Sitting of 8 March 2005

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

Childcare
Baroness Royall of Blaisdonasked Her Majesty's Government:
What action they are taking to ensure adequate provision of training in childcare to enable the expansion of Sure Start and other childcare initiatives.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Lord Filkin): My Lords, we are providing £129 million to local authorities in England over the two years 2004–06 for developing the early years and childcare workforce. We are also working closely with the Learning and Skills Council and nationally to raise the profile of the childcare sector and help to ensure that training provision meets demand. All local LSCs and local authorities now have shared targets for training childcare workers.
Baroness Royall of Blaisdon: My Lords, I am grateful to my noble friend for that welcome information on International Women's Day. Does he agree that the expansion of high quality childcare places is not only essential for the health and well-being of our children but is also economically important in that it provides additional jobs for childcare workers—the majority of whom are women—and enables many mothers to work with peace of mind? Will he assure me that, in addition to providing the good training about which he spoke earlier, the Government will ensure that the expansion of Sure Start and other childcare initiatives will be underpinned by sound quality standards?
Lord Filkin: My Lords, I can categorically assure my noble friend on the last part of her question. We plan to expand from the 500 Sure Start centres to some 2,500 by 2008 and embedded in those will be the principles that have proved so successful in the Sure Start programme to date. Of course, as she said, Sure Start has demonstrated the ability to give women more choice over their own lives in ways that they think appropriate and to help the development of children so that they are able to live more fulfilled lives in the future.
Baroness Walmsley: My Lords, in view of the specialised nature of the work with young children, will the Government establish a new qualification of qualified early years teacher as we on these Benches propose? Secondly, will he assure the House that all
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the new workers for the expansion of Sure Start will have adequate training in how to spot the early signs of child abuse?
Lord Filkin: My Lords, the noble Baroness, Lady Walmsley, is absolutely right. Part of the common core training for all those who work with children is the identification of harm and risk, as it should be. The answer to her earlier question is that we are seeking to ensure that all people who work with children have that common core as part of their developmental training, so increasingly there is a convergence of training across sectors. That allows people who go in as childcare workers to progress to more senior positions and to other parts of the childcare workforce. That is what they want and what we need to ensure that we do not lose talented people from the children's workforce.
Lord Wright of Richmond: My Lords, having succeeded the late Lady Brigstocke last year as chairman of Home-Start International, may I thank the Minister for the help that the charity and our voluntary schemes around the world, particularly in Africa, are receiving both from the Foreign and Commonwealth Office and from the Department for International Development? Will the Minister please convey our thanks to those departments?
Lord Filkin: My Lords, I very much appreciate those words. When I met Home-Start recently I was, like the noble Lord, very impressed indeed with the work that it has done. I shall be delighted to pass on his compliments in the courteous way that he has expressed them.
Baroness Gardner of Parkes: My Lords, the Sure Start guidance states:
"By March 2004, 400,000 children will have access to 524 Sure Start programmes".
Will the Minister confirm that that has actually happened and, if it has not, did training difficulties cause part of the problem?
Lord Filkin: My Lords, I am virtually certain that it has happened because we know that we already have more than 500 Sure Start schemes. There has been an amazing growth of the Sure Start workforce and of the childcare workforce over recent years. Local authorities have responded well to the growing childcare workforce and to growing early years education, which is equally important. Just to give that focus, we have created 1.6 million new childcare places over the past seven years and, of course, a workforce that goes behind that to make those places a reality.
The Lord Bishop of Portsmouth: My Lords, the Government have recently emphasised the importance of local consultation with parents. Will the Minister give an assurance about the long-term funding strategy? If that is to develop, there must be some kind of long-term plan.
Lord Filkin: My Lords, the long-term funding for Sure Start could not be stronger. What started off as a 10-year pilot has now been accepted by the Government to be a permanent part of the infrastructure for children. That is instanced by the figure that I gave earlier that we will expand to 2,500 Sure Start centres embedded in children's centres by 2008 and 3,500 by 2010. There are realistic implementation plans to deliver that and make it a reality. Of course, the involvement of parents, which has been such a critical part of the success of Sure Start, must be embedded into the development of Sure Start into children's centres.
Lord Northbourne: My Lords, I appreciate the final sentence of the Minister's reply to the right reverend Prelate about the involvement of parents, but does he have any statistics on the number of adults working in childcare now who lack the necessary qualifications and therefore will have to be trained? How many more will be needed to fulfil the Government's programme for the expansion of Sure Start into children's centres?
Lord Filkin: My Lords, as ever the noble Lord, Lord Northbourne, has challenged me on the specifics of the detail. I can say for certain that when we publish the children's workforce strategy in the near future, we expect to set out very clearly how the whole workforce needs to develop. As he knows, we set out for the first time in 2001 clear national standards for the training and development of childcare workers where there had previously not been any standards. However, he is right to raise a wider issue about the extent to which the children's workforce will need, over time, to develop its richness and skills to meet the pedagogic goals set by the Every Child Matters agenda.
The Earl of Listowel: My Lords, I welcome the Minister's aspirations and what has been achieved through Sure Start. Does he recognise that much of current nursery provision is of a poor quality? Does he have plans to assist the workforce—mostly women—to ensure that they can organise themselves so that their pay, training and ongoing support better reflect the critical nature of their work?
Lord Filkin: My Lords, I am not anything like as depressed as the noble Earl, Lord Listowel. I am not saying that the quality of all nursery education is perfect, but there are many good nursery facilities and many excellent early years facilities. I agree with him that raising quality is a continual goal. We are clear that quality childcare and early years education make the difference. It is not just the supply; it has to be good quality to raise children's educational and social development rather than just to "mind them". Therefore that is firmly on our agenda.

Freedom of Information Act 2000: Implementation
2.44 p.m.
Lord Fowlerasked Her Majesty's Government:
Whether they are satisfied with the operation of the provisions of the Freedom of Information Act 2000 relating to the disclosure of documents.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, the Freedom of Information Act is working well. More and more information is being released and there is a move to greater openness across the public sector.
Lord Fowler: My Lords, I am grateful for that reply. Papers have been released containing the views of officials on our withdrawal from the ERM. Will she say when the views of officials will be available on the decision to invade Iraq? Will she also confirm that ministerial papers relating to Iraq will still be covered by the 30-year rule?
Baroness Ashton of Upholland: My Lords, the noble Lord will know that the 30-year rule does not exist in its previous form. We have made sure that in the work of the national archives and each department information which falls within the Act's framework and beyond its exemptions is made available. The noble Lord will recognise that I cannot comment on individual requests before departments at present; not least because for the 4,000 requests that we know of it would be a huge amount of information to obtain.
However, the Act is working well and information is being released as appropriate within the rules. The information retained by departments or the archives is under the auspices of the Act and not the 30-year rule.
Lord Goodhart: My Lords, does the Minister agree that 23 categories of exemption are too many? Do the Government accept that when we have had a few more months' experience of the Freedom of Information Act, it will be necessary to set up an independent review to reconsider whether further access to information will be necessary?
Baroness Ashton of Upholland: My Lords, the noble Lord will know better than I, because he was involved in passing the Act, that the exemptions were carefully considered; not least in your Lordships' House and another place and consequently. We are clear and open about the reasons for those exemptions. It is true that as the Act comes into operation properly and we see what happens, we will look at how effectively it is working, but there are no plans at this time to review formally the exemptions.
Lord Peyton of Yeovil: My Lords, I do not suppose that the noble Baroness will agree, but her original Answer to my noble friend seemed optimistic and opaque in the extreme.
Baroness Ashton of Upholland: My Lords, I am an eternal optimist and I have no difficulty in being optimistic about something as fundamental as the Freedom of Information Act, which is an enormous tribute to the Government. I hope that it will stand the country well. As people begin to understand better how government works we will create greater confidence in the working of government both locally and nationally and the 100,000 organisations covered by the Act.
In terms of opaqueness, I hope that I answered the Question in the right way. I believe that the Act is working well. It is early days—I would be the first to say that—but in terms of looking across government both locally and nationally, I believe that it is working well.
Lord Clark of Windermere: My Lords, will the Minister confirm that every government department has had an in-depth training system for freedom of information? Will she ensure that that training continues, because the Act's good start is based on the release of information? Will she continue to emphasise to the people implementing the Act that they should err on the side of openness?
Baroness Ashton of Upholland: My Lords, I could not agree more with my noble friend. I pay tribute to his work in the area. It is important to ensure that people understand in detail what is required, not least because, as noble Lords would expect—particularly of the other organisations outside central government—this is also about local people obtaining information locally. It is important that requests do not come with a freedom of information badge on them; they simply come as requests for information.
However, the spirit of the Act as well as the way in which we have placed it on the statute book ensure that we look to give information. It is right and proper: it is the right to know replacing the need to know.
Lord Wright of Richmond: My Lords, many of the papers released from the Treasury, to which the noble Lord, Lord Fowler, referred, and which have been reproduced in the press, have shown a number of excisions in black ink. Will the Minister tell us whose authority has to be given for those excisions to be made; and whether the excisions remain in perpetuity when the papers are returned to the Public Record Office?
Baroness Ashton of Upholland: My Lords, there is a process within government—I am happy to write to the noble Lord to lay that out formally and to put a copy of the letter in the Library—which ensures that within each department the request is looked at to see whether it is covered by exemption or whether it should go forward. That covers papers of previous administrations. Noble Lords will know the process that is in place and the dialogue that continues between the different parties on that process. We are very clear about the responsibility to ensure that Ministers of
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current administrations do not veto, vet or look at papers of previous administrations. That is the custom and practice. As I say, a process is in place.
Lord Tomlinson: My Lords, does my noble friend agree that, notwithstanding the number of black excisions from the records of the management of our exit from the exchange rate mechanism, there was sufficient information there for every citizen to be clearly informed about the thundering mess that was made of economic management at that time?
Baroness Ashton of Upholland: My Lords, what can I say? We must recognise that the opportunity for our citizens to understand how government works, for good or ill, is very important. We should celebrate our Freedom of Information Act and the opportunity it gives for all of us—for we are all citizens—to understand better how government works arid to recognise—I say this to every current and every previous Minister—that it is tough as well.
Lord Lester of Herne Hill: My Lords—
Baroness Trumpington: My Lords, as a former—
Lord Lester of Herne Hill: My Lords, I wonder whether the Minister is aware—
Noble Lords: Oh!
Lord Lester of Herne Hill: My Lords, I think that it is our turn.
The Lord President of the Council (Baroness Amos): My Lords, it is the turn of the Liberal Democrats.
Lord Lester of Herne Hill: My Lords, I am grateful. I hesitate to puncture any optimism or joyfulness, but is the Minister aware that when I asked the previous Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, and the former Home Secretary, Jack Straw, whether I could see the concluded studies for the Human Rights Act—I explained that I did not want to see anything to do with ministerial responsibility—I was given two answers? One was from the noble and learned Lord, Lord Irvine of Lairg, who has a developed sense of humour, who suggested that I waited until I was 94 under the 30-year rule. He said he was sure that my health would ensure that I would see the document. Secondly, when I finally saw, after the ombudsman intervened, 32 pieces of paper, they were crudely excised and one of the excisions was where the noble Lord, Lord Warner, had given advice to the Labour Party. I was told that I could not be informed that it was the noble Lord, Lord Warner, as he was not a government official. Is there now a spirit of glasnost and perestroika breaking out which will ensure that that will no longer happen?
Baroness Ashton of Upholland: My Lords, the noble Lord found out that the relevant person was my noble friend Lord Warner, so clearly there is a spirit of

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openness within this area. I know that the noble Lord does not expect me to comment on the individual circumstances as, of course, I do not know about those. However, it is very important that, as the noble Lord rightly says, we approach this matter in a spirit of openness and that it becomes normal practice for all of us to view our work as being much more in the public domain. That is the critical part of this matter. I think the noble Lord will see that this process will settle down into a very well established pattern not just for the benefit of noble Lords but, as I say, in everyday situations where people of this country want to find out about their local hospitals, schools, councils and so on. A better dialogue will begin to develop in both directions with government central and local.

Domestic Violence
2.53 p.m.
Baroness Henigasked Her Majesty's Government:
What steps they are taking to identify and protect victims of domestic violence and to bring perpetrators to justice.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, a national plan is being developed that identifies victims earlier through routine inquiry in primary health and social care settings and provides support through a variety of agencies. The Domestic Violence, Crime and Victims Act includes measures such as making common assault an arrestable offence, criminalising the breach of a non-molestation order and extending the availability of restraining orders to all violent offences. This will enhance our ability to protect victims and should lead to increased arrests, prosecutions and convictions.
Baroness Henig: My Lords, I thank my noble friend for that positive response. However, in view of the fact that incidents of domestic violence account for at least 16 per cent of all violent crime—and that is almost certainly an under-recording as we know that women victims will suffer up to 35 incidents of domestic violence before going to the police—what is the cost of this crime to society? What measures, taken in conjunction with the police and local community safety partnerships, such as, for example, the provision of dedicated women's centres, does the Minister consider would be most successful in encouraging women victims not just to come forward at an earlier stage but also to give them help, support and, most importantly, protection in what are often most difficult court proceedings?
Baroness Scotland of Asthal: My Lords, as regards my noble friend's first point on costs, Professor Walby undertook research on behalf of the Department of Trade and Industry which indicated that the cost of domestic violence at the moment is about £23 billion a year. Some £3 billion is spent on public services; £1
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billion on the criminal justice system; £1.2 billion on the NHS; a quarter of a billion pounds on social services; £160 million on housing; £300 million on civil legal services and £2.7 billion is accounted for in costs to employers through loss of working time. That is a huge cost to this country. It is a vile and wicked situation. Through the inter-ministerial group that I chair, the Government have a cross-departmental response to these issues which includes health, education and the housing responsibilities of the Office of the Deputy Prime Minister. All those issues are tackled in a co-ordinated way.
Lord Laming: My Lords, does the Minister agree that the victims of domestic violence include the children of the household? Will she give an assurance that when the police are called to households in these circumstances they will report on the children's welfare to social services?
Baroness Scotland of Asthal: My Lords, I emphasise what has just been said in relation to domestic violence. Children are often the silent witnesses of what happens in the home and they unfortunately get to know far more of what is going on than adults believe. We have emphasised in the guidance and in the work that we are doing with the Association of Chief Police Officers how important their welfare is. I am very proud to say that the new provisions which we have introduced enable better safety for our children to be more easily delivered.
Viscount Bridgeman: My Lords, according to the Government's paper, Living without fear, a woman may approach up to 10 different agencies before she gets the help that she needs. What discussions has the Minister had with organisations such as Refuge, Women's Aid and the NSPCC to promote close working relationships with government on this issue?
Baroness Scotland of Asthal: My Lords, we have worked very closely indeed with Women's Aid and Refuge. Noble Lords will know that we launched a national helpline for domestic violence. That was done with those agencies. A very strong contribution was made by the Office of the Deputy Prime Minister, by my noble friends Lord Filkin and Lady Ashton and in particular by my noble friend Lord Rooker, who is the Minister responsible at the ODPM and who has worked very hard indeed on our ministerial committee to try to ensure that these provisions are in place.
Baroness Howe of Idlicote: My Lords, in view of the clearly embedded nature of this heinous crime and, indeed, the cost to the whole community as well as to individuals which the Minister has already outlined, will she expand on the role that the education services are expected to play?
Baroness Scotland of Asthal: My Lords, I am very pleased to do that. This very day we launched with the National Union of Teachers guidance to teachers on how they should respond to domestic violence,

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together with the Home Office-sponsored anti-bullying and domestic violence toolkits. The real issue for many teachers who have grappled with this issue for a long time is, when they identify a child who is so suffering, what they do on a practical level to help to alleviate that situation. The guidance that we issued today, together with the Home Office joint anti-bullying and domestic violence toolkits, gives teachers the tools that they need to meet this challenge much more effectively.
Baroness Prosser: My Lords, is the Minister aware of the report which was published last week entitled, What a Waste, which calls on government to take a more strategic approach to combating violence against women? I declare an interest in this report, as it was published in part by the Women's National Commission, which I chair. How may such strategic approaches enable government to provide a more coordinated response to the varied impact of violence on women's lives, particularly bearing in mind the impact on their general health?
Baroness Scotland of Asthal: My Lords, I assure my noble friend that we have implemented a strategic approach to the way in which we work together. I hope to be able to publish the results of that work at the end of the month. I hope that my noble friend will be very pleased by it. I shall put a copy of the report in the Libraries of this House and the other place.

Banks: Profits
3.1 p.m.
Lord Dykesasked Her Majesty's Government:
What is their response to recent reported profits in the United Kingdom banking sector in terms of the overall interest of customers and the wider public.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, the banking sector plays a key role in the United Kingdom's economy and is important to economic growth and to our prosperity. The Government's objective is to ensure that the financial services market works well for consumers. Several measures have been introduced over the past few years that improve competition in the banking industry. These have given consumers greater opportunities to take advantage of the wide choice of financial products available to them.
Lord Dykes: My Lords, I thank the Minister for that Answer. With interest rates to lenders ranging from the nearly invisible to merely miniscule and rates to borrowers going from 9 per cent to 39 per cent, we see the fate of hapless, ordinary, private customers of the British retail and clearing banks. Will the Minister and the Government overcome their natural laissez-faire
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feelings and initiate discussions with the extremely well paid chairmen and chief executives of such banks to get a better deal for ordinary customers?
Lord McIntosh of Haringey: My Lords, the measure of the difference between lending interest rates and borrowing interest rates is well known; it is called the spread. It has been decreasing in recent years. I can, with pleasure, set out the figures in a letter to the noble Lord, Lord Dykes. It has been decreasing for all banks. The problem is that the spread is not the same for all banks and my bank is particularly bad at it. But that is my problem; perhaps I should change banks.
Baroness Seccombe: My Lords, will the Minister tell the House whether there is any level of profit that the Government consider excessive in any business sector? If so, what is it and why?
Lord McIntosh of Haringey: My Lords, the Government do not comment on the financial results of individual companies.
Lord Harrison: My Lords, will my noble friend comment on an important group of customers of the banks; namely, small businesses? Is the Chancellor of the Exchequer being successful in trying to encourage banks to be more helpful towards small businesses, who often experience great difficulties in maintaining their prosperity because the banks are so unhelpful?
Lord McIntosh of Haringey: My Lords, some time ago—some would say too long ago—Don Cruickshank made recommendations to the Government about the banks' treatment of small businesses. The Government referred his report to the Competition Commission, which reported in June 2002. All, I think, of the recommendations of the Competition Commission have been implemented. In particular, I draw attention to the agreement made by the Office of Fair Trading with the banks that they should offer a current account at base minus 2.5 per cent, or an account free of transmission charges, or a choice between the two. There are also other options.
Baroness O'Cathain: My Lords, can the Minister inform the House whether any study is being done by the Treasury on the amount of the profits of the clearing banks that is directly related to delays in payments of cheques? The delay of four or five working days from when money is deposited is a disgrace in view of the huge developments in transmission technology.
Lord McIntosh of Haringey: My Lords, the Chancellor announced in the Pre-Budget Report 2003 that he would give an enhanced role to the Office of Fair Trading to tackle this problem. I acknowledge that it is a problem. The Office of Fair Trading has set up a payment system task force that will report very shortly. I hope that the noble Baroness, Lady O'Cathain, will be pleased with the outcome.
Lord Pearson of Rannoch: My Lords, does the Minister agree that it is largely the profits of the banks—and commerce and industry generally—and those who work for them which pay the taxes that support the public sector in this country, which has burgeoned under the present Government?
Lord McIntosh of Haringey: My Lords, of course, banks pay taxes on their activities in this country, but I must point out that our major banks earn a great deal of their income overseas. For example, less than 30 per cent of HBOS's profits arise in Europe—I should not have said that word to the noble Lord, Lord Pearson. I am sorry; I hope that he will pardon the expression.
Lord Davies of Coity: My Lords, while I recognise the profits made by banks, can my noble friend advise the House, and particularly me, of the extent to which the banks contribute to the well-being of the British economy?
Lord McIntosh of Haringey: My Lords, I addressed that in the first part of my original Answer. Whatever, aesthetically, we think about the banks, they are an essential part of any economy. They contribute to our economic growth and prosperity.

Income Tax (Trading and Other Income) Bill
Brought from the Commons endorsed with the certificate of the Speaker that the Bill is a money Bill, and read a first time.

Prevention of Terrorism Bill
3.6 p.m.
Report received.
The Chairman of Committees (Lord Brabazon of Tara): My Lords, before I call Amendment No. 1, I should point out that if Amendment No. 1 is agreed to I cannot call Amendment No. 2 because of pre-emption.
Clause 1 [Power to make control orders]:
Lord Thomas of Gresfordmoved Amendment No. 1:
Clause 1, page 1, line 7, leave out from beginning to first "by" in line 11.
The noble Lord said: My Lords, Amendments Nos. 1, 9 and 10 give effect to the changes that we made yesterday. They were debated on the first day of Committee, last Thursday, and I do not propose to go over the same ground again, since it is so fresh in all our memories.
Amendment No. 1 simply underlines that the making of a control order of whatever type is to be done by the court, not by the Secretary of State. Government Amendments Nos. 2, 3 and 4 do the same thing, but we believe that Amendment No. 1 is a
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simpler way of expressing it. I look forward to hearing from the Minister why it is necessary to use a rather more complicated form.
I move swiftly on to Amendment No. 9. It might be helpful if I do not go into its merits again, as we have debated them at length, but simply set out briefly the machinery contained in Amendments Nos. 9 and 10. The steps for obtaining an order under Amendment No. 9 are that the Secretary of State applies to the court and there is an immediate preliminary hearing. The court may hold a hearing ex parte—that is to say, without notice to the suspect—and will determine, first, whether to make the order and, secondly, whether to give directions for a full hearing to determine whether to confirm it. The purpose of the preliminary hearing is to look at the material that may be provided on an ex parte basis and to decide whether it is justified.
In making a control order at the preliminary hearing, the court will first have in mind whether the Director of Public Prosecutions has certified that there is no reasonable prospect of prosecution—that is because all sides are agreed that the preferable way of dealing with terrorist suspects is to prosecute.
Secondly, if that certificate is given and there is no reasonable prospect of prosecution, is the material, which, if not disproved, is capable of being relied on, that the individual is involved in terrorism-related activity? Thirdly, are there reasonable grounds for believing the imposition of obligations is necessary to protect the public? Fourthly, if the obligations appear at the preliminary hearing to infringe Article 5 of the European Convention, it is necessary to ensure that a designation order derogating from Article 5 is in place—that is, has been passed by both Houses of Parliament—and that that derogation order arises out of a public emergency. That is the first step that the Secretary of State takes to apply for an order when the court looks at it.
There is an interesting amendment later, arising from the speech of the noble Lord, Lord Carlile of Berriew, concerning whether the court in the preliminary hearing should be the district judge in England and Wales and his equivalents in Scotland and Northern Ireland. I am sure we will have an interesting debate on that in due course, because that is new material.
The next step in making the order is the full hearing in the High Court, which either confirms the order, with or without modification, or revokes it. The full hearing will be a hearing inter partes, at which the person subject to the control order is properly represented. The court has to be satisfied on the balance of probabilities that it is necessary for public safety for the control order made at the preliminary hearing to be confirmed.
Lord Clinton-Davis: My Lords, as I understand it, although I have not had the opportunity to consider it all, the amendment is explanatory. Am I right? If I am, it is incumbent on the Government to come forward at

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a later stage, after the Bill has been considered, with an explanatory note. However, I do not think the Bill has to be amended.
Lord Thomas of Gresford: My Lords, there is no new material in the amendment. It follows the machinery the Government were proposing when they were simply talking about a derogating order. We are saying that, following the decisions we took yesterday, the preliminary hearing followed by the full hearing in court are to apply to control orders generally.
Amendment No. 10 deals with the duration and renewal of the order. A non-derogating order has a 12-month limit, and is renewable for a further 12 months by the court on application. A derogating order lasts for six months. Again, it is renewable by the court if the court deems it necessary, and if the overarching derogation order made by Parliament is still in place.
I have tried to give your Lordships a view of the framework of these amendments to give them some context. Amendment No. 11 is in this group. It is simply a hiccup in the text, and I say nothing about it. I beg to move.
3.15 p.m.
Lord Kingsland: My Lords, I have nothing further to add to what the noble Lord, Lord Thomas of Gresford, said, about the amendments in this group, except Amendment No. 12, with which I can deal telegraphically, as the substance of the matter was decided by your Lordships yesterday.
Your Lordships will see that, at line 44 of page 3 of the Bill, the following expression has been inserted in paragraph (c) of Clause 2(1):
"The court may make a control order against an individual if it … has been informed by the Director of Public Prosecutions that there is no reasonable prospect of a successful prosecution of the individual for the terrorism-related activity".
Your Lordships will recall that we regarded the insertion of this subsection as crucial to the protection of the rights of the citizen. We must have exhausted all our efforts as to whether a proper prosecution can be brought in a criminal court before turning, as a matter of last resort, to a control order.
In the course of the speeches that were made, I, and a number of other Members of this House, took the view that this obligation on the DPP should continue during the period after the control order is made. That is what Amendment No. 12 seeks to achieve. If it is accepted by the Government, or put on the face of the Bill by some other means, it will be located at line 10 of page 9—the first line after the Clause 7 heading—
"Criminal investigations after making of control order".
The crucial import of the amendment is simply to say that, once the control order is made, the DPP will continue to have an obligation to see whether a successful prosecution can be brought. If he so decides,
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and so informs the court, the control order should then be terminated and the normal prosecutorial scheme should begin. That is the purpose of the amendment.
Lord Clinton-Davis: I have no objection to the amendments moved by the noble Lord, Lord Thomas, but they ought not to be included in the Bill. I have not had an opportunity to consider them carefully.
Lord Goodhart: Could I explain to the noble Lord, Lord Clinton-Davis, that this material is already in the Bill, and is simply being rearranged? That is the point of Amendments Nos. 9 and 10—they simply shift some of the material that is currently in Clause 2 into Clause 3, and some from Clause 3 into Clause 2. That will create a logical structure in which Clause 2 deals with the making of control orders and Clause 3 ends up dealing with their duration. Every word of the material, with the exception of one minor consequential amendment, is already in the Bill.
Lord Clinton-Davis: I am much obliged to the noble Lord, but I have not had the opportunity to consider the material. I just picked it up a few minutes ago. I wonder whether he would be able to take it away and come hack to it on Third Reading.
Lord Renton: I wonder if the noble Lord, Lord Clinton-Davis, would be reassured if I draw his attention to paragraph (b) of Clause 2(1), which is plain, and goes to the crux of the matter. It says that a court may make a control order against an individual,
"if it … considers that it is necessary, for purposes connected with protecting members of the public from a risk from a risk of terrorism, to make a control order imposing obligations on the individual".
That surely goes to the crux of the matter. It is what all of us are trying to achieve. Although it is altogether a very long clause, if he considers the various consequential subsections that go with it, he will realise that they are all in support of that main proposition.
The Duke of Montrose: My Lords, my noble friend, Lord Kingsland, in speaking to Amendment No. 12 has brought us into Clause 2 and the role of the Director of Public Prosecutions in making non-derogation control orders.
I raise a point which has been brought to my attention by the Law Society of Scotland. Clause 2(1) sets out the criteria which the court must consider when making a control order. Clause 2(1)(c) refers to information being received by the Director of Public Prosecutions to the effect that,
"there is no reasonable prospect of a successful prosecution of the individual for the terrorism-related activity".
There is currently no reference made to similar consultation in Scotland with the Lord Advocate. Does the Government envisage similar consultation in Scotland? This may be an oversight as the Bill is progressing very quickly, but I thought that it may he useful to highlight it.
Baroness Scotland of Asthal: My Lords, we have two groups of amendments to deal with. Perhaps I may explain what the government amendments seek to do. As a result of the Committee's decision to introduce provisions for non-derogating orders which are similar to those for derogating orders, the Bill had certain technical defects. The government amendments seek to rectify those technical defects so that the Bill reads more easily.
However, the government amendments do not address or seek to address the provisions in the amendments of the noble Lord, Lord Goodhart, and spoken to today by the Liberal Democrat Benches. They appeared at first blush, as has been said, to replicate the original government provisions, which were constrained and confined to the derogating orders. We do not accept that it is appropriate to conflate the two procedures. On the role of the DPP and the proper role of the judges, we maintain that the balance is not right. But of course we accept the decision made by your Lordships. Therefore, we can understand, although we do not agree with the way the provision is proposed.
Basically, the House has a choice. If one simply wishes to tidy the Bill so that it makes better sense and is more consistent, we should constrain ourselves to the government amendments. I do not suggest for a moment that we would want to test the opinion of the House, I am simply explaining the issue as we see it so that the House understands. If Members opposite would prefer to import that now so that when the Bill returns to the Commons it is in a form which they think better represents their view, the Government would not agree but they would not resist.
We do, however, think that it makes better sense to do the tidying which is necessary to make the construct that was passed by virtue of yesterday's vote plain on the face of the Bill, so that when the other place comes to consider the matter it can express a view. I very much take into account what was said in yesterday's debate—that the other place has not had an opportunity to express its view on the amendments considered by your Lordships and which were laid by the Government; neither will it yet have had an opportunity to consider this matter. So we would prefer it if the amendments laid in my name on behalf of the Government were allowed to pass, so that the other place has the perfected version of that construct, before we add procedures to it, which may or may not prove necessary in the other place.
Bearing in mind the nature and extent of the debate, we think that that would be the better course. It is a matter for your Lordships whether you do that.
The Lord Bishop of Oxford: My Lords—
Baroness Scotland of Asthal: My Lords, I know that the right reverend Prelate wants to get to his feet. Perhaps I may answer the comments of the noble Duke, the Duke of Montrose, about the Lord Advocate. Yesterday, the noble Duke will know, there was a debate on whether the appropriate person or entity identified should be the Lord Advocate or—as
632
our Scottish colleagues suggested in relation to the government amendments—whether he should be the Procurator Fiscal.
The Government do not accept the premise that it is appropriate or proper for the DPP to be so exposed, in the way the current provisions provide for the DPP's role. On that basis, we will not be suggesting that there should be a similarly unacceptable position for the Lord Advocate. So the Government will not bring forward those amendments. But I absolutely understand what the noble Duke says. On the premise that it was appropriate and proper so to conflate the roles of the DPP in this regard there would be an argument. I do not think we have got there yet. I shall give way to the right relevant Prelate.
The Lord Bishop of Oxford: My Lords, what is meant by the words in government Amendment No. 2, "court under section 2"? Does the Minister envisage the provision being along the same lines as that of the noble Lord, Lord Goodhart, and other noble Lords or do you have something different in mind?
Baroness Scotland of Asthal: My Lords, that depends on the final construct of the nature of the judicial involvement. If the other place were to accept that there should be no difference between the derogating orders and the non-derogating orders, but that there should be a unity of procedure, then one can see the force of replicating the rules.
If, however, the other place reached a different view—that the construct advocated in this House by the Government and placed in the amendments which were debated in this House is the better course—then a different construct would prevail. It is of course open to a third and different construct, which is not currently considered to be before the other place. That is why we think it would be more prudent to restrict the amendments to those needed on the face of the Bill, so that when it returns to the other place—if I can speak colloquially—it makes sense, but without presuming that the consideration will necessarily go in the way that we have currently indicated.
As I have indicated, we are certainly not going to divide the House. I can only urge noble Lords to accept the government amendments, which are sound and make the necessary technical adjustments that make the vote undertaken by your Lordships make sense and be consistent.
Lord Lloyd of Berwick: My Lords—
Lord Thomas of Gresford: My Lords, on Report it is only the proposer who has a right of reply. If the noble and learned Lord wishes to interrupt me, I shall obviously give way.
Lord Lloyd of Berwick: My Lords, I have one simple question to ask. If it is in order I shall ask it, but not otherwise. My question is on the new Clause 2, which I entirely support. I supported it yesterday and still support it. At what stage will it be open to the suspect—I shall call him the suspect—to challenge the

633
validity of the derogation order, whether on the grounds that there is not a state of emergency threatening the life of the nation or on the grounds that these measures are not proportional to that emergency? There must be some point at which that challenge can be made. Is it at the preliminary stage or at the full hearing?
Lord Thomas of Gresford: My Lords, we believe that the clause as drafted would not leave it open to the court, at the preliminary stage, to make a final determination on the validity of a derogation order passed through Parliament. That would be a matter for the full hearing; but, as happened in the case of A—which eventually ended up in the Judicial Committee of the House—it would be open to the High Court to consider that very question. If I may reply—
Lord Donaldson of Lymington: My Lords, may I ask a perfectly simple question before the noble Lord replies? I wholly support the idea of the DPP looking at these cases. and, if possible, bringing a criminal prosecution. I am wholly in favour of Amendment No. 12, which provides for that. However, could there be a problem, in an exceptional case, with subsection (1)(c) of the new clause in Amendment No. 9? It requires that the DPP shall consider the matter and advise that no criminal prosecution is possible at the moment, before a control order is made. Could we not face an urgent case in which we could not afford the delay, and that it ought to be possible to make a control order at the ex parte stage, but no further, before the DPP has had time to answer?
Lord Thomas of Gresford: My Lords, it would be entirely out of order for me to respond at this stage. We have discussed and voted on that particular point. Indeed, the particular subsection to which the noble and learned Lord, Lord Donaldson, referred is already in the Bill as originally drafted. It is not new material that we are putting in with this amendment.
Baroness Scotland of Asthal: My Lords, if I may respectfully say so, the noble and learned Lord, Lord Donaldson, makes a powerful point. If I have not made it plain, I should do so by saying we do not believe that Amendment No. 12 simply repeats what happened yesterday. It goes further, in suggesting that the Director of Public Prosecutions will continue to keep the matter under review. The DPP has no duty to keep cases under review in the way suggested.
Lord Evans of Temple Guiting: My Lords, may I help the House by reminding your Lordships that we are on Report—
Lord Kingsland: My Lords, in the most unusual circumstances.
Lord Evans of Temple Guiting: My Lords, we are in the most unusual circumstances, as the noble Lord, Lord Kingsland, tells me. Paragraph 6.126 of the Companion says that:
"Only the mover of an amendment or the Lord in charge of the bill speaks after the minister on report except for short questions of elucidation to the minister".
We should keep that in mind, otherwise things may get out of hand.
Lord Thomas of Gresford: My Lords, I do not propose to enter into a debate now on Amendment No. 12—which is, in any event, not my amendment. We take the view that the proper way to deal with the Bill as it stands is to send it to the other place in the "construct", to use the words of the noble Baroness, which the whole House—and not, as the noble Baroness put it, the Members opposite—has decided upon. For that reason, I propose to press Amendment No. 1.
The Chairman of Committees: The Question is that this amendment be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content".
Noble Lords: Content.
The Chairman of Committees: I think the Contents have it.
On Question, amendment agreed to.
[Amendment No. 2 not moved]
Baroness Scotland of Asthalhad given notice of her intention to move Amendment No. 3:
Page 1, line 12, at end insert 'under section 3"
The noble Baroness said: My Lords, in view of Amendment No. 1, Admendment No. 3 is not moved.
[Amendment No. 3 not moved.]
[Amendment No. 4 not moved.]
Lord Kingslandmoved Amendment No. 5:
Page 1, line 17, leave out "may include, in particular and insert "are"
The noble Lord said: my Lords, this amendment was well canvassed both on Second Reading and in Committee. Once again, I need only dwell on it briefly.
The issue here is extremely simple and well established. If a statute is going to take away the liberties of a British citizen, the manner in which it takes those liberties away must be clearly set out on the face of the Bill. Each liberty from which it is intended to resile should expressly appear on the face of the Bill. Clause 1(3) does not accord with that approach; it sets out a range of possible restraints that might he imposed on the subject of a control order. However, it does not exclude the possibility—or, perhaps, the probability—that a whole range of other restraints that do not appear on the face of the Bill could also he imposed upon a potential controllee.

635
Therefore, what we are seeking to achieve by this amendment is simply consistent with our best constitutional traditions. If the Government want to restrain somebody in a certain way under a control order—where he has, in reality, no entitlement to a criminal trial—then each and every restraint that might be placed on this person must appear on the face of the Bill. That is the beginning and end of Amendment No. 5. I beg to move.
Lord Goodhart: My Lords, we certainly support Amendment No. 5. It seems to us that it is wholly improper for there to be no restriction whatever on the kind of obligation that can be imposed on the person who is subject to the control order. It is not even suggested, for example, that any addition to the list should require the affirmative resolution by both Houses of Parliament, which might be an acceptable variation. Certainly, we think it improper to say that—subject, I accept, to the Human Rights Act—the kind of order that can be imposed here is entirely within the discretion of the Secretary of State.
Lord Plant of Highfield: My Lords, I made a speech at Second Reading in favour of that view. I still hold to that view, having listened to all the speeches since. I would certainly support the noble Lord, Lord Kingsland, in the view that he is taking. As I said yesterday, while I am in favour of control orders, they should be made as compliant as possible with both human rights legislation and, more broadly, common law assumptions about constitutionality, the rule of law, and so on. The argument, it seems to me, is that the control orders, which are currently both indefinite in their formulation and open-ended in their number, should be frozen in their present form.
Lord Lester of Herne Hill: My Lords, I see that in the next amendment we shall consider, Amendment No. 6, it is proposed that there should be a requirement to allow someone to be photographed. Can the Minister indicate why that is necessary? I believe it to be desirable, but why is it necessary if there is this inclusive definition, which we are seeking to delete? Surely it would be better to do as we suggest in this amendment.
Baroness Scotland of Asthal: My Lords, I shall deal with the point made by the noble Lord, Lord Lester, last.
It is absolutely clear that we have tried to make the list that we have provided as comprehensive as possible. But Amendment No. 6 demonstrates with acute clarity why it is difficult to make the list restrictive, without giving any flexibility. One of the reasons for Amendment No. 6, which relates to photographs, is that it is understood, particularly given the experience of previous cases, that it can be very important to have up-to-date photographs of individuals, because they have been known to change
636
and/or adapt their appearance, making it more difficult to track what they are doing and where they are.
Lord Forsyth of Drumlean: My Lords, I am most grateful to the Minister. Is not the fact that a matter of such importance is being added to the list at this stage an indication that it is very important to take time to consider these matters before rushing legislation through the House?
Baroness Scotland of Asthal: My Lords, that point has been made; I shall start to count how many times it is made. On every amendment, I have accepted that we are where we are and that this matter had to be looked at very quickly. If I may respectfully suggest, repetition does not enhance the value of a comment.
Lord Forsyth of Drumlean: My Lords, I know that the Minister thinks that I am just being an irritant, but that amendment seems important. It makes me wonder whether fingerprints or other things should be included. It worries me that, if such provisions are being added at this stage, perhaps the matter has not been thought through. The difficulty with having a list is that you need to know that it is comprehensive. The speed with which this is being considered is a legitimate consideration and makes one wonder whether the Government have thought it through.
Baroness Scotland of Asthal: My Lords, I can assure the noble Lord that the Government have thought it through. That is why we have made plain that the list is not exhaustive. We have said that there must be a degree of flexibility. If the orders are to be altered at the behest or instigation of the court, it is right that there should be an element of discretion.
As we have said, orders may differ materially, therefore the conditions that you may have to impose on individual "A" may be significantly different from those imposed on individual "B". The facts of a case may give rise to particularly pertinent conditions. It is appropriate that, although the majority of issues are outlined in the list (a) to (o), it should be possible to add to it if it appears on the facts of the case that further or additional proportionate conditions are merited. We shall resist the amendment because it is important that an element of flexibility should be retained.
Lord Kingsland: My Lords, I am grateful to the noble Baroness for her reply. No doubt we can deal with her arguments on photographic evidence in the next amendment. I found her response to this amendment wholly unsatisfactory. If the Government were concerned about providing themselves with a window of opportunity to add to the list, they could have introduced a delegated procedure in the same clause. They have not done so; in those circumstances, I wish to divide the House.
3.43 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 256; Not-Contents,129.

Division No. 1

CONTENTS

Ackner, L.

Finlay of Llandaff, B.

Addington, L.

Flather, B.

Alderdice, L.

Fookes, B.

Allenby of Megiddo, V.

Forsyth of Drumlean, L.

Alliance, L.

Fowler, L.

Alton of Liverpool, L.

Freeman, L.

Ampthill, L.

Garden, L.

Anelay of St Johns, B.

Gardner of Parkes, B.

Arran, E.

Geddes, L.

Astor of Hever, L.

Gilmour of Craigmillar, L.

Avebury, L.

Glasgow, E.

Bagri, L.

Glenarthur, L.

Baker of Dorking, L.

Glentoran, L.

Beaumont of Whitley, L.

Goodhart, L. [Teller]

Blaker, L.

Greaves, L.

Bledisloe, V.

Greengross, B.

Bonham-Carter of Yarnbury. B.

Greenway, L.

Boothroyd, B.

Hamwee, B.

Bowness, L.

Hanham, B.

Bradshaw, L.

Harris of High Cross, L.

Brittan of Spennithorne, L.

Harris of Richmond, B.

Broers, L.

Hayhoe, L.

Brooke of Sutton Mandeville, L.

Henley, L.

Brookeborough. V.

Higgins, L.

Brougham and Vaux, L.

Hodgson of Astley Abbotts, L.

Buscombe, B.

Hogg, B.

Byford, B.

Home, B.

Caithness. E.

Hooper, B.

Cameron of Dillington, L.

Hooson, L.

Cameron of Lochbroom, L.

Howard of Rising, L.

Campbell of Alloway, L.

Howarth of Breckland, B.

Carlisle of Bucklow, L.

Howe, E.

Carrington, L.

Howe of Aberavon, L.

Cavendish of Furness. L.

Howe of Idlicote, B.

Chadlington, L.

Howell of Guildford, L.

Chan, L.

Hunt of Wirral, L.

Chorley, L.

Hurd of Westwell, L.

Clement-Jones, L.

Hylton, L.

Cockfield, L.

Inglewood, L.

Cohen of Pimlico, B.

James of Holland Park, B.

Colville of Culross, V.

Jenkin of Roding, L.

Colwyn, L.

Judd, L.

Cope of Berkeley, L. [Teller]

Kalms, L.

Courtown, E.

Kennedy of The Shaws, B.

Cox, B.

Kingsland, L.

Crathorne, L.

Knight of Collingtree, B.

Crickhowell, L.

Laing of Dunphail, L.

Croham, L.

Lamont of Lerwick, L.

Cuckney, L.

Lane of Horsell, L.

Dahrendorf, L.

Lang of Monkton, L.

Darcy de Knayth, B.

Lawson of Blaby, L.

Dean of Harptree, L.

Lester of Herne Hill, L.

Denham, L.

Lindsay, E.

Dholakia, L.

Linklater of Butterstone, B.

Dixon-Smith, L.

Listowel, E.

D'Souza, B.

Liverpool, Bp.

Dundee, E.

Liverpool, E.

Dykes, L.

Livsey of Talgarth, L.

Eden of Winton, L.

Lloyd of Berwick, L.

Elles, B.

Lucas, L.

Elliott of Morpeth, L.

Ludford, B.

Elton, L.

Luke, L.

Erroll, E.

McColl of Dulwich, L.

Falkland, V.

Macfarlane of Bearsden, L.

Falkner of Margravine, B.

MacGregor of Pullham Market,

Fearn, L.

L.

Fellowes, L.

Mackay of Clashfern, L.

Ferrers, E.

Mackie of Benshie, L.

638

Maclennan of Rogart, L.

Saltoun of Abernethy, Ly.

McNally, L.

Sandberg, L.

Maddock, B.

Sanderson of Bowden, L.

Mallalieu, B.

Scott of Needham Market, B.

Mancroft, L.

Seccombe, B.

Mar and Kellie, E.

Selsdon, L.

Marlesford, L.

Sharman, L.

Mayhew of Twysden, L.

Sharp of Guildford, B.

Methuen, L.

Sharples, B.

Michie of Gallanach, B.

Shaw of Northstead, L.

Miller of Chilthorne Domer, B.

Sheldon, L.

Miller of Hendon, B.

Sheppard of Didgemere, L.

Monson, L.

Shutt of Greetland, L.

Montrose, D.

Skidelsky, L.

Moser, L.

Slim, V.

Mowbray and Stourton, L.

Smith of Clifton, L.

Murphy, B.

Soulsby of Swaffham Prior, L.

Murton of Lindisfarne, L.

Steel of Aikwood, L.

Neill of Bladen, L.

Steinberg, L.

Neuberger, B.

Stern, B.

Newby, L.

Stevens of Ludgate, L.

Newton of Braintree, L.

Stewartby, L.

Northbourne, L.

Stoddart of Swindon, L.

Northesk, E.

Strathclyde, L.

Northover, B.

Sutherland of Houndwood, L.

O'Cathain, B.

Swinfen, L.

O'Neill of Bengarve, B.

Taverne, L.

Onslow, E.

Tenby, V.

Oxford, Bp.

Thatcher, B.

Park of Monmouth, B.

Thomas of Gresford, L.

Parkinson, L.

Thomas of Swynnerton, L.

Perry of Southwark, B.

Thomas of Walliswood, B.

Peyton of Yeovil, L.

Thomson of Monifieth, L.

Phillips of Sudbury, L.

Tombs, L.

Plant of Highfield, L.

Tope, L.

Platt of Writtle, B.

Tordoff, L.

Portsmouth, Bp.

Trumpington, B.

Prashar, B.

Tugendhat, L.

Prior, L.

Ullswater, V.

Quinton, L.

Vallance of Tummel, L.

Quirk, L.

Vincent of Coleshill, L.

Razzall, L.

Vinson, L.

Redesdale, L.

Waddington, L.

Rees, L.

Wade of Chorlton, L.

Rees-Mogg, L.

Wakeham, L.

Renfrew of Kaimsthorn, L.

Walker of Worcester, L.

Rennard. L.

Wallace of Saltaire, L.

Renton, L.

Walmsley, B.

Renton of Mount Harry, L.

Walpole, L.

Roberts of Conwy, L.

Walton of Detchant, L.

Roberts of Llandudno, L.

Warnock, B.

Rodgers of Quarry Bank, L.

Watson of Richmond, L.

Rogan, L.

Weatherill, L.

Rogers of Riverside, L.

Wedderburn of Charlton, L.

Roper, L.

Wilcox, B.

Rotherwick, L.

Williams of Crosby, B.

Russell-Johnston, L.

Williamson of Horton, L.

Saatchi, L.

Willoughby de Broke, L.

Sainsbury of Preston Candover,

Windlesham, L.

L.

Worcester, Bp.

St John of Fawsley, L.

Wright of Richmond, L.

NOT-CONTENTS

Acton, L.

Brett, L.

Amos, B. (Lord President of the

Bridges, L.

Council)

Brooke, of Alverthorpe, L.

Andrews, B.

Brookman, L.

Ashley of Stoke, L.

Burlison, L.

Ashton of Upholland, B.

Campbell-Savours, L.

Bach, L.

Carter, L.

Bassam of Brighton, L.

Carter of Coles, L.

Bernstein of Craigweil, L.

Christopher, L.

Bhattacharyya, L.

Clark of Windermere, L.

Billingham, B.

Clarke of Hampstead, L.

Borrie, L.

Clinton-Davis, L.

639

Corbett of Castle Vale, L.

Lea of Crondall, L.

Crawley, B.

Leitch, L.

David, B.

Lewis of Newnham, L.

Davies of Coity, L.

Lipsey, L.

Davies of Oldham, L. [Teller]

Lofthouse of Pontefract, L.

Dearing, L.

McDonagh, B.

Desai, L.

Macdonald of Tradeston, L.

Dixon, L.

McIntosh of Haringey, L.

Donoughue, L.

McIntosh of Hudnall, B.

Drayson, L.

MacKenzie of Culkein, L.

Dubs, L.

Mackenzie of Framwellgate, L.

Eatwell, L.

McKenzie of Luton, L.

Elder, L.

Marsh, L.

Evans of Parkside, L.

Mason of Barnsley, L.

Evans of Temple Guiting, L.

Maxton, L.

Falconer of Thoroton, L. (Lord

Merlyn-Rees, L.

Chancellor)

Mitchell, L.

Farrington of Ribbleton, B.

Morgan of Drefelin, B.

Faulkner of Worcester, L.

Morris of Aberavon, L.

Filkin, L.

Morris of Manchester, L.

Fyfe of Fairfield, L.

Nicol, B.

Gale, B.

Paul, L.

Gibson of Market Rasen, B.

Pendry, L.

Giddens, L.

Peston, L.

Golding, B.

Ponsonby of Shulbrede, L.

Goldsmith, L.

Prosser, B.

Gordon of Strathblane, L.

Radice, L.

Goudie, B.

Ramsay of Cartvale, B.

Gould of Potternewton, B.

Randall of St. Budeaux, L.

Graham of Edmonton, L.

Rendell of Babergh, B.

Gregson, L.

Richardson of Calow, B.

Griffiths of Burry Port, L.

Rix, L.

Grocott, L. [Teller]

Rooker, L.

Hams of Haringey, L.

Rowlands, L.

Harrison, L.

Royall of Blaisdon, B.

Hart of Chilton, L.

Sainsbury of Turville, L.

Haskel, L.

Sawyer, L.

Haworth, L.

Scotland of Asthal, B.

Hayman, B.

Sewel, L.

Henig, B.

Simon, V.

Hilton of Eggardon, B.

Smith of Leigh, L.

Hogg of Cumbernauld, L.

Stone of Blackheath, L.

Hollis of Heigham, B.

Strabolgi, L.

Howells of St. Davids, B.

Thornton, B.

Howie of Troon, L.

Tomlinson, L.

Hoyle, L.

Triesman, L.

Hughes of Woodside, L.

Truscott, L.

Hunt of Kings Heath, L.

Tunnicliffe, L.

Jones, L.

Turnberg, L.

Jordan, L.

Wall of New Barnet, B.

Kilclooney, L.

Warner, L.

King of West Bromwich, L.

Whitty, L.

Layard, L.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
3.58 p.m.
Baroness Scotland of Asthalmoved Amendment No. 6:
Page 2, line 35, at end insert—
"( ) a requirement on him to allow himself to be photographed;"
The noble Baroness said: My Lords, I now find myself in a very interesting position. On the basis that I can still move this amendment, bearing in mind the last vote, I would obviously ask for this provision to be added to the obligations relating to the conditions for the control order. I outlined the reasons in the last group. I beg to move.
On Question, amendment agreed to.
Lady Saltoun of Abernethymoved Amendment No. 7:
After Clause I, insert the following new Clause—
"CONTROL ORDERS: SUPPLEMENTARY

(1) If, as a consequence of the obligations imposed by a control order, a person becomes unemployed, arrangements shall be made for that person to receive any social security benefits or unemployment benefits to which he may be entitled.

(2) If a control order is made in respect of a person already in receipt of social security benefits or unemployment benefits, arrangements shall be made to ensure that the person shall continue to receive those benefits.

(3) In any case where a control order is made, appropriate arrangements shall be made to ensure that the person in respect of whom the order is made, and his household, shall have access to, or shall continue to have access to, supplies of food, household and personal necessities.

(4) In any case where a control order is made, appropriate arrangements shall be made to ensure that the person in respect of whom the order is made shall have access to such health care as may be necessary."

The noble Lady said: My Lords, I was not satisfied with the answers that I got from the noble and learned Lord the Lord Chancellor when I raised this matter last Thursday in Committee.
There is no history of putting people under house arrest in this country, and so no mechanism for looking after them and managing the house arrest. Possibly the Government intend to remedy this. I imagine that they intend to do something, on account of their dear friend the European Convention on Human Rights, to which they made this country sign up and in which I have no faith at all. In fact, if I were to say what I thought of it, I should probably find myself using thoroughly unparliamentary language.
I want to be sure that these suspects, whether innocent or guilty—they have not been tried in a court of law and therefore cannot be said with any certainty to be guilty—are treated in a manner compatible with traditional British decency and not in the kind of way in which some countries, such as Burma and the United States, which have house arrest, may or may not choose to treat people. House arrest should not just be a cheap alternative to imprisonment.
It is very important not only that we treat suspects subject to derogating orders with humanity, but that we are seen to be doing so. We are not degraded by what is done to us; we are degraded by how we ourselves behave and how we ourselves treat others. That is why this provision should be on the face of the Bill. I beg to move.
The Earl of Onslow: My Lords, I promise your Lordships that this is the only time that I shall speak this afternoon. I have put my name to the amendment because the case made yesterday by the noble Lady, Lady Saltoun, was overwhelming and received no proper answer from the Government. As she said, to ask people to pay for their own imprisonment and starvation, which is a logical conclusion of the

641
possibility, is totally wrong and completely abhorrent to our traditions. It is therefore with pleasure that I support the amendment of the noble Lady.
Lord Northbourne: My Lords, I rise to support my noble friend Lady Saltoun and to add one or two other questions to the ones that she has asked.
As my noble friend said, we have no tradition of house of arrest in this country and we therefore have the right to know how it will operate. I assume that "house" includes a flat or apartment. What happens if someone has no house, flat or apartment? If the person has an apartment, how does he get exercise? If it belongs to the person and he is put out of work by not being able to go to work, and if no one is paying the mortgage, who will pay the mortgage? If the mortgage is not paid, what will happen when the person is turned out of the house?
There is the possibility that the person may be a parent—after all, some 27 per cent of the nation's children are now looked after by a single parent. It is not impossible that the person who is a suspect—possibly wrongly a suspect—may be a parent; what will happen to the children? There is provision for children when the parent is condemned by the courts, but there is no provision in this case, as I understand it. Can the Minister help the House?
Baroness Scotland of Asthal: My Lords, I hope I can satisfy the noble Lady that her concerns are unfounded. I understand the support for the sentiment of both the noble Earl. Lord Onslow, and the noble Lord. Lord Northbourne.
One of the main features of a control order is that it can be adapted in a flexible way to the circumstances of the individual subject to it. Clause 1(8) allows for an obligation to be varied with the consent of a specified person and the controlled person so that the order can reflect the changing circumstances of a particular case. For the conditions described in the amendment, available options include, of course, home delivery of goods and services direct from suppliers, and arrangements for the individual to leave his premises at specified times for specified purposes, subject to necessary restrictions, safeguards and monitoring.
Nothing in the Bill alters the opportunity for a person in this country to receive benefits to which they would otherwise be entitled. So control orders will not interfere with the receipt by a controlled person of state benefits as long as that person is so entitled. If a controlled person is entitled to such benefits he will continue to be entitled to them. If the controlled person becomes entitled to state benefits, we will make such arrangements as will enable him to receive them.
I hope I have made it clear in yesterday's debates and today that control orders are designed to prevent terrorist-related activity. They are not designed to prevent access to the assistance the state offers to those who have a legal right of entitlement.
If we go with the construct that the House has favoured, it is proposed that these conditions will be imposed by a judge, who will be seized of the circumstances in each individual case. The provisions
642
in relation to the ECHR will still prevail and the conditions would have to be proportionate to the risk posed by the individual and would have to be predicated on an understanding that they were necessary to better control the threat the person may pose.
I hope that I have said enough to reassure the noble Lady, Lady Saltoun, and those who have spoken in support of the amendment.
Lord Elton: My Lords, before the noble Baroness sits down, perhaps she will elucidate on what she said in one regard. If there are children of a single parent who are normally taken to school by that parent, what is the provision in the Bill, or outwith the Bill, to ensure that those children are still escorted by a reliable individual when the parent is housebound by an order?
Baroness Scotland of Asthal: My Lords, it is impossible to deal with a case-by-case situation, save to say that I am sure all those factors will be prayed in aid by those representing the individual. There will be a discussion about whether the conditions are necessary and proportionate. They are matters that the person who has to determine the nature of the conditions will take into account, whether it be in relation to the Government's position on non-derogating orders or in relation to a construct which requires that all such orders are to be made by the court.
There is no indication that that would cause us—or, indeed, the individual—difficulty because an explanation for the conditions will obviously have to be made.
Lady Saltoun of Abernethy: My Lords, I have listened carefully to what the noble Baroness has said. I am very sorry, but I do not find it particularly satisfactory. I should like to have matters much more cut and dried. I am getting a strong impression of, "Don't worry, it will be all right on the night". Under these circumstances, I should like to have something on the face of the Bill. I beg leave to seek the opinion of the House.
4.8 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
*
Their Lordships divided: Contents, 241; Not-Contents, 139.
[*See col. 672]

Division No. 2

CONTENTS

Ackner, L.

Arran, E.

Addington, L.

Astor of Hever, L.

Alderdice, L.

Avebury, L.

Allenby of Megiddo, V.

Baker of Dorking, L.

Alliance, L.

Barker, B.

Alton of Liverpool, L.

Beaumont of Whitley, L.

Ampthill, L.

Bell, L.

Anelay of St Johns, B.

Blackwell, L.

643

Blaker, L.

Howard of Rising, L.

Bonham-Carter of Yarnbury, B.

Howe, E.

Boothroyd, B.

Howe of Aberavon, L.

Bowness, L.

Howe of Idlicote, B.

Bradshaw, L.

Howell of Guildford, L.

Bridges, L.

Hunt of Wirral, L.

Brittan of Spennithorne, L.

Hurd of Westwell, L.

Broers, L.

Inglewood, L.

Brooke of Sutton Mandeville, L.

Jenkin of Roding, L.

Brookeborough, V.

Joffe, L.

Brougham and Vaux, L.

Judd, L.

Buscombe, B.

Kalms, L.

Byford, B.

Kennedy of The Shaws, B.

Caithness. E.

Kimball, L.

Campbell of Alloway, L.

Kingsland, L.

Carlisle of Bucklow, L.

Knight of Collingtree, B.

Carrington. L.

Laing of Dunphail, L.

Cavendish of Furness, L.

Lamont of Lerwick, L.

Chadlington, L.

Lane of Horsell, L.

Clement-Jones, L.

Lang of Monkton, L.

Colville of Culross, V.

Lawson of Blaby, L.

Colwyn, L.

Lester of Herne Hill, L.

Cope of Berkeley, L.

Lewis of Newnham, L.

Courtown, E.

Lindsay, E.

Cox, B.

Linklater of Butterstone, B.

Crathorne, L.

Liverpool, E.

Crickhowell, L.

Livsey of Talgarth, L.

Cuckney, L.

Lloyd of Berwick, L.

Cumberlege, B.

Ludford, B.

Dean of Harptree, L.

Luke, L.

Denham, L.

Lyell, L.

Dholakia, L.

McColl of Dulwich, L.

Dixon-Smith, L.

Macfarlane of Bearsden, L.

Donaldson of Lymington, L.

MacGregor of Pulham Market,

Dundee, E.

L.

Dykes, L.

Mackay of Clashfern, L.

Eccles of Moulton, B.

Mackie of Benshie, L.

Eden of Winton, L.

Maclennan of Rogart, L.

Elliott of Morpeth, L.

McNally, L.

Elton, L.

Maddock, B.

Erroll, E.

Mancroft, L.

Falkland, V.

Mar, C.

Falkner of Margravine, B.

Mar and Kellie, E.

Fearn, L.

Marlesford, L.

Feldman, L.

Mayhew of Twysden, L.

Fellowes, L.

Methuen, L.

Ferrers, E.

Michie of Gallanach, B.

Finlay of Llandaff, B.

Miller of Chilthorne Domer, B.

Flather, B.

Miller of Hendon, B.

Fookes, B.

Monson, L.

Forsyth of Drumlean, L.

Montrose, D.

Fowler, L.

Moran, L.

Freeman, L.

Morris of Bolton, B.

Garden, L.

Moser, L.

Gardner of Parkes, B.

Mowbray and Stourton, L.

Geddes, L.

Murton of Lindisfarne, L.

Gilmour of Craigmillar, L.

Naseby, L.

Glasgow, E.

Neuberger, B.

Glenarthur, L.

Newby, L.

Glentoran, L.

Newton of Braintree, L.

Goodhart, L.

Northbourne, L.

Greaves, L.

Northesk, E.

Greenway, L.

Northover, B.

Hamwee, B.

Oakeshott of Seagrove Bay, L.

Hanham, B.

O'Cathain, B.

Hanningfield, L.

O'Neill of Bengarve, B.

Harris of High Cross, L.

Onslow, E. [Teller]

Harris of Richmond, B.

Oppenheim-Barnes, B.

Hayhoe, L.

Parekh, L.

Henley, L.

Park of Monmouth, B.

Higgins, L.

Parkinson, L.

Hodgson of Astley Abbotts, L.

Patten, L.

Hogg, B.

Perry of Southwark, B.

Home, E.

Peyton of Yeovil, L.

Hooper, B.

Phillips of Sudbury, L.

Hooson, L.

Platt of Writtle, B.

644

Prior, L.

Soulsby of Swaffham Prior, L.

Quinton, L.

Steel of Aikwood, L.

Razzall, L.

Steinberg, L.

Redesdale, L.

Stewartby, L.

Rees, L.

Stoddart of Swindon, L.

Rees-Mogg, L.

Sutherland of Houndwood, L.

Renfrew of Kaimsthorn, L.

Swinfen, L.

Rennard, L.

Tebbit, L.

Renton, L.

Tenby, V.

Renton of Mount Harry, L.

Thatcher, B.

Richardson of Calow, B.

Thomas of Gresford, L.

Roberts of Conwy, L.

Thomas of Swynnerton, L.

Roberts of Llandudno, L.

Thomas of Walliswood, B.

Rodgers of Quarry Bank, L.

Thomson of Monifieth, L.

Rogan, L.

Tombs, L.

Roper, L.

Tope. L.

Rotherwick, L.

Tordoff, L.

Russell-Johnston, L.

Trefgarne, L.

Sainsbury of Preston Candover,

Trumpington, B.

L.

Tugendhat, L.

St John of Fawsley, L.

Ullswater, V.

Saltoun of Abernethy, Ly.

Vallance of Tummel, L.

[Teller]

Vinson, L.

Sandberg, L.

Waddington, L.

Sanderson of Bowden, L.

Wade of Chorlton, L.

Scott of Needham Market, B.

Wakeham, L.

Seccombe, B.

Walker of Worcester, L.

Selsdon, L.

Wallace of Saltaire, L.

Sharman, L.

Walmsley, B.

Sharp of Guildford, B.

Walpole, L.

Sharples, B.

Warnock, B.

Shaw of Northstead, L.

Watson of Richmond, L.

Sheppard of Didgemere, L.

Wedderburn of Charlton, L.

Shutt of Greetland, L.

Wilcox, B.

Skidelsky, L.

Williams of Crosby, B.

Slim, V.

Willoughby de Broke, L.

Smith of Clifton, L.

Windlesham, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Drayson, L.

Amos, B. (Lord President of the

D'Souza, B.

Council)

Dubs, L.

Andrews, B.

Eatwell, L.

Ashley of Stoke, L.

Elder, L.

Ashton of Upholland, B.

Evans of Parkside, L.

Bach, L.

Evans of Temple Guiting, L.

Bassam of Brighton, L.

Farrington of Ribbleton, B.

Bernstein of Craigweil, L.

Faulkner of Worcester, L.

Bhattacharyya, L.

Filkin, L.

Billingham, B.

Fyfe of Fairfield, L.

Bledisloe, V.

Gale, B.

Borrie, L.

Gibson of Market Rasen, B.

Brett, L.

Giddens, L.

Brooke of Alverthorpe, L.

Golding, B.

Brookman, L.

Goldsmith, L.

Burlison, L.

Gordon of Strathblane, L.

Cameron of Lochbroom, L.

Goudie, B.

Campbell-Savours, L.

Gould of Brookwood, L.

Carter, L.

Gould of Potternewton, B.

Carter of Coles, L.

Graham of Edmonton, L.

Chan, L.

Greengross, B.

Chorley, L.

Gregson, L.

Christopher, L.

Griffiths of Burry Port, L.

Clark of Windermere, L.

Grocott, L. [Teller]

Clarke of Hampstead, L.

Harris of Haringey, L.

Clinton-Davis, L.

Harrison, L.

Corbett of Castle Vale, L.

Hart of Chilton, L.

Crawley, B.

Haskel, L.

David, B.

Haworth, L.

Davies of Coity, L.

Hayman, B.

Davies of Oldham, L. [Teller]

Henig, B.

Desai, L.

Hilton of Eggardon, B.

Dixon, L.

Hogg of Cumbernauld, L.

Donoughue, L.

Hollis of Heigham, B.

645

Howarth of Breckland, B.

Peston, L.

Howells of St. Davids, B.

Plant of Highfield, L.

Howie of Troon, L.

Ponsonby of Shulbrede, L.

Hoyle, L.

Prosser, B.

Hughes of Woodside, L.

Radice, L.

Hunt of Kings Heath, L.

Ramsay of Cartvale, B.

Hylton, L.

Rendall of St, Budeaux, L.

Jones, L.

Rendell of Babergh, B.

Jordan, L.

Rooker, L.

King of West Bromwich, L.

Rosser, L.

Layard, L.

Rowlands, L.

Lea of Crondall, L.

Royall of Blaisdon, B.

Leitch, L.

Sainsbury of Turville, L.

Lipsey, L.

Sawyer, L.

Listowel, E.

Scotland of Asthal, B,

Lofthouse of Pontefract, L.

Sewel, L.

McDonagh, B.

Simon, V.

Macdonald of Tradeston, L.

Smith of Leigh, L.

McIntosh of Haringey, L.

Snape, L.

McIntosh of Hudnall, B.

Stone of Blackheath, L.

MacKenzie of Culkein, L.

Strabolgi, L.

Mackenzie of Framwellgate, L.

Thornton, B.

McKenzie of Luton, L.

Tomlinson, L.

Marsh, L.

Triesman, L.

Mason of Barnsley, L.

Trustcott, L.

Maxton, L.

Tunnicliffe, L.

Merlyn-Rees, L.

Turnberg, L.

Mitchell, L.

Turner of Camden, B.

Morgan of Drefelin, B.

Wall of New Bernet, B.

Morgan of Huyton, B.

Walton of Detchant, L.

Morris of Aberavon, L.

Warner, L.

Moms of Manchester, L.

Whitaker, B.

Nicol, B.

Whitty, L.

Paul, L.

Wilson of Tillyorn, L.

Pendry, L.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.22 p.m.
Clause 2 [Power of court to make non-derogating control orders]:
Baroness Scotland of Asthalmoved Amendment No. 8:
Clause 2, page 4, line 1, leave out subsection (2)
On Question, amendment agreed to.
Lord Thomas of Gresfordmoved Amendment No. 9:
Leave out Clause 2 and insert the following new Clause—
MAKING OF CONTROL ORDERS
(1) The court may make a control order against an individual if it—

(a) is satisfied on the balance of probabilities that the individual is or has been involved in terrorism-related activity;

(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual; and

(c) has been informed by the Director of Public Prosecutions that there is no reasonable prospect of a successful prosecution of the individual for the terrorism-related activity.

(2) On an application to the court by the Secretary of State for the making of a control order against an individual, it shall be the duty of the court—

(a) to hold an immediate preliminary hearing to determine whether to make a control order against that individual; and

646

(b) if it does make such an order against that individual, to give directions for the holding of a full hearing to determine whether to confirm the order (with or without modifications).

(3) The preliminary hearing under subsection (1)(a) may be held—

(a) in the absence of the individual in question;

(b) without his having had notice of the application for the order; and

(c) without his having been given an opportunity (if he was aware of the application) of making any representations to the court;

but this subsection is not to be construed as limiting the matters about which rules of court may be made in relation to that hearing.
(4) At the preliminary hearing, the court may make a control order against the individual in question lilt appears to the court—

(a) that there is material which (if not disproved) is capable of being relied on by the court as establishing that the individual is or has been involved in terrorism-related activity;

(b) that there are reasonable grounds for believing that the imposition of obligations on that individual is necessary for purposes connected with protecting members of the public from a risk of terrorism; and

(c) that if the obligations that there are reasonable grounds for believing should be imposed on the individual are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order, the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention.

(5) The obligations that may be imposed by a control order in the period between—

(a) the time when the order is made, and

(b) the time when a final determination is made by the court whether to confirm it,

include any obligations which the court has reasonable grounds for considering are necessary as mentioned in section 1(3).
(6) At the full hearing under subsection (1)(b), the court may—

(a) confirm the control order made by the court; or

(b) revoke the order;

and where the court revokes the order, it may (if it thinks fit) direct that this Act is to have effect as if the order had been quashed.
(7) In confirming a control order, the court—

(a) may modify the obligations imposed by the order; and

(b) where a modification made by the court removes an obligation, may (if it thinks fit) direct that this Act is to have effect as if the removed obligation had been quashed.

(8) At the full hearing, the court may confirm the control order (with or without modifications) only if—

(a) it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity;

(b) it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism; and

(c) if the obligations to be imposed by the order or (as the case may be) by the order as modified are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order, it appears to the court that the risk is one arising out of, or is associated with, a public emergency in

647
respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention.

(9) It shall he immaterial, for the purposes of determining what obligations may be imposed by a control order made by the court, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters in relation to which the requirements of subsection (4)(a) or (8)(a) were satisfied."
The noble Lord said: My Lords, this has already been spoken to. I beg to move.
On Question, amendment agreed to.
Clause 3 [Power of court to make derogating control orders]:
Lord Thomas of Gresfordmoved Amendment No. 10:
Clause 3, leave out Clause 3 and insert the following new Clause—
"DURATION AND RENEWAL OF CONTROL ORDERS
(1) A non-derogating control order—

(a) has effect for a period of 12 months beginning with the day on which it is made; but

(b) may be renewed on one or more occasions in accordance with this section.

(2) A non-derogating control order must specify when the period for which it is to have effect will end.
(3) The court may renew a non-derogating control order (with or without modifications) for a period of 12 months if it—

(a) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; and

(b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity.

(4) Where the court renews a non-derogating control order, the 12 month period of the renewal begins to run from whichever is the earlier of—

(a) the time when the order would otherwise have ceased to have effect; or

(b) the beginning of the seventh day after the date of renewal.

(5) The instrument renewing a non-derogating control order must specify when the period for which it is renewed will end.
(6) A derogating control order ceases to have effect at the end of the period of 6 months beginning with the day on which it is made unless—

(a) it is previously revoked (whether at the hearing under subsection (1)(b) or otherwise under this Act);

(b) it ceases to have effect under section 5; or

(c) it is renewed.

(7) The court, on an application by the Secretary of State, may renew a derogating control order (with or without modifications) for a period of 6 months from whichever is the earlier of—

(a) the time when the order would otherwise have ceased to have effect; and

(b) the beginning of the seventh day after the date of renewal.

(8) The power of the court to renew a derogating control order is exercisable on as many occasions as the court thinks fit; but, on each occasion, it is exercisable only if—
648

(a) the court considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for a derogating control order to continue in force against the controlled person;

(b) it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention;

(c) the derogating obligations that the court considers should continue in force are of a description that continues to be set out for the purposes of the designated derogation in the designation order; and

(d) the court considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity."

The noble Lord said: My Lords, this has already been spoken to. I beg to move.
On Question, amendment agreed to.
Clause 6 [Modification, notification and proof of orders etc.]:
Lord Goodhartmoved Amendment No. 11:
Clause 6, page 9, line 5, leave out "or the court"
On Question, amendment agreed to.
Clause 7 [Criminal investigations after making of control order]:
[Amendment No. 12 not moved.]
Clause 9 [Appeals relating to non-derogating control orders]:
[Amendment No. 13 not moved.]
Clause 10 [Appeals relating to derogating control orders]:
[Amendment No. 14 not moved.]
Clause 11 [Jurisdiction and appeals in relation to control order decisions etc.]:
Baroness Scotland of Asthalmoved Amendment No. 15:
Clause 11, page 14. line 8, leave out from "exercise" to end of line 10 and insert "or performance of any power or duty under any of sections of or in connection with the exercise or performance of any such power or duty;"
The noble Baroness said: My Lords, I beg to move.
Lord Elton: My Lords, will the noble Baroness tell us a bit about the amendment because it is not in a group? It stands by itself.
Baroness Scotland of Asthal: My Lords, this is a consequential amendment on new Clause 7 which covers criminal investigations after the making of a control order. It was intended to bring the Secretary of State's decision under the new criminal investigations clause within the rule in Clause 9(1) in order that such decisions cannot be questioned in any legal proceedings other than before the court or on appeal from such proceedings. I beg to move.
On Question, amendment agreed to.
Clause 13 [Reporting and review]:
Lord Kingslandmoved Amendment No. 16:
Clause 13, page 16, line 4, leave out subsections (2) to (6)
The noble Lord said: My Lords, we now come to the group of amendments which can be summarised by the expression "sunrise clause"—no, "sunset clause".
Noble Lords: Oh.
Lord Kingsland: I knew this Bill would get to me sooner or later, my Lords.
It is useful to look at the role of the sunset clause in the context of Amendments Nos. 18 and 19 in the next group, which deal with the establishment of a committee of five Privy Counsellors. Last night, between the hours of 10 and roughly 11 o'clock, the Committee looked into both these groups of amendments in considerable detail. So I hope that this debate, which is of course important, will nevertheless take place in somewhat shorter order.
It is important to understand at the outset the interdependence between the sunset clause and the Privy Council clause. As your Lordships are well aware that there was, in relation to the 2001 terrorism legislation, an important Privy Council investigation chaired by my noble friend Lord Newton of Braintree. Your Lordships will recall that that report came to a number of conclusions which were subsequently—and, I suspect, rather embarrassingly for the Government—endorsed by the Appeal Committee of your Lordships' House.
The report of my noble friend Lord Newton of Braintree lay on the table, totally ignored by the Government, for a year. That must not happen with the report that will be made by the new committee of Privy Counsellors, set up, as I hope it will be, under this Act.
That is why the sunset clause has to be seen in relation to the Privy Council clause. Without the sunset clause, there is every chance that the report of the new committee of Privy Counsellors will be ignored in the same way as the report of my noble friend Lord Newton has been ignored. So the two are interdependent. Equally, when your Lordships come to consider the next Bill following the death of this Bill—which I hope will be next November—your Lordships will be informed by the report of the Privy Counsellors and will know better what changes to make.
On the substance of the sunset clause, I say simply this: the Bill suspends habeas corpus. For that reason alone, we need a sunset clause. It is unacceptable that this fundamental right should be cast aside for any longer than is necessary. Parliament has spent the past 700 years protecting our liberties. It seems outrageous that we should be asked to allow an open-ended right to remove the most fundamental of them from our statute book.
However, there is an added reason for having a sunset clause. Parliament is the great protector of liberty, yet Parliament has been given no real
650
opportunity to scrutinise the Bill. The other place, moreover, was in an even worse state than we are. The elected House examined a text that everyone knew would be changed when it came to your Lordships' House.
4.30 p.m.
We—and I think the Liberal Party, too—have been accused by the Government of undermining the security of the country by seeking to make changes to the Bill. I wholly reject that suggestion. We are just as keen as the Government to ensure that the security of every citizen is guaranteed, but our response must be proportionate, and that requires ensuring that the minimum necessary sacrifice of liberty is made. That the legislation has not been scrutinised is an additional reason for having a sunset clause. I beg to move.
Baroness Williams of Crosby: My Lords, we on these Benches strongly support what the noble Lord, Lord Kingsland, has said, and I will briefly add a few arguments. We indicated last night that, in our view, the link between the review and the sunset clause is absolutely crucial. First, a review without a sunset clause can easily be tossed aside and disregarded, as was that of the committee of the noble Lord, Lord Newton of Braintree, despite its excellence. Secondly, there is another profound reason, which the noble Lord, Lord Kingsland, touched upon—that is, the issue of how seriously Parliament is to be taken. If the counter-terrorism Bill of 2001 was rushed through Parliament, this legislation is being stampeded through it, and there is no adequate consideration of the terms of the Bill.
It is sometimes felt that our Executive—even our Prime Minister, brilliant communicator though he is—increasingly does not treat either of the Houses of Parliament with any great seriousness. Parliament's role is as much at stake in this set of issues as counter-terrorism itself. It is crucial that we stand up for the role of Parliament, which means that we need the time to think, to set a balance, and to discuss proportionality in what may well be the most important issue of our generation: how we deal with the threat of terrorism. Dealing with it wrongly can be profoundly counter-productive, as a number of your Lordships have pointed out in our debates.
Finally, in this House, with the possible exception of the Government Front Bench, a clear consensus is already building up about what a new Bill ought to look like. It is not divided on party lines, nor on lines of the particular attitude one may have as regards ones previous interests or concerns. There is clearly very wide support for a different kind of Bill.
To conclude, it is of the greatest importance that legislation passed through this House about issues concerning terrorism and—as the noble Lord, Lord Kingsland, has said—any qualifications to our fundamental liberties, has the support of the great majority of parliamentarians. This Bill will not have that support; it will be deeply divisive. For the future. we need a solid base of consensus and agreement

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across parties and between the two Houses. I believe that that is in our reach, and that the sunset clause is crucial to our achieving it.
Lord Williamson of Horton: My Lords, I did not intervene at Committee stage on this point, but I would like to intervene now having heard a large number of arguments earlier. I will be brief.
The question of the sunset clause is a fundamental part of how we approach the Bill, and we need to take an early decision on it. There is obviously a large measure of agreement on some of the Government's objectives, but I have always stood for sunset clauses in other Bills. I have tried to introduce them on a number of occasions in EU legislation—I hope to do better on this Bill.
With her customary skill, the noble Baroness, Lady Scotland—who can argue the hind leg off a donkey with a certain amount of charm, I admit—sought yesterday to persuade us that a sunset clause was not correct. However, I do not think that the hind leg is going to come off this donkey. That is the situation we are in. She said that,
"we do not believe that a sunset clause on these provisions is appropriate. That is the current view of the Government".— [Official Report, 7/3/05; col. 591.]
Of course, what is current today may not be current tomorrow. I have kept that in mind, but it seems that, contrary to the Government's current view, a sunset clause is indeed appropriate. The word she used applies to the opposite side, a sunset clause is appropriate in the Bill. That is not, I repeat, an attack on the objectives of the Bill, which we all support. It is simply a recognition that we ought to make ourselves look at it again—a point made by the noble Baroness, Lady Hayman, in a much more eloquent manner. We need to make ourselves look at it again because we have a lot of problems with it, and we need to let the dust settle. I do not much care whether the date for the sunset clause is a year from now, or more, or less. I do not take that point at all, but I am resolutely for a sunset clause.
The Lord Bishop of Portsmouth: My Lords, I shall be brief, and bishops do not have hind legs, so cannot be argued with in that part of their anatomy. Hindsight can be convenient, and in an ideal world this Bill should have been given much more time. For various reasons, some of them understandable and some of them less so, it has not.
I strongly support these amendments, which have come to have a symbolic value far more powerful than what they seek to express and enact in law, for the very reason that they will help to allay the considerable concerns expressed both here and in another place, and in what little public comment has been able to come across in the media in recent days.
Lord Carlisle of Bucklow: My Lords, earlier this afternoon, the noble Baroness, Lady Scotland, in answer I think to my noble friend Lord Forsyth, said that the comment that this Bill was being rushed did
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not benefit from being repeated any more. Of course I accept that, from time to time, Oppositions complain in both Houses that Bills are being rushed. What is important here is not that the Opposition may have claimed it, but that the Government have themselves, time after time, accepted it.
They have made it clear in almost every speech they make that these things have got to be done quickly, that they would like more time to debate them, and that they realise that they are vitally important issues—I see the noble Baroness nods—which affect the liberty of the people of this country. We have heard from the noble and learned Lord the Lord Chancellor that striking the balance is something he would like to achieve, given time. Surely the great hope of the sunset clause is that it gives us that time. I totally agree with every word said by the noble Baroness, Lady Williams, and, for all the reasons she expressed, I cannot understand why the Government are not prepared to accept this way out.
Lord Clinton-Davis: My Lords, I entirely agree with the point that has just been made except in one respect, on which I adopt the argument of the noble Lord, Lord Williamson. As I said on Second Reading and later, I am in favour of the sunset clause. However, I am unhappy about the date of 30 November prescribed in the amendment.
I also subscribe to the view that we should consider carefully how the Act is operating. That is the work of the committee of the noble Lord, Lord Newton. However, we cannot do that if we insist on 30 November.
I shall not repeat what I said last night. I would prefer a later date, maybe in February, but I do not dissent in any way from the principle of a sunset clause.
Why is it imperative to insist on 30 November, which is an impractical date? People have said that we should not rush this legislation, but we have done so and we have a bad Bill. I will probably vote for the sunset provision, but with a heavy heart, because 30 November is impractical. It is vital to sit back and carefully examine what has happened in the mean time. It is not impossible to wait another two or three months for that to be considered.
As I said last night, for the most part this House will not be sitting as we have the Summer Recess. It is imperative that we insist on the view of this House—not of civil servants but of this House. If we have to consider 30 November, I shall support that with bated breath, but I do not believe that it is the best way to proceed.
Lord Waddington: My Lords, in Committee I pointed out that the Bill went through the other place on a very tight timetable. Before it left the other place, the Government announced that they would introduce fundamental amendments in this place. A few days ago, I pointed out that the consequence of that would be that the Bill would never be considered properly in the House of Commons because when it returns to the House of Commons, all the deliberations will again take place under a grotesquely tight timetable.

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It is ridiculous for Parliament to proceed in this way. Even if the Bill did not affect individual rights to the extent that it does, it is quite wrong that a Bill should last for more than a few minutes, let alone a few months or a few years, when it has not been properly considered by Parliament. The strongest argument for the sunset clause is that it is wrong for a Bill to last very long when it has not been considered properly by Parliament and we know that this Bill never will be considered properly by Parliament because the amendments carried in this place will not be considered at all in the other place.
Baroness D'Souza: My Lords, I agree with nearly all that has been said on the sunset clause. Nearly all the speakers in this debate have acknowledged the very serious dilemma that the Government have to resolve: how to deal with the threat of terrorism and, at the same time, preserve fundamental rights. We all recognise what a serious dilemma that is. However, the argument that this contradictory and flawed Bill, which addresses such serious issues, should have an end date surely has to be accepted.
The Bill has been exposed as contradictory in many areas. One of the weaknesses, which has not been fully addressed as yet, is the lack of a clear definition of "terrorism". The word is used constantly in many different contexts but there is no common understanding of its meaning, hence the saying, "One man's terrorist is another's freedom fighter". The definitional difficulty has allowed a vague discourse—vague enough to allow states to justify almost all actions in terms of national security and, by doing so, suddenly to justify human rights violations.
As we know, there have been many attempts to define "terrorism", including a UN ad hoc committee in 1996 which tried to draft a convention on terrorism that was ideologically neutral, but it incorporated the principle of legality. However, it failed precisely on the definitional issues. During the Reagan administration, the US definition of "terrorism" was dropped because it described almost perfectly counter-insurgency and counter-terrorism mechanisms set out in the US military manuals.
Clear definitions seem to be vital when entering the area of criminal law. Imprecise language makes for broad definitions that may encompass acts that few would regard as terrorism. The EU framework decision on terrorism, for example, includes,
"attacks on the physical integrity of a person",
or,
"causing extensive damage to a government or public facility",
which becomes a terrorist act if it is committed with specific aims. Legitimate dissent could very easily be interpreted as criminal within that framework, as could politically motivated and selective applications of it. I do not speak of this Government falling prey to such violations, but if a law of this kind were on the statute book, in the future it may well be used in circumstances over which we have no control.
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I believe that all such dangers are mitigated to some extent by strong human rights safeguards. However, in this Bill we are considering derogation from those safeguards. A definition of "terrorism" cannot characterise as criminal offences those rights which are protected under international human rights law—
Lord Evans of Temple Guiting: My Lords, I am extremely sorry to interrupt the noble Baroness, but her speech is beginning to sound precisely like a Second Reading speech. This is Report stage.
Baroness D'Souza: My Lords, is it in order for me to conclude?
Lord Evans of Temple Guiting: My Lords, if the noble Baroness has something to say about the amendment that we are discussing, we would be delighted to hear what she has to say. I believe that the general view is that what she is saying, however interesting it may be, is a long way from the amendment.
Lord Harris of Haringey: My Lords, noble Lords who, by their advocacy of a sunset clause for November of this year, have expressed concern about the speed with which this legislation is going through the House and through the other place, seem to be in danger of creating precisely that problem a few months down the road. The noble Lord, Lord Kingsland, talked of us considering the next Bill which could be dealt with by November. The reality is that we would be rushing through what we are told will be a much more complicated Bill, which will consider offences in relation to acts preparatory to terrorism and so on. in an equally unsatisfactory timetable.
If one believes that it is important that there is proper consideration and if one believes, as the noble Lord, Lord Kingsland, clearly does, that there should be a review process by a committee of Privy Counsellors—no doubt we shall consider that in a few minutes—clearly there has to be time for proper consideration of all that, which is why I wonder why the amendment proposes November this year.
I believe that most Members of your Lordships' House are trying their very best to achieve consensus on these matters but, when a date such as November is put forward, I wonder whether this is about building consensus or trying to create confusion and problems. As the Bill stands it already includes very substantial processes of review: three-monthly reports by the Secretary of State; someone to review the operations of Sections 1 to 8; and a consideration of all of that. I believe that those are very important and helpful clauses. I understand that any derogation from the convention will he considered by both Houses of Parliament annually. Therefore, review processes are built in.
I understand the arguments made by the noble Baroness, Lady Williams, about the symbolic importance and significance of putting an end date in the Bill, but to put an end date of November simply means that later this year we shall be considering

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another Bill, much too quickly, without the proper opportunities for consideration of the review processes that this Bill would put in place.
Lord Ackner: My Lords, I would have thought that the need for a sunset clause is absolutely obvious. The judicial process has been distorted by the rush on which the Government have insisted. Therefore, it is inevitable that there should be a sunset clause, focusing attention on how we should achieve cross-party agreement.
I do not understand the problem about the time. The long vacation is just the kind of period for the Privy Council to work, undisturbed, and decide on its views. The long vacation is very long indeed. Some people would like to be occupied during it, and I hope that the Privy Counsellors will be. I suggest to your Lordships that there cannot be any conceivable contest in regard to a sunset clause, and that what is proposed is thoroughly sensible.
The Lord Bishop of Oxford: My Lords, despite what the noble and learned Lord, Lord Ackner, has said about the long, long vacation, there are, as the noble Lord, Lord Clinton-Davis, emphasised, severe practical difficulties about that date of 30 November 2005. Perhaps the Government could indicate whether they would be willing in principle to accept a sunset clause, let us say for 30 November 2006.
Because of the important point which has been made about linking a sunset clause with Clause 18, and in particular because of the way in which the report of the noble Lord, Lord Newton, was disregarded, could the Government indicate, when we come to Clause 18—in particular, Clause 18(6)—whether they would support an amendment to the effect that not only should this report be laid before Parliament. but that it would be mandatory for Parliament to debate it?
Baroness Hayman: My Lords, I shall not repeat everything I said last night, although it is terribly tempting, given how many more people are here to hear it this afternoon than were here at ten o'clock last night.
I fundamentally support a sunset clause on this legislation, because of the issues of principle regarding the content of the Bill, which have already been spoken about, and the process by which we have legislated in this instance. I believe that it is sensible also on the grounds of practicality to have a sunset clause in this Bill because, as my noble friend Lord Harris of Haringey said, we have been promised further legislation dealing with a new offence of acts preparatory to terrorism. I hope that that will allow us greater scope for prosecution—which is what everyone agrees is the first option. We ought, logically and coherently, to review these provisions as part of the hierarchy of weapons we have to deal with terrorism—from surveillance, to control orders, to prosecution.
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I think that there will be that opportunity, and I hope very much that my noble friends on the Front Bench will be able to respond to this amendment in a constructive way, because I too share some of the reservations about timing that have been put forward.
It would be a supreme irony if we were, in the middle of pre-legislative scrutiny of an important piece of coherent terrorist legislation, to find ourselves with another false deadline like 14 March and legislating in the same way. I believe that it would be possible to provide perhaps for renewal, which would be more realistic, and then an absolute sunset clause, to allow the Bill to be enacted—as I think there is a universal feeling around the House that it should be—but not in such a straitjacket that it puts us back in exactly the situation we are in now. I earnestly hope that my noble friends will be able to respond to that.
Lord Elton: My Lords, that is sage advice. I remind the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Harris of Haringey, that we are in confident expectation of a general election at the beginning of May. That leaves the parliamentary programme clear for June and July, as well as October and November. There is much more time available than people seem to think.
Lord Plant of Highfield: My Lords, I am very sympathetic to the position taken by my noble friend Lady Hayman. I have two reservations about the sunset clause. Given my voting record over the past couple of days, my noble friends on the Front Bench may be surprised that I have these reservations; but I do not think that my reasons will be greatly welcome.
The first reason follows up the point made by my noble friend Lady Hayman about practicality. If it is true, as was portrayed in the Guardian yesterday, that these orders will be monitored, dealt with, and imposed, as it were, by private sector companies, then presumably those companies will have to be commissioned, their staff will have to be trained, and so forth. It seems to me to be an extraordinary proposal. However, leaving that on one side for the moment, if the private sector is to be involved in enforcing the control orders, then I am not at all clear how contracts could be signed with private sector companies if the Bill died on 30 November.
It may be—and I would be very reassured to hear it—that there is no such proposal. However, if there is, it seems to me that the Government will be put in a very difficult position in making those contracts if the Bill had such a short life.
The reason for my second reservation is a very Machiavellian one, which will be even more unwelcome to the Front Bench. It is that, as has been said, there is an election pending. In my view, this Bill will leave this House much better than it entered it, and it is a Bill that I could certainly live with—if it retains its current form after the other place has had a look at it.
However, it is obviously not the Bill that the Government wanted, and they may use the election manifesto to prefigure more draconian legislation on

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terrorism: not just the kinds of things that my noble friend Lady Hayman was talking about, but trying to restore some of the proposals that were in this Bill. It would then have the legitimacy of the election manifesto commitment, if the governing party won the election. In those circumstances, and if the Bill were to die on 30 November, the Government would have a legitimate case for coming back with something like the Bill we have just been discussing, and which we have made a lot better, but with a greater legitimacy for the view they are trying to put forward. Therefore, I will not be supporting the sunset clause.
Lord Selsdon: My Lords, terrorism, as your Lordships know, means that government will rule by fear. In this. the Government have been extremely successful.
This Bill will do nothing to halt the fear of terrorism. It is particularly worrying, because I am opposed to the Bill and I am equally opposed to the sunset clause; but if one regards it as a safe way out, then so be it.
I once asked the noble and learned Lord the Lord Chancellor if he could define the difference between freedom lighting and terrorism, but he could not. The fear is this. It is the signal we send out to the nondemocratic countries of the world, who are watching now as we change our Home Office to become the ministry of the interior, the Commissioner of Police to become the chief of police, then the Stasi and others begin to emerge. and people are locked up. That is very frightening. We must remember, too, that in this country we have, over many years, been accused of harbouring other people's terrorists: people who seek to overthrow governments.
It is a complete shambles. Almost 200 years ago today, the Earl of Abergavenny ran aground on the Shambles Bank and was wrecked. Yesterday, as your Lordships will know, was the nones of March, and the 15th is the ides of March. I turn to the noble and learned Lord the Lord Chancellor—the Nero of the Labour Benches—and say, "Beware!".
Viscount Brookeborough: My Lords, I hesitate to suggest that one of the reasons for the need for a sunset clause has not yet been mentioned. The fight against terrorism is not just a fight against the bombers: it is also a fight for the hearts and minds of the community from which they come.
If one accepts that the present statistics in the policing world are that members of that community are stopped more often on the street, are harassed more often, and therefore already feel themselves to be under siege, the worst thing we could possibly do would be to bring in such draconian measures—as we know we may in some way have to—without our having an exit strategy or an improvement strategy at a given date. I am most certainly unconvinced that, if we do not have it, the Government will be forced into doing this within the foreseeable future.
On the hearts and minds side, we have to satisfy those communities that we are not just interning those people we wish to intern. When someone may be
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suspected of being a bomber or a member of such an organisation, his family will not know about it. We have had that experience in Northern Ireland. They will not know about it; they will not understand it. They will have no idea. Will there be a possibility of the children going to school and saying, "Daddy was doing this last night"? Let us be realistic. They are not unprofessional in the terrorism that they carry out.
We find that when you take an action on suspects that may be seen as being unjust, with no exit strategy, the family become totally united against you and each one of those suspects and their families, like you or me, has maybe 100 or 200 friends. They will all believe that the action is totally unjustified because they believe that the person that they know could in no way he the suspect that we perceive them to be.
5 p.m.
That is very important. It is the other half of the fight against terrorism—it is the long-term fight against terrorism. We must show those people that we will try to prove what we are doing and limit it. Therefore, in their eyes, a sunset clause is not a big hope but it is a hope that we treat this legislation seriously and that we may amend it or totally renew it and not leave it sitting on the sidelines.
Lord Brennan: My Lords, the introduction of a sunset clause at some convenient and appropriate parliamentary time is necessary for Parliament to fulfil its essential duty to seek to make good law after reasonable consideration. I remind the House that, in December last year, the Judicial Committee of this House, in ringing tones, found that Part 4 of the antiterrorism Act of 2001 was in fundamental breach of civil liberties and human rights. I regret to say that that constitutes a blemish on the parliamentary activity that we engaged in on that Bill. Do we want to repeat the same mistake? Another blemish of a greater kind would surely lead to us not having clone our duty to seek to make good law. It is a duty after reasonable consideration.
If this Bill is passed by the Commons in due course under a guillotine and there is no sunset clause, the reality is that Parliament—in particular the House of Commons—will never have properly considered the content of this Bill. That is unacceptable. History will not readily forget nor easily forgive a failure of that kind by this Parliament. As regards this terrorism Bill and any additions to it, we in Parliament here arid in the other place must at some stage have our day and have our say.
Lord Stoddart of Swindon: My Lords, we must have this clause because it will lend a sense of urgency to the Government in bringing forward legislation which we can properly consider and indeed agree with. However, like the noble Lord, Lord Brennan. who has just spoken, I am concerned about the parliamentary process. I understand that the Commons will have only three hours to consider all the major amendments that we have made to the Bill so far, including the particular amendment that we are discussing. If that is

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so, it is monstrous that the House of Commons should be expected to consider the very substantial amendments that have been made here in such a short time.
Far from being able to discuss these amendments, there will hardly be time for the Minister to explain what they are about. All that Members of the House of Commons will have before them is what the Ministers say is before them. The Members of Parliament will have little or no opportunity to discuss the amendments and then they will have to vote without having discussed them. That is a monstrous situation. Indeed, it is a situation that should not exist in any democratic country.
I make this plea—and I hope that all other noble Lords will also make it—to the noble and learned Lord the Lord Chancellor. Will he go to the Commons to meet the Minister and, if necessary Prime Minister, to see whether the House of Commons—the elected House, the representatives of the people—can be given proper time, even if they have to go through the night, to consider all these vital amendments that have properly been made to the Bill in this House?
Lord Dubs: My Lords, I should declare an interest as a former chair of Liberty and, indeed, as a present member of Liberty. By the way, I should warn the office of Liberty to expect a large number of applications from members of the Conservative Party to join—and they will be welcome.
To be serious, I support the idea of a sunset clause, but I cannot see that November is a realistic date. It is simply putting pressure on the workings of government to deliver new legislation in a timetable that is unrealistic. I cannot go along with that. if my noble friend on the Front Bench cares to think about it, maybe he could come back and offer a much later date for a sunset clause to give the Government time to develop the legislation and have pre-legislative scrutiny so that both Houses of Parliament could then consider it.
That would be a sensible way forward, but I cannot support the November deadline. Everyone in this House knows that it is an unrealistic date. It just does not make any sense at all and I do not think that we can support it. My noble friend on the Front Bench might consider offering a later date at Third Reading so that we can then have a sensible period of time to develop new legislation.
Earl Ferrers: My Lords, the noble Lord, Lord Plant, made a penetrating observation when he said that one of the reasons for delaying the implementation beyond November is that private sector companies would have to be involved and that contracts would have to be drawn up and signed. That was a surprising piece of information. Will the noble Baroness give an assurance that private companies will not be involved?
Lord Thomas of Gresford: My Lords, I think that the noble Earl is saying Belmarsh today and Securicor tomorrow. I wish to make it clear from these Benches
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that there is nothing that I can add to the eloquence of my noble friend Lady Williams of Crosby, but we support this amendment entirely as it is drafted—with the date that is drafted.
Baroness Scotland of Asthal: My Lords, I will deal first with the comments of the noble Earl, Lord Ferrers, and my noble friend Lord Plant about the contracting out provisions, as I will refer to them. When those comments were first made by my noble friend Lord Plant, many in the House will have noticed the alarm and disbelief written large on my face. The whole basis of this Bill is that we are dealing with information of the highest possible sensitivity and it is of the utmost importance that information should be entrusted only to those who can be guaranteed not to relay—whether advertently or inadvertently—that information to those who might put this country and our citizens at risk. That remains the case.
However, light dawned when I came to consider the provisions that must be put in place in relation to electronic monitoring or tagging. The tagging procedures in relation to those who are made subject to a tagging order are carried out by contractors outwith Her Majesty's service. However, I assure your Lordships that the advice upon which we rely is not contracted out: it remains the advice received from the security services and indeed the police.
I would first like to thank the noble Lord, Lord Williamson, for the kind words that he directed to what I had to say. However, I sup with a long spoon when it comes to those compliments because I know that the noble Lord intends by so saying to say, "Disregard what the noble Baroness says on the matter because like a siren she will lure you on to the rocks". If only I had that ability.
So I will stick to the position where we are and return to the issues on which we agree. We agree that the orders that we are contemplating can be contemplated only in relation to a situation that arises in extremis. Although there is a small cadre of notable exceptions who dissent—the noble and learned Lord, Lord Lloyd, and on my Benches my noble friend Lady Kennedy and others—the Opposition and Liberal Democrat Front Benches agree that we need control orders in some form. That idea appears to be accepted.
It is accepted too that this country is in danger and subject to a threat. All of us in looking at the provisions are bearing that in mind, even where we may disagree. I agree too with the comments made by my noble friend Lady Hayman that there is much about which we do and can—and I hope we will, in the long term—agree.
It is generally accepted that November—if we were to have a sunset clause—would at the least be a challenging if not impossibly impracticable date for all the reasons that many noble Lords, not least my noble friends Lord Clinton-Davis, Lord Harris and Lord Plant and others on opposite Benches have outlined.
It is also correct that the Government have accepted that a review of the provisions is merited; reviews are now contained in Clause 13. I accept that the House's

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view as currently expressed in the debate urges the Government to go further by way of review. The reviews we have outlined in those provisions are the three-monthly report, the yearly report and the work of the identified reviewer. The Government have heard the House say that that does not go far enough and we need further and deeper review.
I take too the comments made by the noble Lord, Lord Waddington, and others, that members of the other place have not had as much opportunity to have their say as your Lordships. I take into consideration that the timeframe for the other place will therefore be limited. However, I invite your Lordships to bear in mind that there has been proper interest in the debates that have taken place in your Lordships' House. Indeed, your Lordships could not have failed to have noticed a number of Members from the other place who have with due diligence come to listen in person to what your Lordships have said.
Your Lordships can be assured that the content of the debates that have taken place in this House has been given the most anxious scrutiny by all of those who have come to deal with them. It is anticipated today that after Third Reading we will send the Bill back to the other place for further consideration. That will not only be consideration for the amendments but an opportunity to consider further the comments made by noble Lords—not least those made so ably by my noble friend Lady Hayman—about a different way forward.
My noble friend talked about an annual review and other provisions. I am not in a position at this stage to say anything that would give your Lordships an assurance that the Government can proffer a sunset clause. However, the Government will continue to consider these debates, together with all the debates we had yesterday; and the other place will also come to consider those matters again.
5.15 p.m.
Baroness Hayman: My Lords, before my noble friend sits down, I am grateful to her for mentioning what I said but accuracy is important here. She talked about a review: I talked about renewal. My bottom line is not just the opportunity but the necessity for both Houses of Parliament to consider formally whether such legislation should continue to be in place. That is different from a review and a debate on the report on the review.
Baroness Scotland of Asthal: My Lords, I hear what my noble friend says on that matter and I accept as she indicates that there is a difference between the two. But there is also an issue with which we should seriously grapple. We have spoken at length in the past couple of days about the possibility—nay, the necessity—of looking more keenly at provisions that could be brought forward in another Bill in relation to acts preparatory to terrorism. That is likely to take time. I do not want to repeat all the things I said yesterday, but your Lordships will recall that we went through the chronology.
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I am conscious that that which seems palatable when considering Part 4 becomes less palatable when we are considering control orders. When we come to consider acts preparatory I reasonably anticipate that that will appear slightly less palatable than it may now. Those are difficult issues with which we will have to deal.
I concur with those who say that we do not wish to be in a position similar to that in which we find ourselves now, being obliged to consider a sunset clause in relation to this Bill that will prematurely interrupt proper consideration in the long term.
Lord Clinton-Davis: My Lords, if my noble friend were to go slightly further and say that by February or March a sunset clause would be considered, I hope that the House would accept that. At the moment we have nothing whatever to offer.
Baroness Scotland of Asthal: My Lords, I accept and I hope that the House accepts that the Government are giving all these matters full consideration and will continue to do so. I am not in a position to say to my noble friend that the Government agree in relation to February or March, not least because we have come to the view that an arbitrary sunset clause would cause some difficulty because we do not know the precise timetable that would be necessary.
I hear keenly what my noble friend Lady Hayman says in relation to a renewal, which would enable a debate and a vote to take place. All I can say is that we hear that clearly. We do not believe that it is likely that the need for control orders will be extinguished in its entirety for all the reasons that we have debated. The majority of your Lordships have accepted that there will remain a small cadre of individuals who will not be able to go through the normal process of criminal prosecution because of the nature and quality of the evidence on which such a prosecution would have to rely. We heard some very powerful speeches last night from the noble Baronesses, Lady Park and Lady Ramsay, on the reasons why that is so.
I urge noble Lords not to provide in this Bill an arbitrary cut-off date—an arbitrary sunset clause—of 30 November, but to allow this Bill, and the review provisions contained in it, to stand. There will obviously be further consideration in the other place. If it is appropriate, this House will undoubtedly have an opportunity to consider that sunset clause again.
Lord Kingsland: My Lords, this matter has been very fully debated for the second time in 24 hours: so I can be extremely terse in my response. There are two issues for your Lordships. The first is, should there be a sunset clause at all? The second is, if so, when should it bite? On the first issue, the noble Baroness has not been prepared to give an undertaking that in another place the Government will introduce a sunset clause. So it is absolutely clear that if we do not put on to the statute book the principle of a sunset clause today, it will be dead.

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The merits of the principle have already been extremely well expressed by the noble Baroness, Lady Williams, and many others. It seems to me extraordinary that the Government are asking for an indefinite suspension of habeas corpus without regularly coming back to Parliament. That is all that needs to be said about the principle. I hope it is unimaginable that your Lordships would accept the Government's position in that respect.
As regards the question of timing, if we do pass a sunset clause it is always then open to the Government to alter the length of time in another place and then come back to us. So at the end of the day the noble Baroness, Lady Hayman, and the noble Lord, Clinton-Davis, may well both have their cake and eat it on this matter. It so happens, I believe, that the November date is absolutely the right one.
A long time ago the very great American songwriter, Richard Rodgers, wrote songs with the equally great librettist, Lorenz Hart. An admiring lady asked Richard Rodgers one day, "What is the source of your inspiration, Mr Rodgers? Is it your music or is it Mr Hart's wonderful lyrics?" He replied, "No, madam, it is the arrival of the monthly rent demand". Look at it this way. The November date is the monthly rent demand. It will concentrate the Government's mind like nothing else. I wish to test the opinion of the House.
5.23 p.m.
On Question, Whether the said amendment (No. 16) shall be agreed to?
Their Lordships divided: Contents, 297; Not-Contents, 110.

Division No. 3

CONTENTS

Ackner, L.

Bridges, L.

Acton, L.

Brittan of Spennithorne, L.

Addington, L.

Broers, L.

Alderdice, L.

Brooke of Sutton Mandeville,L.

Allenby of Megiddo, V.

Brookeborough, V.

Alliance, L.

Brougham and Vaux, L.

Alton of Liverpool, L.

Buscombe, B.

Ampthill, L.

Byford, B.

Anelay of St Johns, B.

Caithness, E.

Arran, E.

Cameron of Dillington, L.

Astor of Hever, L.

Cameron of Lochbroom, L.

Avebury, L.

Carlisle of Bucklow, L.

Bagri, L.

Carrington, L.

Baker of Dorking, L.

Cavendish of Furness, L.

Barker, B.

Chadlington, L.

Barnett, L.

Chan, L.

Bell, L.

Chelmsford, Bp.

Berkeley, L.

Chorley, L.

Blackwell, L.

Clement-Jones, L.

Blaker, L.

Clinton-Davis, L.

Bledisloe, V.

Cohen of Pimlico, B.

Bonham-Carter of Yarnbury, B.

Colville of Culross, V.

Boothroyd, B.

Colwyn, L.

Bowness, L.

Cope of Berkeley, L.[Teller]

Bradshaw, L.

Courtown, E.

Brennan, L.

Cox, B.

Bridgeman, V.

Craigavon, V.

664

Crathorne, L.

Kennedy of The Shaws, B.

Crickhowell, L.

Kimball, L.

Croham, L.

Kingsland, L.

Cuckney, L.

Knight of Dunphail, L.

Cumberlege, B.

Laing of Dunphail,L.

Dahrendorf, L.

Lamont of Lerwick, L.

Darcy de Knayth, B.

Lane of Horsell,L.

David, B.

Lang of Monkton, L.

Dean of Harptree, L.

Lawson of Blaby, L.

Denham, L.

Lester of Herne Hill, L.

Dholakia, L.

Lewis of Newnham, L.

Dixon-Smith, L.

Lindsay, E.

Donaldson of Lymington, L.

Linklater of Butterstone, B.

D'Souza, B.

Listowel, E.

Dundee, E.

Liverpool, Ep.

Dykes, L.

Liverpool, E.

Eccles of Moulton, B.

Livsey of Talgarth, L.

Eden of Winton, L.

Lloyd of Berwick, L.

Elliott of Morpeth, L.

Lucas, L.

Elton. L.

Ludford, B.

Erroll, E.

Luke, L.

Falkland, V.

Lyell, L.

Falkner of Margravine, B.

McColl of Dulwich, L.

Faulkner of Worcester, L.

MacCregor of Bearsden, L.

Fearn, L.

MacGregor of Pulham Market,

Feldman, L.

L.

Ferrers, E.

Mackay of Clashfern, L.

Flather, B.

Mackie of Benshie, L.

Fookes, B.

MacLaurin of Knebworth, L.

Forsyth of Drumlean, L.

Maclennan of Rogart, L.

Fowler, L.

McNally, L.

Fraser of Carmyllie, L.

Maddock, B.

Freeman, L.

Mallalieu, B.

Garden, L.

Mancroft, L.

Gardner of Parkes, B.

Mar, C.

Geddes, L.

Mar and Kellie, E.

Gilmour of Craigmillar, L.

Marlesford, L.

Glasgow, E.

Mayhew of Twysden, L.

Glenarthur, L.

Methuen, L.

Glentoran, L.

Michie of Gallanach, B.

Goodhart, L.

Miller of Chilthorne Domer, B.

Gordon of Strathblane, L.

Miller of Hendon, B.

Goschen, V.

Monson, L.

Greaves, L.

Monson, L.

Greengross, B.

Moran, L.

Greenway, L.

Morris of Bolton, B.

Hamwee, B.

Moser, L.

Hanham, B.

Murton of Lindisfarne, L.

Hanningfield, L.

Naseby, L.

Harris of High Cross, L.

Neill of Bladen, L.

Harris of Richmond, B.

Neuberger, B.

Hayhoe, L.

Newby, L.

Hayman, B.

Newton of Braintree, L.

Henley, L.

Northbourne, L.

Higgins, L.

Northesk, E.

Hodgson of Astley Abbotts, L.

Northover, B.

Hogg, B.

Oakeshott of Seagrove Bay, L.

Holme of Cheltenham, L.

O, Cathain, B.

Home, E.

O'Neill of Bengarve, B.

Hooper, B.

Onslow, E.

Hooson, L.

Oppenheim-Barnes, B.

Howard of Rising, L.

Oxford, Bp.

Howe. E.

Palmer, L.

Howe of Aberavon, L.

Park of Monmouth, B.

Howe of Idlicote, B.

Parkinson, L.

Howell of Guildford. L.

Patten, L.

Hunt of Wirral, L.

Paul, L.

Hurd of Westwell, L.

Pearson of Rannoch, L.

Hylton, L.

Perry of Southwark, B.

Inglewood. L.

Peston, L.

Irvine of Lairg, L.

Peyton of Yeovil, L.

James of Holland Park, B.

Phillips of Sudbury, L.

Jenkin of Roding, L.

Platt of Writtle, B.

Joffe, L.

Plummer of St. Marylebone, L.

Judd, L.

Portsmouth, Bp.

Kalms, L.

Prior, L.

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Prys-Davies, L.

Steinberg, L.

Quirk, L.

Stern, B.

Rawlings, B.

Stewartby, L.

Razzall, L.

Stoddart of Swindon, L.

Redesdale, L.

Strathclyde, L.

Rees, L.

Sutherland of Houndwood, L.

Rees-Mogg, L.

Swinfen, L.

Rendell of Babergh, B.

Taverne, L.

Renfrew of Kaimsthorn, L.

Tebbit, L.

Rennard, L.

Tenby, V.

Renton, L.

Thatcher, B.

Renton of Mount Harry, L.

Thomas of Gresford, L. [Teller]

Richardson of Calow, B.

Thomas of Swynnerton, L.

Roberts of Conwy, L.

Thomas of Walliswood, B.

Roberts of Llandudno, L.

Thomson of Monifieth, L.

Rodgers of Quarry Bank, L.

Tombs, L.

Rogan, L.

Tope, L.

Rogers of Riverside, L.

Tordoff, L.

Roper, L.

Trefgarne, L.

Rotherwick, L.

Trumpington, B.

Russell-Johnston, L.

Tugendhat, L.

Ryder of Wensum, L.

Ullswater, V.

Saatchi, L.

Valiance of Tummel, L.

Sainsbury of Preston Candover,

Vincent of Coleshill, L.

L.

Vinson, L.

St John of Fawsley, L.

Waddington, L.

Saltoun of Abernethy, Ly.

Wade of Chorlton, L.

Sandberg, L.

Wakeham, L.

Sanderson of Bowden, L.

Walker of Worcester, L.

Sandwich, E.

Wallace of Saltaire, L.

Scott of Needham Market, B.

Walmsley,

Seccombe, B.

Walpole, L.

Selsdon, L.

Walton of Detchant, L.

Sewel, L.

Warnock, B.

Sharman, L.

Watson of Richmond, L.

Sharp of Guildford, B.

Weatherill, L.

Sharpies, B.

Wedderburn of Charlton, L.

Shaw of Northstead, L.

Wilcox, B.

Sheldon, L.

Williams of Crosby, B.

Sheppard of Didgemere, L.

Williams of Elvel, L.

Shutt of Greetland, L.

Williamon of Horton, L.

Skidelsky, L.

Willoughby de Broke, L.

Slim, V.

Wilson of Tillyorn, L.

Smith of Clifton, L.

Windlesham, L.

Soulsby of Swaffham Prior, L.

Winston, L.

Steel of Aikwood, L.

Wolfson, L.

Wright of Richmond, L.

NOT-CONTENTS

Amos, B. (Lord President of the

Desai, L.

Council)

Dixon, L.

Andrews, B.

Donoughue, L.

Ashley of Stoke, L.

Drayson, L.

Ashton of Upholland, B.

Elder, L.

Bach, L.

Evans of Parkside, L.

Bassam of Brighton, L.

Evans of Temple Guiting, L.

Bhattacharyya, L.

Falconer of Thoroton, L. (Lord

Billingham, B.

Chancellor)

Borrie, L.

Farrington of Ribbleton, B.

Brett, L.

Filkin, L.

Brooke of Alverthorpe, L.

Finlay of Llandaff, B.

Brookman, L.

Gale, B.

Burlison, L.

Giddens, L.

Campbell-Savours, L.

Golding, B.

Carter, L.

Goldsmith, L.

Carter of Coles, L.

Goudie, B.

Christopher, L.

Gould of Brookwood, L.

Clark of Windermere, L.

Gould of Pottemewton, B.

Clarke of Hampstead, L.

Graham of Edmonton, L.

Condon, L.

Grocott, L. [Teller]

Corbett of Castle Vale, L.

Harris of Haringey, L.

Crawley, B.

Harrison, L.

Davies of Coity, L.

Hart of Chilton, L.

Davies of Oldham, L. [Teller]

Haworth, L.

Dearing, L.

Henig, B.

666

Hilton of Eggardon, B.

Morris of Manchester. L.

Hogg of Cumbernauld, L.

Nicol, B.

Howarth of Breckland. B.

Parekh, L.

Howells of St. Davids, B.

Pendry, L.

Howie of Troon, L.

Plant of Hightield, L.

Hoyle, L.

Ponsonby of Shulbrede, L.

Hughes of Woodside, L.

Powell of Bayswater. L.

Hunt of Chesterton, L.

Prosser, B.

Hunt of Kings Heath, L.

Radice, L.

Jones, L.

Ramsay of Cartvale, B.

Jordan, L.

Randall of St. Budeaux, L.

King of West Bromwich, L.

Rooker, L.

Layard, L.

Rosser, L.

Lea of Crondall, L.

Rowlands, L.

Leitch, L.

Sainsbury of Turville, L.

Lipsey, L.

Sawyer, L.

Lockwood, B.

Scotland of Asthal, B.

Lofthouse of Pontefract, L.

Simon, V.

McDonagh, B.

Smith of Leigh, L.

Macdonald of Tradeston, L.

Snape, L.

McIntosh of Haringey, L.

Strabolgi, L.

MacKenzie of Culkein, L.

Thornton, B.

Mackenzie of Framwellgate, L.

Tomlinson, L.

McKenzie of Luton, L.

Triesman, L.

Marsh, L.

Truscott, L.

Mason of Barnsley, L.

Tunnicliffe, L.

Maxton, L.

Turnberg, L.

Merlyn-Rees, L.

Wall of New Barnet, B.

Morgan of Huyton, B.

Warner, L.

Morris of Aberavon, L.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.38 P.M.
Lord Kingslandmoved Amendment No, 17:
Page 16, leave out lines 28 to 31
On Question, amendment agreed to.
Lord Kingslandmoved Amendment No, 18:
After Clause 13, insert the Following new Clause—
"REVIEW OF ACT

(1) The Secretary of State shall appoint a committee to conduct a review of the operation of this Act.

(2) A person may be a member of the committee only if he is a member of the Privy Council.

(3) There shall be five members of the committee of whom one each will be nominated by—

(a) the Prime Minister;

(b) the Leader of the Opposition in the House of Commons;

(c) the Leader of the Liberal Democrats in the House of Commons;

(d) the Convenor of the Crossbench peers in the House of Lords;

(e) the Lord Chief Justice of England and Wales.

(4) The Secretary of State may not refuse any nomination made under subsection (3).

(5) The committee shall complete a review and send a report to the Secretary of State—

(a) not earlier than the end of four months beginning with the day on which this Act is passed; and

(b) not later than the end of eight months beginning With the day on which this Act is Passed.

(6) The Secretary of State shall lay a copy of the report before Parliament as soon as is reasonably Practicable.

667

(7) The Secretary of State may make payments to persons appointed as members of the committee."

The noble Lord said: My Lords, Amendment No. 18 appears in a different group from Amendments Nos. 16, 17 and 20, but I have already spoken to its substance and about its relationship to the sunset clause. In my submission, the Privy Council committee is a crucial component of the sunset clause regime. I beg to move.
Baroness Scotland of Asthal: My Lords, we spoke about this in part in the last group. We have already indicated that we think these proposals are covered by provisions in the Bill. Amendment No. 18 creates a committee of Privy Counsellors to review the operation of the Act and report on it after four months and eight months. It would provide that the reports carried out by the committee created under Amendment No. 18 would consider the operational effectiveness of the legislation.
I have already set out that we believe in principle that the provisions in Clauses 18 and 19 are unnecessary for the reasons I have already given, because of the scheme already proposed by the Bill. In addition to that, there are already committees of the House with a remit in this area, including the Home Affairs Committee and the Joint Committee on Human Rights. Both have shown, and will undoubtedly continue to show, an active interest in the counter-terrorism legislation. There will therefore be review mechanisms in place, and an opportunity to consider the results. We believe these provisions provide an appropriate means of keeping the provisions under regular scrutiny.
I take account of the comments made by all noble Lords during the last debate, and I add those few comments in addition to explain why the Government feel this current position is sustainable.
Lord Kingsland: My Lords, this matter has already been substantially debated by your Lordships. I am most grateful to the Minister for what she has just said. As she is well aware, I totally disagree with her. In these circumstances, I beg to move.
On Question, amendment agreed to.
Lord Kingsland moved Amendment No. 19:
Insert the following new Clause—
"EFFECT OF REPORT

(1) A report under section (Review of Act) must consider the operation and effectiveness of the Act as a whole and any issues arising from the operation of individual control orders, and may make such recommendations as the committee sees fit including recommendations for future legislation.

(2) Any recommendation made under subsection (1) shall not affect the operation of section (Limitation)."

On Question, amendment agreed to.
Lord Kingslandmoved Amendment No. 20:
Insert the following new Clause—
"LIMITATION
This Act and any order made under it shall by virtue of this section cease to have effect on 30th November 2005."
On Question, amendment agreed to.
Clause 14 [General interpretation]:
Baroness Haymanmoved Amendment No. 21:
Clause 14, page 17, line 3, at end insert—
"(za) in relation to the preliminary hearing of proceedings relating to a control order means—

(i) in England and Wales, the senior district judge (chief magistrate) or another district judge (magistrates' courts) designated by him for the purposes of the Act;

(ii) in Scotland, the Sheriff of Lothian and Borders;

(iii) in Northern Ireland, such county court judge or resident magistrate as is designated by the Lord Chancellor."

The noble Baroness said: My Lords, I hesitate to say at this stage of our proceedings that the purpose of these amendments is to probe the Government. They are, however, to enable the House to have a brief debate on the proposal put forward by the noble Lord, Lord Carlile of Berriew, on Second Reading.
As the House is aware, the noble Lord was the reviewer of the Anti-terrorism, Crime and Security Act 2001. He accepts the need for control orders in a minimum number of cases, as I do myself. In his contribution on Second Reading he suggested a possible solution to the problem of how to bring in an element of judicial process to the initial making of the order before an appeal hearing. That could be appropriately addressed, he said, by putting that responsibility on the district judge.
The noble Lord pointed out that there is already a cadre of such judges who undertake responsibilities in extradition cases, for example, often in ex parte hearings, and certainly in hearings on renewal of detention for terrorist suspects being held on suspicion under Section 41 of the Terrorism Act 2000, where there are applications to extend the period of time for which they are held from the initial 48 hours to up to 14 days.
The attraction this proposal has for me is that we have heard from senior judges in this House, and elsewhere, that there is concern about the involvement of the High Court in two roles in this process; first, in the initial making of the order, and then in the review process. The proposal would restore the natural hierarchy of judicial decision-making, so that the initial decision was made by the judge at district level. We have now put into the framework of the Bill that, after the preliminary hearing, it will be normal procedure for the full review then to go to an appeal hearing at the High Court.
The proposal is put forward, as has been everything I have tried to put forward, in a way that seeks consensus. I am trying to explore with both the House and the Government whether this process, which would now include the non-derogating orders. would

669
be appropriate for those non-derogating orders, or, as my amendment says, for all orders. At the moment, we are dealing with a regime that treats all orders in the same way. I hope that, although I have spoken briefly, the import of these amendments is clear to the House, and I would be interested to hear responses to them. I beg to move.
Baroness Falkner of Margravine: My Lords, I too have put my name to this amendment, and wish to speak briefly to it. In doing so, I declare membership of the Joint Committee on Human Rights, and add that I concur completely with the committee's report, which was produced in difficult circumstances in great haste last week.
We have listened to the arguments carefully. Many of us are concerned by the divergence from due process, albeit in circumstances where we are told that there is a serious and substantial threat to the life of the nation. My position, instinctively and intellectually, is, like many others, to seek to insert judicial process and oversight in every clause. However, we hear from the Benches opposite of the need, in rare circumstances, to act speedily. Many of us were here last Thursday when, as the noble Baroness, Lady Hayman, has already mentioned, my noble friend Lord Carlile of Berriew sought to assist us with a more workable and practical way to deal with the initial stages where speed is required.
The position set out in the amendment would not only satisfy the arguments of the noble Baroness, Lady Hayman, but would also to some extent satisfy the Joint Committee on Human Rights. The committee said in its report, which was published last Friday, that it was not persuaded that there was no way in the present legal framework to deal with these issues. It said:
"If the security services or police are in possession of information suggesting that a person is involved in an imminent terrorist attack, there is already a power to arrest him on suspicion of involvement in an offence under the Terrorism Act 2000, and he can then be detained for up to 14 days without charge, during which time investigations can be carried out, evidence can be gathered and the person can be brought to court to determine whether a control order should be made pending the outcome of the criminal investigation".
In the light of the Government's opposition to the clauses that draw in judicial oversight across the board, these amendments seek to draw on a process that is already in place in the Terrorism Act 2000, and that is at least tried and tested.
Lord Donaldson of Lymington: My Lords, I fully understand the feelings of the noble Baroness, Lady Hayman, but this is not the natural order of proceedings. That approach is never used in civil work. True, it is the natural progression in criminal work, but in civil work you go to the High Court—or the county court, come to that—and say, "Look, I want a preliminary order because of the urgency. It is purely tentative, and we are asking for it in the absence of the other party. Please give us the order to protect the situation, and then we, the same court, will hold a full hearing as soon as possible that the defendant can attend". I think I am right in saying that that is the universal procedure in civil proceedings. The
670
amendment would considerably muddle the whole situation if it were passed, so I sincerely hope it will not be. I am in favour of judicial control all the way through, but not in a muddled way.
Lord Lloyd of Berwick: My Lords, I disagree with the noble and learned Lord, Lord Donaldson; I find the proposed amendment extremely attractive. if these were ordinary proceedings, of course the noble and learned Lord would be quite right, but they are not ordinary civil proceedings.
That being the case, it seems to me that much can be said for having the preliminary hearing before a judge at a lower level than the judge in the High Court who will hear the full hearing. There is a further advantage, certainly so far as concerns England, in that the senior district judge—the chief magistrate as he used to be called—has great experience in these matters. If there is going to be a large number of these applications, he will hear them all rather than some being heard by one High Court judge and some by another.
For those two separate reasons I think that a great deal can be said for the amendment.
Lord Cameron of Lochbroom: My Lords, perhaps I may direct your Lordships' attention to the provision that affects Scotland. Preliminary hearing proceedings relating to a control order would take place before the Sheriff of Lothian and Borders.
New Clause 2 defines the court as being the appropriate place to go. The definition at the end of the Bill states that the court in Scotland is the Outer House of the Court of Session, which now has a cadre of 24 judges, each of whom also has knowledge of criminal proceedings by virtue of being a member of the High Court of Justiciary.
In addition, the Inner House is the place to which appeal proceedings are taken in terms of the schedule. That will be governed by the rules of the Court of Session which the Lord President will make in relation to what is proposed under the Bill. His writ runs over the Court of Session and has nothing to do with the Sheriff of Lothian and Borders, who has a completely different jurisdiction.
So we would be creating an enormous problem. We would in fact be suggesting that in Scotland an application must always be made to one judge; namely, a junior judge, one who is not a member of the Court of Session. With the greatest deference to the noble Baronesses who proposed the amendment, I suggest that the provision would create a complete nonsense for Scotland. I make no comment on what would arise in England and Wales and Northern Ireland.
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I am grateful to my noble friend Lady Hayman for putting forward the suggestion, which, as she rightly says, was proposed by the noble Lord, Lord Carlile of Berriew. It is put forward very much in the spirit of trying to find a sensible solution.

671
The amendments would apply to derogating orders, in respect of which we already accept that there should be judicial involvement before an order is made. They would also apply to non-derogating orders, in respect of which the House has made amendments to the effect that there should be judicial involvement from the start. We do not accept the second proposition, but I shall address the issue on the basis that what is sought by this House is judicial involvement prior to the making of an order and before it comes into effect. Remember that there is still the third way of the noble and learned Lord, Lord Donaldson, of the Home Secretary making the order with leave to enforce it coming only from the courts.
The attractions of the route of my noble friend, Lady Hayman, and of the noble Lord, Lord Carlile, is that you have a group of existing judges who currently deal with matters akin to what is being sought here; namely, search warrants and extensions of time for detention by the police. The downside of what my noble friend suggests is that she talks of what the district judge does as being subject to review or appeal by a higher judge; namely, a High Court judge.
The way I see the proposal in relation to derogating orders proposed by the Government in the Bill and what this House has inserted in relation to non-derogating orders, is precisely how the noble and learned Lord, Lord Donaldson, puts the issue, which-is that you bring the matter before a judge. He takes a provisional view without having heard from the other side. Appeal is not the next stage; the next stage is a much more profound examination. That approach would strongly favour the first order being made by the same level of judge who makes the second order.
These orders are very significant in law terms. Ultimately, they should be made by a High Court judge and not by somebody below the level of a High Court judge. In those circumstances, I favour the approach being put forward by the noble and learned Lord, Lord Donaldson. It should be the High Court first, and then the High Court again, because of the significance of the orders and because it indicates that this is not about an appeal. This is about a provisional look, followed by a detailed look with both parties at the subsequent stage. I think that that provides the best protection, but I appreciate the spirit in which the amendment was put forward. I hope that what I have said has provided some assistance.
Baroness Hayman: My Lords, my noble friend has undoubtedly provided some assistance. The reason I hesitate slightly is because it seemed to me that he was conceding the significance of the orders and the need for a High Court judge to be involved in the orders—that is, all the orders, not just the derogating orders. That is a significant acceptance by our Front Bench about judicial involvement as a matter of principle rather than as a matter of necessity because of the votes of the House.
Putting that to one side, I am grateful for the Minister's response. I was interested in the opinion of the House. I am grateful that if I went down two to one
672
on the judicial view, at least one was willing to support me. I am more than happy to withdraw the amendment, not least because the last thing that I would want to do is to cause muddle in Scotland. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 22 to 24 not moved.]
The Deputy Speaker (Viscount Simon): My Lords, in the second Division this afternoon on Amendment No. 7, the number voting "Content" should have been 240, not 241 as previously announced.
Schedule [Control order proceedings etc.]:
Lord Kingslandmoved Amendment No. 25:
Schedule, page 19, line 30, leave out sub-paragraphs (2) to (4) and insert—
"( ) The relevant rules of court shall be made by the Lord Chief Justice after consulting the Lord Chancellor."
The noble Lord said: My Lords. I rise in the context of a serious political setback!
Amendments Nos. 25 and 26 were debated in some detail last night. I shall not repeat all the arguments I advanced. The amendments arise in the following context. Your Lordships have already decided to give the decision on whether a control order should be made to a judge in place of a politician; but there is no point in making that change unless the judge is in charge of a process that is truly judicial.
It is not enough simply to put the judge in charge of what is otherwise a political process. The amendment seeks to ensure that the context in which the judges will be operating is properly judicial. That context will be established by the rules of procedure of the High Court. In the Bill the Lord Chancellor is given the responsibility of establishing those rules after consulting the Lord Chief Justice. In our view that formula should be reversed. The Lord Chief Justice should establish the rules of the court after consulting the Lord Chancellor.
As I understand it, that will be the case in Scotland. The rules in Scotland will be made not by the chief executive or by a member of the Scottish Executive but by the Lord President. This amendment would put us on all fours with the situation north of the Border. Indeed, I think it would be inappropriate if a different approach were to be taken in England and Wales in contrast to Scotland.
We submit that the amendment is a vital component of the earlier decision we took about replacing the Secretary of State by a judge. I have no hesitation in recommending it to your Lordships. I beg to move.
6 p.m.
Lord Goodhart: My Lords, we too support the amendment moved by the noble Lord, Lord Kingsland. We feel it is very important that the making of the rules should be in the hands of the judiciary, and not be merely a matter of consultation. We also feel that it should be subject to parliamentary approval;

673
that will come with our Amendment No. 33, in a later group. However, on this point, we entirely support the amendment that has just been moved.
Lord Falconer of Thoroton: My Lords, we have talked about this before. I would strongly recommend that we do not vote on it at this stage. There are three reasons why the Lord Chancellor should make the rules on this particular occasion. First, the Bill is not talking about the Lord Chancellor making the rules in the long term. Only on the first occasion is he proposing that these rules be made.
Secondly, in the circumstances that currently exist—with the rules being put together quickly—there is much to be said for the Lord Chancellor taking responsibility for them at this stage. It is best that the Lord Chancellor commits himself, as I do, to ensuring that they are proper rules; rules to give a fair procedure, rules in respect of which he will consult with the Lord Chief Justice—as I am in the process of doing. It is most sensible that the Lord Chancellor should take that responsibility. If I cannot persuade noble Lords of that now, I hope I can persuade them that this is the best thing to do if I speak to them privately.
Thirdly, there is the matter raised by the noble Lord, Lord Goodhart. The noble Lord is right that these rules should he subject to parliamentary procedure. It is my intention— though I have not yet been able to transmit it to the noble Lord, Lord Goodhart, for which I apologise—to accept his later amendment in relation to parliamentary procedure. Because of the timing, because it is better that the Lord Chancellor takes the responsibility, and because there is to be a parliamentary procedure, I earnestly ask noble Lords not to press this matter to a vote. Under all the circumstances, it would not be appropriate.
Lord Forsyth of Drumlean: My Lords, before the noble and learned Lord the Lord Chancellor sits down, could he deal with something? I am rather bewildered by that response, although I welcome the parliamentary scrutiny which he said he will concede. Could he explain why it is all right for the Scots to have a judge determining this and why it can be done within the timetable in Scotland, but the same cannot be done in England? That was the point which my noble friend made. The implication of what the noble and learned Lord the Lord Chancellor is saying is that something would go wrong—given the urgency—if it were left to a judge, rather than to the Lord Chancellor. Where does that leave Scotland?
Lord Falconer of Thoroton: My Lords, it is not a matter for this Parliament to determine what the provisions of the rules of the Court of Session can be in Scotland. Thanks to devolution—and this is a good thing—we do not have power in practice to intervene in a devolved area; that is, we do have power but we should not exercise it. I am quite satisfied, on the basis of what I have been told, that the rules of court that will be made in Scotland will be entirely satisfactory.
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The pressure in timing is really here. All the initial orders are likely to be made in England and Wales. It is the timing which is so critical here.
Lord Lester of Herne Hill: My Lords, before the noble and learned Lord sits down, I gave notice to his office only this morning that I would ask whether there are draft rules that could be seen by the House. I was told that there were not. However, can the noble and learned Lord say whether there are draft rules in existence on which he is in the process of consulting the Lord Chief Justice? I think the noble and learned Lord just said that he was in the process of doing so. Is there some kind of draft which is being seen by the noble and learned Lord, Lord Woolf, at the moment?
Lord Falconer of Thoroton: My Lords, yes, there is. We are having to consult together on it. It is obvious to everybody in the House what the timing is, and obvious that England and Wales will be the focus of the initial orders. Everybody knows that the Part 4 powers come to an end on a particular date—which is next Sunday. The truth is that there are drafts which have been sent to the Lord Chief Justice. I do not want, at this stage, to show what the drafts are without there first being some consultation with the Lord Chief Justice, which I think is the appropriate way of dealing with it.
Lord Forsyth of Drumlean: My Lords, just before the noble and learned Lord sits down, while I do not wish to detain the House, this is an important matter. I cannot get my mind around why it can be right to have one set of rules which apply in Scotland, and another set of rules which apply in England on a matter which concerns terrorism. I keep being told by the noble Baroness, Lady Scotland, that it is not a devolved matter. I understand, of course, that the rules of court are a devolved matter, arising because of what the Government did in respect of devolution.
Surely, if we have different rules north and south of the Border—and different treatment of people who represent a threat to the whole of the United Kingdom—that would be nonsense. Surely, the rules should be the same north and south of the Border, insofar as is practicable. If the principle is that north of the Border it will be done by a judge—and, with all due respect to the Lord Chancellor, not by a politician— why does that principle not apply south of the Border? I cannot understand it.
Lord Falconer of Thoroton: My Lords, the rules are made by different bodies in Scotland and England. The significance of what is happening in England and Wales at present is that the urgency is greater there than in Scotland, because it would be anticipated that orders would need to be made first in England and Wales. I have absolutely no desire to make the rules in Scotland—indeed, I have agreed with the noble and learned Lord, Lord Cullen of Whitekirk, that he, as the Lord President, will do so there. They might well differ in their precise format from those in England and Wales. However, the basis on which we operate is that

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there is a separate legal system in Scotland from that in England and Wales. We propose —and it has not been broadly challenged in this House—that the separate legal systems should deal with the questions that the Bill poses to them. I strongly support the proposition that the precise procedure that they adopt—subject to the terms of the Act—is a matter for each individual jurisdiction to adopt. That has always been the position between England and Wales, and Scotland. I believe it should continue for a long time to come.
Lord Kingsland: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his response. On the question of equivalence between ourselves and Scotland, my noble friend Lord Forsyth has simply added great weight to the argument that I advanced when opening the debate on this amendment. The noble and learned Lord the Lord Chancellor says that this will be the first and only time that the rules will be made by the Lord Chancellor. That may be so; however, this is the Bill we are looking at now—and the first and only time is the way that the rules will be made in relation to the Bill. So, with great respect, I do not believe that that is an argument against our amendment.
On the contrary, the Bill is being put through with great speed. It is even more important that somebody standing outside the political process, such as the Lord Chief Justice, should be taking the lead as a check that the Government have got due process absolutely right. There is not a shred of evidence on the Bill that the Government have really paid any attention to due process. That is not really surprising, since the Bill was intended for a system under the Secretary of State, and not the judge. Yet now that the judge is there, it must follow— as night follows day—that we have a proper set of rules, made by our most senior judge. Despite what the noble and learned Lord the Lord Chancellor generously said about Amendment No. 33, I wish to test the opinion of the House.
6.8 p.m.
On Question, whether the said amendment (No. 25) shall be agreed to?
Their Lordships divided: Contents. 232; Not-Contents, 130.

Division No. 4

CONTENTS

Ackner, L.

Bowness, L.

Addington, L.

Bradshaw, L.

Alliance, L.

Bridgeman, V.

Alton of Liverpool, L.

Brittan of Spennithorne, L.

Ampthill, L.

Brooke of Sutton Mandeville, L.

Anelay of St Johns, B.

Brookeborough, V.

Astor of Hever, L.

Brougham and Vaux, L.

Avebury, L.

Buscombe, B.

Barker, B.

Byford, B.

Beaumont of Whitley, L.

Caithness, E.

Bell, L.

Carlisle of Bucklow, L.

Blackwell, L.

Carrington, L.

Blaker, L.

Cavendish of Furness, L.

Bonham-Carter of Yarnbury, B.

Chadlington, L.

676

Chan, L.

Lane of Horsell, L.

Chorley, L.

Lang of Monkton, L.

Clement-Jones, L.

Lawson of Blaby, L.

Colville of Culross, V.

Lester of Herne Hill, L.

Colwyn, L.

Lewis of Newnham, L.

Cope of Berkeley, L. [Teller]

Lindsay, E.

Courtown, E.

Linklater of Butterstone, B,

Cox, B.

Liverpool, E.

Craigavon, V.

Livsey of Talgarth, L.

Crathorne, L.

Lloyd of Berwick, L.

Crickhowell, L.

Lucas, L.

Cuckney, L.

Ludford, L.

Cumberlege, B.

Luke, L.

Darcy de Knayth, B.

Lyell, L.

Dean of Harptree, L.

MacGregor of Pulham Market,

Denham, L.

L.

Dholalcia, L.

Mackay of Clashfern, L.

Dixon-Smith, L.

Mackie of Benshie, L.

Dundee, E.

MacLaurin of Knebworth, L.

Dykes, L.

Maclennan of Rogart, L.

Eccles of Moulton, B.

McNally, L.

Eden of Winton, L.

Maddock, B.

Elliott of Morpeth, L.

Mancroft, L.

Elton, L.

Mar, C.

Erroll, E.

Mar and Kellie, E.

Falkland, V.

Marlesford, L.

Falkner of Margravine, B.

Mayhew of Twysden, L.

Fearn, L.

Methuen, L.

Feldman, L.

Michie of Gallanach, B.

Ferrers, E.

Miller of Chilthorne Domer, B.

Rather, B.

Miller of Hendon, B.

Fookes, B.

Montrose, D.

Forsyth of Drumlean, L.

Morris of Bolton, B.

Fowler, L.

Murton of Lindisfarne, L.

Freeman, L.

Naseby, L.

Garden, L.

Neill of Bladen, L.

Gardner of Parkes, B.

Neuberger, B.

Geddes, L.

Newby, L.

Glasgow, E.

Northbrook, L.

Glenarthur, L.

Northesk. E.

Glentoran, L.

Northover, B.

Goodhart, L.

Oakeshott of Seagrove Bay, L.

Goschen, V.

O'Cathain, B.

Greaves, L.

O'Neill of Bengarve, B.

Griffiths of Fforestfach, L.

Onslow, E.

Hamwee, B.

Oxford, Bp.

Hanham, B.

Palmer, L.

Hanningfield, L.

Parkinson, L.

Harris of High Cross, L.

Patten, L.

Harris of Richmond, B.

Pearson of Rannoch, L.

Hayhoe, L.

Perry of Southwark, B.

Henley, L.

Peyton of Yeovil, L.

Higgins, L.

Phillips of Sudbury, L.

Hodgson of Astley Abbotts, L.

Plant of Highfield, L.

Hogg, B.

Platt of Writtle, B.

Holme of Cheltenham, L.

Plumb, L.

Home, E.

Plummer of St. Marylebone, L.

Hooper. B.

Prior, L.

Hooson, L.

Rawlings, B.

Howard of Rising, L.

Razzall, L.

Howe, E.

Redesdale, L.

Howe of Aberavon, L.

Rees-Mogg, L.

Howe of Idlicote. B.

Renfrew of Kaimsthorn, L.

Howell of Guildford, L.

Rennard, L.

Hunt of Wirral, L.

Renton, L.

Hurd of Westwell, L.

Renton of Mount Harry, L.

Hylton, L.

Richardson of Calow, B.

Inglewood, L.

Robert of Conwy, L.

James of Holland Park, B.

Robert of Llandudno, L.

Jenkin of Roding, L.

Rodgers of Quarry Bank, L.

Kalms, L.

Rogan, L.

Kennedy of The Shaws, B.

Roper, L.

Kimball, L.

Rotherwick, L.

Kingsland, L.

Russell-Johnston, L.

Knight of Collingtree, B.

Ryder of Wensum, L.

Lamont of Lerwick, L.

Saatchi, L.

677

Sainsbury of Preston Candover,

Thomas of Gresford, L.[Teller]

L.

Thomas of Swynnerton, L.

St John of Fawsley, L.

Thomas of Walliswood, B.

Saltoun of Abernethy, Ly.

Thomson of Monifieth, L.

Sandberg, L.

Tombs, L.

Sanderson of Bowden, L.

Tope, L.

Scott of Needham Market, B.

Tordoff, L.

Seccombe, B.

Trefgarne, L.

Selsdon, L.

Trumpington, B.

Sharman, L.

Tugendhat, L.

Sharp of Guildford, B.

Ullswater, V.

Sharples, B.

Vallance of Tummel, L.

Shaw of Northstead, L.

Vinson, L.

Sheppard of Didgemere, L.

Wade of Chorlton, L.

Shutt of Greetland, L.

Wakeham, L.

Slim, V.

Wallace of Saltaire, L.

Smith of Clifton, L.

Walmsley, B.

Steel of Aikwood, L.

Warnock, B.

Steinberg, L.

Watson of Richmond, L.

Stern, B.

Wedderburn of Charlton, L.

Stoddart of Swindon, L.

Wilcox, B.

Strathclyde, L.

Williams of Crosby, B.

Sutherland of Houndwood, L.

Williamson of Horton, L.

Swinfen, L.

Willoughby de Broke, L.

Taverne, L.

Wilson of Dinton, L.

Tebbit, L.

Windlesham, L.

Thatcher, B.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Golding, B.

Allenby of Megiddo, V.

Goldsmith, L.

Amos, B. (Lord President of the

Gordon of Strathblane, L.

Council)

Goudie, B.

Andrews, B.

Gould of Brookwood, L.

Ashton of Upholland, B.

Gould of Potternewton, B.

Bach, L.

Graham of Edmonton, L.

Bassam of Brighton, L.

Griffiths of Burry Port, L.

Bernstein of Craigweil, L.

Grocott, L.[Teller]

Bhatia, L.

Harris of Haringey, L.

Bhattacharyya, L.

Harrison, L.

Billingham, B.

Hart of Chilton, L.

Bledisloe, V.

Haskel, L.

Borrie, L.

Haworth, L.

Brett, L.

Hayman, B.

Brooke of Alverthorpe, L.

Henig, B.

Brookman, L.

Hilton of Eggardon, B.

Burlison, L.

Hogg of Cumbernauld, L.

Campbell-Savours, L.

Hollis of Heigham, B.

Carter, L.

Howarth of Breckland, B.

Carter of Coles, L.

Howells of St. Davids, B.

Chelmsford, Bp.

Howie of Troon, L.

Christopher, L.

Hoyle, L.

Clarke of Hampstead, L.

Hughes of Woodside, L.

Clinton-Davis, L.

Hunt of Chesterton, L.

Corbett of Castle Vale, L.

Hunt of kings Heath, L.

Crawley, B.

Jones, L.

David, B.

Jordan, L.

Davies of Coity, L.

King of West Bromwich, L.

Davies of Oldham, L. [Teller]

Layard, L.

Dearing, L.

Lea of Crondall, L.

Desai, L.

Leitch, L.

Dixon, L.

Lipsey, L.

Donoughue, L.

Lockwood, B.

Drayson, L.

Lofthouse of Pontefract, L.

Dubs, L.

McDonagh, B.

Elder, L.

Macdonald of Tradeston, L.

Evans of Parkside, L.

McIntosh of Haringey, L.

Evans of Temple Guiting, L.

McIntosh of Hudnall, B.

Farrington of Ribbleton, B.

MacKenzie of Culkein, L.

Faulkner of Worcester, L.

Mackenzie of Framwellgate, L.

Filkin, L.

McKenzie of Luton. L.

Gale, B.

Mason of Barnsley, L.

Gibson of Market Rasen, B.

Maxton, L.

Giddens, L.

Merlyn-Rees, L.

Gilbert, L.

Mitchell, L.

678

Morgan of Drefelin, B.

Scotland of Asthal, B.

Morgan of Huyton, B.

Sewel, L.

Morris of Aberavon, L.

Simon, V.

Parekh, L.

Smith of Leigh, L.

Patel, L.

Snape, L.

Pendry, L.

Stone of Blackheath, L.

Ponsonby of Shulbrede, L.

Tenby, V.

Prosser, B.

Thornton, B.

Radice, L.

Tomlison, L.

Ramsay of Cartvale, B.

Triesman, L.

Randall of St. Budeaux, L.

Truscott, L.

Rendell of Babergh, B.

Tunnicliffe, L.

Renwick of Clifton, L.

Turnberg, L.

Rooker, L.

Turner of Camden, B.

Rosser, L.

Wall of New Barnet, B.

Rowlands, L.

Walton of Detchant, L.

Royall of Blaisdon, B.

Warner, L.

Sainsbury of Turville, L.

Whitty, L.

Sawyer, L.

Williams of Elvel, L.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.20 p.m.
Lord Goodhartmoved Amendment No. 26:
Page 20, line 5, leave out "by the Lord Chancellor"
On Question, amendment agreed to.
[Amendment No. 27 not moved.]
The Deputy Speaker: My Lords, I must advise noble Lords that if Amendment No. 28 is agreed to, I cannot call Amendments Nos. 28A to 32, due to pre-emption.
Lord Thomas of Gresfordmoved Amendment No. 28:
Page 20, line 10, leave out paragraph 4 and insert—
"4 Rules of court in the exercise of the relevant powers must comply with the United Kingdom's obligations under Article 6 of the European Convention on Human Rights, and in particular, must—

(a) ensure that the relevant party and his legal representatives are given notice of all control order proceedings and relevant appeal proceedings and are able to attend for the duration of those proceedings, make representations, question witnesses and call evidence subject to the provisions in sub-paragraph (d) below;

(b) ensure that the Secretary of State supplies to the relevant party and his legal representatives at the commencement of control order proceedings, a summary of the allegations made against him;

(c) make provision for the exclusion of evidence in control proceedings which the Secretary of State knows or reasonably suspects has been obtained by torture in any jurisdiction;

(d) secure that the Secretary of State is required for the purposes of any control order proceedings or relevant appeal proceedings to disclose to the relevant court and, subject only to the court's discretion on an application ex parte by the Secretary of State for public interest immunity, to a relevant party any relevant material which may harm or assist the relevant party's case:

(e) ensure that the proceedings shall be determined with a hearing unless all the parties agree to it being determined without a hearing."

The noble Lord said: My Lords, the noble and learned Lord, Lord Ackner, said earlier today that the legal system had been distorted by this Bill. This

679
amendment and Amendment No. 28A, in the name of the noble Lord, Lord Kingsland, attempt to put into the Bill the idea of due process. We have done half the job by ensuring that judges take the decisions and not the Secretary of State; the other half is to ensure that the rules of court reflect the need for a fair trial.
In Amendment No. 28 we have set out, first, that the rules,
"must comply with the United Kingdom's obligations under Article 6 of the European Convention on Human Rights".
We say that potentially it can be a breach of civil obligations and of a person's right to have a fair trial if the provisions in the Bill do not comply with that article.
The amendment is not intended to be exhaustive, but intended to set out some of the important aspects of due process. By looking at sub-paragraph (a), your Lordships will see that we consider it important that,
"the relevant party and his legal representative"
should be
"given notice of all control order proceedings and relevant appeal proceedings",
so that he can
"attend … make representations, question witnesses and call evidence subject to the provisions of sub-paragraph (d)"—
which provisions are on disclosure. I will come to that in a moment.
The second sub-paragraph deals with the necessity for the Secretary of State to provide,
"to the relevant party and his legal representatives — a summary of the allegations made against him".
It is clearly fundamental that a person knows the nature of the charge that he is facing before an order is made depriving him of his liberty.
The third sub-paragraph deals with an issue that we discussed late last night—torture. A recent decision of the Court of Appeal that part of the common law of England was that evidence obtained by torture in a foreign jurisdiction is admissible came as a great shock to lawyers who practise in this country. I believe that the matter is to be discussed in the Judicial Committee of the House of Lords. We seek to take advantage of these provisions to ensure that the evidence that goes before the court is not tainted by having been obtained by torture, whether in Uzbekistan, Guantanamo, Abu Ghraib or any other place appearing as a disgrace upon the traditions and history of the common law and, in particular, of the common law of this country.
Your Lordships will recall that in Abu Ghraib, for example, the defence advanced by those convicted of engaging, essentially, in torturing prisoners was that they had been instructed to "soften up" those prisoners for the purposes of interrogation. If you accept that a fundamental human prohibition, such as that against torture, can be broken once, then it is far easier to do so a second time, a third time, and so on. That atmosphere seems to have crept in for those engaged in interrogation as a result of the wars that we have had in Afghanistan and Iraq.
680
The breach of a taboo, of a fundamental human right, is easier the second time. For example, when the prevention of terrorism Bill 2001 was before this House, we spent not three days but nine days discussing every aspect. In particular we discussed the derogation from Article 5. Now we come to it again and everybody shrugs their shoulders: "Well, we have done it once, we can do it again".
So it is with Article 6. I had an assurance from the noble and learned Lord, the Lord Chancellor, last night that a derogation will not be sought. However, if such a derogation was sought at any time—that the provisions of a fair trial should not apply to these procedures—then, "Do it once, it is easier a second time", and the committee of public safety can take over. At the end of the day, the right to a fair trial is then severely diminished. So, sub-paragraph (c) makes an important point.
Sub-paragraph (d) deals with disclosure. Over many years the practice has developed that in a criminal case the prosecution freely disclose material coming into its possession that is exculpatory—if it assists the defence or harms the prosecution. The provision contained in the Bill in no way permits that. The noble and learned Lord the Lord Chancellor said last night that it is a fundamental matter that exculpatory material would be revealed to the court. Why then is it not in the Bill? Why do the words used in the Bill suggest otherwise? Therefore, sub-paragraph (d) is important.
As for sub-paragraph (e), why does the Bill suggest that there could be proceedings determined without a hearing? Certainly proceedings can be determined without a hearing if both parties agree, but surely not if one party—namely, the "relevant person" under the Bill— is not present or disagrees and wants a full hearing.
I do not pretend that this is an exhaustive list. One of our great problems—I hesitate to repeat the point—is that there is so little time to draft things that nothing is perfect. These are illustrations of the vital role that Article 6 should play in the proposed proceedings, both the preliminary and the full hearings. I beg to move.
6.30 p.m.
Lord Judd: My Lords, we should all be immensely grateful to the noble Lord, Lord Thomas of Gresford, for having returned to this issue at the Report stage. In our deliberations on the Bill, there has been a great deal of concentration on Article 5, of course, establishing what are the human rights that are there to be protected. But that is of no value unless the legal processes for ensuring that that happens are in place. Therefore the amendment is crucially important in principle and in practice.
I am particularly glad that the noble Lord has returned to the issue of torture. We cannot repeat at Report stage the lengthy debate we had at a very late hour last night, but perhaps I may make, very quickly, a couple of points. First, as we have been reminded already in the Report stage, if we are to win the war—if one may use that unfortunate analogy—against

681
terrorism, hearts and minds are crucial. If there is any question that torture is in any way related to a decision to take action against an individual, that is to hand a propaganda weapon to the leaders of the more extreme elements. It is a recruiting agent for the extremists. We can argue about how we do things until the cows come home, but to do something as counter-productive as that would be disastrous when it is within our control not to do it. That is my first point.
My second point is that in relation to all the decency that we are trying to protect in our society, torture is unthinkable. Therefore, in principle, it can have no place.
My third point, which I wish to emphasise, is that it is well known that evidence secured under torture is likely to be highly unreliable. Therefore, if we were concerned about the validity of the decisions that were being made by the court, or the propositions that were being put to the court by the Home Secretary, it would be very foolish if evidence which was in any way, as the noble Lord, Lord Thomas of Gresford, put it, tainted by torture were to be central to the case. It would be an unreliable element right at the centre of the things that were being done.
For those reasons—and, of course, there are others—I am grateful personally to the noble Lord, Lord Thomas of Gresford, for having returned to this point. I hope the House will take it very seriously. If I am allowed to say so—I said so last night—the Joint Committee on Human Rights, of which I am a member, came to a very firm conclusion on these issues. It believed that it was very urgent that steps should be taken by the Government to bring us into line with what has been recommended by the United Nations Committee against Torture—which is that the Government should make it quite plain that nowhere, anywhere, will torture, directly or indirectly, be acceptable.
Lord Lester of Herne Hill: My Lords, I wish to make two points, one on torture and the other on due process. I was party to the recommendation of the Joint Committee on Human Rights, to which the noble Lord, Lord Judd, has just referred. Of course, that gives effect to the obligations already imposed on Parliament, the Government and the judiciary in international law by the torture convention. The only reason the Court of Appeal decided the torture convention could be put into the waste paper basket, effectively, was that it has not been incorporated into domestic law.
I am normally a bad prophet, but I prophesy that the Law Lords, if the Government do not accept the amendment, will decide that the Court of Appeal was wrong and that certainly the use of torture in evidence would breach the convention and would be contrary to the law of the country. The great virtue of the amendment is that it would put the matter beyond doubt and give effect to our treaty obligations under the torture convention. That is my first point.
As to my second point on due process, the noble Baroness, Lady Ashton of Upholland, will remember that during the Inquiries Bill the noble and learned
682
Lord, Lord Howe of Aberavon, pressed the Government for due process in the rule making. The Government, commendably and very sensibly, agreed that there should be on the face of the Bill, in the rule-making power, a recognition that the rules had to give effect to the overriding necessity for fairness. In this Bill, for some reason, that has not been put into the rule-making power, and yet it is dealing with something much more serious than the Inquiries Bill—it is dealing with the determination of important civil rights and obligations once control orders have finality.
I should be grateful if the Government would think very carefully indeed about that point. I see no good reason why the need for fairness in the rule-making power should not be written into this Bill, whether spelt out in this amendment—which I would support—or in some other way. If not, it will be very strange indeed that the rule-making power can have regard to all kinds of things but not the overriding necessity for fairness. I would be grateful if thought could be given to that in the response to the amendment.
Baroness Park of Monmouth: My Lords, I simply make the point that, when we hear the noble Lord, Lord Judd, and a number of others, it sounds more and more as if we practice torture, and we do not. That should be made very clear because the public—including the public about whom the noble Lord, Lord Judd, is worried—would be entitled to think that they have to fear that from this country, and they do not.
This is something that happens elsewhere and, when we are expressing these concerns, it has to be made very clear that we are not suggesting that it is a rational expectation or fear here.
Lord Judd: My Lords, before the noble Baroness sits down, perhaps I may make the point that in no way was I suggesting that we use torture. I was suggesting that if in decisions we were making information which had become available because of torture elsewhere was being used, this would be to hand the extremists a propaganda weapon.
Lord Clinton-Davis: My Lords, not for the first time, I support the arguments adduced by my noble friend Lord Judd. I do so on several grounds. Evidence acquired by torture is totally unreliable and, for that reason, it ought to be no part of our law.
The argument adduced by the noble Baroness, Lady Park, is wholly irrelevant, in my respectful submission. Of course torture is excluded by our own practice, but if the Home Secretary were to come to the view that, however unlikely, torture may have been used, that should be excluded. In other words, if the Secretary of State knows, or ought to have known, that torture had taken place—it does not matter in what jurisdiction—it should be omitted from our considerations.
Although it was a minority occasion, I am afraid that I was not totally convinced by the noble and learned Lord, Lord Falconer, last night. It may be that he has had second thoughts. I hope so. I have so far

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referred exclusively to sub-paragraph (c) of the amendment and I hope that he will consider that, in any event. any question of torture ought to be excluded.
As to the other points that have been raised, I go along with what the noble Lord, Lord Thomas of Gresford, said. The provisions of the amendment would undoubtedly improve the situation that we are now considering.
Lord Lloyd of Berwick: My Lords, this is an important amendment because its purpose is to ensure that the subject in these novel proceedings should have a fair trial. It would, of course, be the duty of the court to ensure that the suspect had a fair trial in any event. That has always been the way in which we have conducted our judicial proceedings. It would also be obliged to apply Article 6 of the Human Rights Act, quite apart from this amendment. Perhaps the noble Lord, Lord Thomas of Gresford, could confirm whether these are civil proceedings, as they are supposed to be, or criminal proceedings, as they seem more nearly to be, when he comes to reply.
It is good that the main provisions of Article 6 of the convention should be set out in this clear way, including sub-paragraph (6), which, of course, is not strictly covered by Article 6. Setting them out like this will do much to reassure the public, who may not be intimately acquainted with the precise provisions of Article 6. I strongly support the amendment.
Lord Carlisle of Bucklow: My Lords, while fully accepting, understanding and agreeing with the principle which the noble Lord, Lord Thomas of Gresford, is trying to achieve, I am concerned about some of the wording of this particular amendment, and whether it is obtainable as the noble Lord has expressed it.
As a general question, does the noble Lord consider that the preliminary hearing is a control order proceeding? I should have thought it must be, because it comes under these proceedings. If so, then, with the greatest respect, the Liberal Democrats' amendments are totally self-contradictory. In the rules which the noble Lord is saying must now be made, it specifically says that they must,
"ensure that the relevant party and his legal representatives are given notice of all control order proceedings and relevant appeal proceedings and are able to attend".
Yet if one goes to new Clause 2(2), which the Liberal Democrats introduced earlier today, they say it shall be the duty of the court,
"to hold an immediate preliminary hearing".
They go on to say:
"The preliminary hearing under subsection 1(a) may be held in the absence of the individual in question; without his having notice of the application for the order; and without his having been given an opportunity (if he was aware of the application) of making any representations".
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Unless it is made clear that the control order proceedings only apply to a full hearing rather than the preliminary hearing, what they are trying to do on the face of this Bill is totally self-contradictory.
It is not realistic to believe that the sort of principles which the noble Lord, Lord Thomas of Gresford, is setting out could be achieved in a preliminary hearing which will, of its very nature, be immediate and quick, as has been accepted on all sides.
I query this amendment in one or two other respects. I share with the noble Lord, Lord Thomas of Gresford, the view that we should do everything, by regulation and rules, to make the hearing as near to a normal hearing of a criminal trial as possible. We have all agreed that, and the House has passed an amendment which provides that these proceedings should not come into being unless the Director of Public Prosecutions is satisfied that there is no possibility of a reasonable trial.
It is almost inevitable that there is going to be certain evidence which must be excluded from the defendant. Yet the wording and tone of these amendments is that an application being made to exclude certain evidence would somehow be the exception rather than the rule. Inevitably, once one gets to the situation where one is going for a control order—having decided an ordinary trial is not possible—it is likely that there will be evidence which is not available.
6.45 p.m.
Furthermore, but along the same lines, if one looks at the matters which must be covered by the regulations, they allow representatives to question witnesses. The trouble is that, in many of these cases, the one thing one will not be able to do is disclose the name or identity of the witness giving evidence. That is why one is having these proceedings in the first place: to do so might put people at risk.
It is sadly unrealistic to suggest that one can have rules which must ensure that the relevant party—that is, the person against whom the application has been made—is entitled to question witnesses. Equally, I question whether it is realistic to say, as it does in subparagraph (d), that he is entitled to disclose any
"relevant material which may harm or assist the relevant party's case".
In this type of procedure there will be some areas that we will be unable to cover. Therefore, while I think we should do everything we can to get as close to the rules of a normal criminal trial as possible, we must think further to see what is achievable and what is not. That may be another argument for having more time on this Bill.
I notice something in this Bill that is not referred to elsewhere within it. If the evidence the Secretary of State has is exculpatory of the individual then, in that case, that evidence should clearly be provided to him. When it is said that the evidence should be of a kind that may harm the party's case, it is not realistic to require rules to be made which require that disclosure, or the right to question those witnesses.
Viscount Bledisloe: My Lords, will somebody enlighten us as to the relationship between this amendment and Amendment No, 28A, which has so far not been mentioned at all and does not appear to be grouped?
Amendment No. 2—with commendable brevity, instead of going into virtually three quarters of a page—says in two lines that the rules of court must comply with our obligations under Article 6. Either that comprehends all that the noble Lord, Lord Thomas of Gresford, has set out at length—and therefore what he has set out is unnecessary —or, as I suspect, quite a lot of what the noble Lord has set out in the amendment goes further than that required by Article 6. That has been demonstrated by the cogent point just made by the noble Lord, Lord Carlisle of Bucklow.
If we just have a provision that we must obey Article 6, then it may be—I do not know, because I am glad to say that I am no expert on the European Convention on Human Rights—that there are qualified circumstances under which we can derogate from these things. Either the noble Lord, Lord Thomas of Gresford, goes further than Article 6—in
which case he should not be allowed to do so—or he is merely replicating parts of Article 6, in which case he is unnecessarily cluttering the statute book.
Lord Kingsland: My Lords, perhaps this would be a convenient moment for me to rise, since Amendment No. 28A has been tabled by the Opposition.
I was delighted to see the smile of pleasure on the face of the noble and learned Lord the Lord Chancellor when the noble Lord, Lord Thomas of Gresford, corrected the description of the noble and learned Lord from Chancellor to Lord Chancellor. I therefore look forward with a keen sense of anticipation to the vote that will take place in your Lordships' House on the fifteenth of this month, when we will be considering whether the Lord Chancellor should or should not remain a Member of your Lordships' House.
I can deal with this issue fairly briefly. We are deep into the detail of due process. The Government's solution is set out in paragraph 4 of the schedule to the Bill. It is, in our submission, wholly inadequate and certainly does not conform with the stipulations of Article 6.
I come now to the question posed by the noble Viscount, Lord Bledisloe. Our Amendment No. 28A would remove paragraph 4, sub-paragraphs (1) to (5) from the Bill. We agree with much of the detail set out in the amendment of the noble Lord, Lord Thomas of Gresford, in particular the provisions on torture. I pay tribute to the noble Lord, Lord Judd, who spoke most eloquently about that last night, in particular, and as effectively as ever today, although rather more succinctly. Nevertheless, the solution set out in the amendment of the noble Lord, Lord Thomas, is, to us, partial. We believe that the right approach is for the noble Lord, Lord Thomas, to withdraw his amendment in favour of our Amendment No. 28A.
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That would require the Lord Chief Justice to deliver a set of rules which, at the very minimum, conformed with Article 6 of the European convention.
We have added a set of braces to our belt. We know from the exchanges that took place between the noble and learned Lord the Lord Chancellor and the Liberal Democrat Benches that the noble and learned Lord now accepts Amendment No. 33. That being so, once the noble and learned Lord the Lord Chief Justice has drafted these rules, your Lordships will have an opportunity of looking at them in the context of Amendment No. 33, in the name of the noble Lord, Lord Goodhart, to ensure that the standard of protection given to the prospective control party is the right one.
Lord Falconer of Thoroton: My Lords, this very important group of amendments is concerned with the rules of court and with torture. The first part of the proposals of the noble Lord, Lord Thomas of Gresford, is intended to ensure that the rules of court made comply with Article 6 of the convention. We accept that they must, whether they are made by the Lord Chief Justice or the Lord Chancellor. If they do not, they can be struck down in accordance with the Human Rights Act 1998. So there is already legal protection in relation to the rules. We also submit that it is unnecessary in those circumstances to include the amendment of the noble Lord, Lord Thomas of Gresford.
A fundamental point which everybody recognises is the extent to which you can disclose to the suspect and his legal representative material which underlies or plays a part in the case against the suspect brought by the state. It is not without interest that with regard to every single one of the people in Belmarsh, evidence that was not revealed to the suspect or his legal adviser was involved. In every case, evidence that was kept secret from the suspect was involved.
It is worth setting out what the procedure in the SIAC cases involved because cases under this part of the Bill will be similar. Open evidence—that which is available to all—is disclosed to the appellant and to the special advocate at a relatively early stage in the process. So the applicant or the suspect, his legal adviser and the special advocate all see the material. It is worth emphasising that the applicant or the suspect does not just have a legal adviser; he or she also has the special advocate to look at the material.
The open evidence disclosed to the applicant, his legal adviser and the special advocate enables the special advocate to discuss the open evidence with the applicant before the special advocate sees the closed evidence. The proposition is that once the special advocate has seen the closed evidence, he or she cannot talk to the applicant or their legal representative because they may inadvertently give the information which, if the applicant or his or her legal representative finds it, might endanger national security in some way.

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The closed evidence is then provided to the special advocate. Following that, the Rule 38 process, as it is described, begins. That procedure tests whether it is appropriate for all the closed evidence put forward by the Secretary of State to remain closed. The special advocate may ask for disclosure to the appellant of some of the closed evidence—that is, that some closed evidence should be made open. In all such cases, every piece of evidence is considered separately although decisions on some pieces of evidence can be made only in the context of the evidence as a whole.
There is a process of discussion between the special advocate and the Secretary of State. The Secretary of State's counsel takes instructions and advice from the relevant departments and agencies and tries to bottom out what the sensitivities are and whether the evidence could, in truth, be disclosed to the applicant and thereby made open. Usually agreement is reached between the special advocate and the Secretary of State on most issues concerning whether to make closed evidence open. Often this agreement is by way of a compromise. For example, it may be safe to put a redacted version of the particular piece of closed evidence into the open evidence or the gist of the closed evidence may be prepared for disclosure to the applicant even though the closed evidence remains closed. If agreement cannot be reached, then the court is asked to rule on it. So it is a probing process, designed to ensure that as much evidence as possible is made available to the suspect and his legal representative.
In parallel, machinery has developed for ensuring that any relevant unused material is not held back from SIAC. The balanced approach taken by the Secretary of State to assembling the evidence for cases should ensure that any relevant material which may be exculpatory is not concealed. But to ensure that that is the position, procedures have been put in place to check all the material to ensure that no exculpatory material has been overlooked. Because of the volume of the material, it has been impracticable for the special advocate to perform this task. Obviously, the suspect and his legal representatives could not do so. Consequently, the Secretary of State has put in place a mechanism whereby all other accessible material concerning the suspect is checked by the Secretary of State's counsel to see whether there was any exculpatory material. If so, this material would be provided to the special advocate.
Following the provision of such material to the special advocate, there is further consideration by the special advocate and SIAC—in this case it would be the High Court—regarding whether any of the material should be made open and disclosed to the suspect. This procedure ensures that even where additional unused material remains completely closed, the court is put fully in the picture and can ultimately decide on the fairness of the proceedings. It is worth emphasising, therefore, that all exculpatory material must be made available by the Secretary of State; he has processes involving counsel which means that an independent member of the Bar checks whether there
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is any exculpatory material. If there is, he or she alerts the Home Secretary who then makes it available to the special advocate who is there in practice to ensure a fair process.
This is a very detailed process which is designed to deal with the fundamental problem which everybody who has looked at the situation agrees exists of allowing a fair process but ensuring that there is no damage to national security.
Lord Lester of Herne Hill: My Lords—
7 p.m.
Lord Falconer of Thoroton: If I can just finish this point, I shall come back to the noble Lord.
It is worth recalling the concerns expressed yesterday by the noble Baroness, Lady Park of Monmouth, and by my noble friend Lady Ramsay. They have much greater experience than anybody else in this Chamber. First, my noble friend the Lady Ramsay of Cartvale:
"I am extremely worried and disturbed at how intelligence material in general and interception material in particular is being advocated by some noble Lords as suitable for disclosure in court proceedings … That would be an extremely serious blow to any intelligence or law enforcement service".—[Official Report. 7/3/ 05; col. 601.]
The noble Baroness, Lady Park of Monmouth, said:
"Frankly, if such agents see this sort of thing happening in courts, and defence counsel—quite properly, given the interests of their client—revealing what should not be revealed, then we shall not have any agents … It is also one of the more serious aspects of terrorism that it is extremely difficult to find people with access, courage, determination and lasting power. We should not overlook the fact that they too have rights. They need to be protected—and need that protection more, I fear, than the person who would be on trial".—[Official Report, 7/3/05; col. 604.]
The noble Lord, Lord Carlile of Berriew, looked at this matter from an objective standpoint, and he made precisely the same point as has been made by the noble Baroness, Lady Park of Monmouth, and by my noble friend. He said specifically that if the material was disclosed to the suspect and his legal representative, then there would be danger. It is worth pointing out that in every one of the Belmarsh cases, the judge agreed that there was some material that could not be disclosed to the suspect or his legal representative. However, in relation to all that material, that suspect would have the benefit of a special advocate.
That is the procedure, but is it fair or just? Can justice be done in relation to that? This is the view of the SIAC procedure on whether it is fair, in the case of A—which went to the House of Lords, but not on this point:
"The proceedings are as fair as could reasonably be achieved. It is true that the detainees and their lawyers do not have the opportunity of examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection. In addition, in deciding upon whether there has been compliance with Article 6 it is necessary to look at the proceedings as a whole (including the appeal before this court). When this is done and the exception in relation to national security, referred to in Article 6, is given due weight, I am satisfied there is no contravention of that article".

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He returned to the issue again in the case of M:
"Individuals who appeal to SIAC are undoubtedly under a grave disadvantage. So far as it is possible this disadvantage should be avoided or if it cannot be avoided minimised. However, the unfairness involved can be necessary because of the interests of national security. The involvement of a special advocate is intended to reduce (it cannot wholly eliminate) the unfairness which follows from the fact that an appellant will be unaware at least as to part of the case against him.
We feel this case has additional importance because it clearly demonstrates that, while the procedures which SIAC have adopted are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice. It is wrong, therefore, to undervalue the SIAC appeal process".
Whoever makes the rules in relation to this process is going to make them similar to those which applied in relation to SIAC. They have to comply with Article 6. Noble Lords can if they wish believe, because it is deportation proceedings, that different rules of fairness would have applied. I think it extraordinarily unlikely that the courts would have taken that view in relation to a procedure that involved, by the time the Court of Appeal looked at it, somebody having been in prison for three years. It would be little comfort to be told that these are deportation proceedings and therefore different.
Lord Maclennan of Rogart: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for giving way. He has been at great pains to show how considerable the thinking of the Government has been behind this. If material is not disclosed to the suspect, is it then not possible for the special advocate to form a view about what the possible answers might be which would render the evidence much less persuasive, such as a complete alibi, or a mistaken identity of some evidence?
Secondly, is it not inconceivable that a court, if presented with the Government's statement that the disclosure of evidence would be contrary to national security, would not seek to substitute the judge's view about that? How could he, and what possible evidence could he bring to bear? These two points make it possible that the suspect could have fair treatment in some circumstances, but in others, just as possibly, he could not. It is for that reason that one has to look for remedies which protect the suspect's interests as well as national security.
Lord Falconer of Thoroton: My Lords, there are two stages that one needs to address. The noble Lord, Lord Maclennan, is right that if there is material which you cannot tell the suspect about because it endangers national security, there is plainly the possibility that you have not obtained from the suspect instructions that would deal with it. On the other hand, I do not think that people who have looked at it dispute the proposition that it would be dangerous to give that to the suspect, for national security reasons. I take one utterly obvious example: suppose there is an informant who is right at the heart of a terrorist cell, and that if you reveal a particular sequence of events, you almost inevitably reveal the name of the informant. That
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informant has proved reliable in the past, and you need the control order to prevent an atrocity. What do you do?
The solution that has been reached is that you give as much as you possibly can to the suspect and his lawyer, but in relation to the material that you cannot, because of the risk it poses, you allow a special advocate to question whether it should be given to the suspect. If the special advocate accepts that it cannot be given to the suspect, then he will test it. The courts say it is not perfect, but there is a balance to be struck in relation to the interests of the suspect and the needs of national security. It is not just that we, the Government, submit that it is the right balance to be struck, it is one that the courts have said is okay.
Lord Wedderburn of Charlton: My Lords—
Lord Falconer of Thoroton: My Lords, I suggest that the noble Lord, Lord Lester of Herne Hill, who I unfairly cut off, comes first.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor. He referred to the independent special advocates. He is certainly right in saying that they are independent and, if I may say so, they are outstandingly able. I commend the Government on the way in which they have been appointed, but this body of men and women have special expertise in whether the SIAC procedures have worked fairly. Is he consulting, and has he consulted, the body of special advocates, on the basis of their practical experience, on whether improvements can be made to the SIAC procedures? If so, what representations have they made?
I am not talking about the special advocate who resigned, but about those who have remained in posts and seek to be as fair as possible. What representations has he received or will he be receiving? That is surely a body of people whose opinions really matter, in the sense that they have been trying to work the system, and I am sure they will have a contribution to make. Please tell us something about that.
Lord Falconer of Thoroton: My Lords, I agree entirely with what the noble Lord has said. Special advocates have made detailed representations to the Attorney-General—not to me, because the Attorney-General appoints them. However, I have seen the detailed representations and the special advocates have gone through a number of areas where they believe more support is needed. I shall not go through every single one that they have given because I went through them in detail in the Constitutional Affairs Select Committee. On behalf of the Government, we did not accept every single point that they made, but we accepted, in practice, the substance of the points.
At the heart of their legitimate concern was the fact that they were not given enough support, which resulted in three points: first, there was not an instructing solicitor in the Treasury Solicitor's Department who was cleared to see the closed material that they saw; secondly, there was no one from whom

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they could take advice in relation to the material that they were given; and, thirdly, they did not have access to the vast body of decisions that SIAC had made in relation to various legal and factual issues, which it would be helpful to see.
We need to remedy all of those points. I said to the Select Committee that we are minded to propose a number of remedies, for example, ensuring that they have a proper instructing solicitor, but before we do that, we want to consult the special advocates themselves.
Lord Wedderburn of Charlton: My Lords, I am grateful to the noble and learned Lord. I wanted to ask exactly the same question as the noble Lord, Lord Lester. After that last exchange, I shall now put a residual point. The work of the special advocates has been described, quite rightly, by the noble Lord, Lord Lester, as remarkable. Taking account of the fact that, in such circumstances, there will be information that cannot be disclosed, surely, even in the light of the amendments to the procedures described by the noble and learned Lord, it would not be right to give the House the impression that, although special advocates who do not resign are happy with the situation, they are completely happy?
Lord Falconer of Thoroton: My Lords, I do not know whether they are completely happy. Those who are staying on have made specific points in writing to the Government and we have sought to address them. Having addressed those points, we want their views on our proposals.
This is a difficult situation, but we need to craft a solution to it. What should we do to the Bill? Paragraph 4(2) on page 20 sets out the provisions that give effect to and allow for the special advocates. I make it clear, as I have already done, that that is all subject to Article 6.
The amendment tabled by the noble Lord, Lord Thomas of Gresford—quite separately from the very powerful points that the noble Lord, Lord Carlisle of Bucklow, made that it was inconsistent with the new Clause 2 of the Bill—takes bits of Article 6, throws in some of the language of the Bill, and that is the provision. It seems to me that that would be unhelpful and misleading as a basis on which to say that the procedure applies.
I respectfully submit that the best way is, first, to accept that Article 6 applies, as the Government make clear today through me and as I made clear yesterday, and, secondly, to respect the process that has been put in place and allow rules to be made that will reflect that procedure, which is paragraph 4(2). There is one problem, which the noble Lord, Lord Kingsland, specifically raised yesterday, and that is the exculpatory material, which is the paragraph 4(3)(c) point. The noble Lord, Lord Kingsland, rightly said that could mean that a situation could be reached in which the Secretary of State was not obliged to produce exculpatory evidence. I accept that he must produce exculpatory evidence, but he must produce it
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to the court and the special advocate in the first instance. I hope that it can be given to the suspect and his legal representation, but if it cannot, then it has to be treated in the same way as the other material that comes before the process.
I hope that that satisfies the noble and learned Lord, Lord Mayhew of Twysden, who raised the matter yesterday, and the noble Lords, Lord Carlisle of Bucklow and Lord Kingsland. I have an amendment that makes it clear that that can happen.
7.15 p.m.
Lord Mayhew of Twysden: My Lords, I am very grateful to the noble and learned Lord for giving way. He has reassuringly described the practice that obtains at the moment. Like last night, I ask why cannot that be explained in the Bill, in place of sub-paragraph (3)(c), so that it is plain on the face of the Bill. The words,
"that the Secretary of State is not required … to disclose anything to … any other person, where he does not propose to rely on it",
do not extend to giving him permission to sit on exculpatory material, save, in the very rare case when it will be necessary to obtain the approval of the court for such a course. Why cannot that be set out on the face of the Bill? If that could be done, it would be very reassuring to those who read it.
Lord Falconer of Thoroton: My Lords, perhaps I can consider whether that needs to be done between now and Third Reading, which will take place in a few hours' time. It seems to me to be a perfectly sensible suggestion. It would make it clear that the Secretary of State has to disclose the material to the court and to the special advocate. The difficulty arises if the court then says, "You have to show it to the suspect", and then, no doubt, the Secretary of State will decide what to do about it.
At the moment, I cannot see a reason why I should not put it on the face of the Bill. No doubt I shall be told some good reason, but I shall take advice and come back to the matter at Third Reading.
I hope that I have reassured the noble Lord, Lord Thomas of Gresford. I earnestly hope that the noble Lord will recognise, in the light of what the Court of Appeal has said, that to press on with this amendment will simply lead to confusion and provide no added protection. The noble Lord, Lord Thomas of Gresford, has not yet indicated whether he accepts broadly that the process that I have described is the best and appropriate process.
Lord Thomas of Gresford: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for everything that he has said. I shall turn to his questions to me in a moment.
The question of what is a fair trial is variable. It depends on the type of trial, on the issues to be considered, and on the way in which a judge or a tribunal approaches the task. However, there are certain basics to a fair trial. In the amendment I have endeavoured to set out what I believe should be the

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basics in these types of proceedings; namely, that there should be notice of the proceedings given to the person concerned; that he should have a summary of the allegations—not the evidence, but what he is charged with; that he should have the right to make representations; that he should have the right to cross-examine witnesses; and that he should have the right to call evidence. That is as far as the amendment goes.
I repeat that I have not attempted to put into the amendment, by reason of the very special nature of these proceedings, anything about evidence. I appreciate that this is a very difficult and sensitive area and, of course, I pay tribute to the speeches last night of the noble Baroness, Lady Ramsay—
Lord Falconer of Thoroton: My Lords, of course, everyone agrees that a summary should be provided. Am I right in saying that paragraph 4(d) of the amendment is the only circumstance in which the noble Lord believes that material can be kept from the suspect in the legal process; namely,
"on an application ex parte by the Secretary of State for public interest immunity"?
So you are saying, "Do not use the special advocate procedure; just use this particular procedure and none other". If that is right, what the noble Lord proposes is something that would not allow the existing procedures, which have been held to be fair, to be used.
Lord Thomas of Gresford: My Lords, I very rarely accuse the noble and learned Lord the Lord Chancellor of being impatient, but I shall come to that point in a very short time, for obvious reasons. I started by saying that what is a fair trial varies between the different types of issues. Certainly in the case of deportation, the matter has been ruled on twice by the Court of Appeal—not by the Judicial Committee of the House of Lords—which has been satisfied in that type of proceedings with the special advocate system. The procedures before SIAC have also been approved at certain levels.
Let me remind your Lordships what SIAC means. It means the Special Immigration Appeal Court. We use the initials SIAC without really understanding to what area of law they refer. One of the peculiarities of the procedures which resulted in people being locked up in Belmarsh was that they were immigration procedures, and it was open at any time to an inmate of Belmarsh to leave this country, provided that he could find a country which would accept him.
The special advocates have been developed in that context—the Special Immigration Appeal Court. They have never been developed in the criminal courts. Yet there is, of course, sensitive material coming before the courts in terrorist cases all the time. Not just in terrorist cases but in drugs cases: wherever there is surveillance, wherever there are techniques and wherever there is danger to informers and to operatives in the field. Every day, in many criminal courts throughout the country, this type of evidence is produced.
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How is it dealt with? The mechanism has been developed whereby sensitive material is disclosed to the judge, who rules first of all upon whether it may be disclosed in any form to the defence, if it is relevant. Secondly, he rules how it should be redacted—in other words, what should be cut out of it—in order for the defence to see it. That is the way in which sensitive material is dealt with in criminal courts. When we come to this type of procedure therefore—the making of control orders in the High Court, as it now is—I do not see why we are bound slavishly to follow the system that was developed for the Special Immigration Appeal Court.
Lord Falconer of Thoroton: My Lords, two points follow from that. First, the noble Lord does not want the special advocate procedure at all. Secondly, if the judge says that it has to be disclosed, then obviously the Secretary of State has to make his choice. However, if it cannot be disclosed on national security grounds, then it cannot be used.
The noble Lord is therefore saying that it cannot be used, even though in relation to every single one of the cases that material was critical in making a decision.
Lord Thomas of Gresford: My Lords, the judge who is considering this material has the interests of the public at heart. That is why he is there. He is a public officer and he is clearly concerned to carry out a balance between the safety of the public and the rights of the defendant. Very often a judge will ensure that the material which is before him is not released. It is only when he says, "In my opinion, carrying out the balance between the public safety and the rights of the defendant, the rights of the defendant prevail", and the prosecution say, "In those circumstances we disagree with you, judge", that a prosecution is withdrawn. The judge does not sit there thinking to himself, "Forget about the public, forget about safety". That is his function in all these terrorist trials.
It is the noble and learned Lord the Lord Chancellor and the Government who say that the first way in which we should deal with terrorism is to bring them to court. If we bring them to court, we are not introducing special advocates in the criminal courts; we will be dealing with it along the lines of the system I have described. Sensitive material will be placed before the judge for a ruling.
If it can be done in a situation where there is enough evidence to say that a person really is a terrorist and you will prosecute him for that, and there is sensitive material which the judge will see, why can it not be done when the Home Secretary says, "We do not have enough material to make sure that he is a terrorist, but we have little bits and pieces. We have an intercept here; we have hearsay from over there; we have some very interesting evidence obtained by torture in Guantanamo. We can put all that together. We do not have a case, but this is so secret that we cannot disclose it to a High Court judge"? It is nonsense that that sort of differential should be brought forward from the Special Immigration Appeal Court—dealing with

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people who by definition are not citizens of this country—to deal with British citizens appearing in the High Court.
If there is enough evidence to prosecute them, therefore, the sensitive material is dealt with as it normally is—through public interest immunity applications. If there is not enough, we have to have special advocates brought in to deal with it. It is complete nonsense.
I do not like the special advocate procedure—and I am not alone. Two special advocates have resigned, saying that they could not do their job. They had to guess what their instructions would be when they saw some of the material that was secret. They could not go back to the client. They were not trusted, even obliquely, to ask, "Do you have anything to say about the fact that you were in…"—wherever it was—"on a particular day? Could you have been somewhere else?" or "Tell me where you were on that day". They cannot even do that.
The nine special advocates who reported and gave written evidence to the Constitutional Affairs Select Committee, which your Lordships will recall I read out at Second Reading, are not happy with it either. Nor is my noble friend Lord Carlile of Berriew, who made recommendations in a report a year ago and who said, in his current report which was published two weeks ago, that nothing had happened about the recommendations he made a year ago. He was calling then for more support for special advocates, and for the involvement of experienced criminal advocates instead of lawyers who are trained in administrative law. Nothing was done.
The noble and learned Lord the Lord Chancellor has not addressed at all the vital issue of torture, which was the central matter debated on this amendment. Nothing has been said about that. We heard what he said yesterday. It is totally unsatisfactory.
It is said that my amendment is unhelpful and misleading; that it would sow confusion and there would be no added value by having this amendment. I do not believe that is true. I believe that people should know that the rules which are to be formulated, and which would be subject to a resolution of both Houses of Parliament, should contain these principles. I do not suggest that it is the be-all and end-all and that everything is included in this amendment, but it gives the idea of precisely the sorts of areas that should be covered. It underlines the necessity for putting Article 6 on the face of the Bill and not for it to be said, "Of course these rules will comply with Article 6".
Why do I say that it is necessary to put it on the face of the Bill and for these particular provisions to be on the face of the Bill? Because the concept of a fair trial differs, depending upon the issue with which you are concerned.
My Lords, I am not happy with the reply that I have received and I propose to seek the opinion of the House.
7.30 p.m.
On Question, Whether the said amendment (No. 28) shall be agreed to?
Their Lordships divided: Contents, 76; Not-Contents, 123.

Division No. 5

CONTENTS

Addington, L.

Michie of Gallanach, B.

Alliance, L.

Miller of Chilthorne Domer, B.

Avebury, B.

Neill of Bladen, L.

Barker, B.

Neuberger, B.

Bonham-Carter of Yarnbury, B.

Newby, L.

Bradshaw, L.

Northover, B.

Brittan of Spennithorne, L.

Oakeshott of Seagrove Bay, L.

Clement-Jones, L.

Oxford, Bp.

Dholakia, L.

Parekh, L.

Dykes, L.

Phillips of Sudbury, L.

Erroll, E.

Plant of Highfield, L.

Falkand, V.

Portsmouth, Bp.

Falkner of Margravine, B.

Razzall, L.

Fearn, L.

Redesdale, L.

Garden, L.

Rennard, L.

Glasgow, E.

Roberts of Llandudno, L.

Goodhart, L. [Teller]

Rodgers of Quarry Bank, L.

Greaves, L.

Roper, L. [Teller]

Greengross, B.

Russell-Johnston, L.

Hamwee, B.

Sandberg, L.

Harris of Richmond, B.

Scott of Needham Market, B.

Haskins, L

Sharp of Guildford, B.

Holme of Cheltenham, L.

Shutt of Greetland, L.

Joffe, L.

Smith of Clifton, L.

Judd, L.

Steel of Aikwood, L.

Laird, L.

Stoddart of Swindon, L.

Lamont of Lerwick, L.

Thomas of Gresford, L.

Lester of Herne Hill, L.

Thomas of Walliswood, B.

Linklater of Butterstone, B.

Thomson of Monifieth, L.

Livsey of Talgarth, L.

Tope, L.

Lloyd of Berwick, L.

Tordoff, L.

Ludford, B.

Turner of Camden, B.

Mackie of Bendshie, L.

Valiance of Tummel, L.

Maclennan of Rogart, L.

Wallace of Saltaire, L.

McNally, L.

Walmsley, B.

Maddock, B.

Watson of Richmond, L.

Mar and Kellie, E.

Wedderbum of Charlton, L.

Methuen, L.

Williams of Crosby, B.

NOT-CONTENTS

Ackner, L.

Chorley, L.

Acton, L.

Clarke of Hampstead, L.

Amos, B. (Lord President of the

Corbett of Castle Vale, L.

Council)

Crawley, B.

Ampthill, L.

Davies of Oldham, L. [Teller]

Andrews, B.

Desai, L.

Ashton of Upholland, B.

Dixon, L.

Bach, L.

Donaldson of Lymington, L.

Bassam of Brighton, L.

Donoughue, L.

Bernstein of Craigweil, L.

Drayson, L.

Billingham, B.

D'Souza, B.

Blackstone, B.

Dubs, L.

Borrie, L.

Elder, L.

Borrie, L.

Evans of Parkside, L.

Brett, L.

Evans of Temple Guiting, L.

Brooke of Alverthorpe, L.

Falconer of Thoroton, L. (Lord

Brookman, L.

Chancellor)

Burlison, L.

Farrington of Ribbleton, B.

Cameron of Lochbroom, L.

Faulkner of Worcester, L.

Campbell-Savours, L.

Filkin, L.

Carter, L.

Fyfe of Fairfield, L.

Carter of Coles, L.

Gale, B.

Chan, L.

Gibson of Market Rasen, B.

697

Giddens, L.

McIntosh of Haringey, L.

Gilbert, L.

MacKenzie of Culkein, L.

Golding, B.

Mackenzie of Framwellgate, L.

Goldsmith, L.

McKenzie of Luton, L.

Gordon of Strathblane, L.

Mar, C.

Goudie, B.

Mason of Barnsley, L.

Gould of Brookwood, L.

Maxton, L.

Gould of Potternewton, B.

Merlyn-Rees, L.

Graham of Edmonton, L.

Mitchell, L.

Grantchester, L.

Morgan of Drefelin, B.

Grenfell, L.

Morris of Aberavon, L.

Griffiths of Burry Port, L.

O'Neill of Bengarve, B.

Grocott, L.[Teller]

Pendry, L.

Harris of Haringey, L.

Ponsonby of Shulbrede, L.

Harrison, L.

Ramsay of Cartvale, B.

Hart of Chilton, L.

Randall of St. Budeaux, L.

Haskel, L.

Rendell of Babergh, B.

Haworth, L.

Rooker, L.

Hayman, B.

Rosser, L.

Henig, B.

Rowlands, L.

Hilton of Eggardon, B.

Royall of Blaisdon, B.

Hogg of Cumbernauld, L.

Sainsbury of Turville, L.

Hollis of Heigham, B.

Scotland of Asthal, B.

Howells of St, Davids, B.

Sewel, L.

Howie of Troon, L.

Simon, V.

Hoyle, L.

Smith of Leigh, L.

Hughes of Woodside, L.

Snape, L.

Hunt of Chesterton, L.

Stone of Blackheath, L.

Hunt of Kings Heath, L.

Thornton, B.

Jones, L.

Tomlinson, L.

King of West Bromwich, L.

Triesman, L.

Layard, L.

Truscott, L.

Lea of Crondall, L.

Tunnicliffe, L.

Leitch, L.

Turnberg, L.

Lewis of Newnham, L.

Wall of New Barnet, B.

Lipsey, L.

Warner, L.

Lockwood, B.

Whitaker, B.

Lofthouse of Ponterfract, L.

Whitty, L.

Macdonald of Tradeston, L.

Williamson of Horton, L.

Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.40 p.m.
Lord Kingslandmoved Amendment No. 28A:
Page 20, line 11, leave out from beginning to end of line 3 on page 21 and insert—
"( ) The rules of court must comply with the United Kingdom's obligations under Article 6 of the European Convention on Human Rights."
The noble Lord said: My Lords, in the previous debate on Amendment No. 28 I said everything that I needed to say about Amendment No. 28A; in particular, the government scheme set out in paragraph 4 to the schedule falls below the standards that we would expect from Article 6 of the convention. At the same time, the amendment in the name of the noble Lord, Lord Thomas of Gresford, was partial.
In our view, the right approach is to leave it to the Lord Chief Justice to make the rules; for the Lord Chief Justice to bring the rules to your Lordships' House; and for your Lordships' House to consider them under the affirmative resolution procedure which I understand the noble and learned Lord has said he would agree to. I beg to move.
Lord Thomas of Gresford: My Lords, we on these Benches support the amendment. We have some
698
regrets that Her Majesty's loyal Opposition were unable to support the proposal spelt out in detail in the previous amendment, but we bear them no grudge.
Lord Falconer of Thoroton: My Lords, I would seriously ask the noble Lord, Lord Kingsland, and the noble Lord, Lord Thomas of Gresford, to think for a moment. The reason why paragraph 4 is in that form is to make it clear that whoever makes the rules has the power to include in them the special advocate procedure. It places the matter beyond doubt. because it would be unusual for rules of the High Court to permit that unusual procedure unless there was clear statutory authority.
I respectfully suggest to the noble Lords, Lord Kingsland and Lord Thomas of Gresford, that I will agree to write in the Bill that the provision has to comply with Article 6 if the noble Lord, Lord Kingsland, does not move to delete the vital bits of paragraph 4 that provide for a fair procedure; in effect, leave paragraph 4 as it is and I will write Article 6 compliance in the Bill. That is a sensible way forward. I earnestly ask noble Lords to consider sensibly what would be a fair procedure.
Lord Kingsland: My Lords, I am most grateful to the noble and learned Lord for his response: and in particular for his suggestion, at an earlier stage, that he would be inclined to withdraw paragraph 4(3)(a). Nevertheless, I am sorry to say that I feel compelled to press my amendment. The amendment will not in any way prevent the Lord Chief Justice, after consultation with the Lord Chancellor, from having a system such as the noble and learned Lord suggested.
We entirely accept that there are circumstances in which the sources of evidence and the techniques by which evidence is gained need to be protected. There is nothing to prevent the Lord Chief Justice putting that in his rules. If there is anything that would prevent him it could only be the fact that they did not comply with Article 6. If they did not comply with Article 6, the noble and learned Lord the Lord Chancellor would not be able to put it in the rules himself, since he, himself, has accepted that the rules have to comply with Article 6. With great respect to the noble and learned Lord, his argument against this sensible proposal carries no weight. I wish to test the House's opinion.
7.44 p.m.
On Question, Whether the said amendment (No. 28A) shall be agreed to?
*Their Lordships divided: Contents, 173; Not-Contents, 110.

Division No. 6

CONTENTS

Addington, L.

Barker, B.

Alliance, L.

Blackwell, L.

Alton of Liverpool, L.

Bonham-Carter of Yarnbury, B.

Anelay of St Johns, B.

Bowness, L.

Astor of Hever, L.

Bradshaw, L.

699

Britian of Spennithome, L.

Lloyd of Berwick, L.

Brooke of Sutton Mandeville, L.

Lucas, L.

Brougham and Vaux, L.

Ludford, B.

Buscombe, B.

Luke, L.

Byford, B.

Lyell, L.

Caithness, E.

McColl of Dulwich, L.

Carlisle of Bucklow, L.

MacGregor of Pulham Market,

Chadlington, L.

L.

Chester, Bp.

Mackie of Benshie, L.

Chorley, L.

Maclennan of Rogart, L.

Clement-Jones, L.

McNally, L.

Colwyn, L.

Maddock, B.

Cope of Berkeley, L. [Teller]

Mallalieu, B.

Cox, B.

Mancroft, L.

Craigavon, V.

Mar, C.

Crathorne, L.

Mar and Kellie, E.

Crickhowell, L.

Marlesford, L.

Cumberlege, B.

Mayhew of Twysden, L.

Dahrendorf, L.

Methuen, L.

Darcy de Knayth, B.

Michie of Gallanach,B.

Denham, L.

Miller of Chilthorne Domer, B.

Dholakia, L.

Miller of Hendon, B.

Dixon-Smith, L.

Montrose, D.

Donaldson of Lymington, L.

Morris of Bolton, B.

D'Souza, B.

Murton of Lindisfarne, L.

Dundee, E.

Naseby, L.

Dykes, L.

Neuberger, B.

Eocles of Moulton, B.

Newby, L.

Eden of Winton, L.

Newton of Braintree, L.

Elles, B.

Northesk, E.

Elton, L.

Northover, B.

Falldand, V.

Norton of Louth, L.

Falkner of Margravine, B.

Oakeshott of Seagrove Bay, L.

Fearn, L.

O'Cathain, B.

Feldman, L.

Onslow, E.

Ferrers, E.

Oxford, Bp.

Flather, B.

Park of Monmouth, B.

Fookes, B.

Phillips of Sudbury, L.

Forsyth of Drumlean, L.

Plumb, L.

Garden, L.

Portsmouth, Bp.

Geddes, L.

Prior, L.

Glasgow, E.

Rawlings, B.

Glenarthur, L.

Razzall, L.

Glentoran, L.

Redesdale, L.

Goodhart, L. [Teller]

Renfrew of Kaimsthorn, L.

Goschen, V.

Rennard, L.

Greaves, L.

Renton, L.

Hamwee, B.

Roberts of Conwy, L.

Hanham, B.

Roberts of Llandudno, L.

Hanningfield, L.

Rodgers of Quarry Bank, L.

Harris of High Cross, L.

Roper, L.

Harris of Richmond, B.

Rotherwick, L.

Haskins, L.

Russell-Johntson, L.

Hayhoe, L.

Saltoun of Abernethy, Ly.

Henley, L.

Sandberg, L.

Higgins, L.

Sanderson of Bowden, L.

Hodgson of Astley Abbotts, L.

Scott of Needham Market, B.

Hogg, B.

Seccombe, B.

Howard of Rising, L.

Selsdon, L.

Howe, E.

Sharp of Guildford, B.

Howe of Aberavon, L.

Sharples, B.

Howe of Idlicote, B.

Shaw of Northstead, L.

Hunt of Wirral, L.

Sheppard of Didgemere, L.

Inglewood, L.

Smith of Clifton, L.

Jenkin of Roding, L.

Steel of Aikwood, L.

Joffe, L.

Stern, B.

Judd, L.

Stoddart of Swindon, L.

Kalms, L.

Swinfen, L.

Kimball, L.

Thatcher, B.

Kingsland, L.

Thomas of Gresford, L.

Laird, L.

Thomas of Swynnerton, L.

Lamont of Lerwick, L.

Thomas of Walliswood, B.

Lawson of Blaby, L.

Yope, L.

Linklater of Butterstone, B.

Tordoff, L.

Liverpool, E.

Trumpington, B.

Livsey of Talgarth, L.

Turner of Camden, B.

700

Ullswater, V.

Watson of a Richmond, L.

Valiance of Tummel,

Wedderburn of Charlton, L.

L.

Wilcox, B.

Wakeham, L.

Williams of Crosby, B.

Wallace of Saltaire, L.

Williamson of Horton, L.

Walmsley, B.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Haworth, L.

Amos, B. (Lord President of the

Hayman, B.

Council)

Henig, B.

Ampthill, L.

Hilton of Eggardon, B.

Andrews, B.

Hogg of Cumbernauld, L.

Ashton of Upholland, B.

Hollis of Heigham, B.

Bach, L.

Howells of St, Davids, B.

Bassam of Brighton, L.

Howie of Troon, L.

Bernstein of Craigweil, L.

Hoyle, L.

Billingham, B.

Hughes of Woodside, L.

Blackstone, B.

Hunt of Chesterton, L.

Borrie, L.

Hunt of Kings Heath, L.

Brett, L.

Jones, L.

Brooke of Alverthorpe, L.

King of West Bromwich, L.

Brookman, L.

Layard, L.

Burlison, L.

Lea of Crondall, L.

Campbell-Savours, L.

Leitch, L.

Carter, L.

Lipsey, L.

Carter of Coles, L.

Lockwood, B.

Clarke of Hampstead, L.

Lofthouse of Pontefract, L.

Clinton-Davis, L.

Macdonald of Tradeston, L.

Corbett of Castle Vale, L.

McIntosh of Haringey, L.

Crawley, B.

MacKenzie of Culkein, L.

Davies of Coity, L.

Mackenzie of Framwellgate, L.

Davies of Oldham, L. [Teller]

McKenzie of Luton, L.

Desai, L.

Maxton, L.

Dixon, L.

Merlyn-Rees, L.

Drayson, L.

Mitchell, L.

Dubs, L.

Morgan of Drefelin, B.

Elder, L.

Pendry, L.

Evans of Parkside, L.

Ponsonby of Shulbrede, L.

Evans of Temple Guiting, L.

Ramsay of Cartvale, B.

Falconer of Thoroton, L. (Lord

Randall of St. Budeaux, L.

Chancellor)

Rendell of Babergh, B.

Farrington of Ribbleton, B.

Rooker, L.

Faulkner of Worcester, L.

Rosser, L.

Filkin, L.

Rowlands, L.

Fyfe of Fairfield, L.

Royall of Blaisdon, B.

Gale, B.

Sainsbury of Turville, L.

Gibson of Market Rasen, B.

Scotland of Asthal, B.

Giddens, L.

Sewel, L.

Gilbert, L.

Simon, V.

Golding, B.

Smith of Leigh, L.

Goldsmith, L.

Snape, L.

Gordon of Strathblane, L.

Stone of Blackheath, L.

Goudie, B.

Thornton, B.

Gould of Brookwood, L.

Tomlinson, L.

Gould of Potternewton, B.

Triesman, L.

Graham of Edmonton, L.

Truscott, L.

Grantchester, L.

Tunnicliffe, L.

Griffiths of Burry Port, L.

Turnberg, L.

Grocott, L. [Teller]

Wall of New Barnet, B.

Harris of Haringey, L.

Warner, L.

Harrison, L.

Whitty, L.

Hart of Chilton, L.

Young of Norwood Green, L.

Haskel, L.

Young of Old Scone, B.

[*The Tellers for the Contents reported 173 votes; the Clerks recorded 172 names.]
Resolved in the affirmative, and amendment agreed to accordingly.
7.55 p.m.
[Amendment No. 29 not moved]
Lord Falconer of Thorotonhad given notice of his intention to move Amendment No. 30:
Page 20, line 42, leave out from "required" to "in" in line 45 and insert "to comply with any provision of rules of court, or order of the relevant court, for the disclosure to a person other than the court or a person appointed under paragraph 7 of any matter in respect of which the Secretary of State has made such an application but on which he does not then rely"
The noble and learned Lord said: My Lords, this amendment has been pre-empted. It was to make sure that there should be proper disclosure to the court. However, in the light of the amendment that has just been agreed to, this amendment cannot now be made.
[Amendment No. 30 not moved.]
[Amendment No. 31 not moved.]
Lord Falconer of Thorotonmoved Amendment No. 32:
Page 21, line 4, at beginning insert—
"Application for anonymity for controlled person 4A"
The noble and learned Lord said: My Lords, this amendment is a drafting amendment. It clarifies which paragraphs and sub-paragraphs to the schedule deal with anonymity issues. For that reason I urge noble Lords to accept the amendment. I beg to move.
On Question, amendment agreed to.
Lord Goodhartmoved Amendment No. 33:
Page 21, line 23, at end insert—
(8) "Rules of court under this paragraph in relation to proceedings in England and Wales—

(a) must be laid before Parliament after being made; and

(b) if not approved by a resolution of each House of Parliament before the end of 40 days beginning with the day on which the order was made, cease to have effect at the end of that period."

The noble Lord said: My Lords, the purpose of this amendment is to impose a parliamentary involvement in the rules. The original provision was that the rules would simply involve the negative resolution procedure which applies to rules of court generally. The Delegated Powers and Regulatory Reform Committee recommended strongly that the matter should be dealt with by the affirmative resolution procedure. The noble and learned Lord the Lord Chancellor wrote a letter in response to that pointing out that it would be necessary—I quite accept that it is necessary—for the rules to come into force as soon as the Act itself comes into force, and that therefore there would be no time for the affirmative resolution procedure.
In those circumstances I recall that there is what I might call an emergency version of the affirmative resolution procedure which I recollected having seen somewhere before. I discovered that the most recent place I had seen it was in Clause 5(5) of this Bill. The emergency procedure is that the order comes into force as soon as it is made but it then has to be laid before Parliament and ceases to have effect 40 days after the date when it is made unless it has during that period been approved by a resolution of both Houses. I understood from what the noble and learned Lord said
702
earlier that the Government intend to accept this amendment. Therefore, I think I need say nothing further about it. I beg to move.
Lord Dahrendorf: My Lords, if all Members of your Lordships' House read the report of the Delegated Powers and Regulatory Reform Committee very carefully, they will notice that the committee said that an affirmative resolution procedure should be chosen. We were well aware of the urgency and therefore of the need to use the emergency procedure which has just been described by the noble Lord, Lord Goodhart.
I add for the record that it would have been improper for the committee or its chairman to accept the invitation of the noble and learned Lord the Lord Chancellor to engage in negotiations as it were because it is our task to report to the House. Once we have reported to the House, it is for the House to decide. Naturally, members of the committee are not displeased when they discover that their recommendation has in one way or another been adopted.
8 p.m.
Lord Kingsland: My Lords, my name is also on this amendment, and for the reasons given by the noble Lord, Lord Goodhart, we entirely support it.
Lord Falconer of Thoroton: My Lords, I should make it clear that I agree with what the noble Lord, Lord Dahrendorf, said. There is no question of negotiations in these matters. The Delegated Powers Committee says what the position is and individual government departments then respond, or not, to this House, as they see fit. I accept the noble Lord's view on that.
I am very grateful to the noble Lord, Lord Goodhart, for tabling this amendment and I accept that it should be made. There is a slight wrinkle in it now that the rules are being made by the Lord Chief Justice, who is not a Minister, but the amendment should be made now and, as I have indicated privately to the noble Lord, Lord Goodhart, if the other place replaces the Lord Chief Justice with the Lord Chancellor the problem will not arise and if the Lord Chief Justice remains, then we may have to have some conduit. But we accept the amendment in principle and we think that the right course is to make it now so that what this House wants is clear.
On Question, amendment agreed to.
The Duke of Montrosemoved Amendment No. 34:
Page 21, line 27, after "Chancellor" insert "or, in Scotland, the Lord President"
The noble Duke said: My Lords, in speaking to Amendment No. 34 I shall speak also to Amendment No. 35.
As noble Lords will perhaps remember, at a rather late hour last night I expressed my interest in these matters, even though I did not move some similar

703
amendments at that time. That was largely because the noble and learned Lord the Lord Chancellor had spent some time that evening expressing the reliance and value he placed on the powers, position and person of the Lord President in the courts. Therefore, I thought it better to consult Hansard to see how that applied to the amendments that I had tabled at that time.
This amendment ensures that in Scotland the Lord President, Scotland's most senior judge, will determine the use of advisers for those proceedings. It also probes the function and role that advisers are anticipated to have in this context. Paragraph 5 to the schedule provides for the court to call in one or more advisers appointed by the Lord Chancellor. If such advisers are to be used in Scotland, the Law Society of Scotland suggests that the Lord President should be responsible for their appointment. The society questions why it is necessary for a court of law to appoint such advisers in these circumstances, their relationship to the court and their effect upon the impartiality of the proceedings.
I believe that one of the areas where the Lord Chancellor might wish to appoint advisers is on matters of intelligence, but if he can form a judgment that an intelligence adviser is needed, why is that not within the powers of judgment of the Lord President? Or, if the Lord Chancellor has to be the one to appoint advisers, should appointments not be subject to acceptance by the Lord President, who is the authority for the conduct of the courts? I beg to move.
Lord Falconer of Thoroton: My Lords, as I made clear, I am second to none in my admiration of the noble and learned Lord the Lord President.
This paragraph deals with appointing and paying lay advisers. The Bill specifies that the Lord Chancellor should appoint lay advisers because there are already people who play an equivalent role in the Special Immigration Appeals Commission and it was therefore thought appropriate that someone with experience of such appointments should make the appointments.
As far as paying lay advisers is concerned, I have not suggested that the Lord President should pay lay advisers and I suspect that he would not regard Amendment No. 35 as particularly helpful.
I have carefully considered the points raised by the noble Duke, but I think that it is more sensible to leave these matters to the Lord Chancellor. I think that the Lord President would thank the noble Duke if he did not press the amendments that ask him to pay for lay advisers.
The Duke of Montrose: My Lords, that was a revealing and interesting response. In due course, we may find out in which areas these advisers are likely to be called upon. In the light of the noble and learned Lord's response, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 35 not moved.]
Lord Falconer of Thorotonmoved Amendment No. 36:
Page 21, leave out lines 35 to 38
The noble and learned Lord said: My Lords, this is a formal amendment, I hope, to do some tidying up. It is grouped with Amendment No. 30 and we have already debated it, rather imperceptibly, but we have debated it.
On Question, amendment agreed to.

Business
Lord Grocott: My Lords, before we move on to the next items of business—two sets of regulations and an order—it may be helpful if I spell out what I hope will happen in the next couple of hours. The Bill will now be reprinted as amended, which will take, we guess, about an hour. As soon as it has been reprinted and is available in the Printed Paper Office, a note to that effect will be placed on the annunciator so that noble Lords will know that the Bill is available. They will then be able to table amendments for Third Reading, although should they be minded not to table any amendments for consideration at Third Reading I do not think that it would disappoint too many people. Half an hour will be allowed for amendments to be tabled and we expect that the House will be reconvened about 10 minutes after that. Of course, we do not know how long the regulations will take to debate, but we estimate that there will be about 1 hour and 40 minutes between the conclusion of Report stage and the start of the Third Reading. I am not offering the House a time now, because we can move seamlessly to the regulations, but this is the best estimate at the moment.

Water Fluoridation (Consultation) (England) Regulations 2005
8.7 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner)rose to move, That the draft regulations laid before the House on 22 February be approved [10th Report from the Joint Committee].
The noble Lord said: My Lords, I have a feeling this could rapidly empty the Chamber.
One of the Government's main priorities is to reduce inequalities in health. There is a strong correlation between dental decay and social deprivation, and yet, in deprived areas where the water is fluoridated, people have as good oral health as residents of much better-off areas of the country. However, we recognise that some people have strong views on fluoridation, and it is fundamental to our policy that a strategic health authority should only arrange for its drinking water to be fluoridated where the local population is in favour.

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Studies show that children in non-fluoridated areas are more than twice as likely to have had toothache during their lives as those in fluoridated areas. A study in the north-east has shown that five-year-old children were five times more likely to suffer from a dental abscess in non-fluoridated areas than in fluoridated areas.
Fluoridation does not only benefit children. In adults, studies in this country and abroad have shown that adults living in fluoridated areas keep more of their own teeth for longer and have fewer dental problems. The Water Fluoridation Consultation (England) Regulations 2005 apply to situations where SHAs propose to enter into, vary, terminate or maintain arrangements with a water undertaker to fluoridate its water. The indemnity regulations, which I will come on to, provide for indemnities to be given to water undertakers who fluoridate the water on behalf of an SHA.
Our intention with the consultation regulations is to ensure that an SHA conducts wide-ranging consultations in which the issues around the effects and safety of fluoride are fully explored, and then that the SHA assesses the outcome of the consultations in an objective and transparent manner.
I turn now to the details. During the consultation conducted by the Department of Health on these regulations, the need was stressed to ensure that the "bodies with an interest", which the SHAs would be required to consult in Regulation 3, covered all those organisations for which fluoridation might have implications. That would include not just medical and dental organisations, but, for example, food or drink companies that might need to consider whether the use of fluoridated water was compatible with their business aims and manufacturing processes. We will certainly refer to businesses in the guidance we will issue on implementation of the regulations.
Our only reason for not being more specific in the regulations is to ensure that we do not limit the scope of SHAs to involve bodies with an interest in their localities that we had not thought of in the department. SHAs must consult all local authorities whose area falls even partly within the area to be fluoridated.
Regulation 3 describes the measure an SHA must take to publicise and encourage debate on its proposals. During the consultations, it was suggested that we should insist that the SHA published its proposals in more than one newspaper. I am the last person to underestimate the power of the press, but we wish to see SHAs use the full range of modern communication techniques in conducting consultations. I am well aware that not every family has a computer, but resources like websites, helplines and focus groups are capable of reaching sections of the population who may not read the public notices in the local paper.
I am sorry if Regulation 4 looks a bit complicated. We wish to respond to representations made during the passage of the Water Bill that fluoridation schemes should not be allowed to continue indefinitely without
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some public reappraisal. On the other hand, water distribution systems are complex engineering schemes that periodically require variation and maintenance.
We have sought to strike a balance between allowing sufficient flexibility for relatively minor changes to be made without consultation, while ensuring that major variations or investment decisions are not taken without consultation. Where, for example, major investment was required in new plant to maintain a fluoridation scheme, there would be a need to check whether the benefits to oral health would be justified by the costs of this investment. The SHA would need to consult on cost benefits in accordance with these regulations.
Turning to Regulation 5, it will not surprise your Lordships that more comments were received on this regulation during our consultation than on any of the others. We remain of the view, though, that decisions on fluoridation should not be undertaken as a result of referendums. However well they were organised, it is unlikely that a majority of the population would vote. There is a strong correlation between tooth decay and social deprivation, and we want SHAs to take account of the views of all people across all social classes.
Let me dispel any suggestion, however, that we have diluted our commitment that fluoridation schemes would only be introduced where the local population were in favour. Regulation 5 requires SHAs to take account of the extent of support for their proposals. They must also consider the cogency of the arguments. There is a host of disinformation put around about fluoridation, which is likely to be recycled in consultations. In the past, the department has received identical standard letters, all citing an association between fluoridation and commonly-occurring illnesses or disabilities, for which there is no published research evidence. The SHA needs to scrutinise the responses received and weigh the arguments in favour of proceeding with those against.
I now turn to the indemnity regulations. We are often asked why, if the Government are so confident that there are no risks to health from fluoridation, they need to indemnify water companies against claims arising from fluoridation schemes. The answer is that the companies are commercial organisations whose core purpose is to supply water. As fluoridation is a public health measure, the strategic health authorities pay the companies the full cost of fluoridation. In accordance with good business practice, they need to be able to indemnify the water companies however remote is the possibility of any claims.
Schedule 1 to the regulations contains a model indemnity. As your Lordships would expect, the water industry would like a very wide indemnity. For public policy reasons we cannot cover criminal liability and the industry must bear the costs of any negligence. Notwithstanding that, we have gone as far as we can to meet the industry's concerns. The indemnity covers the defence costs of a water undertaker or supplier that successfully defends a prosecution for an offence which relates to the fluoridation of water. Moreover, provided there has been no fault or negligence, it

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covers any civil liability that arises in respect of fluoridation, even where that liability arises in circumstances which may also give rise to a criminal offence.
Hence Clause 2 of the schedule covers liabilities resulting from any criminal proceedings that might arise from fluoridation with the proviso that the proceedings have not led to a conviction. The industry accepts that we cannot indemnify water companies which have been found guilty of negligence.
Under Clause 4 the Secretary of State may assist a water company in defending a claim if he might incur liability under the indemnity. Likewise, under Clause 5, the Secretary of State may pursue claims on behalf of water companies. We envisage that if, contrary to any available evidence, a claim was made that fluoridation had adverse effects on general health, the Department of Health would take over the defence. The reason is that the claim would have implications for all the fluoridation schemes in the UK and the department would probably wish to submit evidence from its research programme on the effects of fluoridation and to call expert witnesses.
I hope my explanation of the regulations has been helpful and that noble Lords will be able to approve them. I beg to move.
Moved, That the draft regulations laid before the House on 22 February be approved [10th Report from the Joint Committee].—(Lord Warner.)
Earl Howe: My Lords, the House will be grateful to the Minister for his helpful explanation of the orders. I begin by making it clear that for my party water fluoridation is a matter of individual conscience. It is not an issue on which we wish to impose an official party position. What follows represents a personal view, although it is a view that is shared widely on the Conservative Front Bench, both here and in another place.
In 1998, during a debate in this House on water fluoridation I expressed my support for a wider rollout of fluoridation as an effective and, indeed, necessary measure for improving dental health in the general population, but especially in deprived areas. When Section 58 of the Water Act 2003 was introduced by way of an amendment in the House of Lords I voted against it. The reason for my change of mind was one thing only; and that was the York review of 2000. That review, for me, completely changed the landscape. A proposition which most had taken for granted up to that point—that water fluoridation had proven benefits for dental health—turned out to be without solid foundation. That is not to say that the review found no proven benefit from fluoride. However, contrary to expectation, it found that the quality of previous research on the issue was quite low, with a moderate to high risk of bias, and that while fluoridation does reduce the prevalence of dental caries, the extent to which it is reduced is not quantifiable.
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Alongside that the review was able to arrive at definite conclusions about the prevalence of dental fluorosis at a water fluoride level of one part per million, which is the approved level for water supplies. That was estimated at 48 per cent. For fluorosis of aesthetic concern, it was predicted to be 12.5 per cent. Furthermore, the report said that,
"the research evidence is of insufficient quality to allow confident statements about other potential harms or whether there is an impact on social inequalities".
It is significant that, so far as I am aware, no research has ever been done on continuing long-term exposure to fluoride and no randomised controlled trials have ever been done.
We all recognise that a public health measure of this kind cannot be introduced on the normal principle of individually informed patient consent. However, if individuals cannot elect whether to receive fluoridated water, then the very least we should be doing, if we are going to mass-medicate whole population groups, is to proceed only on the basis of impeccable science.
The York review shows us that the science, far from being impeccable, is of doubtful quality. In my opinion, Section 58 of the Water Act 2003 was wrong—and this order is, and will remain, wrong until such time as we can state, with much greater scientific confidence, that the benefits of fluoridation outweigh the disbenefits by a considerable margin. The convention of the House is not to vote on secondary legislation. I do not intend to instigate a breach of that convention. However, the Minister needs to answer some questions about the terms of these orders—and how he proposes to make sure that they are fairly implemented.
The consultation regulations set out the process which a strategic health authority must follow to ascertain local opinion on a proposal to fluoridate. It is far from clear, however, what is supposed to constitute a satisfactory consultation process or a satisfactory degree of canvassing of local opinion. For a start, the strategic health authority will have an agenda. It is hardly the most appropriate body to be tasked with ensuring that local consumers are given a fair and unbiased presentation of the case both for and against. Indeed, the order only requires the strategic health authority to detail the reasons it has for making the proposal—nothing more balanced than that.
The strategic health authority is required to publicise the proposal, but what more ought it to do? Surely, it should try actively to garner local opinion, rather than sit back and wait for opinions to roll in. How should it do that, when there is no mention of any such process in the order? Regulation 5 says that:
"A Strategic Health Authority shall not proceed with any step regarding fluoridation arrangements that falls within section 89(2) of the Act unless, having regard to the extent of support for the proposal and the cogency of the arguments advanced, the Authority are satisfied that the health arguments in favour of proceeding with the proposal outweigh all arguments against proceeding".
What is this supposed to mean? Supposing that the strategic health authority receives replies from 20 per cent of the population who would be affected by a

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change to fluoridated water—and let us say three quarters of those replies are in favour—is that a mandate for change or not? In any event, the strategic health authority only has to have regard to the extent of support for the proposal. Principally, it has to be satisfied that the health arguments in favour of proceeding with the proposal outweigh all arguments against proceeding. Presumably, they will already be persuaded of that view; so, without a clear indication of what will constitute a meaningful degree of public support—or the lack of it—it seems that the order is deficient.
When we debated Section 58 of the 2003 Act, the Minster emphasised that:
"no new fluoridation scheme would go ahead without the support of the majority of the local population"—
majority of the local population—
"determined by local consultations conducted by strategic health authorities in England and the National Assembly in Wales".— [Official Report, 9/7/03; col. 300.]
I see nothing in the order which fulfils that undertaking. Nor do I see any provision allowing a local community to revisit its decision—if, for example, new scientific evidence about fluoridation were to emerge.
The Minister will be aware that there are some areas of the country where a proposal to fluoridate by one strategic health authority would present particular difficulties. One such area is London, which has five strategic health authorities, four water suppliers and one route of delivering water. If one strategic health authority secures a fluoridated water supply for its area, how will it be possible to ensure that no other areas receive such treated water if they have not elected to do so? Of course, it will be impossible. In that general context, I hope that a strategic health authority, having secured a fluoridated supply, would commit itself to a public information campaign on the inadvisability of supplementing consumption of fluoridated water with the use of fluoride toothpaste.
I have only one query on the indemnities regulations. My understanding is that existing fluoridation schemes will be brought into line with the new regulations. When that happens, the strategic health authorities will have to make new agreements with their water companies. Will the water companies be entitled to indemnification, notwithstanding the fact that they may not be indemnified at present?
I apologise to my noble friend Lord Colwyn, who has been such a consistent and principled champion of fluoridation, from his perspective as a very experienced dentist. I readily concede to him that my scepticism about fluoridation may turn out to be misplaced. I hope that it is, but I cannot yet say so; nor in conscience can I support the consultation regulations, given the terms in which they are couched.
I look forward to the Minister's reply, which may provide at least some clarification and comfort.
Baroness Barker: My Lords, I suspect that the Government Front Bench is delighted to move on to this subject towards the end of a long day's
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proceedings. It is a great shame that we are under the time constrictions set by the Government Chief Whip to discuss the matter.
I have a great deal of sympathy with the arguments that the noble Earl, Lord Howe, put forward, much more eloquently than I could. I did not take part in debates on the Water Bill but, as noble Lords will know, my noble friend Lord Clement-Jones supported this aspect of the Bill, because it is our party's view that decisions on public health matters such as this should be made locally.
I agree wholeheartedly with the noble Earl, Lord Howe, that the worrying aspect of the first set of regulations is the requirements on the strategic health authority. I have read the Explanatory Notes several times. They say:
"The requirement is that SHA must not take any such step unless, having regard to the extent of support for the proposal and the cogency of the arguments advanced, the SHA are satisfied that the health arguments in favour of proceeding outweigh all arguments against proceeding. Thus the SHA will be able to consider the cogency to be attached to any representations made and to look at the extent of support for the proposal"
It seems that the extent and the cogency of the opposition are somewhat downplayed. In some ways, these regulations are extremely biased, although they do not appear so on first reading. The noble Earl, Lord Howe, is right; the extent of opposition at least must indicate the level of uncertainty in an area. A public health authority ought to take into account the simple fact that there is uncertainty in an area, whether or not it believes that the science behind it is sound.
I listened to what the noble Lord, Lord Warner, said about circular letters. I understand that quite often campaigns are vociferous but not well founded in science. But if the process that a strategic health authority must go through is to live up to the terms that the Minister indicated—it must be objective and transparent—the extent of the opposition must be taken into account. The noble Earl, Lord Howe, is right: it is unusual, and it would not be right, to pray against such regulations, but I, too, want to signal that I am deeply unhappy with their drafting.
I agree with the noble Earl that the effects of fluoridation have yet to be proven in the scientific terms that the medical world normally applies. However, in this particular circumstance it seems that there is an element of bias to be dealt with.
On the indemnity proposals, I have one question. The terms of this order are surprisingly generous, on the part of both the Department of Health and the Treasury. The explanatory notes state that Clause 2 of the indemnity,
"is intended to be widely drawn so that, as far as possible, water undertakers and licensed water suppliers will not suffer loss as a result of entering into an agreement to increase the fluoride content of water or to supply such water".

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As the noble Earl, Lord Howe, said, this will apply to claims that arise under the existing system as well. I simply ask the Minister what the Treasury estimate of the potential cost is of this quite wide ranging indemnity? With that I rest my case.
Lord Turnberg: My Lords, I had not intended to speak in this short debate, but I want to make two comments.
First, the evidence is reasonably strong that people who live in areas where the natural fluoride levels in water are as high as those proposed to be added to the water supply have healthier teeth. The evidence that healthy teeth provide healthy mouths is quite strong. It is perhaps not widely recognised that a healthy mouth is also associated with a healthier person. The influence of oral hygiene and oral health on general health is considerable.
I understand the anxiety of the noble Earl, Lord Howe, about the evidence in the York survey not being particularly strong. With respect, he may be quoting only part of the report. There is no doubt that the York report came down strongly in favour of the idea that water supplies, where possible, should be fluoridated. I am not convinced that the York report is such strong evidence against the idea that we should move along this route.
Unfortunately, I do not have the York report with me but I remember in the previous debate quoting quite extensively from it to demonstrate that fluoride was positively helpful and that the recommendations were along those lines. I am in favour of these regulations.
Lord Colwyn: My Lords, it is not my intention to prolong the debate this evening, but I have been involved with discussions in this House on fluoridation for over 35 years. I feel that I should make a brief contribution. I declare an interest as a practising dental surgeon, although of course it is not really an interest, because the fewer caries there are, the less work I have to do.
When we last discussed fluoridation in July 2003, as an amendment to the Water Bill, there were many of the usual speeches from the usual suspects. The noble Lord, Lord Warner, concluded by saying:
"We shall continue with our research programme … and monitor the outcome of the research conducted in other countries … We have made the regulations under which we want any new local consultations to be conducted".
He went on:
"In a nutshell, the amendment"—
that we were talking about at the time—
"provides for local communities, after consultation, and after an informed discussion, to take steps to give their strategic health authorities a clear message that they want their water to be fluoridated. On the evidence that I have heard today, I do not see a case for denying those communities that choice".—[Official Report, 9/7/03; col. 360.]
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I made some comments in that debate on the problem of oral health inequalities. The difference in dental health of five year-olds in fluoridated and non-fluoridated areas is marked. The rate of dental decay is about three times as much in non-fluoridated areas and, of course, those children with high levels of decay are also more likely to have had treatment under general anaesthetic—always with a slight risk—and have been prescribed antibiotics.
Over the past five years, the University of York Centre for Reviews and Dissemination and the Medical Research Council have undertaken reviews on water fluoridation. The York remit was to look at the safety and effectiveness of fluoridation. It concluded that addition to water of fluid up to one part per million helps to reduce tooth decay, but left the way open for further research.
My noble friend Lord Howe referred to this and to the problems, but he did not refer to the MRC report in 2002, which had looked at the apparent health risks in more detail and concluded that fluoridation was safe and effective. Further research commissioned by the department in 2004 on bioavailability of fluoride in drinking water, or the difference in absorption of fluoride in natural and artificially fluoridated water, concluded that there was no difference.
It is essential that strategic health authorities have all the necessary information to make informed decisions. The Chief Medical and Chief Dental Officers have made this quite clear.
These regulations apply to England and I should be grateful if the Minister could clarify the situation in areas that would derive great benefit from fluoridation that cross the Wales-England border. What will be the situation in Cheshire, Liverpool and Hereford?
I also note the list of interested bodies that have been defined in Regulation 2(1). Can the Minister say why the unitary districts and metropolitan authorities have been omitted?
These regulations provide a sensible and workable framework by which strategic health authorities must consult on future fluoridation proposals and give an assurance to the public that the outcome of such public consultations will be properly judged by health authorities. They provide adequate indemnity to suppliers, covering all criminal liability or civil liability arising out of negligence.
While regretting the delay in seeing these regulations, I urge the House to pass them and to let people have a choice on whether to fluoridate.
Lord Tomlinson: My Lords, I declare an interest as the president of the British Fluoridation Society, a role which is, of course, unremunerated. I clearly welcome the two sets of regulations put before us today by my noble friend.
It is not necessary at this stage to debate the merits or otherwise of fluoridation. They were determined by the House, with overwhelming support, with the passage of the Water Act 2003. Today, we are merely giving by these regulations, once they are approved not only by this House but by the House of Commons, the

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authority to allow the provisions of Section 58 to be put into effect. But those provisions have been already agreed by an overwhelming decision of this House.
The consultation regulations are very straightforward and simple. They require strategic health authorities to undertake widespread public consultations on their water fluoridation proposals. They also provide for the requirements which must be satisfied before any such proposal is implemented.
Under these regulations, strategic health authorities must give notice to every local authority within the area affected and undertake a three-month period of public consultation. Everything that needs to be done is being properly done in these regulations and I congratulate my noble friend upon it.
Turning briefly to the indemnities regulations, under Section 58—the section already carried by Parliament—water suppliers may be required to fluoridate supplies when requested to do so by a strategic health authority. The indemnity regulations ensure as far as possible that water suppliers will not suffer loss as a result of acceding to a request for fluoridation. Section 58 makes it clear that they will not be required to fluoridate until an indemnity has been given by the Secretary of State. The indemnities regulations are therefore necessary before any new fluoridation proposal can be implemented under Section 58.
I first became interested in fluoridation through being a constituency representative, elected over a period of 20 years in the West Midlands—an area where water was fluoridated already by the Severn Trent Water Authority. The one thing you could not help but notice was that the normal correlation between economic deprivation and bad dental health was exactly reversed in some of the poorest parts of the West Midlands. Those areas in the lowest quartile of economic prosperity in the UK all appeared in the top quartile of dental health. Having noticed this over a period of 20 years—20 years in which I never received a single letter of complaint, either as a Member of Parliament or a Member of the European Parliament —I became convinced that the electorate in the large Severn Trent area, where they were already receiving the benefits of fluoridation, was a sample that showed complete satisfaction.
I thought we were going through a filibuster a bit earlier, to prevent these regulations being brought before the House. Eventually, however, we finished with terrorism and got on to these regulations. I congratulate my noble friend the Minister on this. He is doing something which will be widely welcomed throughout the country.
Lord Maxton: My Lords, like my noble friend, it was not my intention to speak in this debate. When I was Member of Parliament at the other end, I too campaigned to have fluoride put in the water—in Scotland, I hasten to add, and these regulations will not do that, of course. We need it, but that is a matter for the Scottish Parliament.
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I do not live in an area which has fluoride in the water. I have three sons, and they all have extremely healthy teeth. Why? Because—and I give her the praise for this, not myself —their mother insisted that they cleaned their teeth with fluoride toothpaste morning and night. She gave them fluoride tablets when they were young. That has ensured that they have kept up the habit of cleaning their teeth, and they now have stronger teeth than they otherwise might have had.
That is the case with most middle-class parents. When the noble Lord, Lord Colwyn, says that it is a matter of a divide between those areas which have fluoride in the water and those that do not, he is, of course, right. It is also a class divide, however. It is a divide between middle-class parents—many of whom are actually opposed to fluoride being put in the water, but quite happy to give fluoride to their children in other ways—and those who unfortunately do not bring up their children with good oral hygiene. Therefore, I welcome this, because the beneficiaries will be those who are most deprived in our society, particularly some of the young in the most deprived areas.
Lord Stoddart of Swindon: My Lords, the noble Lord, Lord Maxton, in making the case for fluoridation also made the case against it. He made it quite clear that there is an alternative to mass fluoridation and mass medication: proper dental health being imposed by parents. Indeed, as he says, that is what happens with most middle-class parents.
The argument has changed over a long time. I have probably been around this issue even longer than the noble Lord, Lord Tomlinson. I was the chairman of the Land and Works Committee of the Thames Valley Water Board, as well as being a member of the local authority which was then responsible for public health. At that time, we were told that all children—about 15 per cent of the population—would benefit. But my local authority never took the view t hat it had to ask the water board. of which I was chairman, to fluoridate the water because it believed that there were other methods of inducing oral health. And so there are.
The noble Lord, Lord Tomlinson, said that all the arguments about fluoridation had been worked out in the Water Act 2003. I have to tell him that the issue will not go away just because Parliament passed an Act. There are a lot of people—more than the noble Lord thinks—who are still opposed to mass medication through fluoridating water. As the noble Earl pointed out, the York review criticised the quality of the research that had been carried out and had said that a minority of the population would benefit from fluoridating all water supplies.
The argument has now come down to benefiting not all children but just poor children. In that case, the problem is smaller than it used to be and should be easier to deal with by other methods such as the proper education of working-class or deprived children and inducing a better diet. Indeed, it would be far cheaper than fluoridating water to give children fluoride toothpaste and toothbrushes as well.

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The argument for mass medication is by no means a good one and is by no means accepted by the vast majority of the population. People like me will not be convinced that it is necessary to force 60 million people and countless million animals to ingest fluoride, flooding the environment with it, simply to benefit a small part of the population which could receive the same benefit by other means. That argument will not go away, no matter what the noble Lord, Lord Tomlinson, says.
The arrangements for consultation in the two orders are deficient. The 2003 Act and these measures affect everybody. Every individual will be forced to drink water which has fluoride—a poison—added to their water supply. Therefore, they are entitled to be consulted individually. No matter what the Minister says I repeat what I said when we discussed the Bill that became the 2003 Act—there is no real substitute for referendums. I know that he disagrees, but that is the only way in which a proper consultation can take place when you are forcing mass medication on people. Not everybody reads the newspapers. I reckon that in my area, about 20 per cent read the local newspapers, so they will not be informed of what will happen to their water supplies. The arrangements for consultation will be in the hands of a small elite clique bent on inflicting fluoride, come what may.
What is more, there is no provision for all interested organisations to be informed. The anti-fluoride organisations will not be informed as a right, and I think that they should be. Taxpayers' money is going to be used to promote fluoridation and to issue propaganda—I call it that advisedly—to promote the policy, whereas those people who are against it or have reservations have to finance their opposition from their own pockets. That does not seem to be a fair situation. These points were made in the discussions on the 2003 Water Bill.
What about the Human Rights Act 1998? Is compulsory mass-medication—that it what it is—compatible with that? The Minister is going to tell us, if he has not already done so, that the legislation and these orders will be compatible, but that is what the Government told us about the measures that we are now discussing in the Anti-terrorism, Crime and security Act 2001. That was said to be compatible with the Human Rights Act and was proved not to be. That is why we have had these days and hours of debate, trying to put that situation right. The Law Lords declared that, after all, Section 4 of that Act was not compatible with the Human Rights Act, so I am not at all sure that this measure is either. It may well be tested in the courts, and I hope that the courts will strike it down.
I understand that that is probably a minority view in the House tonight, and perhaps at other times as well. We can vote against such orders as these, but it is the practice not to do so. Like the noble Earl, Lord Howe, I will not seek to divide the House tonight.
Lord Warner: My Lords, we have had an interesting rerun in some respects of the debates on the Water Act 2003. We have a bit of time while the Prevention of Terrorism Bill is printed, but I do not want to go over all that debate again. I agree with my noble friend Lord Tomlinson that we have had this discussion, Parliament has spoken, and an Act which was certified by the responsible Minister as compatible with the Human Rights Act 1998 has passed Parliament. We are talking about the narrower set of issues in the consultation regulations and in the indemnity regulations.
However, just to clarify one or two points on research, I remind noble Lords that the University of York report concluded that water fluoridation increased the number of children without tooth decay by at least 15 per cent. It also said that currently around 6 million people receive water which either has had its level of fluoride adjusted or is naturally fluoridated to around 1 milligram per litre. No ill effects have been identified. That was in the University of York report.
It did acknowledge that there might be improvements made in the quality of research that was available. The need for more good quality research was also accepted by the Government, who are committed to a continuing programme of research which takes account of the Medical Research Council's findings about the research necessary to strengthen the evidence base. That was not saying that there was no evidence base. As I have said, the University of York report was a strong endorsement of fluoridation, as well as acknowledging that there could be a need for a continuing programme of good quality research.
The Chief Medical Officer and the Chief Dental Officer were asked to advise on the implications of the MRC report for government policy on fluoridation. Their advice and recommendations for research will inform a continuing programme. It is worth bearing in mind that the Department of Health commissioned the University of Newcastle's School of Dental Sciences to undertake a study into the bio-availability in naturally and artificially fluoridated drinking water. That study was published in July 2004 on the University of Newcastle's website. I am sure that noble Lords who have a fascination and interest in this subject will be able to read the research on that website. It concluded that there was no statistically significant difference in the absorption of fluoride between artificially and naturally fluoridated water or between soft and hard water. I do not want to go into the details, but that demonstrates the Government's continuing willingness to carry out research in this area and to make that research available in the public arena.
A number of people have expressed concerns about the consultation process. It has never been our intention that the majority of responses should be interpreted as meaning that the issue will be settled by a head count. I do not want to go over all the ground again, but for the reasons that I gave in my opening speech and in the debate on the Water Act, we do not

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consider that referendums are appropriate here. However, there is no question of strategic health authorities being able to proceed on the basis of representations from one group of people or another. If we want to be conspiracy theorists, I suppose the argument would be that the dental profession would try to capture the ground in this area.
The strategic health authorities have to weigh up all the arguments on all the views that are put forward and they have to take account of the cogency of the arguments. Part of that cogency argument is taking account of the research evidence, particularly where there is evidence showing that there is no association between fluoridation and a wide range of illnesses like cancer, thyroid disease or osteoporosis. People have made those claims. In the consultation process it is important that the weight of research evidence is taken into account in weighing the cogency arguments that are provided for in the regulations. We have to recognise that there will be some who are under misapprehensions about this matter.
The department will also issue guidance on the approach to consultation. I certainly accept the argument that representations opposing fluoridation on the grounds that it is a form of mass medication which breaches human rights, have some cogency, if people want to argue that. But we would expect the strategic health authorities to weigh against those arguments the opposing view that any breach is justified by the benefits of a population-based approach to reducing dental disease. That is another counter-argument and the evidence of those two arguments has to be weighed by the strategic health authority in considering whether to proceed.
I can confirm that it is our intention, when consulting on proposals to fluoridate, that the strategic health authority should publish a summary of the current research evidence with its sources and details of where additional information can be obtained. The Government have no intention of imposing fluoridation in any area. Our policy throughout has been that decisions must be taken locally, following well informed consultation on the issues involved.
The noble Earl, Lord Howe, raised issues about the strategic health authority being required to show a majority in favour. As I have tried to say, we do not consider a head count alone is the most appropriate means of reaching a decision. The noble Earl raised the question of what happens if only 20 per cent of residents respond? The strategic health authority will have to look at the issues and weigh the responses from the interested bodies to ensure that the weight of opinion is in favour. I would argue that that is a demanding requirement.
The noble Lord, Lord Colwyn, asked "What about Wales?" and raised the border issues. I understand that the Welsh Assembly will in due course be considering similar regulations for any proposals for fluoridation schemes in Wales. There may be a need for the
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Assembly and this Parliament to consider whether a third set of regulations is required for any schemes that cross the border between England and Wales.
I can understand that a number of Members of this House may be a little dissatisfied if I quote from a letter which I, and I suspect a number of noble Lords, received from the British Fluoridation Society. It says,
"We believe that the draft regulations provide a sensible and workable framework by which strategic health authorities must consult on future water fluoridation proposals".
However, I think that it is worth looking at the heading of the letter, which points out very clearly that the society has a president and vice-presidents from across the political spectrum. This is not a party political issue, and these regulations command a wide spectrum of political support.
I was asked whether it is not sufficient to ensure that people clean their teeth, because there is enough fluoride in toothpaste. We have been over this ground. The big difficulty is in ensuring that families in deprived areas can buy the toothpaste and will establish regular brushing regimes.
I cannot mention too often the point that is covered in Regulation 3. This was brought out very strongly in the consultations conducted by the department on these regulations, in which we stressed continually that this regulation makes it clear that bodies with an interest have to be consulted. Under Regulation 3, strategic health authorities will have to demonstrate that they have consulted all the organisations for which fluoridation may have implications. There is therefore a clear requirement in that area.
A couple of points were raised on the subject of the indemnity regulations. The noble Earl, Lord Howe, raised the issue of existing schemes. I can inform the House that the Secretary of State will issue new indemnities, in the form of the schedule to the regulations, to those water companies with existing schemes.
The issue of the cost of indemnities was raised by the noble Baroness, Lady Barker. No association has been established between fluoridation and ill health, so no claims have been made. So far, the indemnities have been invoked in respect only of actions by opponents of fluoridation: for example, refusing to pay their water bills. This may he an interesting piece of information for the noble Baroness. Since 1997–and these are about the only data we have in this area—one payment of some £400 was made to a water company which had prosecuted a resident for non-payment. We are talking about quite small sums of money which have been paid out so far. We do not have any other information that I can put in the public arena in terms of the future costs of the indemnity regulations.
We have been over this ground many times. I believe that, with the guidance we will be providing, these consultation regulations provide a satisfactory way forward for implementing the legislation that was put in place under the Water Act 2003.

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I reiterate that the Government have no intention of imposing fluoridation in any area. It has been our policy throughout, and continues to be our policy, that decisions must be taken locally, following well-informed consultations on the issues involved.
On Question, Motion agreed to.

Water Supply (Fluoridation Indemnities) (England) Regulations 2005
9.5 p.m.
Lord Warner: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the draft regulations laid before the House on 22 February be approved [10th Report from the Joint Committee].—(Lord Warner.)
On Question, Motion agreed to.

Opticians Act 1989 (Amendment) Order 2005
Lord Warnerrose to move, That the draft order laid before the House on 24 February be approved [10th Report from the Joint Committee].
The noble Lord said: Adjusting my spectacles, I can say that this is an order about patients. Patients are at the heart of our changes to the regulation of opticians and other health professions. This order will improve the way that the General Optical Council protects patients: by setting standards for the profession; by taking action when an optician falls below those standards; by requiring continuing education and training; by limiting the exercise of important specialisms to those who have a recognised expertise, and by legalising the direct sale of contact lenses, and setting standards for it.
The Government have a programme to modernise the way that health professions are regulated. This order is part of that. It updates the legal framework for opticians in a way that follows the model we used for doctors, nurses and other health professions. Our work is making regulation more responsive to patients' needs and better at protecting them. Noble Lords will recall that Dame Janet Smith's report from the Shipman inquiry raises some important issues about the regulation of doctors, and as we address those we are thinking carefully about the regulation of all health professions, not doctors in isolation.
Regulatory bodies have risen to the challenge that we have set them. The General Optical Council is not an organisation which is on the front pages of daily newspapers. But it has played a full part in bringing changes about. The GOC has worked hard with us to develop the proposals in this order and I commend the work that is has done in this area.
It is in the nature of amending legislation that the order can be hard to follow. I hope that the version of the Opticians Act "as it would look", which we have
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made available, is helpful. I would like to summarise quickly the main changes that the order brings about. The first big group of changes we encounter on reading the order, after some material about committees, concerns registration. Article 9 brings in student registers. These will protect patients by ensuring that students get their practical experience under the control of the GOC. Students spend time with patients and it is right for patients to have the same protection with a student as they do when they see a registered optician.
Article 11 brings in the recognition of specialisms. The General Optical Council has immediate plans to recognise three kinds of specialist: those who can fit contact lenses, those who can administer drugs as part of their practice, and those who will in future be able to prescribe drugs. Extending prescribing to properly qualified optometrists will benefit patients by allowing them to receive a wider range of treatments, more quickly. The order allows the GOC to identify which optometrists have gained the specialist knowledge to prescribe safely.
Article 12 brings in a legal requirement to have insurance. I am clear that this is an important step forward in protecting patients. At present, regulators such as the GOC tell professionals they need to be adequately insured, in case they have to pay damages to a patient. But we may not find out that someone has failed to insure until after the event, when there is a patient who cannot be compensated.
After these registration changes, the next big area of improvement is in professional training and development. Here I want to draw attention to Article 14 of the order, which brings in powers to have compulsory continuing education and training. The days are now long gone when a health professional gained a lifetime's knowledge before qualifying and anyone's practice can become stale. The optical professions have, very responsibly, built up a voluntary system of continuing education and training. This new order ensures that all will now need to comply. Patients will be protected and have confidence that the person treating them is up to date with knowledge and skills.
We then move on to the largest section of the order, on fitness to practise. This is a major updating of how the GOC deals with an allegation that an optician's fitness to practise is impaired. The same legal approach ought to apply to a problem with a doctor, nurse, dentist or optician or many other health professionals. When our legislative changes are complete, it largely will. At present however, the GOC lacks powers which it needs to have. For example, at present the GOC can deal only with what the law calls "misconduct". Sometimes, however, the underlying problem is poor health, or poor professional performance, which can affect the ability to do a job. The order spells out that the GOC can take action on those matters too, avoiding the need for hair-splitting debates about the meaning of "misconduct".
Another example is that if the GOC finds that an optician's fitness to practise is impaired, it has limited options at present: to strike him or her off; to suspend

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their registration; or to do nothing. The order will give it a new option, to impose conditions on the person's registration for a period. Those might be to seek training, or anything else reasonable that would make the practice safe for patients.
The last part of the order I would pick out for mention now is about contact lenses. Articles 18 and 20 free up the market so that a patient who wants to can buy contact lenses direct from a supplier; for example, on the Internet. This is a freedom which some patients, very reasonably, want. Obviously they need confidence, though, that the lenses they receive will be the ones that the optician intended.
In future he will provide a patient with a specification and the seller must have the specification to carry out a sale. The law will also require the seller to employ an optician or doctor to direct the sale. "Direct" in this context means that an optician needs to be in the management chain, accountable for what goes on between customer and seller. That will safeguard patients by allowing the General Optical Council to intervene against either the company or the optician if they fail to maintain high standards.
A further point on contact lenses is to regulate the sale of cosmetic lenses in the same way as other contact lenses. Those lenses are not harmless simply because they do not have an optical effect. All lenses can prevent normal amounts of oxygen from reaching the eye, which can lead to bacterial infection. Cosmetic lenses are no different, so again an optician should be involved. When an optician supplies a lens he can help the user to minimise the risk by dealing with whether the eye is suitable for contact lens wear; which lens is appropriate; advice on care of the lenses and eyes; and advice on aftercare if there are problems.
These are long-awaited reforms that will make a difference to patients. The Council for Healthcare Regulatory Excellence gave its,
"full support for these proposals, which are absolutely necessary to make the GOC more effective in protecting the public … I hope that the consultation and legislative processes will proceed speedily so that the GOC can implement the proposed changes as soon as possible".
Organisations as varied as the British Contact Lens Association, NHS bodies, the College of Optometry and the Institute of Optometry have expressed support. In the words of one NHS respondent,
"These changes are welcome as they pave the way for more efficient and transparent processes within the GOC as well as bringing the processes into line with those of the other healthcare professionals".
I beg to move.
Moved, That the draft order laid before the House on 24 February be approved [10th Report from the Joint Committee].—(Lord Warner.)
Earl Howe: My Lords, on behalf of these Benches I express my appreciation to the Minister for introducing the order, which I welcome without hesitation. As he rightly says it is the latest in a series of reforms to the regulation of the healthcare professions heralded originally by the NHS plan. I am in complete unanimity with him on the desirability of maintaining
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the principle of professional self-regulation while ensuring that the way in which the regulatory bodies are structured and composed give the general public confidence in the professional ability of the practitioner and, if need be, the confidence that they will be protected if things go wrong.
In the latter regard my understanding is that the hearings panel of the General Optical Council will be composed of optometrists, dispensing opticians and lay members. If the Minister can elaborate on that it would be helpful. The balance on that panel is important because it is from that panel that the members of the Registration Appeals Committee and Fitness to Practise committee will be drawn. Those committees, perhaps more than any others. will determine the sense of collective ownership which the GOC will, we trust, engender. Of course, having said that, it is worth emphasising that the number of complaints against optometrists is very small. That in itself should give the public reassurance.
I should like to thank the Minister for kindly arranging to send me an amended version of the Opticians Act 1989 which is, of course, the current governing statute. The amendments to the Act, which this order will create, highlight some quite serious shortcomings: the limited range of cases in which the GOC can act; its limited powers in relation to fitness to practise cases; and the absence of a power to order an interim suspension. In addition, the GOC cannot at present set standards of competence for new or existing registrants or acquire adequate insurance against professional liability. Nor can it require opticians to undertake continuing education and training.
All these important lacunae are appropriately addressed in the order before us. Additionally, I particularly welcome the provisions relating to prescribing powers for certain categories of specialist, which seem to me entirely justified.
I also welcome the fact that the sale of cosmetic contact lenses is now to be regulated and will have to be supervised by a suitably qualified person. I have been anxious about this for some time and tabled a Question for Written Answer on the issue as far back as 1998. The reply I received was that the Government were keeping the matter under review. We have known for some time that those who sell these lenses fail to provide information on how they should be cleaned and stored which seriously increases the risk of certain eye infections, one of which, acanthamoeba, can lead to ulceration of the cornea and ultimately to blindness. So this is not by any means a trivial matter. I am glad that at long last it is to be dealt with.
I want to ask the Minister a question on continuing education and training. Compulsory CET has been warmly welcomed by the profession with the exception of one particular group. Dispensing opticians have been particularly exercised by the CET proposals since they will be forced to pay for their CET to maintain their registration with the GOC but, since they are private practitioners who do not operate under the General Ophthalmic Service, they will not receive any contribution from the NHS to help them to meet their

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costs. Given that very many of those private practitioners relieve the NHS of a burden which otherwise it would have to carry, I wonder whether the Minister has any sympathy with the concern which they have expressed.
This is an important order. I am glad the Government have found parliamentary time to bring it forward. I wish the new General Optical Council well as it takes forward these very positive modernising changes.
9.15 p.m.
Baroness Barker: My Lords, I too welcome this order. I also thank the Minister very much for circulating a revised version of the measure which was extremely helpful. I welcome in outline the quite dramatic step forward that this represents for the General Optical Council. It is clear that the range of measures which will be open to it will turn what has been a rather blunt instrument into a much more finely tuned one. In particular the fitness to practise reforms should be welcomed by practitioners and users.
I have three questions about that for the Minister. First, on the consequential amendment, I wonder whether the protection of vulnerable adults legislation should be incorporated into this measure. My views may be coloured by a case I heard about that involved an optician. I ought not to go into details, but I would like to raise the issue.
My second question is whether the mis-selling of glasses will be covered by the regulations. I imagine that it will, but I would be grateful if the Minister will say how it will be covered.
Thirdly, can the Minister tell the House what provisions there will be to involve users in the consultative committee? The involvement of users is a valuable method of driving up good practice and would seem to be within the spirit of the order in updating the profession.
I welcome the order as it applies to contact lenses. I have long been concerned about the sale of contact lenses and glasses by people who are not able to tell customers at the point of purchase whether the glasses or lenses are suitable. By and large, I welcome the order as I think it will protect people from eye conditions that are potentially extremely damaging —and I say that with the heartfelt emotion of someone who once struggled to wear contact lenses and gave up the attempt.
As a parliamentarian given the responsibility of scrutinising the regulations, I feel that there is a matter that I must raise. The explanatory note says that in 2002–03 US regulators were notified of about 100 adverse incidents involving cosmetic contact lenses. That is 100 out of how many? What proportion of sales are we talking about? How widespread is the issue? The answer to that does not appear in any of the papers. The Minister may not be able to answer me tonight, but I would like to have a sense of how widespread the issue is and, therefore, whether the measures are proportionate.
Lord Warner: My Lords, I shall answer the last question first, mainly because I know that I do not know the answer. I also have the figure of 100, but what it is 100 out of, I am not altogether sure. I need to look into the details of the research and then I will write to the noble Baroness. Mis-selling is covered by the regulations and would be misconduct.
The noble Earl, Lord Howe, raised a question about the hearings panel. It is the main innovation in the order and is a way of putting some distance between the council and individual fitness to practise decisions, and of giving those decisions greater independence. Any allegations will be heard by the fitness to practise committee, which will be set up afresh for each hearing, using people from the panel. The panel will not contain council members. The hearings panel will be made of up three groups: optometrists, dispensing opticians and lay people. The composition of the panel will be set out in rules made by the General Optical Council that will be laid before Parliament. I cannot give more details than that, but that is the current position.
Regarding the dispensing opticians, we are in a difficult position. They are not included in primary care trust lists, and their position will be considered as part of the review of general ophthalmic services, which will begin shortly. However, I cannot give any assurance at present that NHS money will be available to reimburse dispensing opticians for time spent on training. As with all professionals, though, they need to keep their training up to date. That is the best I can do for the noble Earl at this time.
I have tried to respond to the points raised by noble Lords. I am grateful for the support for this order from both Benches opposite, and I commend it to the House.
On Question, Motion agreed to.
Baroness Andrews: My Lords, I beg to move that the House do now adjourn during pleasure until we are ready for the Third Reading of the Prevention of Terrorism Bill. The precise time will be shown in advance on the Annunciator.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 9.25 to 10 p.m.]

Prevention of Terrorism Bill
10 p.m.
Read a third time.
Clause 1 [Power to make control orders]:
Lord Falconer of Thorotonmoved Amendment No. 1:
Page 1, line 9, leave out "the Secretary of State or (as the case may be)"
The noble and learned Lord said: My Lords, in speaking to Amendment No. 1, I shall speak also to Amendments Nos. 2, 3 and 4. Amendment No. 1 is a tidying up amendment. It removes a reference to the Secretary of State imposing obligations on the

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individual. That is no longer appropriate in the light of amendments which provide for all orders to be made by the courts.
Amendment No. 2 corrects a grammatical error which had crept in. It removes a second redundant reference to "the court" in the same line.
Amendment No. 3 removes Clause 10, which deals with appeal rights to the courts against decisions by the Secretary of State in making non-derogating orders. The clause is now inconsistent with the other provisions in the Bill in the light of the House's decision that non-derogating control orders should be made by the courts. I regret that this amendment was not moved on Report. It should have been.
On Amendment No. 4, the Bill currently provides for a right of appeal from the Secretary of State's decision to modify a derogating control order. However, following the amendments made by the Government to provide that the court should make derogating control orders, this provision is redundant. I apologise for not moving the amendment as intended on Report. I beg to move.
On Question, amendment agreed to.
Clause 7 [Modification, notification and proof of orders etc.]:
Lord Falconer of Thorotonmoved Amendment No. 2:
Page 9, line 4, leave out "or the court"
On Question, amendment agreed to.
Clause 10 [Appeals relating to non-derogating control orders]:
Lord Falconer of Thorotonmoved Amendment No. 3:
Leave out Clause 10
On Question, amendment agreed to.
Clause 11 [Appeals relating to derogating control orders]:
Lord Falconer of Thorotonmoved Amendment No. 4:
Leave out Clause 11
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On Question, amendment agreed to.
Baroness Scotland of Asthal: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Scotland of Asthal.)
Lord Roper: My Lords, I do not want to detain the House for too long. We have had very useful debates. We could not have had those debates if our Public Bill Office had not been so efficient in producing the papers for us. I believe that we should refer to that before we agree the Motion.
Lord Kingsland: My Lords, I endorse everything that has just been said by the Chief Whip from the Liberal Democrat Benches.
We undertook, at the beginning of the procedure as an opposition, to use our best endeavours to deliver the Bill to the Government by Tuesday night. We have done so. It may not be quite the same Bill as the one that arrived in your Lordships' House—indeed, we believe it to be a better Bill than the one that arrived a few days ago.
We now entrust the Bill to another place in full confidence that the amendments which have been tabled, and successfully won, will remain on its face.
Lord Falconer of Thoroton: My Lords, I wish to say three things. First, I entirely endorse what the noble Lord, Lord Roper, said about the Public Bill Office, which has done a fantastic job. Secondly, it has been an incredibly testing experience for everybody in this House —as it has also been for all the officials, from the Home Office and the Department for Constitutional Affairs, who have done an absolutely fantastic job despite all the pressure that they were put under. Thirdly, whatever our disagreements over the content of the Bill, it has been a most civilised debate in this House. I am grateful to both opposition parties for achieving that; I thank them very much.
On Question, Bill passed, and returned to the Commons with amendments.
House adjourned at five minutes past ten o'clock.

Official Report of the Grand Committee on the Charities Bill [H.L.]
(Fifth Day)
Tuesday, 8 March 2005.

Official Report of the Grand Committee on the Charities Bill [H.L.]

  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]
  The Deputy Chairman of Committees (Lord Brougham and Vaux): This is the fifth day of the Charities Bill in Grand Committee. Members of the Committee know the rules by now, but there will be Divisions in the House. When the Division Bell rings, I shall ask the noble Lord to stop speaking immediately. Members of the Committee will kindly come back as quickly as possible. We will stop for 10 minutes or until such time as the Front Bench spokesmen arrive. The result of the Division will appear on the screen later.
  Schedule 4 [Appeals and applications to Charity Appeal Tribunal]:
  Lord Hodgson of Astley Abbottsmoved Amendment No. 98:
  Page 77, leave out lines 15 and 16.
  The noble Lord said: I rise to speak to Amendment No. 98. As the Deputy Chairman has reminded us, this applies to Schedule 4, which concerns,
  "Appeals and applications to Charity Appeal Tribunal".
  Amendment No. 98 would remove paragraph 2(1) on page 77. Paragraph 2 of new Schedule 1C to the 1993 Act relates to hearings by the tribunal of appeals against orders made by the Charity Commission under Section 9 of the Charities Act 1993. Section 9 states:
  "(1) The Commissioners may by order—

  (a) require any person to furnish them with any information in his possession which relates to any charity and is relevant to the discharge of their functions or of the functions of the official custodian;

  (b) require any person who has in his custody or under his control any document which relates to any charity and is relevant to the discharge of their functions or of the functions of the official custodian—

  (i) to furnish them with a copy of or extract from the document, or

  (ii) (unless the document forms part of the records or other documents of a court or of a public or local authority) to transmit the document itself to them for their inspection".

  Schedule 4 to the Bill (page 79, lines 46–52) allows anyone who is required, by an order under Section 9, to produce information or documents, to appeal to the tribunal against the order. The tribunal may, according to Schedule 4, quash the order or substitute any order that the commission could have made.
  GC252
  However, paragraph 2(1), the subject of this amendment, of Schedule 4 limits the power of the tribunal in considering such an appeal, such that the tribunal may not consider the contents of the commission's order.
  Sub-paragraphs (2) and (3) further restrict the tribunal's powers in relation to appeal against Section 9 orders. According to paragraph 2 as a whole, the tribunal may allow the appeal only if the document or information does not relate to a charity or is irrelevant to the discharge of the commission's or the official custodian's functions. In other words, the tribunal may not consider whether the commission was making proper use of its powers in making the order in the first place and quash it on that basis.
  We can see no rationale for treating Section 9 orders differently from other matters. It would be preferable for the whole of paragraph 2 to be removed, with Section 9 orders being treated either according to the general appeals process prescribed in paragraph 1 or as a reviewable matter, under paragraphs 3 and 4. But we would be content with removing Section 1. I beg to move.
  Lord Bassam of Brighton: I think that I need quite a lot of persuading on that. I listened carefully to what the noble Lord said. I shall explain why that is and will go quickly through what Section 9 of the Charities Act 1993 does.
  It is a general information-gathering power, which gives the commission the power to call by order for information and copies of documents from a charity or a person. But it can only do so on the following grounds: first, that the information is relevant, obviously, to the discharge of its functions or that of the official custodian; and, secondly, that the information or document relates to a charity.
  It is entirely appropriate that such orders can he appealed against on the grounds that the information does not meet one or both of those criteria, which is why the criteria for appeal against the use of the power set out in Schedule 4 directly reflects the criteria for the use of the power as provided for in Section 4 of the 1993 Act.
  The limited right of appeal here focuses the tribunal on the legitimacy of the commission's action in issuing the order. We do not believe that there is a need to extend the rights of appeal. Indeed, it could be argued that any further right to appeal would force the tribunal effectively to second-guess the operational work of the commission below a level at which a decisive operational decision had been made. That would curtail the commission's ability to carry out its business effectively and efficiently.
  It is perhaps worth remembering that, in practice, orders are often made under Section 9 as a way of providing a person or a charity with the legal comfort of a statutory basis for providing the commission with information. Where the commission takes further action on the basis of the information supplied, there will generally be a separate route of appeal to the tribunal.

  GC253
  I hope that the noble Lord will agree that that is not a full decision of the commission warranting an onward appeal. The amendment is unwise for the practical running of the commission and its ability to use information and be operationally decisive. I hope that the noble Lord will be happy to withdraw it.
  Lord Hodgson of Astley Abbotts: Although I am grateful for that explanation, I am not sure that I fully understand it or agree with it. It does not address the question of why the appeal could not consider whether the commission was making proper use of its powers in making an order, and quash it on that basis. However, this is quite a technical matter about which the Charity Law Association was concerned. I will not endeavour to prolong our discussion this afternoon. I will read carefully what the Minister said, consult and see whether he has been able to answer the technical point. I do not think that he has, but I will rest there and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Phillips of Sudburymoved Amendment No. 99:
  Page 78, line 27, at end insert—
  "( ) References in the second column of the Table to any other person who is or may be affected by the decision, direction or order shall include any person or persons representing or acting on behalf of any class of persons (including charities) who may be thus affected."
  The noble Lord said: The amendment relates to Schedule 4, which clarifies what decisions, directions orders and matters may be appealed against or reviewed by the Charity Appeal Tribunal. The middle column of the table in the schedule sets out those entitled to appeal or to seek a review and the third column sets out the powers exercisable by the tribunal with regard to the matter appealed or to be reviewed.
  This is a probing amendment. I am not entirely sure whether those to whom my amendment refers—namely,
  "persons representing or acting on behalf of any class of persons (including charities) who may be",
  affected by the decision, direction or whatever—are or are not within entry (c), as it typically is in the column: the class of persons who can seek a review or make an appeal, comprising,
  "any other person who is or may be affected by the decision".
  Explaining that has not been easy and I am sure that I have confused the Committee, but I hope that what I am getting at is clear enough, because it would be a sorry state of affairs if, for example, a group of charities felt that an issue decided on by the Charity Commission was inimical to their joint interest and selected an individual or one of the charities to act on their behalf, but that individual was cut out under the wording of the table from bringing the matter before
  GC254
  the Charity Appeal Tribunal. That is to be one of the most important advances we hope to achieve by the Bill. On that basis, I beg to move.
  Lord Bassam of Brighton: If the noble Lord, Lord Phillips, is confused in moving the amendment, I am probably on reasonably safe ground. I shall try to confuse him—no, no.
  I am grateful to the noble Lord for moving this probing amendment. It gives me the opportunity to clarify how the Government intend this aspect of the tribunal to operate.
  Schedule 4 provides a list of all the commission's decisions, directions and orders that could be appealed to the tribunal, the persons that could bring each type of appeal and the findings that the tribunal could make in relation to each type of appeal. For most of the commission's decisions, directions, and orders, the table in Schedule 4 provides the right of appeal to any person who is or may be affected by the decision, direction or order. A person who is or may be affected by the decision is not defined in the schedule. That would be a matter for the tribunal to determine in each case.
  As I understand it, it is usual practice to allow an appellant to be represented at a tribunal. The representative need not be a lawyer—after all, that was the original purpose of tribunals, to try to move away from that mode of operation. The Bill would allow a number of parties to bring an appeal, somewhat like a class action and they could agree to use the same representative to put their case. However, if a number of parties were to make an application to the tribunal, it would have to be satisfied that all the parties in question were affected by the decision and therefore eligible appellants. For example, if 10 parties were to make an application to the tribunal, but only seven could demonstrate appeal rights, the tribunal would not be able to make a decision in relation to the other three.
  It would not be appropriate to give direct appeal rights to representatives, unless the representative was an affected party in his own right. The right to appeal lies with the person listed in the second column to Schedule 4, as the commission has made a decision which affects that person in some way. It will be for the tribunal itself to determine whether an applicant could be considered a party to proceedings by virtue of being, or potentially being, affected by the commission's decision, direction, or order. It is right that the tribunal itself consider these matters, as the circumstances will vary in each case or class of case.
  I can help the noble Lord by assuring him that in drawing up the rules, full consideration will be given to allow for the proper representation of parties before the tribunal. As I have said, the rules will be subject to extensive consultation and I would be happy to ensure that noble Lords involved in the Grand Committee's consideration of the Bill will be part of that consultative process. I hope that the noble Lord will accept that we do not consider it appropriate for a person acting in a representative capacity, but who is

  GC255
  not himself affected by the decision, to be given appeal rights and I hope that the noble Lord will withdraw the amendment.
  Lord Phillips of Sudbury: I shall read the noble Lord's words carefully and, for the time being, I beg leave to withdraw the amendment. I am obliged to him.
  Amendment, by leave, withdrawn.
  [Amendment No. 100 not moved.]
  Lord Phillips of Sudburymoved Amendment No. 101:
  Page 85, line 16, column 2, at end insert ", and
  (c) the charity trustees"
  The noble Lord said: The amendment deals again with the table to Schedule 4. particularly a class of decision, which may be appealed against to the tribunal, that is an order made by the Charity Commission under Section 73C(5) or (6) of the 1993 Act, which is to be found in Clause 35 of the Bill. That clause inserts into the Charities Act 1993 more protective provisions concerning the position of a trustee who is disqualified from receiving remuneration under the 1993 Act.
  [The Sitting was suspended for a Division in the House from 3.44 to 3.55 p.m.]
  Lord Phillips of Sudbury: This amendment again deals with the table to Schedule 4, setting out in column 1 the basis on which an appeal or review can be asked for; in column 2, those who may appeal or ask for a review; in column 3, the powers exercisable in response to the appeal or review. This is a particular addition to one of the many matters included in the table—specifically, that part of the table that deals with orders under Section 73C of the 1993 Act, which is referred to in Clause 36, in the context of changes in charity law vis-à-vis remuneration of trustees. The measures will be inserted into the Charities Act 1993 to make plain what is the new regime. Broadly, the new regime sanctifies the remuneration of trustees under carefully controlled circumstances.
  Under Section 73C, the commission can disqualify someone from receiving remuneration and ask for remuneration to be reimbursed. The trustee affected by that can appeal to the tribunal. To get to the sharp end of the matter, the sole point of the amendment is that besides the trustee whose remuneration is to be taken away or reimbursed and besides,
  "any other person who is or may be affected by the order",
  we believe that the trustees of the charity concerned should be allowed to appeal against a tribunal decision. We believe that because, very often, trustees will have a strong view as to the circumstances in which the matter is dealt with by the tribunal and a strong view about the decision reached by the tribunal.
  It seems natural and necessary that the trustees, having their own objective and considered view about the fairness or unfairness of the tribunal decision, should themselves be of the category of people who can bring an appeal or review. But as things stand, they are not in either the first or second category. It is of
  GC256
  some importance that they should be allowed to present their reviews arid request an appeal when necessary. I beg to move.
  Lord Hodgson of Astley Abbotts: I have an amendment in this group, Amendment No. 159, which has as its purpose an objective very similar to that raised by the noble Lord, Lord Phillips, in moving his amendment. Indeed,
  "the trustees of the charity",
  are mentioned in paragraph (b) of my amendment, and are the thrust of the noble Lord's remarks.
  The amendment is not to Schedule 4, as is the noble Lord's amendment, but would introduce a new subsection (9) to Clause 35, on page 33 of the substantive Bill. The noble Lord has made his points on the matter. We do not object to the provisions of Clauses 34 and 35, which widen the definition to not only trustees but persons connected with trustees and provide for disgorgement for breach. We do not object to those. However, we are concerned that the draft Bill contained a provision in Clause 28(8), I think, that any trustee or person who was required to repay should have the right of appeal to the Charity Appeal Tribunal, and this provision has now been lost in the substantive Bill.
  The Law Society has drawn our attention to that point and, indeed, has suggested that it is better to put the provision on page 33 rather than in the schedule. Far be it from me to decide exactly where the best place for it is. Obviously we are concerned about the omission and we understand that it could involve a breach of the provisions of the European Convention on Human Rights both as to deprivation of property and the right to be heard by a tribunal. If such a provision for an appeal is not retained, there is a risk that the commission's order will be incapable of challenge and the commission will be given an uncontrolled power. That would be most unsatisfactory.
  While I entirely support what the noble Lord, Lord Phillips, said, Amendment. No. 159 would reinsert the paragraphs in the draft Bill, ensuring the right of a trustee facing disqualification to appeal to the Charity Appeal Tribunal.
  4 p.m.
  Lord Bassam of Brighton: These amendments work together in the sense that they provide for "charity trustees" to be specified as persons eligible to appeal against an order of the Charity Commission requiring a charity trustee to repay any remuneration that he or someone connected with him has received from the charity or requiring the charity trustee or a person connected with him not to receive that remuneration.
  I think that I indicated earlier that careful consideration had been given to rights to appeal in relation to orders, decisions and directions of the Charity Commission, and, as we commonly understand, the appellants in every case are provided at the table in Schedule 4.

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  In dealing with the amendment, it may help if I explain a little more about why an order under Section 73C would be made in the first place. Under the provisions of the Charities Bill, a charity trustee would be disqualified from being involved in any decisions relating to the agreement between the charity and him or someone connected with him for the service provided to that charity. So, for example, a charity trustee who was a trustee of a village hall and a plumber would be disqualified from acting as a charity trustee in relation to any agreement made between him and the village hall for his services as a plumber. The Charity Commission would make an order requiring that disqualified trustee to repay some or all, or not to receive some or all, of the remuneration for a service which he provided only where it was satisfied that he had acted as a charity trustee in relation to the agreement when he was disqualified from doing so.
  As currently drafted, the Charities Bill provides that the trustee or connected person and any other person affected by the order may appeal against an order under Sections 73C(5) or (6) of the 1993 Act. And so the right of appeal here already extends to the person subject to the order.
  On the matter of conferring the right of appeal on the charity trustees, it is the duty of the charity trustees to act in the best interests of the charity. In most circumstances, we would argue that it would not be in the best interests of the charity for the charity trustees to oppose an order requiring someone to repay or not to receive remuneration from the charity. It might be the case that the charity trustees support the charity trustee in question, but it would be for the relevant charity trustee to submit the appeal and not the charity. If, in a particular case, the charity trustees had a legitimate interest in pursuing an appeal, they would in any event be able to do so as they would fall within paragraph (b), which refers to,
  "any other person who is or may be affected by the order".
  Having explained that, I hope that the noble Lord will feel able to withdraw his amendment.
  Lord Phillips of Sudbury: I am grateful to the noble Lord. As he said, the trustee whose remuneration is being interfered with has a specific right under the table to make an appeal. But I put this to the Minister. He said that the trustees of a charity in any particular circumstances may be any other person who is affected. However, with great respect, I do not think that that is consistent with the way in which the table is scheduled because many parts of the schedule have three categories of person. For example, the middle of page 85, just under the place where the amendment would be inserted, states that the persons who may bring the appeal are,
  "(a) the charity trustees,
  (b) — the charity itself, and
  (c) any other person who is or may be affected by the decision".
  That is repeated all the way through, so there is a distinction in the Bill between a person affected and the charity trustees. With respect again, a great deal of
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  importance would surely be attached to an order made by the Charity Commission for a trustee to repay, for example, a substantial amount of remuneration because the complicated provisions inserted by the Bill into the Charities Act had not been pursued.
  The charity trustees may have a very particular point of view, in terms of the whole morale and functioning of their charity. I can imagine circumstances in which a trustee who was in the eye of that storm might well step back and say, "I absolutely refuse to take any steps to protect myself. That is not what I want to do or should do. It is inimical to my view of trusteeship". The trustees of the charity might be strongly of the view that the best interests of the charity have not been served by the order made by the Charity Commission, and thus might want to bring an appeal, largely because of the view taken by the individual trustee affected.
  I would be grateful if the Government would review the matter. I see no reason at all why they should not add "the charity trustees", as they have done in so many of the other appeal rights. That would overcome the circumstances about which I am speculating.
  Lord Bassam of Brighton: In response, it is worth saying that most orders are made on the charity, so that the trustees are given a specific right and are clearly affected. Under the power, the order is made on a trustee individually. The other trustees might be persons affected but are not always so. I am not sure that the problem that the noble Lord sees is in reality a difficulty. I am minded, similarly, to reflect further on his words. With all due respect to him, there may he a misunderstanding on his part. I am always open to taking a second look at issues, but I do not necessarily follow what he is saying on this matter.
  Lord Phillips of Sudbury: I hesitate ever to suggest that the misunderstanding could be on the part of the Minister, but I shall do so on this occasion. Frankly, he needs to satisfy me that, if his argument is correct—if,
  "any other person who is or may be affected",
  includes charity trustees—why does the rest of the table separate those groups and include both of them?
  Lord Hodgson of Astley Abbotts: It is interesting that the Law Society, which has also been concerned on the subject, suggests adding the third category to which the noble Lord refers in its amendment, even though that amendment comes in a different place. It thinks that there is a problem along the lines that he is describing.
  The Deputy Chairman of Committees: I am afraid there is a Division, so we will have to adjourn for 10 minutes.
  Lord Bassam of Brighton: Does the noble Lord want to withdraw his amendment so that we can move on?
  Lord Phillips of Sudbury: As a matter of sentiment, no, but as a matter of practice, yes. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.

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  [The Sitting was suspended for a Division in the House from 4.9 to 4.19 p.m.]
  Lord Hodgson of Astley Abbottsmoved Amendment No. 101A:
  Page 85, line 32, at end insert—

  "Determination of the Commission under section 75F(2) of this Act to require trustees to make disclosure of a donation otherwise sought to be made without disclosure otherwise than as referred to in section 75F(1)."

  The Persons are—(a) the charity trustees of the charity to which the determination relates, and (b) (if a body corporate) the institution itself.

  Power to quash the determination and (if appropriate) remit the matter to the Commission with such directions as the Tribunal may think fit."

  The noble Lord said: Amendments Nos. 101A and 147A concern the right of charities to make anonymous donations. Amendment No. 147A inserts a new clause into the Bill to this effect and is the central plank of the discussion. However, since under our proposals the Charity Commission will have the power to require disclosure, this in turn gives rise to an event which is appealable to the Charity Appeal Tribunal. Hence the grouping with Amendment No. 101A, which adds that event to the lengthy table given on pages 79 to 85 in Schedule 4 to the Bill, which discussed earlier. The grouping is slightly strange, therefore, because we have been forced to approach the issue back to front, considering the appeal before we have considered the event. However, "that's the way the cookie crumbles", as they say.
  The purpose of the amendments is self-evident. No charity can properly seek to have its operations cloaked in secrecy from its regulator, but the fact remains that some charity donors will wish to hide their support from those whom they have supported. That will require both an element of non-disclosure of the source—or the recipient—and the fact of the gift in the accounts, which will simply have to be referred to under some general heading such as, "other charitable expenditure". The effect of the two amendments would be that, if a charity donor so wishes, he or she may donate while remaining anonymous.
  The reason for such anonymity is simple. Doing good by stealth has always been a form of philanthropy, which has been seen to have the highest merit, because it is done for the good of the recipient without the donor taking any credit for him or herself. It was Alexander Pope who said:
  "Do good by stealth, and blush to find it fame".
  More practically, in some cases donors may wish to protect themselves against the possibility that a substantially publicised donation may attract an excessive workload for trustees in terms of applications for donations from other potential donees who believe that they, too, might have a claim for similar bounty.
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  It is no more than a statement of fact that many donors prefer their donations not to be too readily traceable. The use of anonymous names for charitable donor foundations is a commonplace and has been used to try to achieve anonymity. Of course, all too often, the anonymity originally sought is lost as the true identity behind the donor foundation becomes well known. The result can be that those otherwise inclined to make charitable gifts through foundations may if denied the chance of anonymity be tempted to limit their generosity to one-off gifts out of income through the medium of specially created anonymised CAF accounts, or similar. That cannot be in the interests of the charitable sector.
  As long as there is a suitable mechanism for ensuring that the anonymous gift cannot be shielded from disclosure to the Charity Commission and/or the Inland Revenue, and the commission has suitable powers to require disclosure if it thinks fit, charities ought to be at liberty to seek to give anonymously.
  My noble friend Lord Sainsbury spoke powerfully on this point at Second Reading, and I know that he wants to contribute to the debate this afternoon, so I shall say no more. But I hope that the Minister understands the persuasive logic of the amendment. I look forward to hearing the Minister's reply. I beg to move.
  Lord Sainsbury of Preston Candover: As I have not spoken in Grand Committee, I wish to declare an interest as I did on Second Reading. Having raised this issue in the speech, I welcome and support the amendments. I remind the Committee that the importance of the grant-making sector is within the charities—the importance of not only the size of the grant-making trusts, which give something like £22 billion a year in donations, with regard to the top 500, but also their role in innovation, taking risks and supporting unfashionable causes. They are an important part of the charity sector.
  We do not want simply to rely on the existing grant-making trusts, but do all that we can to encourage new wealth to do what previous generations have done and commit funds in perpetuity—rather than using the excellent system of gifts, arid the benefit that can come from the gift system. That is now more attractive to a large benefactor, as it helps him to keep his anonymity, using gift aid. It can be entirely private and he need have no dealings with the Charity Commission in the gift aid to a charity, so he is free of bureaucracy. At present, we have a situation whereby most senior QCs recommend to their clients, when considering a new foundation, that they should not do so because of the hassle, the bureaucracy and publicity if they did it that way rather than through gift aid.
  If the present rules applied, I would never have set up the foundation I did. The rules changed only in 1995, requiring trusts to list their 50 largest grants by name. An exception was allowed if there was a particular reason for anonymity on a small number of the 50. The second SORP came out in 2000, making it necessary to obtain clearance from the Charity

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  Commission to give anonymity to exceptional donations. The commission showed no liking of that and, to my knowledge, it was difficult on the issue.
  However, worse was to come. The new SORP, which is presently in consultation, contains a rule that anonymity can be given only to grants which could lead to violence or physical harm as a result of publicity. We can all think of what that might refer to. It shows that the Charity Commission does not like anonymous gifts.
  Of course the commissioners have full information, as must the Inland Revenue, but I believe that it is almost like a human right: you should be able to give money to a foundation and to make the give without drawing attention to yourself. I invented the name "Linbury" for my own trust in order to disguise its origin, but it did not last long. It was the first half of my wife's name and the second half of mine, but inevitably it soon leaked out. You cannot achieve anonymity by being clever with a name.
  I hope that the Government will look favourably on the need to return to where we were in 1995 when it was possible to make anonymous gifts.
  Lord Swinfen: I have slightly mixed feelings about the amendment because I administer a grant-seeking trust. Grant-seeking charities like to know where their funds are coming from so that they can more appropriately target their appeals for funds. Understandably, they spend a lot of time researching various volumes to discover the grant-making foundations which are liable to look kindly on their activities—the purposes for which they are seeking their funds.
  Individuals can make anonymous donations with ease. A few notes of the realm in an envelope sent to a charity with no covering note is an anonymous donation. Anonymous donations can be made by instructing one's bank to send a banker's draft—money taken from your account—to the charity, which will have no idea of the source. It may write to the bank asking for thanks to be passed to the client, but it will not know who the client is. Anonymous donations can also be made through charitable foundations.
  On the whole, however, I strongly support the amendment. It helps charitable foundations to make gifts outside their normal giving remit if they come forward with a cause or a charity which they believe richly deserves to be supported but from where they do not want to make appeals in future. To allow charitable foundations to make anonymous grants, particularly substantial ones—they are the only bodies which can make substantial grants—
  would be extremely useful. I therefore follow the example of my noble friend Lord Sainsbury in supporting the amendment.
  4.30 p.m.
  Lord Phillips of Sudbury: I wish to ask some questions of the noble Lords, Lord Hodgson and Lord Sainsbury of Preston Candover, who, I think, said that
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  being clever with names was no guarantor of anonymity. I am bound to say that I do not believe that he was very clever with his name, but he is a notable philanthropist and we are hugely grateful to him for that.
  However, as one who, over many years, has dealt with the charity sector, one finds circumstances which are not all that unusual where a charity is offered a large sum of money by a donor, the name and identity of whom the trustees have misgivings about and are concerned that if they accept the gift, the donor would be at a commercial advantage or a philanthropic donor would make capital out of that gift. That could seriously harm the charity. I am not sure that the amendment takes account of that.
  If it were to mean that a charity was offered anonymous funds on a statutory condition that they could not either know who was giving the funding or make anything of it, there would be potential dangers—it would be open to that donor, having hidden behind the provisions of this clause, to decide to make public the donation in circumstances that could cause embarrassment.
  Lord Swinfen: I am grateful to the noble Lord for giving way. He used to work for a Christian charity that had strong objections to receiving donations from bodies involved in gambling or alcohol. Obviously, if the so-called anonymous donor, after having made an anonymous donation, made public that donation and the charity disapproved, there would be nothing to stop the charity returning that donation. I know that they may not like it, but that has been done by charities in the past, where they have not approved of where the money has come from. I am sure that that will happen again.
  I know that grant-seeking charities like to keep their funds, but they have the power to return an anonymous donation once the donor becomes public because they do not approve of how the funds have been raised in the first place, and to make public the fact that they have returned it.
  Lord Sainsbury of Preston Candover: I entirely understand the point. I never thought that the donor was anonymous to the charity that was offered the money. Of course, most charities would want to know from whence it came—and so they should. I feel that it should not be anonymous to the beneficiary, but to the general public. In those circumstances, a grant-making charity might go to charity "X" and say, "Look, we may be considering giving you a substantial grant. It would be on the understanding that it would be from us. You should publish it as being anonymous, but you should know who it is". It is entirely right that a charity should know from where the money comes. It should be anonymous to the general public, because it is private. I admit that it may be more difficult for other charities to know that that is a grant-making charity from which to seek funds.
  Lord Phillips of Sudbury: Perhaps I may respond to that before we become too muddled. I note what the noble Lord, Lord Sainsbury, said, but Amendment No. 147A states:
  "donations made by it shall he on terms that the name of the donor charity shall not be disclosed to the recipient".
  The recipient is the recipient charity. So I fear that, if his intention was as he stated, his amendment does not comply with it.
  Lord Sainsbury of Preston Candover: It is not my amendment; I saw it only yesterday because I have been abroad. Nevertheless, it is a good amendment, subject to that point. The recipient should have the right to know. Most people would want to know before they got a donation. They should receive it in confidence and not disclose it outside the trustees of that trust. I would accept that qualification; it is important.
  Lord Swinfen: Many charitable foundations already make donations to working charities subject to the fact that it should remain confidential and that no publicity should be given to it.
  Lord Phillips of Sudbury: I am grateful. The noble Lord, Lord Swinfen, makes the point that I was going to make. Why is a charity offered a gift on the express condition that it does not make the name of the donor known to the public then, under SORP, required to breach the condition? In those circumstances it would not be required to breach the condition, but the exceptions to SORP cover precisely those circumstances. Indeed, the situation would be complete nonsense were it otherwise, as it would mean that people who wanted anonymity could not attach that condition. A charity that wanted money could not receive it on that condition.
  The only other point that I would like to make is with regard to what the noble Lord, Lord Swinfen, said when he first intervened about repaying the money. That is all very well, but a great many of the charities of which I know, including some of which I am a trustee, receive funding that they immediately use. I can think of one this very week that has solicited £30,000 to remain alive. It is no good saying a year later, "Now we'll have to pay the £30,000 back"; that is simply not practical politics for a lot of charities. There is a problem.
  Lord Shutt of Greetland: This is clearly an area at which we need to look a little further. It seems perfectly proper for a UK charity to make grants to other countries where there may well be oppressive regimes for the relief of poverty. One can think of cases where, if all that were known, it would be very bad news, particularly to the recipients. The area is important. On one hand one greatly wants to be transparent, yet on the other there are circumstances where that would be incredibly dangerous.
  Lord Sainsbury of Preston Candover: I draw attention to the fact that SORP forces every charity to list every grant unless that grant may result in physical violence. That is the latest thinking. It does not want exceptions made.
  Lord Bassam of Brighton: I am extraordinarily grateful to all Members of the Committee who have contributed to the debate, which is very interesting. I am particularly grateful to the noble Lord, Lord Sainsbury of Preston Candover. We happened to have a conversation on the issue not long after Second Reading. When we had it, I could certainly see where he was coming from. In less complicated times. I would find easy agreement with the position that he has adopted. I can also well understand the noble Lord, Lord Swinfen, who expressed his mixed feelings but came down in support of the amendment.
  Having said all that, where do we sit on the matter? The current position is as set out in the 1993 Act, which, as I understand it, was given effect in 1995. As has been carefully explained and ably argued, the amendments are designed to allow a charity to make a donation without the recipient or, more particularly, the public knowing the identity of the donor charity. Many service-making charities make a small number of grants.
  The amendments raise issues for the donor charity, the recipient institution and the commission. The most important issue is that of transparency and accountability. The noble Lord, Lord Shutt, together with the noble Lord, Lord Phillips, has ably pointed us in that direction. In a sense, that is the spirit of the times in which many grants and donations are made. It would be fair to say that people have very high expectations of charities in that respect. In a sense, that underlines the thinking behind this Bill and its predecessor. With regard to my point about simpler and easier times, the amendment would very much go against the argument for greater transparency and accountability.
  There are two closely connected aspects to the amendment: first, to give a charity power to keep its identity hidden from the recipient of a donation; and, secondly, to exclude details of the donation from the public domain. Without the second, the first would clearly be unsustainable. We believe that it conflicts with one of the main, and important, principles of the Bill—that is, that public accountability and transparency of charities is in the public interest and, indeed, is a prerequisite for continuing trust and confidence in the charitable sector.
  There is already a range of circumstances in which a charity's donations do not have to be detailed in its accounts. It may help if I mention them as they already allow scope for non-disclosure where that is appropriate. Reference has been made to the Statement of Recommended Practice on charity accounting published last Friday. A charity does not have to disclose the identity of grant recipients in the following circumstances.

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  The first is when the grant is to an individual person. I think there will be general agreement on that point as it would be wholly inappropriate to ake public the names of people who may have received grants to help them in times of need or hardship or to help them with the cost of their education. The second is when a charity's grant-making activities are not significant in the context of its charitable activities as a whole. The third is when total grants to a particular institution are not significant in the context of all the institutional grants that a charity makes. The fourth and final circumstance is where disclosure of a particular grant would seriously prejudice either the grant-maker or the institution receiving the grant.
  Those exceptions are based on the recognition that sometimes factors outweigh the general presumption in favour of disclosure. The amendments of the noble Lord, Lord Hodgson, would, however, allow a charity to withhold from public disclosure any grant in any circumstances and for any reason—or for no reason at all.
  Supporters of these amendments might see the position of the donor charity as being similar to the position of a private individual who wants to make an anonymous donation. We argue that there are significant differences, the most obvious of which is that private individuals can do whatever they like with their money—rationally or irrationally. There is no justification for requiring private individuals to account to anyone else for specific charitable donations or for the general stewardship of their funds. Charities are not in this position because they enjoy privileged fiscal treatment at the expense of the public purse. In return, they should be required to submit to requirements of accountability and transparency in order to allow public scrutiny of the use they make of charitable funds.
  Moving to the practical, in our view the amendments seem likely to add to the bureaucratic burden of the donor. For example, donations would presumably have to be made via a third party; there would have to be arrangements for the transfer of the funds that did not undermine the anonymity; and it would be more difficult for the donor charity to check that its grant was being properly used and that any conditions attached to the grant were being met. From the recipient's point of view, the anonymity of a donation may well in itself raise a number of problems.
  Recipients are entitled to consider the source of the donation in order to decide whether or not it should be accepted—a point made very ably earlier in the discussion. The question arises as to how the recipient is to know whether or not the funds have originated from an activity which is in conflict with the charity's own work. The noble Lord, Lord Swinfen, gave an example of how that might look. If the number of anonymous donations increase significantly as a result of the amendments, that would become a practical concern for more and more grant recipients.
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  4.45 p.m.
  We also think that there might be difficulties with the audit of a recipient's accounts should it receive significant funds from an unidentifiable source. For example, would the recipient's auditor have to know the source of the donation before he or she could be satisfied that the transaction did not have to be reported under money-laundering regulations? We also wonder whether the Charity Commission or the Inland Revenue would be bound to disclose information given to them about the recipients of anonymous donations.
  Lord Swinfen: I thank the noble Lord for giving way. How often does he think that money raised totally illegally—either by terrorism or, for example, the Mafia—would be donated in order to launder money? Such organisations would want to keep the money and pass it through to an organisation where they could use it. I should have thought that donating money to charity would be outside that.
  Lord Bassam of Brighton: I am sure that the noble Lord makes a good point. But it is a serious concern and it could become a serious issue. I cannot pluck a figure from the air and say to the noble Lord on how many occasions that might happen in a given period. It would be foolish of me to make that sort of estimate. I can see—I am sure that the noble Lord would accept—that there may well be situations, individuals, networks or whatever, which might want to do that. I am sure that that is not beyond the realms of possibility. I have not had a discussion with the serious fraud squad about that issue, but it is worth taking some time to think it through.
  Another question is how the Charity Commission or the Inland Revenue would respond to a request under the Freedom of Information Act for the sort of information that they would be bound to disclose about to the recipients of anonymous donations.
  In summary, although I understand the issue and the cause for concern, we think that, on balance, there should continue to be a presumption in favour of disclosure in the interests of accountability and transparency. Non-disclosure should be allowed only in the circumstances that the SORP sets out. In our view, they are the appropriate ones. I do not quite agree with the noble Lord, Lord Sainsbury of Preston Candover, in his interpretation of the SORP becoming more rigid. We do not see that in its current published form. There is sufficient latitude for non-disclosure when it is justified and right.
  I am sorry that I cannot be more helpful. I certainly understand the philanthropic spirit and thinking behind this issue. In personal terms, I have some sympathy with where the noble Lord, Lord Sainsbury, is coming from. In terms of the charitable sector overall, and its desire in the main to be open, accountable, transparent and in the public domain about where money is coming from and why, it is in the

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  greater public interest that we retain the measure as it currently is and as it is being interpreted from the 1993 Act.
  Lord Phillips of Sudbury: Before the Minister sits down and the noble Lord, Lord Hodgson, stands up, perhaps I may say that nothing the Minister said countervails the point made by the noble Lord, Lord Sainsbury of Preston Candover, about discouraging philanthropy. Surely, there is no good reason, in public interest terms, why someone who wants to be generous anonymously should not be generous anonymously.
  Lord Bassam of Brighton: The noble Lord is absolutely right, and I would not argue against that point.
  Lord Sainsbury of Preston Candover: Does the Minister not recognise the importance of the creation of new grant-making trusts and that, given the conditions of publicity that will happen, people will be discouraged from doing so? We already have evidence of a 20 per cent turn-off of people who do not want to have their generosity publicised. The advantage to the charity sector of giving money that cannot go other than to charity, compared to the gift aid scheme, is terrific.
  I also ask the Minister to consider that one way in which to meet my objection, which is really that we should encourage philanthropy and new trusts, would he to have a different rule during the lifetime of a creator or founder of a new grant-making trust. The rules could apply differently during the lifetime of the man who has given the money, so that publicity of his generosity would not occur during his lifetime. The rules could apply afterwards. That would meet the Minister's point while at the same time meeting the nervousness of someone considering a very large gift from their wealth to give permanently to charity. I ask the Minister to give that proposal careful consideration.
  Lord Bassam of Brighton: That is an interesting point, and it might be argued with regard to the fourth of the circumstances and the disclosure of particular grants—whether it might seriously prejudice the grant-maker or the institution receiving the grant. It may well be that it falls within that particular orbit.
  I shall make two points. It is worth reminding ourselves that the Charity Commission will, as a consequence of the legislation, have a duty to act to encourage charitable giving. Its interpretation of SORP falls within that consideration. In addition, because we live in these more accountable times when people want transparency, that is in itself an encouragement to people to make donations. Their motives will go unquestioned and be quite clear and the motivation behind their giving will be entirely transparent. That is an encouragement to people.
  Although the noble Lord has made a good point—that people may be put off—at one end of the argument, there is also an encouragement at the other
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  end. There will be a giving regime in the context of accountability and transparency, which it is important to take on board.
  Lord Swinfen: I thank the Minister for giving way. One problem with wealthy people who wish to set up a charitable foundation is that they as individuals will be bombarded with appeals. Some 20 years ago, I talked to some representatives of a large commercial organisation. They told me that at that time they got within the region of 17,000 letters of appeal a year and had had to set up a complete department to deal with them. I know that that was an organisation; but an individual who is known to be extremely wealthy will already be getting appeals from individuals for charitable donations, and a large number of them, before they even set up a charitable foundation. When it is known that they have set up a charitable foundation, particularly when they wish to keep an interest about where the funds from that foundation are used, philanthropically, they will be bombarded with appeals. Quite honestly, I feel sorry for them.
  Lord Bassam of Brighton: I hear what the noble Lord says, but in any event I am not sure that the amendment would make a great deal of difference to the circumstances of the organisations to which he referred in their being recipients for requests for financial support. The noble Lord gave an example from 20 years ago when the regulatory regime covering these matters was somewhat different. I recognise that there is an issue, but I do not believe that this is the right way in which to proceed to resolve it. In fact, the amendment could create more problems than it solves.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister for his very full and considered, if ultimately unhelpful, reply and to those Members of the Committee who have spoken either for or partially for the amendment. We must be clear that nothing in the amendment is designed to ensure that the regulator or the tax authorities do not know. It is absolutely clear that the Charity Commission and the Revenue must be informed.
  I knew that someone would produce the rabbit marked "money laundering" out of the hat before the end of the afternoon. I think that my noble friend Lord Swinfen dispatched that particular ball off the boundary fairly swiftly. My view is that if the charity of the noble Lord, Lord Phillips, does not want to take an anonymous donation, the words are, "No thank you". You do not have to take an anonymous donation or you could take an anonymous donation with—to meet the noble Lord's particular point—a requirement that there should be no subsequent publicity by the donor. The noble Lord might particularly wish to apply that if the prospective gift was of a size that would and could, in the eyes of the public, be seen to be influencing the operation of the charity and the way in which the charity was behaving.
  There is a way through that particular thicket. I accept that there is a balance to be struck between personal privacy or the foundation privacy and public accountability and transparency. But the reality is

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  that, as my noble friend Lord Swinfen has said, publicity means that charities and foundations are bombarded with requests. The Minister raised the question of there being more bureaucracy as a result of how the donor would check whether his requirements were being met. If he wants to give his gift anonymously, he surrenders the ability to influence that. It comes with the territory.
  I would like to see the growth of philanthropy and philanthropists sometimes give money to unpopular causes with which they would not wish to be associated publicly, but perfectly proper causes. The real argument is my noble friend's argument: are we getting more foundations or not? He tells us that we are getting fewer foundations. Why is that? I think that it is because people do not want the publicity. They are frightened of being held up in the press. The Americans will say that the British disease is not idleness, the British disease is envy. People will feel concerned that they will be put in the public eye, which is a shame and a pity.
  I do not pretend that the amendment is word perfect, but this amendment, suitably changed, could go some way to redress the imbalance to which my noble friend has referred. We will consider it some more. We will get opinion from the world at large. My noble friend will no doubt have some points to make and want to come back on Report. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 102 not moved.]
  Schedule 4 agreed to.
  Clause 9 [Registration of charities]:
  Lord Hodgson of Astley Abbottsmoved Amendment No. 103:
  Page 10, line 4, leave out "considers is no longer" and insert "no longer considers is"
  The noble Lord said: We now come back to the main part of the Bill; namely, Clause 9 and the "Registration of charities". This amendment rewrites new Section 3(4)(a)—at the top of page 10. Currently, it reads,
  "The Commission shall remove from the register—
  (a) any institution which it considers is no longer a charity".
  The amendment would alter paragraph (a) to read:
  "any institution which it no longer considers is a charity".
  That change of words may seem a trifle pedantic, so I hope that the Committee will bear with me while I explain.
  The current statutory obligation on the commission, relating to removing charities from the register, says that the commission will remove from the register an institution which it no longer considers to be a charity. That would include both organisations which never have been a charity, but which the commission registered in error, as well as organisations which may have been a charity but, because of a change in the law, the Charity Commission no longer considers to be a charity.
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  The wording in the Bill would deal with only the second case, not the first. That is because the wording presupposes that the organisation's charitable status has changed. Because of the haste with which existing organisations had to be placed on the register in the early 1960s after it was created, when looked at now many organisations may seem never to have been a charity. It is important that the commission should be under an obligation to remove those and should not have to create a fiction that they were charitable but no longer are.
  5 p.m.
  That is extremely important in the context of the charity's assets. If an organisation was never a charity and was registered in error, there is no difficulty about it retaining its assets on ceasing to be registered. If an organisation was a charity but is removed because it no longer is, its assets—as the current law stands—will have to be applied cy-près and cannot be retained by the organisation. We argue that the change in wording would better reflect the commercial or charitable reality in each case. I beg to move.
  Lord Shutt of Greetland: I do not know whether I support or oppose the amendment. I have difficulty with the words in the Bill. I have always thought of the charity sector as a one-way track. There may well he circumstances in which the trustees do not do things properly and should be removed, or the objects clause has lapsed and some new objects have to be brought in. However, I do not see the circumstances in which a crock of gold is there for charitable purposes that, all of a sudden, can be considered to be no longer there for those purposes. If there are such circumstances, I would like to know what they are. Once you put money into the charitable sector, that is where it stays, although there may be changes. I do not see money moving from the charitable sector into a non-charitable sector.
  Lord Hodgson of Astley Abbotts: The difficulty arises out of charities that should never have been registered, and were registered in error, particularly in the early days when a large number of charities went on the register in a rush. They never should have gone down the one-way track to which the noble Lord referred.
  Lord Phillips of Sudbury: Is it unkind to ask the noble Lord whether he is aware of any such charities?
  Lord Hodgson of Astley Abbotts: I cannot give an example, but the Charity Law Association says that there are cases of that. My briefing note and discussions with it has not gone so far as names. We have to have anonymity in this.
  Lord Swinfen: Local authorities have a duty to look after people with disabilities and the elderly under law, as I understand it. A lot of that work is now farmed out to charities, many of which have been in existence for a long time. Most of those charities raise charitable funds and provide more in the way of benefit than the

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  local authority would or could under its financial restraints. What would be the position if one such charity were to be unsuccessful in raising charitable funds and relied solely on the payments made by the local authority, produced only from the local authority's own funds? Would it still be acting charitably, or would it be acting only commercially? I do not know the answer. I pose the question because I wonder whether that might not happen at some stage with one or more organisation.
  Lord Phillips of Sudbury: I think that I can assist the noble Lord, Lord Swinfen. A charity established by a local authority is a charity in full dimensions. A local authority that thinks that it can treat a charity to which it has been midwife as some sort of subsidiary is grievously mistaken. There is a Charity Commission explanatory leaflet, which makes it perfectly clear that the charity must be an independent entity and not merely dependent on the apron strings of the local authority—
  Lord Swinfen: Yes, but the charity is charging the local authority. The funds going from the local authority to the charity are not a donation; they are in payment for services rendered. If the charity is not receiving any funds and is not doing more than it is being paid for, has it ceased to act in a charitable manner?
  Lord Phillips of Sudbury: Is this helpful to the Committee? The answer is that the charity is getting into deep water if it really receives money only for services rendered from a single source. But many charities—in the hospital sector, for example—exist exclusively on fees, with no charitable donations at all. No one is suggesting that they are not charities: their purposes and the way in which they are carried out will ultimately determine the question reasonably raised by the noble Lord, Lord Swinfen. Of itself, it is fair to say that a local authority—or rather a charity established by a local authority—will not cease to be charitable because at a certain point it has a single source of funding, and that a funding for services rendered.
  Lord Swinfen: I was not thinking of charities established by local authorities. I was thinking of charities in many cases established many moons ago before local authorities had this responsibility. As to them being given the responsibility, they handed it over to the previously established charities already working in the field.
  Lord Shutt of Greetland: When I was originally speaking, I was interrupted by the noble Lord, Lord Hodgson, on the business of the one-way track. I see the point he made about error and mistake and creeping back on the wall-tops in those circumstances.
  There is also the whole business about tax relief—whether it will be repaid by that body—and I can just about see that. However, that apart, I do not really understand.
  Lord Bassam of Brighton: I listened with interest to the mini-debate and it has persuaded me that we need
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  to think about the issue a little more. I am minded to accept the amendment tabled by the noble Lord, Lord Hodgson, because he seeks to put back into the Bill something which was taken out. If I read it correctly, it is the wording from the 1993 Act and probably there is a good technical argument for doing that. The Bill works better, is neater and there is clarity.
  The noble Lord has hit the right button and has scored a run. I shall accept his amendment and leave it at that.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister. After five days' honest endeavour. I have managed to move "no longer" forward three words in the Bill.
  On Question, amendment agreed to.
  [Amendment No. 104 re-tabled as Amendment No. 105A.]
  Lord Hodgson of Astley Abbottsmoved Amendment No. 105:
  Page 10, line 5, leave out "or does not operate"
  The noble Lord said: We are still at the top of page 10 in the Bill and still concerned with charities that cease to operate and the registration of charities. The Bill states:
  "The Commission shall remove from the register … any charity which has ceased to exist or does not operate".
  I am now going on for a major prize!
  There are many cases in which, on a merger or incorporation of a charity, the original charity must be retained. The most common reason is that it holds permanent endowment and thus cannot transfer it to the merged or incorporated charity. Another situation might be that a lease cannot be able to be transferred because it requires the landlord's consent and the landlord is unwilling to give such consent. In those circumstances. the assets in question remain in the old charity and the new merged or incorporated charity becomes the trustee of the old, existing charity, which simply holds assets which it permits the merged or incorporated charity to make use of. In those circumstances, the charity might well be said to be one that, "does not operate". Clearly, it would be inappropriate for such a charity to be removed from the register.
  I believe that Amendment No. 105A, tabled by the noble Lord, Lord Phillips, is aimed at the same objective. It would be a shame if for want of the words in the Bill we were to cause confusion. I beg to move.
  Lord Phillips of Sudbury: As the noble Lord, Lord Hodgson, said, my Amendment No. 105A is within this group. It would be a pity to leave the category as covering only charities that have ceased to exist because there will be the occasional charity that exists in form but not in any vital sense, and that is a permanent state of affairs. Therefore there seems some point in including my amendment, as it would be helpful to the public to have a register that reflects reality. If a shell is wholly empty of vitality—that is, if

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  a charity is in "permanent abeyance"—the Charity Commission should have the discretion to remove it from the register.
  I wholly concur with the other points made by the noble Lord, Lord Hodgson. It is for the reasons that he gave that the wording of the Bill should not be allowed to remain as it is.
  Lord Swinfen: I shall raise one black cloud over the argument. What about a small charity that has been left a residential property on the condition that the existing occupant is allowed to remain there for the rest of his life at a peppercorn rent, and that happens to be the main asset of the charity? Imagine that the charity remains in existence but is unable to do any worthwhile work while the tenant of the peppercorn continues to live. Once he dies, the property can be sold, perhaps at a substantial figure that then allows the charity to operate.
  There is absolutely no reason why an individual should not set up a charity with such an asset, with the intention that it should operate some years later when the tenant of the peppercorn dies—imagining that the tenant is genuine and does not necessarily receive charity himself. We should consider the option that the charity might be dormant for a number of years and, like the acorn under the ground all winter, spring to life with the death of the tenant. We should not throw out such charities completely.
  Lord Phillips of Sudbury: The noble Lord has put his finger on the very important issue of dormancy. In fact, the circumstances that he describes would be ones in which the charity would be deemed to operate, albeit at a very modest level. But the dormancy case is vital. Lots of small charities enter periods of quiescence while they await funds, appoint new trustees or whatever else. There are many such charities and it would be utterly wrong to strike them from the register because they were not operating for a year or two.
  The Lord Bishop of Southwell: Perhaps I could add to the debate, without digressing too much, by way of illustration. In 1987, when taking up my office as Archdeacon of London, I found a tin box in the Church of St Peter's, Cornhill, in the vestry, beautifully labelled "St Antholin charity". I took it home to investigate. I discovered a Bank of England chequebook in it. After a lot of research and help from the Charity Commission, I discovered that that charity had been in abeyance for a long time. It provided for 30 lectures to be given three times a year in the puritan school of doctrine by a benefice clergyman of the Church of England living within one mile of the Mansion House. They were a rare species, even in 1987.
  With the help of the Charity Commission, we revivified that charity. It now provides an annual lecture by an Anglican clergyman from anywhere in the puritan school of doctrine. That is a worthwhile
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  academic-come-spiritual charity. It would be sad if some of those dormant charities were lost forever by too quick an intervention by the Charity Commissioner without looking for an appropriate cy-près to find other people willing to revivify them.
  5.15 p.m.
  Lord Bassam of Brighton: That was a very interesting example. I fancy that the co-operation that the right reverend Prelate received in 1987 would still be provided now; in fact I am sure that it would. The Charity Commission wants to work with charities to revive them in exactly the way that the right reverend Prelate described. That is a good example of how constructive a role the Charity Commission plays in such circumstances.
  That was an interesting digression, but I return to the amendment because it raises one or two quite interesting issues. It may be helpful if I explain how, under the Charities Act 1993, the commission already has a duty under Clause 3(4) to remove charities that do not operate from the central register of charities. When I have explained how it works, Members of the Committee may take a different view of the amendments. If I were rating the amendments, I should give the noble Lord, Lord Hodgson of Astley Abbots, a higher rating than the noble Lord, Lord Phillips.
  Lord Phillips of Sudbury: Oh!
  Lord Bassam of Brighton: Well, one does these things for fun in one's idle moments. I like the term, "permanent abeyance", but it is probably not as clinical as the term, "does not operate". Anyway, we will come to that.
  Maintaining an accurate and up-to-date register is an important role for the commission. Indeed, it is mentioned specifically in new Section 1C(3). The obligation to remove charities that do not operate is in support of the maintenance of the register. The commission will not remove a charity from the register until it is sufficiently satisfied that it does not operate. The commission undertakes a number of checks to determine that the charity does not operate. For example, the commission must be satisfied that the charity has no property of any kind, including money, land, shares or other assets, contractual rights and legal claims against third parties, no rights to receive property of any kind and does not expect to receive any property. The commission must be satisfied that all those conditions apply.
  The commission must be satisfied either that there are no charity trustees or, where there are trustees, that they do not act and do not propose to act in the administration of the charity. The commission identifies charities that might not be operating by their failure to respond to requests for information. For example, each year the commission asks charities to provide information by way of the annual return and data update form. For charities that have not responded, the commission undertakes all reasonable enquiries of correspondents, trustees past and present,

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  professional advisers, third parties and umbrella groups to establish whether charities are still operational.
  The commission's priority is to get charities back into its regulatory regime, not to remove them as soon as possible. Sometimes, that may be impossible—for example, where the commission is told that that charity is no longer functioning or where the correspondent and trustees cannot be contacted. When the charity is removed, a letter is issued to the last known correspondent, offering the option of reinstatement on receipt of information to the effect that the charity is still operating. When it proves possible to contact the trustees of a charity that no longer operates, the commission asks for final accounts showing a nil balance, after which they will remove the charity from the register. I hope that in saying all of that, I have demonstrated that the commission does not and will continue not to remove legitimate charities which want to operate. Removal is carried out only after it has been reasonably established that a charity really is not operating or functioning.
  The amendment would mean that the commission would have to leave on the register those charities that do not operate, which is incompatible with its duty to maintain an accurate register of charities. The amendment seeks to make it clear that it is those charities that appear to be permanently suspended that should be removed. I would argue that the commission's checks, which I have described, are sufficient to mean that, as far as is reasonably and practically possible, the commission can be satisfied that the charity in question does not operate.
  In saying all of that, I hope that I have reassured Members of the Committee who have tabled amendments that the commission does not act in a way which undermines the credibility of the register, but gives every encouragement and opportunity to charities that might be dormant or semi-asleep to come forward and prove their existence, their good works and so on. I hope that noble Lords will feel able to withdraw, or not to press, their similar if differently worded amendments.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister. The definition that he has given of "operate" is pretty inclusive—with the presence of any property rights and the trustees' ability to respond. That removes the concerns that we have about the word "operate", if a conventional word can be defined. As the Minister said that it would not be the wish of the Charity Commission to rush to de-register people on an "asap" basis, as I believe that he put it, I am satisfied and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 105A not moved.]
  Lord Hodgson of Astley Abbottsmoved Amendment No. 106:
  Page 10, leave out lines 21 and 22.
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  The noble Lord said: Moving down page 10 of the Bill, we come to the issue of the copies of trusts of registered charities. This is a probing amendment to tease out the Government's thinking.
  New Section 3(8) of the 1993 Act provides that copies from the commission of the trusts of any registered charities shall be,
  "open to public inspection at all reasonable times".
  But the subsection adds, in lines 21 and 22,
  "except to the extent that regulations made by the Secretary of State otherwise provide".
  Our Amendment No. 106 would remove that power for the Secretary of State to make regulations which would interfere with public access to the trusts of registered charities. Why would the Secretary of State need the power to make regulations concerning public access? Perhaps the Minister could illuminate our debate with some examples of circumstances in which that might be deemed necessary.
  [The sitting was suspended for a Division in tile House from 5.23 to 5.34 p.m.]
  Lord Hodgson of Astley Abbotts: Amendment No. 106 concerns the issue of copies of the trusts of registered charities, which are to be available for public inspection at all reasonable times. The amendment relates to the last two lines of Clause 9(8) half way down page 10 of the Bill, which states that public inspection shall be available,
  "except to the extent that regulations made by the Secretary of State otherwise provide".
  Before the Bell rang for the Division in the Chamber. I was saying that, as an emphasis on transparency and public understanding underpins a central theme as the Government's strategy for the charity sector throughout the Bill, it seems fairly contradictory to give the Secretary of State powers to undermine important features such as this. As I said, on a probing basis, we seek to remove these two lines so that the Minister can persuade us otherwise. I beg to move.
  Lord Swinfen: As the commission is a non-departmental public body, why should the Secretary of State make regulations and why should that not be done by the Charity Commissioners?
  Lord Shutt of Greetland: Bearing in mind our earlier discussions, I wonder whether the measure is there to assist people who are thinking of setting up foundations and who the noble Lord, Lord Sainsbury of Preston Candover, may wish to assist.
  Lord Bassam of Brighton: It does not particularly do the latter, but I hope that noble Lords will accept my explanation as being both benign and beneficial. The register kept by the Charity Commission includes details of all the registered charities in England and Wales and the details of charities which have been removed from the register. The register is available 24 hours a day on the commission's website. The governing documents of the largest 200 charities are also available to view on that website. Members of the public may visit the commission's offices on weekdays

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  between 9 a.m. and 5 p.m. in order to search the register for charities or to view, by prior arrangement, files containing the charity's governing documents and recent accounts. In addition, for a small fee, anyone can obtain photocopies of charities' accounts and governing documents by calling the commission's Contact Centre.
  The purpose of including the provision for the Secretary of State to make regulations contrary to this duty of the commission is so that, in the very rare circumstances where there are compelling reasons not to open the governing documents of a particular charity to public scrutiny, that document can be withheld. I can tell the Committee that, so far as we are aware, no regulations have ever been laid to achieve that effect. But, having thought about this matter and having talked to officials and to the Charity Commission, I can see the circumstances in which it might be appropriate. Two good examples come to mind.
  The first is where a women's refuge was governed by trust deed and it included the names and addresses of the trustees. There might be good reason to withhold that trust deed from public scrutiny in order to protect the trustees. It is not unknown for women's refuges to be the subject of unwarranted and unpleasant visitations from former partners who may be violent and who may wish to take out their anger and frustration on a broader range of individuals. In those circumstances, one might accept that it would be entirely reasonable.
  There might also be a good case for trust deeds and the details of trustees to be withheld where the trust was responsible for animal testing in the interests of scientific advancement. As we all know from experience, there is a real problem in that sector, and there may be circumstances in which, in order to offer a degree of protection, it would be right to withhold the document.
  In any event, the Secretary of State would exercise the power only very, very occasionally and in circumstances of that kind. The assumption would always be that all trusts of registered charities should be open to public inspection.
  Furthermore, when considering the amendment, we have identified that subsection (8) allows the Secretary of State to make regulations which state that certain trusts of charities should not be kept by the commission. While we can not envisage any circumstances when it would be appropriate to exercise this power, we feel it would be wise to table an amendment on Report to make it clear that the Secretary of State's power extends only to the circumstances described above. This probing amendment has made it clear to us that we may need to clarify that issue and I am grateful to the noble Lord for tabling it in such terms.
  The noble Lord, Lord Swinfen, asked me a question which I have not answered. It is more appropriate for the Secretary of State, as the holder of the public interest, to make the regulations, rather than the
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  commission itself to self-regulate its own activity in the alternative manner which the noble Lord thought might operate.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister for his reply and I am persuaded by the points that he made. When he says that, first, regulations have never been made under this heading, secondly, that it would be in exceptional circumstances and, thirdly, it would be "very, very occasionally", one is reassured. Obviously, the drafting is a good deal wider than that and that was what caused our concern—it does not say "except", "occasionally" or "exceptionally", it just says that these regulations can be—dare I say?—derogated from, apparently casually. We will read the Minister's comments carefully and look forward to seeing his proposals on Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Hodgson of Astley Abbottsmoved Amendment No. 107:
  Page 10, line 46, leave out "£5,000" and insert "£25,000"
  The noble Lord said: We now move down the page to the registration levels for charities. This group is part of a series of amendments concerned with the levels of income and assets at which registration is required. Later, when we reach Chapter 6, we will consider the same topic in relation to requirements for audit or examination of trusts or charitable companies.
  We accept that one of the purposes of the Bill is to maintain public confidence in the charitable sector and that regulation by the Charity Commission is an important element in that process. But we do not think that the Government have got the balance right regarding registration levels. Rather, we argue that the scales have tipped too far towards regulation with its form-filling and bureaucracy. Inevitably, this will fall particularly heavily on the smaller charities and may have an adverse effect on the development of that sector.
  We accept that the proposals in the Bill for minimum registration levels represent an advance. An annual income of £1,000 has become £5,000, and we particularly recognise the value of the removal of the requirement to register if the charity has any endowment no matter how small. But, £5,000 annual income is a tiny sum—certainly the misappropriation of a sum of that size, while serious and undesirable, will not affect public confidence. So the amendment seeks to raise that £5,000 to £25,000 per annum. I recognise that that is an arbitrary figure, but we calculate that it would remove just under 50,000 charities or almost exactly one quarter of the total from the necessity to register. I use the word "necessity" to register and I shall return to that matter.
  But consider the reduction in the burden of work both for the Charity Commission and for those smaller charities—all achieved at negligible risk to public confidence. So I appeal to the deregulatory instincts that should lurk in the breath of every free Briton. That is the purpose of our amendment. I see the

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  Minister smiling at me, and I suspect that his speaking note suggests that research among the charitable sector indicates that smaller charities want to be registered. No doubt that is true. They do so for a variety of reasons. A registered charity number is an imprint of quality; registration is a protection for the trustees; and, finally and possibly most significantly, many grant-giving charities such as that of my noble friend Lord Sainsbury and local authorities will make grants only to charities which are registered.
  5.45 p.m.
  The force of this argument is accepted and that is where our second amendment, Amendment No. 108, comes in. It changes subsection (6), which currently gives the Charity Commission the permissive power to register smaller charities. By substituting "must" for "may" in line 34, the balance of power is switched to the charity. Therefore, if a smaller charity wants to be registered, for whatever reason, it can be assured that it can do so. In doing so, it must accept the inevitable paperwork. But if it does not wish to register, provided that its income is below £25,000 per annum, it does not have to do so. The saving in compliance costs would be huge and a better balance between risk and regulation would be struck. I beg to move.
  Lord Borrie: I have a feeling that Amendment No. 108 is more desirable than Amendment No. 107. However the Bill eventually lays down its requirements, if the charity is small and desires to be registered in order to obtain certain advantages of respectability and of being a potential recipient of certain moneys, and it complies, why not let it be registered, no matter how small it is?
  Amendment No. 107, the main one put forward by the noble Lord, Lord Hodgson, makes a radical difference—a five-fold difference—from £5,000 to £25,000. He has carefully explained that the difference would cover 50,000 charities, so it makes a lot of difference one way or another.
  The noble Lord, Lord Hodgson, thinks that we should all feel, as Britons, the love of freedom and the dislike of bureaucracy, but bureaucratic activity is a pejorative phrase, whereas registration is a polite phrase. There would be registration for a whole number of purposes, including concern about any misdeeds which might be committed. There would be misdeeds on a smaller scale if the figure was below £25,000 rather than into the hundreds of thousands. None the less, the limit having been £1,000, £25,000 seems a major difference whereas the Government's £5,000 takes into account inflation and so on. I am surprised that the noble Lord wants to make such a radical difference in the threshold at which registration would be required as distinct from optional
  Lord Swinfen: I believe that I know the answer, but perhaps we should have it on the record. The smaller charities which wish to be registered can indeed be registered. I should be grateful if the Minister would confirm that. It is extremely important for very small charities which need to raise funds from grant-making
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  bodies. The vast majority will not make donations to unregistered charities—they find that extremely difficult.
  Furthermore, in Amendment No. 108 my noble friend wishes to change "may" in line 34 to "must" at the charity's request to be registered. I am not sure that I agree with him because the charity, in order to be registered, needs to satisfy all the requirements of the Charity Commission and that should not be watered down. A charity set up purely to provide bed socks for granny would not and, in my view, should not be registered.
  Lord Phillips of Sudbury: I rather take the part of the noble Lord, Lord Borrie, on this one. The increase to an income of £25,000 is far too high. That would represent a capital base of £500,000, if one had that sum on deposit. Although I wholly agree with the sentiment with which the amendment was moved and am absolutely committed, as is the noble Lord, Lord Hodgson, to making life for the small charity as easy and unbureaucratic as possible, I would rather see that easy regime downstream from that of registration itself.
  Registration is the most effective way of enabling members of the public to check up on a charity. The register is free to access and the one thing above all others that deters the very few rotten apples in the charity barrel from playing fast and loose is that they are registered. Anyone can have access to the registration; charities are required to put the registration number on their circulars, letters and so on.
  If we take away that registration, I fear that there would be a significant increase in impropriety. If there is one thing above all others that would break the golden chain of trust between the public and the charity sector, it would be if instances of impropriety were significantly to increase. From my experience of the sector, I fear that you do get the small man who is playing fast and loose with charitable status, paying himself huge expenses and depriving the public of the purported charitable benefit. For that reason, reluctantly, I oppose the amendment. Whether there could be an annual increase, as there is with inheritance tax, to keep pace with inflation, so that we do not have to keep laying orders, is a small matter. As I said, I would rather see constraints on the Charity Commission, the Inland Revenue, and so on downstream.
  Lord Shutt of Greetland: I am inclined to agree with my noble friend. I think that I could be persuaded that the figure might be £10,000, but much beyond that, I think that we will create problems because of what could be the capital sum involved in misdemeanours. There is one other point. There seem to be three elements here. We have the Charity Commission as a regulator; the law of the land; and the Inland Revenue. If the Charity Commission and registration is out of the way, the other two remain. The charity is still a charity if it has charitable objectives, whether or not it

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  is registered. Because it is a charity, it will seek repayment of any taxes possible and may therefore need a relationship with the Inland Revenue.
  Therefore, if we were to go along with the amendment of the noble Lord, Lord Hodgson, would that mean that the Inland Revenue would have to do rather more to check whether a charity is a charity whereas, at the moment, it may just rely on registration and say, "If it is registered, we repay the money"? That is a further problem.
  Lord Bassam of Brighton: I initially thought that this was quite a simple and straightforward group to deal with, so I was going to say as little as possible. I will still try to say as little as possible, because we want to make progress.
  My starting point is the need to get the balance right. Of course the noble Lord, Lord Hodgson, is right: we do not want to end up burdening charities with ludicrous quantities of red tape. We want to reduce the scope for that as much as possible. Inside this Minister there is a deregulatory heart beating firmly and powerfully. But it is worth going back to where we started from and the Strategy Unit's original proposal, which was extensively consulted on. It was the unit that came up with the figure of £5,000. The Strategy Unit's proposal attracted great interest and comment, apparently—it had the second highest number of responses of any group of recommendations in the review. So it is obviously something of a hot issue.
  The other thing to remember in this debate—
  Lord Hodgson of Astley Abbotts: I believe that the responses were that the charities might not be able to register. The concern expressed in the response to the Strategy Unit review was that they might be prevented from registering unless the figure was higher. That is why the two amendments should be taken together. No one is trying to prevent them from registering; as the noble Lord, Lord Borrie, pointed out, they can register. It is just a question of the point at which they have to register.
  Lord Bassam of Brighton: I understand that point. I believe that the noble Lord, Lord Swinfen, made an important point, encouraging me to put on the record—which I am quite happy to do—that small charities see the ability to register as being extraordinarily important. It gives them a "quality mark", which is extraordinarily important in terms of seeking out donors and attracting public credibility. We recognise and acknowledge that. There is not to be a bar on charities registering which have very small sums to disburse or use from a charitable purpose. We do not want to prevent them registering; in fact, we want to encourage them to continue to do so, because of the benefits that we see, the Charity Commission sees and the small charities themselves see.
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  There is a flexibility here. As the noble Lord, Lord Phillips, understood in his comments, the figure is variable by order. Under new Section 3A(8), the Secretary of State,
  "may only make an order under subsection (7) above",
  so far as it relates to the matter.
  So there is flexibility to inflate the sum of £5,000 when it seems sensible and rational to do so. If we raised it to £25,000, we would take out of the registration threshold a large number of charities. In raising the threshold from £1,000 to £5,000, we take out 38,000 charities from the registration requirement. That does not prevent them registering. Those charities have an annual income of more than £103 million. If we raised the threshold from £1,000 to £25,000, rather than £5,000, we would take out a further 47,000 charities, with a combined annual income of something in excess of £0.5 billion. Those charities and sums of money would in effect go off the regulatory radar.
  I believe that we have the balance about right. I understand the point about bureaucracy and accountability, but it is extremely important to retain public confidence in small charities. In settling on the £5,000 figure, that seems to be what most charities believe to be the right level.
  As for Amendment No. 108, I have better news for the noble Lord, Lord Hodgson of Astley Abbotts. Having heard what he had to say about the amendment, I am prepared to take it away and give it some further consideration. However, I heard what the noble Lord, Lord Swinfen, said, and I shall balance that in my final judgment on the issue.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister and to all Members of the Committee who have spoken. I understand and accept that £25,000 was an arbitrary figure designed to test the Government's thinking on this point. I do not accept that, of itself, £5,000 is right. The noble Lord, Lord Borrie, said that £1,000 may have been right in 1993, but it might have been the wrong figure then, so we may be starting from the wrong base. The noble Lord, Lord Phillips, made a fair point on the capital base. Of course, on £5,000 a capital base is only £100,000, so it is quite small on the figure to which the Government are sticking.
  I wanted to strike a balance and focus the commission on the areas of major risk, which are the big charities. For a charity with an annual income of below £25,000, I felt that public involvement—and therefore public risk—was very low, but I accept the points made. I hope that the Government may think again about the £5,000 and push it a bit further along the lines spoken about by the noble Lord, Lord Shutt. For the mean time, so long as the "may" and "must" issue can be resolved so that it is clear that charities can get on to the register if they wish and thereby access all the advantages to which the Minister referred, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  6 p.m.
  Lord Shutt of Greetlandmoved Amendment No. 107A:
  Page 11. line 23, at end insert—
  "( ) In subsections (3) and (4) above "the appointed day" shall not be before 1st April 2008."
  The noble Lord said: The amendment refers to line 23 on page 11, which sets out that certain charities at present not registered will need to register. Reference is made to the "appointed day", but we do not know when that is. I have been asked to move the amendment on behalf of the very small nonconformist Churches, which do not need to be registered at present. They would exceed the income of £100,000 and feel that they need time to get used to a new regime.
  Another way of looking at the problem would be to exempt the Churches from the provision, but they see the point of being registered and are happy to do so. However, they feel that they need the time to get their house—or church—in order to be ready to register for the appointed day. The matter is therefore when that day should be. The amendment suggests that it be not before 1 April 2008, which gives us three years. That is the gist of the amendment. I beg to move.
  The Lord Bishop of Southwell: The changes to be made by the Bill as regards the charities that are currently "excepted" from registration are obviously of some concern to the Church of England as well, given that more than 2,000 of our parochial church councils alone seem likely to be affected by them as the Bill becomes law. We are therefore alert to the implications of the new arrangements, and do not underestimate their implications—in terms of the need both to equip the trustees of the charities concerned to comply with their new obligations, and to agree with the Home Office and the Charity Commission the detailed arrangements for what may be a substantial process of registration.
  Given the scale of the exercise and the importance of conducting it as efficiently as possible, we imagine that those discussions will need to cover a range of issues, from the documentation on the basis of which registration should take place, to the question of whether applications by charities associated with particular denominations are better dealt with together, over a staged period. We see discussions of that kind as capable of assisting not only the Charity Commission, but the charities themselves.
  In contemplating the process, we have been encouraged by the positive attitude of the Home Office and the Charity Commission, which have shown themselves ready not only to recognise the desirability of giving the denominations a sufficiently long lead time to prepare for registration, but to consider the issues raised in that connection. Consistently with that constructive approach, the proposal as we understand it is that the new arrangements will not be brought into force until the expiry of the current exceptions from registration in 2007. If so, it seems that the timetable will allow—adequate time for appropriate discussions to take place between the Charity Commission and all
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  those denominations and other faith groups affected by the proposals, without any need for the coming into force of the new arrangements to be postponed further in the way proposed by the amendment.
  As Members of the Committee can hear, I am resisting the amendment slightly, but not too virulently. Rather than seeking a further postponement, we are content to work with the Home Office and the Charity Commission within the timetable set out and with a view to resolving together, in collaboration and for the benefit of all concerned, the various practical issues which will inevitably arise if the process is to be completed efficiently and effectively.
  Lord Hodgson of Astley Abbotts: I have a Clause 10 stand part objection grouped with the amendment. We are concerned about the appointed day, as referred to by the noble Lord, Lord Shutt. Clause 10 relates to the interim changes in the threshold for the registration of small charities. It allows the Secretary of State to introduce changes in advance of the implementation of Clause 9 and the establishment of the new income threshold for the registration of charities. I thought that we could make better progress if we discussed the appointed day at the same time.
  As we debated on Amendment No. 107, the Minister has stuck to his guns that £5,000 is the correct level for the registration threshold. I would therefore be helpful on a probing basis if the Minister could explain the purpose behind Clause 10. If the Minister believes that £5,000 is the correct amount, why should the Secretary of State have the power to make interim arrangements? In my reading, Clause 10 seems to reduce the impact of much of the drafting of Clause 9(3)(a) on page 10, since the figures specified can be changed by the Secretary of State at any point, apparently without any restrictions or need to consult.
  The power to make interim changes also begs another question, at which the noble Lord, Lord Shutt, hinted. When do the Government expect Clause 9 to come into force? No doubt the Secretary of State has been given the powers in Clause 10 because the interim could be expected to be lengthy, but how lengthy?
  The sector is concerned that the legislation should be put into effect reasonably swiftly after its passage through Parliament and that Clause 10 infers a time lock attached to Clause 9. If we are all concerned about bureaucracy, the cost of compliance and registration, to use the less emotive phrase of the noble Lord, Lord Borrie, we do not want to see the Bill coming into effect in dribs and drabs. Perhaps the Minister will explain why it is expected that the Secretary of State might find the need to alter the threshold for the registration of small charities in the interim before the commencement of Clause 9 and why any interim period is required.
  Lord Bassam of Brighton: It may be helpful if I explain Clauses 9 and 10 together. The noble Lord, Lord Hodgson, and other Members of the Committee have rumbled the fact that they inter-relate. Clause 9

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  introduces three sections—Sections 3A and 3B—which together replace the existing Section 3 of the Charities Act 1993. For the most part, these provisions restate the existing law as set out in that section. However, there are some changes of substance and one is the provision at new Section 3A(2)(b) and (c) at lines 35—
  The Deputy Chairman of Committees (Baroness Turner of Camden): I must declare the Committee adjourned for 10 minutes.
  [The Sitting was suspended for a Division in the House from 6.8 to 6.19 p.m.]
  Lord Bassam of Brighton: As I was saying before we were interrupted, there are changes of substance. One is new Section 3A(2)(b) and (c), at lines 35 to 45 on page 10, which requires what are currently excepted charities to register with the Charity Commission if their gross income exceeds £100,000. Another is the general increase in the threshold for registration from £1,000 to £5,000—we have just discussed that—under new Section 3A(2)(d).
  The Government have given an undertaking that no excepted charity will be required to register with the Charity Commission until October 2007, which is when the current regulations relating to some of the excepted charities run out. For that reason, it is not proposed to bring Clause 9 into effect in its entirety until October 2007. That will give the charities concerned ample time to prepare. We do not see that it would be necessary to delay the process for a further six months to April 2008, as mentioned in the amendment. The Government believe that it would be desirable to bring the general increase in the threshold for registration into effect sooner than that. Clause 10 accordingly allows my right honourable friend to make what the Bill calls interim changes in the registration threshold pending the coming into force of Clause 9.
  The intention is to use that provision to raise the registration threshold for small charities to £5,000, perhaps a couple of months or so after Royal Assent, and to remove the current requirement that a charity must register, however small its income, if it possesses any permanent endowment or uses or occupies any land or buildings. Those changes will give small charities with income between £1,000 and £5,000 the early opportunity to decide whether to stay registered or to deregister. Subsection (1)(b) enables the Home Secretary to align the definition of gross income used for the purpose of the registration threshold with the definition of gross income used for the purposes of the other financial thresholds, such as those to do with accounting and auditing.
  The noble Lord, Lord Hodgson, was concerned about Clause 10. He is right in his estimation of how it works. It will cease to have effect when Clause 9 comes into force in October 2007 and the new Section 3A takes over. I can see that that might seem a complicated way of achieving a fairly simple change, but I am afraid that the best brains in the Home Office
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  and the Charity Commission and on these Benches have not been able to find a more straightforward way of doing it. The objective of raising the registration threshold is shared across the Committee, I am sure. I hope that the noble Lord will feel able to withdraw his amendment, having heard what I said on this technical matter—the date of implementation is not technical, but is to be established for a good purpose.
  Lord Shutt of Greetland: The Minister will understand that, until this very day, we did not know anything about a date in October 2007. Obviously I shall consult those who feel that they could still be affected, but that date—it gives people two and a half years—may be adequate. For the time being at any rate, I am happy to beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 108 not moved.]
  Lord Hodgson of Astley Abbottsmoved Amendment No. 109:
  Page 11, leave out line 36.
  The noble Lord said: This is a probing amendment. In part, the Minister has answered it in his remarks on the previous amendment. It is designed to get an explanation of how quickly and by what means the Government aim to phase out excepted charity status, if that is their aim. New subsection (7)(a) at line 36 of page 11 gives the Secretary of State power to change the limit below which a charity is excepted from the regime. It is currently set at £100,000.
  Leaving aside the 2007 date to which the Minister referred, are we right to presume that it is the intention of the Government that the Secretary of State should use the power gradually to reduce the ceiling, so bringing all excepted charities within the net over time? If so, over how long will that take place? Given the present situation, what will be the minimum figure? An annual income of £10,000 is referred to in one place, and there is the £5,000 annual income about which we talked earlier. I also note the proposal in paragraph 11.1 on page 130 of the regulatory impact assessment. It would be helpful if the Government could update us on their thinking on the matter.
  As the Minister is aware, we remain concerned about this new legislation and its impact on service, on public funds—and on the Armed Forces, which will be raised next in Amendment No. 110—and on various other bodies that we shall discuss in Amendments Nos. 115, 116 and 116A. I beg to move.
  Lord Bassam of Brighton: The effect of the amendment would be to prevent the Secretary of State from varying by order the £100,000 threshold below which excepted charities would not be required to register with the Charity Commission under the Bill. The threshold could then be reduced only by primary legislation.
  Since the Strategy Unit review, the Government have stated their intention to end excepted status in phases. We believe that there is no longer a principled justification for keeping this separate status and in the

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  long term they should be treated as registered charities are. Excepted charities, like other charities, have a legitimate public interest in them and under these proposals they will be subject to proper regulation.
  The inclusion in the Bill of a £100,000 threshold above which excepted charities would in future be required to register reflects this. Our intention is to reduce the threshold progressively over a period of years so that eventually the same threshold applies for the currently excepted charities as for all others; in other words, progressively to phase out excepted charity status.
  That will be a gradual process and will not be rushed. The Joint Committee recommended that before any plans were drawn up to lower the threshold, the Home Office and the Charity Commission should monitor and report on the actual costs and benefits of registering those charities with an income above that level. The Government accepted that recommendation and propose to carry it out as part of the broader review of the legislation to take place in five years' time.
  If we were to accept the amendment, this financial limit in the Bill would be the only limit which could not be varied by order and could be varied only by primary legislation. In fact, since the Charities Act 1960, all monetary limits in charities legislation have been capable of being varied by order. This would be somewhat exceptional. We feel that there are compelling reasons for ending excepted status eventually and, therefore, we are not minded to accept the amendment.
  Lord Hodgson of Astley Abbotts: As I explained, this is a probing amendment to make the Government put on public record how excepted charities will or will not develop. I am grateful for that and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 9, as amended, agreed to.
  Clause 10 agreed to.
  Clause 11 [Changes in exempt charities]:
  6.30 p.m.
  Lord Hodgson of Astley Abbottsmoved Amendment No. 110:
  Page 13, line 22, at end insert—
  "( ) After paragraph (a) insert—
  "(aa) service non-public funds of the armed forces of the Crown;"."
  The noble Lord said: the noble and gallant Lord in whose name the amendment has been tabled is away and unable to speak to the Grand Committee and has asked me to speak on his behalf. My Amendment No. 114 in this group has exactly the same purpose, although it is phrased in a different way.
  The amendments are a result of helpful briefings from The Independent Services Agency Ltd and we have received much correspondence from service
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  charities. Therefore, I apologise if I speak at a some length, but there are substantive issues here, about which people feel quite strongly.
  As we have been discussing, the Bill requires the so-called excepted charities, which includes service non-public funds and church charities that are not at present required to register with the commission, be brought into line with other charities by requiring them to register, in the first instance, when their income is in excess of £100,000. But, as the Minister has just explained, progressively that ceiling will be reduced until they are treated exactly as if they were any other charity.
  As the noble and gallant Lord pointed out in our earlier debates, the service non-public funds are a totally distinct group. There are more than 15,000 of them. They range from small funds at unit squadron level, through station and command funds, to what are known as central funds for the three services. Officers and Sergeants Mess will have an SNPF account. They derive their income mainly from world-wide NAAFI rebates to be replaced at home by a levy on a pay-as-you-dine arrangement and some gift-aiding of a day or two's pay per year by servicemen and servicewomen.
  Their purposes are to provide financial support for units and formations in the Armed Forces in a wide variety of ways, which range from social and local philanthropic activities to sport, adventure training and so forth. In a real sense, they contribute to good morale and well-being in the three Armed Forces and, thus, to their corporate identity and efficiency.
  The noble Lord should distinguish between that type of efficiency, the efficiency mentioned in the statutory instrument that forms part of my Amendment No. 14 and military efficiency. The latter, of course, is a responsibility of the Government.
  The two amendments, in their slightly different ways, propose to meet the Government's wish to run down and finally close off the category of accepted charities. In doing so, we wish to follow up and implement recommendation 45 of the Scrutiny Committee, which states:
  "We recommend that, before the real Bill is brought forward, the Home Office and the Ministry of Defence explore ways of ensuring that these funds remain properly accounted for without bringing such a large number of small Armed Forces accounts within the remit of the Charity Commission".
  We seek to do that today by moving service non-public funds into the list of exempt charities given in Schedule 2 to the 1993 Act.
  Service non-public funds, as we have already discussed, are the last remaining element of the Tudor public utility concept of charity—the setting out of soldiers. They are the domestic housekeeping accounts of units of the Armed Forces with,
  "nothing to show and nothing to hide".
  They are distinctly different from street collecting "good causes" charities. They are vital to the maintenance of morale, a major war-winning factor, and therefore need to be regulated in a different manner to other charities.

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  On these Benches, we are not yet convinced that the Government have understood that there are two distinct types of service charities. First, there are charities operating in support of the Armed Forces, which fundraise actively and become involved with the general public. Examples of that category would include St Dunstans and SSAFA. Such charities should clearly register with, and be regulated by, the Charity Commission.
  But the second category is very different. Service non-public funds are essentially the accounts of units of the Armed Forces covering domestic—that is, internal—charitable activity. They do not fundraise from the public. Using government phraseology, they operate "below the radar" and, in our view, should continue to do so in view of their essentially domestic status.
  As I have said, there are more than 15,000 such excepted charities in the three services. Turnover on such accounts can be very considerable and to impose a legal requirement to open them up to public inspection by the submission of accounts and returns to a central charitable register would impose a heavy administrative load on staff already operating under considerable pressure.
  We do not believe that there is any activity within such accounts that is of major interest to the public. There is nothing to hide but, as I said, conversely, nothing to show. If it is the Government's intention to cut red tape, why introduce increased bureaucracy in such a way? Moreover, any extra staff will have to be introduced at the Charity Commission and, presumably, also at the new Office of the Scottish Charity Regulator and its equivalent in Northern Ireland to cope with this increased workload.
  The proposal is to set the initial registration threshold for service non-public funds at £100,000 annual income. That is probably too low for the majority of the large ships of the fleet and major naval shore establishments, battalion-sized Army units and RAF stations. Such units operate on a "central bank" concept whereby individual sub-funds, each of charitable status, are aggregated together for administrative and banking efficiency. The turnover on central banks can be fairly high, but the sub-funds contained within could now opt out of the system and operate independently, at least below this initial threshold.
  That might solve one problem but it would go against the stated principle of trying to facilitate charity mergers and administration. The measures contained in the proposed legislation are therefore simplistic and fail to take account of the unique status and requirements of the Armed Forces. If excepted charitable status is to be removed—we accept that that will now happen—we believe that the best solution is to move all existing and any new service non-public funds into the category of "exempt charity". A further reason that SNPFs do not need to be registered with the Charity Commission is that there are statutory records of their existence elsewhere within the services' finance branches.
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  It may be that the Government's approach on this matter has been coloured by the fact that the Charity Commission has recently raised the issue of alleged illegality of Army non-public accounting systems. If so, the following is worth remembering. The excepted charity status of service non-public funds excepts such charities from,
  "the duty under section 8(1) of the Charities Act 1960 to send annual accounts to the Charity Commissioners otherwise than on request".
  Under the SORP, which we have already discussed this afternoon, charities with gross income not exceeding £100,000 may opt out of accrual accounts and prepare accounts on a receipts and payments basis. Paragraph 354 of the Charity Commission's publication, Accounting and Reporting by Charities: Statement of Recommended Practice, of October 2000 states that,
  "receipts and payments accounts and statements of assets and liabilities may be organised in any way",
  I repeat: in any way—
  "that the trustees feel appropriate".
  When considering the large number of service non-public funds below this level of turnover, we have some difficulty in understanding how the Charity Commission can claim that many accounts are in an inappropriate form when its own guidance expressly permits great latitude in its mode of presentation.
  Service non-public funds do not normally have formal deeds of trust or Charity Commission schemes because, to quote from Statutory Instrument 1965/1056—the Charities (Exception from Registration and Accounts) Regulations— referred to in my amendment, they are,
  "hereby excepted from the duty to be registered under section 4(2) of the Charities Act 1960, and it shall be an excepted charity for the purposes of section 8(1) of that Act".
  It is interesting to note the heading of this instrument: "Exception from Registration and Accounts". Clearly the original intention was to allow service non-public funds to operate independently under their own service rules and regulations. If the Commission is to insist on the registration of all SNPFs, is it its intention to demand deeds of trust or schemes for each and every unit? Who is to do this drafting and who will pay for it? A standard format will not work because elements peculiar to individual service charities will be missing from any such template. Thus, it is likely that large costs will have to be borne by every SNPF, as well as new audit costs for the larger SNPF. The Royal Air Force estimates that, as a result of the proposals, its future—new—external audit fees will be in the order of £900,000 per annum, all to be met from charitable funds.
  If the Government were minded to accept the spirit of these amendments and to revisit the recommendation of the Scrutiny Committee, it would be a simple solution to allow defined service non-public funds to be added to the list of exempt charities. Clearly, then, the question arises as to who the sector regulator would be. Who, in effect, would be the equivalent of HEFCE to the higher education sector? There is a simple answer: the Ministry of Defence, just

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  like the Department for Culture, Media and Sport, which is acting as regulator to the museum sector, as shown on page 91 of the RIA.
  If that is not specific enough, the regulator could be the Vice Chief of the Defence Staff for Personnel. And if a still more detailed approach is needed, regulation could be split between the Adjutant General for the Army, the Second Sea Lord for the Navy and the Air Member for Personnel for the RAF.
  The uncomfortable truth is that in our view the Government have not understood the role, structure and relationships of service non-public funds. They have persistently confused them with organisations like the Royal British Legion, which quite properly should be regulated under this Bill.
  I hope that the Minister will see the logic of this new approach and will agree to reconsider the approach adopted so far. I beg to move.
  Lord Phillips of Sudbury: As a member of the Scrutiny Committee, which made the recommendation read out by the noble Lord, Lord Hodgson, I entirely support the amendment in the name of the noble and gallant Lord, Lord Craig of Radley, as comprehensively moved by the noble Lord, Lord Hodgson. This is a large and potentially ferocious sleeping dog which should be left to lie where it is for all the reasons put forward by the noble Lord, Lord Hodgson.
  The noble and gallant Lord, Lord Craig of Radley, spoke with force when we considered Clause 2, the meaning of charitable purpose, and wanted a specific reference to Army charities such as these to be put into the list. It would be of considerable comfort to the Armed Forces charities concerned to have specific reference made to them, even if it is in Clause 11 rather than Clause 2. The case made is overwhelmingly clear in terms of common sense, administrative savings and a huge saving in potential costs.
  Lord Swinfen: If this amendment is not agreed, what is the potential tie-up of service manpower? Could people who did not want the services to undertake a particular operation be so awkward in tying them up administratively on their charities that they could disrupt what the services were being asked by the Government to do?
  Lord Borrie: I want to make a point arising out of what was said by the noble Lord, Lord Phillips of Sudbury. I am favourably disposed to what I have heard today, particularly the extensive speech of the noble Lord, Lord Hodgson. However, I am worried that if the amendment became part of Clause 11, but there is no amendment of the kind requested by the noble and gallant Lord to Clause 2, one has a great deal of detail while the basic question of the charities for a "charitable purpose" under Clause 2 is not answered.
  Lord Bassam of Brighton: At the moment the charitable service non-public funds of the Armed Forces are excepted from the requirement to register with the Charity Commission, provided that those
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  charities are mainly or wholly established to promote the efficiency of the Armed Forces. The purpose of these amendments would be to confer on those charities exempt charity status.
  I shall put into my reply our thinking on the background to our position and to the excepted and exempt charity status. The Charities Act 1960 exempted certain charities from the Charity Commission's regulatory jurisdiction on the basis that they were adequately supervised by another regulator. Exempt status is very different from excepted status in that exempt charities are not able to register with the commission and are not subject to its supervisory powers. Excepted charities, while not required to register with the commission, can do so voluntarily and whether or not they are registered are fully subject to the commission's supervisory powers. As a general rule, charities are excepted from the requirement to register on the basis that they appear on some other list. Excepted charities are already subject to virtually all the accounting and regulatory requirements of charity law. Excepted status gives them exception from registration and little else.
  One of the main aims of the Strategy Unit review was to bring forward proposals to enhance the accountability and transparency of the charitable and wider not-for-profit sector. One of the main means of achieving that is the changes to the exempt and excepted charities provided in the Bill.
  6.45 p.m.
  When considering the position of exempt charities, we have sought to ensure that where a principal regulator has been identified for an exempt charity, the monitoring regimes to which it is subject will be adapted to cover basic charity law requirements. For the larger exempt charities—those with incomes above £100,000 per annum—where no principal regulator has been identified, the charities would be required to register with the Charity Commission. For the smaller exempt charities—those with incomes below £100,000 per annum—for which no principal regulator has been identified, the charities would become excepted charities.
  The Government do not intend to add any other charities to the list of exempt charities in line with our aim to increase the transparency and accountability of the sector as a whole, which we believe is vital to its success. In any event, as I have explained, exempt charities without a principal regulator are being required to register with the commission. There is no independent principal regulator for the Armed Forces charities.
  It has been estimated that, at the £100,000 threshold, approximately 90 per cent of the Armed Forces charities will not be required to register with the commission. We are alive to the concerns of the Armed Forces. There have been discussions, which will no doubt continue. We will meet their representatives in order to discuss their concerns. Allowing for a long lead-in time for the implementation of the changes to the excepted charities will enable those charities above

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  the registration threshold to prepare adequately for registration. As explained, we do not intend to introduce the changes to the excepted charities until October 2007.
  It is sometimes argued that what the forces call service non-public funds do not warrant registration as charities because they do not appeal for money to the public and are administered wholly in the Armed Forces, so are of no legitimate public interest. We cannot agree. The funds have charitable status and benefit from the tax privileges that brings, including the ability of service personnel to give tax efficiently to them through Gift Aid. We believe that there is a legitimate public interest in any organisation benefiting from charitable status and tax privilege. That interest extends to knowing of the existence and purposes of the funds—and that is satisfied by requiring them to register as charities. We will introduce registration gradually to minimise disruption.
  As a result of the changes provided for by the Bill, for the first time all charities will be monitored for their compliance with charity law. I hope that Members of the Committee will accept that adding to the list of exempt charities would have a negative impact on the transparency and accountability of the sector as a whole, so would not be desirable.
  The noble Lord, Lord Hodgson, said that there could be another principal regulator for service funds. It would not be appropriate for the Armed Forces charities to be regulated by the service boards, because they are under the control of principal officers from the services, so are controlled by the beneficiaries of the charities concerned. Boards also have no expertise in dealing with matters of charity law. I think that it is the case that they would then have to acquire that expertise and that we would have to give them a statutory function to carry out the role that the noble Lord seeks to provide for them. There are some practical difficulties involved in the noble Lord's suggested strategy for that sector.
  The expertise is already there within the Charity Commission. We have a gradualist approach in terms of implementation. Some 90 per cent of Armed Forces charities will not in the first instance be required to register with the commission.
  Lord Hodgson of Astley Abbotts: While I am grateful to the Minister, because he obviously thought extensively about the points that were raised in the debate, I cannot say that I am anything other than disappointed by what he has said. We accept that excepted charities will disappear. I understand that and why it makes sense. But we are to preserve a number of exempt charities that are listed, which we will debate shortly. They can be removed from but not added to. It is not clear why we are preserving an exempt list that is stuck like a fly in ambergris, which cannot be changed at all.
  It seems that the Government have got themselves very hung up on that important, significantly large but internal, set of service charities. There is no question
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  about St Dunstans, the Royal British Legion or all of those, which come in. There are any number of levels at which the regulator could participate. As I say, they can go from the individual service chiefs up to the MoD, which, surely, is far enough away from the individual charities at unit level not to have conflicts of interest.
  I take the Minister's point that there is an associated tax privilege. Clearly, there has been a tax break and Gift Aid can be used. There is, therefore, a point of public interest. But, at this level, are we really talking about bringing around 12,000 to 15,000 internal charities into the Charity Commission net on that slim and rather narrow point? The service non-public funds will be very disappointed with the Minister's reply. I hope that before Report he will have a chance to think carefully on whether he is not using a sledgehammer to crack a nut—or a sledgehammer to crack a nut that does not even exist. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Hodgson of Astley Abbottsmoved Amendment No. 111:
  Page 13, line 24, leave out paragraph (a) and insert—
  "(a) for "the colleges and halls in the universities of Oxford, Cambridge, Durham and Newcastle," substitute "any college or hall in the university of Newcastle, and"; and"
  The noble Lord said: I shall be brief. Amendment No. 111 follows the wording of the original draft Charities Bill. We have been asked to raise this issue with the Minister to get an explanation on the record on why the change has taken place. This would have the effect of requiring the colleges of Oxford, Cambridge and Durham to register with the Charity Commission rather than remain exempt. As I understand it, that is what, certainly, the Oxbridge colleges wish to happen. They would prefer to be regulated by the Charity Commission than by their respective universities, which would almost certainly be the result should they seek to remain exempt.
  I understand that the final Bill has omitted those words not because there is a proposal that Oxford, Cambridge and Durham colleges should remain exempt, but because there is some suggestion that removing their exempt status would change the nature of the Bill from a public general Bill into a hybrid Bill of some sort. As I understand it, the intention therefore is that those colleges should not be removed from exempt status by the Bill, but should be so removed by the Secretary of State under his powers given by Clause 11(12) and (13) shortly after the Bill is passed.
  Hybridity is a topic to which constitutional lawyers no doubt devote a lifetime of skill and expertise. In my brief sojourn in the other place, I recall Mr Robin Maxwell-Hyslop, MP for Tiverton, bringing the Government's entire shipbuilding nationalisation programme to a grinding halt on the grounds of hybridity. Perhaps the Minister could favour us with a short explanation of the change from the draft Bill to the Bill before us now.

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  Was hybridity threatened because the colleges or halls in the University of Newcastle remained in the draft Bill? If so, why is hybridity not still being risked because two educational establishments—Eton and Winchester—are being removed in the Bill before us today.
  Noble Lords will probably have seen the briefing from Universities UK on this point. We share its view that, in the interests of clarity and transparency, it seems appropriate that the Bill should show the Government's true intentions rather than have them executed by means of the exercise of the Secretary of State's powers after the Bill is passed. I beg to move.
  Lord Phillips of Sudbury: I suppose that in view of the forthcoming amendments in relation to universities, I should declare an interest as chancellor of Essex University. Of course, Universities UK does not represent colleges and halls which are parts of universities, but it accepts that those colleges and halls do not want to be regulated by HEFCE and, indeed, they have no direct relationship with HEFCE now. Universities UK also fully accepts the Government's policy in relation to universities and the Bill. There must be regulation by someone and it accepts that these halls and colleges would prefer to have a relationship with the Charity Commission. Therefore, it supports these amendments.
  Lord Bassam of Brighton: I am grateful to the noble Lord for tabling the amendment and to the noble Lord, Lord Phillips, for telling us that he is the Chancellor of Essex University. I did not know that; I suppose that I should have done. I express my gratitude to him. I used to use the library there regularly.
  In any event, the amendment allows me to clarify the position of the colleges and halls of Oxford, Cambridge and Durham Universities, which are currently exempt charities. I understand that there are no colleges or halls at the University of Newcastle and so I do not think that we need to concern ourselves overmuch with that.
  We consulted fully with the representatives of the colleges and halls of these universities, save for Newcastle, in an attempt to identify a suitable principal regulator to take on the role of monitoring their charity law compliance. The Higher Education Funding Council for England was identified as a principal regulator of higher education institutions. However, it was not considered to be a suitable principal regulator for these colleges as, although it has a relationship with the respective universities, it does not have a direct relationship with the colleges and halls. It did not prove possible to identify a suitable principal regulator for these colleges and halls and, with the agreement of the representatives of the colleges and halls, it was proposed that they lose their exempt status and register with the Charity Commission.
  It remains the Government's intention that these institutions be removed from Schedule 2 to the 1993 Act and that they lose their exempt status and register
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  with the Charity Commission. However, the Government intend to achieve that by use of the order-making power in subsection (12) of Clause 11. Such an order made under this clause would be subject to the affirmative resolution procedure.
  A consequence of the amendment would be that seeking to remove the exempt status of these organisations by amending the Bill could give rise to hybridity. That could result in unwelcome complications for the Bill and its progress through Parliament. As the Government intend, albeit by different means, the same outcome as that which the noble Lord's amendment seeks, I suggest to the noble Lord that it may be in everyone's best interests if he withdraws the amendment.
  Lord Phillips of Sudbury: Before the noble Lord sits down, what is the impact of the European Convention on Human Rights vis-à-vis the hybridity point? It is not a serious point.
  Lord Bassam of Brighton: I realise that it is not a serious question but I am grateful to the noble Lord for asking it. If he really wants an answer, of course I shall write to him at length.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister. We wanted to get that point on the record and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  7 p.m.
  Lord Borriemoved Amendment No. 112:
  Page 13, line 26, leave out subsection (4).
  The noble Lord said: The amendment stands in the name of myself and the noble Baroness, Lady Howe of Idlicote. Clause 11, as we know from the brief discussion that we have just had, makes certain amendments to the list of exempt charities in Schedule 2 to the 1993 Act. I have found Clause 11(4) rather odd—although it is probably not the only bit of the clause to be that. It purports to add to the list of the exempt charities a, "higher education corporation", but such a body is already listed in Schedule 2. Naturally, I turn to the Explanatory Notes to get an explanation, and there I am told that the change is described as a "technical change" that has,
  "no effect on the exempt status",
  of the higher education corporation. Given that Explanatory Notes are meant to be helpful, I do not believe that that helps any of us to understand why something that is already there should be inserted. In fact, if a textbook writer publishes a consolidation of the old Act and the new one, the paragraph will be repeated and everyone will think that it is the fault of the publisher. So I should like the Government to explain that.
  That is a technical matter, however. I am at any rate clear, because it has already been announced and the Minister has just mentioned it, that the Government intend in Clause 11 that a higher education

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  corporation should have exempt charity status and that under Clause 13, which we have yet to come to, the Secretary of State by regulation will appoint the Higher Education Funding Council as principal regulator for universities.
  I should have realised that a "higher education corporation" does not include what I might loosely call the older universities, some of which have just been mentioned. To be comprehensive in my amendment, I should have sought to remove exempt charity status from all other universities as listed in headings (b) and (c) of Schedule 2 to the 1993 Act. I apologise to the Minister and to other Members of the Committee for the inadequacy of my amendment, which I shall not of course press. But I trust that the Minister will appreciate that it is intended to probe whether universities ought to be regulated by the Higher Education Funding Council.
  In the Second Reading debate on this Bill, my noble friend Lady Warwick of Undercliffe, chief executive of Universities UK, who is unable to be here today, made some pertinent remarks about the burdens of regulation that are already placed on universities. She voiced the concern of many that the Bill should not add to that burden. She said, on 20 January—which shows how long ago Second Reading was:
  "To their credit, the Government have recognised that danger. Instead of exempt charities having to register directly with the Charity Commission, they will be regulated by their current 'principal regulator'. The intention behind that is to avoid the duplication of regulation".—[Official Report, 20/1/05; col. 932.]
  Is HEFCE the appropriate regulator, however, given that it must have a dual role as funding body and regulator taking the place of the Charity Commission in its manifold responsibilities under the charities legislation?
  My principal concern is not ideological but practical. May HEFCE prove to be a more exacting task master and a more heavy-handed regulator than the Charity Commission? Anxiety on that score has been expressed to me by the Higher Education Regulation Review Group, to give it its full title, a body chaired by Dame Patricia Hodgson and set up by the Department for Education and Skills to review new legislation, regulations and procedures. The anxiety of that group is that whatever the intentions of the new arrangements under the Bill, which is no doubt that they should be light regulation and not impose burdens on the Charity Commission which would be bourne better by someone else, monitoring of universities and controls should not impinge too onerously on the university sector.
  Is it possible or likely that HEFCE will seek to collect more information from universities or run more checks on them? Will new audit requirements be imposed by HEFCE which could be unduly burdensome? Will the Minister give a reassurance that the universities are not believed to abuse their charitable status at present and will not be burdened with new and seriously heavy obligations as a result of the exempt status provided by the Bill and the transfer of regulation from the Charity Commission to
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  HEFCE? The exempt status, far from being something desirable, may become something undesirable. I beg to move.
  Baroness Howe of Idlicote: In support of the amendment moved so comprehensively by the noble Lord, Lord Borrie, I share the same reservations about HEFCE. It has a huge role already in a heavily over-regulated sector. No doubt with the passing of recent legislation, and further requirements on higher education institutions to comply with the no doubt very reasonable requirement to get more students from poorer backgrounds into universities, there will still be a certain suspicion.
  The main thing is that, having been deregulated, they must now be regulated—and if that is necessary for the essential effective working of the Bill, so be it. What universities really want is that the burden can be spelled out by the Minister as not being too heavy. If he could give reassurances on that—that the extra auditing that will be required is to be done by ordinary auditors just as an extra bit of work. Nobody believes that the higher education sector is under-regulated. In 2002, the Better Regulation Task Force made it clear that in some respects it was overburdened. So I hope that we can have reassurance from the Minister.
  Lord Swinfen: I hope that the Minister will accept the amendment. As the noble Lord, Lord Borrie, said, in Schedule 2 to the 1993 Act, a higher education corporation is already included under paragraph (h). I notice that the next clause proposes to insert paragraph (j), which also refers to a "further education corporation". I notice, too, in Schedule 2 to the 1993 Act, at paragraph (j), a further education corporation is mentioned. There must have been a mistake in the drafting in those respects, and I believe that the references are unnecessary. I hope that the Minister accepts the amendment tabled by the noble Lord, Lord Borrie, and introduces one himself on Report on the point that I have raised.
  Lord Hunt of Wirral: I have already declared my interest as senior partner of Beachcroft Wansbroughs. I am speaking on the amendment mainly because the noble Lord, Lord Dearing, who wanted to explain the answer to several of the questions posed by the noble Lord, Lord Borrie, has unfortunately had to go to another meeting. He asked me—if ever I could be an adequate mouthpiece—to put forward the points that he wanted to make. I have no advice for the noble Lord, Lord Borrie, on the actual effect of his amendment, and I look forward to hearing from the Minister on that.
  The noble Lord, Lord Borrie, said that the purpose of the amendment was to probe the regulations proposed in the Bill relating to universities —and that was further explained by the noble Baroness, Lady Howe of Idlicote. The great majority of UK-based universities in England have said that they would prefer HEFCE to be the principal regulator, and the noble Lord, Lord Dearing, asked me to explain how that decision was reached. As was pointed out, universities already comply with charity law. When it

  GC299
  was first proposed that that compliance should be regulated, Universities UK opposed that suggestion, as the noble Lord and the noble Baroness explained.
  Higher education is a low-risk sector which is already heavily over-regulated. That fact is already reflected in the Government's response to Private Action, Public Benefit, which is called Charities and Not-for-Profits: A Modern Legal Framework. Paragraph 6.56 refers to that fact and quotes from the Better Regulation Task Force conclusion in 2002 that higher education institutions,
  "were in some respects overburdened with bureaucracy".
  However, when it became clear that some form of regulation must be put in place, the universities chose HEFCE as the most suitable principal regulator. The noble Lord, Lord Borrie, referred to the Higher Education Regulation Review Group, which is concerned that regulation should be light touch. But the majority view of member vice-chancellors is that universities would prefer to take the route proposed under the Bill and fight the battle for a light-touch regulation approach rather than face regulation by a body with whom they do not already have a relationship.
  I shall explain. As the funding body for English universities, HEFCE already receives the information that would be needed by a regulator, such as audit reports and the financial memorandum. Having HEFCE as the principal charity regulator, therefore, avoids the duplication of regulation. Furthermore, HEFCE has a detailed knowledge of the sector, which the Charity Commission does not. I understand from the noble Lord, Lord Dearing, that HEFCE intends to approach its new role with as light a touch as possible. A key issue is that the body is willing to use the new higher education SORP, to which we referred earlier, that is the statement of recommended practice, which would substantially reduce the scope for duplication of bureaucracy.
  I hope that in some way I have answered the points raised by the noble Lord, Lord Borrie. Although having HEFCE as principal regulator would impose the least bureaucracy on English universities, a one-size-fits-all approach would not work across the sector. Different parts of the higher education sector have different existing regulatory practices and therefore need different regulators. As was discussed under earlier amendments, the colleges of Oxford, Cambridge and Durham universities will register with the Charity Commission, as potentially will Welsh universities. Under the Charities Bill currently before the Scottish Parliament, institutions there will register with the Office of the Scottish Charity Regulator, although many of the existing regulatory regimes will continue to be used.
  I hope that I have been able to persuade the noble Lord, Lord Borrie—and of course I look forward to hearing from the Minister—that for those reasons, HEFCE would be the most suitable principal regulator for English universities. I hope that the Minister will endorse that approach.
  7.15 p.m.
  Lord Phillips of Sudbury: In speaking to these amendments, I am not speaking for Universities UK or for my university, of which, incidentally, the vice-chancellor is the current boss of Universities UK and has a great deal extra on his plate. But it seems to me that the whole area of charitable activity in relation to the universities needs no additional regulation at all. Universities are inundated with regulation. They are full of lawyers, accountants and managers, and I see no virtue whatever in their being subject to a principal regulator or, indeed, to the Charity Commission. They are fully aware of charity law; they are classically charitable organisations; and the Charity Commission has all the rights under this Bill and previous legislation that it needs to come down on them if they step out of line.
  That said, we have a patchwork of arrangements, as we have just heard from the noble Lord, Lord Hunt. For example, the Welsh universities are to be regulated by the Charity Commission. My question to the Minister is: is it impractical or otherwise obnoxious to contemplate the circumstance where a university can choose whether to be regulated or to have a principal regulator, such as HEFCE or the Charity Commission?
  I am less sanguine about HEFCE as principal regulator than some who have already spoken. It is true that it has a long-standing relationship with the universities, but it has no experience of regulating for charity law purposes. My fear is that, if this new function is placed on them, it will lead to a far heavier engagement between HEFCE and the universities than if the matter were left to the Charity Commission. The commission is extremely experienced in what I would call a "real light touch". Because it is the fount of charity surveillance, so to speak, it has much more confidence in exercising a light touch than HEFCE is likely to have. I should be grateful if the Minister could respond on that point.
  Finally, I reiterate what the noble Lord, Lord Swinfen, and others said about the state of the Charities Act 1993, as reprinted in 2004. Most noble Lords will be clutching a copy of that because much of the present Bill harks back to the 1993 Act. It seems to me to be a most extraordinary state of affairs when the legislature cannot obtain from Her Majesty's Stationery Office or, indeed, from this House or the Printed Paper Office, a Bill which shows all the amendments that have been passed to it in the interim. Were we to have had that, some of the confusion and perturbation which has been expressed about, for example, a higher education corporation already being in the Bill would have been explained. As I understand it, the higher education corporation was taken out as a category of exempt charities in 1998. Therefore, although it is not strictly germane to this amendment, we shall have to take our chances.
  I hope that the Minister will take back to the Government the fact that there is a need to equip those of us who try to legislate complex matters with Bills

  GC301
  that are up to date and which do not involve us undertaking research which many have neither the time nor the expertise to pursue.
  Lord Brooke of Sutton Mandeville: I am very conscious of my fairly substantial absence from the deliberations of this Committee. This moment in a Parliament is one when diary conflicts are intense but, because I am returning after a long absence, I shall be extremely brief.
  I cannot help remarking that progress on the Bill during my absence does not seem to have been exactly precipitous. In the very early days of motoring, Raymond Asquith, the Prime Minister's son, spent a weekend at a home in the Highlands and was driven to the station 16 miles away by his hostess's chauffeur. In writing his thank-you letter, he said that the chauffeur had driven with the passion of Shelley and the precision of Pope. It seems to me that there has been rather more of the latter than of the former in the progress of the Committee so far.
  I declare an interest as Pro-Chancellor of the University of London. In the same way as the noble Lord, Lord Phillips, disclaimed, I am not speaking for that university. I am not proposing to add substance to the amendments admirably moved by the noble Lord, Lord Borrie, and the noble Baroness, Lady Howe of Idlicote, but I was already intensely interested in the reply that the Minister was going to give. My noble friend Lord Hunt of Wirral seems admirably to have paved the way for the Minister's response. But that has not lessened my interest, not least because his words will commit the Government to considering this matter for future reference and because of the speech of the noble Lord, Lord Phillips of Sudbury.
  Lord Bassam of Brighton: I am grateful to the noble Lord, Lord Brooke, for returning to the Committee and adding his usual high quality of levity to our proceedings. It has certainly lightened this late part of our urgent deliberations on such terrifically important matters. I am extremely grateful to the noble Lord, Lord Hunt, who has really done my job for me. I was almost inclined to say that he made the speech that I would have loved to have made, and he did so more eloquently and elegantly than I can make my observations, I am sure.
  I want to deal with the point picked up by the noble Lord, Lord Borrie, in his commentary on Clause 11(4). He suggested that it repeated something that was already present. The subsection does not repeat anything. The higher education corporations were removed from Schedule 2 by the Teaching and Higher Education Act 1998. The amendment seeks to reinsert higher education corporations in the schedule of exempt charities.
  Lord Borrie: I was most interested in what the noble Lord, Lord Phillips, said. He was informative. I had not previously realised what he told us. Why does the top of Clause 11 state:
  "Schedule 2 to the 1993 Act … is amended as follows"?
  GC302
  It does not say, "the 1993 Act, as amended, is amended as follows". It suggests that I am to look—as I did—at the 1993 Act. I found the phrase that is then to be inserted. The fault is one of drafting. despite, as I have admitted already, my lack of study of what happened between the two dates. I did not think I had to study that.
  Lord Bassam of Brighton: Perhaps the drafting is not perfectly expressed, but it means the 1993 Act as amended. Members of the Committee, including the noble Lord, Lord Borrie, might have been looking at an out-of-date version of the 1993 Act that does not reflect the effect of the 1998 Act. I am treading on dangerous ground because I am bound to find that someone has consulted the right version.
  Lord Phillips of Sudbury: On the part of all Members of the Committee, I cannot resist. My copy of the Charities Act obtained from the Printed Paper Office this week was reprinted in 2004. Which Member of the Committee will assume something other than that it is what we need? That is a serious point.
  Lord Bassam of Brighton: It is a fair point.
  Lord Swinfen: There may have been an Act that amended the 1993 Act, but the 1993 Act has to be printed as passed by Parliament unless a consolidation Act has been passed in the mean time. There has been no consolidation Act for the 1993 Act. Once the Bill becomes law, I hope that the Government will bring forward a consolidation Act to make certain that, later on, we all sing from the same hymn sheet.
  Lord Brooke of Sutton Mandeville: To give the Minister slightly longer to form a view, I shall say that I cannot help feeling that "the 1993 Act as amended" is either a correct description of the 1993 Act or it is not. For those of us trying to find our way through the matter, there would have been some virtue in the words "as amended" having been added rather than discarded.
  Lord Bassam of Brighton: Okay. I am advised that the copy is the 1993 Act as passed by Parliament, not as amended subsequently. That is so even though the noble Lord's copy was printed in 2004. I agree that there is a need for some consolidation; that would greatly clarify matters and would certainly be more helpful.
  Lord Phillips of Sudbury: This is the last interruption. I promise. Does that mean that the noble Lord is conceding Amendment No. 186 on "Consolidation etc."? It would save a lot of debate later on.
  Lord Bassam of Brighton: Tempting though it would be—perhaps I would have an easier life—I would probably get hell elsewhere, so I am afraid not. I said that the noble Lord, Lord Hunt, had really made my speech for me, but it is important—
  Lord Swinfen: Before the Minister goes on to deal with the universities, I should point out that he has not said whether he will accept the amendment. He ought to. When he answers that, will he answer my point on Clause 11(5), which is also unnecessary because the provision is already in the 1993 Act?
  Lord Bassam of Brighton: The provision was taken out. We are reinserting it. I hope that that answers the noble Lord's point.
  We should make some progress and complete discussion on this important amendment. I am afraid to say from the point of view of the noble Lord, Lord Borrie, that we are not minded to accept it. Exempt charities benefit from the same advantages as registered charities, with an exemption from registration with the Charity Commission and most of its regulatory powers. They must still comply with the basic principles of charity law. The Government's intention is to ensure that exempt charities' compliance with basic charity law is monitored and that they are properly accountable, while taking care to minimise any bureaucracy that that might entail.
  The Bill would maintain the exempt status of charitable higher education institutions in England, subject to regulation by a principal regulator. The Higher Education Funding Council for England was identified as the most suitable principal regulator of the charitable higher education sector in England as it currently funds higher education, research and related activities, and already monitors institutions' management, governance arrangements, and financial health. In Wales, it is proposed by the Welsh Assembly that charitable higher education institutions should register with the Charity Commission.
  I want to reaffirm that the Government are keen to keep to an absolute minimum any additional burden for universities as a result of the Bill, and appreciate the existing regulatory burdens on universities, as amply evidenced in Committee, particularly by reference to the 2002 Better Regulation Task Force report. However, the basic principles of charity law already apply to exempt charities, and we intend that the monitoring process should adopt the lightest possible touch, to enter into the relevant jargon.
  The principal regulator approach has several advantages over registration with the Charity Commission. Principal regulators are in a position of knowing and understanding their sector, and the issues of importance to it. The principal regulator—in this case, HEFCE—would be able to use existing reporting mechanisms and monitoring processes so far as possible, to demonstrate compliance with charity law. Keeping the burden to a minimum could include the use of existing auditors to attest to compliance, or other ways of simplifying or automating the compliance monitoring process.
  Higher education is a sector where Britain is world class, by any measure. Teaching, whether as an academic endeavour or delivering the range of professional skills—
  The Deputy Chairman of Committees (Baroness Gould of Potternewton): I am instructed that the Committee has to adjourn immediately. I suggest that we come back, finish the amendment and adjourn the Committee for the day.
  [The Sitting was suspended for a Division in the House from 7.30 to 7.38 p.m.]
  Lord Bassam of Brighton: The higher education sector is world class by any measure. It is widely respected. The teaching is of a high standard. It has fantastic levels of productivity and the institutions have maintained leadership and creativity over decades of funding pressure. There is no suggestion that universities are currently failing to comply with basic charity law requirements, but without a monitoring process in place it is not possible for them to demonstrate that they are doing that.
  Of course we will monitor the arrangements made for compliance and will intervene if any significant or unnecessary additional burdens are introduced for universities. The intended effect of the amendment is to remove higher education corporations' exempt charity status. As a result, higher education corporations would have to register with and be regulated by the Charity Commission, which would not provide the benefits of the principal regulator approach and would result in a greater regulatory burden, as universities would be subject to the monitoring and reporting requirements of both HEFCE and the Charity Commission—a double burden of regulation.
  HEFCE already monitors the Government's financial help for universities. It already has the monitoring systems in place. It is effective in doing that. What we require here is a light touch of regulation and it would be much better to modify the existing monitoring processes than have a duplicate layer of monitoring through the Charity Commission route. For those reasons, we reject the approach that has been proposed by the noble Lord, Lord Borrie. The noble Lord, Lord Hunt, was absolutely right. This is the best way for us to make this work and it is understood and effective in those terms. For those reasons, I cannot accept the amendment.
  Lord Borrie: I feel like the speaker who immediately precedes the lunch break, because everyone wants to go away. I thank all those who took part in this debate and, in the light of the Minister's statement, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Bassam of Brighton: I think that this would be a convenient moment for the Grand Committee to adjourn until Monday at 3.30 p.m.
  The Deputy Chairman of Committees: The Committee stands adjourned until Monday next.
  Committee adjourned at nineteen minutes before eight o'clock.

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