to consider what we can do about it subsequently, or indeed today. It is important in combination with the next group of amendments.
Lord Ashley of Stoke: My Lords, I hope that the Government will be sympathetic to the amendments. Unless the Minister knows something that we do not, they are literally the only way in which we can monitor the exemptions. Without them, the railway industry can do as it wishes.
I have some figures from the Disability Charities Consortium. Those state—as the noble Lord, Lord Addington, said—that there have been 64 exemptions, which involved 2,328 vehicles. That is an awful lot of exemptions; I had assumed that there were very few. If we know about such matters, we can object. We do not know where the railway industry is going, to go back to my old point, so if those matters are left to it, it will act in what it sees as its own interests. The consequence is that disabled people's rights take a back seat.
In Committee, my noble friend Lord Davies mentioned information on the website. That is fine; my grandson is wonderful at reading websites. However, that will not make it compulsory reading every morning, or indeed every evening. Millions of disabled people simply do not read websites. I am afraid that

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my noble friend sounded convincing, but his point is not really convincing when you think about it. I hope that he will be able to lend an ear to that point.
Ministers have said a great deal about heritage railways. Of course we cannot ignore those minority railways and their problems—we should not ride roughshod over them. However, my figures are that only 77 of the 2,328 vehicles are heritage railways, which means we are speaking of a very small minority. In other words, the tail is wagging the dog. When my noble friend replies, I hope that he will make sure that, this time, the dog wags the tail.
Lord Carter: My Lords, I have two brief points. The first is on Amendment No. 21. Under its paragraph (b), there are seven classes of dates for various sorts of rail vehicles. I am not a train buff and would not pretend to know what all those classes of vehicle were. However, I have a question about the total that the noble Lord, Lord Addington, or perhaps the Minister, may be able to answer. The last class will be regulated by 31 December 2014. It would be interesting to know how many vehicles would be regulated in total by 2014, and how many would be left to be regulated after 2014 if we accepted 2020. If that information were available, it would be helpful.
My other query is on the annual report in Amendment No. 25. In Grand Committee, I was persuaded of something. When the Government accepted the recommendation from the Delegated Powers Committee that the Orders in Council in the Bill should be replaced by parliamentary regulations, it seemed as though regulations would come forward regularly. The wait for an annual report on regulations would be slower than seeing the actual regulations. However, although the information on exemption orders for rail vehicles is on the website, I was not aware that information about special authorisation for buses is not. Nor are the details of requests for exemptions listed on the website, so the website is not as informative as I thought it might be. We received that answer in Grand Committee. When the Government consider the matter it is important that there is a source of information that is easily available which gives all the information required on the subject.
3.30 p.m.
Lord Tebbit: My Lords, the noble Lord, Lord Addington, put into my mind the fact that whatever the end date is—perhaps 2020—most noble Lords will probably have to declare a lack of interest. I expect to be here, but at the age of 89 I might have difficulty getting here if th railway carriages are not fully accessible.
On Amendment No. 25, it would be great to have an annual report, but I am aware of the number of annual reports from government departments that pile up and are in the main unread. Of course, the problem is not obtaining the information—with some persistence that can always be extracted through Parliamentary
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Questions—but as the noble Lord, Lord Carter, a former Chief Whip, knows, the difficulty is finding the time to debate the report.
I do not think any noble Lord would suggest that that should appear on the face of this Bill. I certainly do not believe that the noble Lord, Lord Carter, from his previous experience, would regard that as a very good idea. I am not too fussed whether we have a report or not, but I am fussed about whether anything will happen during my lifetime. Of course, I accept what the Minister will say—that it is happening and that we are looking only at the terminal date—but we keep coming back to the fact that the terminal date will decide the rate at which things happen. Unless I have gone completely or been thrown out by a new constitutional reform, I hope that I shall be here to see that happen.
Lord Davies of Oldham: My Lords, I imagine that the whole House hopes that the terminal date for implementation of this legislation precedes the terminal date to which the noble Lord, Lord Tebbit, referred. Early in his remarks, he indicated that some matters are being dealt with now and, of course, they are. New build is directed by the requirements to meet the specifications that will be imposed on the industry.
I hear what my noble friend Lord Ashley says about compliance, that the industry may be looking for ways to evade its responsibility and that the existing record gives no cause for confidence, but for obvious reasons the existing record is the most difficult record. At present we are dealing with refurbishment of vehicles that are already in use. We are influencing and determining new build, but we are at the point in the process where the vast majority of vehicles were planned or brought into use before these requirements come into use. Therefore, this is the most difficult phase.
I tried to express some optimism to the noble Lord, Lord Vinson, when replying to the earlier debate. As we move towards 2017 we shall be down to the last 2,000 or 3,000 vehicles. They cannot all be dealt with in the last year so there will be phasing. By that time the regulations will be well established and everyone concerned with the construction of rail vehicles will have had a substantial degree of experience of the adjustments that are necessary within the framework; we shall have the whole industry geared to meet the requirements.
At present, we have had difficulties. The exemptions are for five years and they have to be renewed if they go beyond five years. There have been difficulties in that the efforts by the constructors to meet the requirements have not matched up to inspection. Consequently, there has been a delay in vehicles coming into service at considerable cost.
In a sense, those are the engineering challenges and difficulties that are bound to be at their most acute in the early stages and we can, with confidence, anticipate that they will reduce in time. I am trying to allay the

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concerns of my noble friend Lord Ashley and others. I believe that the noble Lord. Lord Addington, would also agree with the sentiment that there is suspicion about the degree to which the railway industry is moving towards compliance. There is a reason why exemptions, which should decrease over time, should be sought now: exemptions will not be as necessary in future as we gain experience in meeting the requirements.
I suggest that technical factors are involved and it is not a matter of the industry being unwilling to comply. That does not gainsay the obvious fact that we need legislation in this area. The scrutiny of the exemption orders that have been made over the past five years would support our argument that the system is robust and rigorously applied and that huge improvements in accessibility to the rail network have already been made, but we have a considerable way to go.
The more recent exemptions are, by and large, for minor non-compliance and have been granted for a shorter period because it is realistic and reasonable to expect the industry to be able to put certain matters right. We are seeing steady progress on these issues and that has been achieved, in part, by working closely with the industry on new build to ensure that they fully understand the requirements of the regulations. The new certification regime that we have in Clause 7 will strengthen that process by ensuring that not only are new build and refurbishment projects monitored throughout, but that there is also a sign-off process in the form of a compliance certificate that strengthens scrutiny of the process.
These new measures will provide certainty, not only for the industry but also for disabled people, that the industry is meeting its obligations. We have listened carefully to the arguments, not only those presented so cogently today, but also those made in Committee, when we had fruitful exchanges on these issues. We recognise that some further measures could be introduced that would strengthen the process further. I hope they will also go a considerable way to allaying the concerns expressed in the course of this debate.
On exemptions, we recognise that despite the arrangements that we have made to ensure that the system is transparent and that all the relevant papers are in place in the public domain, there is a call for a composite document that brings together the details of the exemption orders that we have made. Although we do not accept the amendment on the annual report, we shall introduce a government amendment at Third Reading which will provide for an annual report on exemptions.
We shall also address our minds to the points made today and with great force in Committee on the affirmative resolution procedure for exemption orders. We recognise that it would be appropriate to use it for those that relate to vehicles used on particular systems. We have made it clear that it is our intention—
Lord Higgins: My Lords, has the Minister moved on to the next group of amendments?
Lord Davies of Oldham: My Lords, I am sorry. In the course of the debate I have perhaps strayed to show how
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constructive we want to be. I stand chided by the noble Lord and I shall keep my remarks to the absolute minimum.
We have concluded that it would be entirely appropriate for certain orders to be open to more detailed scrutiny and we recognise that there is a case for affirmative resolution orders with regard to certain aspects of these developments. We are resistant to affirmative orders in all cases. These measures are the steps we intend to take to meet justified anxieties expressed in Committee and again today. I could go into very great detail but with regard to Amendment No. 21 I think that my noble friend Lord Carter will recognise the difficulties we have over the question of rigour and inflexibility.
Let me give one illustration of the problems we face. Refurbishment of the carriages used by GNER on the East Coast Main Line started last year but the whole project, involving over 300 carriages, will take up to three years. GNER will have them refurbished but it must continue to run its train timetable. Clearly, it cannot do that if it has too many vehicles undergoing refurbishment at the same time. The problem with a rigid deadline is that if a project timetable slipped for any reason, there would be a real risk to timetables. I shall give way to my noble friend.
Lord Carter: My Lords, the Minister should address that question to the noble Lord, Lord Addington, who actually tabled the amendment. I was hoping that he might have the figures.
Lord Davies of Oldham: My Lords, that is a fair point. My noble friend is right. The noble Lord, Lord Addington, wants to draw on this experience. We shall support him when he recognises the difficulties with this issue. There does need to be some flexibility because projects can slip and if things are too rigid, effectively the rail vehicles are taken out of service and the timetable is wrecked, which no one wants.
I wanted to comment on that point because my noble friend had alluded to it. My response to this group of amendments is to accept the argument for the annual report, to accept the argument on affirmative orders and to hope that the House will recognise that within that framework we have gone a considerable way to meet the points made in Committee and today to fulfil the requirements of the House.
Lord Addington: My Lords, I thank the Minister for his reply. He has gone quite a long way to recognise my concerns but I should like to press him further on some technical information. What exactly is it about this amendment that the Government find difficult at the moment? A reply would help us in further preparation. May we have a little more detail please?
Lord Davies of Oldham: My Lords, the noble Lord will recognise that we have appreciated the concerns of noble Lords on these issues both in Committee and today. We are eager to be responsive and flexible. We recognise that points are being made but we cannot

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accept the amendments as they currently stand. I cannot engage in dialogue across the Dispatch Box but I should be very happy to arrange a meeting after Report and before Third Reading between any noble Lords who wish to participate. I hope we can reach a common objective on these proposals. I hope that the noble Lord, Lord Addington, recognises that we are seeking to make progress and that he can withdraw his amendment.
Lord Addington: My Lords, I thank the Minister for that response. I will certainly take him up on that offer. This is a difficult matter and the noble Lord, Lord Carter, seemed to catch some flak on my behalf.
This was an attempt to square a very difficult circle. This was an approach to ensure that we make progress and not put things off until the last minute which means giving an exemption or taking out half the transport system. That was what concerned me. As has been shown, this matter is difficult but all those involved in this should have an ongoing look at it. I thank the Minister for his remarks. I thank all those who have supported me. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 20 and 21 not moved.]
3.45 p.m.
Lord Daviesof Oldham moved Amendment No. 22:
Page 13, line 16, leave out subsections (3) and (4).
The noble Lord said: My Lords, we spent some time in Committee debating the proposals for exempting rail vehicles from requirements of the rail vehicle accessibility regulations. I explained that we had considered carefully the implications of our proposals on both the operators of rail vehicles and on disabled people and had accepted the recommendation of the Delegated Powers and Regulatory Reform Committee to retain the requirement for all exemption orders to be made by statutory instrument. I also explained that we intended to bring forward an amendment on Report to give effect to that, which is what this amendment seeks to do.
The amendment tabled by the noble Lord, Lord Higgins, would go further by requiring all exemption orders to continue to be made by SI but would also make them all subject to the affirmative resolution procedure. I have some reservations about that to which I shall return later. As I indicated previously, we have recognised the need to provide for the affirmative resolution procedure for exemptions relating to rail vehicles used on particular systems.
The change to the procedure which Amendment No. 23 seeks is unnecessary and unduly burdensome not only to the operators but to Parliament itself. It would add to the time taken for an exemption order to be made and in doing so it could delay new, more accessible trains entering service in a timely manner. This very substantial number of orders subject to the affirmative procedure would raise issues with regard to parliamentary time.
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There are important considerations to which we will return later in this debate. However, I must point out that the amendment as drafted is defective. I am sure that was an oversight in the drafting but the amendment is technically flawed to the extent that Paragraph 32 of Schedule 1 to the Bill amends Section 67(4) of the Disability Discrimination Act. In so doing, it renders this amendment meaningless. Through our proposals we are already covering that aspect.
I recognise the sentiment behind the noble Lord's amendment. I am saying that we are meeting him a very considerable way. We recognise the necessity for affirmative orders in some clear cases where parliamentary and public interest will be significant. However, to put affirmative orders across the whole field of this legislation would be costly and unworkable. I hope the noble Lord will recognise that our amendment meets the obligations which we expressed in Committee. I hope that he will be reassured about his own amendment. I beg to move.
Lord Carter: My Lords, this is extremely welcome and reflects on the recommendation of the Deregulated Powers and Regulatory Reform Committee. It is as well that the Government have removed Clause 6(4) which gives the power to revoke by Order in Council a statutory instrument which had gone through Parliament. If that is not Henry VIII behaviour it is certainly Henry VII and a half.
Lord Higgins: My Lords, we need to put this in the context that we mentioned earlier; namely, if we go to a later date, we have to be sure that the position is clear regarding exemptions. We debated this matter in Committee. In its fourth report the Delegated Powers and Regulatory Reform Committee made it clear that it did not think that the arrangement the Government were proposing involving no parliamentary scrutiny at all of exemption orders was appropriate and that they ought to be dealt with by the negative resolution procedure in line with various precedents elsewhere.
As I expressed during later stages of Committee, I thought there was real danger, even if we adopted the negative resolution procedure rather than the Government's original proposal. If we are realistic—anyone working in the area covered by the Department for Work and Pensions knows this only too well—the impression that in practice one can properly scrutinise the mass of negative resolution orders which comes before the House is wrong. However assiduous any one person or group of people, it is an impossible task for anyone outside the official government machine to monitor. Therefore, there was a danger that there was not adequate parliamentary scrutiny in practice and it seemed advantageous to move towards the exemptions covered by affirmative resolution orders rather than negative ones.
I am grateful to the Minister and her officials, who may receive news of my appreciation of their efforts, for arranging a meeting last night when we discussed the matter in considerable detail. I have reached the conclusion that to make all the exemptions by positive

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resolution procedure would not he practical. We would probably do nothing else because there is a huge number of trivial exemptions concerning particular items, carriages and so forth. However, I understand that at Third Reading the Government are prepared to table amendments so that important exemptions can be immediately drawn to the attention of the House by positive rather than negative resolution. If so, together with the undertaking given on the Liberal Democrat amendment about the report, we appear to have tightened up the procedure as far as we can.
We are making considerable progress and I am sure that we are anxious to move on to other matters. Perhaps I might therefore add one postscript. I have been critical of the Minister for anticipating subsequent debates or reverting to earlier ones. The next one is on heritage lines. In the light of our discussion last night, I was convinced that to try and get this issue out of the way and outside the broad range of exemptions was not helpful. Therefore, I shall not move the next amendment.
Lord Davies of Oldham: My Lords, I welcome the noble Lord, Lord Higgins, in his anticipatory mode. I also welcome his support for the way in which we intend to go about this matter. We recognise that there are unresolved issues and we need further discussions on where the division occurs between the exemption orders which require affirmative resolution and those which require negative resolution. However, the amendment ensures that the procedure is in place, as was the undertaking we gave in Committee. I hope that that, together with the annual report, goes a considerable way towards allaying the concerns expressed in Committee. I hope also that we will be able to take up the opportunity of meeting again before Third Reading in order that amendments which the Government intend to table to consolidate these issues receive the full support of the House.
On Question, amendment agreed to.
[Amendments Nos. 23 to 25 not moved.]
Clause 7 [Rail vehicles: accessibility compliance certificates]:
[Amendment No. 26 not moved.]
Lord Oakeshott of Seagrove Baymoved Amendment No. 27:
After Clause 8, insert the following new clause—
"BUS ACCESSIBILITY REGULATIONS
In the 1995 Act, after section 47 there is inserted—
"BUS VEHICLES
BUS ACCESSIBILITY REGULATIONS

(1) The Secretary of State shall make regulations for the purpose of securing that it is possible—

(a) for disabled persons—

(i) to get on to and off regulated bus vehicles of 22 seats or more in safety and without unreasonable difficulty;

(ii) to be carried in such vehicles in safety and in reasonable comfort; and

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(b) for disabled persons in wheelchairs—

(i) to get on to and off such vehicles in safety and without unreasonable difficulty while remaining in their wheelchairs; and

(ii) to be carried in such vehicles in safety and in reasonable comfort while remaining in their wheelchairs.

(2) Regulations shall in particular create an offence of parking a motor vehicle at a bus stop clearly delineated on the road during the normal hours of bus operation contrary to the purposes set out in subsection (1).

(3) A person found guilty of such an offence, as set out in subsection (2), is liable to a fine not exceeding level 3 on the standard scale and up to 3 penalty points on their drivers' licence.""

The noble Lord said: My Lords, my noble friend Lord Addington and I are delighted that on this amendment we are travelling together with those doughty campaigners for the disabled, the noble Baronesses, Lady Darcy de Knayth and Lady Wilkins.
The hour is late and we are all keen to make as much progress as we can on the Bill before it is possibly overtaken by an election. Therefore. I do not propose to rehearse the good, detailed discussion we had in Grand Committee. Let me make it clear that the purpose of the amendment is to have effective penalties and deterrents against motorists parking at bus stops which has the effect of nullifying so much of the investment in making buses "disabled friendly". It is no use having a bus with the best facilities in the world if the person at the bus stop cannot reach it.
The excellent report which Leonard Cheshire produced just over a year ago was called Mind the Gap and "mind the gap" is the key to this amendment. I listened carefully to the Minister's constructive and helpful response to the similar amendment we tabled in Grand Committee. He made three points of substance on why it was technically defective and needed to be rewritten. We have carefully sought to deal with all three points.
His first point was that we needed to limit the scope of the amendment so that it was restricted to vehicles with a capacity of more than 22 passengers, a point which has arisen on previous amendments. We have done that. We have also dealt with the point that the provision should not mean a draconian limit for 24 hours a day, even when buses are not running. That is why our amendment limits the effect to normal bus operation hours.
Finally, the Minister made the perfectly fair point that we would need to create a specific offence so that the penalties we seek to enforce can be brought in. I am sure that again we will be told that in a sense the powers already exist. However, the key point is that local authority powers—parking-ticket-type powers—are just not working. That is why we believe the only effective way to protect people's right to bus access and bus travel is by making parking on a bus stop subject to a fine of up to £1,000 and up to three penalty points on a driving licence. That is the only effective sanction.
I am grateful for the support of Leonard Cheshire on the amendment. The organisation believes that it is a good idea and worth while. It makes the powerful point that it is a criminal offence for an operator to use a regulated vehicle not compliant with the regulations, but these regulations apply only to the vehicles and not to the outside environment. It seems ridiculous on the one hand to enforce these expensive but proper modifications to vehicles but on the other hand not take this simple step to ensure that disabled people can travel. I beg to move.
Baroness Darcy de Knayth: My Lords, I want briefly to support the amendment. As the noble Lord, Lord Oakeshott, said, if you cannot get on and off the bus because it cannot reach the pavement to lower the ramp, it totally emasculates all the expensive provisions. And just to wind up the Minister mildly, I cannot help drawing the parallel with communal areas where you cannot access your flat because you cannot cross them.
Baroness Wilkins: My Lords, I, too, added to my name to the amendment and greatly support the spirit behind it. The addition of ramps to buses has so liberated disabled people that it seems necessary that buses should be able to park at stops empty of cars. I support the spirit behind the amendment.
Lord Higgins: My Lords, it is important to take account of the DRC. Its latest correspondence suggests that it is not seeking substantive amendments to the Bill in this respect for two reasons.
First, the Bill will already help to improve enforcement. Up to now, those responsible for bus stops were not covered by the DDA. Clearly, the police would have been carrying out their public functions, rather than providing a service, and would have been exempt and local authorities would probably have attempted to mount the same defence. As I understand it, the Bill will remove that defence for both. Secondly, the public sector duty will require them to review the impact of their whole approach to highways management, in consultation with disabled people. So it would seem that the Bill already goes a considerable way to meet the points made by the noble Lord, Lord Oakeshott, subject to any points that the Minister may make.
4 p.m.
Lord Davies of Oldham: My Lords, we are sympathetic to the concerns that underlie the amendment, but we recognise that it is a genuine attempt to deal with a problem that is not readily and easily confronted.
1 am grateful to the noble Lord, Lord Higgins, who has, in many respects, anticipated my speech by making exactly the point that I would seek to make, that other parts of the Bill increase enforceability regarding these issues and place obligations on local authorities which will ensure that we improve the situation.
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I do not wish to discuss the technical defects of the amendment. The problem is that at the moment a bus is defined as one which carries more than 22 passengers, and the question is how we can guarantee smaller buses the same access to certain bus stops. The problem with the amendment is that it would be exclusive, rather than inclusive.
However, I wish to deal with the point at issue, which the noble Lord, Lord Oakeshott, articulated so well when he moved the amendment. The crux of the matter, as he rightly identified. is the obstructions caused by other vehicles which prevent buses, including those regulated under the DDA, getting to the kerb to give access to disabled people.
As I indicated in Grand Committee, we have discussed this matter in some detail with the bus industry and local authorities. We have also held two public consultation exercises on making all stops "bus stop clearways", which is the traffic management measure already available to protect stops. Responses to those consultations raised significant concerns about making all bus stops subject to bus stop clearways. That would not be appropriate on every bus route as they might not be used intensively enough to justify it. It would not be acceptable to local residents and to local businesses, particularly if the clearways were operational 24 hours a day, seven days a week.
We concluded that it would not be appropriate to designate all stops as bus stop clearways, but we recognised that they would be appropriate at busier locations. Consequently we simplified the procedures for introducing them and made changes to the enforcement arrangements. They can now be introduced without the backing of a traffic regulation order, and local authorities which undertake decriminalised parking enforcement are able to enforce them.
In addition, a new duty to promote equality introduced by Clause 3 of the Bill, to which the noble Lord, Lord Higgins, referred, would require local authorities to consider the needs of disabled people when carrying out their functions, including designating bus stop clearways. The Bill will also ensure that, in general, all the activities of public authorities are covered by discrimination law, including the exercise of any public functions relating to the highway not covered by the Act.
We will certainly continue to promote the importance of accessible public transport infrastructure with local authorities, but the real issue is effective enforcement.
Lord Higgins: My Lords, if I am correct, the noble Lord is proposing to have bus stop areas that will not necessarily be in bus lanes. That would be highly dangerous. You would be travelling on a non-bus lane and then have to pull out, then back in again. You would proceed by a series of zigzags. You could take approximately an hour every morning to drive seven miles. It would be extremely dangerous.
Lord Davies of Oldham: My Lords, road safety would certainly be at the forefront of any proposals to adjust the roads. I do not fully understand the nature of the difficulty described by the noble Lord. You

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cannot stop in a clearway. You may drive through it—it is not a bus lane—but you are not allowed to stop. It is the stopping of vehicles that create obstructions that we seek to encourage local authorities to tackle more effectively. We are not encouraging them to create additional bus lanes, which may or may not be advantageous in other circumstances. We are talking about clearways to prevent cars stopping and creating an obstruction, preventing a bus taking on or unloading passengers.
The Disability Rights Commission has recognised, as the noble Lord said, that the other duties that this Bill would introduce in respect of public functions would affect this issue. It is recognised outside this place that the broader issues in the Bill will affect public authorities, of which local authorities are an important element.
On that basis, I hope that the noble Lord, Lord Oakeshott, will recognise that we have responded to his concern with care. We have anticipated these issues through our consultations. We have sought to tackle the issue of obstruction at bus stops. But a balance must be struck. I assure him that local authorities will have these new obligations and a greater facility to insist on clearways and other measures. We will improve enforcement of the freedom for buses to access bus stops without parked cars obstructing them.
Lord Oakeshott of Seagrove Bay: My Lords, I thank the noble Baronesses who have spoken in my support and I thank the Minister for his characteristic and courteous reply. I am afraid that I am not impressed. My feelings are similar to those I expressed in Grand Committee. We debated the DRC response, referred to by the noble Lord, Lord Higgins, in Grand Committee. I said then and I repeat now that the DRC pointed out that the powers are there. but Clauses 2 and 3 do not seem to produce an effective deterrent. We still come back to the point, which the Minister has not really answered, that although technically the powers are there for local authorities to enforce it, unless one accepts an amendment like mine creating a specific offence with much more serious penalties, local authorities, in practice, will not be effective. So, effective deterrence—effective enforcement—requires my amendment.
I turn to the other two points. As regards the numbers of passengers in the vehicles, I feel that whatever I do I run into a brick wall. I changed my original amendment in Committee to take account of exactly this point. I have the proceedings in Grand Committee here. It is too bad if the Government now turn round and say, "No, we were wrong after all; it should be eight". I am just trying to respond to the detail of the answer the Government gave in Committee. If they are now changing their mind, I am afraid that it is not a satisfactory situation.
As for the point about bus stops—I do not think we are talking about bus lanes—and whether it is allowed to park in a bus stop, I thought that the Minister used a bit of a diversionary tactic by talking about clear ways and so on. You can have something that clearly
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states when you are allowed to park at a bus stop and when you are not, just as you can state anything else. That seems quite clear. It is allowed for in our amendment. There will be times, say, in the middle of the night when this would not be effective. We have dealt with these points. I am not persuaded by the Minister's arguments. I therefore wish to test the opinion of the House.
4.10 p.m.
On Question, Whether the said amendment (No. 27) shall be agreed to?
Their Lordships divided: Contents, 36; Not-Contents, 100.

Division No. 2

CONTENTS

Addington, L.

Naseby, L.

Allenby of Megiddo, V.

Neuberger, B.

Barker,B.

Northover, B.

Beaumont of Whitley,L.

Oakeshott of Seagrove Bay, L. [Teller]

Brougham and Vaux,L.

Phillips of Sudbury, L.

Craigavon,V.

Redesdale, L.

Dholakia, L.

Roberts of Llandudno, L.

Dykes, L.

Roper, L.

Falkner of Margravine, B.

Russell-Johnston, L.

Garden, L.

Scott of Needham Market, B.

Goodhart, L.

Sharp of Guildford, B.

Greaves, L.

Shutt of Greetland, L.

Hamwee, B.

Steel of Aikwood, L.

Harris of Richmond, B. [Teller]

Thomas of Gresford, L.

Maclennan of Rogart, L.

Thomas of Walliswood, B.

Maddock, B.

Vallance of Tummel, L.

Miller of Hendon, B.

Wallace of Saltaire, L.

Molyneaux of Killead, L.

Walmsley, B.

NOT-CONTENTS

Acton, L.

Filkin, L.

Andrews, B.

Gale, B.

Archer of Sandwell, L.

Gavron, L.

Ashton of Upholland, B.

Gibson of Market Rasen, B.

Bach, L.

Giddens, L.

Bassam of Brighton, L.

Gilbert, L.

Bhattacharyya, L.

Goldsmith, L.

Blood, B.

Grocott, L. [Teller]

Borrie, L.

Harris of Haringey, L.

Brennan, L.

Harrison, L.

Brooke of Alverthorpe, L.

Hart of Chilton, L.

Brookman, L.

Haworth, L.

Burlison, L.

Henig, B.

Carter, L.

Hilton of Eggardon, B.

Carter of Coles, L.

Hollis of Heigham, B.

Chandos, V.

Howells of St. Davids, B.

Chorley, L.

Hoyle, L.

Christopher, L.

Hughes of Woodside, L.

Clarke of Hampstead, L.

Hunt of Chesterton, L.

Clinton-Davis, L.

Hylton, L.

Corbett of Castle Vale, L.

Kirkhill, L.

Crawley, B.

Lamont of Lerwick, L.

David, B.

Lea of Crondall, L.

Davies of Coity, L.

Leitch, L.

Davies of Oldham, L.[Teller]

Lipsey, L.

Donoughue, L.

McIntosh of Hudnall, B.

Drayson, L.

MacKenzie of Culkein, L.

Dubs, L.

Mackenzie of Framwellgate, L.

Evans of Parkside, L.

Mckenzie of Luton, L.

Evans of Temple Guiting, L.

Marsh, L.

Farrington of Ribbleton, B.

Maxton, L.

Faulkner of Worcester, L.

Merlyn-Rees, L.

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Mitchell, L.

Simon, V.

Morgan of Drefelin, B.

Sutherland of Houndwood, L.

Morris of Aberavon, L.

Symons of Vernham Dean, B.

Morris of Manchester, L.

Temple-Morris, L.

Murphy, B.

Tomlinson, L.

Pendry, L.

Triesman, L.

Pitkeathley, B.

Truscott, L.

Prosser, B.

Tunnicliffe, L.

Puttnam, L.

Turner of Camden, B.

Ramsay of Cartvale, B.

Vinson, L.

Rea, L.

Warner, L.

Rendell of Babergh, B.

Warwick of Undercliffe, B.

Rooker, L.

Wedderburn of Charlton, L.

Rowlands, L.

Whitaker, B.

Royall of Blaisdon, B.

Whitty, L.

Sainsbury of Turville, L.

Williams of Elvel, L.

Sewel, L.

Woolmer of Leeds, L.

Sheldon, L.

Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.20 p.m.
Lord Addingtonmoved Amendment No. 28:
Before Clause 10, insert the following new clause—
"VOLUNTEERS: CODE OF PRACTICE
In the 1995 Act, after section 14D (practical work experience: duty to make adjustments) there is inserted—
"14 E VOLUNTARY POSITIONS: VOLUNTARY CODE OF PRACTICE

(1) The Disability Rights Commission shall, when asked to do so by the Secretary of State, prepare a voluntary code of practice dealing with the matters specified in the request.

(2) In preparing a voluntary code of practice, the Commission shall carry out such consultations as it considers appropriate.

(3) The Secretary of State shall review after two years of the voluntary code coming into effect whether there is widespread observance of the voluntary code and shall if he thinks necessary, on the basis of the review, consult as he considers appropriate on including volunteers within Part II of the Disability Discrimination Act 1995 (c. 50).""

The noble Lord said: My Lords, we return to the question of volunteers and whether they should be covered under the Act. Volunteering is a good way into the field of work. I return to the subject because of what the Government have been saying of late about, for example, incapacity benefit.
To volunteer enables you to get back to the workplace and into the work habit with the regulation of your own life. It helps to make a person much more employable and able to have a fuller life. That is why we believe the matter should be covered under the Bill. It is integral to the approach which the Government have brought forward over time. That is why I return to the subject. I shall be interested to hear if the Government have had any further thoughts on the subject especially in the light of the many other developments that have taken place outside this Bill. I beg to move.
Lord Carter: My Lords, this amendment is in line with the recommendations of the Joint Committee. It recommended that the Government should consult and produce a code of practice on volunteers. The committee further recommended that the full Bill
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should include a regulation-making power enabling volunteers to be brought into coverage should the non-statutory code prove ineffective.
The Government's response was that they were asking the DRC to consider producing a voluntary code of practice, which appears in the first part of the amendment. The Government stated that they would be more certain how to frame a power once a voluntary approach had been tried and properly assessed. This amendment is in line with the recommendation and the Government's response.
The only query I have relates to subsection (3) with the requirement for a review after two years. I believe that is a little on the hasty side. If it is a new area there is a code to be drafted and one has to see how it will work out. I wonder whether two years is a little short for a review period and that it should be a little longer. The principle of the amendment is in line with the recommendation of the Joint Committee and the Government's response to it.
Lord Skelmersdale: My Lords, as I understood it from discussions in Committee, the DRC has already been asked by the Government to produce such a code. Looking at subsection (3) of the amendment, I hope that when it is produced it will be regularly reviewed.
I am on my feet because I failed to get an answer from the noble Baroness in Committee or in writing. I asked specifically about those charities which provide services to the NHS for a fee. I mentioned the Stroke Association in which I declare an interest. There are volunteers in that association who help with dysphasia support services. Although they are not paid themselves the charity is paid. I believe that they should be covered under the public duty provisions of the Bill. The code on volunteers should make that absolutely clear and I hope that the noble Baroness will ensure that it does.
Baroness Hollis of Heigham: My Lords, I shall be very brief indeed as the noble Lord, Lord Carter, made our points for us. We support the spirit of the amendment. Our only dispute is that we do not believe that it needs to be on the face of the Bill because it is already going to happen in the way described. So in a sense it is a declaratory amendment rather than one which delivers.
The DRC has already agreed to help us to draft a code of good practice as regards disabled volunteers and it will be consulting widely. So, two matters covered by the amendment are already met.
We expect to review the provision regularly. We intend to ask the DRC to do that. We think that two years may well be right. If not, then obviously we shall discuss the matter with it at the appropriate time. But we see no reason why in principle two years should not be sensible.
I take on board the point made by the noble Lord, Lord Skelmersdale, about continuing the review process. That is absolutely right.
On the particular powers of an organisation, where volunteers provide services in such a way that they would count as employees they come within the framework of the DDA, as presently described.

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I am very mindful of the time. The spirit and principle of what the noble Lord seeks is already embedded; it already happens in the way he describes. We do not need legislation. I hope that as a result of that assurance he will be able to withdraw his amendment.
Lord Addington: My Lords, I thank the Minister for saying that we have tabled the right amendment but that it is in the wrong place. I suppose that at least that is still a pass mark, if not an "A". With the Minister's assurances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 [Discriminatory advertisements]:
Lord Higginshad given notice of his intention to move Amendment No. 29:
Page 24, line 24, at end insert—
"( ) It is unlawful for a person to publish, or cause to be published, an advertisement which invites applications for goods, facilities or services which indicates, or might reasonably be understood to indicate, that an application will or may be determined to any extent by reference to—

(a) the applicant not having any disability, or any particular disability;

(b the applicant not having had any disability, or any particular disability; or

(c) any reluctance of the person determining the application to comply with a duty to make reasonable adjustments or (in relation to employment services) with the duty imposed by section 21(1) (duty of providers of services to make adjustments) as modified by section 21A(6).""

The noble Lord said: My Lords, the noble Baroness has written to me about this matter. I found her letter wholly convincing. I do not propose to move the amendment.
[Amendment No. 29 not moved.]
Baroness Darcy de Knaythmoved Amendment No. 30:
Before Clause 13, insert the following new clause—
"ASSOCIATED PREMISES: ADJUSTMENT CONSENTS
In the 1995 Act, after section 23 there is inserted—
"23A ASSOCIATED PREMISES: ADJUSTMENT CONSENTS
(1) The Secretary of State may make regulations imposing on controllers of associated premises a duty to take steps for the purpose of securing that it is possible for a relevant disabled person to install or affix an adaptation or improvement to the associated premises so as to enable him to—

(a) enjoy the premises let, or the associated premises, or both,

(b) make use of any benefit, or facility, which by reason of the letting is one of which he is entitled to make use, or

(c) facilitate his enjoyment of the let premises or the associated premises or his making use of any such benefit or facility,
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but would be of little or no practical use to the disabled person concerned if he were neither a person to whom the premises associated with the associated premises are let nor an occupier of them.

(2) Regulations made under subsection (1) may (in particular)—

(a) make provision as to what is, or what is not, to be included within the meaning of "associated premises" and "premises associated with associated premises";

(b) make provision as to who is, or who is not, to be included within the meaning of "relevant disabled person";

(c) make provision as to the steps which a duty requires to be taken;

(d) make provision as to the circumstances in which it would be unreasonable for a controller to have to take steps which a duty requires to be taken;

(e) make provision as to the circumstances in which a failure to comply with a duty imposed by this section is to be taken to be justified;

(f) make provision as to the categories of controllers to whom this section does not apply;

(g) make provision as to the arrangements for enforcement of the duty under this section;

(h) make provision for adaptations and improvements to be undertaken at the disabled person's own expense and subject to such conditions as the controller may reasonably require;

(i) make provision for the Disability Rights Commission to prepare and issue a code of practice giving practical guidance to persons subject to a duty under the regulations on how to perform that duty.

(3) Before making any regulations the Secretary of State shall consult such representatives of disabled people and representatives of controllers of associated premises as he sees fit.
(4) The power to make regulations under this section is exercisable by statutory instrument.
(5) Regulations made under this section must not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.""
The noble Baroness said: My Lords, I return in this amendment to the burning issue of adjustments to communal areas for disabled tenants and leaseholders. It would introduce a reserve power which would enable the Government to undertake consultation with stakeholders before enacting suitable provisions. There is no difference of opinion with the Government on the need to legislate to ensure that landlords cannot unreasonably refuse consent for such improvements; and we agree that some degree of complexity is involved since a number of interests are affected.
My previous amendment showed that the complexity is far from being insuperable and that it is possible to set out workable and fair provisions, which need to be enshrined in the DDA. They need to provide the prospect of clear statutory guidance for landlords and disabled people alike, about what is reasonable and what is not.
The purpose of Amendment No. 30 is very clear, yet it also provides sufficient flexibility to allow for the outcome of discussions across government and among affected parties on how future detailed provisions should be framed. Future regulations would be subject to the affirmative resolution procedure to ensure effective parliamentary scrutiny. I hope that that will get around any objection the Minister may have that the Government are unwilling to take such a power when it is not clear how the eventual regulations will be framed.
There are many such reserve powers in the DDA and, indeed, the current Bill—for example, the Government are currently consulting on the shape and scope of the reasonable adjustments duty for private clubs.
I hope that the Minister will think again on this issue. The amendment is designed to be helpful. Rather than have a bid at a later date for scarce parliamentary time, we could lay the groundwork now by making provision in the Bill.
The Government have today made several welcome responses on amendments to be included at Third Reading. I hope that the Minister might go a little further than I had originally hoped with the amendment and give a more positive response following the example of earlier cases today.
In any case, at the very least, the Minister needs to give a commitment here today on instigating an action plan for improvements to communal areas. I should like very firm assurances that officials will urgently begin effective discussions in Whitehall and with the DRC to draw up a consultation package and draft provisions. I would further urge the Minister to give a clear indication of how soon the Government would propose to act on the results of consultation, if they do not seize the opportunity in the current Bill.
The DRC is most anxious to be able to offer some comfort and prospect of future change to the many callers who are desperate to get through their own front door and live with the basic dignity that others take for granted. It says that there are literally hundreds of people with this problem. I beg to move.
4.30 p.m.
Baroness Wilkins: My Lords, I very strongly support this amendment. If we are to fulfil the Government's commitment made in the Prime Minister's Strategy Unit report that by 2025 disabled people should have full opportunities and choices to improve their quality of life and be respected and included as equal members of society. Disabled people must be able to get into their houses. As the Minister fully acknowledged in Committee, this issue must be addressed. The Strategy Unit report makes commitments to increasing disabled people's ability to live independently at home. I look forward to hearing positive news of the action that the Government are planning to take to address to this issue.
Lord Skelmersdale: My Lords, put into its most simple form, the argument is that there is no point in having a flat if, as a disabled person, one cannot get into it. If adaptations are not made to the common parts few flats will be appropriate to their needs. It is all very well for the Minister to rely, as she did in Committee, on the Landlord and Tenant Act 1927, which says that a landlord cannot withhold his consent to adaptations unreasonably. But what is unreasonable for an able-bodied tenant would be quite reasonable for a disabled one. That is why the matter should be put right in this Bill rather than in a housing Act.
The Minister found a major stumbling block in the amendment; namely, who pays for the removal of adaptations once the disabled tenant leaves? They may move to another flat—sheltered accommodation perhaps—or, most unfortunately, have died.
Baroness Hollis of Heigham: My Lords, this is the common parts amendment, as opposed to the demised premises one. I agree that they overlap substantially but I wonder whether the noble Lord is talking to the second of those two amendments rather than the first.
Lord Skelmersdale: My Lords, the noble Baroness is quite right; there is an overlap here. The common parts have to be accessible; it is as easy as that. However, if the Minister would prefer me to make most of my speech on a later amendment I am happy to do that. I do not want her to tell us that it was not part of the Labour Party's manifesto to legislate on this, or indeed on the other matter, as she did before. It is not a good argument. We all know that governments fail regularly to enact legislation that was promised in their manifesto. Look at the Labour Party's reaction to this House over decades as a good example. It is only very recently that it has legislated in this area.
We also know that governments frequently legislate for matters that were not in their manifesto, so that argument does not wash, either. I am sure that it is true that this subject has not been part of the detailed thinking about this Bill. The question now is: has any thinking gone on in government on this difficult issue, which must affect the majority of the 16,000 to 18,000 households in the private rented sector? Like the noble Baroness, Lady Wilkins, I strongly support this amendment.
Lord Carter: My Lords, the Joint Committee recommended that the full Bill should include a specific provision prohibiting control of premises or unreasonably withholding consent for the making of reasonable adjustment to communal areas. In Grand Committee I pointed out that the response of the Government seemed to be in two parts. First, they said that they were not convinced that tenants should be able to make adjustments to the common parts over which they have only limited rights, or that a controller of the premises should be required to allow a tenant to make changes to the common parts. That sounded as if the Government were opposed in principle. They then went on about the difficulty of doing it, saying that it would be complex and so on.

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The Government agree that there is a gap in the law and I am hoping that by Third Reading we might be able to have a resolution on this. The amendment is permissive in terms of the regulations. Stating that:
"The Secretary of State may make regulations",
does not requiring a regulatory power to be exercised. It appears that the difficulties that the Government described in their response to the Joint Committee and in Grand Committee of drafting the regulations are dealt with in the amendment. It also appears that it includes everything that would be in regulations to deal with this problem if the Secretary of State were minded to make them.
Lord Addington: My Lords, very little remains for me to say that has not already been said. I merely state that I support this amendment; we must move now or we will leave a hole.
Lord Ashley of Stoke: My Lords, I can understand how the noble Lord, Lord Skelmersdale, made that mistake because the amendments are practically identical. Vitally, our amendment deals with the communal aspect, but because the two amendments are so similar I have always made the same mistake. I wrote my few remarks at the last moment, so I can understand that. The speeches in this debate are almost directly applicable to the next debate. I am surprised that the two amendments have not been grouped together because that would make for ease of debates in the House of Lords.
I remind my noble friend Lady Hollis that there was unanimous criticism of the Government's refusal to accept the amendment in Committee. It was clear that Ministers understood the difficulties and complexities involved; they were carefully explained by my noble friend Lady Hollis. But she seemed overwhelmed by the difficulties of consulting other departments. She even said at one stage that she did not know how far the thinking of the Office of the Deputy Prime Minister had got. That is a surprising admission by my noble friend, who knows everything about anything, certainly in this field. She is the best-briefed Minister in the House of Lords, indeed in Parliament. Her admission that she did not know how far the discussions had got was very surprising but showed that the Government cannot speak with authority on the matter because Ministers will speak with separate, perhaps different voices.
My noble friend Lady Hollis described this as a "very important" topic. I should have thought that a very important topic would be given high priority by the Government and that urgent inter-departmental discussion would have taken place. if we miss this opportunity, another one might not recur for a very long time. It is outrageous that disabled people should
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be confined to abodes whose communal areas are not accessible to them. I hope that my noble friend will find it in her heart to respond constructively.
Baroness Hollis of Heigham: My Lords, I firmly believe that I will respond constructively but we shall see whether that view is shared by other noble Lords. We all agree, and the point was well made by the noble Lord, Lord Skelmersdale, that it is unacceptable that disabled people can have a suitably adapted rented flat to live in but then find themselves a virtual prisoner because they cannot get through the common parts. That is where we start.
My second point is that the issue is too big and too complex to be addressed by this amendment on this Bill today. Let me give the example of a not-untypical mixed-use building of 10 storeys in inner-city London. It highlights the variety of interests involved that must be consulted and taken forward, even for something as straightforward as adaptions to common parts for stair-climbers, which account for over 30 per cent of requests, and storage of wheelchairs or mobility vehicles, which is the second biggest issue. In a real-life example of a 10-storey inner-city building, the basement is used for parking, the ground floor for retail, floors one to five are a room-only hotel, floor six is an office and floors seven to 10 are residential. The residents would include freeholders, long-lease holders, tenants and short-term sub-tenants. All of those would have different legal rights towards any enactment on their property. It is not simple; it is exceedingly complex.
In Committee I gave the very simple example of a mixed block of council flats some of which had been sold and others retained. I have deliberately chosen a more complicated, not-untypical example. Noble Lords need only look at how difficult it is, for example, to try to deliver something as seemingly straightforward as commonhold to leasehold tenants to see the complexity involved. Here we are doing something even harder: people believe, misguidedly or otherwise, that the value or appearance of their property may be adversely affected by the proposal. It shows the difficulties with which, I have no doubt, we will have to engage.
I am being pressed on this question today. First, I re-emphasise that there is no way that something as complicated as this can be taken on amendment at this stage in the Bill. It has come up only very late in the consultation processes over the past three years. It was not even raised at earlier rounds of discussions with the Disability Rights Task Force as far as I am aware, but I stand to be corrected on that if I am wrong.
However, I am equally persuaded that we cannot just bank our responsibilities, walk away from it, say that it is complicated and hope that somehow something will happen. As a result, since our last discussions in Committee, we are taking it forward. The DRC has already been invited and has agreed to be a member of a review group. The group's chairman has already been appointed. A senior civil servant from the DWP, who is here today listening to this debate, will head that working party to see how to progress this. Referring to the question asked by the noble Lord, Lord Oakeshott, it will involve members from the Office of the Deputy

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Prime Minister, the Department for Constitutional Affairs, and the Department of Health. I will see whether we should include the Department for Education. Members from the Scottish Executive have already been appointed also.
The group will investigate the need and evidence for change; for example, the number of disabled people affected by inaccessible common parts, the effect on their lives and the nature of alterations needed. It will identify options for change, assess the regulatory costs and benefits of the options identified, and engage with the tangle of hugely complex legal issues surrounding land law. We expect the chairman to report no later than the end of the year with specific recommendations for resolving those issues. If primary legislation is recommended, that report will include recommendations as to possible legislative vehicles.
We have made a huge move in terms of energy and commitment. We have already set up this working party, and we have got people involved in it. They are raring to go on some of the extremely complex issues associated with it. I had some tangential interest in the commonhold and leasehold reform, which was mind-bogglingly complex; this is harder still. Let no one think that it is easy; it is harder still. By setting up this committee I hope that my noble friends on the Cross Benches, as I call them, will agree that we are going even beyond what I was able to say in Committee, where I was persuaded by many of the arguments made. I will not go into it more than that, merely to say that we are making progress. I hope that noble Lords will recognise the positive commitment that we have made. In the light of that, I hope that the noble Baroness will withdraw the amendment.
Lord Oakeshott of Seagrove Bay: My Lords, before the noble Baroness sits down, I thank her for cranking the Whitehall machine into gear on this issue.
Baroness Darcy de Knayth: My Lords, I thank all noble Lords who have taken part in the debate, particularly my noble friend Lady Wilkins for her strong support. I thank the noble Lords, Lord Carter and Lord Skelmersdale, for their support. The noble Lord, Lord Addington, said that we have to move. I thank the noble Lord for that push. As the noble Lord, Lord Ashley, said, they are verily similar. From the point of view of the disabled person they are similar, because you cannot use your flat. For the powers that be, this area is apparently much more difficult.
In some ways, I wondered whether the Minister was talking about my previous amendment, because Amendment No. 30 provides a reserve power to bring in regulations. I thought that regulations provided for a huge amount of flexibility. As the noble Baroness showed, that is precisely what you need with very different areas. However, I am pleased with the last part of her response. I cheered up quite a bit. I am glad that the official is here today and I am delighted to hear
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that they are all raring to go. Let us hope that they continue going and get somewhere by the end of the year. I am delighted that the review group will contain the ODPM, the DWP, the DRC and the others mentioned, that it will report no later than the end of the year and that something will then be done about it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 [Discrimination in relation to letting of premises]:
[Amendment No. 31 not moved.]
Baroness Wilkinsmoved Amendment No. 32:
Page 31, line 32, at end insert—
"24EA CONSENT TO IMPROVEMENTS TO LET PREMISES: DISCRIMINATION IN FAILING TO COMPLY WITH DUTY

(1) It is unlawful for a controller of let premises to discriminate against a relevant disabled person.

(2) For the purposes of subsection (1), a controller of let premises discriminates against a relevant disabled person if he fails to comly with a duty under subsection (4) imposed on him by reference to the disabled person.

(3) Subsection (4) applies where—

(a) a disabled person occupies premises under a lease;

(b) but for subsection (4), he would not be entitled to make a particular improvement to the premises;

(c) the improvement is one which he proposes to make, at his own expense, for the purpose of—

(i) enabling him to enjoy the premises;

(ii) enabling him to make use of any benefit or facility, which by reason of the letting is one of which he is entitled to make use;

(iii) facilitating his enjoyment of the premises or his making use of any such benefit or facility;

but would be of little or no practical use to him or if he were neither a person to whom the premises are let nor an occupier of them.

(4) Where the disabled person, or someone acting on his behalf. makes a written application to the controller for consent to an improvement, the controller shall not withhold his consent unreasonably.

(5) The controller shall be entitled to make his consent subject to reasonable conditions.

(6) Regulations may make provision—

(a) as to circumstances in which it is, or as to circumstances in which it is not, reasonable for a controller to withhold his consent: and

(b) as to conditions which it is always, or conditions which it is never, reasonable for a controller to impose.

(7) For the purposes of this section—

(a) "relevant disabled person" means a particular disabled person—

(i) who is a person to whom the premises are let; or

(ii) who, although not a person to whom such premises are let, is lawfully under the letting an occupier of such premises;

(b) "lease" includes a tenancy, sub-lease or sub-tenancy and an agreement for a lease, tenancy, sub-lease or sub-tenancy and "sub-lease" and "sub-tenancy" have such meaning as may be prescribed;

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(c) a person is a controller of let premises if he is—

(i) a person by whom the premises are let; or

(ii) a person who manages the premises;

(d) premises shall be treated as let to a person where they are a commonhold unit of which he is a unit-holder, and "commonhold unit" and "unit-holder" in relation to such a unit have here the same meaning as in Part 1 of the Commonhold and Leasehold Reform Act 2002 (c. 15).

(8) This section applies only in relation to premises in the United Kingdom."

The noble Baroness said: My Lords, I should perhaps mention that I have been a landlord for the past 30 years; one of the 40 per cent of private landlords to which my noble friend the Minister referred as having only one property, on which I am dependent for my livelihood in various gaps during my employment. I have also paid for adaptations to be removed when I left rental property, so I have seen both sides of the problem.
This amendment makes specific provision in the DDA for landlords not to unreasonably refuse consent to disabled people who need or who are willing to pay for physical alterations and improvements in order to live in safety and dignity. Between 16,000 and 18,000 disabled tenants report their landlords' refusal to consent to alterations as the key barrier to achieving suitable housing.
Reliance on the Landlord and Tenant Act is clearly not working in this area. There is not one recorded case of a disabled tenant using the Act to secure essential improvements to their home. As the Law Society argued strongly in its evidence to the Joint Committee, the LTA fails to recognise the specific needs of disabled people and the sheer complexity of its provisions make it difficult for disabled tenants to invoke.
4.45 p.m.
Furthermore, the absence of any statutory guidance on when it might be reasonable or unreasonable to refuse consent for disabled adaptations is unhelpful for landlords and disabled tenants alike. Both parties need the greater clarity and certainty that my amendment would provide. Clarity would be introduced by the amendment because the DRC is empowered to issue statutory codes explaining the DDA's provisions. The code would provide essential guidance on when it might be reasonable for a landlord to refuse consent, and when it might be reasonable for him to make his consent subject to certain specified conditions. For instance, reinstatement is likely to be a reasonable condition in circumstances where the market value of the property or its marketability is genuinely reduced by adaptations.
Landlords will also be concerned with the quality of the work. It is likely to be reasonable for the landlord to require, for example, that the work should be carried out by a member of a recognised trade body. I emphasise that the amendment does not propose any new obligations on landlords. It simply restates a key principle of the Landlord and Tenant Act in the
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context of the DDA so that disabled people might access their rights in a way that has proved impossible under the existing regime.
Disabled people are desperate for the provisions in the amendment. Whether they are meeting the costs of the adjustment from their own funds or they are assisted by the local authority, they will expect to have to come to an agreement with their landlord on future reinstatement. In most cases the deposit will cover it and the costs will not be high.
As I highlighted in Grand Committee, some local authorities are so concerned to achieve the adaptation of a property that they have offered voluntarily to meet the costs of reinstatement. I do not propose that there should be any obligation on them to do so. The fact is that in some circumstances local authorities may find it cost effective to fund such reinstatement rather than rehouse in the public sector or pay for extended social care assistance because of unsuitable housing. Indeed, the cost effectiveness of housing adaptation in that way is a point emphasised by the Prime Minister's Strategy Unit report.
I hope that with those clarifications and assurances my noble friend the Minister will be able to give me a positive response to the amendment and return at Third Reading with a suitable government amendment. I beg to move.
Baroness Darcy de Knayth: My Lords, I strongly support the amendment. 1 hope that my noble friend meets with success immediately or, at any rate, at Third Reading.
Lord Carter: My Lords, this was another recommendation of the Joint Committee. I shall not repeat all that I said in Grand Committee about it and the Government's response. It reflects a suggestion that a number of us made in Grand Committee that it might be possible to transport into this Bill the provisions of the 1927 Act to provide an answer to the problem.
After Grand Committee the Minister kindly circulated a substantial document about housing adaptations that included a long list, about two or three pages' worth, of all the legislation that might have to be taken into account by a disabled tenant who sought adaptation—all the Acts of Parliament and regulations. The only provision missing from the list was the Landlord and Tenant Act 1927, which struck me as odd when we were told that that was the Act that should be called in aid in the circumstances.
I am not sure about the drafting and all the rest of it, but I am sure that the principle is right to try to get the right to obtain the adaptation—which should not be unreasonably withheld—into the Bill in some way. The amendment might need redrafting for Third Reading but I hope that the Minister will give it a constructive reply.
Lord Addington: My Lords, I support the measure; it is a very brave attempt to square another circle.
Lord Skelmersdale: My Lords, I say in my own defence that these two amendments are very similar. The only real difference is that this one concerns paying for the adaptation as opposed to allowing the adaptation to be done.
I was going to speak about what I described as a small niggle, and which I believe the Minister described as a major obstacle, or words to that effect. However, for the moment I simply say that I support this measure very strongly. I hope that the Minister will produce a lot more comforting words than she did in Committee.
Baroness Hollis of Heigham: My Lords, we shall see. We have listened to the debates. We are holding, and have held, discussions with the DRC about all of this. Although I cannot go into detail now, we are proposing to bring forward an amendment at Third Reading, although I cannot say yet what the wording will be. We accept the need to improve the way in which the law works, including the 1927 Act, and we accept the principle that the DRC should be able to issue statutory codes of practice and should be able to support cases concerning disability related adaptations. We are looking at the best way of achieving that. The minor niggle/major obstacles remain; we shall have to discuss how we make progress on those issues and whether they count as reasonable grounds and so on. None the less, with those assurances and mindful of the time, I hope that my noble friend is pleased that we are able to pursue the spirit of her amendments and that we will come back to the matter at Third Reading.
Lord Skelmersdale: My Lords, may I reverse the process and offer the noble Baroness a meeting to discuss the minor niggle?
Baroness Hollis of Heigham: My Lords, we are working with the DRC on this but, of course, if the noble Lord wishes to have a meeting, I shall certainly not refuse it.
Baroness Wilkins: My Lords, I am extremely grateful to the Minister for that very welcome response. I am delighted that she has accepted the principle that the DRC will issue statutory codes of practice and that it will be able to support cases.
I thank all noble Lords who have spoken, especially my noble friend Lady Darcy. The noble Lord, Lord Ashley, indicated his strong support, but unfortunately the Palantype has gone down. I thank him for his support.
I am delighted that the Government will bring forward an amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 33 not moved.]
Lord Skelmersdalemoved Amendment No. 34:
Page 35, line 21, at end insert—
"24M ACCESSIBLE HOUSING REGISTERS FOR THE DISABLED

(1) Each local housing authority must maintain an "accessible housing register".

(2) The accessible housing register must outline—

(a) current accessible residential properties in the local authority area (whether purpose-built or adapted) with details of the access features relating to each property: and

(b) the provisions available for disabled people who require accessible housing.

(3) For the purpose of this section "accessible residential properties" means dwellings, flats and HMOs which provide a reasonable means of access and ease of use for disabled people.

(4) The appropriate national authority may give guidance to local housing authorities about exercising their functions under this section.""

The noble Lord said: My Lords, registers of housing adapted for the disabled were a recommendation of the Joint Committee, which asked the Government to consider whether the Bill would be an appropriate vehicle for introducing such a register. The response was that,
"we do not agree that this Bill would be a suitable vehicle for introducing a housing register",
but the Government went on to say that they encourage local housing authorities to maintain a list of properties that are suitable for disabled people. We established that this "encouragement" was by local authority circular.
I am well aware that the Government are cautious about putting duties on local authorities, and surprise, surprise, that local government associations do not want such a duty put on them. In my experience they seldom want any extra duties as they consider that governments cannot be relied on to subsidise them. They are right to be cautious, and it is not unknown for them to blame the Government for underfunding such duties, and for council tax to have to be raised to pay for them.
However, it has been shown by the local authorities I have contacted that they actually save money. I will not repeat what I said in Committee about Reading Borough Council, which is currently seeking to extend its register, but would like to say a little about Bradford, which established that the use of capital resources is inefficient because when tenants or owners of adapted premises,
"move on there is no mechanism for directing new tenants or residents … to the vacant adapted dwelling … [thus] expensive adaptations are often wasted or destroyed".
That is an extract from the committee which originally discussed this matter in Bradford in December 2000.
I shall not weary the House with too many quotations. Suffice it to say that the report concludes that such a register is a good thing and saves money. It was adopted and, from February 2002, had a permanent funding stream. A similar scheme has been set up in Liverpool called Access Liverpool, and others are to be found around the country. They are prime examples of good practice in this area and we should certainly recognise that.
Unfortunately, not enough councils are setting up registers, even with the encouragement of the local government circular referred to by the Minister. According to the Local Government Association, with which I have been in touch, I understand that there is room for improved practice on the part of local authorities in this area. However, the LGA believes that registers of adapted property would be based on historic criteria applying to the needs of past household requirements rather than the current needs of those who live in a particular neighbourhood. The Minister referred to this in Committee, but that is to miss the whole point of the register. It is there to offer disabled people a dwelling to rent. It is up to them to accept or decline it.
Every list is in essence historic. On the very day that a flat or house is added to the list, it becomes history. That is not a demerit; it means simply that a person has to see the property before they can decide whether it is suitable. Nor does it affect choice-based letting schemes, which are to be introduced in every local authority area by 2010. As I said in Committee, people are not frogmarched into accepting the first property they are offered. The register makes available to people a wider choice—that of selecting from any property that looks suitable on paper. It is for the prospective tenant to make up their own mind.
As for adaptations made many years ago and therefore not up to current standards, there is no reason why an adapted property on the list should not be readapted and brought up to date either at the tenant's own expense or with grant aid.
The position of the LGA is nebulous to say the least. The fact is that the encouragement of a circular is not sufficient. All local authorities must be more than encouraged; they must be made to compile housing registers for disabled people. I have adapted this amendment from the one I moved in Committee to take account of the Minister's implied complaint that my original amendment also covered housing that could be easily adapted for use by disabled people. I accept that that part of the earlier amendment was OTT. This amendment is not. I beg to move.
Baroness Hollis of Heigham: Given that we are mindful of the time, my response will be much more abbreviated than otherwise would be the case. No one would challenge the desirability of a housing register if the local authority itself believes that that is the right way to approach this issue. But as the noble Lord, Lord Skelmersdale, has himself identified, the Local Government Association is very reluctant to see this provision made compulsory for local authorities. It would have to be underpinned by requiring local authorities to survey all the 25 million dwellings in Great Britain. That would be a substantial requirement.
However, the noble Lord is absolutely right to point out that the voluntary approach is working well. The example of Reading is being copied and the noble Lord quoted Liverpool, where I think that the scheme is working well. Statutory guidance and the code of practice on the allocation of accommodation is being revised by the Office of the Deputy Prime Minister
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with the help of the Disability Rights Commission. Good practice guidance is also available from the relevant government departments, as well as the National Housing Federation's Level Threshold good practice guidance aimed at housing associations.
Things are going well by adopting a voluntary approach. We do not think that this is a discrimination issue. Even the DRC, which has made accessible housing a central priority, has said:
"We are very happy with the progress made. We have a commitment to placing Disability Housing Registers/an equivalent service on a statutory footing, but this Bill is not the right vehicle".
The LGA is opposed to putting this on a statutory footing, as is the DRC, but we are making significant progress on a voluntary basis which is tailored to the needs of individual local authorities. That seems the appropriate way forward. With those assurances, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Skelmersdale: My Lords, I do not myself have the resources to approach every local authority in the country. For the Government, in the shape of the Minister, to say that progress is being made in a satisfactory way I find very difficult to believe. However, at this time of night there is nothing more that I can do about it, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldham: My Lords, I beg to move that consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Science and Treaties (S&T Report)
5 p.m.
Lord Mitchellrose to move, That this House takes note of the report of the Science and Technology Committee on Science and Treaties (3rd Report, Session 2003–04, HL Paper 110).
The noble Lord said: My Lords, just over a year ago, I witnessed for myself one of the great sights of nature. I saw a magnificent waterfall cascading from a mountain on to the rocks below. The water formed a river, which disappeared under a glacier into a valley. It was a stunning sight, the sort of natural wonder that one can see in the springtime in the Alps or any other mountain range. But I was not in the Alps and it was not springtime. I was standing at 72 degrees south at the base of the Antarctic peninsula. Ten years earlier, there would have been no waterfall and no river, just the cold, icy stillness of the Antarctic summer. What I was witnessing at first hand was mankind's greatest peril—the early stages of the big melt, the global thaw that could well lead to the total elimination of the earth's icecaps and irreparable harm to our civilisation. It was a beautiful and, at the same time, a sombre moment.

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I must thank many people for helping to complete what I believe to be an outstanding report. First, I thank those noble Lords who were members of the committee itself. Secondly, I thank our special adviser, Professor Philippe Sands; his imprint can be seen throughout the report. I thank our original Clerk, Rebecca Neal, who set the tone and helped us to structure the report, and Michael Colton, who took her place and wrote most of the report itself. I also thank the staff of the Science and Technology Committee in Millbank House.
I must add one extra word of thanks, which is directed to the noble Lord, Lord Oxburgh. With barely three 0-levels in science at GCE and absolutely zero qualifications as a lawyer, I was not exactly the ideal candidate to be appointed as chair of an investigation into science and treaties, yet he still asked me to do the job. At a time when he had one or two other slightly pressing issues on his plate, he was always there for me. I thank him from the bottom of my heart.
We all worked together, and we produced what I believe to be a well reasoned and powerful report. We were entitled to a reply from the Government that mirrored our efforts. Sadly, their reply was somewhat lacking.
The report, Science and Treaties, comes at a time when the international community faces huge challenges—poverty, war and terrorism, all of which pose immediate risks. But it is the environment, particularly global warming, that has a dagger pointed at our planet's jugular. I will return to that later.
International agreements exist to better the condition of mankind. Those with a scientific component affect our health, the air we breathe, the food we eat and the water we drink. They affect energy, transport and communications. They benefit us all. Our sub-committee looked at how science informs the negotiation, adoption and implementation of certain international agreements and how government ensure that it is suitably informed. Specifically, we looked at: how we identify, understand and disseminate the use of scientific knowledge on which an agreement is based; how that knowledge is applied in anticipation of negotiations in the process itself, and after its conclusion; how the agreement is monitored; what happens when there is a scientific consensus but a minority of states choose to remain outside the agreement; and what the approach should be when there is incomplete agreement between scientists.
Although I have been critical of the Government's response, I must be fair and address the areas where they have taken up our recommendations. The undertaking to amend the Chief Scientific Adviser's guidelines of 2000 to incorporate a number of the changes that we suggested is very welcome, as is the undertaking to encourage EU institutions to follow suit.
We recommended that DfID appoint its own chief scientific adviser. That department has now appointed Professor Gordon Conway as its adviser. We were delighted at that outcome, although we would like to see
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it as a full-time appointment. The undertaking to continue to support the Intergovernmental Panel on Climate Change and the environmental work of the British Antarctic Survey is also excellent news.
On our recommendation that the Government put pressure on Russia to ratify the Kyoto agreement. would your Lordships believe that within a few months the Russians had indeed done just that? Whoever would have thought that our report would be so widely read in the Kremlin? That said, there is also much in the Government's response that we feel is inadequate, specifically on the subject of FCO science attachés, interdepartmental co-ordination, the involvement of Parliament in the treaty-making process and Kyoto.
First, I turn to the subject of science attachés at our missions overseas. No one could seriously deny the importance of this country being adequately represented for scientific purposes in countries around the world. The committee's specific concern was whether the network was adequate in China and India. In China there are at present scientific attachés in three posts: Beijing, Shanghai and Chongqing. In April a fourth post, Guangzhou, will join them. In India there are precisely two such posts, in New Delhi and Bangalore.
My instinct is that we are lagging behind other major industrial nations in our dealings with both China and India. Those two countries contain one-third of mankind. Their economies are forging ahead: their science is world-class and dynamic. In particular, China is enjoying GDP growth of over 9 per cent per annum in her quest to become the world's second super power. China may be a low-cost producer today, but her objective is to become America's equal in every respect.
The committee's view was, and is, that four posts in China and two in India are simply not enough. That was not just our view. Sir David King agreed with us and urged us to pressure the Government to increase our scientific capability in both countries. I should also make it clear that we are not asking the Government to divert resources to China and India from other countries. We are saying that, despite the cuts in resources that the FCO has recently suffered, this is something for which fresh resources must be found. I ask my noble friend the Minister to reply to that.
Next I turn to interdepartmental co-ordination. In our report we recommend the designation of a lead department. The Government's response was,
"the FCO always ensures there is a clear lead and clear roles and responsibilities for the negotiating team".
We stick to our point. There should always be a single department in charge and for this a mechanism is needed to designate it.
We also highlighted silo mentalities in departments. Sir David King was critical of that and the noble Lord, Lord Whitty, admitted as much in relation to Defra. I ask my noble friend what specific organisational steps will be taken to remedy that.
The next issue concerns the role of Parliament in the treaty-making process. At present, Parliament is presented with a fait accompli. However important the

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obligations that a treaty imposes on this country, Parliament has no say in the negotiating process or in the final wording. The European constitutional treaty, which Parliament has been able to consider in draft, is an almost unique exception to that.
Our recommendation was that your Lordships' House set up a Select Committee to review all treaties. Clearly, that is a matter for the House itself to decide, but we cannot do that without the full co-operation of the Executive, which must give Parliament all the relevant information to allow it to be involved before and during treaty negotiations and so enable it to influence the content of the treaty.
I ask my noble friend again: will the Government cooperate in informing Parliament when a treaty is being contemplated and keeping Parliament informed during the negotiation process? After all, who knows, your Lordships' House may even have some words of wisdom to guide the Executive.
I now turn to what has to be the most important subject of the report and one on which I want to press my noble friend, that of Kyoto and global warming. Two months ago very few of us knew the meaning of the word "tsunami". Today everyone knows. We have watched in horror as a massive tidal wave has wreaked devastation, killing hundreds of thousands and making millions homeless.
We know that nature's power can be devastating. But nature is also a great healer. Go back to the devastated areas in a few years' time and the flowers and trees will be in full bloom, the hotels and the tourist industry will be back to normal. True, nothing can bring back the many who were killed and the misery that will continue for their friends and family, but such is the human spirit that life goes on.
However, there is another tsunami in process. This tsunami is not caused by nature but caused by us. This tsunami is not the result of an eruption but a gradual process and this tsunami does not travel at 500 mph, it moves imperceptibly. The melting ice-caps are causing the seas to rise. Even this week the British Antarctic Survey are predicting that the speed of the Antarctic melt is very much faster than it had previously predicted.
According to its estimates, if the most vulnerable ice-caps melt, then the oceans will rise by 15 metres—much higher than the Indian Ocean tsunami. If all of it melts then the oceans will rise by 65 metres—200 feet. Even the initial melt will devastate our planet. Lower-lying land will be flooded. Food production will be devastated, our climate will become severe. A 15-metre rise will cause great coastal cities to disappear including, in the United States, New York, Los Angeles and most poignantly, Houston in Texas. This tsunami will never recede—it is for ever.
With this cataclysm already on the radar screen, I find it incomprehensible how slow the world has been in responding. The issue is urgent yet we faff around feeling pleased when we achieve minuscule results. It is not just the United States which is at fault. The Australians have refused to ratify Kyoto; China and India have been given opt-outs.
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I know my right honourable friend the Prime Minister has global warming right at the top of his agenda as we chair the G8 this year and the EU from July onwards. But in the committee's view only ratification of the protocol by the US will send the necessary signal to the rest of the world that that country takes the matter seriously. Once everyone is on board then we can all go further. I am sure the Minister will say that the US Senate is dead against Kyoto and I know the Bush administration will not accept the logic of it. However, we simply cannot give up. I ask my noble friend why this Government, who are in a unique position to do so, do not use all their capital to persuade the US Administration to ratify this protocol.
I should like to end by making a few upbeat points. Our nation's reputation in the world of international treaties is second to none. We are regarded as prime participants in the treaty-making process. We are seen to play by the rules. We believe that this gives our country a unique and very strong hand in playing a constructive role on the international stage.
For me the trip to Antarctica was a momentous occasion. That continent, so remote, quiet and pristine really does deserve the description of that much over-hyped word, awesome. The staff of the British Antarctic Survey who were our hosts looked after us beyond the call of duty. I can imagine that the prospect of some ageing Parliamentarians visiting their base might not have filled them with joy but that was never evident. Their hospitality was superb.
The quality of their work is outstanding and I can say without reservation that our nation should be proud of them. To their director, Professor Chris Rapley, and to the base commander, Steve Marshall, and to all the scientists and support staff, I say on behalf of the committee a very special thank you.
When I was a boy, fog, smog and filth were the usual residue of the British winter. Today, thanks to the Clean Air Act, all that is a thing of the past. Thirty years ago air pollution and acid rain were threatening our forests, lakes and wildlife. We and other states took action to limit emissions of sulphur compounds, including those found in petrol and discharged from power plants. Today that blight has been much removed.
Twenty-five years ago, scientists at the British Antarctic Survey first alerted the world to the depletion in the ozone layer. In a short time, the Montreal Protocol was adopted and today its depletion has been arrested.
Global warming is now the number one threat to planet earth. If we want to, we can sit comfortably in our overheated homes and drive our gas-guzzling 4x4s and shrug our global shoulders in a mood of indifferent resignation. But there is an alternative. We have it within us to turn around this pending catastrophe. All we need is the universal will and the political leadership. I beg to move.
Moved, That this House takes note of the report of the Science and Technology Committee on Science and Treaties (3rd Report, Session 2003–04, HL Paper 110).—(Lord Mitchell.)
5.15 p.m.
Lord Soulsby of Swaffham Prior: My Lords, it most certainly has been a great pleasure for me to serve on the Science and Technology Committee on Science and Treaties. It was skilfully chaired by the noble Lord, Lord Mitchell, and assisted as usual by the highly competent and versatile secretariat. My only regret about service on the sub-committee is that I was not able to go with the team to Antarctica and see the glories of that part of the world which were so ably described by the noble Lord, Lord Mitchell.
The report is opened by a quotation from the late President John F Kennedy:
"Our problems are man made—therefore they can be solved by man".
That sets the stage for the report and what I hope will follow because so many of our man-made problems are global in nature and we must look on them as such. Hence, it is logical that international agreements must play an important role in solving these problems.
The United Kingdom, because of its strength and leadership in science and scientific research, is highly regarded throughout the world as a participant—indeed a leader—in international agreements. It must continue to be so. There are a number of excellent examples of just how international action has dealt with serious threats.
Mention has been made of acid rain and the threat to forests, lakes and wildlife and the limitation of sulphur emissions. That has been a success story. There has also been the recognition by the British Antarctic Survey of the depletion of the ozone layer and the development of the Montreal Protocol, mentioned by the noble Lord, Lord Mitchell, and the arrest of that depletion. Those are two important areas of which we should be very proud.
However, a particular disappointment must be the failure to convince the United States of the need to do something about the Kyoto Protocol. I make no excuse for raising the issue again—the noble Lord, Lord Mitchell, dealt with it at length, and I apologise if I repeat some of what he said—but it is so important that it must be repeated whenever possible.
There is a need to ratify the Kyoto Protocol. It requires ratification by at least 55 parties, including those developed nations responsible for at least 55 per cent of the total carbon dioxide emissions by the developed nations as measured in 1990. At the time of our report, the Russian Federation and the United States had not ratified the protocol. The Russian Federation has now done so, leaving the United States somewhat isolated in that respect, though it is not the only nation, as has been mentioned. The USA is the biggest emitter per person of carbon dioxide: 21 tonnes per person per year and growing. The United States' arguments against ratification are based on the economic costs to industry, but they also cast doubt on the scientific basis for the Kyoto Protocol.
An article published last week in Nature, the science journal, by Dr Stainforth of Oxford University reported new findings that the greenhouse effect could be far more severe than experts had predicted. That
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conclusion was based on more than 2,000 simulations, compared with the few dozen simulations that had been conducted hitherto. The article concludes that it will be necessary to keep cutting greenhouse gases for many years to come. The conclusion states:
"The danger zone is not something in the future—we are in it now".
The task of convincing the US to take action is not going to be easy, but there are increasing signs that opinion in the US is changing at both the individual level and the state level, although not, unfortunately, at the federal level. Two days ago there was an interesting comment in the Herald Tribune on the subject. It said:
"Without global participation in emission curbs, the shared atmosphere will essentially remain a dump with no gate or tipping fees for customers rejecting the protocol".
So the United States feels that it is free to dump into the atmosphere all that it wishes.
Our report acknowledges the important role played by the network of scientific attachés in diplomatic posts overseas—the noble Lord, Lord Mitchell, also mentioned them—who promote British science and science policy. I hope that it is accepted that British science is of a very high order and that it can and does contribute much at the international level. It is also true that growing strength in nations such as China and India has led to their scientific capabilities leapfrogging those of other countries in the past decade.
I know both from personal experience and from evidence given to the inquiry that the adequacy of scientific attaché posts is a matter of concern. Some 10 years ago when I led an Overseas Trade and Expert Mission (OSTEMS) to China, there were two science attachés in Beijing. They were run off their feet attempting to deal with the promotion of British science in a country that contains one-fifth of the world's population. China's scientific capability has advanced enormously, but has the need for a substantial increase in scientific attaché staff been attended to?
There is some confusion between our report and the evidence we received and the Government's response to it with respect to the number of attaché posts assigned to China. I was in Beijing in March 2004, and my understanding from the embassy there was that the two posts that had existed 10 years ago had been increased to four, some of which are deployed in China's provincial cities, which is a good idea. However, the Foreign and Commonwealth Office maintains that the number is much larger and that, with a further two posts to support the "Year of Science" in China, there will be a group of 14.
The response does not make it clear who are the senior scientific attachés and who the support staff. I hope that the Minister can provide a breakdown of that. However, whatever the breakdown, it is essential that our science attachés are adequately resourced for the work they need to do. The need for adequate science attachés and support was clearly made by the sub-committee and also by the Chief Scientific Adviser, Sir David King.

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Related to the need for an adequacy of science attachés is that of a chief science adviser to the Department for International Development. I am disappointed, as I think the committee is disappointed, that although DfID has approved and acted on the recommendation to appoint a chief scientific adviser, the job is only on a part-time basis. That signals an overall lack of concern about the need for a scientific adviser. 1 hope that Ministers will reconsider that. We have suggested that this important Ministry requires a full-time adviser.
Queries can be raised about whether a part-time person can provide adequate support. There are so many part-time positions although we know full well that more support could be provided if the positions were full time. If we are to play a lead role in international agreements, a full-time scientific adviser, adequately resourced, will be necessary.
5.26 p.m.
Lord Oxburgh: My Lords, I, too, thank the noble Lord, Lord Mitchell, first, for agreeing to take on the chairmanship of this committee. His quite excessive modesty prevented his accepting straight away, but I am delighted that in the end he succumbed. He did an excellent job and it was a pleasure to serve on the committee chaired by him. I also congratulate him on his splendid speech.
I was another of those who enjoyed the hospitality of the British Antarctic Survey in the Antarctic. I had the benefit not only of a quite extraordinary, eye-opening experience, but also saw at first-hand first-class scientific work being carried out by dedicated enthusiasts under extremely hazardous and difficult conditions, and doing so enormously safely. It is a great credit to that organisation.
Early on in our investigation—I think almost the first briefing— we had a report on the Intergovernmental Panel on Climate Change, the IPCC. As noble Lords will be aware, it was the work of this panel that ultimately led to the Kyoto agreement in 1997. I will spend some time talking about the work of the IPCC from two points of view. The first point of view is interesting. The IPCC's pattern of work and way of working is—or was when it was set up —unique and extremely important. The second aspect has been touched on by other noble Lords; namely, Kyoto, and almost more important, what follows Kyoto.
The IPCC was established in 1988 by a joint initiative between the World Metrological Organization and the United Nations Environment Programme. I take this opportunity to pay tribute to Sir John Horton, a former director of the UK Met Office, who played an important role in the early talks and during the development of the IPCC.
The IPCC receives support from various sources: some governmental, some non-governmental. Anyone can join it. It developed a new model for providing scientific advice. The interface between science, scientific advice, policy and decision-making is never easy. Politicians, who are elected to make important decisions, frequently do not have the expertise to
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evaluate the scientific considerations put before them. So independence, objectivity and clarity are important in any scientific advice that goes to any government for decision-making.
There are two extremes. One is the pattern that we sometimes see in the law courts with each side producing its so-called experts, and the experts making ex cathedra statements about complex technical matters. There is, effectively, a confrontational exchange between two warring sides. Even if the experts in that environment are indeed experts, that is no way to establish the scientific truth. In all fairness, I have to say that many judges recognise that and have taken steps, within their courts, to do something about it. But we are all too well aware of the disasters that have come about through that approach.
The IPCC approach is the other extreme. It tries to make its pronouncements policy-relevant, and not prescriptive. It prides itself on its independence, openness and objectivity. It tackles the problems of climate change through three separate working groups. The first is on the science of climate change; the second is on the potential impact of climate change on ecosystems, the environment, the weather and us; and the third is on the possible remediation measures available to us.
It is almost incredible, but these working groups do not do any research, nor do they collect primary data. They draw on the knowledge and expertise of thousands of scientists around the globe, nearly all of whom give their time voluntarily. The individual working group reports are put together by teams of around 10 or 12 people, but sometimes teams have more people and sometimes fewer. They draw upon international expertise, as appropriate, and they receive spontaneous contributions, if that is what individuals wish. It is not fast, but it is effective.
Ultimately, teams under leaders put together reports and they are first reviewed by independent scientific experts who have not been involved in their production. Then, at a second level, they are reviewed by governments and another group of experts. Finally, the reports emerge.
The consequence of this approach is the production of reports which carry enormous authority. They represent the best consensus about what is known, what is probable and what is uncertain and about which nothing can be said. On occasions there is evidence of attempts by at least one government to interfere with the actions and the operations of the IPPC, but certainly as regards the occasions I am aware of, those attempts were firmly rebuffed and resisted. I believe that political leaders around the world are now in a much better position to judge what action is appropriate for their governments to take, given that they have consensus reports such as these on which to base their actions.
It would be worth while for all governments to consider whether such a model should be more widely used—it may be on a different scale for different activities or within a particular country, or the European Union, for particular problems. It may be

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that, if so desired, something like this could be organised through national academies or informal international grouping of national academies.
I turn to Kyoto. The noble Lords, Lord Mitchell and Lord Soulsby, have drawn attention to the importance which the committee attach to it. I commend the Government for the efforts that they have already made in the directions proposed by the committee, and which they were already making, but urge them again to redouble their efforts.
One significant development has come about since the committee submitted its report: the National Commission on Energy Policy in the United States published a bipartisan strategy entitled Ending the Energy Stalemate to meet what it describes as "America's energy challenges". The report which, I understand, has gone to all members of Congress, recommends, among other things, implementing in 2010 a mandatory economy-wide tradable permit system designed to curb growth in the nation's emissions of greenhouse gases; increased funding for renewable technology research; tax credit for all non-carbon energy sources; and establishing a 1.5 billion dollar fund over 10 years to increase domestic production of advanced, non-petroleum transportation fuels from biomass including waste. This is a significant advance. If the Government can build on that and their G8 position, it would be extremely advantageous.
In conclusion, I wish to look a little further ahead to the next international agreement, which is going to be highly dependent on scientific advice. Important though Kyoto is, even more important is what comes after Kyoto. It is essential that whatever agreement follows should take account of the developing countries. China, India, Brazil, Mexico and other countries whose economies are in the process of taking off, will be central to the success or lack of success of the world's attempts to control the emission of greenhouse gases.
Those countries together represent roughly half the world's population. It is easy to show that if they develop their economies in the same carbon-intensive way as the western world has done since the industrial revolution, any attempts made by the West to reduce its emissions today would be completely swamped. We have to find a way of assisting those countries to achieve the levels of per capita energy use that they need as they develop, but to do so in a way that is much less carbon intensive than our own economies are, and have been.
Regardless of the post-Kyoto agreement, both the need and the opportunity are there now. Today, it is possible to build power stations that are much more efficient than those of even a decade ago. Furthermore, if the technologies to capture CO2 are built in at this stage, the additional cost is roughly half that of adding them later after the power station has been built. All the emerging countries are building power stations today, and it is imperative that western governments find ways of offering collaborative technical and, if necessary, financial assistance to meet the additional costs that are involved in developing clean energy sources.
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The Prime Minister set some admirable aims for the UK presidency of the G8. Ensuring that fast-developing countries can meet their legitimate energy needs in ways that are less profligate and less destructive of the environment than ours must be high on the agenda.
5.41 p.m.
Lord Hunt of Chesterton: My Lords, I welcome the debate and the government response. The report underlines the importance of treaties and international collaboration, but it concludes that more could be done by the Government, by the scientific community, by non-governmental organisations and by the public to work together in this field.
My remarks are based not only upon my experience on the committee but also as a former chief executive of the Met Office, chairman of a non-governmental organisation and president of a scientific society.
Science, technology and engineering are essential for the well-being, health and security of the whole world, but, as Section 2 of the report emphasises, without agreements science, technology and engineering cannot provide such benefits. A topical example is the case of natural disaster reduction, which was the subject of a United Nations conference in Kobe in January.
In some cases agreements between countries and between organisations are very well established and work extremely well, as I saw when involved in meteorology. The national exchange of data and information and procedures between countries underlies warnings about tropical cyclones and hurricanes. These are now much as accurate as weather forecasts—for example. they are now 60 per cent more accurate than they were 10 years ago.
Warnings based upon these forecasts, which are technical matters, are very well disseminated internationally and are used by communities who know what to do when the warnings are received. This has taken years of close international action. A development in the late 1990s was that warnings about volcanoes, which can have devastating effects on airline operations, lead to collaboration between vulcanologists, civil aviation and meteorological services.
In the field of health the World Health Organisation operates extremely effective warning systems. But when these warning systems break down, as happened with SARS, and the information is not correct, there is great trouble.
The conclusion I draw, and, indeed, it is drawn in the report, is that these treaties and protocols have to be very detailed and specific to each situation. You cannot have a kind of generic resolution to say, "Let's have one great treaty that deals with all such events". Failure results when agreements are not in place. We saw that with SARS, and some flood warnings are poorly disseminated between countries.
Turning to another point in the report, Mr John Roberts, one of our witnesses from the Department for Environment, Food and Rural Affairs, emphasised in his evidence that to maintain these conventions requires constant scientific endeavour and activity, particularly in monitoring. He also commented that sometimes his

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monitoring is not regarded as a glamorous activity in the scientific community—it does not lead to research points in the research assessment exercise—and this is something that the Government need to consider. He felt that sometimes these treaties are not being monitored and maintained as well as they should be.
Before leaving natural disasters and international protocols I should like to bring to the attention of the House the considerable progress made at the recent United Nations conference at Kobe. I was told by other international colleagues that thanks to the excellent negotiating skills by the UK team, led by DfID, it was agreed in principle that agreements to establish what are called "extra-territorial warning systems" are needed. This concept was rejected 10 years ago at the Yokohama meeting but this time it was implemented.
There is plenty of UK expertise that could help — and this is a point made in the report on page 20—not only in the area of natural sciences and technology, but also in social science and more practical aspects. There are still major deficiencies in the world system where international protocols do not exist—for example in communicating about floods, as I have already mentioned.
Another issue in this report was the question of whether new treaties are needed. The Foreign Office evidence maintained strongly that we need to look carefully at existing treaties and arrangements before new ones are introduced. Notwithstanding the enthusiasm of the noble Lord, Lord Oxburgh, and many people for IPCC, I think we should be cautious about wheeling on, as it were, this great IPCC apparatus each time a new problem arises. In the case of natural disaster reduction for example, it is noteworthy that the Chief Scientific Adviser, and indeed the Prime Minister as I understand it, has set up a working group to consider early-warning systems. That is very welcome. There is also a suggestion, as I have read in Nature, that a new IPCC is possibly being formed for this purpose.
It has been said that the IPCC model is effective and I believe it to be so. But there are two reasons why the IPCC was needed. The first is that it needed to resolve a very controversial issue, namely whether climate change was happening. In the case of natural disasters, we know that it is happening and there are many technical issues about specific ones. However there is one aspect of the IPCC where I am entirely in accordance with the noble Lord, Lord Oxburgh. The IPCC has introduced innovative collaboration between natural and social science and science and technology. It may be that the lessons learned there could be useful in this particular field of natural disaster reduction and perhaps other areas where international treaties are needed.
Perhaps the study being introduced by the Chief Scientific Adviser will stimulate the existing bodies to improve warning systems to be extended to new areas where the systems are currently inadequate and make them more effective.
The next question is how this kind of work will both involve and be effective for the scientific community, in the UK and worldwide. As our report says, all
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government departments and agencies need to recognise this serious need to work with the scientific community. That collaboration is essential. This should be much stronger policy in government departments than it is at present. In my experience the UK is better than many other countries, particularly many other European countries, in this degree of openness, but we are still not as good as the United States.
There are also great differences between different government agencies in how they deal with the scientific community within the UK. In some areas—in the biodiversity convention for example—the biologists are very conscious of the fact that they are widely consulted. There are some government departments—I will not name names—who have been resistant to working with the scientific community.
Civil servants ought to see themselves as responding to civil society as well as to Ministers. Indeed the British Government lecture other countries about civil society, but sometimes I wonder whether we lecture to our own civil servants about civil society. That requires deeper involvement at working level and better training by government of staff who deal with technical matters in the wider national and international political context. Currently, civil servants in agencies have very little training in, and exposure to, these wider issues. Collaboration could happen if there were a more structured attempt to look at the issue.
The end of the report emphasised strongly the importance of dealing with global climate change through international action, which led from Rio to Kyoto, based upon treaties and protocols. We should remember that the United States signed the underlying United Nations Framework Convention on Climate Change—Bush I, as some call it—and continues to fund the lion's share of the science and administration of the IPCC and other activities. They have not signed the Kyoto protocol, but, as the noble Lord, Lord Soulsby, and others said, some parts of the United States are fully committed to it and wish to participate.
The UK's science and technology staff in our embassies around the world arc working hard and effectively to publicise the need for action on climate change and how science and technology in the UK can contribute. Next week the consul-general of the Foreign and Commonwealth Office in Houston is organising a party of UK scientists—of which I shall be one—and experts to focus on climate change and coastal cities. It is particularly topical, following the tsunami disaster and the United Nations conference at Kobe.
The fine print of the conclusions of the Kobe conference included the finding that climate change is exacerbating the vulnerability of communities to natural hazards. There was a fear at one point that a certain country might wish to dilute or exclude that but I understand that the strong negotiating stance of the UK Government ensured that it remained in the final communiqué.
Several House of Lords committees have endorsed the importance of climate change. I gather that there is a worry at the moment that the Economic Affairs

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Committee of the House of Lords is wobbling on the matter. I hope that this debate will be transmitted to that committee. The unanimous view expressed in debates in this House and during previous committees is that national and international action must be strengthened. Although the Government have publicised the science, as we have seen this weekend in the international conference, which has been very effective, there now needs to be much more emphasis on the technological solutions to reducing carbon emissions. It was very welcome that today in the newspapers the Chief Scientific Adviser focused on the technological aspect.
Here, too, international action lies as much in the field of engineering and economics as in science. We are very pleased that the president of the Royal Academy of Engineering, the noble Lord, Lord Broers, is in his place today. The United Kingdom engineering community has hardly been involved as much as it should have been in the climate-change policy. Just as we cannot accept faulty drugs, or dangerous cars, ships and aeroplanes, surely international action through engineering development and trade should aim to penalise the manufacture and trade of inefficient products and to incentivise the creation of more effective products with low energy use.
5.53 p.m.
Baroness Walmsley: My Lords, I pay tribute to our chairman, the noble Lord, Lord Mitchell, for his leadership; our special adviser, Phillipe Sands; our two Clerks, Rebecca Neal and Michael Collon; our scientific assistant and all our staff for their hard work to help us produce this report. I also thank the British Antarctic Survey for giving my colleagues and me the opportunity to gain an insight into the working of a treaty in practice and the importance of the Antarctic Treaty in particular.
I have already mentioned during several debates in your Lordships' House our experiences in the Antarctic. Only last week, during a discussion on the power of positive language in the debate on the Education Bill, I talked about our experience of abseiling into a crevasse and, more importantly, climbing out again. Those who saw me try to climb out again will understand why it imprinted itself so firmly on my mind.
Our chairman, the noble Lord, Lord Mitchell, made an excellent and passionate speech. My only disagreement with him was his calling me an ageing parliamentarian—I will see him outside. As a member of the committee I believe that it is vital that we do everything well in relation to our involvement in international scientific treaties. Some might say: "Well, it is only a boring treaty; it is not a matter of life or death". That is exactly what it is, as this week's revelations have shown. Global warming is a topical issue at the moment because of the meeting of the world's greatest experts on climate change taking place in Exeter this week. Many noble Lords will have been as horrified as I was to hear some of their most recent findings. One said that we may soon reach the point of
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no return with global warming, and it will soon be too late to reverse the changes; and there could be a 70 per cent chance that the Gulf Stream could be switched off. Others announced that the Earth may be heating up twice as fast as we thought. The British Antarctic Survey found that the melting of ice shelves, such as the Larsen and Wilkins shelves—not in itself a major contribution to raised sea levels—was removing a barrier to large glaciers. Those are now shown to be slipping six times faster than we thought into the sea, which certainly has the potential to raise sea levels considerably, as the noble Lord, Lord Mitchell, said. This sort of work alone justifies our continued enthusiastic support of the work of our scientists in the Antarctic. Their work on atmosphere and weather is also vital to just about everything on the planet, not just the cricket.
In the light of these pessimistic predictions, our Recommendation 22 is that the Government should make even more important persuading other countries who have not done so, such as the USA, to sign the Kyoto treaty. I recognise what the Government have done in this direction so far, but I hope that we can be assured that it will remain a priority and appear on the Mr Blair's "to do" list every time he speaks to Mr Bush. We cannot do very much alone, but we could have a big influence on others.
At the Exeter meeting, Mrs Margaret Beckett pointed out that because human activities produce results in the atmosphere up to 20 years later, strict adherence to the Kyoto agreement will only knock 2 or 3 per cent off the 30 per cent increase in CO2 expected between 1990 and 2010. She said that some global warming is inevitable. In the light of that, it is important that people do not say: "Then there is nothing that we can do about it". Look what happened over the hole in the ozone layer, also discovered by BAS scientists. The international community got together and agreed the 1987 Montreal Protocol, which has led to a measurable improvement and saved human lives as well as plant and animal species. This protocol, like all treaties, was not set in tablets of stone. In the light of new scientific understanding, additions were made to the list of chemicals that are dangerous to release in the atmosphere, and a faster timetable was adopted. The results speak for themselves. Ozone depletion was halted and even reversed.
That was an excellent example of the effectiveness of ongoing global scientific collaboration and the need for constant monitoring of the terms of treaties based on good scientific evidence. Persuading other nations to sign treaties is important, but ensuring that the ongoing monitoring and maintenance of treaties is done properly is just as vital, as the noble Lord, Lord Hunt, mentioned.
Unfortunately, when we visited the Antarctic we discovered some concern about the resources needed for the international advisory panel of scientists who advise the conference of the parties. Our UK contribution is made by experienced scientists over and above their regular jobs. Younger scientists may not be prepared to do that after the existing advisers

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retire. They have more pressures: to publish; to teach; to sit on other committees and to go home to the children occasionally. We in the UK need to do our bit to resource our contribution properly and to encourage other countries to do the same. If we show an example, others will follow. It does not take a lot of money.
Other treaties need constant monitoring. For example. CITES gets regularly amended as the species that need to go on to, or come off, the endangered list change. We need good quality, independent scientific evidence for this. Scientists need time to do the international committee work. It is as important as their research and teaching commitments, but they will not do it, or their institutions may not let them, unless resources are made available.
We made recommendations about the involvement of Parliament in the treaty process. The first was that where an international agreement is in prospect, the lead department should lay before Parliament at an early stage and on a continuing basis all documents that will enable it to decide whether to recommend an action.
We also suggested that a Select Committee should be set up, to which such agreements should be referred. The Government's response was to say that they already keep Select Committees informed about policy developments and they think that we already have enough committees—but that is a matter for us. They suggested that they should send Command Papers referring to scientific treaties to us, the members of the Science and Technology Select Committee.
That will not do. We have enough to do with our usual reports. If we also had the responsibility to scrutinise all the treaties it would fetter our ability to report on other matters and sometimes be a thorn in the Government's side. I do not know whether the Government think that they would keep us quiet by showering us with extra work, but I assure them that it will not work. We will remain independent of mind and continue to criticise the Government where necessary.
The Government cited the draft European constitutional treaty as one on which they had kept Parliament informed, but the key part of our recommendation relates to the fact that it is most unusual for prospective international agreements to be communicated to Parliament at draft stage; crucially, at a stage where influence can be exerted on our negotiating position. While we appreciate the proposed mountain of paper, that is not what we asked for. I endorse the words and questions of the noble Lord, Lord Mitchell, on the matter.
I turn to public involvement in science. There is a great deal of public interest in the UK's involvement in scientific treaties. We think it is important in a democratic society and to ensure public understanding and approval to make it as easy as possible for people to know what we have signed up to. That is why we state in Recommendation 13 that the Government should make available on a single website information
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relating to all international agreements to which the UK is either a party or for which negotiations are in progress.
The Government's response pointed out that those agreements to which we are a signatory are already on the FCO website in the treaties section. I had a look and I have to say that it needs some improvement to make it more user friendly. It contains a mass of information but treaties are not grouped into broad subject areas, which would help a user with a particular interest, such as someone who just wanted to look at the scientific treaties.
Additional information, we are told, is in various Command Papers that are also available on the Internet, but only if one knows where to look. There was not any help leading users to additional relevant information. While I congratulate those involved in making available the amazing amount of information, it needs a little lateral thinking to make it useful. We need to put ourselves in the mouse of the user and we will obtain a much better website. If the FCO wants to see a really good website it should look at the BAS website.
However, we also recommended that when presenting international agreements to the public the Government should present the assessment of risk and the degree of uncertainty openly and in terms that can be understood by non-scientists. I am pleased to say that we have had confirmation that that will be incorporated into Guidelines 2000 during the forthcoming review. I also applaud the work of the Government's Chief Scientific Adviser, Sir David King, in bringing the seriousness of climate change home to a wider audience.
Finally, I endorse the comments of the noble Lords, Lord Mitchell and Lord Soulsby, about scientific attachés in China. My son is a scientist working in China, so I know from first hand how vibrant scientific development is there. We in the UK must exploit our opportunities and not let them slip through our fingers. I look forward to the Minister's response to the issues that we have raised.
6.4 p.m.
Lord Dixon-Smith: My Lords, I share with the noble Baroness, Lady Symons of Vernham Dean, a rather negative qualification for taking part in this debate; namely, that neither of us is a member of the committee.
Having said that, I know exactly how the noble Lord, Lord Mitchell, feels as, like him, I had the privilege of chairing a sub-committee of the Science and Technology Committee some years ago. It is a very enervating and thrilling experience when you bring your work on the committee to a conclusion. I congratulate the noble Lord on this report which is very pertinent to so many of the major problems that face not just British but also global society today.
This is a significant report, albeit directed at a specific aspect of the subject. It is perhaps unremarkable that there has been debate about global warming in the discussion on this report, but the report itself examines how we deal with the mechanisms of government to make progress in these matters. I shall try to address

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most of my remarks to that aspect although I am afraid that I shall inevitably fall into the trap of discussing global warming.
The question that we are really examining is the appropriateness of the government structure, and all the scientific structures related to that, to deal with the problems that we face today. That matter is well illustrated in the report but curiously enough not in relation to global warming. Paragraph 3.9 deals with the issue of technetium-99 and the OSPAR Convention. I refer to the small tightly defined subject of radioactive material being dealt with in a particular way. As the report says, the costs of dealing with it bore no relationship to the benefit gained by society, essentially because the scientific and engineering advice were not in place in time. At one extreme that small and insignificant issue illustrates what this report is all about.
At the other extreme, the issue of global warming has to be considered on a completely different scale. The science is imprecise and is evolving. We do not know all the answers. The consequences for society are unpredictable. Although many predictions are made, there is no absolute certainty yet. In my view it is certainly not a science. However, one is equally certain that we cannot afford to ignore what has been said.
Not least of the problems that we face which are mentioned in the report—this is the core of the report—is the relatively small part that we as a country play in global science. The report makes the point that some 5 per cent of global scientific research is conducted in the United Kingdom. You need no brains to work out that 95 per cent of it is being conducted elsewhere in the world. The report informs us that we have 39 scientific attachés and 76 full-time equivalent employees dealing with scientific matters in embassies around the world. There has to be a very large question mark regarding whether that is sufficient for us to glean the information that we need which is in the best interests of this country. Do we know enough of what is going on elsewhere, and can we pick up on new developments which may be relevant to work being done in this country? Is that level enough even to save us from reinventing the wheel? I am sure that a lot of that sort of thing goes on.
The most important lesson I learnt during my time serving on the Science and Technology Committee is that scientists talk to scientists with great facility. I cannot help but think that some strengthening of the diplomatic effort in science by enhancing the scientific presence in our embassies would be a great help. I listened to what the noble Lord, Lord Mitchell, had to say about the Government's response to the report, but I look forward to hearing, despite that response, whether the Government themselves are likely to do anything to strengthen the scientific elements of our diplomatic representation.
I turn to the protection of British scientific interests, which is quite a difficult subject. If you are not careful, these people could be turned into spies. That is not the intention at all. The international scientific network is a remarkably freewheeling organisation, and that is
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highly admirable. However, having enough bodies on the ground to detect what is going on and able to understand it is very important.
I return to the huge, unknown and vexed question of global warming. A matter that gives me concern is how the whole question is reported. There is an unfortunate tendency in the media to hype reports. When the conclusions reached by computer modelling exercises are published, all too often the media report them as facts without making clear the parameters used to create the computer model. It must be said that a certain level of hype in media reporting does make the community at large more aware of the issues and is actually helpful. But the media are not helping the argument because they create problems in terms of credibility in the public mind. That, too, is an important aspect. In all matters scientific, including scientific agreements, it is absolutely essential that the public and Parliament, which has its part to play, understand what is going on.
After reading the report, I tried to envisage a flow chart showing all the scientific information which needs to come into government and, more important, the information that needs to make its way out again. If it is not a contradiction in terms, I envisaged what I call a spherical spider's web. Diplomatic scientific attachés and scientists attending international conferences are on the outer periphery, working inwards and in many instances in parallel through diplomatic, scientific and commercial channels. Within this country we reach academia and commerce, the Royal Society and the professional institutions. All these groups inter-communicate. By the time we reach this level, we see larger amounts of government funding and government-sponsored research. In the middle I found myself looking at the Parliamentary Office of Science and Technology and the Chief Scientific Adviser to the Government. I do not envy him his position. Trying to make sense of, interpret and make relevant scientific information to government and Ministers so that they can formulate policy is an immensely complicated matter. Having arrived at that, I found myself wondering whether the way in which the Government handle scientific knowledge and information is best and appropriate for the task that we face today, bearing in mind the international complexities.
Leading on from that, yet another point is whether the Government's structure itself is appropriate, particularly to deal with the consequences of global warming. The Government's Chief Scientific Adviser spoke about the "siloisation"—that is a new one for the Oxford English Dictionary so far as I am concerned—of government departments. Siloisation is certainly not appropriate when dealing with global warming. The departmental closed shops, if I can put it that way, do not help to take relevant policy decisions in a number of departments. One does not have to think very hard for Defra, the Office of the Deputy Prime Minister and the DTI all instantly to come to mind as having conflicts of interest in matters environmental.
I would like to touch on one final issue, as it is important. I attended a conference on global warming of those American interests who oppose the concept

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and say that it is not a problem. I want to raise the issue—they raised it—of the absolute importance of maintaining the integrity and independence of scientific advice to government. The argument used at that conference was that most of the research was funded by government. Researchers have an interest in giving government the answers that they think it wants so that they can continue the research, and so it goes round in circles.
Those people could not see the mote in their own eye, which I thought slightly odd. There was no question that it was there. However, the conference made the essential point that scientific advice must be scientific advice. It must not be fed by prejudice, political correctness or any thought that, by providing a particular answer, you will satisfy those who provide your funding. The advice must be straight. If it is not, the whole system will fail.
I have raised the issues that I wish to raise, and I look forward to the Minister's response.
6.18 p.m.
Baroness Symons of Vernham Dean: My Lords, I thank my noble friend Lord Mitchell for opening the debate. Through him, I thank all members of his committee for their very valuable report. In the course of the debate, your Lordships have drawn attention to a variety of concerns about issues covered in the report. I shall pick out what seemed to be the four central matters of concern. They were: the science attachés or offices in our missions abroad; the environment, particularly the Kyoto Protocol; interdepartmental co-ordination; and the involvement of Parliament in scrutinising draft treaties.
In the first instance, I turn to the question of science offices in the Foreign Office. We were happy to see the committee's acknowledgement of the efforts that the Foreign Office has made to expand and embed science work in international relations—although I am bound to say that my noble friend Lord Mitchell still has some pretty astringent criticism of our work in that area. In fact, the Foreign Office has made a substantial increase in the number of science officers in recent years and has given priority to science resources in important emerging economies, which include China and India.
The noble Lord, Lord Soulsby of Swaffham Prior, was right to mention the United Kingdom's leading position in terms of treaty formulation on scientific issues. But we have also striven to deal with those issues in the way in which we have spelt out the Foreign Office's strategy. To that end, on 22 July 2004 the Foreign Office published a strategy for science work, together with the third science and technology annual report, profiling the achievements of the network of our science attachés and officers. In launching those documents, my right honourable friend the Foreign Secretary said that making science central to diplomacy is vital if we are to address the challenges of the future.
My noble friend Lord Mitchell was very concerned about the number of attachés we have throughout the FCO. When the Foreign Office reviewed its science and
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technology activity in 2000, we had 34 people in I1 missions in 10 countries and territories undertaking science and innovation work. I am very pleased to say that we now have 97 people in 45 missions in 26 countries and territories actively taking forward the science agenda. So the network has not just doubled. but it has almost tripled since 2000.
Of course, in 2002 the FCO received funding through spending rounds to create a global network of science officers. The geographical deployment of the resource was agreed in consultation with stakeholders, including the Government's Chief Scientific Adviser and the Minister responsible for science and innovation. The criteria for the priority countries included the quality of the science base, the scope for wealth creation and the degree of influence on global issues that those countries might have. The criteria also took into account the opportunity to liaise on science policy developments and to build those all-important bilateral relations.
The noble Lord, Lord Dixon-Smith, spoke very persuasively about the importance of those international relationships. However, I was a little perplexed by what he said about 5 per cent of all science in the world being carried out here. He obviously thought that that was a very small proportion. I am not sure how he measured that, but given that we have only 1 per cent of the population of the globe, we have 13 per cent of all research citations awarded in respect of work undertaken in this country. Our scientific base is one about which we should not be complacent, but in which we can take some satisfaction. It is important that our centres of excellence are those in which we take some pride and that we use them in our international relationships to further the matters that we believe are important.
China and India have exercised some of your Lordships greatly, including my noble friend Lord Mitchell. Our work in science and innovation in China has been very significantly enhanced in terms of numbers and seniority. As well as mainland China, science and innovation work has also been taken forward in Hong Kong and in the territory of Taiwan. Currently we have nine people in mainland China dedicated to this work, and a further two will start in April. So we have 11 officers engaged in this work and not four. We have also appointed two people to support a year of science campaign taking place in China this year.
Altogether that means that we have 13 people, led by a new councillor, which represents a substantial increase over the original allocation of two people undertaking science work in China in 2000. The FCO has a dedicated science officer in each post in China, with the exception of Macau. Therefore, we are not quite sure why the committee took the view that we should increase the number of posts with dedicated scientific officers. We believe that we have already addressed the issue.
I turn to India. In 2000 we had no dedicated science and innovation resource in India and now we have a team of four people focused on the high-tech centres in India, in New Delhi and in Bangalore. We shall take

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further steps forward in science and innovation work as an important aspect of the Prime Minister's initiative on India. That paints a rather different picture from that of almost unremitting gloom given by some members of the committee.
It is very important that the Foreign Office has made it a priority to ensure that science officers are fully integrated into the work of their missions. Their work is reviewed on a regular basis and the evidence of an integrated approach with colleagues at the mission is one of the key criteria for assessment. We are pleased to note that the Select Committee welcomes the approach taken to develop the network of science officers and to integrate them into their mission but we believe it is important that they get the picture right as to what is currently happening. I should also say we will be reviewing the science and innovation network later this year.
The noble Lord, Lord Dixon-Smith, was right to put this argument into the broader context of how science can be used to underpin government policy in general. I listened very carefully to the concerns of committee members about the way in which science is able to inform government policy.
To be honest, I felt that some of those criticisms were a little dated. Let me try to explain why I think those criticisms—although possibly valid some three or four years ago—are not quite as valid today. In particular, our science work does inform policy on climate change. It is designed to do exactly that and we believe it is making real progress. I was very grateful to my noble friend Lord Hunt of Chesterton for acknowledging this effort.
In February 2004 the Foreign Office launched a yearlong campaign in North America to highlight the United Kingdom's science and innovation achievements. Working closely with the British Council the campaign focused on two core areas: energy and the environment and biotechnology. Sir David King gave a plenary speech at the official campaign launch at the American Association for the Advancement of Science in Seattle emphasising climate change and its effects and he also led a workshop on Capitol Hill.
My noble friend Lord Mitchell was graphic in his opening remarks about climate change and rightly so. It is a subject of the greatest possible importance in any year but naturally very particularly we focus on it this year given our impending G8 presidency and the importance the Prime Minister has attached to climate change.
The climate change conference in Berlin last November involved joint working between environment and science teams to ensure a strong scientific component to this significant event, a part of the Queen's state visit. The conference brought together some 170 top scientists, policy-makers, industry leaders, financial institutions and other stakeholders from the United Kingdom and Germany.
The follow-up effort includes a memorandum of understanding that will provide a framework for collaboration on climate change science. There will
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also be a bilateral action plan to outline future activity and FCO-funded seminars on specific aspects of climate change. Just two days ago a leading Australian expert on climate change emphasised the role of science in the debate on global warming and held up the United Kingdom's approach as being a model in this respect.
The committee particularly wanted diplomatic effort to focus on persuading countries not yet signed up to the Kyoto Agreement to do so. We have been putting a huge amount of effort into this. Let me be clear with my noble friend Lord Mitchell and the noble Baroness, Lady Walmsley. The United Kingdom is firmly committed to Kyoto. It is an extremely important first step in global efforts to tackle climate change and we will continue to lead by example in meeting our commitments under it.
Like my noble friend Lord Mitchell the Government are delighted with Russian ratification of the Kyoto Protocol which will come into force on 16 February 2005. The UK looks forward to continuing to work closely with Russia bilaterally as well as with our EU partners in sharing experience to implement the protocol.
The Kyoto debate is the crucial underpinning on this issue. However Kyoto is a means to an end. The end is dealing with climate change itself. I am delighted that the Prime Minister is committed to using the 2005 EU and G8 presidencies to reinvigorate the debate and to build consensus on the scale and urgency of the challenge that the international community faces in addressing climate change.
I am bound to say to my noble friend Lord Mitchell and to the noble Lord, Lord Soulsby, that I find it hard to know how the Prime Minister could be giving this issue much greater emphasis and profile. Our presidencies of the G8 and the EU give us an excellent opportunity to try to reinvigorate international momentum. As the Prime Minister set out, we want to use the UK's presidency of the G8 to build a solid foundation on science and to promote greater understanding of the size and scope of the problem of climate change. We want to develop a package of practical measures on science and technology to help cut emissions. And we want to engage with countries outside the G8 which have growing energy needs both on how these needs can be met sustainably and how they can adapt to the impacts of climate change which are, as my noble friend Lord Mitchell said, already inevitable.
The United Kingdom has organised a major scientific conference at the Hadley Centre for Prediction and Research over the past three days. The aims included advancing scientific understanding of the impacts of climate change, the different levels of greenhouse gas stabilisation and encouraging research on these issues. The United States has sent strong representation at senior levels from within the government and also from its academic communities. I was grateful for what my noble friend Lord Hunt said in acknowledging the work undertaken by United Kingdom participants at the conferences that have taken place on climate change.

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The noble Lord, Lord Oxburgh, raised questions about the IPCC—the Intergovernmental Panel on Climate Change—as did my noble friend Lord Hunt of Chesterton. The Government fully support the IPCC and consider that it plays an important role. The UK provides the co-chair, Professor Martin Parry, of two working groups of the IPCC and holds a technical support unit at the Met Office. It is providing financial support for some 30 to 40 lead authors engaged in heading up chapters in various assessment reports of the IPCC, including the forthcoming fourth assessment report due in 2007.
All noble Lords focused not only on Kyoto but particularly on the US policy decision not to ratify it. The US Government's position against Kyoto is well known. My noble friend says he knew that as well as anyone else. He also said that we ought to be expending "all" our political capital with the US on this cause. I am bound to say that if the Government spent all our political capital on every cause, as we are urged, with the US, we would have depleted resources very quickly.
Nevertheless, we are working with the US on a range of initiatives to tackle climate change and to promote sustainable energy. Our objective remains for the US to adopt a more ambitious domestic policy aimed at stabilising and ultimately cutting emissions in real terms. We also want the US to take an active part in the international dialogue on climate change and a post-Kyoto framework. We are therefore working very hard indeed to persuade the US that it is possible to reduce emissions while maintaining strong economic growth. It is possible in just the way the noble Lord, Lord Oxburgh, described. The UK experience has shown that very well. Between 1990 and 2002 we cut emissions by 15 per cent and our economy grew by more than 30 per cent.
We will continue to raise this at all levels with the US Government. The Prime Minister last raised it with President Bush when he was in Washington in November 2004. We believe that there is a growing momentum for action in the US at state, city and business levels. Actors at these levels value the leadership the UK has shown and 2005 will offer us another opportunity to take that argument further forward.
The noble Lord, Lord Mitchell, asked specifically about how inter-departmental co-ordination on science is implemented. The Office of Science and Technology is working with other government departments to improve the quality of its science and innovation strategies. That is important work. This includes working with the Prime Minister's strategy unit and the ministerial group on innovation in the knowledge economy to assess those strategies according to a range of criteria. For example, it is looking at the degree to which the strategies take account of work in other government departments and are co-ordinated with work under way in the wider science base. The departmental chief scientific advisers also meet on a regular basis. The ministerial group on innovation in the knowledge economy is chaired by the
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Secretary of State for Trade and Industry and has cross departmental oversight of the 10-year science and innovation investment framework.
The noble Lord, Lord Soulsby, asked about the DfID Chief Scientific Adviser. We are delighted by DfID's decision to appoint Gordon Conway of the Rockefeller Foundation as the scientific adviser. To secure such an eminent, universally respected individual, whether on a part-time or full-time basis, is a very powerful signal of the Government's commitment in this area. His appointment was, for example, warmly welcomed by all parties at this week's major UK/Canada/Africa seminar on science and capacity building. I assure the noble Lord, Lord Dixon-Smith, that we are well seized of the importance of scientific advice being independent.
Another point that exercised my noble friend Lord Mitchell and others was that of parliamentary scrutiny. We are committed to keeping Select Committees informed of progress on international agreements where that is possible and practical. The various specialised Select Committees of both Houses are experienced in holding the Government to account on important policy developments and we welcome such dialogue. Committees need information to be able to perform such a duty properly, which is why we say in response to this report that as a general principle we will provide Parliament with documentation relevant to significant international agreements, where that is feasible in practice.
I heard the comments of the noble Baroness. Lady Walmsley, and all that I can say to her is that if we said anything else, she would be jolly cross about that, too. The noble Baroness also pursued the idea of a new committee for new treaties. Whether a new committee should be set up to examine potential international scientific agreements, rather than leaving the task to existing specialised committees, is a matter for your Lordships to decide. I think that the Science and Technology Committee would be well qualified to perform that task, but we are concerned that a system of compulsory preliminary scrutiny may tend to reduce the flexibility of the Government in their negotiations with other countries. The Royal Commission specifically addressed that issue in its report. It said that there might be dangers in any arrangements for enhanced parliamentary scrutiny which could strain the ability of Ministers to make judgments in the course of fast-moving negotiations. That point is well worth addressing.
The present arrangements already provide considerable scope for parliamentary involvement in treaty scrutiny. For example, many treaties require legislation before they can take effect in UK law. The Government do not bind themselves to such treaties before the required legislative changes are in place. Treaties not requiring legislation are subject to ministerial accountability to Parliament in exactly the same way as other areas of policy.
Those treaties, subject to ratification or its equivalent, are required under the Ponsonby rule to be laid before Parliament for 21 sitting days before any further action takes place. We have ensured that Select Committees in

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another place have the opportunity to consider each treaty laid before Parliament under that procedure. Since 1997, following the excellent suggestion from the noble Lord, Lord Lester of Herne Hill, all such treaties have routinely been accompanied by an explanatory memorandum. I will look at the suggestion made by the noble Baroness, Lady Walmsley, regarding the website. Those points were good and deserved further attention.
Noble Lords were concerned about the British Antarctic science effort. I agree with the noble Baroness, Lady Walmsley, about the importance of the issue. We are committed to maintaining the UK's high profile within the Antarctic treaty system and we recognise that securing strong scientific support for policy input into the Antarctic treaty and supporting the British Antarctic Survey to undertake world-class science reinforces the UK's influence and status at Antarctic treaty negotiations.
I thank all noble Lords for such an interesting and well-informed debate. I hope I have been able to assure your Lordships about how seriously the Government take these issues and about the amounts by which the resources we have dedicated to the subject have
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increased. I hope that I have also reassured noble Lords about the considerable effort that has gone into co-ordinating the government response. I assure your Lordships that the effort will be sustained not only in this year of our G8 presidency, when we have such an important issue on which to focus, but beyond. I am sure that the vigilance of your Lordships will similarly be sustained. I thank the committee for all the wisdom and commitment that it has devoted to drawing up the report.
Lord Mitchell: My Lords, I knew, beforehand, that this was going to be a good debate, and so it has turned out. I thank all noble Lords for their input, their expertise and their wisdom. I think every speech has centred on the subject of global warming. Look at every newspaper—it is a key headline issue, and that will continue. It is the absolute topic of our time.
I thank my noble friend the Minister for her usual robust speech. It was an excellent wind-up speech and, yes, I do feel very much more encouraged and reassured.
On Question, Motion agreed to.
House adjourned at twenty minutes before seven o'clock.

Official Report of the Grand Committee on the Charities Bill [H.L.]
(First Day)
Thursday, 3 February 2005.
The Committee met at quarter past three of the clock.
[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
The Deputy Chairman of Committees (Lord Ampthill): Before I put the Question that the Title be postponed, I remind the Committee of two points of procedure. Noble Lords will speak standing, and the House has agreed that there shall be no Divisions in Grand Committee. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Title postponed.
Clause 1 [Meaning of "charity"]:
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Hodgson of Astley Abbotts: As we begin the Committee stage, I declare several interests relating to the charitable sector, all of which are recorded in the register of the House.
Winding up the Second Reading debate on the Bill for the Government, the noble Lord, Lord Bassam of Brighton, said:
"I cannot remember a time when legislation that the Government have brought forward has attracted so much support from so many corners of your Lordships' House".—[Official Report, 20/1/05; col. 958.]
He was right. There was almost unanimous support in principle for the purposes behind the Bill. However, I have been surprised by the volume of representations that we have received about the implications of the details of the Bill. Accordingly, as can be seen from the Marshalled List, we have felt it necessary to table a substantial number of amendments. Although we shall raise several important points of principle, many of the amendments are, at least in the first instance, probing amendments.
The charitable sector is anxious for explanation and clarification of government thinking on what lies behind the Bill. We therefore want to offer the Minister the chance to put that thinking on the record, so that the sector can appreciate the detail of what is proposed for it. In order to make the process as effective, constructive and quick as possible, we have been happy to indicate in advance our areas of concern, so that the Minister can address them directly in his reply.
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Wedged as I am between the Minister, backed by the heavy artillery of the Bill team, and the noble Lord, Lord Phillips of Sudbury, with his expert and extensive knowledge of charities and charity law, I offer only a layman's view. Opposing the Question that the clause stand part is one of our probing tactics.
As we have already indicated to the Minister through the Bill team, we want an opportunity to explore how, the Government think, the charity law regime in England and Wales will mesh with that in Scotland. We are concerned with aligning the legislation, rather than redrafting or removing the clause. We have a concern about the lack of congruity between charity law in England and Wales and that in Scotland and, potentially, that in Northern Ireland. The consequences of any discrepancy could be considerable, so I am opposing the Question to find out from the Minister what potential discontinuities have been identified and what discussion and action have taken place to bring charity law throughout the United Kingdom into line.
At Second Reading, the Minister's colleague, the noble Baroness, Lady Scotland of Asthal, dismissed concerns about compatibility in charity law. She said:
"Continued co-operation between the Executive and the UK Government, and the Charity Commission and its Scottish counterpart OSCR, will aim to ensure that in key areas—such as the definition of charity—the two Bills are fully compatible. Charity law is also devolved in Northern Ireland, and it is likely that there will be reforms there too, although proposals are in the early stages".—[Official Report, 20/1/05; col. 884.]
I am not sure that that is accurate. We understand that the draft legislation on charity in Scotland contains a definition of "public benefit". That causes complications in several ways. As we have already made clear, we do not wish to see a definition of "public benefit" put into the Bill, but the fact that the Scottish Bill has differing provisions—particularly one concerning such an important issue as the definition of "public benefit"—must be of concern to us.
Clause 8 of the Charities and Trustee Investment (Scotland) Bill is entitled "Public benefit". It reads as follows:
"(1) No particular purpose is, for the purposes of establishing whether the charity test has been met, to be presumed to be for the public benefit".
So far, so good. We understand the removal of presumption. It continues:
"(2) In determining whether a body provides or intends to provide public benefit, regard must be had to—
(a) how any—

(i) benefit is gained or is likely to be gained by members of the body or any other persons (other than as members of the public), and

(ii) disbenefit is incurred or likely to be incurred by the public, in consequence of the body exercising its functions compares with the benefit gained or likely to be gained by the public in that consequence, and

(b) where benefit is, or is likely to be, provided to a section of the public only, whether any condition on obtaining that benefit is unduly restrictive".
That drafting on the concept of public benefit is considerably more restrictive than that which exists in English charity law or, indeed, is proposed in the Bill.

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That, of course, in England leaves definitions to developments in the common law rather than being frozen in statutes. Differing definitions between the two countries will, of course, result in different practices, which will in turn cause conflict, which is undesirable for the sector as a whole.
Without positive alignment, there could be negative repercussions on several fronts, in particular for university funding, medical funding and for the military service charities, all of which cross national boundaries. For example, the three branches of the armed services recruit from the four nations of the United Kingdom. To have separate legislation covering Scottish and Northern Irish makes no sense when one is dealing with the Armed Forces of the Crown as an entity.
The Minister will be aware of the concerns that the service charities have—the non-public service funds—because they will have to register with the Charity Commission under the Bill. We shall debate the desirability of that when we come to Amendment No. 114. but, for the time being, which national charity authority, for example, will be responsible for the regulation of a service charity of an RAF squadron serving in Scotland or a UK Army battalion serving in Northern Ireland?
A further case in point is the restriction that prevents Scottish and Northern Irish units from investing in the Army Common Investment Fund, a charity registered in England and Wales. To allow such local differences to persist causes confusion and resentment. Surely, a common regulatory system should apply to the Armed Forces charities, irrespective of unit identity or location, in the same way, for example, as the Army Act applies across the whole structure of the Army.
Similar concerns arise with medical research charities. Maintaining our medical research base is important to the future of UK plc, and three different regulatory regimes could make the processing of charitable gifts complicated.
Much the same applies to universities. The Scottish Higher Education Funding Council regulates in Scotland, the Higher Education Funding Council for Wales in Wales, and the one for England regulates in England. With different regimes and different regulatory procedures, the solicitation of charitable gifts or donations from alumni who may well live in one of the other countries could face the same complications as the medical research charities.
The Minister—and perhaps the noble Lord, Lord Phillips—may say that it was always thus: that Scottish charity law has always been different from that of England and Wales. That may be so, but an important change will take place as a result of the passage of this and the Scottish Bill. Some may characterise the present charity regime on both sides of the border as being based on benign neglect, but that will not be the case in the future. If the Bill is to achieve its strategic objectives, public confidence, public accountability and transparency, the Charity Commission and, no doubt, its Scottish counterpart
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will have to be hands-on and proactive in their roles. This will highlight any inconsistencies and force the addressing of potential difficulties to cross-border charities of the type I have just described.
I look forward to hearing from the Minister how he believes these problems can be avoided and/or resolved.
Lord Wedderburn of Charlton: This is purely a matter of convenience, and I apologise to my noble friend. I gave notice to my noble friend Lady Scotland that, in order not to complicate the Marshalled List with unnecessary amendments, I wanted to ask why in Clause 1, the word "Clause" appears and not "Act". I have no doubt that my noble friend has passed the request on. If she has not, I apologise. but this may be the only convenient moment to ask that question without moving an unnecessary probing amendment.
Lord Bassam of Brighton: I have got the postcard and will deal with the query in turn. Before I get stuck into the meat of the discussion, I shall thank the noble Lord, Lord Hodgson, for the way in which he opened the sitting. We want to have a constructive Committee stage, and I welcome the probative approach that has been adopted. I hope that our deliberations will have constructive outcomes. I thank all noble Lords who have tabled amendments. They are useful, and it helps us explain, or try to explain, exactly where we are coming from with the detail. It presages a constructive consideration of the Bill. I shall endeavour to approach it in that way, as will my noble friend Lady Scotland when she appears at other sittings.
As the noble Lord, Lord Hodgson of Astley Abbotts, said, this is new territory, in that we are trying to provide clarity to the legislation and ensure greater understanding and transparency. As is obvious, Clause 1 provides, for the first time, a general statutory definition of "charity". It is a clear definition: it sets out that a charity is an institution which,
"is established for charitable purposes only"
and is within the High Court's jurisdiction.
The definition excludes institutions outside England and Wales from the scope of charity, since the jurisdiction of the High Court extends only to England and Wales.
I am aware of the concerns that have been expressed over the possibility that there will be some inconsistency or incompatibility in UK charity legislation as it develops in the different jurisdictions. The noble Lord anticipated part of my response and yes, it was ever thus. Legislation on the regulation of charities is devolved to the Scottish Parliament and to the Northern Ireland Assembly. Even before devolution, each of those territories had its own body of charity law, different from that applying in England and Wales. Any legislation in either territory will, quite properly, be designed to reflect priorities there. That is part of the beauty of the devolutionary approach.
The noble Lord referred, quite rightly, to the Scottish Executive and the introduction of the Charities and Trustee Investment (Scotland) Bill. It was introduced in

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the Scottish Parliament on 15 November last year with the explicit purpose of reforming charity law. Its considerations will run in parallel with ours. I suspect that it will probably take rather longer to complete its legislation than we will, but one cannot precisely anticipate the future.
There has been a high level of co-operation between the Executive and the UK Government, with the aim and purpose of ensuring that, in the key areas where there is a common interest in consistency, the two pieces of legislation are entirely consistent. In our discussions with the Scottish Executive, we have had particular regard to the definition of charity and the consequences for English and Welsh charities that operate in Scotland of being required to register with the Office of the Scottish Charity Regulator, as these are two areas in which most concerns have, understandably, been raised.
Of course, an overarching view will be developed in the UK committee of charity regulators, including the Charity Commission for England and Wales and the Office of the Scottish Charity Regulator, to ensure co-operation where appropriate between regulators and consistency of regulatory approach.
I appreciate the argument that it would be counterproductive for the definition of charity in England and Wales to be substantially different from that in Scotland. We will endeavour to ensure close liaison with our Scottish counterparts, with the aim of mitigating that risk. However, as I said, it is ultimately for this Parliament and the Scottish Parliament to determine what is appropriate in our particular circumstances. The noble Lord referred in particular to public benefit. The public benefit provision in Scotland does not affect England and Wales. The definition in Scotland is intended to be explanatory, not to change the law, and it is likely to be compatible with our definition. The Scottish principles will be reflected in the guidance. Charity activities, such as fund raising, are regulated according to where they take place, not according to the charity's seat of establishment.
The concerns expressed are quite proper. We must trust the devolutionary approach to work well. It has worked well thus far, and I see no profound difficulties with it, although I see where the noble Lord is coming from in his argument. There will be that overarching regulatory committee, which will enable the jurisdictions better to understand where they are. We intend at all stages to ensure that we work in close co-operation and harmony with the other jurisdictions where there will necessarily be some rubbing up against them and potential for conflict.
I am very grateful to the noble Lord, Lord Wedderburn, for his point. Although we received his short missive only today, it has caused a flurry of activity that has led us to conclude that we ought carefully to consider his point and hold discussions with parliamentary counsel to ensure that we have got it right.
3.30 p.m.
Lord Phillips of Sudbury: I think that the Minister said about the status of public benefit that Scottish legislation was as it is in Clause 4; namely, providing guidance only. That is not how I read it. Clause 8 of the Scottish Bill does not talk about guidance; it gives a definition of public benefit—admittedly an extraordinarily broad and unhelpful one—which lends credence to what the noble Lord, Lord Hodgson of Astley Abbots, said. In a very different way to Clause 4, it concentrates on the disbenefits of an institution compared with its benefits. That is the way in which they choose to deal with it. I make that point only because I think that it is of some interest, although otherwise I broadly agree with what the Minister said.
Lord Bassam of Brighton: I thought that I had said that the Scottish principles would be reflected in the guidance that we publish here.
Lord Phillips of Sudbury: I misunderstood.
Lord Bassam of Brighton: Perhaps the noble Lord misheard, but that is what I said.
Lord Shutt of Greetland: I have here the Explanatory Notes to the Scotland Bill, which describe foreign charities as those registered outside Scotland and having only a relatively minor operation in Scotland—sending out newsletters, and so on. That would therefore not involve registration in Scotland. If the charity has an office in Scotland, that is rather different.
I hope that the Minister will find that there is sufficient fraternity between England and Wales and Scotland so that arrangements can be made. For example, what is the position with accounts? Will there have to he a separate set of Scottish accounts sent to Scotland, or is it just a matter of another postage stamp—that the charity registered in England and Wales with an office in Scotland also has to send its accounts to the registry in Scotland? Such practical things need sorting out.
Lord Bassam of Brighton: The answer to the noble Lord's question is probably "No". Clearly such things will need to be reflected on, and advice will need to be given on them in the guidance that operates for both sets of legislation. It is helpful to raise those practical issues here, but those things can be carefully explained and taken account of.
Lord Hodgson of Astley Abbotts: Can I ask the Minister about one word that he used? In reply to the noble Lord, Lord Phillips, about the notes about the public benefit, he referred to the guidance that "we" publish. Did he mean "we", or did he mean the Charity Commission?
Lord Bassam of Brighton: The Charity Commission.
Lord Hodgson of Astley Abbotts: That is important. What concerns is very much is that the Charity Commission and "we"—as the Minister has it—are

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two different things. One of concerns later on will be that the two may become commingled, now and in future.
Clause 1 agreed to.
Lord Goodhartmoved Amendment No. 1:
After Clause 1, insert the following new clause—
"TRUST FOR PURPOSES WHICH CEASE TO BE CHARITABLE

(1) This section applies to a trust for purposes which, immediately before the coming into force of this Part, were exclusively charitable but which have ceased to be exclusively charitable as a consequence of the coming into force of this Part.

(2) A trust to which this section applies shall continue to be a valid trust for the purposes mentioned in subsection (I).

(3) If a trust to which this section applies comes to an end or its assets can no longer be applied for the purposes mentioned in subsection (1) the assets of the trust shall be applied for purposes which are exclusively charitable."

The noble Lord said: I should make it clear to start with that, in moving the amendment, I speak for myself, not for my party. So far as I know, there is no party line on the somewhat technical subject of the amendment, and my noble friends may or may not agree with me on the subject—although I note that the firm of Bates, Wells and Braithwaite, of which my noble friend Lord Phillips of Sudbury is a member, raised concerns about the subject of the amendment in its evidence to the Joint Committee on the draft Bill.
Clause 3(2) removes the presumption that charities for the advancement of education or religion necessarily benefit the public. As a consequence, it is likely that some existing charities will fail the public benefit test and cease to be charities. That was the view of the Joint Committee, which said, in paragraph 103 of its report:
"It is a possible consequence of the Charity Commission carrying out checks on the public benefit requirement that a small number of institutions will lose charitable status".
What will happen to those institutions? The answer provided by the Bill is that we do not know.
The Joint Committee said in a recommendation in paragraph 105 of its report:
"We recommend that the real Bill include provisions to clarify the effect of the loss of charitable status on the assets of a charity. The Government should consider whether the Bill should contain provisions enabling the Charity Commission to agree that trustees in such circumstances can elect to retain their assets and continue to run the organisation, as a not-for-profit organisation without charitable status, for the original purposes".
The Government unfortunately did not accept that recommendation. In their reply to the report from the Joint Committee, in paragraph 9. they said:
"The Government does not accept this recommendation. The Charity Commission's publication. Maintenance of an Accurate Register, explains the effect of the loss of charitable status under the current law, which we believe provides an adequate basis for determining what happens to the assets of an organisation that ceases to be a charity. We do not in any case believe that changes to the current rules should be contemplated without an extensive public consultation on the matter, since any change could have a significant effect on the rights and expectations of anyone who donates money or other assets to charity".
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Unfortunately, the Charity Commission's publication, Maintenance of an Accurate Register, does not explain the effect of the loss of charitable status, because it says that in an important manner it is open to question—that the law is uncertain. That being so, it seems to me that the publication does not, as the Government say that it does, provide an adequate basis for determining what happens to the assets of an organisation that ceases to be a charity. I am aware of the problem primarily because some years ago, in the 1980s, I advised a number of independent schools about the consequence of the loss of charitable status in the course of my practice at the Bar.
I am not convinced that the Charity Commission document, Maintenance of an Accurate Register of Charities, is correct. I am afraid that I will have to go into some rather technical law here. Technically, there are two categories of charity: there are charities that are set up under a trust and charities that are set up as a corporate body. The consequence of the loss of charitable status may be different depending on which of those two categories applies.
Where a charity is set up as a trust, it is clear that the loss of charitable status brings that trust to an end. That is because of a technical rule of English trust law that a trust for purposes as opposed to a trust for the benefit of persons can exist only if those purposes are charitable. It does not matter, therefore, that the purposes as set out in the trust could still be carried out in practice, even if they were no longer charitable. The trust automatically comes to an end, and the assets of the trust must be reapplied for other charitable purposes.
Most charities that are operating charities, as opposed to grant-giving charities are now, I believe, set up as corporate bodies, usually as companies limited by guarantee. There are various reasons for that. Most important, perhaps, is the need to give the trustees benefit of limited liability. So schools, hospitals and so on are mostly now set up as incorporated charities. When I advised on that issue, there were still a number of charitable schools that were operating as trusts. There was also a hybrid form where the school assets were held on trust, but the trustee of those trusts was a corporate body.
The position of an incorporated body whose purpose is a charity is, in my view, different. In law, as it stands now, it appears to hold its property beneficially and not as trustees for charitable purposes. But the law is unclear on that. Paragraph 36 of the Charity Commission document, to which reference has already been made, states:
"The corporate property of a charitable company is not in general held on trust. Informed by the results of the public consultation, we have arrived at a tentative conclusion on the consequences for property held by a charitable company when the objects of the company no longer appear to be exclusively charitable because of a change in social circumstances and values. The conclusion is tentative because as yet, neither the Courts nor ourselves have had a case in which there has been a need to reach a decision on the issues relevant in these circumstances. There may, of course, never be such a case".

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Paragraph 37 continues:
"Our conclusion, which is explained in detail at Annex E, leans in favour of the imposition of a constructive charitable trust on the beneficially owned corporate property of a company which finds itself in this position".
I would come to a different conclusion on that, which would be that the property of the company continues to be held for the purposes set out in the company's memorandum and articles and that the company simply ceases to be a charity, but continues to conduct its previous activities. I would rely, among other reasons, on the fact that Section 64 of the Charities Act 1993 provides that if a charitable corporation changes its objects and adopts new objects which are not wholly charitable, the existing assets must be ring-fenced and applied to the previous objects. Section 64 does not apply where the company's existing objects remain unchanged but cease to be charitable. The inference from that is that the company can continue to apply all its assets for those purposes.
There is also a question whether depriving an incorporated charity of the property which it owns beneficially and imposing a trust on it for significantly different purposes would be compatible with Article 1 of the First Protocol to the European Convention on Human Rights. But it is riot necessary to go into the details, and I am certainly not intending to bore the Committee with the contents of Annex E because the Charity Commission and I would agree that the law is uncertain. So I regret that the Government have introduced a Bill without spelling out the consequences of a tighter application of the public benefit rule, although I see the political attractions of not having to take that decision.
3.45 p.m.
Therefore, the purpose of the amendment is to try to persuade the Government that there is a need to provide an answer to this uncertainty and to suggest what that answer should be. The answer, I suggest, is broadly that suggested by the Joint Committee; that is, that trusts whose objects cease to be charitable—of course, this would apply also to charitable corporations—should be allowed to continue to carry out their existing purposes. It would be necessary to override the current rule that there can be no trusts for purposes unless they are charitable, but I see no great problem in doing that.
If an independent school loses charitable status because it fails to satisfy the test of public benefit, it is of course absolutely right and proper that it should lose the tax benefits that go with that status. That is a step which I would not only accept but welcome. If it can continue as a charity with relatively minor changes to the trusts, it is reasonable to expect it to make those changes. But that will not always be possible. And to say that where this is not possible, the institution, whether it is a school, hospital or whatever it may be, must be closed down and its assets applied for a different purpose, is unreasonable. That applies to schools operating under trusts as well as schools which are carried on by corporate bodies.
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The effect of my amendment would be that a trust which had ceased to be charitable could carry on its existing purposes. I have also provided that if the trust comes to an end or ceases to be workable—for example, where an independent school is closed because it is making unacceptable losses—any available assets should go back to charitable purposes. It obviously would not be right that trustees or shareholders in a corporate body should take for themselves property which was originally dedicated to specific purposes which at that time were charitable.
This problem is considerably more serious than the Government are prepared to recognise, and we need a solution to it in the Bill. The solution which I proposed is based on the suggestion from the Joint Committee, and it is fair and reasonable. I beg to move.
Lord Phillips of Sudbury: My Amendment No. 16, in the name also of my noble friend Lord Dholakia, is part of this group. I am extremely grateful that the noble Lord, Lord Hodgson of Astley Abbotts, has agreed that his Amendment No. 19 should form part of the same group. The same goes for the right reverend Prelate the Bishop of Southwell with Amendment No. 19A, because all the amendments address, centrally and essentially, the same point. I suppose that, like the noble Lord, Lord Hodgson, I should repeat my conflicts of interest and I do so in the same terms as I did on Second Reading.
It is a pity that this Committee stage has to start with this extremely heavy artillery. I do not know how many Members of the Committee followed the extremely learned explanation of my noble friend Lord Goodhart. The proper construction of Clause 1 in relation to charities which are embarrassed, if I may use that word, by the evolution of the definition of "charity" under this Bill, is a very technical matter.
I shall give an example which might help—an old-fashioned one at that. There was a case in the 19th century of a school which provided education exclusively for the sons of the gentry—exclusively for gentlemen. It was the Earl of Lonsdale case of 1827. I shall not go into the extremely interesting question of whether the Earl of Lonsdale precedent is still relevant. I can see members of the Charity Commission staff nodding their heads in amused wonderment. If the Bill evolves—because it will evolve; that is the whole purpose of the common law and the common law definition—so that a charity exclusively for the sons of gentry can no longer be said to fulfil the public interest, it would therefore have drifted out of charitable status. That is unfair, or at least counterproductive Each amendment attempts to deal with the problem in its different way.
I draw the Committee's attention to the fact that there is a misprint in Amendment No. 16. It says:
"if and insofar as there are hereafter",
when it should read,
"if and insofar as they are hereafter".
I am sorry for that. The word "shall" is also missing before ipso facto.

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My amendment deals with matters slightly differently from that of my noble friend Lord Goodhart and the other two amendments. It would allow the charities' objects to be evolved in accordance with evolving charity law, without the need for a scheme from the Charity Commission, because that is what would otherwise happen. The charity concerned would, without the amendment, have to go to commissioners and say, "We have not changed our objects—we can't—but the definition of 'charity' has changed, and we have a problem". They would, in those circumstances, make a scheme. The only circumstances in which that would not happen would be if the trustees of the charity were unwilling to play ball, refused to change their purposes and were thus left in a position of some difficulty. I need not detain the Committee on that point now. I see that the noble Lord, Lord Wedderburn, doubts my modesty—well, I shall stick to it.
After the Committee, we need to sit around a table and talk about this. There are merits in all the amendments. I do not think that Amendment No. 19, in the name of the noble Lord, Lord Hodgson of Astley Abbotts, will do the trick, albeit that it has been drafted by an extremely eminent Queen's Counsel in the Chancery Division. It still comes back to being construed in accordance with the definition of "charitable purposes" in the Bill.
However, I shall cease there. The issue raised by my noble friend Lord Goodhart needs to be addressed, and I hope that we can come back on Report with a government amendment approved by all those in this group.
Lord Hodgson of Astley Abbotts: It might be for the convenience of the Committee if I spoke to Amendment No. 19, because it hits the same point. As I said in my opening remarks, I am a layman in the field. The noble Lord, Lord Goodhart, gave a helpful explanation of the impact on a school, as a practical example.
This is a very technical subject. We were approached by Mr Christopher McCall QC, who is a leading barrister in charity law. He drew our attention to the hole which, he believes, exists in the clause and which could be remedied—notwithstanding what the noble Lord, Lord Phillips, said—by Amendment No. 19. The Minister may agree with that or may have a simple explanation about why there is a hole in the first place.
Mr McCall explained the problem. In private trusts, there is a long tradition that new legislation does not change the beneficiary class under pre-existing trusts. So, in the old days, a statutory provision saying that "children" should include legitimate or illegitimate children tended not to be allowed to affect a trust made before the statute was passed. So, does the legislation change the meaning of charitable purposes and charitable objects set up in a trust for such charitable purposes or objects as the trustees think fit that was set up before the Bill becomes law? Assuming that the intention is that it should, that should be made clear lest some judge says in the future that a pre-2005 reference to charitable purposes or objects means
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"charitable" under the Statute of Elizabeth—a quite tenable analysis, which would mean that the new law was irrelevant to the construction of such a trust.
Why would that matter? It would matter because, as Mr McCall points out, we know of at least one new purpose that is being recognised as such; namely, the purpose of male recreation. If the legislation does not change the meaning for general charitable trusts set up before, then one could not amalgamate a general charitable trust set up in the old days with one set up in similar terms after the Bill becomes law because the one could not allow benefits to male recreational charities and the other could. Mr McCall suggests that Amendment No. 19 would help to plug that gap. I, too, look forward to hearing whether the Minister either has an answer or will meet us to discuss how the gap can be filled.
Lord MacGregor of Pulham Market: I, too, hesitate to intervene in this particular legal debate—even more so, having just listened to my noble friend. Perhaps I should declare an interest, as I did at Second Reading, for subsequent debates: that is, I am Deputy Chairman of the Association of Governing Bodies of Independent Schools and therefore I have some interest in that area.
The debate that we are having at the moment is relevant to some independent schools, as the noble Lord, Lord Goodhart, pointed out, but I think that it is also relevant to others. As I said, I am not a lawyer, although I have a law degree from way back, and therefore I am not sure that I have this matter absolutely right. However, I take the point made by the noble Lord, Lord Goodhart. In particular, in the case of some religious foundations, the Charity Commission's document produced last month on public benefit makes the point that the Charities Bill proposes that the presumption of public benefit for religious purposes is removed and then goes on to say that, as a result, many such charities will be thinking about the public benefit requirement for the first time. Independent schools have been thinking about public benefit for some time, but it may well apply to some of them.
Therefore, the question that I want to ask both the noble Lord, Lord Goodhart, and the Minister is as follows. Let us take the case of either a preparatory school, to which my noble friend Lord Brooke of Sutton Mandeville, referred during the Second Reading debate, or a religious foundation in a very remote rural area which, because of its geographical limitations and financial circumstances, cannot meet the public benefit test. As I understand it, under the new clause proposed by the noble Lord, Lord Goodhart, it would be able to continue as a school or a religious foundation using the premises which it had. If the trust came to an end or its assets could no longer be applied, then naturally the assets would be used for other exclusively charitable purposes.
As I read it, Amendment No. 16 would not enable such a school or religious foundation to continue. I am not sure whether I am right about that but it seemed to me that it shall, ipso facto, be varied so as to remain

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charitable. If it cannot meet all the public benefit tests, how can its arrangement he varied to bring it within the public benefit test? I am happy to give way.
Lord Phillips of Sudbury: I think there is a difference between the definition of "charity" and the issue of public benefit. First, an organisation has to be for exclusively charitable purposes and, secondly, it has to satisfy the public benefit test in the activities pursuant to those purposes. So it would have an automatic, or ipso facto, variation to keep it within the charitable definition. but it would then still have to deal with the public benefit test.
Lord MacGregor of Pulham Market: That is the point that I am making. If, because it was in a remote geographical area or because the financial circumstances were such that it could not give fee assistance or whatever, it could not meet the public benefit test, then I assume that it would cease to be charitable and would not be able to retain the premises or continue in existence within the premises for that purpose. However, I think that the new clause proposed by the noble Lord. Lord Goodhart, meets that point. If that new clause is not accepted, I should be grateful if the Minister would say what the position of a religious foundation would be in the circumstances that I have described.
4 p.m.
The Lord Bishop of Southwell: A moment ago, the noble Lord, Lord Phillips, said that he apologised to the Grand Committee for starting the debate with the heavy artillery. I think that the light infantry is coming in now, and I speak as a layman and a jobbing Bishop.
The effect of my Amendment No. 19A is to preserve the presumption of public benefit in relation to purposes for the advancement of religion, which are currently accepted as charitable and so allow bodies that exist for such purposes to enjoy charitable status without routinely having to demonstrate what public benefit they provide. That a body should provide public benefit and be answerable for doing it, if it is to be a charity, is self-evident. Religious bodies should not be exempt from that, but the question is whether they should have to demonstrate that public benefit routinely, and, if they should, how the public benefit that they provide will he assessed.
At Second Reading, I drew attention to the additional administrative burden that abolition of that presumption would impose on religious bodies. But I shall concentrate on the second issue to which I referred then; namely, how the public benefit of religious bodies will be determined.
Churches and other faith groups are concerned about how that procedure will work in practice. They are anxious, in particular, that the abolition of the presumption will lead to a creeping process of removal of the charitable status of religious bodies. As I explained at Second Reading, our concerns are partly derived from the fact that we live in a society in which the claims of religion and its benefits are increasingly questioned. We recognise the sensitivity of many of the
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issues, but religious bodies are as much entitled as any other to have their claims to public benefit analysed in a properly informed way.
We are grateful for the assurances and help that we have had to date from the Government and the Charity Commission. But points of uncertainty remain, including just how public benefit will be assessed in the case of the many religious bodies that exist, not only for the promotion of a religion generally. or the wide range of activities associated, for example, with the worshipping community—worship, pastoral care and mission—but also for some more specific purpose.
For example, what view will the commission take of a body that exists solely to convert followers of one religion to another, which is a purpose currently acceptable as charitable? At first sight, it may seem as if any benefit to the public from activity of that kind is somewhat remote. But we would argue, in this and in many other cases, that in assessing public benefit, regard should be had not only for the immediate consequences but also for the wider benefits to society of the religion of which that particular activity—the sharing of faith—is a natural manifestation.
Religion is not advanced in the abstract, but through particular activities such as those. It would be arbitrary to afford charitable status to bodies that had advanced religion generally, while denying it to purposes that simply reflect one aspect of the outworking of religion.
In response to concerns that I expressed at Second Reading, the noble Baroness, Lady Scotland, indicated that she understood the Charity Commission to recognise that public benefit in religious charities is broadly based and diverse, and that there would be an opportunity for discussion between the commission and representatives of various religious bodies as it consults on the guidance on public benefit required under Clause 4.
We of course welcome that opportunity. but the question is whether matters can simply be left to be resolved by further discussions with the commission or whether some more formal protection of the kind embodied in this amendment is needed.
In the absence of any provision of that kind, Churches and other faith groups would expect to have some further and more specific assurances that, if the presumption is abolished, the breadth of religious purposes currently accepted as charitable will in substance be preserved. We would, in particular, welcome greater clarity that the commission's guidance will not only recognise the benefits to society as a whole from the practice of religious belief, but will also accept that even very specific religious purposes can be seen as contributing indirectly to those wider benefits and thus meet the public benefit requirement. I hope that the Minister may be able to provide some assurance.
Lord Wedderburn of Charlton: One of the problems about Grand Committee is that all sorts of amendments tend to be thrown into one debate. Amendment No. 1 is grouped with Amendment No. 16. The noble Lord, Lord Hodgson of Astley Abbots, spoke to Amendment No. 19

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and the right reverend Prelate has just spoken to Amendment No. 19A. They have every right to do so, but sometimes the ping-pong becomes three-handed and then four-handed, which leads the discussion into difficulty.
I vigorously oppose—if we ever sit in a place where one votes, I should vote against—Amendment No. 16 and, with great respect, Amendment No. 19A. The right reverend Prelate just asked for a new privilege for religious charities. I see no reason why there should be a particular privilege for religious charities. That opposes a central part of the Bill: namely, that public benefit, one of the few tests of charitable purpose and charity under the law, must be proved.
Indeed, a government document that I thought rather good, as opposed to some others, is a Home Office publication entitled, Charities and Not-for-Profits: A Modern Legal Framework. It is rare that I speak approvingly of Home Office documents these days, but it makes it absolutely clear that the Charity Commission must undertake an ongoing check on the public character of charities. That means that public benefit must be proved. I am against a new benefit of clergy that would appropriate some discriminatory advantage for any type of charity. Indeed, a point that my noble friend Lady Turner and I want to make about the Bill is that it discriminates. We do not like that public policy of discrimination. That amendment would add to it.
I know the intention of the amendment of the noble Lord, Lord Phillips, but I object to it not just because it lapses into Latin with ipso facto, although I am generally against ipso facto rules because no one quite knows when the ipso is facto. In a funny sort of way, it demands that existing charities should remain charities, albeit that the Charity Commissioners will consider them. To make existing charity law, before the Bill is enacted, apply to charities that are charitable under it, which then appear inconsistent with charity law when the Bill is enacted, seems wrong and, with great respect, misguided.
The noble Lord, Lord Goodhart, made a strong case for his approach to the matter, but I cannot believe that the noble Lord, Lord Phillips, would want some of the established principles of case law to remain. Indeed, at one point. I thought that he was saying that those cases should be varied. If so, I am pleased.
For example, in 1973, we find a property left on trust for the continuance of the work of God, as maintained by Mr H G Hobbs. The said Hobbs was a friend of the testatrix, and she thought that he was rather good at it. In the end, up after a considerable battle, the High Court found that that was charitable. The Charity Commissioners ought to look at that; there should be no ipso facto presumption that that should remain charitable when the Bill is enacted. The Government are clear that public benefit must be checked and reconsidered.
The whole of charity law in those tomes in the library, Tudor on Charities and Luxton on Charities, must be considered for their chapters on public
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benefit. In so far as Amendment No. 16 detracts from that, I submit that there is no good case to be made for it, any more than there is for an ipso facto presumption in favour of the charity passed by the High Court in 1906—we do not have to go back to the 19th century for examples. That was a trust for a gift to have the bells of the parish church rung on 29 May each year to commemorate the restoration of the monarchy. That was held to be charitable, as the advancement of religion. Some commentators suggested that the provision might be a bit strained in its interpretation, but it stands unamended at the moment and would fall within Amendment No. 16. I do not believe that the noble Lord, Lord Phillips, really means that. and I hope that he will tell us that proof of public benefit is the essence of the Bill and adjust his amendment a little to recognise that.
[The Sitting was suspended for a Division in the House from 4.10 to 4.20 p.m.]
Lord Phillips of Sudbury: The noble Lord, Lord Wedderburn of Charlton, made comments on Amendment No. 16 and, in effect, invited me to comment on his comments, which I happily do. He exposed an inadequacy in the wording of Amendment No. 16 by citing a bizarre case—I cannot remember what it was—where the philosophy of some unknown gentleman was held to be charitable.
Lord Wedderburn of Charlton: The case of Hobbs.
Lord Phillips of Sudbury: Thank you. I accept that at the outer margins of charitable law there are some wonderful beasts lurking in the undergrowth. I accept that my amendment should he changed so that not in every case would there be—I hate to use the phrase again—an ipso facto variation of objects because no variation might be available to allow the charity concerned to remain charitable in the light of the evolution of charity law. I take the noble Lord's point and I can assure him that I will bring forward a renewed amendment at the next stage omitting those Latinate words.
Lord Bassam of Brighton: This has been a disparate but very useful debate and I am grateful for the points of clarification that have been made. I shall endeavour to be helpful and set out our position on the amendments that have been offered to the Committee.
Let me start with the substantive amendment of the noble Lord, Lord Goodhart. The Bill provides that any purpose which is recognised as charitable under the existing law—by which I mean the law applying before the Bill comes into force—remains charitable when the Bill's new definition of charity takes effect. The noble Lord, Lord Wedderburn, made the point that, as the Bill provides a further strengthening of the regulatory role of the Charity Commission, this means that the Charity Commission will from time to time look at different charities to ensure that they pass the public benefit test and that they are indeed serving charitable purposes. We all understand that that is a necessary and important part of regulation.

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The safeguard is contained in Clause 2(4)(a) of the Bill.
Lord Wedderburn of Charlton: Before my noble friend moves on from that point, perhaps I may clear something out of the way. We have jumped now to Clause 2(4), which states that those that are recognised for charitable purposes under the existing charity law are within its purposes. But why is it necessary to maintain the existing charities forever when the plan to check the public character of charities, and especially the public benefit, is the most important recommendation in this Home Office document, which I understand represents the Government's policy?
I understand that it would be stupid and most unfair to end a vast number of charities—after all, we are discussing taxation—and it would be quite unfair to, ipso facto, with the passing of the Bill. cut short their taxation benefits. But is it necessary to maintain their status for all time? That would rather encourage the Charity Commissioners not to get on with the test of public benefit for some time.
Lord Bassam of Brighton: The noble Lord has anticipated something I was about to say. As I was explaining, the safeguard is in Clause 2(4)(a). This gives effect to a commitment the Government made when replying to the Strategy Unit review. But this is not a guarantee—
this picks up the point made by the noble Lord, Lord Wedderburn—that every organisation which is a charity now will be a charity after the Bill comes into force. It is perfectly conceivable that a purpose which is acceptable as being charitable now will cease to be charitable as a result of future changes in society. That is the point that the noble Lord, Lord Phillips, made—the beauty of how charity law has evolved is that the application of common law principles means that these things can move forward and change as society itself changes, and reflect those changes.
New purposes come to be accepted as charitable, and it should be no surprise that that can also work in the opposite direction. There might also be some registered charities which, as a result of future scrutiny by the Charity Commission when there has been no scrutiny up until now, are found to be registered with purposes that have ceased to be charitable at some point.
There is a third set of instances in which some registered charities, after the same sort of scrutiny, are found not to meet the public benefit requirement and tests. That third example breaks down into two different types of cases. Some charities found not to be meeting the public benefit requirement might be capable of meeting it if they changed the way in which they operated. Others might, as it were, be institutionally incapable of meeting it, however they operated.
I must mention, perhaps to dismiss, another type of case, in which the people running the charity knowingly use its assets for purposes that are not contemplated by its constitution. Many people believe that, when the trustees of a charity mismanage its assets in that way, the consequence is, or should be, its loss of charitable status. That is not so and should not be so. Rather than take away the charitable status of a
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charity, the remedy should take the form of regulatory action by the Charity Commission against the trustees responsible for that mismanagement. The aim of the commission's action would he, if possible, to restore the charity to the financial position it was in prior to the breach of trust and to ensure that the charity is put into the hands of a group of trustees, who would in future manage it properly. If a charity lost its charitable status when it had been mismanaged, the people who would suffer would be its beneficiaries, who had no part in its mismanagement. It is right that the axe should fall instead on the trustees responsible for that mismanagement.
That takes us to the question of what happens to a charity's assets if it ceases to be a charity. The current law is based on the proposition that once assets have entered the domain of charity, it is desirable to keep them there so that they can he used in perpetuity for charitable purposes. The rule that gives effect to that proposition is the cy-près rule, which allows the court or Charity Commission to alter the purposes for which assets are held once those purposes have ceased to he charitable. In altering purposes in those circumstances, the court or the commission would ensure that altered purposes were charitable ones similar to the original ones that had ceased to be charitable. The Government believe that that continues to be the right and appropriate way in which to deal with charities which have ceased to be charities.
The amendment proposed by the noble Lord. Lord Goodhart, would change that, but only in a rather piecemeal way. His amendment applies only to charitable trusts, which means that the assets not subject to a trust—the assets of charitable companies, for example—would not be caught by his provision and would continue to he treated as at present. Charitable companies constitute, we estimate, somewhere between 15 and 20 per cent of all charities. Of course, his amendment applies only to assets of charitable trusts which lose their charitable status in his particular and specified circumstances, for want of public benefit—if I have understood his intention correctly.
In practice, it would be very difficult. when a charity was found no longer to be for the public benefit to judge whether that was a consequence of the removal of the presumption or whether there were other factors operating as well or instead. Even if it were possible to make that judgment, we do not see why the assets of a charity that ceases to be a charity in those circumstances should be treated differently from the assets of a charity that ceases to be charitable in other circumstances. The amendment also leaves unanswered the question of who, if anyone, would regulate the trust that had lost its charitable status but which continued in existence as a non-charitable trust, with its original purposes and assets intact.
Having reflected on the matter, we believe that the noble Lord's amendments might end up creating more problems than they solve. However, I accept the overarching point that there is great merit in having further discussion and debate on this. The amendment of the noble Lord, Lord Hodgson of Astley Abbotts, is one to which I think we could agree to give some fair

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consideration, but I suggest, as did the noble Lord, Lord Phillips, when discussing his amendment, that it might be more valuable to have some discussion about this outside Committee.
I think that I was not the only one who found some of the explanations of the noble Lord, Lord Goodhart, very interesting, but hard to digest across the floor of a committee. I think that the noble Lord would probably accept that. So, without offering necessarily to consider the amendment of the noble Lord, Lord Goodhart, in the way in which he has argued, I suggest that we have some side discussion between now and Report on that amendment, as well those of the noble Lords, Lord Hodgson and Lord Phillips, to see whether the issue which this group of amendments is addressing can be looked at again in order to find some form of resolution. I add the caveat that we do not necessarily come to the conclusion of the noble Lord, Lord Goodhart.
4.30 p.m.
The amendment of the noble Lord, Lord Hodgson, is helpful. We certainly recognise that there might be some merit in setting out the scope of the operation of Clause 2(1), as does Clause 1(2), in accordance with the general application of the definition of "charity". We are happy to consider it in those terms and, as it were, hoover up some of the issues which were usefully raised.
I turn to the amendment of the right reverend Prelate the Bishop of Southwell. This amendment, which has been regrouped with the others, would preserve the presumption that organisations established for the advancement of education, the advancement of religion and the relief of poverty provide public benefit. Removing it would place them on a level footing with all other charities, as all charities would have to show that they provide public benefit. The amendment would mean that, for charities established for the advancement of religion, the presumption that they provide a public benefit would be preserved. It would place them in an anomalous position compared with all other charities, which would have to demonstrate the public benefit that they provide. That was probably a point towards which the noble Lord, Lord Wedderburn of Charlton, was moving.
The Charity Commission has for some time applied the public benefit test to religious bodies that apply for registration. Removing legal presumption will not affect that approach and demonstrating public benefit should therefore not cause difficulty for established religions, while continuing to ensure that harmful organisations are not registered.
I can, I hope, reassure the right reverend Prelate that removing the presumption that the advancement of religion provides public benefit is not intended to lead to a narrowing-down of the range of religious activities that are currently considered charitable. The Government certainly recognise that religious activities bring benefits, not just to those who take part in them, but also to wider
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society. I think that it would be generally acknowledged that religion has an important, if not vital, role to play in society through faith and worship, by motivating charitable giving and by contributing in other ways to strengthening our community through pastoral activities—not to mention my own interest, which is the upkeep of church buildings.
We are, to some extent, entering uncharted territory with the removal of the presumption and, for that reason alone, I understand the right reverend Prelate's concerns. I suggest that he approaches the Charity Commission, perhaps in the context of the meeting that I was suggesting earlier, to arrange discussions at a senior level about the public benefit requirement in the context of religion, so that any concerns that the Church might have can be addressed and allayed. I am sure that the commission would respond positively to that.
A couple of other points were raised during the discussion of that group of amendments which require a response.
The noble Lord, Lord MacGregor, raised the issue of schools and foundations that cannot meet the public benefit test. Specifically, the noble Lord was thinking back to points made at Second Reading by the noble Lord, Lord Brooke of Sutton Mandeville, who has joined us. The current law would allow the Charity Commission to alter its purposes for something close to the original purpose which was charitable, and the new purposes would have to allow it to pass the public benefit test.
I think that I responded to that point at Second Reading. I made a careful note of what the noble Lord, Lord Brooke, said at the time and I certainly understood the difficulty. But I think that the public benefit test could be argued in such a way as to include schools that were affected in the manner suggested by the noble Lord. That is effectively what would happen in that example.
I hope that I have dealt with the points raised. I think we can have some useful discussions to take forward some of the issues advanced in the debate this afternoon. We certainly want to be as helpful as we can.
One other point raised by the right reverend Prelate the Bishop of Southwell concerned the public benefit test relating to a charity whose purposes were solely to convert members from one faith to another. It is clearly acceptable for religious charitable bodies to convert members to their religion by evangelising or through missionary work, and that will not change. I hope that that is of help.
Lord MacGregor of Pulham Market: Perhaps I may return briefly to the issue that I raised following the point that my noble friend Lord Brooke of Sutton Mandeville mentioned at Second Reading. The provision does not apply only to small rural schools; it could apply to religious foundations and other bodies of that kind. Although I well understand the analysis given by the Minister and also some of the concerns relating to the amendment of the noble Lord, Lord Goodhart,

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nevertheless there is a really important point at the heart of this amendment which I want to bring out. I hope that it can be addressed in our discussions as I do not think that it was dealt with in the Minister's answer.
I shall take the case of a school which wants to meet the public benefit test but which is in a rural location where it cannot be accessed by the public generally. It may not be able to offer much assistance with fees because of its financial situation. As I understand it, under the cy-près law and under this Bill, that school would have to close. That seems to me unfortunate. Of course, no one would want to use the premises for educational purposes.
The sensible answer would be to remove the charitable status but allow the school to continue, which I think would be the effect of the amendment of the noble Lord, Lord Goodhart. After all, about 17 per cent of all schools in the Independent Schools Council do not have charitable status. So the amendment would put it on the same basis as those schools and enable it to continue. That seems to me to be a sensible way through and I hope that it will be considered in our discussions.
Lord Bassam of Brighton: Perhaps I may respond positively. I think that that would probably be the outcome. and I am sure that the Charity Commission would want to offer advice and assistance to enable that to happen. With regard to charitable status, in any event the commission would want to try to preserve what was of value at the school because it would not be in anyone's interest to do otherwise. There would, after all, be a wider public benefit.
Lord Phillips of Sudbury: If it is not too late, perhaps may ask the noble Lord, Lord MacGregor, whether he is suggesting, as he did at the end of his intervention, that the very narrow category of schools concerned would keep the assets. Or does he accept that, if such schools were allowed to continue, the charitable assets would have to be separated and used exclusively for charitable purposes?
Lord MacGregor of Pulham Market: I think that it is for the noble Lord, Lord Goodhart, to answer that. I believe that under the terms of his new clause they would keep the assets. But of course, if they ceased to be schools, the assets would have to be used for charitable purposes.
Lord Phillips of Sudbury: I thank the noble Lord.
Lord Goodhart: I start by apologising to the Committee for having introduced what was a highly technical debate. We went into some rather arcane parts of the law—and the law of charity is pretty arcane. My justification for doing so is that I think the issue that has been raised by the amendments we have been discussing for the past hour or so is an important one that justifies further investigation.
Several alternative amendments have been included in the group. My noble friend Lord Phillips of Sudbury has tabled Amendment No. 16. I will not go into detail on that, but I am not entirely sure what he means when
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he says that the purposes of the charity would, ipso facto, be varied so as to remain charitable. I do not think that he means that they would, ipso facto, be treated as charitable without variation. It must involve some variation: we need to consider who does the varying and who decides whether the varying is sufficient. However, my noble friend and I could perhaps get together outside the Committee and consider whether we could reconcile the lines that we are taking.
Amendment No. 19, tabled by the noble Lord, Lord Hodgson of Astley Abbotts, is, I think, about a rather different subject. It probably ought not to have been included in the group. The noble Lord's amendment is really covering the question of whether the definition of "charity" and the variation, in particular, of the public benefit rule applies retrospectively. I understood that it would be intended to apply retrospectively—that is, to existing charities—and the amendment makes that clear. However, that is a different issue from the one that I raised.
The right reverend Prelate the Bishop of Southwell, who has tabled Amendment No. 19A, asked for a special exemption for religious bodies which now have charitable status so that they do not have to satisfy the expanded public benefit test. I sympathise with him, but I differ in my solution. A failure to meet the public benefit test, whatever the nature of the institution involved—whether it be concerned with religion, education, health or whatever— should lead to the loss of existing tax benefits. Equally, the loss of charitable status should not necessarily lead to the extinction of any institution that fails to meet the new public benefit test.
The Government need to take the issue on board. It needs discussion. I see that regulatory action against trustees is plainly justified if there has been mismanagement, but it is a different situation if the purpose has ceased to be charitable. There is virtually no law about that. There have been very few cases in which a charitable trust that could continue to perform its objects has been considered by the Charity Commissioners because those objects, although viable, are no longer charitable. The cy-près rule—a highly technical rule—has, I believe, normally been applied only if the purposes can no longer be carried out, possibly because the group of people for whose benefit the charity was originally set up has ceased to exist. It is also doubtful that the cy-pres rule applies at all to charitable corporations. The position of charitable corporations is uncertain in the Bill. Clarity is needed.
We need to consider the matter further. I hope that it will be possible to come to some understanding with the Government about their intentions. The present position is unsatisfactory. If we cannot reach agreement, the issue will have to be reconsidered on Report.
4.45 p.m.
Lord Wedderburn of Charlton: Before the noble Lord sits down, concluding on that inevitable note, perhaps I may intervene. He mentioned the cy-prés doctrine. I am not clear on the effect of that but, more importantly, on the effect that Clause 2(4)(b) and (c) would have on the arguments both on his amendment, which seems to have great value, and on the other amendments. It would be better if we discussed Amendments Nos. 19 and 19A when we reach where they are in the groupings.
Clause 2(4) states:
"The purposes within this subsection".
This means that it is referring to a charitable purpose and not to public benefit. Given the previous subsections, subsection (4)(b) includes,
"any purposes that may reasonably be regarded as analogous to, or within the spirit of, any purposes falling within any of those paragraphs or paragraph (a) above"—
and subsection (2)(a) refers to "relief of poverty".
Subsection (4)(c) states:
"any purposes that may reasonably be regarded as analogous to, or within the spirit of, any purposes which have been recognised"—
which is a very different formula—
"under charity law as falling within paragraph (b) above".
Subsection (2)(b) refers to "the advancement of education". I note the special formula for education.
What effect on the debate on Amendment No. 16 does that have, or does it have none at all?
Lord Goodhart: It has no effect at all. Clause 2(4) concerns additions under the list that is set out in subsection (2)—namely, purposes that may be regarded as charitable if they are for the public benefit.
But the problem that is dealt with here arises from what I might describe as the more activist public-benefit test that will be applied under Clause 3—in particular, under Clause 3(2)—because of the removal of the presumption that trusts, for example, for the advancement of religion or education are almost always charitable.
Lord Wedderburn of Charlton: With respect to the noble Lord, perhaps I may comment on his reply. This is about purposes: it is not about public benefit. We have talked as though the problem arises only where all of the purposes suddenly become unacceptable. If there is a tiny purpose that prevents us saying that an institution is no longer exclusively charitable, is there no effect on Clause 2(4)? It refers back to subsection (2), which does not say that a purpose falling within paragraph (1) "may" fall within a charity; it says that it falls within the subsection—that it is, according to the previous subsection, a "charitable purpose". There is no "may" about it. Does it therefore have no effect on some of the situations that we have been discussing? The noble Lord is no doubt right but I should like him to think about it.
Lord Goodhart: I still think that the answer is "No". It is clear that Clause 2, particularly subsection (4)(a), cannot be used to narrow the existing definition of
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what is a charitable purpose. Therefore, no existing charity will find itself ceasing to be a charity because it fails the charitable purpose test in Clause 2. The problem is exclusively the public benefit test in Clause 3.
Lord Wedderburn of Charlton: Without wearying the Committee, we ought to think more about that. I do not wish to draw my noble friend the Minister into conversations that he would rather have in the Corridor. However, we ought to know what the Government think about that, especially as regards Amendment No. 16 and the effect of subsection (2) as a whole. I shall leave it at that, but I hope that my noble friend will comment.
Lord Phillips of Sudbury: I agree with my noble friend Lord Goodhart in his response to the question raised by the noble Lord, Lord Wedderburn. I thank the noble Lord, Lord Bassam, for his reply. There is a great deal of work to be done outside the Chamber.
Lord Goodhart: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Meaning of "charitable purpose"]:
Lord Craig of Radleymoved Amendment No. 2:
Page 2, line 8, at end insert—
"( ) the promotion of the efficiency of the armed forces of the Crown;"
The noble and gallant Lord said: In moving Amendment No. 2, I hope that it will prove to he a rather more straightforward issue than that which we have just debated. My charity interests are as recorded in the register of interests.
It will be common ground that there are many service—that is, Armed Forces—non-public funds that currently enjoy excepted charity status. A total of up to 2,000 is mentioned in the Explanatory Notes that accompanied the draft Bill that was considered by the Joint Committee. I think that is a gross under-estimate and misleading when considering these non-public funds. A figure of more than 15,000 would be nearer the mark.
Statutory Instrument No. 1056 of 1965, the Charities (Exception from Registration and Accounts) Regulations 1965, which came into operation in May of that year, is a statutory vehicle for their current accepted status. These regulations, the SI states,
"shall apply to a charity wholly or mainly concerned with the promotion of the efficiency of any of the armed forces of the Crown".
These charity funds are held at various levels in the Armed Forces, ranging from individual small units up to the central funds of the three services. They are essentially funds used to support unit and other formations' social, sporting and adventure training activities. Their income derives largely from worldwide NAAFI rebates—to be replaced at home from a pay-as-you-dine arrangement levy—and, in

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some cases, by servicemen and servicewomen gift-aiding their pay for one or two days a year. There is no fund-raising effort devoted to bringing additional funds into these accounts.
Charitable support of the Armed Forces can be traced back to the 1601 statute. Its preamble sets out a broad concept of the kind of public utility which will satisfy the quality of charity. The "setting out of soldiers" was specifically mentioned in the 1601 statute. The Joint Committee on the draft Bill devoted several paragraphs of its report to the topic of the services' non-public funds. I shall return to the Joint Committee's views in later amendments.
Meanwhile, given the attempt in the Bill to categorise charities by purpose. it was surprising to find no reference in the Bill now before the House to the charitable purposes of these non-public funds in supporting the welfare and efficiency of the Armed Forces of the Crown. None of those purposes listed in Clause 2(2), or expanded upon in Clause 2(3), can be construed to encompass a proper purpose or purposes for these Armed Forces' charity funds.
It might be argued that Clause 2(4), which states any purpose not within the above but,
"recognised as charitable purposes under existing charity law",
covers the service funds. Maybe, but the importance of the Armed Forces to the defence and security of the country, their involvement in aid to the civil power—remember, for example, their massive contribution towards dealing with the foot and mouth disaster— seems of sufficient importance in any public benefit test for them to be treated rather better than as an also-ran charity purpose.
Given this rare opportunity to record in statute up-to-date charity purposes, and recognising that the Armed Forces' funds will continue to enjoy a charitable position, it seems only right to include wording along the lines of my amendment. Better drafting and detail, and greater expertise in the precise way that this purpose should be recorded in the Bill, may well be called for. but the inclusion of a reference to the Armed Forces' charity purposes seems to me to be necessary. It is at present missing from the Bill.
The amendment is my best shot at correcting this omission. I hope that other noble Lords and the Minister will support the amendment, which surely does provide for clarity. I beg to move.
Baroness Turner of Camden: May I ask the noble and gallant Lord, Lord Craig of Radley, why the amendment is drafted in this way? It refers only to,
"the promotion of the efficiency of the armed forces of the Crown".
I could understand, if it dealt with organisations concerned with the welfare of the Armed Forces of the Crown. There are a number of admirable organisations concerned with the welfare of the Armed Forces, both the present Armed Forces and people who have been in the Armed Forces. However, I do not understand why the amendment refers only to "efficiency".
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Amendment No. 5, which is grouped with Amendment No. 2, would leave out the words "conflict resolution". I cannot understand that. The phrase is in the line dealing with,
"the advancement of human rights".
Many people would maintain that, sometimes, attaining human rights can depend on conflict resolution. I do not understand why the amendment would remove the reference to conflict resolution from that line. Will the noble and gallant Lord deal with those questions?
Lord Craig of Radley: I am happy to speak to the first point, but the second point relates to an amendment tabled by the noble Lord, Lord Hodgson of Astley Abbotts. I shall leave that point to him.
I drew the wording in the amendment straight from the statutory instruction that I quoted. It talks about charities being wholly or mainly concerned with the promotion of the efficiency of any of the Armed Forces of the Crown.
We should bear it in mind that these are services non-public funds. I draw a distinction between them and, say, the Army Benevolent Fund or the Royal Air Force Benevolent Fund, which also assist the Armed Forces in a charitable way. These services non-public funds are within the bodies of the three services, so they are a different type of charity. That is why they have been treated for the past 40 years as excepted charities.
Lord Hodgson of Astley Abbotts: It might be for the convenience of the Committee if I explained the background to Amendment No. 5, which is in this group. It will be open season thereafter.
I support the approach that the noble and gallant Lord has put forward in Amendment No. 2 With regard to non-public service funds, we have tabled Amendment No. 114 to try to ease the way in which, it is proposed, they will be treated under the Bill. That is a point that we would like to come to on another day.
We would like to address the issue of the position of the Armed Forces in another way, by considering subsection (2)(h) of Clause 2, headed "Meaning of `charitable purposes'". Subsection (2) lists the eight new charitable heads added to the four original heads.
We are content with the length of subsection (2), but we have some concerns about the way in which (h) has been drafted. It reads:
"the advancement of human rights, conflict resolution or reconciliation or the promotion of religious or racial harmony or equality and diversity".
Amendment No. 5 would, as the noble Baroness said, remove the words "conflict resolution" from the subsection. It is a probing amendment, designed to get clarification and confirmation from the Minister that the defence of the realm and the furtherance of the efficiency of the Armed Forces will remain charitable purposes.
We have had representations from representatives of the service non-public funds, in particular from Major Adler of the Independent Services Agency. He

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highlighted the concerns within the Armed Forces regarding their status and function under the Bill. We want to test the Government's thinking on the charitable status of the Armed Forces of the Crown.
As the noble and gallant Lord pointed out, the promotion of the efficiency of the Armed Forces—one of the last remaining elements of the Tudor public utility concept of charity, the setting out of soldiers—is neither one of the listed charitable heads nor, in our view, does it easily fit into any of the other given definitions. Indeed, it might arguably contradict subsection (2)(h) on the advancement of conflict resolution. That is why, on a probing basis, the amendment seeks to remove these words. The Armed Forces might well create conflict rather than resolve it, albeit in defence of the realm. That could create a stumbling block to the continuing charitable status of their non-public funds in the future.
If the general emphasis in subsection (2)(h) is to give peacekeeping a charitable status, one consequence could be that the military services charities, with their purpose of the defence of the realm, contradict this. With the new heads being drawn so that they do not fully and clearly embrace the Armed Forces, the latter's position is somewhat ambivalent and their concern is therefore understandable.
Trusts directed to promoting the security of the nation by military means have, up to now, generally been held to be charitable. The Bill's proposal to include as a specified charity head,
"the advancement of human rights, conflict resolution or reconciliation"
may fly in the face of "military means trusts". I do not for a moment suppose that the Government intend that the clause should discriminate against service charities, but it would be helpful for service charities and the general public if the Minister could say that in as clear and unambiguous a way as possible. I would then be happy not to press the amendment.
5 p.m.
Lord Hylton: I have some sympathy with Amendment No. 2 in the name of my noble and gallant friend Lord Craig. However, I feel it would have been better if he had worded it in terms of the welfare or well being of serving members of the Armed Forces and their dependants. I say that because I tend to agree with the noble Baroness, Lady Turner of Camden, that the efficiency tout court of the Armed Forces is a state responsibility and not a charitable function. So perhaps there is some scope for redrafting.
On Amendment No. 5, I was very pleased to see that the Bill contained the words "conflict resolution", and I will try to explain why. Conflict resolution, whenever it happens, can prevent loss of life, suffering, the movement of populations and many other ill effects. At the moment, it is a rather grey area; it is not entirely clear whether this is charitable or not. I should have thought that there was enormous public benefit, whether in this country or overseas, in including
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conflict resolution as a charitable function or purpose. I know that this is only a probing amendment, but I am not happy at the prospect of removing these words.
Lord Borrie: I instinctively feel a great deal of sympathy with the noble and gallant Lord's amendment. The efficiency of the Armed Forces is almost, by definition, in the public interest and for the public benefit. Personal security and public safety depend on the efficiency, to use that word, of the Armed Forces. "Efficiency" includes a number of the other matters to which we have referred. I am sure that the noble and gallant Lords, Lord Craig and Lord Bramall, and others in the Committee, will accept that matters that improve the welfare and education of the forces are cumulatively helpful towards the efficiency of the Armed Forces.
However, I thought that the noble and gallant Lord underestimated the way in which many, if not most—his knowledge of the charities involved will be greater than mine—of the charities related to and involved in the Armed Forces will be covered by various of the provisions in subsection (2). Those include the advancement of education, health or sport, to which I refer because the noble and gallant Lord referred specifically to it, or matters of welfare, which are largely covered by paragraph (j). Unfortunately, paragraph (k) refers only to animal welfare, as though that is somehow more important than people's welfare, but that is a side point. A great many of the matters and the types of charity with which the noble and gallant Lord is concerned are covered there.
With regard to what the noble Lord, Lord Hylton, said, I strongly feel that since 1601 the,
"efficiency of the armed forces",
which is the phrase chosen by the mover of the amendment, is very much, and thank goodness it is, one of the prime responsibilities of any government. It is probably that of any other state, let alone ours, with which we are concerned. The efficiency of the Armed Forces is rather different from the things that properly feature in subsection (2).
Finally, on conflict resolution, I am against the amendment of the noble Lord, Lord Hodgson. The phrase in the Bill covers not only conflicts between states but conflicts between individuals. As the Government and, more than once, the Lord Chief Justice, have said, alternative dispute resolution procedures should be encouraged so that the courts, which are so expensive, will be simply one of many ways in which conflicts are resolved. In many cases, charities setting up such bodies of mediation, arbitration and so on seem to fulfil what are intended to be charitable purposes under the Bill.
Lord Shutt of Greetland: My interests are set out in the register. I declared all of them on Second Reading but shall refer to one in a moment. I could not understand the noble and gallant Lord's amendment. I wrote down the word "efficiency" and asked myself, "Why not add transport undertakings or have the promotion of efficiency as one of the purposes?" However, the noble and gallant Lord explained that it

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is about welfare and, if there is to be a specific paragraph on the matter, the word welfare is important.
Secondly, the amendment tabled by the noble Lord, Lord Hodgson of Astley Abbots, would delete the words "conflict resolution". At this point, I declare a particular interest as a trustee of the Joseph Rowntree Charitable Trust. Over the years, we have given many grants in the field of conflict resolution—for example, in Northern Ireland. Earlier, when the noble Lord, Lord Borrie, was speaking, it occurred to me that the Marriage Guidance Council, now called Relate, could also be referred to as being involved in conflict resolution. So I very much hope that the words will remain.
Over the years, we have had to send people concerned with conflict resolution to the office of my noble friend Lord Phillips so that he could assist them with obtaining charitable status. Of course, that was under the then regime of PERO: poverty, education, religion and other. My noble friend had to argue that that was an important matter that should be considered under the heading "other". I am rather pleased that the meaning of "charitable purpose" is now to be more expansive in order to broaden what is possible as a charitable activity. That is a good thing. For the avoidance of all possible doubt, I would like the Minister to make it absolutely clear that subsection (4) covers "other", if it has not been laid out in the new list. There may be all sorts of purposes beneficial to the community that we have not thought of as a possible specific and have therefore not included in this new list. It is important to retain that catch-all of "other purposes beneficial to community" as a charitable purpose.
Lord Bramall: I too support my noble and gallant friend's amendment as he drafted it. I declare an interest too as a retired soldier or part-retired soldier. We are not arguing at this point—we will do that later—about the precise status and accountancy of a non-public fund. My noble and gallant friend's amendment would ensure that something about the Armed Forces is included in Clause 2(2) as there has been since Tudor times, one might say.
The Armed Forces as a whole constitute a good, charitable purpose. They cover the defence of the realm and its citizens; the aid to the civil power in every kind of national disaster; and assistance during fire strikes and other industrial disputes. The Armed Forces also do a great deal to support the humanitarian side of our foreign policy. They are providing an absolutely vital service to the public and they therefore remain a good charitable purpose. We felt that if nothing about the Armed Forces was included, in years to come, they might have their case weakened.
The words that my noble and gallant friend proposes—"the promotion of the efficiency"—lie easily with those in Clause 2(2). One could substitute "efficiency and welfare"—I do not think that my noble and gallant friend would argue about that— but "promotion of the efficiency" came out of the 1965 Act. It seemed to satisfy everybody then and I do not see why it should not satisfy everybody now.
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It is very important that the service that the Armed Forces give to the community is recognised in the Bill and goes alongside these other vital purposes such as the prevention of poverty, the advancement of education, the advancement of religion, the advancement of health, culture and sport and many others. The Armed Forces of the Crown and the service that they give to the community should remain a good charitable purpose and they should be recognised in the Bill.
Lord Dholakia: I support my noble friend Lord Shutt. I do so because I have the same approach as the noble Baroness, Lady Turner, and the noble Lords, Lord Borrie and Lord Hylton, who mentioned the matter relating to efficiency. I shall deal with the second point—on conflict resolution.
I said at Second Reading that it has taken us about 40 or 50 years to include human rights, racial harmony, equality and diversity among charitable purposes. It is about time too. But as part of that exercise, we must also accept that, in the promotion of racial harmony and diversity, we have seen the type of conflict that arises in the community from time to time. Those who include conflict resolution among their activities should he deemed as charitable.
So I do not necessarily agree with the noble Lord, Lord Hodgson, on this matter. I hope this will he part of the exercise and I hope that we will give serious thought—as we do in relation to animal welfare—to whether the concepts of "welfare" and "charitable" encompass the kind of arguments advanced by the noble and gallant Lord, Lord Craig.
5.15 p.m.
Lord Swinfen: When the Minister replies, will he tell the Committee what "conflict resolution" means in the context of the Bill? Is it purely the making of peace between individuals or groups of people or nations? Is it clearing up the mess after a conflict? I am speaking in this context as an adviser to the Leonard Cheshire Centre of Conflict Recovery, an organisation which goes into countries after conflicts to advise them and to help them to set up their medical services again, because most times they have been totally destroyed.
It is essential that we know what "conflict resolution" means. It may be necessary to write a definition in the Bill.
Lord Phillips of Sudbury: I have only a few brief remarks to add to those made by many noble and gallant Lords and noble and not-so-gallant Lords.
I can understand why the Armed Forces feel a bit miffed that they are not mentioned on this long list. I have sympathy with that.
I am a little disappointed with the wording of Amendment No. 2. I do not know about other noble Lords, but I am utterly fed up with the word "efficiency". It is a rather nasty little word. It is an altogether inadequate word for the work of Her Majesty's Armed Forces— and, indeed, for the work of anyone. If you have to have a single word, the word "effectiveness" is a much fuller, deeper, more rounded word than the mere word "efficiency". It is notable

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that where the Charity Commission is dealt with in the Bill, the word "effectiveness" is applied to the duties that fall on it. It is a small point.
I am utterly confused by Amendment No. 5, tabled by the noble Lord, Lord Hodgson of Astley Abbotts. Probing it may be, but I cannot see at what it is probing or to what end. I do not see any conflict or paradox at all between Amendment No. 2 and Amendment No. 5. Indeed, the Armed Forces spend most of their time these days dealing with conflict resolution and trying to keep the peace.
It has taken a long time to get conflict resolution accepted by the Charity Commission as charitable. A number of very important charities today function under that heading, including International Alert, for which my son-in-law used to work. The conflict resolution role is blindingly obvious and necessary all round the globe and I hope that the Minister will hit the amendment well into the long grass.
Lord Wedderburn of Charlton: This debate shows the deep waters into which charity law takes us. The Government have been very brave—perhaps unnecessarily brave—because they have done what other administrations have refused to do: they have spelt out a long list of charitable objects rather than confine themselves within a statute of Elizabeth I of 1601, about which I shall say a little more in a moment.
A long list such as the one in Clause 2 invites additions. The Government knew that very well when spelling out a long list of charitable purposes, which is what we are now considering. We are not dealing with public benefit at the moment and we should not confuse the debate by referring to that issue.
What are charitable purposes? Instead of what the courts considered, eventually, were roughly the four heads that came through after the statute of Elizabeth I, we have got paragraphs (a) to (k). which refer to specific purposes, and then we have got paragraph (1) which refers to,
"any other purposes within subsection (4)".
I am not going to go through subsection (4) again but it is very relevant to some of the points that have been made about the noble and gallant Lord's amendment, Amendment No. 2, to which we will return.
If you spell out a long list of this sort, you try to expel, to use a Marxist phrase, the spectre which has haunted charity law since 1601. You try to obtain certainty where it is very difficult to do so, and that is a brave venture. Some people will like some of the items specified, but some people will not understand what is meant by, for example, "conflict resolution".
Members of the Committee must realise that the list invites one to express not merely one's interests—I should say at once that I have reason to be grateful to the Royal Air Force Benevolent Fund; I do not know whether that counts as an interest but I hope that noble Lords will declare their interests on this matter—it also invites an expression of what your friends will call your "social purpose" and what your enemies will call your
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"social prejudices". There is nothing wrong with that—it is done every day in the Chamber—but people pretend that they are not doing it.
We are all influenced by what we feel about this list. Why should animal welfare be included and not human welfare? The answer might come within subsection (4)—I am sorry to return to that subsection—which includes anything,
"that may reasonably be regarded as analogous to, or within the spirit of",
what is set out above. That involves a statement of support for or dislike of specific social purposes, and people may want to add further ones. Amendment No. 2 in the name of the noble and gallant Lord must be seen in that light.
It occurred to me that one might say that the noble and gallant Lord's amendment goes to the heart of the matter in every sense. Of course, it is difficult not to support groups and organisations that provide sustenance to the Armed Forces. I shall not be led—for once, at any rate—into saying whether wars are a good thing or a bad thing, but it is obvious that the forces have a certain amount of support in people's hearts. However, the amendment must be tested in the same way as any other amendment.
It has been asked why only the "efficiency" of the Armed Forces should he mentioned. I accept that the noble Lord. Lord Phillips, is fed up with the word efficiency, but the marketers thrust it on us. Since 1980, we have been caught in the trap of judging everything by its efficiency without anyone spelling out what that means in the public rather than the private sense.
Why did the noble and gallant Lord not use the words "efficiency and welfare" of the Armed Forces? It seems to me that that would he very easy to do and would improve his amendment. Why does he limit it to the Armed Forces of the Crown? Your Lordships have had two Bills on the fire and rescue service and, only in the past month or two, two members of that service have lost their lives in an attempt to improve public safety and rescue trapped people. Are they not also worthy of attention? Some people would say, "What about the police?" They have a very dangerous occupation these days and everyone wants more and more from them. Why are they excluded?
I then come to a more fundamental point. Albeit that the merits of all those organisations are seen by most people as obvious, some may disagree when it is asked: what about those who want to promote conflict resolution, and not just conflict resolution but disarmament? What is wrong with those who have raised funds to support the Campaign for Nuclear Disarmament that they should be thrust out of tax benefits in amendments of this kind? What is wrong with the other organisations that support not only conflict resolution—
Lord Phillips of Sudbury: I am very sorry to interrupt the noble Lord's flow, but surely he is aware that the difference is that the Armed Forces, the police and all

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the other bodies that he mentioned are currently charitable but disarmament is not. That is the difference.
Lord Wedderburn of Charlton: With great respect, I do not think that one would find that the Charity Commissioners have registered every organisation which has discussed with them the raising of funds for support for the police. The noble Lord knows a great deal about the register. I am sure. Why not put it in the Bill? What is wrong with saying things rather than muttering in the corridors and leaving people to find out when they apply?
I refer to peace organisations. I do not think that every organisation which is formed for the purposes of disarmament and peace has received charitable status. I see that the noble Lord agrees with me. Well, I think they should. If we are to have a list like this, we have to have some notion of equity and accept that some groups we do not happen to support should appear side by side with other groups on the register.
I should like to conclude my point, which I think is obvious. The noble Lord will no doubt vote against it if he has the chance. I should like to say something about the Statute of Elizabeth 1601. If the noble Lord wants to intervene, I am happy to sit down.
Lord Phillips of Sudbury: I am only trying to help the Committee. The point about Clause 2 is that it is not new law; it is declaratory of existing law, so that while the issue raised here is whether or not the efficiency of the Armed Forces should he specifically mentioned, in talking about disarmament and the promotion of peace, the noble Lord is talking about what he might want to see as charitable. But I emphasise that there is nothing new in Clause 2. If the noble Lord wants to extend charitable purpose, that is a different matter, but he should not confuse the two.
Lord Wedderburn of Charlton: Nothing new in Clause 2? The relief of poverty was under the Statute of Elizabeth. Certain forms of the advancement of education were under the same statute. Religion came in, but in a rather funny way, as the courts interpret it. All the rest are new. Which are not new?
Lord Phillips of Sudbury: I am sorry, but all the rest simply put into words what are already charitable purposes under the fourth head. That is a fact. There is nothing there that the Charity Commission has not accepted as charitable.
Lord Wedderburn of Charlton: It may be—although I think not—that everyone who could be referred to under Clause 2(2) has been registered by the Charity Commissioners. I should like to go through the register with the noble Lord and see whether that is so. I do not believe it is. Neither do I believe that those who are within the spirit of the list are all registered, but we would have to go through the register to see. We will come to specific paragraphs; I shall not muddle the debate by adding to the hands in the ping-pong.
To be set out in Clause 2 gives you a clear statutory status. If the noble Lord, Lord Phillips, likes the whole of Clause 2, he must be broad-minded enough to ask
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whether there are other people who should have the same statutory status. I do not care whether they are analogous; I do not care whether they are similar. If you have a place in this list, your tax benefit is half secured; you have to prove public benefit.
I ask again: what is wrong with mentioning other meritorious groups and organisations or, rather, the organisations that support the welfare of other groups and organisations? This will come up in debates on forthcoming amendments in a very big way.
Members of the Committee must take their pick. Either they will be non-discriminatory, on a fair basis, or they will simply express their prejudices and say, "We like the Armed Forces; we do not much like the fire service". They may or may not be accepted when checked out by the Charity Commissioners—of course the fire service would—hut they are not on the face of the Bill. Being on the face of the Bill is a statutory benefit.
The Government's bravery in setting out a list leads to the traps and hazards that every inquiry conducted before the Bill predicted would be a problem. Everyone will want to get in on the act with his own little or large group. That is very natural, and I quite understand it. But if you are going to include the Armed Forces, I could simply say, "I want peace organisations and conflict resolution". I believe that they are admirable things, but that is just a peculiar prejudice of my own. Noble Lords should not legislate on the basis of their hostility to groups—and we will come to the charter of human rights and its effect on the debate in a moment. They should not do what they believe is simply in the spirit of the Statute of Elizabeth of 1601.
5.30 p.m.
We are all going to refer to that statute—it is referred to twice in the Bill— and so we had better know what it says. In 1601, the purposes specified in the preamble were as follows:
"The relief of aged, impotent and poor people; the maintenance of sick and maimed soldiers and mariners"—
only them—
"schools of learning, free schools and scholars in universities; the repair of bridges, ports, havens, causeways, churches, sea-banks and highways; the education … of orphans; the relief, stock or maintenance of houses of correction; the marriages of poor maids … the relief or redemption of prisoners or captives; and the aid … of any poor inhabitants concerning payment of fifteens, setting out of soldiers and other taxes".
"Fifteens" meant one-fifteenth of your property due to the king since the 12th century.
The courts massively manipulated those heads in the case law between 1601 and the 19th century, and we shall come to some of those in future amendments. But if noble Lords are going to refer to the statute of 1601, they should realise how narrow it was and how the courts of equity entered into what was, ultimately, a very fair approach to regarding other things as analogous to, or, as they said then. "within the spirit of", the Statute of Elizabeth and setting them up. Noble Lords must be as fair as the courts were by the 19th century and realise that what they want in the list

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is their own personal, particular hobby. Other people may have very different hobbies and want them to be in the list as well.
I do not know what my noble friend the Minister is going to say about the matter; I do not know whether he realises that he is being quite as brave as he is. But he will know very well the arguments of those who were against the list and who said the very things that were being said in this Grand Committee when the matter came up. People will say, "Such and such a group must be set out in the list", and that is quite understandable because being in the list puts you halfway to tax exemptions, along with other benefits, although tax exemptions are what come first to everyone's mind.
I would be against the amendment as set out. I would ask that it be expanded to include other groups, and certainly the welfare of the groups that we support. I hope that, if this matter comes to a challenge on Report. we shall not be asked to vote on anything quite as narrow as the amendment proposed by the noble and gallant Lord.
Lord Hodgson of Astley Abbotts: My Amendment No. 5 took some incoming fire from the noble Lords, Lord Borrie, Lord Shutt and Lord Phillips, so it is worth while trying to explain what I was trying to achieve.
The Independent Service Agency, which represents the service non-public funds, believes—and I am not a charity lawyer—that including the words "conflict resolution" could set at risk the charitable status of Armed Forces' charitable funds because they are not concerned with that. The agency may be right or wrong, but that is the point that it has made.
The amendment was not designed to be an attack on organisations concerned with conflict resolution. I am sure that Relate is a splendid organisation, and no doubt the son-in-law of the noble Lord, Lord Phillips, works for an admirable reconciling force. Instead, the amendment was intended to be a defence of service non-public funds. I thought I had made it clear that all I want the Minister to do is to assure me that the Government see nothing in the Bill that will disadvantage the charitable status of the Armed Forces' charities. It is nothing to do with trying to get at people who are concerned with conflict resolution; it is a defence of the Armed Forces, and we tabled the amendment because the Independent Service Agency was advised that there was a legal concern about the position.
Lord Bassam of Brighton: I may not yet be a charitable institution but I have got an awful feeling that at the end of this debate I am supposed to resolve conflict and offer a little mediation. In trying to do so, I shall carefully go through the threads of the debate and please as many people as I can because that, essentially, is what I want to do.
Let me deal first with the amendment of the noble and gallant Lord, Lord Craig of Radley, which was admirably addressed by the noble and gallant Lord, Lord Bramall. They put forward a passionate case for
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the amendment and I can understand why that should be the case. Clearly the Armed Forces' charities, the benevolent societies and those which have acted in aid of those within the Armed Forces have undertaken fantastic work over many generations. I know that to be the case from personal family experience. That is not declaring an interest necessarily; it is a reflection of the effectiveness of the charitable work that has been undertaken, and is currently being undertaken, by Armed Forces' charitable bodies.
As many contributors to the debate have said, the promotion of the efficiency of the Armed Forces has long been recognised as a charitable purpose. I can say quite clearly, without any qualification, that that position will not change—it is not intended to change in any way—as a result of the provisions of the Bill. The Government fully recognise the valuable work performed by the Armed Forces' charities and the undoubted public benefit that they provide.
I want to make sure that our assurance that the charities which have been referred to in the debate will remain as charities after the Bill is passed is clearly understood. It will not be affected by the fact that there is not a specific Armed Forces category identified in the list that the noble Lord, Lord Wedderburn, described as being a brave list to bring forward. We did not envisage it as being a brave list.
As we have had explained and debated many times in your Lordships' House, a list in legislation invites additions and deletions. However, we took the view that we had to start somewhere, and the list we have provided is an important beginning. There has not been a list in the past but there have been broad headings. We are trying to achieve a balance so that the list includes best established and recognisable charitable purposes but is short enough to be a memorable list. I would argue in defence of the list being reasonably memorable. Whether at the end of the Bill I shall be able to remember all of the categories remains for debate, but I shall certainly try.
The Government believe that the specific purposes contained in the list of charitable purposes reflect the major areas of charitable endeavour which have enjoyed and should enjoy strong public recognition. Charities concerned with the promotion of the efficiency of the Armed Forces will come under the twelfth category of "any other purposes", and there is absolutely no threat of a change in their charitable status in saying that.
I am sure that the noble and gallant Lords who have spoken will see that as less than adequate for their purposes, but it is not intended in any way, shape or form as a slight to the Armed Forces' charities. On the contrary, we, as a government, obviously greatly regard their work. I hope that the noble and gallant Lords will be reassured that the promotion of the efficiency of the Armed Forces will continue to be recognised and acknowledged as a charitable purpose and that they will feel able to withdraw their amendments.
I turn now to the second amendment in the group tabled by the noble Lord, Lord Hodgson, which deals with the issue of conflict resolution. As I have

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explained, it is difficult to put together a list which is defensible in all circumstances. But this list came out of the strategy unit's original consideration and it proposes a list of 10 charitable purposes to replace the four heads of charity which have been referred to many times during the course of the debate.
Of those who responded to the Government's consultation on the strategy unit report a large majority—some 95 per cent—were in favour of introducing a new list of charitable purposes along the lines of those set out in the strategy unit's proposal. There were, however, as one can imagine, many suggestions for additions to the list, and the draft Bill published in May incorporated three suggestions that attracted a wide consensus—that is, animal welfare, science and social housing. The Joint Committee on the draft Bill recommended further additions which the Government have incorporated into the Bill that is now before the Committee for consideration.
The fact that a particular purpose is not included in the list does not mean that it will cease to be charitable under the Bill. That is because Clause 2(4)(a) has the effect of ensuring that any purpose that is already recognised as charitable will continue to be charitable under the Bill even if it is not specified in the list. That reflects the view of the strategy unit and the Government that no charity should lose its charitable status purely as the result of the adoption of a new list of charitable purposes.
Conflict resolution was one of the purposes included in the strategy unit's original list and it has, in any event, been long recognised by the Charity Commission as a charitable purpose. The Commission has recognised it as covering activities directed at resolving a variety of conflicts, from those taking place at a local level to national and international conflicts. The noble Lord, Lord Swinfen, asked for a definition—or, if you like, a meaning—of "conflict resolution". We see it as involving and including activities relating to resolving disputes at both national and international level by non-political mean. It also includes the issues to which the noble Lords, Lord Dholakia and Lord Shutt, referred in their contributions as resolving domestic and other disputes to the public benefit. So we see it as having a wide meaning and we want to see it adopted in its broadest sense.
We do not see any inconsistency in accepting as charitable purposes the promotion of conflict resolution and reconciliation and the promotion of military efficiency. The noble Lord, Lord Phillips, made the point very well that, in a sense, the Armed Forces are there to help in reconciling conflicting sides and to play an important peace-keeping and conciliatory role. We recognise the value and importance obviously, as governments do, of that work. It is not in any sense our view or wish to see that change in any way, shape or form.
It would be fair to say that conflict resolution is an activity of increasing importance in a contemporary world and one in which the charity sector makes a very important and vital contribution. The Government believe, therefore, that conflict resolution deserves to be mentioned in the same context as the promotion of
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human rights, and to be related to that and all other related purposes which are charitable under paragraph (h).
In view of what I have said, I hope the noble Lord, Lord Hodgson, will feel confident enough not to press his amendment. I also hope that I have gone some way towards satisfying the understandable concerns raised by both noble and gallant Lords who have contributed an important element to the debate today.
Lord Craig of Radley: I have listened to the Minister and I thank him for his response. I cannot say that I am satisfied because this is such an important point that his assurance—or any ministerial assurance—is not the same as having it on the statute itself. So I shall wish to return to this issue.
I have had a great deal of stick—I suppose is the right word—about the choice of words for the amendment. I am not learned in the law. I thought it would be appropriate to turn to a Home Office document—which is what I did—and I referred to Statutory Instrument No. 1056, which I have mentioned already. It was signed on 29 April 1965. It stated:
"These regulations shall apply to a charity wholly or mainly concerned with the promotion of the efficiency of any of the Armed Forces of the Crown".
I deleted the words "of any", but otherwise I stuck rigidly to that formulation, which was signed by Frank Soskice.
5.45 p.m.
I hoped that if those words were good enough for me, they would be good enough for the Committee. It may be that additional words would be helpful. I am certainly not setting my mind against that. I looked for a comprehensive and understandable phrase that was well used and well known and would fit with what was already proposed. In conclusion, 1 thank all Members of the Committee, particularly those who supported my amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Elton): Amendment No. 3 has already been withdrawn.
Baroness Turner of Camden: Amendment No. 3 has been withdrawn, but on the groupings list it is grouped with Amendment No. 17.
Lord Elton: If the amendment has been withdrawn, it cannot be spoken to. The speech that the noble Baroness wishes to make should come at a later stage.
Baroness Turner of Camden: I simply wanted to make the point that the grouping was wrong, but I will deal with that later.
Baroness Turner of Camdenmoved Amendment No. 4:
Page 2. line 10, at end insert "or belief, other than predominantly a political belief"

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The noble Baroness said: In moving Amendment No. 4, I wish to declare my interest. I would describe myself as a humanist. I am a member of the Secular Society. My concern is that if the Bill is not amended secular organisations could be disadvantaged.
A purpose falls within the scope of the Bill if, among a whole list of purposes, it is concerned with the advancement of religion. At Second Reading, I was very impressed by the speech made by the noble Lord, Lord Lester. He welcomed the Bill, as I think we all do, but he drew attention to the legal uncertainty and the potential for discrimination, resulting from the absence of a definition of religion and the absence of a reference to belief (at col. 918 on 20 January).
He also cited the view of the Joint Committee on Human Rights, which recommended that compliance with the Convention requires the Bill to be amended to include the advancement of both religion and belief, as is the wording in Article 9 of the Convention and the Human Rights Act.
I am aware that the view of the Home Office at present is that organisations advancing non-religious beliefs would not be disadvantaged under the Bill. I am not happy about that. Looking at the list of purposes defined in Clause 2, I cannot see that an organisation such as the Secular Society would be regarded as coming within the clause. Perhaps the Minister will tell us that guidance will be issued which will make everything clear. But it is surely better that a definition should appear in the Bill.
Our amendment seeks to take account of the issues raised in the speech made by the noble Lord, Lord Lester, that drew heavily on the recommendations of the Joint Committee on the draft Bill, which resulted from evidence given to the Committee.
There was concern that non-deity religions, such as Buddhism, might not meet the current legal definition of religion. Our amendments—particularly Amendment No. 18, with which Amendment No. 4 is grouped—attempt to deal with that by spelling out exactly how religion should be defined, including religions based on deistic, multi-deistic or non-deistic premises, beliefs, revelations or worship. That is a reasonable definition, which it would be a good idea to include—for the sake of clarity, if nothing else. I beg to move.
Lord Hylton: I have no problem with the word "belief' in this amendment, but I have some difficulties with the word "predominantly". First, it is likely, even probable, to lead to a great deal of litigation, which should be avoided if at all possible. Secondly, what happens if a belief is linked with a political belief to a partial extent, but not to a predominant extent? It is unclear and needs a good deal of polishing up.
Lord Wedderburn of Charlton: In response to the point just made by the noble Lord, the proviso in the amendment is a genuflection towards current conventional law. There has been a debate, which will not interest most Members of the Committee, about whether Marxist Leninism could, if belief entered the list,
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be registered; namely, whether an organisation founded for the purposes of advancement of that philosophy could be a charity and have a charitable purpose. Most people, and conventional wisdom, say that it could not if it is predominantly political in its purposes. I do not think that the Charity Commissioners will ever rule on that.
I do not think that there is any more or any less likelihood of getting litigation on the matter. Members of the Committee should realise that almost every point made today could and might be the subject of litigation. That is not because lawyers are evil chaps but because that is the way in which our society deals with conflict when it cannot be resolved. I note that the noble Lord and I are both in favour of conflict resolution appearing squarely in the Bill.
The reason that there is a need to say something in the Bill overlaps with what I said earlier to the noble Lord, Lord Phillips. If a purpose is omitted, it does not get over the first hurdle without persuading the Charity Commissioners that it should be included. Immediately, I say to the noble Lord, Lord Phillips, that some humanist groups and organisations have asked to be registered and they have been refused.
The report of the Joint Committee of your Lordships' House and the other place should be the foundation of the debate on this Bill—certainly the first part of the Bill. The evidence of the executive director of the British Humanist Association to the Joint Committee stated that,
"The Act prohibits discrimination by the Government and other public authorities on grounds of religion or belief … and case law under the European Convention on Human Rights and the Human Rights Act [in Britain] makes it absolutely clear that Humanism is a 'belief' within the meaning of the Act",
and should not be discriminated against.
In its evidence, the association said that it had made that point again and again in meetings with the Home Office and in submissions to the Government. The Joint Committee was cognisant of the argument. The executive director said that the Joint Committee,
"agreed with us … but still the Government ignores it".
The claim is that the Bill is discriminatory against those who do not fall within religion as it has been interpreted. I have given the Committee examples of the curious way in which it has been interpreted. I am sorry if Members of the Committee do not like legal points, but we are passing a law, which tends to raise legal points. This point is very clear; namely, current law and the law under the Bill would discriminate against people with beliefs that are as sincerely held and as important to them as any religious belief of another citizen.
The British humanists said that they relied on Article 9 of the European Convention on Human Rights, incorporated into our law in the Human Rights Act. The appropriate words are that,
"Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change religion or belief and freedom, either alone or in community with others … to manifest his religion or belief, in worship, teaching, practice and observance".

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The same formula is used, in effect, in the United Nations International Covenant on Civil and Political Rights, where the wording is slightly different. In every case in international documents, religion is accompanied by belief in one form or another. There are different interpretations in some documents about what belief means. For example, in the Communications Act, the Government included an obligation on broadcasting authorities to give representation to those who are of religious and "other" beliefs.
I shall not read from the Communications Act, but the wording is slightly different from the usual international interpretation. Everywhere, except in British law, international organisations and national laws have come to recognise the equality of those who do and those who do not have religious belief. The very notion of religious belief is very difficult to state. In literature, organisations for the purpose of the saying of mass and other similar religious organisations are counted as charitable with no difficulty. But a group of Chinese immigrants with practices which, they thought, saved the souls of the dead, or at any rate communicated with them, was just slung out because it was not considered to be a religion.
The question arises—it has never been settled—of whether all species of Buddhist belief fall within English law as a religion. Although Buddhist organisations have been registered, it is the majority view that the Charity Commissioners would not register all forms of organisations with Buddhist beliefs. There is also a school of thought in the literature, which is vast, that Hinduism is a problem. The basis of English law, in accepting religion, is that there must be, as Lord Denning once said, the worship of a supreme being. Indeed, he went further and said that that had to manifest itself in some public way. He said:
"What a man is doing when he says prayers alone in his bedroom is private. But if it is done in worship, in community, that is religious".
There is a great deal of case law on that basis.
This is not an old set of authorities. In 1980, Lord Justice Dillon said that,
"ethics are concerned with man's relations with man".
But religion is concerned with man's relation with God.
Reports are still prone to say that if you do not worship a supreme being, you are not part of a group that comes within that head of charity. I do not have to argue that that is discriminatory; it is plainly discriminatory. It is an argument that has gone on for years, as the British humanists have shown. It is time for British law to come into line with decent standards of equality. That is why the record should reveal that the case put forward by the humanists must be answered in the Bill.
There are two ways of getting around that. The first is the "Alice in Wonderland" interpretation; namely, that the advancement of religion,
"includes the advancement of non-religious beliefs".
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If you want to live in "Alice in Wonderland" law, that had better be in the Bill. Our amendment does not do that. We think that the truth should be told; namely, a belief that is non-religious should have some equality in the first hurdle. The second hurdle is whether you can prove public benefit, and that applies to religious and non-religious organisations as equality on the second hurdle but not on the first.
The other way of getting around it is by patronising recognition of humanist organisations. People say, "Oh well, you are analogous to religious belief". Most humanists would object to that. To refer to the list of Richard Dawkins, the eminent scientist in Oxford. there are three ways in which to rely on religious belief in argument. One is authority, another is tradition and the third is revelation. He quotes examples in religious doctrine, such as the bodily assumption of Mary's body, which arose only with authority in 1950 for Roman Catholics.
6 p.m.
Richard Dawkins argued, in a letter to his 10 year-old daughter, which I am sure that members of the Committee would understand if they read it in his admirable book A Devil's Chaplain, that you should look at the evidence for what you believe. I am not trying to persuade any members of the Committee to accept his argument; but I am saying that his argument deserves equal treatment and deserves not to be discriminated against because some members of the Committee cannot bear to see it in the list in a Charities Bill. I am arguing that it deserves equal tax treatment, too, because it is that which holds up organisations that do not happen to fit in the list.
It is axiomatic in charity law that public benefit has to be shown and, as it stands in British law, that religion is required in some form or other. I have quoted already two peculiar examples of how religion has been interpreted. Some religious groups complain themselves that they do not quite fall within the British notion of religion. That used to be much more common in the early nineteenth century. In 1949, Lord Reid, in a leading case, said that British law had now come to regard all forms of religion as equal. That does not stand up to examination in every way, but it is true that if you can show the courts that you worship a superior being, they tend to accept even new religious groups—although they did not accept the Church of Scientology. That was a very peculiar case and will obviously have to be revisited. If you look at that judgment, you will see that there might be arguments that would not be accepted under our amendment. But that remains open.
I have no view for or against revisiting that matter as to what the conclusion would be—nor about Marxism/ Leninism as the purpose of a group, although that is, with the groups that actually exist, likely to fall into the political arena. I can say to the noble Lord who challenged that notion that I believe that there would be wide support for the argument that a body which was exclusively political in the conventional sense would not normally be accepted as a charity. We put in

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"predominantly", although the indefinite article is in the wrong place—that is entirely my fault—so the amendment should read,
"belief other than a predominantly political belief".
Perhaps the noble Lord can do better than that text; if so, I look forward to seeing it; but we put it in to show that we had not forgotten the point.
This is the challenge to those who say that this is a joke or something to be smirked at: do they really think that a vast number of the inhabitants of the British Isles are happy that only those groups which count as the advancement of religion are included? Remember, it is not just having a political belief, it is advancing a political belief or some other belief. That point goes to the boundary of education and does not belong here. But do they really believe that most people in the street—or Ivor Jennings used to say, "The man from Hoxton"—would not say, "Well, I don't care. If they're genuine about it and they really believe that that is what they want to persuade people of, why should they not be treated equally with other groups which say that they are religious".?
Before the Committee makes up its mind against the amendment, it must have an answer to that in modern society. The European Convention on Human Rights is against it; the national law in the Human Rights Act is against it; and all the international texts and most of the European constitutions are against such discrimination. There is a question over one of them, but in western Europe, all but one are clearly against it. In considering whether humanist groups should be dealt with in the Bill, such opposition is a very heavy burden of proof for someone to resist on account of his principles or, as his enemies would say, his prejudices.
It is no answer to say, "Oh well, perhaps the Charity Commissioners would like this particular humanist chap or that particular humanist chap because they can say it's analogous to religion". In 2003, regulations were made by the state saying that you must not discriminate in employment on the grounds of religion or similar belief. An attempt to tell the Government that humanist beliefs are not similar to religious beliefs was totally ignored. In the same way, in their response to the Joint Committee the Government totally ignored the British humanist argument. The Joint Committee document, which I urge your Lordships to read, accepts the argument and sets out what the committee considers should be the approach to statute. Any organisation, be it non-deity or multi-deity, should be able to satisfy the paragraph on religion for charitable purposes, subject to showing a public benefit.
In a paragraph to which I can only award a beta-minus, the Government said that they had considered their response to that and to the strategy unit's review of charity law and whether a definition of "religion" should be identified by the Joint Committee. The clear evidence was that non-deity and multi-deity groups can already satisfy charity law as a religion, but non-deity groups satisfy "religion" with great difficulty under the current law simply because people do not
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quite like the look of them. But nothing in the Bill cures that discrimination, and it is no good saying, "Well, the Charity Commissioners might accept you by some analogy with something that you're not analogous to". You either pass a law which is non-discriminatory or you do not, and there is no half-way house between the two.
In their response, the Government said that 200 charities are registered for the purposes of advancing the Buddhist faith and a similar number with the purposes of advancing the Hindu faith. Why do we not accept that in the Bill? The Government then said that it was well established that the Charity Commission would register such organisations. They said nothing about non-religious organisations, unless "non-deity" is meant to include everything and everyone. We deserve a better answer, and we deserve equality on the face of the Bill and not by the grace and favour of the Charity Commission.
Lord Hylton: The noble Lord, Lord Wedderburn, has raised the issue of Marxism-Leninism. Does he not accept that that is a philosophy rather than a quasi-religious belief?
Lord Phillips of Sudbury: It is very difficult to know quite where to start—
Lord Bassam of Brighton: The noble Lord has stolen my line.
Lord Phillips of Sudbury: It is difficult to know where to start on the subtle, far-reaching justification of Amendments Nos. 4 and 18 advanced by the noble Lord, Lord Wedderburn, on his own behalf and on behalf of the noble Baroness, Lady Turner. I must confess that I was hoping to keep my powder dry for Amendment No. 9, which stands in the name of the noble Lord, Lord Hodgson, and to which I intended to add my name. That amendment advances a new definition of "religion".
I am now a little bamboozled as to what to do. I shall certainly not bore the Committee twice with all the points that can be made. The noble Lord, Lord Wedderburn, asks, "Why not?" The answer is: it is ten past six and we have scarcely started on this great march. I shall have a self-denying ordinance, except to say one or two things.
Lord Bassam of Brighton: In the interest of speeding things along, I am tempted to accept that we should consider Amendment No. 18, which is in the pool, as it were, of religion and definition.
Lord Phillips of Sudbury: It is grouped with Amendment No. 4.
Lord Bassam of Brighton: Amendments Nos. 4 and 18 are grouped together.
Lord Phillips of Sudbury: Unfortunately, they are not grouped with Amendment No. 9, which bears considerably on the same issues covered by Amendment No. 18. I should have preferred to see Amendments Nos.

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9 and 18 grouped together. However, they are not, and I am going to keep my powder dry, except to make certain points.
I am sympathetic to the broad thrust of what the noble Lord, Lord Wedderburn, says—for what that is worth. I understand the points he makes about humanism: I am only too well aware of the South Place Ethical Society precedent, which is very important for humanism. However, I think that Amendment No. 4 is far too broadly worded. Amendment No. 18 is a much more sellable proposition.
Amendment No. 4 would leave Clause 2 having, as one of its charitable purposes, the advancement of religion or beliefs. I know the bit about politics but that is superfluous because charity law is absolutely clear on the role of politics as permitted for charities.
Lord Wedderburn of Charlton: I hope the noble Lord will excuse me if I interrupt his flow to remind him that Parliament makes the law. The exception on grounds of "political" has been judge-made interpretation, which 1 wholly support. Nevertheless, a statute makes the law when there is any conflict with the courts. That is why we put it in—because we want to be clear.
Lord Phillips of Sudbury: I disagree with that. If one wanted to make every issue of common law charity law clear in the Bill it would be three times as long. It is unnecessary to say, which is why it is not said in Clause 2 at any point, that a charity must not be predominantly political.
The nub of the amendment is that Clause 2(2)(c) would refer to the advancement of religion or beliefs. The noble Lord can add his words if he likes. The phrase "or belief" has no constraint to it at all. The noble Lord chose to advance what I would call respectable beliefs—well thought through, humanist beliefs, as held by various groups of people in society. But "belief" on its own could embrace eugenics, hunting or a thousand and one other things. Frankly, we would be in a dark, deep, uncharted sea if the amendment were agreed.
Lord Wedderburn of Charlton: This is to keep things short. The noble Lord is absolutely right: the English language is deficient. If you look at the international texts, in German—
and I am not very good at this—it is always Weltanshauung. In Italian it is the same as in French—conviction or convizione. We do not have a word for it.
Because of the objections to the word "belief", which was their first proposal, the humanists proposed to advance the term "life stance". I think that it is rather American. If the noble Lord prefers "life stance" or can think of a better word which covers the point, I will happily join him in the Lobby to put this matter right when the moment comes.
Lord Phillips of Sudbury: I cannot think of a better word. "Life stance"—is that about nudity? I would love that. I do not think that this is a runner. Therefore, and because it is beyond the wit of man, except perhaps the Germans and the Italians, the law is as it is. Someone at some point has to decide what is
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an admissible religion or belief for charity law purposes. I put it to the noble Lord that belief is an inadequate word that is incapable of judicial interpretation with any sense.
6.15 p.m.
However, Amendment No. 18 is much nearer the mark when it states:
"'religion' includes religion based upon deistic",
and so on. That is qualified by the word religion: it must be a religion. I appreciate that the noble Lord does not like that nexus.
Lord Wedderburn of Charlton: Read on.
Lord Phillips of Sudbury: I shall read on. Yes. it continues,
"on non-deistic premises",
but the whole thing is qualified by the word religion and religious beliefs.
Lord Wedderburn of Charlton: Read it all.
Lord Phillips of Sudbury: I have read it all. Everything is posited on religion, so everything, including the beliefs, the revelation and the worship is related to religion. That gives us an anchor, a starting point and something that can be interpreted—it has been interpreted by the common law for centuries. I shall cease at that point and look forward to saying more on Amendment No. 9.
Lord Borrie: I feel that—
Baroness Thornton: Perhaps I could join in for a moment in what is becoming a two-person show. I counted five Aunt Sallys there and I cannot possibly knock them down with the skill with which my noble friend could, but, as a fellow humanist, and a member of the all-party humanists group, I feel that there is a valid question to be answered here. I do not think that it is answered by the most welcome recognition that the Minister has given in respect of Amendment No. 18. My question is: how will those legitimate concerns be addressed?
Lord Borrie: My query is whether the amendment goes far enough. The noble Lord, Lord Wedderburn, referred to the well-known phrase of Lord Denning, which is at least not in short, that religion involves the worship of a supreme being. There are other definitions, one of which the Minister has already said that he is minded to accept, which is to include religions,
"based upon deistic, multi-deistic",
and so on, as set out in Amendment No. 18.
The amendment would add the words "or belief". I leave aside the business about political beliefs, which I do not want to get into. It seems to me that you can believe in a supreme being or in a number of supreme beings. Alternatively, you can believe just as definitely and specifically that there is no supreme being. My question is: what about those who say to themselves. "I do not

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know"? They may say, "I do not have any belief and I want to belong to an association and want it to be charitable and receive tax benefits and all the rest of it". My question to the noble Lord is, does the word belief include non-belief?
Lord Bassam of Brighton: It is extremely tempting to enter the spirit of this debate and consideration of belief and non-belief, but I caution the Committee to keep within reasonable bounds in considering the Bill. I thought that we were stretching it somewhat in that debate —although I cast no aspersions on any contributor's sincerity. No doubt the noble Lord, Lord Wedderburn, will think that my response is sub-beta minus, but I shall try to respond to his points.
Truthfully, the noble Lord, Lord Phillips has advanced most of the arguments that I support. The problem with extending the heading of charitable purposes from religion on its own to religion or belief is that we have a definition of religion, but we do not for the purposes of charity law have a workable definition of belief.
The noble Lord, Lord Phillips, made the point much better than I will, but "belief" could include just about anything. It might be belief in the all-conquering power of Sudbury Wanderers AFC or Brighton and Hove Albion, or whoever. It could mean that in the way it has been suggested. The first amendment proposed by noble Baroness takes steps towards narrowing down belief by excluding political belief—although again that is qualified in the phraseology that is used, as the noble Lord, Lord Hylton, said, by using the word "predominantly". There are a whole bunch of difficulties in doing that.
I do not underestimate the difficulties here in deciding when a particular belief is political. As it is drafted, in any event, it leaves us with quite a lot of difficulties. At one end of the spectrum, there is a belief system such as humanism, which has been referred to, which is—we would all have to say—serious, cogent and respectable. There is also the fact, which has already been acknowledged, that the British Humanist Association has been registered as a charity for more than 20 years under the charitable purpose of promoting the moral and spiritual welfare of humankind. But you could argue, as the noble Lord, Lord Borrie, was tending to suggest, that non-belief or anti-belief could also be defined in such a way as to promote the moral and spiritual welfare of humankind. So I believe that there is a profound difficulty in this regard.
We take issue with Amendment No. 18, which is grouped with Amendment No. 4, as I tried to indicate earlier, to move us along. The Charity Commission has a function of deciding whether an organisation seeking registration as a religious charity is a religion within the charity laws definition of religion. The commission has no latitude for making up its own definition of religion but is bound to follow the decisions of the courts as to the definition.
The Charity Commission has decided, by applying the common law definition of religion developed by the courts, that non-theistic and poly-theistic faiths
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can be religions in charity law. No one has taken the commission to court to invite the court to overturn that decision or approach, and we can probably conclude that that is helpful. Therefore there seems to us no practical need to legislate to the effect that non-theistic and poly-theistic faiths can fall within the definition of religion.
However, we recognise that legal uncertainty about non-theistic and poly-theistic faiths continues to exist, and we agree that the noble Baroness's proposed definition might succeed in encompassing the beliefs of such faiths. We would like to give that further consideration. We have already had some useful discussions and we believe that we may be able to come up with something on Report which meets her purpose. Obviously, she will withdraw her amendment today as that is how we work in Grand Committee, but we shall reflect on the wording.
I am sure that we shall have some useful discussions with the noble Baroness, Lady Turner, between now and Report to see if there is something workable with Amendment No. 18. That may well help with Amendment No. 9, proposed by the noble Lord, Lord Hodgson, which the noble Lord, Lord Phillips, said that he might support. We may be able to work out something there that suits all sides of the debate. I do not underestimate the difficulties, but we shall endeavour to do our best.
Lord Wedderburn of Charlton: The Government will not give way on this issue. It is prepared to leave our law in contravention of the Convention on Human Rights—which I do not find a funny subject—and of the Human Rights Act, as they have done in other circumstances. The noble Lord, Lord Phillips, nods his head.
I am referring to Article 9. I can read it if the Minister wishes me to. It says that religion or belief is accepted. Of course it is easier in German, because Weltanschauung means, as the humanists thought, "life stance", or something like that. Of course, it is easier in French. as conviction covers precisely the sort of area that the noble Lord, Lord Phillips, wants. Just because he cannot think of a word, he is going to base his argument on discriminatory law and approve it. I do not find that adequate.
If he wants a long definition but gets it just right, I am with him—I hope to see him come forward with a formula on Report—but he does not think that that suggestion is very serious.
Lord Phillips of Sudbury: No, I said that it is your amendment. You have to do the homework.
Lord Wedderburn: Yes, but I always like to be improved on by critics. Critics have an obligation to be positive, not like the Government, who have an obligation just to be negative. There are international obligations at stake.
Baroness Thornton: I thank the noble Lord for allowing me to interrupt for just a moment. I thought that the Minister was being rather nice. He said that he

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would take the matter away and talk to you about it, so I am not sure that he deserves to be lambasted in this way. I want to put that on the record.
Lord Dholakia: I was going to make the same point. The Minister was generous enough to say that he would take the matter away and assess how far he could take it forward. Simply to turn on him at this stage seems to be very unfair.
Lord Wedderburn of Charlton: But that was on Amendment No. 18. The noble Baroness pre-empted me because I was about to say that that was on Amendment No. 18. The Minister will correct me if I am wrong. I was addressing Amendment No. 4.
Amendment No. 18 is not enough. I heard what the noble Lord, Lord Phillips, said. He expressed his personal view that you could be on the list only if you were included under "religion". Amendment No. 18 spells out what different sorts of religion there may be. I do not have a religion. I am not similar to those who base their ethical code on revelation, authority or tradition—to take the three headings that Richard Dawkins put in his letter to his 10 year-old daughter. That is clear enough. I am not a religious person. I have a code of ethics. All the people who belong to the British Humanist Association—my noble friend knows more about the National Secular Society—also have codes of ethics. They do not depend on a religion. Amendment No. 18 defines religion in the widest possible way. I am not sure that "non-deistic religion" is particularly accurate, but it will do. We know what it means. The dictionary states that it means an argument that does not involve a supreme being of a religious kind which is the foundation of your code of behaviour.
I have the greatest respect for all of the groups that have been mentioned, whatever their religion. But when they object to my group being included in a tax break, my reaction is: "You pray if you want to, but I'll go on praying in moments of stress to those who may be concerned. I cannot join you in that. I have no objection to anything you do within the law generally, but why deprive me of equality in what is a very serious matter?" It is not a funny subject. It is a very serious miscarriage of justice and of non-discrimination, which has been in our law and been argued about.
I am happy for the Government to find better language on Amendment No. 4, but this argument has been had with government after government, as the British Humanist Association set out in its evidence. For the Government not even to refer to that argument in their reply to the Joint Committee is really pretty bad. If the Minister is going to discuss Amendment No. 4, as I hope he will, and find a way through that, I shall be delighted, but the Government has so far been silent on that issue. My noble friend Lady Warwick must understand that they have been silent on Amendment No. 4 issues. They now want to talk about Amendment No. 18. That is a great step forward, but they will find that they cannot discuss Amendment No. 18 without discussing Amendment No. 4. "Non-deistic religion" will
GC 50
lead them straight into a discussion of what it means. I will be delighted if the Minister takes that extra step and discusses those issues.
I have said that the recommendation of a list is very brave of the Government. I mean that, because I have foreseen almost every group that noble Lords have introduced to the argument. I did not foresee one that my noble friend Lord Borrie introduced; namely, nudist groups. But, of course, groups that people find funny will inevitably enter a claim for the list. You usually find funny things that you do not believe in. If you are a humanist you find most of the religious cases amazing, unbelievable, incredible. But let us suspend disbelief for a moment and ask ourselves whether we want our law to remain based on this discrimination.
6.30 p.m.
Baroness Turner of Camden: I thank the Minister for his response. He said that he was willing to have discussions, at least on Amendment No. 18, as I understand it, and I look forward to that occurring before we reach Report.
I am of course disappointed that we have not been able to persuade the Minister that Amendment No. 4 should be taken on board by the Government. A number of noble Lords who have spoken have raised the issue of belief and non-belief. I should say to my noble friend Lord Borrie that I thought our formulation met "non-belief". If it is felt that we should look at the matter again, I do not see why we should not do that between now and Report.
Certainly I do not expect the Government to write "Weltanschauung" into the Bill—some of us may not know what that means—but it seems to me that we have gone quite a long way in this discussion today. We have given a very good airing to the issues involved. As my noble friend Lord Wedderburn spelt out with great clarity, they are matters of great concern to large numbers of people. Far more people belong to the ranks of the secularists and humanists than we sometimes give them credit for.
Very many of us belong to that section of society which does not believe in organised religion and it is therefore important that we get the wording right. We should make it quite clear in the Bill that we are not discriminating against people without belief. We have to find a suitable form of wording and I welcome the opportunity to discuss the issue between now and Report. We will of course return to the matter at Report but, in the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 5 to 7 not moved.]
Lord Hodgson of Astley Abbottsmoved Amendment No. 8:
Page 2, line 21, leave out paragraph (k).
The noble Lord said: Amendment No. 8 seeks to remove subsection (2)(k)—the advancement of animal welfare—from Clause 2. Again for the benefit of the Committee, I should emphasise that this is a probing amendment.

GC 51
We wish to discuss with the Minister the definition of the advancement of animal welfare. We agree that the advancement of animal welfare is a cause that could perfectly properly be included as a charitable purpose; however we believe that the full implications of the paragraph need to be given an airing as there has been confusion on the topic. Indeed, it caused some concern during the Joint Committee's discussion on the meaning of public benefit.
The broadness of the charitable sector was being discussed and the Minister, Fiona Mactaggart, from the other place said:
"I do not think that you could find criteria which could be equally applied to a village hall, to the Anti-Vivisection Society, to Eton, to a cottage hospital. I do not think that you could write criteria which could sensibly be operated in a way which really does cover the range of charities".
Those words have been quoted several times but it is worthwhile placing them on the record in order that the Minister may deal with them.
Out there in the wide world, the mention of the Anti-Vivisection Society as falling within the charitable sector caused concern. We do not believe that the inclusion of animal welfare as a charitable head should mean that anti-vivisectionist groups could potentially gain charitable status. I believe the Minister may have been misquoted—that it was a slip of the tongue—but perhaps the Minister could confirm this when he comes to reply.
Not surprisingly, the RSPCA and the Charity Commission have both contacted us on this point, concerned about our intention in tabling the amendment. But both the Charity Commission and the RSPCA encouraged the amendment on the understanding that it sought clarification and open debate on the point I have just mentioned.
The following section from the Charity Commission's website is a useful point of reference because it provides a commentary on the descriptions of charitable purposes in the Bill. Under the section on animal welfare it states:
"The advancement of animal welfare includes any purpose directed towards the prevention or suppression of cruelty to animals or the prevention or relief of suffering by animals. Examples of the sorts of charities and the sorts of charitable purposes falling within this description include: Charities promoting kindness and to prevent or suppress cruelty to animals: Animal sanctuaries; The provision of veterinary care and treatment; Charities concerned with the care and re-homing of animals that are abandoned, mistreated or lost; Feral animal control, e.g. neutering".
That list indicates that the commission sees charitable purposes for animal welfare to be for quite a limited field of work, but it is still open to interpretation. The first description of the purposes by the commission is charities that promote,
"kindness and to prevent or suppress cruelty to animals".
It cannot be entirely unimaginable to see that definition as being construed as at least one of the purposes of an animal rights group.
No one should be under any illusions as to the length that animal rights groups are prepared to go. I speak from some bitter experience as a non-executive
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director of one of Britain's largest regional breweries, with 2,000 public houses. One of our pubs served the owners and operators of a farm which, with full legal compliance with the Home Office, bred animals for research. The publican was approached by an animal rights group to ask him to ban the owners of the farm from his pub. His initial refusal led to an escalating programme of boycotts and violence culminating in the firebombing of the pub. The police subsequently visited us and advised us as main board directors to remove our home addresses from the Companies House return to reduce our own exposure to similar attacks. I must say that I have difficulty in seeing how any charitable purpose could be associated with that sort of operation and, given their recent legislative proposals, I doubt that the Government do either.
None of us denies that animal welfare is now an issue that touches public consciousness and that by including advancement of animal welfare within the list of purposes we reflect much better what the public understands as to what constitutes a charitable activity today. But what we wish to hear from the Minister is a statement that the inclusion of animal welfare as a charitable purpose is limited to the reasonably narrow descriptions listed above on the Charity Commission's website, and that anti-vivisectionist groups or animal rights groups that adopt violent means will not be able to attain charitable status. I beg to move.
Lord Phillips of Sudbury: I would only add to the noble Lord's comments that I had in my office two or three years ago members of an American group which was purportedly for animal welfare, whose real purposes when I asked them about the ins and outs turned out to be those of the sort of group to which the noble Lord referred. The only reassurance that I can give him—and the Minister's reassurance will be far more important—is that under the charity law as I perceive it, one had to say that they had no right to charitable status, and that was that.
Lord Bassam of Brighton: I am very grateful to the noble Lord, Lord Hodgson of Astley Abbotts, for raising this issue by virtue of this amendment. I can quite understand his concerns, particularly having heard the harrowing circumstances of the case that he understandably brought before the Committee.
Perhaps it is worth saying that the advancement of animal welfare was not included in the original list of charitable purposes proposed by the Strategy Unit. It was added by the Government largely in response to comments received during the consultation on the Strategy Unit's report. The promotion of animal welfare, as I believe the noble Lord, Lord Hodgson, would readily acknowledge, is well established as a charitable purpose. My understanding is that there are roughly between 1,500 and 2,000 animal welfare charities on the register. As we said in our reply to the Strategy Unit paper, animal welfare is a major area of charitable endeavour which has, and in our view should continue to have, strong public recognition. I think everyone would agree that animal welfare charities such as the RSPCA make a substantial contribution to our national life.

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The noble Lord, Lord Hodgson, was right to draw the Committee's attention to the way in which the matter has been defined in the past. In general, the advancement of animal welfare is taken to include any purpose directed towards the prevention or suppression of cruelty to animals or the prevention or relief of suffering by animals. The noble Lord quoted a list of five points, and it is not worth my repeating them, but that is our understanding of the advancement of animal welfare so far as concerns charitable purposes.
We also take the view that there is no necessary inconsistency between accepting the advancement of animal welfare as a charitable function and accepting medical research charities, which may use animal experimentation in their research, particularly on the basis of advancing health. As I explained in my reply to the point about conflict resolution, it is possible for two seemingly opposing purposes to be charitable provided that they are both capable of demonstrating public benefit. It is the public benefit test that is important.
That is well illustrated by case law in the field, which, as I understand it, goes back to 1948 and a case, which is well known in charitable circles, concerning the National Anti-Vivisection Society. In that case, the court considered whether a society that had as its object the total suppression of vivisection was established for charitable purposes. The judges decided that it was not. One of their main reasons, which we believe still holds good today, was that any public benefit that might result from the abolition of all experimentation on animals would be far outweighed by the detriment to medical science and research and, consequently, to public health. An organisation that provides some public benefit, but at the cost of greater public detriment, cannot be a charity. That was an important case that determined the issue, and it still has a bearing on the debate about the promotion of animal welfare today.
Therefore, we accept the point made by the noble Lord, Lord Hodgson, about the importance of having a definition that is reasonably narrowly confined, so that it cannot be abused— the noble Lord, Lord Phillips, gave an example of that—by those who seek to suppress forms of animal experimentation that have a wider benefit.
Lord Hodgson of Astley Abbotts: Perhaps I may ask the Minister one question. Let us assume that an animal welfare group obtains charitable status in a perfectly proper way and, later, after having obtained charitable status, the leadership of the group decides to adopt more direct action in promoting its cause that might include acts which break the law. How does the continuing public benefit test, as applied by the Charity Commission, interact with those charities, albeit registered quite properly, that have decided to move towards the breaking of the law? Is there any direct connection between the one and the other?
Lord Bassam of Brighton: I would expect the Charity Commissioners' regulators to intervene. From the way that the noble Lord set out his example, it would be clear that that organisation had changed its method of
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operation and that it would fall foul of its original stated purpose. There would then obviously be a question about whether it could continue with its charitable status. It is not for me to make that judgment, but it is a judgment which the Charity Commissioners may be drawn towards.
Lord Phillips of Sudbury: Perhaps I may help. First, charities are not made to suffer for the sins of their trustees. In the case mentioned by the noble Lord, the trustees would, first, be acting unlawfully and, secondly, they would be acting outside the objectives of the charity. Thirdly, therefore, were such a case to be brought to the attention of the Charity Commission. it would be under a duty to intervene and to tell the trustees to desist, otherwise, under the commission's powers, they would be removed.
6.45 p.m.
Lord Wedderburn of Charlton: This is a serious amendment. I would be against it in the form in which it appears. With respect, the noble Lord is launching a nuclear weapon to crack a popular nut. All that he mentions as real objections are direct action and things like that. He is right of course in saying that that would concern the test of "public benefit". He and I might have opposite views on "public benefit"—the Charity Commissioners will have to decide that or, in the end, the courts. It is not a basis on which you should move to delete,
"the advancement of animal welfare"
if, on other grounds, that should be in the list. That is an example of the problem of having an extended list.
The noble Lord, Lord Hodgson of Astley Abbotts, said nothing to justify the paragraph being totally struck out. Let us take as an example a little group that keeps puppies and advances their welfare. Noble Lords may be amused, but would that not be a society that would be struck out as soon as it appeared on the agenda? It is another example of an organisation being judged by activities that some of their adherents would claim fall into the category of "animal welfare", but to which the noble Lord and I might object because they are not "for the public benefit" in their transgressing the normal rules of social conduct. It is an example of the media giving a lot of attention to groups which. as the noble Lord, Lord Phillips, said, act unlawfully or on the margins of the law, but also have adherents who genuinely are in organisations for the advancement of animal welfare.
I would like to make a point that we did not cover in previous debates; namely, that here, and in many previous paragraphs, "advancement" is a complex subject as the case law stands. I am not trying to go back to old law once we have passed the Bill, but the "advancement" of various things is the basis of the distinction made by Lord Denning between a person saying his prayers privately in his bedroom and a community praying and advancing its beliefs through society at large. Lord Denning said that the first was not for the "advancement" of religion.

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As the noble Lord probably knows, exactly the same problem has beset enclosed orders of nuns. There was an absolutely marginal case a few years ago. A group of Carmelite nuns wanted to have their organisation recognised, first, as charitable, which we are discussing, and secondly, as being for the public benefit. The problem of "advancement" of religion arose if they were to stay silent and did nothing that touched the public at large, as certain of them did. It was a problem not merely of whether it was "for the public benefit", as the noble Lord has acknowledged, but also in respect of the first test: was it a charitable purpose? The noble Lord must accept that he goes too far with the amendment, whatever its other merits.
Lord Hodgson of Astley Abbotts: I hope that I made it clear to the Committee in the first place that my
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purpose was to identify the issue of extremism in relation to animal welfare and to ask the Minister to explain how that was going to be dealt with. The Minister did that and his comments were amplified helpfully by the noble Lord, Lord Phillips. I am perfectly satisfied with the Minister's response, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: Given the hour, it may be convenient for the Committee to adjourn until Wednesday 9 February at 3.30 p.m.
The Deputy Chairman of Committees (Lord Lyell): The Committee stands adjourned until Wednesday 9 February at 3.30 p.m. Committee adjourned at eleven minutes before seven o'clock.

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