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Lords Chamber

Volume 604: debated on Wednesday 14 July 1999

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House Of Lords

Wednesday, 14th July 1999.

The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers—Read by the Lord Bishop of Gloucester.

Former Yugoslavia: Twinning

Whether they intend to build on the links between individuals which have already been forged by twinning with towns and cities in former Yugoslavia.

The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office
(Baroness Symons of Vernham Dean)

My Lords, twinning links between towns and cities can be a useful means of promoting reconciliation. The Local Government International Bureau (LGIB) acts as a clearing house for all forms of twinning and technical co-operation with counterparts world-wide. The LGIB has sent an officer to Kosovo as part of a Council of Europe mission on behalf of the UN, to consider, among other things, ways to mobilise partnerships between European local and regional authorities.

My Lords, I thank the Minister for that helpful reply. Bearing in mind the Prime Minister's statement that the war was against the regime of Mr Milosevic and not the people of Serbia, what advice does the Minister give to the people of Norwich who are twinned with the people of Novi Sad? Can she indicate whether in future it may be possible for visas to be obtained so that members of Norwich City Council can visit Novi Sad and people from Novi Sad can come to this country?

My Lords, as the noble Lord indicates, the relationship with Norwich has persisted for some time, certainly since well before the recent hostilities. In general, the recent hostilities have been very much directed at the regime, not al the people of Serbia. Whether or not visas are granted to people to go to that country is a matter for the Serbian authorities. Where there is a real demonstration that local authorities do not support the Milosevic regime, it is for local authorities in this country to pursue those relationships. I stress that we want to know that the town concerned is not part of any Milosevic machine.

My Lords, I am glad that the Minister agrees with the noble Lord, Lord Walpole, that there is an important distinction to be drawn between our policy towards the regime of Milosevic and our attitude to the ordinary people of Serbia, with whom we have no quarrel. Further, does the Minister agree that there is much value to be gained from exchanges between citizens and elected representatives of UK towns that are twinned with towns in the former Yugoslavia, given that these exchanges help to engender mutual understanding and advance our common effort to unite the whole of Europe into one family of democratic nations?

My Lords, I am extremely grateful for the wise words uttered by the noble Lord. We have no quarrel with the people of Serbia; the quarrel has always been with the Milosevic regime. We have debated this matter in the past, and I believe that the whole House is agreed on that point. Traditionally, twinning has been seen as a social activity that benefits those who take part and is of value to the community, but I believe that the noble Lord is right. There is a deeper potential here that involves educational and economic links, and technical assistance projects.

My Lords, my noble friend refers to the educational dimension, which is obviously vital to the rehabilitation and reconstruction of post-war Yugoslavia. Are the Government looking with universities and higher education in Britain at what links can be forged there to strengthen a healthy approach to higher education and its values?

My Lords, we are looking across the whole spectrum of activities in the area of reconstruction. The EU is setting up an agency for reconstruction in which the United Kingdom will take an active part. As to reconstruction, the immediate tasks are the provision of emergency relief, rehabilitation, the provision of basic infrastructure, de-mining, the establishment of a proper police force, and so on. But the points that my noble friend makes about the longer term and the value of economic links, particularly educational ones, are very much ones that we take on board. I cannot give my noble friend any direct information about what is happening in the area of further and higher education, but I shall write to him if I am able to glean any further information on that particular aspect.

My Lords, we recognise the good response that we have received from the World University Service with regard to encouraging links between higher education institutions. However, perhaps I may ask the Minister to go one step further in particular with regard to Serbia. She rightly said that the quarrel is not with the citizens of Serbia, but with its government.

There are two other areas where close twinning could be encouraged. The first is the excellent work being done by the Churches in relation to their links with the Serbian Orthodox Church which, as the noble Baroness knows, rather surprisingly has strongly criticised Mr Milosevic's regime. The second relates to work with the media, in particular the struggling media attempting to be independent of the government in Serbia, where our own media—the BBC apart, which has an excellent reputation—might go a little further to be of real assistance.

My Lords, I agree with the noble Baroness. Not only the Orthodox Church, but a number of others in Serbia are now seemingly more prepared to voice their opposition to the Milosevic regime. That is to be welcomed. The work that the Churches have done is well recognised and we wish them well in furthering those endeavours.

On the media issues, we all know that one of the great problems during the recent military action was that the truth was not getting through to the Serbian people about what was being done and the appalling atrocities that were committed on their behalf. We have endeavoured to do what we can to ensure that a truthful story gets to the people of Serbia. For example, we have increased BBC World Service broadcasts to that part of the world. I believe that I have given details in your Lordships' House previously about how that is being done. But a free media in Serbia must be a key in establishing a democratic process. That must be well understood.

My Lords, have normal postal services yet been restored to and from Serbia; and, if not, when will they be?

My Lords, I regret that I am unable to give the noble Lord the information that he requires but I shall endeavour to do so in a letter and shall place a copy in the Library of your Lordships' House.

My Lords, following the suggestions already made, does the Minister agree that after the disappearance from the scene of President Milosevic there is much to be said for developing between Yugoslavia and this country something akin to the Königswinter conferences set up with the Germans soon after the Second World War which have had such tremendous success, originally in helping the Germans back to democracy and later in developing mutual understanding between our two countries?

My Lords, I thank the noble Lord for making that extremely interesting suggestion. I stress that any such suggestion could be considered constructively only after the disappearance of Mr Milosevic and those in his regime who have supported what he has done. We must remember that it was not Mr Milosevic alone who supported the appalling atrocities and the ethnic cleansing that we have seen; there have been many who have been only too willing to help him in that endeavour. But once we have seen the back of that regime, I shall convey the noble Lord's interesting suggestion to my ministerial colleagues as one which I believe is well worth considering.

School Milk: Eu Subsidy Scheme

2.46 p.m.

What action they are proposing to take to ensure that both United Kingdom primary schoolchildren and United Kingdom dairy farmers continue to benefit from the European Union school milk subsidy scheme.

The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food
(Lord Donoughue)

My Lords, my right honourable friend the Minister raised the subject at the last Agriculture Council where he received considerable support for our view about the value of the current scheme. I have also been working to improve the take-up of the scheme by local authorities and schools.

My Lords, I thank the Minister for that encouraging reply. Does he accept that there is much work to be done in encouraging schools to take up the scheme? At a time when one in three children go to school without breakfast—this Government are pressing the issue of poverty—and when dairy farmers are in crisis, does the noble Lord believe that bringing together MAFF, the Department of Health and the Department for Education to consider improvement of the diet of our schoolchildren would be desirable? Cheese and yoghurt are available under the scheme but the Government choose not to take it up. Apples and pears are available under another scheme but are being thrown away. That would link Britain's farming industry with the diet of our schoolchildren. How does the Minister propose to encourage those departments to make use of the scheme so that it can be demonstrated to the European Union to work well?

My Lords, I agree with the thrust of the noble Baroness's argument. One of the first initiatives I launched was to bring together those departments to see how we could advance the school milk programme. We have had regular inter-departmental meetings. We have been in touch with the Intervention Board. The Intervention Board has now taken steps to simplify the procedures. It will issue this week a leaflet to all local authorities explaining the benefits of the scheme and the mechanics of it with a simplified claim form. It has also issued a questionnaire to local authorities and schools to discover how the matter can be improved. So we have done a good deal.

At the June Agriculture Council my honourable friend argued strongly against the Commission's proposals to abolish the scheme and was supported, for instance, by Germany, France, I think Spain, Sweden and Austria, so we have the makings of the support of a qualified majority. As a result of the steps we have already taken, the take-up of school milk has risen since we came to power by upwards of 10 per cent whereas in the last three years of the previous administration it declined by 20 per cent. So we have had considerable success. There is now a 25 per cent take-up in schools. It is a good scheme and we are fighting strongly not only to preserve it in Europe but to increase the take-up here.

I agree with the noble Baroness about the fruit. The regime has been amended a little, so fruit such as apples and pears withdrawn from the market can be distributed to good causes—hospitals and so forth—and schools will be included. The distribution of apples to schools will soon begin.

My Lords, I am sure that noble Lords will be pleased to hear the Minister's response. However, a great deal of work is still to be done. I understand that the subsidy is to be cut by half in September and the whole scheme to be abandoned by July next year. With that in mind, will the Minister consider giving support to such groups as the women's food and farming union which can promote the use of milk within our schools?

My Lords, yes, such groups do an excellent job. Indeed, I have met them and they helped me to launch my defence of the scheme. Perhaps I may make it clear that as yet it is a Commission proposal built into the budget. It has not been formally proposed to the Agriculture Council, but when it is we shall strongly resist it and continue to attempt to build up the coalitions, which has been part of our European policy since we took over. We still hope that we shall be able to defeat the proposal.

My Lords, is the Minister aware that while milk is good for children it is now time to consider whether beef on the bone would be better for adults?

My Lords, I am sure that the noble Lord is aware that today we are happy to announce that beef exports from Britain will resume. That is another success of the Government's policy. However, as the noble Lord knows, the issue of beef on the bone will shortly arise for consideration and an announcement will be made accordingly.

My Lords, what prospects are there for the United Kingdom dairy industry providing milk for schools when the ruling of the Monopolies and Mergers Commission on Milk Marque will make it even less remunerative to farmers to keep dairy herds? My local farmer sold his herd simply because last year he produced more milk than he had ever produced and still managed to make a loss.

My Lords, it is true that our dairy industry has serious problems and we do whatever we can to support it. The report of the Monopolies and Mergers Commission into Milk Marque was an independent report and discovered serious abuses of the monopoly position. It made proposals to break up the industry and for interim measures which would diminish the monopoly of uses in selling practices. My right honourable friend the Secretary of State for Industry did not accept the proposals to break up Milk Marque, but has accepted that there should be radical changes in selling practices.

I do not believe that a viable industry should be dependent upon bad monopoly practices. I believe that the industry is good enough to survive without that. It needs to have more and better marketing for more and better dairy products. That is the way of the future.

Electricity Trading Arrangements

2.54 p.m.

What progress is being made in the review of electricity trading arrangements.

My Lords, the review of the electricity trading arrangements is being led by the DTI and the Office of Gas and Electricity Markets. We expect to publish a consultation document at the end of July which will contain details of the proposed new market. Final proposals will be published in the autumn. Legislation to implement the new trading arrangements will be brought forward as soon as parliamentary time permits.

My Lords, I thank the Minister for that Answer. Will he accept that the changes proposed in the electricity market will surpass in their extent and complexity the changes which were introduced during the privatisation of electricity and could therefore affect everyone in this country? Will he further accept that many problems are as yet unresolved; for example, in the case of combined heat and power and renewable energy, in which I declare and interest, the present arrangements would definitely be prejudicial? I know that those matters are under consideration. Has the Minister anything to announce as regards their resolution?

Secondly, and more importantly, will he accept that the new arrangements will require major new computer networks at national system level and at the level of the generating and supply companies? I am sure that he hardly needs to be reminded that the combination of new computer systems at the same time as the introduction of massive new procedures can be a lethal combination. Will the Minister assure the House that, before the arrangements are introduced, the Government will conduct complete cost-benefit and risk analyses, publish them and have them fully debated?

My Lords, it almost sounds as though the noble Lord is asking me to delay decisions rather than, as is more common, to speed them up. He is right that the issues are complex. We must look after the security of supply, price transparency, sufficiently liquid markets, the impact on combined heat and power and renewables, and the impact on the non-fossil fuel obligations. All those issues have been considered over recent months and will be considered during the consultation period.

As regards IT, the noble Lord is again right. It would be most unwise to implement other changes at the same time as devising a new IT system. On the other hand, the IT system that is necessary is basically a trading system, and plenty of examples are already available.

My Lords, will the Minister ensure that in the review in question, the whole subject of net metering is investigated in considerable depth, whereby those individuals who currently produce electricity—presently primarily through the use of photovoltaics—are paid the same sum per unit as they pay?

My Lords, I understand that that is an additional complication. On the other hand, anyone who seeks to preserve any aspect of the pool operation which we have had for the past nine years, and which was an absurd and perverse result of the way in which privatisation was carried out, needs to think very carefully.


2.58 p.m.

Which Ministers and officials have been in contact with the International Fund for Animal Welfare (IFAW) or the Political Animal Lobby to discuss policy on foxhunting and whether they will publish the memorandum of 21st May 1999 from the Parliamentary Under-Secretary of State at the Home Office, Mr George Howarth, reporting a telephone conversation with the director of IFAW.

My Lords, as is appropriate and as part of their work. Ministers and officials have met—and will continue to meet—interested parties from all sides of the debate. As has already been made public, officials at 10 Downing Street held a meeting last Tuesday with representatives of the Royal Society for the Prevention of Cruelty to Animals, the League Against Cruel Sports and the International Fund for Animal Welfare. That followed previous meetings with the Countryside Alliance and other interested parties. Foxhunting was among a number of animal welfare issues which were discussed. As the noble Lord will recall, internal working papers on policy matters are not routinely published.

My Lords, I am grateful to the Minister for going some way towards removing the veil of secrecy on what has been happening within government. Does he agree that the antagonistic policies of the Government towards those in the countryside would be more easily understood if they were rationally driven rather than financially driven?

My Lords, They are not financially driven at all. If we want to go into financially driven policies of the previous government I am happy to spend a few hours doing that. One of the contributions given was by the Political Animal Lobby. That was published in our 1997 accounts. The recent donation has also been made public. That was £100,000. This morning I looked at a copy of the Daily Telegraph dated November 1997 and saw that the same lobby had given the Conservative Party almost £170,000.

My Lords, as regards foxhunting, can the Minister clear up a little confusion concerning the statement made by the Prime Minister last week on "Question Time"? He said that the Private Member's Bill had been blocked partly by the House of Lords. Surely we all recollect that that Bill never got to the House of Lords. Why did the Prime Minister mislead his audience? Was it ignorance?

My Lords, the noble Lord, Lord Tebbit, is right in his recollection, which coincides with mine.

My Lords, does my noble friend agree that it has been commonplace for the animal lobby, in particular the IFAW, to donate moneys to all political parties; that the Labour Party has never been shy about publicising donations that have been made to it, unlike the party opposite; and that it is only by virtue of pressure that this information has become known about the Conservative Party? Does he also agree that the noble Lord, Lord Tebbit, seems to have a penchant for the sinister even when things are not sinister?

My Lords, that has never been my experience of the noble Lord, Lord Tebbit. He and I are always on the best possible personal terms. I always regard his interventions as designed to be personally helpful to me.

Of course, pressure groups donate money. The important thing is that it is done openly. I remind your Lordships that over a period of 11 months the Home Secretary wrote six letters to various dignitaries in the Conservative Party asking about the donation from Mr Ma, otherwise known as Mr "white powder" Ma, presently residing in Taiwan.

My Lords, would the Government hear in mind that foxes are very destructive of poultry and game and that therefore their numbers must be controlled? Killing foxes by trapping or poisoning is illegal and, incidentally, very cruel because they do not die at once. Shooting foxes and wounding them if they are missed causes gangrene, which is a horrible death. By contrast they are killed at once when hunted and hounds close in on them. Hunting is, therefore, the most certain and least cruel way of killing foxes.

My Lords, I have heard that view expressed in the past. I know that there are contrary views. Some, for instance, think that chasing an animal to exhaustion and tearing it to pieces is morally unacceptable and, indeed, reprehensible. That is a quotation from a helpful article put in the Observer last Sunday by Miss Ann Widdecombe.

My Lords, moving away from the more gory and controversial elements of this issue, and given the obvious and very serious pressures on the Government's legislative programme, when and why did foxhunting become the major priority?

My Lords, it is not properly described as the major priority of the Government. The noble Lord will well recall that in our manifesto we stated that there would be a free vote on this issue, and we have fulfilled that. As the Prime Minister stated quite clearly, the present position is that the Government are actively considering how to take the issue forward and hope to make an announcement on specific proposals soon.

My Lords, is the Minister aware that if this matter comes before this House, and for that matter, another place, there will be a free vote for all Members of our party, both Front Bench and Back Bench? Will it be the same for the Labour Party? Speaking for myself, I regard a ban on hunting as an unacceptable infringement of personal freedom. As my noble friend indicated, it will lead to greater suffering for foxes and other animals, plus a serious loss of jobs and amenities.

My Lords, I would expect there to be a free vote in the Labour Party. Indeed, I hope that the shadow Home Secretary will have freedom of expression to express her views; but I understand that at the moment she has been banned.

My Lords, can the Minister advise the House of the extent to which the organisations which are campaigning against what they call cruel sports are now directing their attention towards the shooting of birds and the catching of fish? More importantly, what attention have the Government given to such activities?

My Lords, this is part of a continuing dialogue and debate. In a free society people are entitled to have views even if I, personally, or indeed the rest of the Government, disagree with them.

My Lords, does the Minister agree that the cause of animal welfare would be better served by the Freedom of Information Act being able to give out information freely on what happens in animal laboratories?

My Lords, there is an extremely rigorous regime regarding animal experimentation. The Animal Procedures Committee, which is a statutory body, is an excellent committee. The statute forbids the disclosure of certain information. I can tell your Lordships that the number of experiments carried out under licence in this country is lower than it has been since the early 1950s.

My Lords, further to the supplementary question by the noble Lord, Lord, Tebbit, is my noble friend aware that the Fireworks Bill, which is a Private Member's Bill with the aim of improving the safety of fireworks for the prevention of accidents to children, was amended in this House with the sole aim of preventing the anti-foxhunting Bill introduced by Mike Foster from making progress in the other place?

My Lords, I have heard that suggestion, but I do not think that it derogates from the underlying point made by the noble Lord, Lord Tebbit.

My Lords, does the Minister appreciate that I am pleased to hear that I can carry on fishing? Can he guarantee that Scottish Members of the other place, who will not be able to legislate on this matter in Scotland, will not be voting to ban, or indeed not to ban, foxhunting in England?

My Lords, I am pleased to hear that the noble Lord will be able to carry on fishing. Since the last election he has had more time, of course.

My Lords, can the Minister tell the House whether the apparent change in stated government policy, as given by the Prime Minister on "Question Time", was first cleared through the Cabinet?

My Lords, it would riot need to be cleared because there has not been a change.

Business Of The House: Northern Ireland Motions

3.8 p.m.

My Lords, I beg to move the Motion standing in my name on the Order Paper.

This Motion follows the Business Motion that I moved yesterday and is similar to the one I moved on 1st July. The purpose is to ensure that if the process in Northern Ireland goes as hoped, the final necessary secondary legislation can be laid before the House arid taken on this coming Friday. Whenever the legislation is timed there will clearly not be time for the Joint Committee on Statutory Instruments to report on it as it held its meeting for this week on Tuesday in the normal way.

The second limb of the Motion I move today, to suspend Standing Order 70, therefore allows a Motion to approve any secondary legislation laid before the House tomorrow or on Friday to be taken notwithstanding that the Joint Committee has not had the opportunity to report on it to the House.

The first part of my Motion today allows an order laid on Friday to be debated on Friday, as is anticipated. The Motion is purely an enabling Motion and if no order is laid, or if it is laid on Thursday, normal procedures will apply. I am sure it will be of interest to your Lordships to know that the Motion has the full consent of the usual channels and, as we have agreed, the Cross-Bench Peers have, once again, been consulted on this important issue.

Moved, That in the event that one or more statutory instruments relating to Northern Ireland are laid before the House tomorrow or on Friday next, a Motion or Motions to approve them may, notwithstanding the practice of the House, be moved that day without notice; and that Standing Order 70 (Affirmative Instruments) be dispensed with to enable the Motion or Motions to be taken, notwithstanding that no report from the Joint Committee on Statutory Instruments on the instruments has been laid before the House.—(Baroness Jay of Paddington.)

On Question, Motion agreed to.

Northern Ireland Bill

3.10 p.m.

Brought from the Commons, and printed pursuant to Standing Order 48; read a first time.

Then Standing Order 44 having been dispensed with (pursuant to Resolution of yesterday):

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Northern Ireland Bill, has consented to place her prerogatives and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

My Lords, I beg to move that this Bill be now read a second time.

Once again we are bringing Northern Ireland legislation before your Lordships with little respect for the usual timetables. Let me acknowledge at the start the inconvenience to your Lordships in this. It is justifiable only when we consider what is at stake. As the Prime Minister has said, we have here the best hope for peace in Northern Ireland in a generation, but that prospect cannot be expected to last indefinitely. If momentum is not maintained, the process risks falling apart. That is why such a demanding timescale was set by the Prime Minister and Taoiseach in their statement of 2nd July, which is scheduled to the Bill, and that is the timescale within which the Bill has had to be prepared and put to your Lordships.

What the statement and this Bill are about is giving effect to the Good Friday agreement. Whatever we do, we have to remain consistent with that agreement. We cannot dictate in this House or in another place that particular political arrangements will operate in Northern Ireland. They will operate only by the consent of political representatives in each community there. The Good Friday agreement represented, after decades of negotiation, a basis for such consent. There is no alternative basis in view. That is why we have to work within the agreement.

What the Bill aims to do is give both communities confidence that they can move forward by providing that, if their fears come to pass and a key player defaults on commitments, they will end up, through suspension, in no worse position than they are in now and that the default and the defaulter will be clearly identified. A review, involving the two governments and the Northern Ireland parties, must then agree how to put the arrangements back together again.

We are fully aware, of course, of the reservations that the Bill has engendered. We have heard them in Northern Ireland and we heard them expressed, often with passion, in another place last night. We put forward the arrangements that appear in the Bill because they seemed to us to be the best formulation we could arrive at to meet the mistrust and reservations on both sides of the community—and I emphasise to your Lordships that there are concerns on both sides. However, we claim no monopoly on wisdom. We are reflecting carefully on what was said in another place and we will reflect on what your Lordships say. If it is possible to improve the Bill, consistent with the Good Friday agreement, we will of course do so.

We have come a very long way in Northern Ireland since Good Friday 1998; we should not let ourselves think that all has been deadlock. Parties are now engaging with each other far more closely than before. There are welcome signs of closer engagement elsewhere in the community, too. That has been reflected in the dialogue and restraint on marches, which has meant that the grave disturbances of recent years have, mercifully, not been repeated this year. I think we should pay tribute to the efforts that the Orange Order, with the residents' groups, has made to ensure that the marches have so far passed off relatively peacefully.

On the substance of the political dispute, we are narrowing the gap all the time. However, we have not bridged it. With the passage of time, mistrust in both communities grows—both over the formation of a genuinely inclusive executive and over decommissioning. That is why it is urgent to achieve progress now.

The latest discussions began in Belfast on 25th June when three key principles were agreed: that an inclusive executive should be formed exercising devolved powers; that all paramilitary arms should be decommissioned by May 2000; and that the decommissioning should be carried out in a manner determined by the Independent Commission on Decommissioning under General John de Chastelain.

On 2nd July, the Prime Minister and the Taoiseach put forward new proposals based on those agreed principles. Under the proposals, the d'Hondt process to nominate Ministers in a new Northern Ireland executive should be run tomorrow. We should bring before your Lordships on Friday an order to bring about devolution. Devolution of powers would take effect from 18th July—that is, Sunday. General de Chastelain's commission would then set out the steps required and the modalities for achieving by May next year total decommissioning by all paramilitary groups. Within days of devolution, the process of decommissioning is to begin as specified by the commission. There should be a start to actual decommissioning within a few weeks. The commission is due to report progress in September, December and May, but it could make other reports if commitments were not being fulfilled. If there were a default at the beginning of the timetable, the commission could make a report without delay.

We have to underpin these arrangements with guarantees, and that is what the Bill does. It cannot give what some would see as ideal guarantees because they are not attainable. It does all that is practicably possible to ensure that no-one is worse off than they are now because of a failure by someone else to honour their commitments. Under the Bill, if commitments are breached, either on decommissioning or on devolution, the institutions set up by the agreement will be suspended.

Therefore. the Bill responds to the Unionist need for certainty that they will not have to sit in an executive with others if commitments on decommissioning and the sequence that I have set out are not met. However, it also responds to the need of nationalists and republicans for certainty that there really will be an inclusive administration. As a result of the way in which the Bill is structured, the failure to honour commitments is clearly identified—there will be no doubt who is responsible, which is fundamental to the overall approach. I will touch on the key points of the failsafe in the Bill.

Clause 1 of the Bill provides for the automatic and immediate suspension of the operation of the institutions established under the agreement if either decommissioning or devolution commitments are not met. In the case of decommissioning, the trigger is a report from the decommissioning commission that there has been a failure to meet a commitment or to take a step that it has laid down. The effect of suspension is that the Assembly will no longer be able to legislate or to meet, apart from specific circumstances for which the Bill provides. Northern Ireland Ministers will cease to hold office and all legislative and executive functions during, the suspension period will revert to Westminster, just as under direct rule.

The North-South Ministerial Council and the British-Irish Council will cease to function under the terms of a supplementary treaty between the two governments. The draft treaty is available in the Library of the House. The British-Irish Intergovernmental Conference will remain in place, but without the participation of Northern Ireland Ministers. A review, under the terms of the Belfast agreement, will begin as soon as practicable after the suspension, as set out in Clause 1(4).

Clause 2 deals with the period of the suspension and the procedure for bringing it to an end. Clause 3 requires two meetings of the Assembly to be called during the suspension period. The first would be within seven days of suspension, without taking a vote. The second would be within seven days of the end of the review when the Assembly would debate the outcome of the review and vote on any proposed action. Clause 4 lays down what would happen when devolved government was restored once the suspension was lifted.

Clause 5 deals with the six north-south implementation bodies that will come into being at the point of devolution. Since these bodies will have continuing administrative functions, it would not be practicable to freeze them immediately. However, during the suspension, the governments will not confer any new functions or policy directions on the bodies, nor will they establish new bodies. The draft treaty makes clear that the two governments will agree new arrangements to transfer the bodies' functions to the relevant departments in Northern Ireland and the Irish Republic within a maximum of four months unless the suspension is ended. The Bill reflects that in a statutory duty on the Secretary of State.

The Bill is not a perfect solution. But it seems to us the best approach available in the circumstances. There are a number of issues that worry many in Northern Ireland, in another place and no doubt among your Lordships, and I should like to turn to those.

First, there is the issue of exclusion from ministerial office. The Bill means that if anyone fails to meet their commitments on either decommissioning or devolution the executive will not continue. That is categorical, automatic and immediate. I acknowledge that this is hard on the parties which are not in default. But it is wrong to portray it as a punishment; they are no worse off than they are now.

What we cannot do is form a new executive ourselves. As I have said, the devolved arrangements in Northern Ireland are only possible with a sufficient measure of consent between the parties. That is why we cannot prescribe automatic exclusion, which is inconsistent with the agreement. There would be no basis under the Good Friday agreement for continuing unless an executive, with representatives of both communities, could be formed.

The Bill remits the question of what to do after a suspension to a review, as prescribed in the Good Friday agreement. And the assembly finally decides the exclusion question. The meeting which the Bill requires after the review would be able to take the necessary action. In the end, whichever approach we adopt, everything turns on the same question—whether the parties themselves, on both sides of the community, are willing to go ahead without a party that has failed to honour its commitments. Realistically, any arrangements for devolution in Northern Ireland need support from the major parties on both sides of the community.

On a timetable for decommissioning, which is another understandable concern of many people, the agreement is absolutely clear. The Independent Commission on Decommissioning under General de Chastelain is given a key role. In its report of 2nd July, it said that it is,
"prepared to define a timetable for decommissioning of arms by the main paramilitary groups",
and that such groups,
"will be expected to adhere to it to ensure completion by 22 May 2000".

Thirdly, I know how difficult the issue of prisoners is for many people. The release scheme itself was for many the most unpalatable part of the agreement last April. Those who have suffered at the hands of terrorists, in Northern Ireland, in Great Britain, indeed among your Lordships, may feel this more than anyone. But again we must come back to the Good Friday agreement. Under the agreement, release of prisoners is linked to the maintenance of paramilitary ceasefires. This is reflected in the terms of the Northern Ireland (Sentences) Act 1998. The Act provides that one of the factors the Secretary of State must take into account in judging whether ceasefires have been maintained is whether organisations benefiting are "co-operating fully" with the decommissioning commission.

The Secretary of State said yesterday—at col. 180 of the Official Report— that in the overall judgments she must make about whether the ceasefires are holding, she would pay increasingly close attention to the extent to which an organisation was co-operating with the commission. The test would become tougher as time went on.

It may be helpful to the House if I add a point which arose during Question Time in another place. It was raised by my right honourable friend the Prime Minister. The Government have listened carefully to the debate in the other place yesterday, especially to the valuable contribution made to that debate by the right honourable Members for Upper Bann and for Huntingdon. The Government are considering making a series of amendments to the legislation in the light of what those two speeches contained. We shall be bringing forward those amendments in time for the debate tomorrow. I hope that is helpful to your Lordships.

We all recognise the difficulties the Northern Ireland parties face in moving forward from the present position. We have tried to give them as much comfort as we can in the Bill. We have not made it entirely easy for them, because we cannot. We cannot guarantee a smooth ride for everyone who fulfils their commitments if the process goes ahead now. But let us reflect on the advances decommissioning will bring. We will have all the Good Friday agreement institutions, and people in Northern Ireland will together take control of their affairs. We shall also have the constitutional changes, British and Irish; the principle of consent will be written into our law, and in the Irish Constitution, where it replaces the old Articles 2 and 3; and we shall have an expectation of decommissioning, which must very quickly be fulfilled.

There is a risk of failure. But we have provided what guarantees we could, and they are substantial ones. Suspension may seem harsh, but an innocent party is no worse off after a default on commitments by someone else than now. And the consequences of not moving forward to devolution on this basis seem to us to be far worse. It would mean there is no prospect of decommissioning; direct rule continues; the constitutional changes are not made; and the coming together we have seen in Northern Ireland in the past two years, admittedly still imperfect, risks breaking apart.

That is not an inviting outlook. The Bill offers the chance of something far better. In the worst case, it risks no worse than we have now, but success means putting Northern Ireland on to a new and better path that so many people have sought for so long. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—( Lord Dubs.)

3.26 p.m.

My Lords, I thank the Minister for his clear and explicit description of the Bill and I welcome his statement, reflecting what the Prime Minister said in the other place, that the Government are seriously considering a series of amendments. In the light of that, I sincerely hope that some of what I am about to say will be redundant by tomorrow night.

In opening, I wish to make it clear that this party shares the Government's objectives and is still very much part of the bipartisan agreement, as was made clear by my right honourable friend Mr Mackay in another place several times last night. However, we have always reserved the right, as the Official Opposition, to criticise the Government when we thought that they were getting it wrong. There were some parts of the Good Friday agreement that we found unpalatable, as did many other noble Lords and people in the country; the early release of prisoners being one. But we supported and congratulated the Prime Minister on his commitment and achievement there.

Since the Good Friday agreement, the Government have followed a different route from that which we would have taken. Nevertheless we still support the Government, despite—the noble Lord also referred to an improvement in this—the Secretary of State's determination to continue using her "Nelsonian" eye when appraising continuing violence in relation to the cessation of prisoner releases. I am glad that she will toughen up on that.

Today might have been a day of rejoicing for all who have been involved in Northern Ireland affairs over the past 30 years, including 1.5 million of my fellow countrymen. But alas I fear that the Bill before us will fail the test of time unless it is very significantly changed. Why do I say that? The Bill had to address the most difficult problem of all to come out of the Good Friday agreement and the ongoing peace process: decommissioning and devolution of power. As I have said before in the House, Ulster people deserve a return to democracy. They want a devolved parliament, but not at any cost. The Bill is supposed to deliver that.

Democracy is about elected government without guns. Sinn Fein/IRA has been successful in the use of the bomb and the ballot box. That strategy must be stopped, and we cannot condone the Government's insistence, which I hope is weakening, that David Trimble and the Unionist Party and other democratic parties must sit down with Sinn Fein before a single commitment to decommissioning has been made by any of the paramilitaries.

The Bill is the product of a less successful hot-housing set of negotiations at Stormont, led by the Prime Minister, with his colleague the Taoiseach to hand. The Prime Minister was weary after Kosovo and became more so as the negotiations dragged on. His determination, commitment and stamina were truly remarkable, and we thank him for them.

However, the truth about those sessions is that even the Prime Minister, with all his negotiating skills, was unable to move Sinn Fein on decommissioning. In order for devolution to work successfully, all parties concerned must be equal. The democrats must be safeguarded from the private armies. The Prime Minister has promised on several occasions—in the other place, at Stormont, on television and in newspaper articles—that he would not expect the Democrats in the Northern Ireland Assembly to share power with parties still backed by fully armed private armies. He has also promised that the Bill will provide a cast-iron fail-safe against that happening. I suggest that at this moment this Bill does no such thing.

We have repeatedly asked—and I take this opportunity again to thank the noble Lord and his colleagues for their courtesy in giving us the opportunity to comment on the Bill before it was printed and to discuss it with their officials—for only three points, with which my right honourable friend attempted to amend the Bill in another place last night. They are: a clear and transparent timetable during which period decommissioning has to take place, with automatic suspension if these obligations are not fulfilled; a clause which would automatically require the assembly to debate the exclusion of Sinn Fein in the event of the IRA refusing to decommission its arms and explosives; and a halt to the early release of terrorist prisoners if any of the paramilitaries—republican or loyalist—fail to decommission. I hope that some of that will be coming forward tomorrow in amendments hinted at by the noble Lord the Minister.

The fact that the Government were unable to accept any of those amendments last night makes me very suspicious and wonder why. If any of them had been accepted, I wonder who would have left the party.

The Bill, while legislating for decommissioning, delegates to General de Chastelain's independent commission the decision-making process. It does not even today provide a start date for the trigger mechanisms, let alone a programme that it can be judged against objectively; there are no benchmarks in the Bill or even attached to it in a schedule. What is more, that international commission is not open to judicial review.

The Bill provides no method whereby the Democratic parties, if they so decide, can, for example, continue the devolved process with the SDLP and without Sinn Fein. That seems very hard on the Democrats and the democratic process. Why should not Mr Hume and the SDLP feel a little of the pressure that Mr Trimble has been feeling for a year and a bit?

The Bill provides no sanctions or incentives for the loyalist paramilitaries to decommission, with the deterrent of prisoner releases. Again, why should the republicans be penalised in this, if there is absolutely no incentive or sanction in the Bill to persuade Loyalist paramilitaries to decommission?

Despite these criticisms, we still want to see inclusive, devolved government in Northern Ireland. We will continue to support the Government in their marathon efforts to bring about decommissioning. But? although we will not vote against the Bill tonight, we will continue to try to persuade the Government of their duty to support the democratic principle against terrorism; and remind the Prime Minister that he cannot off-load his Government's responsibilities onto an independent commission, as he appears to be doing here: he appears to be using General de Chastelain's independent commission as sole arbiter of the start, the progress and the finality of the decommissioning process. This is a highly political process and that is not the place where these decisions and this responsibility should ultimately lie. I believe that too much is being asked of this fine military gentleman, and that the Bill provides no safeguards. It is open to fudge and needs seriously amending. We on this side of the House will shortly be putting down amendments which we hope to debate tomorrow.

3.35 p.m.

My Lords, I am delighted that the noble Lord the Minister, Lord Dubs, and the noble Lord, Lord Glentoran, have paid tribute to those in all the democratic parties who have laboured mightily over at least three years to produce a devolved structure of governance of great promise. widely supported and solidly based as we hoped it would be. The general aim was that such a permanent and enduring structure would provide a meaningful role for all the truly democratic parties, depending, of course, on the ballot box alone and not augmented, as other organisations are, by the Armalite.

But this wholly destructive Bill, a Bill of 10 pages, obliterates all that we thought we had achieved. The bulldozer is specified at the very beginning, in the Long Title, and in Schedule 2, which records that the two Governments have agreed to:
"suspend the operation of the institutions set up by the Agreement"—
the Good Friday agreement. The Long Title states that the Bill is to,
"Make provision for the suspension in certain circumstances of devolved government in Northern Ireland".
In the light of that sentence, perhaps the title of the Bill should have been "An Act of Vandalism".

The last occasion on which the Parliament: of the United Kingdom so indulged itself was in 1972, when it suspended and within a year obliterated the Stormont devolved government and parliament, all in one day. So there is a precedent for what we are doing now.

Twenty-seven years on, we are today invited to approve the mechanism to suspend Stormont's successor even before its first formal meeting. The Secretary of State said in another place that the Bill is therefore an insurance policy. I fail to see the logic of that. The suspension contained in the Bill is fragile, flawed and unfair. Those very serious defects spring from the fact that the Bill destroys the concept of a coalition as most of us understand it, which normally would permit any element to withdraw, or even disqualify itself, without endangering the coalition as a whole. The Bill clearly specifies that if any maverick party or group were to be automatically suspended or to withdraw then, in other words, the innocent and the guilty would be equally punished. I am afraid that the Government in certain times of irresponsibility have seemed to lean towards penalising the innocent.

This calls to mind that little jingle:
"The rain, it raineth on the just
And also on the unjust fella:
But chiefly on the just, because
The unjust steals the just's umbrella".
David Trimble might feel a bit like that.

There is ample evidence, too, that spin doctors are beavering away under that guideline. Already David Trimble, leader of my party, who has made 15 concessions in 15 months and who has endangered his leadership position within the party, is being cast in the role of the villain of the piece, while Mr Adams can apparently not even spell the little word "Yes".

Clause 1 of the Bill contains a truly breathtaking provision to initiate a review, not just of the procedures up to now but of the agreement itself. In effect, it seems to be providing for a post-mortem before the death of the new government. That can hardly be regarded as a "confidence-building measure"—a phrase so much beloved of the Northern Ireland Office in the past year or so.

We understand that the review body will consist of the two governments, the White House (when it has time) and the Northern Ireland parties. So I suppose we can only hope that, if all of those diverse bodies can be herded into a compound and starved of sleep for days and nights on end, somehow or other they will manage to invent at least a few promising new phrases.

Yesterday in another place the Secretary of State stated that the nationalists, republicans and Unionists require certainty, and then went on to add that this Bill provides that certainty. I agree that they deserve certainty and therefore it would be sensible and constructive not to make the suspension order today. I simply do not understand why senior Ministers keep quoting phrases like, "Give peace a chance" and "move to a secure future" on the very day when we have a self-destruct Bill before us. Another phrase is, "We will never know whether terrorists will disarm if we refuse to put them to the test"; that has been current this past week.

That latter sentence compels me to deal, regretfully, with a very sensitive subject. It may be defensible to tell the general public that they will never know whether or not terrorists will disarm unless we put them to the test. But senior Ministers are not in that category; they are not the general public. They know the answer to that question already. For example, they know that the IRA brigade in the southern areas of Northern Ireland has already made its decision—though they have not announced it—to reject decommissioning now and at any time in the future. As most noble Lords know, members of that brigade of the provisional IRA are not defectors; they are not break-away mavericks; they are the most dominant element in the terrorist operations in relation to Northern Ireland and even England.

I said that senior Ministers are aware of that decision, but it is possible I was being unfair to them. It is just possible that crucial information is being withheld from senior Ministers. I know from long experience since 1972 that there are examples where former Ministers found that certain intelligence services had their own separate agendas, even in the political and constitutional fields. In times past I have known the same intelligence sources to ask their CIA counterparts' question: "Shall we tell the President?".

I cannot believe that senior Ministers in Her Majesty's Government would be taking such hideous risks for peace and stability if they had in their possession information to which others already had access. They may therefore feel it prudent to take a raincheck before incurring any further risks, and thus perhaps even at this late stage of this legislation, prevent terrorists from doing lasting damage to ' all the achievements to which the Minister paid tribute.

3.43 p.m.

My Lords, it is a privilege to follow the noble Lord, Lord Molyneaux, and I shall never forget, for my part, that it was he who, for the first time for several years, led his party's negotiating team down to Dublin in the talks in 1992. That was an act of imagination and courage with which I associate the noble Lord. I always felt it was a thousand pities that those talks came to an end at the time and for the reason that they did.

However, I respectfully differ from him in the suggestion he made that the security forces, any of them, would wilfully conceal material from the government of the day. My experience—for what it is worth—leads me to be confident that there is no risk of that.

It is easy to understand and to sympathise with the fact that the Government are feeling something near desperation in that this settlement, for which they have laboured for so long and with such commitment, now seems so tantalisingly close and yet remains at great risk. They laboured long and not without substantial success, the most recent of which is the Drumcree experience of which, in my time, I have vivid memories and experience.

This Bill is evidence of the Government's understandable desperation and merits close attention. In these circumstances there must be a great temptation to apply yet further pressure to the only quarter in which such pressure has yielded positive results since the Good Friday agreement. The noble Lord, Lord Molyneaux, referred to the concessions made by Mr. Trimble. It is a pity that the Bill as at present constructed seeks to apply yet further pressure on the Ulster Unionists led by Mr. Trimble, who is self-evidently at risk as has already been suggested. The concessions he made and the courage and imagination he demonstrated are factors which in my time I would have laid long odds against and they are greatly to his credit. It is therefore dangerous to apply further pressure in that quarter.

The pressure seems to be to go one step further; that is, sit down in the Executive with the representatives of Sinn Fein, never mind that the IRA has not decommissioned or even said that it will decommission to any great extent. That is the pressure that is being exerted, even though the IRA—as Her Majesty's Government acknowledge—is the terrorist organisation to which Sinn Fein is inextricably linked.

Yet the IRA has fiercely—and it must be said successfully—defended its arsenals and kept them intact. The IRA has demanded its place in the democratic executive while remaining backed by every item of weaponry and its massive destructive force.

My Lords, before the noble Lord continues—like many of his noble friends—simply to address this issue as anti-IRA, may I ask him this? When did the UVF, the UDA, the ULA or any Unionist organisation give a promise of decommissioning?

My Lords, one Unionist organisation of that character has already begun decommissioning. The important point is that that did not result in it being told: "You have egg on your face. You have surrendered. You have laid down on your back". It decommissioned through General de Chastelain's commission and in consequence its leaders have been treated as statesmen. We are asking that that admirable example be followed by the IRA and other so-called "loyalist" organisations. But this is part of the harm of the structure of this Bill. The noble Lord looks surprised, but I can assure him that it is true.

What seems to me to be part of the harmful character of the structure of this Bill is that the only sanction it proposes is the suspension of the institution set up for devolved government in Northern Ireland. Those institutions, as all noble Lords will be aware, were sought as a prize by Unionists in particular. If the Government suspend the Executive and the Assembly they deprive those who are not at fault of that for which they have worked and secured as a prize. For the loyalist paramilitary organisations and their political parties it is no skin off their nose if those organisations are suspended because they are not represented on them, so that will not induce them to decommission.

Some people will say that the IRA cannot be expected to decommission if the loyalists are not doing so. The IRA will say that it has to protect its people. I can imagine those comments only too readily. I respectfully suggest that one harmful feature of the Bill is that the only sanction is the suspension of the devolved organisations. That will not influence the remaining loyalist organisations that have yet to decommission.

Another reason why the proposals are harmful is that there is no failsafe factor. They are not safe and they are not just. They are not just because they penalise the innocent as well as those who are in default and they are not safe for the same reason. Penalising the innocent will give rise to resentment among the Unionist community in Northern Ireland at a time when we need to minimise resentment rather than exacerbate it. It is important for the Government to look for other means to secure compliance by the IRA. I took great heart from what the Minister said towards the end of his speech. I trust that my comments will encourage the Government to move in the direction that he suggested and will not lead them to change their mind.

The theme of the Bill is justifiable in certain circumstances and for a brief period. However, there must be genuine failsafe mechanisms that operate automatically. The Bill needs the same clarity and starkness that characterised the Prime Minister's assurances to Unionists at the time of the Good Friday agreement and the referendum and more recently. They are too well known and too numerous to need reciting today.

There has to be a penalty for default that will bear on the guilty automatically—a penalty that will hurt. All that we have at the moment is the automatic availability of a mechanism. We do not have the automatic operation of that mechanism. Anyone who has even glanced at the Bill knows that the mechanism can be operated only if there is a 60 per cent majority for it in the Assembly. Of course we accept the assurances of Mr Hume and Mr Mallon that they will not sit down with those who rely on terrorists, but we have not heard whether the SDLP would continue to sit on the Executive if Sinn Fein was expelled.

There is no precise timetable for compliance. Given the independence of General de Chastelain, that cannot yet be achieved, so there is no failsafe. That leaves halting the early release of prisoners as the only option. That would be an effective deterrent. It is significant how promptly Martin McGuinness denounced the Government for even thinking of it, as apparently they were doing, and warned them off any such notion. Why should he do that if the IRA was planning to decommission?

Halting the early release of prisoners can be achieved consistently with the Northern Ireland (Sentences) Act 1998. On the entitlement to early release and the maintenance of a ceasefire upon which that depends, the Act tells the Secretary of State to take into account whether an organisation is co-operating fully with the de Chastelain commission. Clause 1(1)(a)(ii) of the Bill makes failure to co-operate with the commission by not taking any step required by it a matter that would result in automatic suspension. Why could it not also result in the automatic halting of prisoner release if that failure to co-operate persists?

The Government ignore at their peril—and perhaps no less importantly at the peril of the leader of the Ulster Unionist Party—the public's resentment at the continuance in the present circumstances of early release. It is seen as inconsistent with anything other than a discreditable explanation. That can be readily overcome by an amendment of the sort that I hope and believe the Minister held out promise of a few minutes ago.

In conclusion, I have greatly admired most of what the Government have done in Northern Ireland and I greatly admire the personal qualities of my successor. I have not kept my admiration under a bushel. However, I have always differed with the Government on prisoners. It is only because of my firm adherence to the Good Friday agreement and to the objective that it is intended to serve that I find my disagreement on that score at its sharpest tonight.

3.55 p.m.

My Lords, at the risk of repeating myself, let me say that the Bill is about one issue alone: the decommissioning of arms. That issue should have been settled before the agreement was signed. It is beyond my comprehension why it was not. If it had been dealt with there would be no need for the Bill because all the other issues in it would be settled by now. That has been an obstacle ever since the signing of the agreement.

I am not a unionist. I have opposed Unionist politicians all my political life, but I understand their fears, occasioned by the murder of 302 policemen and many members of the British Army, and incidents of indiscriminate murder carried out by the IRA and by loyalists. Many members of the Catholic community in Northern Ireland have been cruelly murdered by loyalist paramilitary forces. There is no difference between decommissioning of the IRA and of loyalist paramilitaries.

I have been looking back over my many years in politics. An attempt is now being made to bring about inclusive government in Northern Ireland—a government containing Catholics and Protestants, unionists and nationalists. I have been through that experience. Brian Faulkner, the last Prime Minister of Northern Ireland, engaged with me and the SDLP at Sunningdale. We brought about an inclusive Executive, representing all the nationalist and unionist opinions in Northern Ireland. That experience was brought cruelly crashing to the ground by the activities of the loyalist paramilitaries, ably aided and abetted by the IRA terrorists. During the five-month existence of that Executive, the IRA was bombing and murdering every day in collusion with loyalist paramilitary organisations. The paramilitaries on both sides brought the agreement to the ground.

It is interesting to look back because the man now under siege in attempting to bring about an inclusive, all-party government is none other than David Trimble. In 1973, David Trimble was a member of an extreme Unionist party called Vanguard. He was using all his political ability to prevent the Sunningdale Executive from coming into being. I am delighted that he is now using all his energies to try to create that which he helped to break down in 1973 and 1974. I believe that David Trimble is genuinely trying to create a system of government in Northern Ireland that will be inclusive of nationalists and unionists. I know that there will be great difficulties in doing so. Those difficulties cannot be ignored.

In the executive envisaged by this legislation, there will be four parties. There will be the DUP, who are anti-agreement, and the UUP, who are pro-agreement. Sinn Fein will be called in, and there will be the SDLP. Given all the history of Ireland, and all the bitterness, suspicion and distrust we have had for hundreds of years, can one imagine those 10 people sitting around a table? I believe that the answer is yes. I have sat down with Unionists, who were my former political opponents, in an executive, and we found a good deal in common. Perhaps we had something which present people do not have. I had been a Member of the Opposition at Stormont when there was a Unionist Government. When the Executive was created, we knew each other because we had been parliamentary adversaries. The same criteria do not apply this time, so they will find it even more difficult.

I have listened to Sinn Fein say that David Trimble does not want Catholics or Fenians in the executive. I do not believe that that is right. I believe that he wants to bring about a community government in Northern Ireland and that he has had very little help from this Government. David Trimble is in a very tricky position. His executive—the people who combine to form the Unionist party—may reject him as the leader of the party if he appears to be settling for what is proposed.

The question has been asked as to what would happen if there were to be exclusion. I have heard General de Chastelain lauded to the high heavens on the basis of what a good fellow he is, with a good record, including a good war record. What has he been doing for these past four or five years? Why has he not made some approaches to people in possession of illegal arms over that period? Why can he not tell the Government that he has ensured that there will be decommissioning? He does not live in an ivory tower in Northern Ireland. He does not sit there with his other two colleagues, not taking in the impressions of everyone else. He must surely meet government Ministers. He must surely meet civil servants in the Northern Ireland Office. They are bound to have had the odd drink at a golf club somewhere in Northern Ireland. They are bound to run into each other. Then the Government say, "We can't talk. We don't know him at all. He is independent". I believe that it is incumbent upon General de Chastelain to do something now to try to get us out of what is an awful political position.

It is all about trust in Northern Ireland. I listened to some speeches in the other place yesterday. The Unionists have their backs to the wall. I remember going into Stormont in the early 1960s. At that time, Northern Ireland was a one-party state. The Unionists never brooked any opposition. They ran the whole show themselves. They never found themselves in any great difficulty when having to negotiate with their political opponents. That is why they find themselves in such a weak position now. Unionism has totally and absolutely splintered. I think that they admit that themselves. PR has been an absolute disaster for the party and its beliefs. In those circumstances, it is up to those people who see the advent of an executive to do everything they can to ensure that David Trimble is not brought crashing to the ground.

As I said, I listened to the debate yesterday. The Unionists now see themselves as being lectured to by the SDLP and being threatened by Sinn Fein and the IRA. At the moment, it looks to the Unionists as if there is a pan-nationalist front against them. Their backs are to the wall. Sinn Fein, the SDLP, the Irish Government, led by the Taoiseach, and Irish-American opinion have a good many representatives running around Belfast at the moment, all putting pressure on the Unionist leader, David Trimble.

Before there can be any hope of peace in Northern Ireland, it must be accepted that there are two communities. There cannot be victory for one over the other. You cannot defeat one and have triumph for the other. It must be realised that there is a unionist community in Northern Ireland. Its members are of Protestant background. They are not of the majority religion in Northern Ireland, but they are there and there they will stay. If we are ever to have any hope, that fact must be taken into consideration.

Over the past months, I have heard it said, "If you do not accept the Government's proposals, do you want to go back to what has been happening over the past 30 years?" Let us analyse that for a moment. We are asking ourselves whether we want to go back to the murder, mayhem, the killing of policemen and soldiers, and the bombing of Belfast, Manchester and London. There is an implied threat there, is there not? That threat is coming from the IRA: "If you don't do what we want, we will go hack to killing soldiers and policemen." I believe that to make any further concessions to the IRA under that threat would be a denial of every democratic concept we have. We must not allow ourselves to be placed in that position.

What would happen if Sinn Fein were to be excluded because the IRA had not decommissioned? This decommissioning is so symbolic. If the IRA wants to see an inclusive executive and wants two Sinn Fein members sitting on that executive, it could make a gesture by giving up some semtex. I would like to see it give up everything. It has no need to give up its revolvers and rifles and other paramilitary equipment. But semtex is an offensive weapon. It has nothing at all to do with bringing about an agreement in Northern Ireland. The IRA could make that gesture—a gesture which, I believe, would meet with the approval of its own supporters.

If the IRA is excluded and does not make any moves to bring about decommissioning, what will the executive do? There will be an automatic exclusion. I agree with everything that has been said. If the IRA refuses to decommission, then the Secretary of State can wipe out the whole executive, and the guilty will be there with the innocent. That is an extremely unfair threat to hold over the democratic parties in Northern Ireland. What would the SDLP do? The noble and learned Lord, the previous Secretary of State for Northern Ireland, has asked that question, as have many others. I predict—and I am a former SDLP member—that John Hume, the leader of the SDLP, will in no circumstances desert Sinn Fein. John Hume drove Sinn Fein from the political gutter and gave it credibility in Northern Ireland. I cannot foresee any circumstances in which the SDLP will desert Sinn Fein.

There are other people in the SDLP. The SDLP is not unanimous in its support of Sinn Fein. There could he a split in Sinn Fein. There could be a split in the SDLP over its attitude to Sinn Fein. I know many SDLP members who detest Sinn Fein. Some of them have actually spoken in this House. But having brought Sinn Fein from the political gutter to political credibility, I cannot see that John Hume will ever desert it.

So what do we do? The Minister says that he is contemplating bringing forward some amendments tomorrow. I hope that those amendments relate to the speech made in the Commons yesterday by the former Prime Minister, John Major. I thought his speech was one of the most constructive and compassionate I have heard. I hope that what he said has borne in on the Government and that they bring forward amendments based on his proposals.

I do not wish to speak for too long here today—in fact I have spoken for too long already. Tomorrow may be the day to make further contributions. When I arrived this morning, I received a little missive. It has absolutely nothing to do with the debate, or at least so I thought. It has to do with freedom of action. It is about the sacking of the hereditary Peers. There is a quotation, which I think has some relationship to this debate:
"Men have sometimes been led by degrees, sometimes hurried into things, of which, if they could have seen the whole together, they would never have permitted the most remote approach. The people never give up their liberties except under some delusion".
Those are the words of one of the great parliamentarians of history, Edmund Burke. I believe that those words bear some relationship to what we are saying. I hope that the Government will do whatever they can to meet the genuine concerns mentioned yesterday by John Major and others. Perhaps if they do we can resolve this matter tomorrow night.

4.10 p.m.

My Lords, it is a great pleasure, perhaps even a great honour, to follow the noble Lord who has just sat down. Quite apart from the fact that I agree with every word that he said, it gives me an opportunity yet again to pay tribute to his consistent courage in the face of terrorists who understand the danger that he has presented, at least over the past 30 years, to their methods of politics.

The Prime Minister and indeed the Secretary of State in another place have said repeatedly, particularly during the course of yesterday's debates in another place, that this question is a matter of trust. I believe that they are entirely right when they say that. I have just come back from a brief visit to Northern Ireland and I was not surprised to find that there persist there, as well as in a number of quarters on this side of the water, some perceptions which I think need to inform the attitude of those of us who are considering this legislation, because they certainly inform the attitude of many Unionists of all shades at this difficult time.

Those perceptions are three. First, those who hold them are convinced that whatever Sinn Fein may say to the Prime Minister or to those representatives of the Government with whom it is negotiating, to its own supporters its message remains clear—I believe that the noble Lord, Lord Molyneaux, mentioned this during the course of his remarks—and can be encapsulated as follows: "Don't worry, we won't give up an ounce of Semtex or a single rifle. We will use our rhetoric to get into the Executive and then no one will dare to kick us out".

The second perception that I found widely shared was the following—it is one to which the noble Lord, Lord Fitt, gave his usual eloquent expression a moment ago—namely, that the SDLP would never dare to continue in an executive, or in a new executive, after Sinn Fein had been expelled. I have to say that as I listened to the debate in another place yesterday it is a perception that the leader of the SDLP did nothing to dispel in his speech.

The third perception—which I think underpins the rest, and the attitude of those of us who have been concerned about Northern Ireland over many years from perhaps rather a Unionist point of view—is that we have a suspicion. I make no criticism of this because I think that governments of both colours have the whole of the United Kingdom to think about. We have a suspicion that when confronted with the threat of a general return to violence a British government will always in the end give way to terrorists, and that they will ask the Democrats to make the concessions, not the terrorists.

I believe that the combination of these three perceptions means that any mechanism designed to link terrorist participation to their membership of an executive must be—in the words, I think, of the Prime Minister—cast iron if Unionist and other fears are to be allayed. I have to confess that in its present form I do not think that this Bill fills that particular requirement. In that I certainly agree with my noble and learned friend Lord Mayhew with his infinitely greater experience than mine in these matters.

Under those circumstances the burden on General de Chastelain would be enormous. We have already seen the pressures to which he has been subjected in delaying his report in the crucial moments leading up to the proposals last week. As we have already heard from the noble Lord, Lord Fitt, the burden on the SDLP—which I think has to possess great courage to participate in a reconstituted executive if Sinn Fein were to be expelled from it—is also great. Further there is the burden on the Government who have to face the possibility of taking actions which might lead to a general return to violence. That perhaps is a pressure at least as great as the pressure on the others.

Therefore, it seems to me important that this legislation should both give greater reassurance to those who need it and, if possible, relieve those responsible, in so far as we are able, from having to take decisions under intolerable pressure. Therefore, the mechanisms should be as automatic as it is possible to make them if this legislation is to have any chance of inspiring confidence on all sides of the divide. I hope, therefore, when the noble Lord brings forward the amendments to which he referred—I pay tribute to him and to the Government for the emphasis which they have placed on their view that this Bill is not perfect and therefore that they are open to seeing its provisions amended—they will in some respects address the concerns that have been expressed in this debate. In particular I hope that—as other noble Lords have suggested—it will be possible to incorporate on the face of the Bill a timetable for decommissioning, perhaps as part of another schedule.

It seems to me that the first element of decommissioning should take place—as the Prime Minister suggested—a small number of days after the Executive has been formed. I would find it difficult to understand why that should not take place any more than five days after that. I believe that that would be an enormous reassurance to all of us if it were possible to put that on the face of the Bill. Any party that failed to observe the timetable laid down in such an amendment at any stage would clearly automatically lose the right to sit on the Executive. It would be the responsibility of General de Chastelain to make that decision, not the Secretary of State. I have already mentioned the great pressures that the general is under; but if the general were able to explain the reasons for his decision, that in itself would make a great contribution to public confidence.

As my noble and learned friend Lord Mayhew made clear, there is really no excuse for continuing to release terrorist prisoners if a terrorist organisation, or one that represented terrorists, were to be expelled from the Executive. I shall not add anything to what my noble and learned friend said in that respect.

It is curious that if Sinn Fein is expelled from the Executive, the Executive would dissolve and then have to reform. There is another reason, apart from the ones that noble Lords have adduced so far, why I think that this is not a good idea. I come back to the whole question of the SDLP. I sympathise with the SDLP and the great dangers that it might run at the hands of Sinn Fein under those circumstances. Therefore, from that point of view alone, it would be sensible for the Executive to remain in being after expulsion; then the SDLP would have to make a conscious decision to leave as well.

We should consider a little the question of the Patten report. We know that it is causing a great deal of anxiety, not only in the ranks of the RUC but all over Northern Ireland. I, of course, have not the faintest idea of what is in the report—I do not think that many of your Lordships do either, with the greatest respect—but clearly the nature of the RUC, or whatever it is to be called as a result of the report, will change in the light of normality returning to the Province. However, if there are still armed terrorists about, it would seem rather odd to change the nature of that police force and risk its not being able to deal with armed terrorists in the magnificent way that the RUC has so far managed to do. I hope that the Government will be able to answer my question of whether they see a link between the implementation of the Patten report and the behaviour of terrorist organisations on both sides of the divide in the light of decommissioning and what we require of it.

Such amendments would greatly help build the trust which the Government and all of your Lordships believe to be so essential. As your Lordships have said, it has now come down to the difficult and intractable matter of decommissioning. In other conflicts decommissioning has been a pre-condition for peace after years of guerrilla war. Indeed, academic studies show that we are right to suggest that decommissioning should be a pre-requisite. We certainly regarded it as such in Kosovo, for instance; why should it be different in Northern Ireland? If the terrorists have exchanged the Armalite in favour of the ballot box, they can prove it by throwing away the Armalite. If they do not, why should we believe them? Indeed, why should those who believe in government through representative institutions be cast as villains for refusing to surrender to the blackmail of the men with the Armalites?

It is a matter of trust. I hope that when the Bill is amended we will be able to approve of it as a genuine contribution to the building of that trust and a way forward to defusing the extremely difficult situation that obtains in the Province at the moment.

4.22 p.m.

My Lords, it is always a special pleasure to follow the noble Viscount, Lord Cranborne, if only in my case because of his grandfather's kindness to me when I first came here half a century ago. There were just a handful of Labour Peers then, but his grandfather was very constructive in his approach and was really the founder of the modern House that we know.

When it comes to Northern Ireland, the noble Viscount speaks from a considerable family tradition. In the corridor there is a picture of his great, great grandfather, the noble Marquess, bringing about the defeat of the Irish Home Rule Bill in 1893. Although I regard that as fairly disastrous, I must confess that my father and my mother's father were backing him up. So I do not pretend to be any better than he is in such a matter.

When it comes to his views on Northern Ireland, I am only sorry that instead of myself the noble Lord, Lord Callaghan, is not replying. After all, when he went to Ireland in an official capacity in 1969, he came back and said "There are too many guns". Where were these guns? Whose guns were they? They were mostly Protestant guns. After all, it was the Protestants who brought the guns to Northern Ireland. The noble Lord, with general acceptance, sent the British Army to protect the Catholics from the maltreatment and terrorism of the Protestants. So we must look at this in a fairly broad minded way, as has been suggested by other noble Lords.

All of that apart, I come before the House in the rather rare capacity of a super loyalist; an almost obsequious member of the party. I am capable of disagreeing with my leaders on one or two matters—recently, for example, on the reduction of the age of consent for homosexuals; I am much more sympathetic to the hereditary Peers than most of my colleagues; and on Tuesday, when we debated penal reform, I was criticising the Government quite sharply—but on this matter I am one hundred per cent loyal to them and the policy they are pursuing.

I am someone who has written on Irish history; who has been given a drink of Irish whiskey by Sir James Craig, the Prime Minister of Northern Ireland in the early 1930s; and who, after all, if I may be allowed to make the point, spent a night as a guest of one of the leaders of the Ulster Volunteer Force, one of the paramilitary organisations. Surveying the whole issue historically, this initiative of my right honourable friend, backed up by that wonderful person who I do not know—I wish I did—Mo Mowlam, will be one of the greatest of history, Irish or English. I am one hundred per cent loyal and I wish them everything that is good.

As to tactics, we must leave that to them. Occasionally we must leave the tactics to our leaders, and I am ready to do so on this occasion. Whatever they think is best, at the moment my mood is to follow them and to wish them everything that is good.

Of course, that does not mean that one should ignore the problems with which they are faced or the problems of Mr Trimble. I pray for success for all those concerned. Above all, every night and four times a day I pray for Mr Trimble. He needs prayers more than any of us.

4.26 p.m.

My Lords, my name is down for the next debate on the Northern Ireland 1974 Act Order. That was a mistake because that debate was listed prior to my realising that this one was to take place. The House definitely will not have to listen to me twice.

I, too, thank the Minister for the manner of his presentation of the Bill and for the news that the Government will look seriously at amendments and bring them forward tomorrow.

I will speak briefly about the Bill. I will not go into too much detail because, owing to circumstances beyond my control, I will not be here tomorrow to hear the good news that the Government will bring to us.

I am not going to go back over the details of release of prisoners or decommissioning—or the lack of it—up until this time. Suffice to say that there are so many instances of the law-abiding society in Northern Ireland and the Government giving an inch and then going that extra mile while the terrorist organisations, on both sides of the divide and their political wings, have conceded absolutely nothing—not even an earthly tremble, let alone the seismic shift that the Prime Minister said he has detected. Perhaps we are sleeping, but I think not. Those of us who know Sinn Fein and the terrorists would perhaps consider that it was wishful thinking.

It has been very difficult to accept the steps that the Government have taken in recent months to appease terrorists, as some of us would believe—almost anything in order to avoid the threatened action by terrorists using the weapons and explosives which they still hold on to. We are told that this week and the next couple months is the last chance for the Unionists to secure peace. Why is it always the Unionists who are berated with their "last chance"? It may be a last chance to emerge into peace and democracy, but the perpetrators of 30 years of terrorism are not being told that this is their "last chance". Their violence, on both sides of the community, has continued throughout this so-called ceasefire, and yet anyone would believe from what the Government have said that it is up to the law-abiding society to declare peace for now and forever; "Roll over on your backs, give in and it will all be all right". Many of us do not believe that. However, I accept that the amendments to be brought forward tomorrow may change what we are talking about.

How twisted and one-sided can we get? Is it the last chance for the terrorists and their political apologists to declare by their words and actions that peace is for now and ever? I do not doubt, indeed I know full well, that the Government want peace—but please do not let us accept that their yearning is any greater than mine and that of other people who have lived with terrorism and violence in Northern Ireland for so many years.

So we have this Bill before the House, supposedly to overcome the last obstacle to peace, and the forming of a devolved administration in the Province. Let me make one point first. The Bill would be totally unnecessary had the terrorist organisations made any move at all to decommission, demobilise, or whatever we wish to call it. Frankly, the Bill was not on the cards and need not have occurred had people acted honestly, as the impression seems to be they will act in future. We even passed an Act to enable weapons to be handed in with immunity for those involved. Nothing happened—hence this Bill.

Should the present impasse over weapons continue, the Bill will, in practical terms, punish law-abiding citizens by denying them the democratic right of government. That is of course if, as I suspect, there will be no decommissioning and the SDLP does not live up to its responsibilities.

Perhaps I may quickly run through the three scenarios of events that could occur in the next 10 months as a result of the Bill as presently drafted. The first is easy. The IRA appoint a negotiator or intermediary this weekend; declare their intention to decommission and, in the following months actually begin to do so. In that instance, we are in the clear—provided the vast majority of weapons are handed in by May next year.

The second scenario is that negotiators are appointed and the Executive is formed, but, owing to the lack of any practical decommissioning, the Secretary of State suspends the Assembly under Clause 1 of the Bill. However, the SDLP seems to have implied that it would not necessarily support the restoration of the devolved government, as the noble Viscount, Lord Cranborne, said, without the political wing of the IRA if weapons continue to be withheld; it would not go into the Executive without them. So, we are back where we are now.

That is where the Bill has a major flaw. It should be amended so that, instead of suspending the whole system, those who are not living up to their obligations—in this case, Sinn Fein—should be expelled on their own from the Executive only. At that stage, John Hume in particular, and the SDLP, can either stay in the Executive or show how sympathetic they are to Sinn Fein by resigning from it, actively removing their support from the democratic process that has been signed up to, from the Good Friday agreement to the protocol of a couple of days ago and now this Bill. After all, John Hume is a Nobel Peace Prize holder. He is a democrat, someone who frequently condemns violence, and is one of the catalysts in the whole process. He should be given his last chance to see it through. Can he really stand as a world figure, as he presently is, and deny the right of democratic progress as a result of a relatively small group of people withholding weapons?

My Lords, perhaps I may ask the noble Viscount one question. What happens if the Protestant paramilitary organisations fail to give up any of their weapons. Will they be allowed to hang on to them?

My Lords, the Bill is about the Executive and those who will be nominated to it. Therefore, it primarily refers directly to Sinn Fein/IRA because the other terrorist organisations have not obtained positions in the Executive. However, I entirely agree with the noble Earl and others, that all possible pressure should be put on the Protestant paramilitaries, and the Republican paramilitaries who are not truly on cease-fire. In turn, Sinn Fein would be faced with the fact that for once, perhaps for the first time, they cannot hold us to ransom and have a veto over this democratic process. That would seriously be the first time that any of us had seen that they did not have that power.

The third scenario is that the IRA do not appoint a negotiator and do not make a declaration in the next few days, and we can go no further. However, I believe that the second scenario is the one that will occur, and that a representative of the IRA will be appointee as an intermediary. It will probably not be an IRA person. I believe that we shall be back in the same situation as we had in regard to the victims' remains and the authorities will be talking through intermediaries. The representative will probably be a priest or a solicitor. In effect, it will be someone with whom General de Chastelain cannot really come to grips. And we shall be in for yet another fudge. That is where an amendment to the Bill could enable a timetable to be open and public. I suspect that it cannot be on the face of the Bill, but a proposal can be laid out openly and publicly when the matter is decided, after General de Chastelain has spoken to the groups concerned.

However, as the Bill stands I believe that we shall see fully armed terrorists in the Executive of part of the United Kingdom if David Trimble and the Unionists accept the Bill in its present form—and I suspect that they will not now be asked to do so.

By definition, the decommissioning timetable is flexible. There is no time-scale as yet, and it is up to the commission to set it after talking to the terrorists. De Chastelain may have a date in mind for the first weapons to be decommissioned; it may he September, October, or whenever. Between now and then, I can see that Sinn Fein will halt the day-to-day violence of beatings, knee-cappings and intimidation. It is capable of doing so. It did so earlier in the process when they were suspended for a period of time. There was an election and it was in Sinn Fein's interests to do so, but then they started up again. So we should not suggest that Sinn Fein does not have the power. Over the past 30 years it has had short cease-fires with no violence whatsoever, especially at Christmas time, which it wishes to enjoy like anyone else.

However, when it is pressurised to produce weapons, it will say, "Look, everything is very quiet. Do you the Government and the decommissioning body really want to jeopardise that by suspending everything? It is up to you. We are still trying. Do you want to go back to all that violence tomorrow?". What shall we do then? Shall we introduce more hasty legislation to try to get round that point? I dread to think. I am not accusing the Government of laying themselves wide open to that, but I cannot see what else will happen. The Government and De Chastelain must have in mind what will happen in that case. But either way, the law-abiding people of Northern Ireland will be the losers, because the Government have allowed too many loopholes—and we hope that some of them will be filled in tomorrow—in the Bill as it presently stands.

I wish to make one more point on the wider constitutional picture. During the passage of the House of Lords Bill the Government have thrown scorn on the suggestion, which was not mine, that after the expelling of hereditary Peers this House might not be the ultimate defender of our constitution in a case where there is an overwhelming majority in another place. Here is a Bill that infringes our democratic rights and allows fully armed terrorists to take part in governing a part of the United Kingdom. I cannot imagine anything less constitutional. I say to life Peers, primarily to those on the Government Benches: this is the time to prove, when we are talking about fully armed terrorists in government, that you are prepared to make a stand on a vital constitutional issue; I hope that you will prove your independence by supporting the more important amendments that will come before the House tomorrow to make this a better deal and bring democracy to Northern Ireland.

4.38 p.m.

My Lords, I find myself in the position of agreeing with almost everything that has been said during the debate so far. Above all, I found myself agreeing with just about every word that the noble Lord, Lord Fitt, said—especially his remark about the prime defect of the Belfast agreement. He asked why there was nothing in that to resolve the issue of decommissioning at the very beginning. But of course the answer is clear, and the noble Lord knows it. Sinn Fein would never have accepted such a commitment—which causes us to wonder whether they will accept such a commitment now. How right he was to remind us of just what the noble Lord, Lord Dubs, meant when he warned that the penalty for this process failing would be violence. Why? If Sinn Fein/IRA is committed to peace, even if this process is put in the parking lot, as the expression is, for a period of three or four months, why should that provoke it to start killing again, unless killing is still on its agenda today? It does not say very much for what the noble Lord, Lord Dubs, believes of the IRA's commitment to peace. I agree very much with the comments of my noble and learned friend Lord Mayhew and others, and indeed the noble Earl, Lord Longford, that the Bill contains nothing that will put any pressure on loyalist terrorists or any terrorists who are not associated with Sinn Fein. There is a method of putting pressure on them: stopping the release of their prisoners. That is how to put pressure on them.

But here we are again, as ever, with Northern Ireland legislation: finding that it is being rammed through without adequate time for reflection, consideration and consultation outside this place. Again it is a rush. Every piece of legislation that has been brought forward has been in a great rush. Why the rush? Why cannot we have more time for consideration? After all, if the Government had given themselves more time for consideration, they would have persuaded themselves of the virtues of what my right honourable friend John Major said and what Mr Trimble said yesterday in the House of Commons. There was nothing dramatically new in it. Ministers could have thought of it had they given themselves a little more time for reflection.

Let us be clear what this Bill is about. It is about the breaking of the Prime Minister's word given to the people of Northern Ireland to persuade them to vote for the Belfast agreement. The Prime Minister promised that the spokesmen for the terrorists would not be admitted to government while the terrorists remained active. In his words,
"Those who use or threaten violence [would be] excluded from the government of Northern Ireland".

Only a week or so ago there was the attempted murder here on the mainland of a man who had been an IRA informer. Yet we now see the representatives of those who committed that crime being proposed as Ministers in the Executive. In his Question Time broadcast the Prime Minister confirmed that he regarded the IRA/Sinn Fein as one organisation. I shall come back to that point later. One question that we have to ask is whether his ally and partner in many respects as regards this legislation, Mr Ahern, the Taoiseach, considers it to be the same organisation. I understand that the other day he said that he had come to the conclusion that they were now separate. I shall return to that point later, too.

Clearly, the IRA is still using and threatening violence, but now it is proposed that it will take part in the Executive. The Prime Minister also promised,
"prisoners kept in unless violence is given up for good".
It has not been. The prison gates remain open and, even worse, as readers of the Sunday Mirror will know—it is not my normal reading, but it was last Sunday—at least some of those who were released were making telephone calls, which were tapped, indicating quite clearly that they were still committed to the path of violence. Yet the releases go on.

That is the background against which we are asked yet again to buy a pig in a poke. It is always the same pig and the same poke, and it has never been delivered yet. We are asked yet again to trust the Prime Minister, legislate in unseemly haste and concede more to Sinn Fein/IRA.

Yesterday in the other place the Secretary of State refused to make any concessions to allay the fears of the Ulster Unionists. It appears that the Prime Minister was a little more constructive today. I hope that we shall see the amendments very shortly. Indeed, when the Minister replies to the debate, I hope that he will be able to give us a clearer indication of exactly which of the propositions by Mr Major and Mr Trimble will be the subject of government amendments. No doubt the Secretary of State was supporting the view of Mr Martin McGuinness that any such concession would be,
"a very, very dangerous thing",
not that I would accuse the Secretary of State of appeasing IRA/Sinn Fein. Her policy smacks far more of the green flag than the white flag. Nonetheless, we have this Bill before us and before we decide whether it should pass—and I certainly would not support it in its present form—we shall have to try to improve it and seek better guarantees from the Government.

I put this point to the Minister. If General de Chastelain is confident that he will announce a breakthrough in the decommissioning process by the middle of next week, why not delay the formation of the Northern Ireland Executive until the middle of the week after? That does not seem to be outrageous, unless IRA/Sinn Fein is so impatient that it could not bear to wait another week. After all, if it is committed in a way which enables the General to say that he will make an announcement within the next few days, why not let it be made before the Executive is formed? Indeed, why not wait until the General publishes the timetable for decommissioning? Why cannot we have that timetable? The answer is in Schedule 2 to the Bill. The Government choose to bind themselves to meet the deadlines which they have themselves set out. But if Mr Trimble's Unionists do not accept the terms of this Bill, the deadlines cannot be met in any case. So the Government may find themselves between a rock and a hard place.

I also suggest to the Minister that this Bill would benefit from a clearer definition of the word "decommissioning". Therefore, will the Minister at least assure us that all the parties are agreed, including Sinn Fein/IRA, that decommissioning relates solely to terrorist arms and that there are no parallel commitments on the part of Her Majesty's Government to disarm the RUC or the Army in Northern Ireland in parallel with any disarmament by the IRA?

Perhaps it might be helpful to define decommissioning in the Bill in that way. It certainly could do no harm. If not, I can envisage Sinn Fein claiming that the IRA was unwilling to decommission until the Government did so too. I can find nothing in the Bill, in the Belfast agreement or in other legislation flowing from it which precludes Sinn Fein from announcing that it had done its best to persuade the IRA to disarm, but had failed and so Sinn Fein had separated from the IRA.

What would the Government do then? Would they accept that and allow Sinn Fein to continue as a party of peace based on its democratic mandate at the Assembly elections while the IRA quietly went about its business and maintained its arsenal? What if the Provisional IRA finds that its weapons have been stolen by other republican terrorist organisations? Members of that organisation might say that, while they would love to decommission, their dastardly quartermasters had defected with the weapons which were now in the hands of the INLA or some other group. But the Provisional IRA could not be punished for that; after all, its weapons had been stolen from it, and it would be sinful to punish the innocent in that way.

No doubt the Minister will tell us that that is a matter for the General to decide, but that presents me with a difficulty. How does Parliament hold the General to account? I do not know him; I have never met him. How many noble Lords have? By what means can we be assured that he is not merely honourable but that he is robust in the ways of politics as well as war? What if the General declares that whatever agreement he may make, and with whoever he chooses to make it, has been broken? The noble Viscount, Lord Brookeborough, put his finger on it. Would the Government then argue that things had been going so well in the Assembly and Executive—this event might not arise until the turn of the year—that it would be risking a renewal of violence if the Executive was suspended?

The Minister shakes his head. I hope that later he will do more than that and set out the position clearly, preferably in the legislation but certainly in reply to the debate. The argument would be that what really mattered was not where the arms were but whether they were being used. If all was quiet and peaceful, would it not be taking a terrible risk with peace to disturb things when they were going so well? Like the noble Viscount, Lord Brookeborough, I suspect that that situation is one that we shall face some time before May of next year. Unfortunately, this Bill is shot full of holes which will allow such events to occur. It is a Bill which gives every encouragement, not to the Democrats, but to the bandits.

My Lords, before the noble Lord sits down, will he consider the reputation and background of General Sir John de Chastelain who has served his government and the international community in a very good cause and whose reputation is above reproach?

My Lords, of course I do that. But there are many men who have served their countries well, whose reputations are above reproach but who, when they have dealt with the IRA, have come singularly and badly unstuck.

4.53 p.m.

My Lords, I join the noble Lord, Lord Tebbit, in agreeing with everything that has been said this afternoon. I was pleased that the noble Lord began to ask questions about the details of decommissioning, what would happen if the weapons were stolen and so on. That is a minefield. It is almost certain that that will happen and make life difficult.

This Bill and the talks leading up to it relate to Unionist refusal to sit in government with any party with guns. Unfortunately, in no way does it help the Unionists or others; rather, it is a threat to them. It suggests that if they do not get in quickly the whole thing will come to an end and it will be their fault. That is not a very helpful way to sort out the problem. This problem goes right back to the time when the Good Friday agreement was first published. At that time Unionists realised that decommissioning was not a precondition for partnership in the devolved government of Northern Ireland.

Very soon feeling against the agreement became strong and the probability was that the referendum result would not be in favour of the agreement. The Prime Minister then made several statements, which have already been referred to, to assure Unionists that they would not be forced to sit in government with any party with guns and Semtex. As a result, the referendum was passed but, unfortunately, the Prime Minister did not keep to his undertaking. Again, he asks Unionists to take a risk for peace and to sit with Sinn Fein while the IRA thinks about destroying its arsenal. Failing that, the Assembly will he stood down and the Unionists will suffer as much as those who fail to decommission.

David Trimble has asked for some failsafe guarantees in this Bill to help him, but none has been included. Unionists and the people of Northern Ireland generally respect plain speaking and demand fair treatment. They detest ambiguous statements and the products of spin doctors. I cannot over-emphasise that they very much want devolution and the Assembly to work. There is a craving to make this work and to restore normal democratic government. Co-operation with the SDLP, or any democratic party, does not present a problem, as the noble Lord, Lord Fitt, emphasised, but to sit in government with Sinn Fein, as it is now, is too much to ask. Pressure has been placed on David Trimble and his team, which is much resented. Is it because the UUP is thought more likely to give way than the terrorists?

I believe that the present impasse has arisen because politicians on this side of the Irish Sea seem to look on Sinn Fein and the IRA as erring democrats who can be pulled back to see the light by kindness and favours. We who have had to live among them in Northern Ireland know quite a lot about them and know better. We know that Sinn Fein and the IRA are inextricably linked. We also know that members of the present: leadership of Sinn Fein have in the past held high positions in the IRA. The IRA has said repeatedly that it will not decommission. This is no surprise because the IRA regards itself as the only legitimate army in Ireland with the right and duty to unite the island of Ireland. It has thought that way for 80 years. The IRA believes that it has a duty to use force of whatever kind it thinks necessary.

Mr Adams has said that the objectives remain unchanged. Neither the IRA nor Sinn Fein has said that the war is over. Sinn Fein has not accepted that the all-Ireland referendum on the Good Friday agreement is a valid act of national self-determination. This leaves the IRA with the continuing requirement to be ready for a resumption of armed struggle. It is very significant that Mr Bruton, leader of Fine Gael, believes that this is the core of the problem in both parts of Ireland. The immediate objective of Sinn Fein/IRA is to prove that Northern Ireland is ungovernable by peaceful means, and the situation on the Garvaghy and Ormeau Roads is not unrelated to that objective.

Memories can be short, but we are still very conscious that the IRA has bombed and murdered about 2,000 people and so-called loyalists have acted with similar bestiality. Is it not the ultimate denial of democracy to force people to sit in partnership in government with unrepentant terrorists?

The Ulster Unionist Party position on this is supported by democrats throughout the world. It should be remembered that Mr Ahern, the Taoiseach, was strongly in favour of this for a few months at the beginning of the year. But the success of Sinn Fein in the European elections has been noted by nationalists north and south and the Dublin Government are now looking at Sinn Fein as a future party of some significance. The British Government have given Sinn Fein almost all it has asked for without it giving anything in return: early release of prisoners, the setting up of the Patten Commission, and so on. Sinn Fein has taken votes from the SDLP in Northern Ireland and for fear of losing further votes Mr Hume will not want to agree to vote for the expulsion of Sinn Fein. I have to pinch myself. Am I really a citizen of the UK, brought up to believe in democracy, watching our British Government pressing hard on a peaceful and democratic party in part of the UK to make it agree to sit down with armed terrorists as partners, even temporarily, to govern part of the United Kingdom? Is it democracy when a Government with a large and disciplined majority can do something as undemocratic as this?

I am concerned about the Bill. I note that the Minister said that amendments would be tabled. However, I believe that even his hands are tied. As the noble Lord has explained to us on many occasions, he has to consider the Good Friday agreement. It is the international agreement; and there can be nothing in the Bill which goes against that agreement. That means that what the noble Lord can do to straighten out the many problems is very limited.

I believe that there is only one thing to do. It is to put the problem in abeyance for the time being while people sit down and do a little straight thinking.

5.1 p.m.

My Lords, I agree with Sinn Fein in one matter at least, in this present dangerous and difficult situation, when it says that we must not forget the lessons of the past. It is right about that. The past I have in mind is not the early 1990s, nor even the early 1980s, but the early 1970s and the time of the Sunningdale Agreement and the power-sharing executive which was set up. It was an experiment which nearly succeeded, but in the end failed. We would be wrong to ignore the lessons of that failure in grappling with the present situation.

At that time the power-sharing executive programme was under the towering leadership of Lord Whitelaw, whom we all miss—I miss him very much indeed. He was supported by his juniors, my noble friends Lord Windlesham—he was here a moment ago—Lord Kelvedon and myself. He was supported from outside the British Government by many eminent figures, of whom one was the noble Lord, Lord Fitt. We heard him today giving yet another courageous speech. There were many other extremely brave people. They were physically brave as well as politically and intellectually brave. It was not just their job or their opinions on the line: their lives were on the line. They supported that power-sharing executive; and yet it failed, despite the heroic efforts of the then Secretary of State, the noble Lord, Lord Merlyn-Rees, who will speak later in the debate, no doubt with his usual great authority and experience.

What are the two lessons I draw today from that sad experience, with all its efforts, when we came so near to success? They are simple lessons. One was that you cannot push the Ulster people as a whole, but specifically the Unionists and their supporters, too far. You can expect many concessions from them—and there were many then and there have been many this time round—but you cannot go on pushing them again and again in face of more disappointments, more half-broken promises, without any sign of concessions from the other side or any sign that their concessions are bringing a better world for the Ulster people. The attempt to do so then led to the Unionist side of politics unravelling, and the entire Province being trapped and paralysed by strikes, with violence breaking out again on both sides and another plunge into the dark era for the people of Northern Ireland. I shall come to the application of that lesson in a moment.

The other was a more difficult lesson, and possibly less welcome to some speaking on the Unionist-inclined side. It is this. If the Executive is formed but has to exclude both the more extremist parties, and, beyond them, the men of violence and terror—the real slaughterers—the power-sharing Executive will not just sail ahead on its own. Democracy will not be allowed to proceed untrammelled. The violence will take over again. As the noble Lord, Lord Fitt, said, this is a society of two communities and at the wings are violent propensities which will always come in through splinter and breakaway groups and not only destroy peace in Northern Ireland but the democratic procedures as well.

That applies just as much to the situation if there is no decommissioning as it applied to the situation in 1974. If there is no decommissioning, it does not mean that the democratic institution can go ahead without Sinn Fein, or whatever. It means that outside the democratic institution, violence will resume. The culture of violence which is already there will go on. It will frighten people. That fright will nibble away at the democratic process, and those who have tried to support the democratic process will be forced away from it. Violence will gradually close over the democratic process just as the sea closes over the sand-castles on the beach. That is what happened before and that is what will happen again unless we have a policy and a procedure which can deal with the situation. I argue that the Bill falls short of that.

What emerges so clearly from those days is this. Let us suppose, as I fear is all too likely, that the decommissioning process is fudged or does not satisfy General de Chastelain. Let us suppose that somehow difficulties are found of the kind which my noble friend Lord Tebbit described with great percipience and imagination—these things could easily happen. The understandable idea that some democratic core can still go about its business; that Northern Ireland can be ruled democratically again as it wants to be with devolved legislation; that nothing else will happen and that the situation will be stable, is foolhardy. That idea is not founded on experience, memories, lessons from the past, or any realistic appreciation of what will happen in the future.

That idea has to go hand in hand with the other part of the policy that is not in the Bill. We had a debate in your Lordships' House—how many months ago? I cannot remember—on the horrors and atrocities of Omagh. Some of us said then that there is a missing piece of the policy. Of course we want democracy. Of course we want agreements. Of course we want to work towards the ideas and principles of the Good Friday agreement. But none of that will work unless at the same time the operations against violence and terrorism are organised at a level of co-operation nationally and internationally with Belfast—and the American Government may now be involved—and with a degree of intelligence and intensity on the whereabouts of weapons which will never be handed in, and with a degree of determination all round which ensures that violence does not undermine the democratic process.

It seems self-evident that part of that policy has to be a halt of the early release of prisoners. The early release of prisoners is fuel for violence. We know that it is. It is reported as such. It is known to be such. If we are to have a policy which ensures that democracy in the form of devolved legislation continues, with or without Sinn Fein and the decommissioning, it must go hand in hand with a policy of security and an effort against terrorism which includes the halting of the early releases. I am amazed that the early release amendment, which I hope will he tabled tomorrow, was not included in the earlier process.

I am a guilty party because I participated in the legislation which was rushed through Parliament 24 years ago and once again we are rushing through legislation. At least then we consulted the other party leaders before they had to stand up in Parliament and make their points and be greeted with the cry, "Oh good, let's have an amendment". At least there was some kind of consultation process. However, it appears that the views of the former Prime Minister—a man of authority who began this peace process—were novel to the Government when he rose from the green Benches in the other place and uttered them. I find it incredible that he had not been consulted. Yet that appears to be the pace and style with which the policy is being cobbled together.

I believe that this is a sad little piece of legislation. It is missing the vital element of policy which must go with it. I have no idea whether it will work, but, as noble Lords have rightly said, it is another additional pressure on Unionists who, heaven knows, have bravely yielded on every front, often risking their own lives and certainly their political positions. It may or may not hold the position.

I hope that the threat in it will never be needed. I hope that the decommissioning will take place. However, if it does not and the violence-inclined parties remain outside, this Bill will not hold together 'the Good Friday agreement. It will not hold together the devolved executive, however much the Unionists and those who want democracy and moderation in Ireland want it. Much more will be required, even with the amendments that we shall debate tomorrow. It saddens me that once again we are proceeding with a policy of which half is missing. The half that is missing is the real determination of London, Dublin and even, bless them, the American Government, if they can understand what is happening in Ulster, to defeat, head off, suppress and destroy the terrorist element which remains hanging over peace and democracy in Northern Ireland.

5.12 p.m.

My Lords, it is a special pleasure for me to follow the noble Lord, Lord Howell of Guildford. I have watched his political career with great interest. Almost exactly 50 years ago, as head boy of my prep school, he reported me to the headmaster for messing around for which I was soundly thrashed. I want to thank the noble Lord for assisting me to grow up.

Apart from my education in this country and 10 years in Her Majesty's Armed Forces, my home has always been in the Republic of Ireland. Therefore, I want to say a few words in regard to the Bill and the Good Friday agreement. My father made his maiden speech in 1947 and I made mine in 1995. Both were on the subject of improving relations between people in the United Kingdom and Ireland.

Over the years, whereas personal relations between the UK and the people of the island of Ireland have been good., the politics have been exceedingly difficult. The Good Friday agreement was a major political step forward. No praise is too high for the efforts of the two governments and the respective parties in Northern Ireland. The agreement presents the best chance of peace in years and the people of the island of Ireland, by a huge majority, voted for that peace. Therefore, the opportunity must not be lost.

Her Majesty's Government are now on the brink of devolving powers to the Assembly with an inclusive Executive in Belfast. It is vital for that Executive to be inclusive. Unionists and Nationalists will have to work together; one without the other will not work. Over the years, we have all become aware of the mistrust between the political parties in Northern Ireland. Therefore, to ensure the working of the Executive and decommissioning, a fail-safe device has been built into the agreement. The Bill provides those safeguards.

I agree with the noble Lord, Lord Fitt, that decommissioning should have taken place at the time of the Good Friday agreement. Under the agreement, Sinn Fein gave a commitment to hand in all weapons by May 2000. But will a start be made before then? Will the IRA verify the commitments given by Sinn Fein? I understand that the Taoiseach stated to the Unionists that his personal belief is that the IRA will begin to decommission its weapons shortly after the Executive is set up and will complete the process by May 2000. However, the IRA must make a statement at least to the effect that decommissioning was not just an aspiration but an obligation that will be honoured within the timeframe of the Good Friday agreement. I believe that it is most important that the SDLP remains in the power-sharing Executive, even if Sinn Fein were expelled.

The Bill and the Good Friday agreement have, after lengthy discussions, come about by compromise. Whether it be the Bill before us today or a further amended Bill, there should be a final Bill that is acceptable to the parties in Northern Ireland. That final Bill will surely be the best way forward for peace in Northern Ireland.

5.16 p.m.

My Lords, there has been a remarkable degree of unanimity among the speakers in today's debate. However, surely it is unprecedented for a Bill of such contention to be allocated a mere eight hours for all its stages in another place. Like my noble friend Lord Tebbit, I sincerely ask: what is the reason for this unseemly haste? If ever there were a case for consensus, surely this must be it.

Why are we here? When I see the Bill, I have a feeling of déjà vu. In order to gain an understanding of today's debate, one has to revisit the Good Friday agreement. I was present for almost all of yesterday's debate in another place and much was made of the overwhelming majority in northern and southern Ireland in support of that agreement. However, we need to remember the reason for that. It was the letter that was written in the middle of the night and handed to Mr Trimble, and the personal assurances given by the Prime Minister during that night to secure the acquiescence of Mr Trimble and many of his Unionist colleagues. That was conveyed to the wider public in Northern Ireland, supported by my right honourable friends John Major and William Hague. Others spoke publicly on the basis of the Good Friday agreement plus the personal assurances of the Prime Minister in that note and verbally. The latter was the ingredient which secured the vote.

There are many people in Northern Ireland who believe we have been let down. I count myself as one of them. I make no criticism of the Prime Minister for that because I believe that he made those assurances in good faith at the time. But the truth is that we have been let down. I accept that we can be clever with hindsight, but, with hindsight, in one more day Mr Trimble should have insisted that those assurances were put into the agreement. We should then have been in a much stronger position and perhaps today's debate would have been unnecessary.

That is the reason why we demand from the Government that the three points raised in another place yesterday, together with the fourth put forward in the excellent speech of my right honourable friend John Major, should be incorporated in the Bill. If they are not, we shall repeat the fudge of the Good Friday agreement.

The Prime Minister at that time said, "Trust me". As I have said, I believe he was genuine; and we did. Now he must understand that we need more than words or parliamentary reassurances; more than, "It will be all right on the night", and more than some interesting spinning from No. 10 to reassure the wider public who are not aware of the technicalities of the Bill.

I agree with the comments made earlier by the noble Lord, Lord Fitt, that the central issue of the Bill is decommissioning of arms, not whether or not Mr Trimble and his Unionist colleagues sign up to the Bill and whether they take one more leap of faith. My noble friend Lord Tebbit said that we really need a proper definition of the word "decommissioning". I believe also that we need a proper definition of the word "breach" in the Bill, for what constitutes a breach may be interesting.

The noble Viscount, Lord Brookeborough, regaled us with some alternative scenarios. Perhaps I may add another. General de Chastelain genuinely will, at some point, produce a timetable. The first stage of that timetable is the "two or three days". I do not know how that will manifest itself when the timetable is produced, but whatever the first stage is, when that time is reached it may be possible for the General himself to say, "Yes, we have reached the limits of my timetable but I believe in good faith that there are so many encouraging signs coming from Sinn Fein/IRA that it would be too insensitive at this stage to trigger the measures in the Bill". It may even be that if the general decides to trigger it, it may be said at the next stage of the process that this is too sensitive a time to trigger the mechanisms in the Bill. As my noble and learned friend Lord Mayhew said, it is only the mechanism that is released, not the automatic exclusion. So we do need more definition.

My right honourable friend John Major asked in another place whether we could confirm that the British and Irish Governments were in agreement about the Bill. In reply Mr Murphy, the Minister of State at the Northern Ireland Office, stated:
"The right hon. Member for Huntingdon also asked whether we could confirm that the British and Irish governments are agreed on the Bill. Our relationship as Governments has never been closer and we agreed fully on the way forward".—[Official Report, Commons, 13/7/99; col. 228.]
That is not a "yes". Are they in agreement on the Bill? May I extend the question asked by my right honourable friend to this: are the two Governments agreed about the amendments that we believe are coming tomorrow? It is important that we hear that. Perhaps I may reinforce the comments of the noble Lord, Lord Tebbit, that we would also like the Minister today—before tomorrow—to give us some indication of what the amendments we see tomorrow will cover.

My right honourable friend also asked if the de Chastelain schedule could be published. I believe that that is not only desirable but essential. Again, Mr Murphy in another place said:
"The right hon. Gentleman asked whether we would encourage General de Chastelain to publish the full schedule and timetable for disarmament".
He continued:
"General de Chastelain said in his report of 2 July that he was prepared to define a detailed timetable for decommissioning, following discussions with representatives of the organisations. Clearly there will be a detailed timetable. Under the Bill, if the general lays down a timetable, it must be kept to, or he will blow the whistle. I recognise that the publication of the full timetable would encourage confidence. Equally, it is a matter for the general and his colleagues to decide whether they should do that".—[Official Report, Commons, 13/7/99; col. 227.]
With respect, I believe that it is a matter for Parliament to say whether that should be published, and not the general.

On past record, we know that the IRA is a past master at prevarication. Therefore, can we have a guarantee that General de Chastelain's determination of the timetable will be made in a matter of days? I am not sure whether the two or three days count from the publication of the timetable or whether we could wait weeks and months for it. It would be important to have that.

In response to the question from my right honourable friend John Major about whether literally any breach of the disarmament schedule would lead to suspension, Mr Murphy answered "Yes". That is why we need a proper definition of what constitutes a breach.

The Bill must be amended. If it is not, Sinn Fein/IRA will have won yet another round. It must be amended to provide greater clarity, more certainty and a transparent process within which those who default are excluded from the power sharing Executive and those who genuinely seek to tread the path of democracy continue in office. It really is a strange notion of fairness and justice when the guilty have the power of veto over the innocent. It is time now to really test the intention of the paramilitaries, including Sinn Fein/IRA. It is they, not Mr Trimble and his Unionist colleagues, who are the key to real peace in Northern Ireland.

5.25 p.m.

My Lords, at one time I used to speak quite often on Northern Ireland matters. I was critical of the Anglo-Irish agreement, of the Downing Street declaration, and of a number of initiatives taken by the previous government. I have often been uneasy about the bipartisan approach.

Despite considering some aspects of the Good Friday agreement deeply unsatisfactory, I thought that as the people of Northern Ireland approved the agreement in a referendum it was not for me to complain so I have since remained silent. I can only say that perhaps some of those in Northern Ireland who voted yes may now regret it, misled as they were by the promises of the Prime Minister which appear, if this Bill goes through as it stands, to be worthless.

Now, on the eve of the emasculation of this House and its transformation into a House which is unlikely to make too many difficulties for the Government, I feel bound to say a brief word, particularly as this extremely important Bill is being rushed through in an extraordinary way to meet a quite arbitrary deadline decided by the Government.

I agree with the concept of power sharing but it must depend on a genuine will on both sides to operate democratically, peacefully and constructively. I think it most important that there should be devolution of government to Northern Ireland.

There are good precedents for enemies turning into valuable friends. One of the most notable was the change of heart by Botha and Smuts after the Boer War, but Adams and McGuinness are not Botha and Smuts, not by a long chalk. It is hard to believe that they will change into peace-loving, constructive politicians; rather they are likely to continue to pursue their own agenda—Brits out, a Marxist united Ireland and perhaps in due course the ethnic cleansing of the Protestants in Northern Ireland.

My objections to what is going on are, first, the involvement of the Government of the Republic, a foreign power which has still not repealed Articles 2 and 3 of its constitution laying claim to Northern Ireland, although it is pledged to do so under the Good Friday agreement, and, indeed, the involvement of President Clinton. Mr Blair and Mr Ahern seem to act as though Northern Ireland is not part of the United Kingdom but an Anglo-Irish condominium.

Secondly, I dislike the methods adopted by the Government and their predecessors to promote power sharing, notably their constant pressure on the Unionist majority and only on the Unionist majority. Thirdly, there is the continued outright appeasement of the IRA with no response or quid pro quo at all from that organisation; most of all, of course, the release of terrorist prisoners like the Brighton bomber, Magee, condemned of the most terrible crimes. This is not only highly objectionable in itself but drives a coach and horses through our own criminal justice system. Are we not al! supposed to be equal before the law? If so, why should Irish terrorists be released after serving only a fraction of their sentences when the Kray brothers and Myra Hindley remained behind bars?

On the issue of appeasement, I recall as a former High Commissioner in Canada, the case of Mr Trudeau. In Quebec, some years ago, there was a terrorist organisation which killed a Minister arid kidnapped a British trade commissioner. Mr Trudeau is a liberal—a man of the left—and it was generally expected that he would do nothing except say, "Tut, tut". However, he was not prepared to tolerate terrorism in Quebec. He took the firmest measures and told what he called the "bleeding hearts" to, "Go on and bleed." Terrorism in Quebec was killed stone dead. What a contrast this approach of a vigorous young country with the timid, ineffective efforts of our Government! It shows that in dealing with the British Government violence and the threat of violence certainly do pay.

I agree with the noble Lord, Lord Fitt, that decommissioning is fundamental to genuine, peaceful power sharing and cannot be fudged by the Government. The failsafe measures promised by the Prime Minister to the people of Northern Ireland are not—or not yet—included in the Bill.

We continue to go along with the fiction that Sinn Fein is separate from the IRA when everyone knows that the two organisations, as the noble and learned Lord, Lord Mayhew, said earlier, are inextricably linked. Experience also shows that no reliance can be placed on IRA promises.

I have read the report of the debate in the other place yesterday. I was impressed by the moderate and statesmanlike speech made by Mr Trimble. He moved amendments that were inexplicably voted down by the government majority. I was encouraged to hear the Minister's comments earlier about the likelihood of government amendments being moved in this House. If they meet the points put forward by Mr Trimble and the Opposition, the Bill may become less objectionable. If not, I think it would be much better—as Mr Trimble said yesterday—to take more time over the legislation and give ourselves the opportunity to get it right. To pass the Bill as it stands must be wrong.

5.32 p.m.

My Lords, I do not intend to detain your Lordships for long. I want to make a plea, not a speech, on behalf of three-quarters of Northern Ireland's people who voted yes and who want to keep the process going. They want to live with their children in a peaceful community where money can be spent on education and health facilities, not on security and peace trips. I am worried that people who live in Northern Ireland can talk to each other only in South Africa, but that is a personal point.

I make a plea on behalf of those who still want peace and those who behaved very responsibly at Drumcree and Ormeau Park last weekend. Both sides are to be congratulated because their actions really made a difference. None of us believed that it could happen. Furthermore, the Royal Ulster Constabulary did not have to be the filling in the sandwich—a role that it has often played before. I remember how, on one occasion when I was away from the Province, my protection driver spent the whole night taking fire extinguishers to the wives of RUC officers as a protection measure. That is no way to live.

This weekend we saw movement for which no one could have hoped. I think we must recognise that that movement came from the streets and from the parties, not as politicians but as people making decisions abort their future. We cannot run Northern Ireland from outside Northern Ireland; we cannot run it from Great Britain. British citizens who live in the Province can get a feel for the situation, but the only real feeling is that one does not understand it. It is important that we do not make decisions here about Northern Ireland.

We have got things wrong in the past. We talk about Sinn Fein as if every Sinn Fein member has horns. However, that party has a big vote and we cannot deny the people their democratic rights. We argued against Sinn Fein on democracy grounds, but the voters need a democratic party and they should be allowed to make up their minds. We should not have had a policy of not shaking hands with Sinn Fein party members. That was very wrong. If we treat people like that, how will they treat us back? There is a lot of give and take to come. The question is: will that happen or does the damage run too deep? That is an important issue and we should not add to the problem.

When I was in the Province, those who had lost family members would say, "I can live with this if this is the last one. If my son's death means that no one else will be killed, we will be brave about it". Of course, that was not the case. Other people have been killed, and the latest tragedy occurred at Omagh. We lose faith, but the people who did not were those at the heart of the tragedy. We must learn from them and move forward.

There are always too many fingers in the pie when it comes to Northern Ireland: they all want to be "boys for success". As the noble Lord, Lord Fitt, said, every American wants to be the one who came to save Northern Ireland. Most Irish immigrants to America left from the west coast of Ireland three generations ago, but Americans still have the view that horses and caravans travel up the west coast—and it is like that for those flying in to Shannon airport for a holiday. The Americans must learn that that is not what Ireland is about. They must not think that they can help by inviting Adams to sit at one table and Trimble to sit at another. At any dinner in America there is a Mr Plod the peacemaker. North America should realise the enormous investment opportunities and talent in Northern Ireland and, in that way, help constructively. However, I plead with America to stay out of Northern Ireland politics. I am sure that Northern Ireland policy will be viewed as a vote catcher in the New York state elections.

My noble friend Lord Howell drew attention to the fact that Northern Ireland cannot be run from Dublin. The situation is made more difficult by the two civil service departments: the Northern Ireland Civil Service and the Northern Ireland Office Civil Service. The communications between the two services are sometimes strictly limited and Ministers can be fed differing policies. The aim of Northern Ireland Office civil servants is often to ensure that they do not miss the seven o'clock flight back to London. The Minister shakes his head, but I have seen it happen.

It is a very difficult situation. Someone suggested that General de Chastelain should have a drink in the bar and listen to and share views. It does not happen like that. One gets locked away in Stormont or Hillsborough and, if one goes across the road to the pub, some people look at the protection officers while others put their drugs away. It is very difficult to relax in that sort of atmosphere. We must weld the different groups.

We have been held back by a lack of responsibility in Northern Ireland. If people are not responsible, they do not behave responsibly. That is the case at national and local levels. If a school is burnt down in Northern Ireland and the British taxpayer pays for it to be rebuilt, there is no pain in that—unless one's child attends that school. I hope, therefore, that this process will bring forward a great movement so that people can take ownership of it. I hope that we can still get it through with that ownership there. People should be able to say, "This is mine. If you do that, and we lose it, then it will be your children, my children and the future that will suffer".

The process will not be easy. It is up to the people of Northern Ireland. I have found somewhere at last where I agree with the Prime Minister when he says, "It is now up to you. I have done as much as I can". I believe that he should stick to that. Again, one of the problems has been, "If you don't like the message you are getting, go to Downing Street". Time and time again we have seen the processions up Downing Street and the crews waiting to take the message. The great thing about Sinn Fein is that it has always been better at spinning; second only, I believe, to Alastair Campbell.

All congratulations should go to David Trimble, who was the first person to take the Unionist message to North America. They used to believe that there was not a Unionist message. I once sat at the same table for the first dinner the Unionists attended in Washington. It was appalling. They felt that the North Americans were anti-Unionist. They were not anti-Unionist, they just did not know about the Unionists. Progress has been made. Let us not be negative. Let us concentrate on hanging on to what we have.

If I were still in office—I would love to be still in office: that is not to say that I am trying to usurp the Minister and in any case that is unlikely to happen—I would ask the Unionists, Sinn Fein, the other players and the paramilitaries whether any of those groups would want to be known as the one which ruined this final effort for peace, or whether it would want to be known as the hero big enough to make the gesture to save it.

5.42 p.m.

My Lords, the mere fact that the noble Baroness, Lady Denton of Wakefield, has risen to speak shows the great courage that she carries with her at all times. It was a privilege to hear what she had to say.

I apologise for arriving late. I had to present degrees this morning and I could not get back here in time. However, I have heard 95 per cent of the speeches.

Since 1967, Northern Ireland has been marked by a series of crises. It was in that year that the Provisional IRA came into existence, taking over from old IRA. Civil rights marches took place in West Belfast. On the walls was written, "I Ran Away", for the IRA. It played no part. A new organisation was set up and the republican movement fissured. The Official IRA went political and has representatives under different names in the Dail. However, it is the Provisional IRA that we are talking about. It is a new organisation based, of course, on the past. The Protestant paramilitaries are fissured groups, one of which is far larger than the Provisional IRA. The crises which have marked the period have necessitated action by the government of the day.

In 90 per cent of what it says the Bill is very similar to other Bills introduced in the past 20 or 30 years. Technically, it is no different. Northern Ireland is part of the United Kingdom, but it is a place apart. The noble Lord, Lord Deedes, is no longer in his place. In 1971 I took a Labour Party delegation from the other place to Northern Ireland. The noble Lord led the whole delegation. We visited Long Kesh, as it was called at the time. One should not have a place such as Long Kesh in the United Kingdom. It was like a prisoner-of-war camp, with barbed wire, compounds and so forth. Northern Ireland is different, and we must not forget that. That does not mean that it is not a part of the United Kingdom, but to treat it as it were Sussex, Hampshire, Wales or even Scotland is a grave mistake. It is different in many ways.

Another point I have not mentioned for some time, although it is always on my mind, is that we underestimate the problems that Members of Parliament from Northern Ireland have to face. They are far closer to their electorate, and they are constantly in danger. I shall never forget the police guard I had, which was not much greater than that provided to Members of Parliament in Northern Ireland. It is a place apart.

Northern Ireland Members of Parliament form a powerful group. They are a small group which acts almost as a devolved group. The Government are asking for the Bill to go on the statute book because of the crisis that has arisen right now. The first crisis I came across—the noble Lord, Lord Fitt, mentioned it—was in 1974 when a power-sharing executive was set up. The late Lord Whitelaw had left the Province in December, before Sunningdale was signed. He played a most powerful part in the Province. The noble Lord, Lord Howell of Guildford, says that he misses him. I do, too, as indeed do many noble Lords on this side of the House.

On my first day there I attended a meeting of the power-sharing executive. Brian Faulkner asked if he could come to see me. The noble Lord, Lord Orme, was the Minister of State at the time. We had decided to keep away from the power-sharing executive. It was running Northern Ireland, apart from security and constitutional matters. Brian Faulkner said to me, "I have come to tell you that the Sunningdale agreement is finished. We were pushed too far." Then he said, "I have been disowned by my own party." The noble Lord, Lord Molyneaux, will agree that that is what happened. I sent a fax—it was not called a fax in those days—to Downing Street saying, "I propose to go on saying that we support Sunningdale but the Prime Minister must realise that it is in grave danger." Eventually, it ended with a veto from the Loyalist side of the community, with the Ulster workers' strike. The noble Lords, Lord Fitt, and Lord Blease, will remember that. The strike was not a trade union strike, but rather one by trade Unionists, which was perhaps more powerful.

Four weeks later we had to have the same kind of legislation as we have now. I notice much the same wording. The legislation is being brought forward in order that the government of the Province can be suspended by a suspension order. The whole purpose of the Bill is to make provision for the government of Northern Ireland should there be a breakdown. Clause 2 provides for what would happen should there be a restoration. It is exactly the same as happened before.

I wish that technical legislation well. However, there are questions I wish to ask about what else is involved. The key to it all is decommissioning. I wish to ask this question. I am operating from the Explanatory Notes to the Bill. I am not suggesting that they should take the place of the Bill itself, but the matter is set down clearly. The Explanatory Notes state:
"In relation to decommissioning, the condition is that the Decommissioning Commission … reports to the Secretary of State that there has been a failure to honour commitments relating to decommissioning".
Decommissioning is then defined. The Explanatory Notes continue:
"The Independent International Commission on Decommissioning was established in 1997 … The Belfast Agreement itself envisages the Commission monitoring, reviewing and verifying progress on the decommissioning of illegal arms".
Has it done that? Has it supervised and verified that decommissioning has taken place?

I wish to make a statement as well. There are two sides to the equation of violence in Northern Ireland. There are two vetoes: a loyalist veto and a republican veto. There is a veto by the SDLP, which never has been involved in violence. It has a veto as well, because it represents the Nationalist tradition in the Province. The Republican and Loyalist sides are the two sides of the equation. Sinn Fein is split; the IRA is split So are the paramilitary groups, of which there are many. This has always been the case.

We forget at our peril on this side of the water that in 1920, when southern Ireland, the 26 counties, became independent, there was a civil war in Ireland between the various wings of the IRA. There is a danger of that happening again. History should not be forgotten in that respect. What we are doing in this House and in another place must take that into account.

It is easy enough here, with the normal problems that may or may not arise, but Northern Ireland is a place apart and has to be dealt with as a place apart—a part of the United Kingdom, but a place apart. The Nationalist, the Unionist and the Republican Political parties have to be taken into account.

As regards decommissioning, of course something must be done, but I am sceptical. A certain amount of arms could be handed in, as well as semtex and agricultural nitrates. Large amounts of weaponry, much of it from the Middle East, from Libya and so on, will still exist. I am sceptical of the importance given to decommissioning, except in one respect. It is a totem pole. It is important, but we must not run away with the idea that it is so important that it will solve the problem, because it will not.

I remember how often this sort of situation has arisen, as may the noble Lord, Lord Howell of Guildford. I invited the heads of the Churches in Northern Ireland to come and see me at Stormont. My noble friend Lord Orme was with me. It was the first time that they had been in my room and the first time they talked together in this respect, or so I thought. I talked about a cease-fire, and one of them said, "Never forget that in Ireland over the centuries the pike has gone back into the thatch", ready to be pulled out at another time.

It is important that there be a totem but it will not be the answer. Unless all the arms are handed in, violence will continue. In my view, there is only one way through, and that is for the three sides to work together. We may not like it. There are many things that stick in my throat when I read about them, but in other countries steps have had to be taken to bring men of violence onto the political scene.

Mr John Hume has done a remarkable job with the SDLP, a new party that came into existence around 1968. New parties emerge. Attitudes change. I never thought I would praise Mr Adams. He has accepted that the division of Ireland into two remains. That is a very important step, accepted by virtue of the Belfast agreement and all that goes with it. I ask noble Lords to look carefully at it.

Then, of course, there is Mr Trimble. To show that he has come a long way—and I praise him for it—I would tell your Lordships that I first knew him as someone on a motorbike, wearing a black suit and riding as an outrider for Bill Craig of the Vanguard Unionist Party, another breakaway group.

People in Northern Ireland have had to come a long way; they will have to go further before there is peace in Northern Ireland, because it has not come yet.

This is a technical Bill. We have seen it before. We need to examine carefully the amendments that come tomorrow. They are what really matter. The rest, of course, matters, but to make a song and dance about the Bill is a mistake. I ask noble Lords to look at the other Bills. We have gone through these technical matters about commencement orders and non-commencement orders previously. They can be found in the files.

I wish the Government well. I shall listen carefully to what is said about decommissioning. While I am sceptical, it is important for the people of Northern Ireland, particularly on the Unionist side. In this respect, I do not forget Brian Faulkner, who was driven too far. The politicians of Northern Ireland cannot be driven for ever, as the noble Lord, Lord Howell of Guildford, said.

I look forward to hearing what the Government come up with. I ask these questions about decommissioning. What has been done about it since the Belfast agreement? Has anything at all been done about monitoring and reporting? It is very important, because unless something is done the whole edifice will fall to the ground.

5.56 p.m.

My Lords, my grandfather was adjutant of the Munster Fusiliers in Tralee in 1909. It may seem a long way back, but it is not nearly as far back as most Irish memories go. There was a foul murder, and his sergeant-major said to him, "Captain Dillon, there has always been murder in Ireland".

We underestimate what drives the Unionist population. They have been a minority in Ireland and have been subject to, and are continually subject to, persecution and, if I may say so, ethnic cleansing, to which I will refer in a minute.

I had luncheon today with an old friend of mine who comes from Ulster. His mother remembered as a child his farmhouse on the borders of Donegal being defended by her father and two elder brothers with rifles against the IRA coming across the border.

It is also to be remembered that if the Unionists had not been frightened of the Southern Irish Catholics home rule would have happened in 1886 in peace and quiet. The problem has always been the fear of two minorities: the Southern Irish Catholics' fear of being beaten up by England and the English being frightened of Ireland in the old days, because the population of Ireland was very nearly as high as that of the rest of Great Britain—certainly two-thirds in the early 19th century.

In 1641 hundreds of Unionists and Protestant people were murdered. That is why they fought so strongly at Enniskillen, Aughrim and Derry. Even in 1922 there were 100,000 small Protestant farmers in Monaghan, Cavan and Donegal. Those people were bombed and burnt out.

The reason I drag up these historical instances is not to show off, to show that I know these obscure facts, but to try to help explain why the Unionists feel so frightened. They have felt frightened for a long time. They have made concessions to Mr McGuinness, who I know was wanted for murder when the Grenadiers were in Ulster 20 years ago, and Adams, who was quartermaster of the West Belfast Brigade. They have sat down with some pretty unpleasant people. They have conceded what we in this country have never conceded; they have conceded that they cannot kick out their government. If there is a general election for the assembly in Northern Ireland, it will not result in a change of government. They do not have that democratic right to change the assembly. They have been landed with it. We say that it is democratic, but it is not what we call democratic. We can sack Mr Blair, as we sacked Mr Major, and long may that last. They cannot do that. They have conceded all of these things.

The reason why decommissioning, to paraphrase Churchill, like the dreary steeples of Fermanagh and South Tyrone, re-emerged after the ebb tide of war was that in the beginning decommissioning was too difficult. It could not be got through, so an attempt was made to finesse it. Ultimately, something as important as that cannot be finessed. As the noble Lord, Lord Merlyn-Rees, said, the pikes go back into the thatch. I do not think it matters if there is a Thompson machine gun from the civil war of 1922, or even a rusting Lee-Enfield from the pitiful attempt by the IRA in 1949. What matters is large quantities of Semtex; that is nasty and dangerous stuff which can do a lot of damage.

Why is there suddenly this rush? The whole of the process of Ireland, at least since I carne to this House, has been one rushed Bill after another. When I first came here there was the suspension of Stormont—I believe it took place on a Saturday. Suddenly, Bills were rushed through. I repeat, as a sergeant major long-since dead said to my grandfather, there has always been murder in Ireland. There seems to be no point in rushing things. Why do we rush a Bill which says that if the bad guys behave badly, the good guys suffer?

I only wanted to make those two points. First, to put some plug and hope that somebody will know a little about why the Unionists behave as they do. Secondly, to ask that simple question: why do the good guys suffer if the bad guys misbehave?

6 p.m.

My Lords, I shall declare my interest as having spent much of my adult life in Northern Ireland and during the past 30 years or so there have been many moments of despair. No one who lives in Northern Ireland can avoid the edges of violence and not have friends or relatives who have suffered terribly.

When I visit the Western Isles of Scotland which, on a fair day, I can see from the top of the hills behind where I live, I envy the normality of life and the thriving tourist industry which supports so many in that beautiful part of the world. Our part is just as beautiful, but the tourists no longer make Northern Ireland a first choice destination for a holiday break in what should be the peak season of July and August.

The huge majority in Northern Ireland greet the opportunity for a new dawn with passion. I had hoped that this Bill, hastily drafted though it was and after so many positive achievements by government in the past year, would seize that opportunity. In its present form it has clearly failed to do that and is flawed. I agree with much of what has been said by many noble Lords today, particularly by the noble and learned Lord, Lord Mayhew of Twysden, who did so much to lay the foundations on which this Bill has become feasible; and the noble Lord, Lord Fitt, who has such huge and first-hand experience of political life in Northern Ireland. His comments in these debates are always invaluable.

I welcome the Minister's commitment to bring forward amendments tomorrow at Committee stage. I hope he will capture some of the creative thinking that has been expressed here today and not repeat the negative mantras—that it is not in the letter of the Good Friday agreement—and that the Government cannot touch the independence of the Independent Commission on Decommissioning. The plausible reassurances spoken by the Prime Minister at various moments of pressure during the past year are just not contained in the drafting of this Bill.

I believe that the majority consensus of noble Lords who have spoken want the Government to indicate a more specific timetable for decommissioning. Expressions like, "a matter of days", "a few weeks" or "as soon as practicable" are not good enough. Everyone admires the commitment and the independent skills of General de Chastelain. In fact, I understand he is an accomplished player of the pipes—I am not sure whether they are the Ilian pipes or the Scottish pipes; perhaps both—but he has put aside his favourite hobby for the duration of his task in case his music is perceived as partisan to one side or the other.

However, I am sure his commission would not object to having further directions from government for the next vital stages of decommissioning. After all, only last month the Government asked the commission to delay and possibly amend its recent report.

I believe that the consensus today is that the procedures in this Bill for the suspension and review of the executive are too cumbersome, too uncertain and contain too many cul-de-sacs. It is a dangerous maze. As the noble Viscount, Lord Cranborne, put it, if this part of the Bill is to inspire confidence it must be in cast iron and automatic.

The Bill must contain some reassurances, also in cast iron and not in candle wax, on the suspension of prisoner releases. It can be done, as many noble Lords much more experienced in drafting legislation than I have said. Unless some concessions along those lines are brought forward in amendments tomorrow, the Unionist Party, and its leader in particular, will be put in an impossible position. Comments and spin from Sinn Fein today and in recent days are ominous and threatening for much of what this Bill is trying to achieve.

I hope that the Minister and his colleagues in government will reflect deeply on what has been said here today and that he will not repeat the fudges, but will amend this Bill in a form that can be embraced by all parties in Northern Ireland.

6.5 p.m.

My Lords, I wrote to the Minister with apologies to say that I would be five minutes late. Unfortunately, there was a two-hour delay from Brussels. I apologise deeply to him and to the House and ask whether I may be allowed to speak.

My Lords, despite judicious leaks to suggest that Sinn Fein/IRA is ready to try to persuade the IRA (as one Siamese twin to another) to decommission something sometime, the IRA remains loudly silent when it could so easily have spoken. That loud silence does nothing to reassure Unionists who are being urged from every side to take the leap of faith when all they have heard for the past three years is the repeated statement that the IRA will never decommission, though it demands the. demilitarisation of both Army and RUC.

What is the relative score in the game of Sinn Fein/IRA versus the civilised world as a result of the Belfast agreement? The political goal they share with the SDLP is greater power in Northern Ireland for the Catholic minority and the creation of cross-border institutions which could lead to a united Ireland. Though those last have created some disquiet for the majority, they are perfectly respectable aims, and less alarming than they might once have been because of the Dublin Government's commitment after a referendum north and south to accept that so long as the majority in Northern Ireland so wish, Northern Ireland will remain a part of the UK. But the legislation to abolish Articles 2 and 3 of the Irish constitution will only be, as I understand the Belfast Agreement, put through the Dail on the day the d'Hondt procedure triggers the creation of the new Northern Ireland Executive, where Sinn Fein/IRA expects two ministerial seats because of the 16 per cent vote it secured in the North.

So the Unionists have no guarantee yet of that vital quid pro quo. Sinn Fein/IRA meanwhile achieved three other vital objectives; the release of prisoners largely complete, many of them highly skilled terrorists with no other skills; a review of the RUC with the object at best of replacement with the people's police of paramilitaries, allegedly more closely attuned to the community, and at least of reducing and disarming it, in the name of the organisation. They also secured an inquiry into Bloody Sunday and a significant withdrawal of British forces from British soil. What quid pro quo has there been?

Martin McGuinness was named last year as Sinn Fein's link to the de Chastelain commission. We might have thought he would be talking about decommissioning. In fact it is said that he has never talked to the IRA about decommissioning. What then has he been discussing all these months with the general? I hope we shall now see the de Chastelain report. The Prime Minister said after the Belfast agreement, reassuring the Unionists who found nothing but vague and pious hopes about the end of violence and decommissioning in the Belfast agreement, that there would be no fudge with terror. But there has been. He said that the factors to be considered when deciding whether the terms of the agreement were being met on the release of prisoners should include an end to bombings, killings and beatings, the progressive abandonment and dismantling of paramilitary structures actively directing and promoting violence and full co-operation with the Independent Commission on Decommissioning to implement the provisions of the agreement.

The beatings, the killings and the exiles have continued, even though the IRA could have stopped them completely in the run-up to the election. Can anyone wonder that the Unionists cannot believe that anything will change just because the Prime Minister now believes in a seismic change and Mr Ahern tells us that there has been a deeply important change in the Sinn Fein position and a hugely positive contribution to the search for compromise? Could we not be told by the IRA now that it is thinking again? Why does that have to be a secret? Why do we have to legislate when we do not know? What are we to make of the fact that over this critical weekend Mr Adams and Mr McGuinness were not in Northern Ireland, but were talking to the National Security Council in Washington?

The leaders of Sinn Fein/IRA have an agenda that they have put through with great success. It does not include decommissioning and they have said so. They have recently demonstrated to their people and to the world that they have been able to force two sovereign governments to abandon their duty to law and order and to give an amnesty to murderers. While claiming to be caring terrorists, they have not delivered the bodies of innocent members of their own community—not opponents killed on the field of battle.

I do not know whether the Unionists will take yet another of the steps that they have been urged to take by three governments and by many in Northern Ireland of all persuasions. I deeply admire and respect what my noble friend Lady Denton of Wakefield said. She knows far more than I do about the feeling of the Province. I am looking at the issue from the outside, but we and the Government have a responsibility.

It is essential that the two governments put as much pressure on the SDLP as they have put on the Unionists to stay in government if Sinn Fein/IRA fails, as it surely will, to deliver on decommissioning. I understand that Mr Hume has so far said neither yea nor nay. He needs to be persuaded to say that he is going to stay. The Sinn Fein/IRA leaders must not be allowed to get away with murder yet again or with destroying the agreement now that they have got all that they want and their pay-off time has come.

The Irish Government should give a formal public commitment that if the Executive is stalled because of Sinn Fein/IRA's failure, they will still legislate on Articles 2 and 3 at once. Why should the Catholic Republicans who do not support the IRA and the ordinary Unionist population of Northern Ireland lose their guarantee of stability?

In the speeches that I have been able to hear, many noble Lords have said that a fixed timetable must be set—not referring to two or three days or two or three weeks—for Sinn Fein to deliver the IRA's commitment. It is undesirable to shelter behind an independent commission. Sinn Fein/IRA should not be allowed to hold out hopes that it has no intention of fulfilling. Sinn Fein's inclusion in government was important to the agreement not because it was a small party with 16 per cent of the vote, but because it spoke for the IRA. It has never mentioned the IRA's subsequent comment that, as the IRA was not part of the agreement qua IRA, it has no obligations to meet the conditions of the agreement. Surely the SDLP can speak and act for all Catholics.

Our Government must stop appeasing the IRA for fear of a bomb in mainland Britain. The Irish Government must stop appeasing it for fear of Sinn Fein members being elected to the Dail. They should also recognise that many in the South are now fearful of the IRA and would love to see something done about it. The American Government should start wondering what the average American would think about the Oklahoma bombers being asked to stand for Congress.

Gerry Adams—that statesman—is the same Gerry Adams who ordered the murder of people such as Jean McConville and who recently told the families of the disappeared that, although they would get some bodies back, they must bury them quietly and without fuss. Does that sound like a civilised statesman?

The Unionists have every right—and indeed duty—to stand for promises being kept and for law and order to be guaranteed for the ordinary citizen. That includes the families who have been forbidden for so many years to speak of the disappeared. That is a shame and a disgrace. They should not be the scapegoats for the failure of governments, North and South, to face down cowardly murderers who have learnt to manipulate democracy for their own ends.

Democracy has to be worked and fought for. If the Executive has to continue without Sinn Fein/IRA, I fear that we can expect a return to violence. We shall certainly be threatened with it. We shall have to be prepared to act against the IRA in any way that is necessary. I hope that our defence forces policy will be amended to recognise the possible need for a return to a major military commitment to protect the population and keep the peace. I do not want that to happen, but it could.

The situation cannot be resolved by spin, particularly as in Sinn Fein/IRA we have the master spinners. I find it hard to understand the point of assuring the Unionists that they can put forward amendments and that they will be listened to and consulted and then voting them down. I was happy to hear that the Minister has given assurances that that grave error may be partly redressed by accepting appropriate amendments in this House. I hope that we can rely on the Government to do that.

6.16 p.m.

My Lords, I congratulate the noble Baroness, Lady Park of Monmouth, on her safe, if not speedy, return from Brussels. I thank the Minister for his introduction. Over the past 18 months or so we have debated many Bills relating to Northern Ireland. In the complexity stakes this must be one of the most difficult.

Like many others, I am grateful for all the effort that the Prime Minister has devoted to the Province over the past two or three weeks. I was sorry that he was unable to attend the opening of the Scottish Parliament, the establishment of which was one of the main planks of his party's manifesto. He should have been there. He has since postponed an official visit to Poland. However, in spite of all his efforts, their culmination in the Bill is far from satisfactory.

If the Bill is successful, the Prime Minister will rightly be given the credit. However, if it is unsuccessful, the blame will inevitably fall on Northern Ireland's locally elected politicians. I am not a member of the Ulster Unionist Party and I have criticised its policies in the past. However, over the past year or so I have had nothing but admiration for the courage, imagination and flexibility of its position. I pay particular tribute to David Trimble, Ken Maginnis and Sir Reg Empey. In the short debate that followed the Northern Ireland Statement in your Lordships' House on 5th July, it was said that they had to stop the nit-picking. That is a little wide of the mark and palpably unfair. They are merely seeking to get it right.

Since the Good Friday agreement, the referendum and the Northern Ireland elections, we have had prisoner releases, the dismantling of security installations, the Patten inquiry into the RUC and, more recently, a form of immunity for the murderers of the disappeared. In return, as I have said before, Sinn Fein/IRA has given nothing—not one rifle, not one bullet, not an ounce of Semtex.

The Bill would mean that the Ulster Unionists and others had to form an Executive with Sinn Fein without any guarantee from that party or the IRA that decommissioning would happen. Sinn Fein now claims that it is a separate entity from the IRA and that it cannot force the IRA to disarm. That view appears to find some favour with the Irish Taoiseach and the SDLP. An Executive could soon be formed and power devolved to the Northern Ireland Assembly. It is easy to be seduced by the vision that in two, three or four months the Assembly and the Executive will be up and running, the guns will be silent and the war will be over. Let us not upset the applecart, in that decommissioning has yet to begin. It is surely just around the corner.

The time to fudge must stop. The line in the sand must be drawn at this late hour. There must be cast-iron guarantees in place if decommissioning does not take place. At the moment, the effect of the Bill will be that if decommissioning does not take place, the whole Assembly and the Executive will be suspended. After the review, the Assembly may vote to reconvene and to exclude one or more parties from the Executive. However, it would appear unlikely that the SDLP will support an Executive without Sinn Fein's presence. We heard some trenchant remarks on that issue from the noble Lord, Lord Fitt, earlier this afternoon.

As the noble Lord, Lord Redesdale, so perspicaciously put it in the debate last week,
"that would act as an impediment to the process".—[Official Report, 5/7/99; col. 614.]
I agree with him wholeheartedly on that. Thus, we should have the Alice in Wonderland situation of a democratically elected government being toppled not by the use of the gun, but by the possession of the gun.

We must have safeguards in place to strengthen the Bill and to render it more watertight. The refusal of Sinn Fein and the IRA to decommission must not be a reason to bring down the Assembly and the Executive. The Bill should, as an alternative, introduce measures whereby Sinn Fein is locked out of the Executive if the IRA does not decommission, but at the same time, the Assembly and the Executive should continue.

It should also be remembered that, apart from a token gesture last Christmas, the Loyalist paramilitaries have not decommissioned either. The exclusion measures currently in the Bill are no incentive for them to do so, as they do not have any representation on the Executive. For that reason, the Bill should include specific linkage between decommissioning and prisoner releases. In other words, if decommissioning does not commence in a very short and specified time, the release of prisoners from any non-complying organisation will be halted. The short specified time should be incorporated into the Bill, possibly in the form of a timetable drawn up by General de Chastelain and the decommissioning body.

Those measures and others in a similar, probably far better, vein, will make the Bill more secure. I hope that they will end, once and for all, the machinations of all those who do not wish Northern Ireland well. If such amendments are put forward tomorrow—and I sincerely hope that they will come from the Government, although I share some of the views of my noble friend Lord Cooke of Islandreagh about the difficulties therein—I shall support them.

6.22 p.m.

My Lords, I have been more or less silent on the subject of Northern Ireland for about 17 years since I spent a spell there as a Minister. I had almost decided to remain silent tonight, to your Lordships' great relief, no doubt, until I heard my noble friend Lady Denton speak. It seemed to me that she made points of such fundamental importance that they ought to be endorsed.

She said that Northern Ireland cannot be run from Westminster. That is perfectly true. Peace will not be made in Westminster; nor will it be made in Dublin. It will be made in the Province, and in the adjacent parts of the Republic of Ireland. It will not be made by Westminster and Dublin politicians. It will be made by the politicians who actually live in the Province and the parts adjacent to it, and by the shadowy figures who lurk behind them and threaten them. All we can do is to try to facilitate that process. We have been asked to do so by taking a leap of faith—a fairly considerable leap of faith in view of the state of the Bill as it comes before the House.

The Bill is intended to produce machinery whereby the process of peacemaking can be conducted in the Province. Those who have not lived there do not realise the huge task that that is. It is a great deal more difficult than it appears to those who read the newspapers in this part of the United Kingdom. We do not wonder whose footstep is passing us at midnight, and what is the sound of rattling metal at the end of the cul-de-sac where a body may be found the following morning. That is not part of our daily life. It happens in parts of Northern Ireland. People who have suffered bereavement—we mostly have not, but some here have—at the hands of terrorists, cannot imagine the difficulty of reconciling themselves to it. Let us not forget:
"Blessed are the peacemakers: for they shall be called the children of God".
Indeed, those individual people are being asked to do something astonishingly difficult. It is not up to us to blame them if they find it difficult or want assurance.

The assurance is in the Bill in the form of two processes. The first is the decommissioning process; the other is what happens if it fails. If it is to give reassurance, it must be simple, so that it can be understood; it must be dependable, so that it can be trusted; it must be transparent, so that people can see that it is happening. That means that there must be timetables and also definitions, as my noble friend Lady Blatch said, so that people will know when the process has failed. It must be believable, which is where the "totem" referred to by the noble Lord, Lord Merlyn-Rees, comes in. It is not we who must have confidence in the process—I must say that I myself have very little—but the people whose lives and livelihoods depend on the result. It is up to us to provide the criteria in which they can have confidence.

If the decommissioning process is stalled, it must be known to be stalled. The necessary next action must be automatically and immediately taken, not debated. That means that we must know when, and that must be on the face of the Bill. I said that we were asked to give the Bill a Second Reading as an "act of faith". Indeed we have, because we have been told that there will be amendments, but we know not what those amendments will be. They must be substantial because we must try to stand impartially between those engaged in the struggle in Northern Ireland. We have seen many concessions given by one side and I, for one, find it very difficult to know what concessions have been made by the other. I hope that the noble Lord, in his reply, will answer that question which has been asked by many of my noble friends and others during this debate. I hope that the reason for not revealing the amendments is that they are still being discussed with Dublin. What we do must be on all fours with what is done in the Republic and what will be accepted in the Province.

I shall not go on longer. I should like to put on record my admiration for the huge amount of energy which has been put into the search for peace. I should like to endorse the remarks of my noble friend Lady Denton. There is a great mass of people in Northern Ireland who desperately want peace, but often, demonstrating that fact in conversation or in public can put members of their families at risk. I therefore ask the noble Lord to give us every possible assurance that the process will be transparent; that the amendments will be effective in the way that I have described; and, moreover, that if the Bill fails, the remedy will be not to punish one side only, and that one group of terrorists shall not have the power to stall the whole process. I believe that if IRA and Sinn Fein are indeed a single organisation, and if the SDLP is said to be unable to separate itself from Sinn Fein, it should demonstrate that fact itself. There should be no provision in the Bill that devolved power is withdrawn if the IRA does not decommission on its own. There must be another party to that.

I have spoken for too long. I repeat that we should give this Bill a Second Reading. But what we do at the end of the day depends on what is in the amendments that the noble Lord will bring to the House tomorrow.

6.29 p.m.

My Lords, we on these Benches support this Bill, but I warn the Minister that we plan to table a number of amendments. However, I am in somewhat of a quandary because I believe that our amendments have merit but, as the Minister said, some amendments will be brought forward by the Government. However, I believe that ours will be taken on board by the Government.

The purpose of the Bill is quite obvious; namely, it is a confidence-building measure as the process has reached an impasse. It seeks to give the Ulster Unionists the confidence to take the next step; that is, for Mr Trimble to set up the Executive. I believe that the impasse has existed ever since the Good Friday agreement was signed. The nature of the wording of the Good Friday agreement has led to the difficult scenario that we face at the moment; namely, no inclusion without decommissioning. However, on the other hand, the Good Friday agreement does not include the proviso of decommissioning for the Executive to be set up.

The Bill is an amendment to the Good Friday agreement. We should not forget the purpose of the Good Friday agreement. It is easy to look too closely at its detail and forget the purpose. I believe that the Good Friday agreement is the only path to a devolved and inclusive government in Northern Ireland, and that inclusive government is the only way to attain a sustainable peace in Northern Ireland. The noble Baroness., Lady Denton, in a particularly fine speech expressed her confidence in the views of the majority of the people who live in Northern Ireland and their wish for peace. It is perhaps time that the politicians of Northern Ireland started to listen to the views of the majority rather than sticking to the particular wording of agreements.

The Bill has been brought about, and would only be enacted, in a worse case scenario. It will allow the process to continue and it allows other parties to enact the process. However, I do not think that anyone in this House or anyone in Northern Ireland believes that if the Bill is enacted the peace process will not have been dealt a heavy blow. The issue which has attracted the most attention this afternoon is that of decommissioning. A deadline has been set for May 2000.

My Lords, I am grateful to the noble Lord for giving way, but he has just said that this Bill would not be enacted except in the worse case scenario. My understanding is that it is likely that this Bill will be enacted the day after tomorrow. That is not the worst-case scenario; or, rather, it would be the worst-case scenario if it was enacted without our amendments.

My Lords, the noble Baroness has put forward her opposition to the Good Friday agreement. If her viewpoint is that decommissioning, or a form of decommissioning, will never take place, she obviously has no faith in the signing of the Good Friday agreement in the first place.

My Lords, that is such a parody of what my noble friend has said. She just corrected what the noble Lord said in a matter of fact. Then the noble Lord waffles on about the Good Friday agreement and gets it horrendously wrong.

My Lords, there is obviously a difference of view between our two Benches on the purpose of the Good Friday agreement.

My Lords, I am sorry. I can only allow someone to intervene in the speech of the noble Lord, Lord Redesdale, if he consents to give way, which he did not.

My Lords, I very much hope and expect that the process of decommissioning will start soon after the devolution order is enacted. I very much hope that some time next week we shall see the first moves towards the process of decommissioning taking place. It will be up to General de Chastelain to say whether or not decommissioning is taking place. There are of course many problems with decommissioning. I believe that many noble Lords have mentioned the problems of assessing whether full decommissioning has taken place. Indeed the IRA has a slogan which will cause it much difficulty if decommissioning is to take place; namely, "not one ounce and one bullet". If one ounce or one bullet is to be decommissioned, will that in a philosophical sense signify the decommissioning of the entire arsenal?

Another issue that has been raised concerns the release of prisoners. We on these Benches believe that the release of prisoners cannot be included in this Bill. In another place the prison sentences legislation was mentioned as a reason to halt prisoner releases. However, it is our view that the release of prisoners is bound to the cease-fire and that prisoner releases should be halted only on the breaking of the cease-fire.

I echo the sentiments expressed by the noble and learned Lord, Lord Mayhew, and the noble Baroness, Lady Denton, on the restraint shown by those taking part in the Drumcree march. The newspapers reported how few instances of violence occurred this year as opposed to the same occasion last year.

This Bill does not just contain provisions as regards a failure of Sinn Fein to decommission. It will assure all parties not just that decommissioning will take place but that all the political commitments in the Good Friday agreement will be met.

6.37 p.m.

My Lords, I am grateful to all noble Lords who have taken part in this debate, especially those who supported the intentions of the Bill. Before I deal with some of the specific points that have been made I shall answer the question that has been put by a number of speakers concerning government amendments.

This afternoon the Prime Minister gave an indication of the amendments that the Government are thinking of introducing tomorrow. He said that the Government would table amendments today in line with the Good Friday agreement that will reflect many of the comments that were made on all sides of the House in the debate yesterday. Those amendments will focus upon making sure that decommissioning takes place in accordance with the timetable to be laid down by de Chastelain; will make it clear that any breaches of that timetable will lead to the automatic suspension of the institutions; and will ensure that we can clearly and formally identify the parties that default either in decommissioning or in devolution.

I appreciate that I was asked for more specific information. But I think that the House will understand that the Government are still discussing and considering the precise wording of the amendments. It is a little too early at this point for me to be able to indicate with absolute clarity what those amendments will be. I do not wish to raise the hopes of your Lordships that the Government will reflect in specific amendments all the points made in the speeches. I do not want to leave the House with such high hopes. We are committed to bringing some amendments forward.

My Lords, I thank the Minister for giving way. What he has described as "the amendments" are surely what the Bill is already, as he described it to us in his opening speech.

My Lords, I think we will go further than that. I was quoting what my right honourable friend the Prime Minister said today. The noble Lord is enough of an old hand at this business to know that I cannot at this stage go any further. Of course he realises that. It is a good try but I am not going to fall for that one.

My Lords, I am grateful to the Minister for giving way. He has, as usual, tried to be as helpful to the House as he possibly can. But perhaps he could help us a little further, if not now then a little later on. Can he give the House some indication of when the wording of the amendments might be available? If it is to be later tonight, that would be helpful to those of us who wish to take part in the remaining stages tomorrow. We need to consider not only whether we can go along with the amendments—which I hope will be possible—but, if we cannot, what our reactions will be.

My Lords, I will certainly do my best to find out and try to give an answer—if an answer is available—before I sit down. The noble Lord will appreciate the difficulties. Discussions are still going on and, indeed, in fairness to this House, it is only right that the Government should also consider what has been said here today. That may influence any amendments the Government may feel able to bring forward tomorrow. If I can be helpful to the House before I sit down I shall certainly endeavour to be so.

Noble Lords, of course, have understood the enormous efforts which the Prime Minister and the Secretary of State have made in order to give effect to the Good Friday agreement and to take it further. No one can say that the Prime Minister has not put all possible effort into trying to bring the matter forward.

A question was asked about the position of the SDLP. It is not for the Government to comment on the views of the SDLP. I shall simply refer your Lordships to the speeches made by both John Hume and Seamus Mallon in the other place yesterday for an indication of how the SDLP will take this forward.

The Government do not appease the IRA; we do not appease any paramilitary organisation. We are seeking to bring forward a permanent peace for Northern Ireland on the basis of an agreement that was supported by the vast majority of the political parties in Northern Ireland. That is what we are seeking to do. I believe firmly that the Good Friday agreement and what we have done since represents an attempt to achieve a balance in Northern Ireland—not simply to put pressure on one party, but a balance—and all sides had to make concessions and compromises in order to reach the Good Friday agreement. That is still the case. I do not know whether it would be particularly helpful for me to go through a list of concessions made by one side or the other; they are certainly in the Good Friday agreement and will be known to your Lordships. I do not believe that the pressure has been all one way; the pressure to move forward is on all sides in Northern Ireland, not only on the Ulster Unionists. I agree that Mr Trimble is in difficulties and that a lot of pressure has been exerted on him for the last little while.

Before I deal with specific points, perhaps I may give the noble Viscount, Lord Cranborne, an answer. We will try to get out the amendments by this evening. However, they are still under discussion. If I have any further information before I sit down, I shall certainly give it to the House.

My Lords, perhaps I may intervene on that one point. Can the Minister say whether or not an indication of the nature of the amendments at the very least will have been relayed to Mr Trimble so that it could possibly be of help to him during the course of his meeting?

My Lords, I am being asked all kinds of specific questions. I cannot give an absolute undertaking that that is the case. If I can give the noble Lord any undertaking to that effect before I sit down, I shall certainly do so. The House will appreciate the difficulties we are in with trying to move forward on the basis of the debate yesterday in the other place. We are trying to move forward in terms of the specific amendments which will be forwarded here today. That involves a great deal of discussion and consideration of the issues. I do not want to build up enormously high hopes that all the wishes of this House can be met; I am sure they will not be. A few of them may be; I cannot go any further than that.

Before dealing with the specific points, perhaps I may welcome the noble Lord, Lord Glentoran. I think this is the first occasion on which he has spoken for the Opposition on Northern Ireland issues since he was appointed to his post. Certainly it is the first time he has taken part in a formal debate. I welcome that. We have already had some informal discussions—I am sure they will continue—and I congratulate him.

I also thank the noble Lord for what he said about wanting to continue a bipartisan policy. It was slightly frayed at the edges on occasion, I would say, but—

My Lords, he is saying no; he is shaking his head. I welcome the fact that the noble Lord wishes to continue the bipartisan policy. We certainly wish to do so. It was a policy to which we adhered when we were in opposition and we would wish it to continue. We need a bipartisan policy not for the benefit of any party here but for the benefit of the people of Northern Ireland.

My Lords, I thank the Minister for giving way. The point is sufficiently important to restate. My right honourable friend Mr Mackay was criticised by the government party last night for edging towards a break in the bipartisan relationship. I state firmly on behalf of my party that we are right behind the Government in what they are doing. The bipartisan agreement stands firm.

My Lords, I am most grateful for that. I appreciate what the noble Lord said.

He commented that the Prime Minister has been unable to move Sinn Fein on decommissioning. Although I very much reject that conclusion, the issue is at the heart of what we are seeking to do with the legislation. The test will come very quickly once the legislation is in place.

Perhaps I may take as one of my themes something that the noble Baroness, Lady Blatch, said in her speech. She said "We have to test the intentions of the paramilitaries". That is precisely what this legislation is about; we are testing the intentions of the paramilitaries. By moving forward in this way—hopefully with the agreement of the Ulster Unionist Party and other parties—the intentions of the paramilitaries will very quickly be put to the test. That is the justification for this legislation.

My Lords, I am grateful to the Minister for what he said. However, the point I was making is that the paramilitaries will be tested clearly and in a transparent way only if the amendments are included in the Bill. If they are not, it will not be possible for us to make clear judgments about whether or not there has been a breach and whether or not the paramilitaries are serious about decommissioning.

My Lords, I understand what the noble Baroness is saying. If I were to respond to her in detail we would be having the debate that we are bound to have tomorrow. I think she will appreciate that we shall have to keep tomorrow's debate for tomorrow and to confine ourselves more to the general principles, albeit I shall have to answer some of the points of detail because of the questions that were put to me in the course of the debate.

Another key point was made by the noble Lord, Lord Molyneaux, and by many other speakers today. That is the allegation that we are penalising the innocent; not so; emphatically not so. The Good Friday agreement has a procedure within it whereby these matters can be resolved by the review process. The Bill triggers an automatic move towards the review process if there is a breach of the modalities of decommissioning by any of the organisations with which the decommissioning body has been dealing. If there is such a breach, the procedure will be automatic.

My Lords, if the IRA does not decommission, under the terms of the Bill the Assembly will be suspended. That seems to be a case of the good guys being clobbered because the bad guys misbehave. Surely it should be the bad guys who are suspended, not the good guys; or am I being incredibly stupid?

My Lords, of course I shall not say yes. We do not have an Assembly at present. What we have said is that the legislation will take everyone back to where we are now. So there is no loss in that. Secondly, the review process will enable the Northern Ireland parties to decide whether they wish to exclude from ministerial office any members of any particular party in the Assembly. That is a process which will then lead to the possible exclusion—it may not—of members of a party from an assembly. If it were not done that way, how could there be an assembly based on consent and on both communities in Northern Ireland being represented? How can that be done unless the majority on each side agree that that is a decision that they want to take. We cannot impose it upon them. They must do it for themselves. We are setting up the context in which they can do that. It is up to the local parties and politicians; if they wish to penalise only those who; are in breach, they will have every opportunity of doing so. We are providing the context that will enable that to happen.

As I said earlier, we are putting pressure on all (he parties, and have done, both in the period up to the Good Friday agreement and since. That is my response to the noble and learned Lord, Lord Mayhew, who said that the temptation is to put pressure on only one party. Yes, at any given point more pressure may be applied one way or another. But taking the totality of what has gone on since the Government took office, we have put pressure on all the participants in an even-handed manner.

My noble friend Lord Fitt asked about General de Chastelain and the commission. The general's report is in the Library and is available to any Member of this House who wants to see it. The commission has been very active in Northern Ireland in dealing with the complex circumstances surrounding the issue of decommissioning. The annexe to the commission's report on 2nd July sets out some of the activities. If the noble and learned Lord would care to refer to that annexe, he will see what the details are. As the report makes clear, the commission is ready and willing to play a central part, as envisaged in the agreement and the joint proposal published by the two Governments on 2nd July, The Way Forward. The commission is prepared to move forward in the way that I have indicated.

The noble Lord, Lord Tebbit, asked a series of specific questions. I shall attempt to deal with the main ones. He suggested that somehow I did not have confidence that those who are on cease-fire would stay on cease-fire. He referred particularly to the IRA. I should regret it if my opening remarks were taken as implying a lack of faith in the intentions of others. If we do not move forward with an Assembly and do not give effect to the Good Friday agreement, there will be a local political vacuum in Northern Ireland. There is a danger that the paramilitary organisations, some of which are not presently on cease-fire, will fill that vacuum. The sooner we have a functioning Assembly, with local Ministers responsible for local matters in Northern Ireland, the sooner we can weaken further the position of the paramilitaries in their local communities. That is the philosophical basis for saying that, if we do not move forward, there is a danger that violence might increase again in Northern Ireland. It is that very outcome that we intend to avoid.

The noble Lord also asked about timing. He asked why we do not delay the formation of an Executive until after the first progress made by General de Chastelain in terms of decommissioning. I think the noble Lord understands that we are seeking to sequence the appointment of the Executive and the start of decommissioning. That has dogged the process for many months. We believe that, by the process of sequencing, we can help those involved to achieve a breakthrough, which has so far eluded us on the decommissioning process.

My Lords, the Minister says that this is a matter of sequencing. He gives as his reason for putting the formation of the Executive before the start of decommissioning the possibility that something nasty might happen if it were the other way round. But surely, if Sinn Fein is committed to peace, it would not mind a scrap if the sequence were reversed.

My Lords, for 15 months since the Good Friday agreement we have been waiting for it to happen the other way round. Because that has not happened, we are now seeking to make progress in the way indicated. What we are talking about, and what the Prime Minister and the Taoiseach made clear is, that we are talking about progress within days of the Executive being set up—I repeat, within days. There is enough at stake to say that it is worth waiting a few days, because we shall then know exactly whether people are as good as their word and whether the process of decommissioning will start across the board for all the organisations in Northern Ireland which have illegal bombs and weapons. That seems a very reasonable proposition. Given how much is at stake, it is worth waiting just a few days to see whether people will deliver. That is the point.

The noble Lord, Lord Tebbit, said that those who threatened violence should be excluded from government. I have already dealt with that point, but the noble Lord referred specifically to the position as regards prisoners. The noble Lord quoted the Prime Minister. I do not believe that the Prime Minister has broken his word at all. It is precisely because the Prime Minister is endeavouring to achieve exactly what he said that we are dealing with this piece of legislation—in order to have the start of decommissioning for all parties in the Executive and others. It is not fair and proper of the noble Lord to suggest that the Prime Minister has not been true to his word or has not lived by his undertakings.

The noble Lord, Lord Tebbit, also referred to an article that appeared in last week's Sunday Mirror about a prisoner who was released and about a threat made by that person. Of all the prisoners who have been released in Northern Ireland under the scheme in the sentencing legislation, not one, so far as I am aware, has returned to terrorist violence. Two have committed non-terrorist offences. Beyond that, we have no evidence that any have done so. I believe that the article in the Sunday Mirror referred to someone whose surname was Magee, but it was not the Patrick Magee of whom the noble Lord made mention. I am trying to clarify the position.

My Lords, I am grateful to the noble Lord for giving way. I did not mention anyone's name. I said that, clearly, the transcripts of the tapes as they were reproduced in the Sunday Mirror indicated that a particular prisoner was absolutely committed to continuing the armed struggle, and he was released. It was not appropriate to take the matter forward; however, at some time it would be appropriate to inquire whether the Secretary of State was aware of the views expressed by that prisoner at the time of his release.

My Lords, I am not sure that it is helpful for me to proceed with this matter. I shall ensure that the noble Lord is given more information. However, I repeat, it is my understanding that the Sunday Mirror got hold of the wrong individual. If people are released under the Government's scheme for the early release of prisoners, the independent body that is supervising the process has to be satisfied that the prisoner will not resume paramilitary violence. It is on the understanding that they will not resume violence that these people are being released. So if there were an indication that a prisoner in that category had made that comment, I would be very surprised if the independent body would have designated him for release.

The noble Lord, Lord Tebbit, and other noble Lords asked for a definition of "decommissioning". It applies to paramilitary organisations. It has nothing to do with arms legally held by the police or the Army. It is to do with guns and bombs held illegally by paramilitary organisations. The wording in the Good Friday agreement refers to the total disarmament of all paramilitary organisations. The joint statement of 2nd July refers to the decommissioning of paramilitary arms. There is no question but that it does not refer to any weapons held by the police or the Army in Northern Ireland.

A number of noble Lords asked how General de Chastelain can be "held to account"—I believe that that was the expression. As a noble Lord intervened to say earlier, he is held in the highest possible regard by all parties in Northern Ireland. I am not aware that anybody has cast doubts on the general's integrity or the thoroughness of his approach. I am not aware of anybody who lacks faith in his ability to do what is being asked of him.

But it is an independent body appointed by the British and Irish Governments. Under the agreement establishing that body, General de Chastelain is required to report periodically to both Governments and through whatever mechanisms they may establish for that purpose, the other participants in political negotiations in Northern Ireland. Therefore, it is clear that proper arrangements are in place. The general has the total confidence of the Government and, I believe, until the debate today, of everybody else who has been concerned in the affairs of Northern Ireland.

As regards co-operation between the British and Irish Governments and the question asked by the noble Baroness, Lady Blatch, they have been working very closely together. We are entirely at one on the policy and process that we are discussing. We are continuing to maintain close contact at all levels. The Irish Government share entirely our commitment to implementing the Good Friday agreement as soon as possible. We have kept them in touch with developments on this Bill and we continue to do so. We have not formally sought their agreement to it: we seek that only from Parliament.

The noble Viscount, Lord Cranborne, in a very interesting speech, referred to the position of the SDLP. I believe that I dealt with that in saying that it is not for the Government to deal with what that party believes. I refer the noble Viscount to the comments made in the debate in the other place. He said that he was suspicious that we were giving way to terrorists. That is emphatically not so. We are not giving way or conceding to them; we are trying to maintain total integrity in the process that we are putting forward.

I say to the noble Viscount, Lord Brookeborough, that General de Chastelain is dealing with the disarmament of all paramilitary organisations, loyalist and republican, and not just with the decommissioning of IRA weapons. He is dealing with the problem across the board.

The noble Baroness, Lady Blatch, asked why there was a hurry. I believe that the answer is clear. Fifteen months have elapsed since the Good Friday agreement. It is simply not proper that we should wait and do nothing. We have made repeated efforts. We made them at Hillsborough some weeks ago. As a Government we have made repeated efforts, in concert with the Irish Government, to bring the Good Friday agreement forward to enable an assembly to be set up. The experience of that agreement is that by setting a deadline it concentrated minds and we achieved that agreement. I do not believe that that would have been achieved had not Senator George Mitchell set a deadline for the local politicians. I believe very much that by setting a deadline now we are increasing the chances of moving forward. To say that we are in a hurry after 15 months is misjudging the time-scale.

I am very pleased that the noble Baroness, Lady Denton, spoke this evening. I am delighted that she is here and at what she said. I smiled at one point when she spoke about if she were doing my job in Northern Ireland. People there remember her with enormous respect and affection. I am frequently asked about her and how she is. I pass that on in public. She was held in very high regard. Hers was a difficult act for me to follow in taking over at least some her responsibilities when I had the privilege of being appointed to my job.

My Lords, I thank the noble Lord for that. I shall be grateful if he will convey to those people the affection in which I hold them and to wish them every success in this final manoeuvre.

My Lords, I shall certainly make sure that that message is passed on to the many friends of the noble Baroness in Northern Ireland. I very much agreed with her speech. She said that what we were doing was for those who want peace. She was quite right. The overwhelming majority of people in Northern Ireland want peace. They want it desperately because peace represents a proper way forward for them and their children. They have suffered too long. I share very much the sentiments that she put forward. I agree with her—I referred to it in my speech—that we had two weekends which could have been difficult because of the marches. People on both sides showed restraint and they are to be congratulated on that. It has made the way forward much easier than if there had been the tension that surrounded Drumcree and other places in previous years.

The noble Lord, Lord Moran, asked about Articles 2 and 3, as did other noble Lords. The position is that the international agreement attached to the Good Friday agreement makes clear that those articles will be repealed when the agreement comes into force at the same time as the transfer of powers in Northern Ireland which, under the timetable referred to in the Prime Minister's statement, will be next Sunday. Our own constitutional changes in Sections 1 and 2 of the Northern Ireland Act 1998 come into effect at the same time. There is no slippage on that.

I believe that I have dealt with the point made by my noble friend Lord Merlyn-Rees about the decommissioning commission. There is full information about that in the report that was published recently.

The noble Baroness, Lady Park, said that the Sinn Fein/IRA agenda does not include decommissioning. As The Way Forward makes clear, all the parties have reaffirmed three principles, one of which was the decommissioning of all paramilitary arms by May 2000. If that document is put into effect, which this Bill is designed to support, we shall all know once and for all whether the IRA will decommission. We shall put it to the test. That is what many people want to see happen. It seems to me—and it commands pretty widespread support—that by putting the paramilitary organisations to the test we shall know very quickly whether or not they are prepared to decommission. That is the clearest way forward and that is why we are bringing forward this legislation. That is what the people of Northern Ireland are entitled to expect after all the waiting. They want to know whether or not the paramilitaries will decommission. If we can move to setting up an Executive we shall know very quickly afterwards, as I said a few moments ago, whether there will be decommissioning. I believe that there will be: but let us not take my belief. Let us put the organisations to the test as they have not been tested before. That is the basis for the Bill and why the Government want to move forward with it. That is why I hope that the House will give it a Second Reading.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Northern Ireland Act 1974 (Interim Period Extension) Order 1999

7.10 p.m.

rose to move, That the draft order laid before the House on 7th July be approved [25th Report from the Joint Committee].

The noble Lord said: My Lords, in short, approval of this order is required to enable direct rule in Northern Ireland to continue until the Assembly and Executive come fully into being. At the moment direct rule is due to end on 16th July, but the proposal put to the Northern Ireland parties by the British and Irish Governments on 2nd July set 18th July as the date for devolution. Therefore, if we did not approve this draft order there would be a hiatus in the governance of Northern Ireland, albeit for two days.

While we fully intend devolution to take place on 18th July, we believe it to be prudent to extend direct rule for a full year against the possibility—a small one, we hope—that devolution does not take place according to the time-scale proposed by the two Governments. Therefore, while approval of this order in theory results in direct rule being renewed for a whole year, in practice the Government hope and expect that it will be suspended by devolution on 18th July.

The people of Northern Ireland need and deserve political structures which are more accountable to them and more responsive to their needs. Against this background, we fervently hope and trust that this will be the last time that it is necessary for a government to come before your Lordships' House for approval of the statutory provisions that underpin direct rule. I commend the order to the House.

Moved, That the draft order laid before the House on 7th July be approved [ 25th Report from the Joint Committee]. —( Lord Dubs.)

My Lords, while supporting the Motion, we echo the words of the Minister. We on these Benches also hope that this is the last time that the order will come before the House.

My Lords, I am grateful for the support. I say with a good deal of confidence that this will be the last time that I move approval of an order of this kind. I made such an optimistic comment a year ago. However, this time I have greater confidence in it. In view of the Bill to which we have just given a Second Reading and other developments, I believe that we are talking about a delay of only two days. However, we must ensure that direct rule continues in the interests of good and proper governance.

I do not believe that this is the occasion on which to go into the history of direct rule in great detail. I am not sure that I am fully qualified to do that. However, in the political life of Northern Ireland direct rule has given rise to criticism. The Order in Council procedure for legislation is not one that most people agree, happily, fully reflects the views of the people of Northern Ireland. Therefore, I am grateful for the support of the House.

On Question, Motion agreed to.

Consolidated Fund (Appropriation) Bill

The Bill was brought from the Commons endorsed with the certificate of the Speaker that the Bill is a Money Bill, and read a first time.

Access To Justice Bill Hl

7.3 p.m.

My Lords, I beg to move that the Commons amendments be now considered.

Moved, That the Commons amendments be now considered.—( The Lord Chancellor.)

On Question, Motion agreed to.

Commons Amendments

[ The page and line refer to Bill 67 as first printed for the Commons.]

Commons Amendment

1 Clause 1, leave out Clause 1.

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. With the leave of your Lordships, I shall speak also to Amendments Nos. 3, 5 and 6. Amendment No. 5 elaborates particular objectives within the overall purpose of the community legal service. Amendment No. 3 is a consequential change to the statement of purpose in Clause 5(1), and Amendment No. 6 is simply a drafting improvement.

Amendment No. 1 removes the "principles" clause which your Lordships added to the Bill on the Motion of the noble and learned Lord, Lord Lloyd of Berwick. I approach the desirability of a "principles" clause on its merits. It may be desirable to define in statute the purpose and objectives of Part I of the Bill.

My fundamental difficulty with the existing clause is one of structure. We have set out in this Bill to make a very clear distinction between the community legal service and the criminal defence service. This reflects the different policy objectives and imperatives behind the public funding of legal services in civil and criminal cases; the different mix of services required; and the very different factors that drive demand and cost. Clause 1 is at odds with this approach, because it seeks to cover two separate schemes with a single set of objectives.

The Government's alternative approach is to include separate statements of the respective purposes of the community legal service and the criminal defence service. These are to be found in Clauses 5(1) and 13(1). They are no less effective for not appearing at the start of the Bill. The purpose of the criminal defence service is to provide advice, assistance and representation for people suspected of having committed criminal offences and for defendants in criminal proceedings. It is to provide that level of advice, assistance and representation required in the interests of justice. It is a service which must be provided to all who need it. That is the position at present and will remain the position in the future. I do not see any need to expand or gloss the statement of purpose in Clause 13(1).

The purpose of the community legal service is wholly different. It is to provide legal services that effectively meet the needs of people who have civil law problems, subject to the constraint that the available resources for the community legal service should be used in the most appropriate and justifiable manner.

The important word "effectively" was added by Commons Amendment No. 2. The community legal service fund is designed to be a rational and transparent system, based on local assessments of need and a framework of priorities for allocating the finite resources available. This contrasts with the current legal aid scheme where the only effective way to limit spending is to reduce financial eligibility or increase contributions across the board—options which this Government, in contrast to the previous government, were not prepared to take.

I said in our previous debates that I was sympathetic to much in the noble and learned Lord's "principles" clause. That sympathy is given effect by Commons Amendment No. 5, which adds specific objectives for the community legal service. The objectives are: to improve the range, quality and accessibility of services; to ensure that the services provided are proportionate to the matter in hand; and to promote the swift and fair resolution of disputes without excessive resort to the courts. The objectives about quality, access, speed and fairness all reflect concepts in the noble and learned Lord's. Clause 1.

The exact formulation about access is, however, rather different. Clause 1 says that access should not be impaired by the place where services are sought. I regret that to the extent that this implies that people who live in rural areas can enjoy the same proximity to services as those in large towns, this is unrealistic. Further, the use of the word "place" restricts the concept of access to one of geography.

Amendment No. 5, on the other hand, sets the objective of improving the accessibility of services. This shows our commitment to providing effective access through the community legal service, without tying the concept solely to the number and location of offices; in other words, it allows for new technology, outreach services, telephone advice lines and other non-traditional ways of delivering services. This Bill creates the community legal service, and we are asking it to perform in the most efficient and effective manner. I therefore submit that the hands of those delivering the services should not be tied to one model of delivery or one way of working.

I now turn to those aspects of Clause 1 which are not reflected by Commons Amendment No. 5. Most importantly, there is no specific reference to discrimination against the disabled (as in subsection (2)(b) of Clause 1). I share entirely the objective of ensuring that access to legal services is not impaired by discrimination on the grounds of disability, or indeed of race or gender. We have considered very carefully whether the Bill should include an objective about avoiding undesirable forms of discrimination. On balance, the Government have concluded chat nothing can usefully be added to the existing law. The Legal Services Commission and those it engages to provide services are already subject, as employers and service providers, to the provisions of the sex, race and disability discrimination Acts. As a public body, the commission will also be covered by the Human Rights Act which outlaws discrimination on a wide range of grounds in relation to people's access to their convention rights.

Legislation about discrimination is complex because it necessarily includes very careful definitions. It must cover both direct and indirect sex discrimination and must define the way in which complaints about discrimination are to be considered by the courts and tribunals.

An objective in the Bill about avoiding discrimination on the grounds of sex, race and disability would have to adopt the definitions of the existing legislation. Indeed, Clause 1 recognises this by referring to the Disability Discrimination Act 1995. But this would, at best, add nothing to the existing law, and I fear that it could create some ambiguity. On the other hand, anything that extended the scope of existing discrimination law—as set out in detail in the individual statutes—would require wider and more detailed consideration than is possible in the context of this Bill; it would merit separate legislation in its own right.

That said, I fully recognise the importance of providing a system that will deliver help to those who need it, irrespective of their race, sex or disability. That is why we need flexible machinery that can respond to the changing needs and priorities of the community.

Under this Bill, for the first time in legal aid history, we shall be able to address the particular needs of any part of the community, whether it be the disabled or those from an ethnic minority background. Clause 7(5) refers to "areas or communities" specifically so that the commission may target non-geographical communities. The Legal Aid Board has already directed its regional legal services committees that their strategies for assessing the needs and priorities of their communities should include a section which discusses the needs of specific client groups (for example, ethnic minorities, disabled, elderly, carers, remote communities) and advises on how best to address those needs through contracts.

The Legal Aid Board's legal aid franchise quality assurance standard also makes it mandatory that firms wishing to obtain a franchise have a written equal opportunities policy which is in effective operation. The policy must make it clear that the firm will not,
"discriminate on grounds of race, gender, religion, disability or sexual orientation in deciding whether to accept instructions from clients, instructing counsel and other experts, in the provision of services or in the selection, recruitment and treatment of staff".

I recently instructed the board to report to me by September with proposals for monitoring the ethnic origin and gender of both the clients receiving services under its contracts and the providers supplying them. I also asked the board for a report on the options for monitoring access for the disabled.

Amendment No. 5 does not replicate subsection (2)(a) of Clause 1, which refers to services that people would,
"be unable to obtain on account of their means".
This formulation has been used to define legal aid since 1949 and is currently found in Section 1 of the Legal Aid Act 1988. We are reluctant to apply the terminology of legal aid to the new schemes, which are intended to mark a radical change. In particular, the reference to "means" tends to give the sense that legal services can only be funded from a person's existing resources or by the taxpayer. This does not chime with the measures in Part II intended to enhance conditional fees and promote other new ways of funding litigation. Furthermore, the words in question seem to me too general to add anything of substance when presented as a specific objective. I read them more as a description of legal aid, and as such I think that their sense is adequately covered by the purpose statements in Clauses 5 (1) and 13(1).

The new paragraph (c) added by Amendment No. 5 draws on Clause 1 by referring to the swift and fair resolution of disputes; but it does not adopt the additional words,
"with the parties placed on an equal footing".
The difficulty I see with these words is that they could be taken to imply that the Legal Services Commission should match the spending of a wealthy private party, regardless of the importance or complexity of the case. That is simply unrealistic and would lead to the limited resources of the community legal service being exhausted on a relatively small number of cases. The community legal service will have a substantial budget and I wish to ensure that as many people as possible benefit from its services. An objective in this form could severely limit the number of people who could be assisted, which I am sure was not the intention of those who proposed it.

On the basis of those explanations, I hope that your Lordships will agree that the Government have done all they can to reflect the spirit of Clause 1 in a way that is consistent with the new structures we are seeking to create in the Bill.

Moved, That the House do agree with the Commons in their Amendment No. 1.—( The Lord Chancellor.)

My Lords, first, I welcome the Government's acceptance that a purpose clause is desirable in connection with the community legal service. I also accept the argument of the noble and learned Lord the Lord Chancellor that it should be a different purpose clause from that which applies to the criminal defence service.

I understand from the noble and learned Lord, Lord Lloyd of Berwick, that he regards this group of amendments as acceptable, even if not preferable to his own. There are certain respects in which I prefer the wording of the old Clause 1 to that of the new amendment, but I do not believe that any useful purpose would be served by my going through a legal analysis of the two different purpose clauses. Therefore, I simply say that from these Benches we are content to accept this group of amendments.

My Lords, I, too, wish to say that we agree with the judgment of the noble and learned Lord the Lord Chancellor that the purpose clause should be divided into two: civil matters and criminal matters. I recognise that the noble and learned Lord, Lord Lloyd of Berwick, has decided to accept the solution provided by the noble and learned Lord the Lord Chancellor. I have been greatly influenced by the judgment of the noble and learned Lord, Lord Lloyd of Berwick, in that matter.

The purpose clause in question, the clause which relates to civil matters, now has two weaknesses. First, it does not provide for equality of arms. The noble and learned Lord the Lord Chancellor explained why that is so. Secondly, and perhaps more significantly, it seems to me that it will now not be possible to review judicially a situation in which, on the one hand, a litigant meriting legal aid has a good case but, on the other, cannot obtain a CFA at a reasonable cost. I suppose that was the fundamental reason why the noble and learned Lord, Lord Lloyd of Berwick, tabled the amendment in the first place. Nevertheless, I agree with the noble Lord, Lord Goodhart, that the situation is such that we have decided not to press the amendment.

7.30 p.m.

My Lords, I had the advantage of reading a copy of a letter which my noble and learned friend the Lord Chancellor wrote to my noble and learned friend Lord Lloyd setting out in considerable detail his views, which he has fleshed out today. I found the letter adequately convincing and therefore I have no resistance to offer in relation to the proposals.

My Lords, since we debated this matter in detail both in Committee and on Report, I am delighted to hear from a number of noble Lords that the noble and learned Lord, Lord Lloyd of Berwick, is happy with the proposals of my noble and learned friend the Lord Chancellor.

As has been recognised in our short discussion, the community legal service and the criminal defence service have different objectives and modus operandi and therefore it is fitting that different principles should guide their operations. I believe that the noble and learned Lord deals better in his amendments with geographical access to justice generally. I refer to Amendment No. 5 and to Clause 7(5).

Finally, I want to raise a point which was mentioned by the noble Lord, Lord Windlesham, on Report. The drafting of Clause 1 places a statutory duty in that,
"Every person exercising functions … must act".
When the purpose of the exercise was to establish principles, it was not a befitting way to place it under a form of statutory duty. Again, my noble and learned friend the Lord Chancellor has dealt with that in the amendments before us. For all those reasons, perhaps I may say from the noble and learned Lord's Back Benches that the amendment has the support from this quarter of the House.

On Question, Motion agreed to.

Commons Amendment

2 Clause 4, page 3, line 11, leave out from ("grants") to end of line 12 and insert ("(with or without conditions),")

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. It is a minor drafting change. Clause 4(2) sets out specific powers of the legal services commission. It is in almost identical terms to Section 4(2) of the Legal Aid Act 1988 about the powers of the Legal Aid Board. Clause 4(2)(b) gives the commission the power to make conditional grants. The amendment removes some unnecessary words specifying conditions as to repayment. The clause as amended will continue to permit grants which have to be repaid in certain circumstances.

Moved, That the House do agree with the Commons in their Amendment No. 2. —( Lord Falconer of Thoroton.)

On Question, Motion agreed to.

Commons Amendment

3 Clause 5, page 3, line 41, leave out ("of a type and quality appropriate to") and insert ("that effectively")

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3.

Moved, That the House do agree with the Commons in their Amendment No. 3.—( Lord Falconer of Thoroton.)

On Question, amendment agreed to.

Commons Amendment

4 Clause 5, page 4, line 9, leave out ("can") and insert ("is required to")

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7. I shall speak also to Amendments Nos. 22, 23 and 26.

These amendments are intended to clarify which services will be funded under the new criminal defence service scheme, which will replace the existing criminal legal aid scheme.

The new criminal defence service scheme will cover all the main services currently provided by criminal legal aid, including representation in court when this is in the interests of justice, and advice and assistance for suspects being questioned by the police and others involved in criminal investigations.

These services are covered by Clauses 14 and 15, which define the services which the criminal defence service will be under a duty to fund and the ways in which it may fund them. Clause 13(4) looks forward to Clauses 14 and 15 and describes them as specifying the services which the commission must fund. However, it would be possible to conclude from the drafting that a distinction could be drawn between services which must be funded under Clauses 14 and 15 and other criminal defence services which might be funded. This is not the Government's intention. Amendment No. 23 clarifies the position, recasting Clause 13(4) to provide that,
"The Commission shall fund services as part of the Criminal Defence Service in accordance with sections 14 and 15".

Amendment No. 4 is a consequential drafting change to the reference to the criminal defence service in Clause 5. Amendments Nos. 22 and 26 are drafting amendments relating to the definition of "criminal investigations".

Moved, That the House do agree with the Commons in their Amendment No. 4. ( The Lord Chancellor.)

On Question, Motion agreed to.

Commons Amendments

5 Clause 5, page 4, line 10, at end insert—

("() Every person who exercises any function relating to the Community Legal Service shall have regard to the desirability of exercising it, so far as is reasonably practicable, so as to—

  • (a) promote improvements in the range and quality of services provided as part of the Community Legal Service and in the ways in which they are made accessible to those who need them,
  • (b) secure that the services provided in relation to any matter are appropriate having regard to its nature and importance, and
  • (c) achieve the swift and fair resolution of disputes without unnecessary or unduly protracted proceedings in court.")
  • 6 Page 4, line 14, leave out from ("for") to ("quality") in line 16 and insert (", and the provision of, services of the descriptions specified in subsection (2) and about the")

    My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 5 and 6. I spoke to them with Amendment No. 1.

    Moved, That the House do agree with the Commons in their Amendments Nos. 5 and 6.— ( The Lord Chancellor.)

    On Question, Motion agreed to.

    [ Motion No. 7A not moved.]

    Commons Amendment

    7 Clause 5, page 4, line 32, at end insert—

    ("(7A) The Commission may charge—

  • (a) for accreditation,
  • (b) for monitoring the services provided by accredited persons and bodies, and
  • (c) for authorising accreditation by others;
  • and persons or bodies authorised to accredit may charge for accreditation, and for such monitoring, in accordance with the terms of their authorisation.")

    My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7. I shall speak also to Amendments Nos. 8, 24 and 25 and state the position I should have adopted had the noble Lord, Lord Phillips of Sudbury, moved his Amendment No. 7A.

    The purpose of Amendments Nos. 7, 8, 24 and 25 is to confer on the legal services commission a power to charge both for the accreditation and monitoring of providers of legal services and for the authorisation of others to accredit and monitor providers of legal services.

    The amendments will also allow others who are authorised to accredit and monitor providers of legal services to charge for accreditation and monitoring in accordance with terms set by the commission. They give the Lord Chancellor the power to require the commission to discharge its powers to charge for accreditation, monitoring and authorisation and to authorise others to charge in a prescribed manner.

    The government amendments are enabling provisions, which give the commission a power to charge for accreditation services. Accreditation lies at the heart of the Government's drive to create a network of quality assured suppliers of legal services. Accreditation will show to funders and clients that a particular body meets certain standards in its work. Not all will pay for accreditation.

    I come now to what I believe will be of most interest to the noble Lord, Lord Phillips of Sudbury. I deal first with services provided as part of the criminal defence service. These will be provided by solicitors' firms, typically under a contract, barristers and possibly by some not-for-profit law centres. All services provided as part of the criminal defence service will be funded by the commission and providers will not have to pay for accreditation.

    I turn separately to services funded by the commission as part of the community legal service. These services will be provided by solicitors and barristers who will be in business for profit and by not-for-profit agencies such as law centres and citizens advice bureaux, which will not. Suppliers of services funded by the commission as part of the community legal service will not have to pay for accreditation. Therefore, the high street solicitor, or indeed any solicitor, providing services as part of the criminal defence service or the community legal service which are funded by the legal services commission will not have to pay for accreditation. I believe that is what the noble Lord, Lord Phillips of Sudbury, anticipated that he would hear from me.

    I turn to those who will provide the other help and advice not funded by the commission but which will be available through the wider community legal service. Many of these providers will be operating on a not-for-profit basis and they will not have to pay for accreditation. But there are many organisations that make a profit from the provision of legal services. These include firms of solicitors operating on a purely private basis in either civil or criminal matters. We hope that many of these firms will take part in their local community legal service networks as part of the referral network, even if they are not receiving funding under a contract with the commission. Solicitors firms and others providing legal services for a profit may choose to take advantage of the opportunity to obtain accreditation to demonstrate the quality of the services that they provide and thereby attract more business; or they may be required by regulators or client groups to meet quality standards. That may be particularly appropriate in the field of immigration advice where there is concern about the quality of services provided.

    The commission will be well placed to accredit, or authorise others to accredit, profit-making providers of legal services—I repeat, which it does not fund—and to ensure that appropriate and consistent quality standards are applied across the field of legal services.

    We believe that it would be wrong to expect the taxpayer to meet the costs of accrediting and monitoring those individuals and bodies who seek accreditation as a means of increasing their profits arising out of non-publicly funded work.

    7.45 p.m.

    My Lords, I am grateful to the noble Lord the Lord Chancellor for giving way. He referred to cases which the legal services commission does not fund. There are, of course, two ways in which it can fund: either it funds the individual who then obtains legal aid services from a firm of solicitors or it can fund the firm direct. That is borne out in Clauses 14 and 15 of the Bill. I understand the noble and learned Lord to be saying—indeed, it would be logical—that whichever form of legal aid funding is obtained, whether to the individual or to the solicitors' firm which provides services to the client, either way there will not be a charge for accreditation and monitoring.

    My Lords, that is certainly my understanding. The power for the commission to charge for accreditation services where the firm in question seeks accreditation for the purposes of promoting its business outside funded work is in a different category. But it is right to charge for such accreditation services and it will be for the public benefit because the consumer will have the advantage of an assurance of the quality of the service without the taxpayer having to foot the bill for accreditation.

    However, wherever the commission seeks to exercise this power within the limits that I have described, it will simply be seeking to recover its costs in providing the service and not to make a profit. I hope that that is a sufficient explanation of the Government's intentions from these provisions.

    Moved, That the House do agree with the Commons in their Amendment No. 7.—( The Lord Chancellor.)

    On Question, Motion agreed to.

    Commons Amendment

    8 Clause 5, page 4, line 34, leave out ("(7)") and insert("(7A)")

    My Lords, I have already spoken to this amendment. I beg to move that the House do agree with the Commons in their Amendment No. 8.

    Moved, That the House do agree with the Commons in their Amendment No. 8.—( The Lord Chancellor.)

    On Question, Motion agreed to.

    Commons Amendment

    9 Clause 6, page 5, line 3, at end insert—

    ("() The Lord Chancellor shall lay before each House of Parliament a copy of every determination under subsection (2)(a).")

    My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9. This amendment inserts a new subsection in Clause 6. Clause 6 deals with the community legal service fund that will replace civil legal aid. The new subsection places a duty on me to inform Parliament whenever I make a determination about the net budget for the community legal service fund.

    Clause 6(2)(a) requires me to pay to the legal services commission such sums for funding services as I determine are appropriate. In practice I will determine an annual net budget for the fund each financial year. This figure will be published as part of the Government's spending plans and in supply estimates, and laid before Parliament in that context.

    It would also apply should it ever be necessary for me to change my mind during the course of the financial year and make a fresh determination increasing or decreasing the budget. There has been a great deal of debate, both in and outside Parliament, about the danger that an unexpected overspend on the criminal defence service could eat into the community legal service budget.

    The Government have explained how, on the one hand, contracting will help achieve better value for the money spent on criminal defence services and make that spending more predictable, while on the other hand precluding large and sudden cuts in CLS spending. However, we have equally made clear that no responsible government could guarantee to ringfence a particular spending programme against any unforeseen contingency. In the interests of transparency, however, I undertook in this House to inform Parliament if I ever made a significant in-year change to the budget for the community legal service fund.

    Following a suggestion made by the National Consumer Council, Amendment No. 9 places this undertaking on a statutory footing. It is yet another example of this Government listening and responding to those who, while they are genuinely supportive, and generally supportive, of our reforms, have particular concerns and come forward with sensible suggestions to meet them which we feel able to accept.

    Moved, That the House do agree with the Commons in their Amendment No. 9.—( The Lord Chancellor.)

    My Lords, as the noble and learned Lord the Lord Chancellor well knows, our great concern—probably our greatest concern in the whole of the Bill—was the fact that increases in the spending on the criminal defence service which are not cost-limited might eat severely into the budget for the community legal service which is cost-limited, and the total budget from the Lord Chancellor's Department which is also cost-limited.

    That remains a severe worry and this amendment does not do anything of significance to prevent it from happening. Nevertheless, I accept that transparency is desirable in cases of this kind and I welcome the amendment so far as it goes. We are not in a position to press the matter further on the subject of our main worry.

    On Question, Motion agreed to.

    Commons Amendment

    10 Clause 9, page 7, line 14, leave out ("requiring the furnishing of information or imposing other") and insert ("imposing")

    My Lords, I beg to move that the House do agree with the Commons in their amendment No. 10. This is a minor drafting amendment to Clause 9 which deals with the code for determining applications for funding from the community legal service fund.

    Clause 9(5)(b) currently states that the code may include provision requiring applicants for funding to furnish information or impose other conditions. The amendment changes the clause to refer simply to conditions without the specific reference to "information." It is, of course, still the intention that the code will include conditions about furnishing information. However, that is so clearly a requirement for any form of application that it goes without saying.

    The main reason for Amendment No. 10 is to remove some superfluous words. The change may also serve to avoid any implication that the clause permits only conditions of a similar nature to conditions about furnishing information—that is to say, conditions relating to the application process. However, the intention is that the code should be able to set prior conditions of a more substantive nature; for example, conditions requiring the applicant to take some other step to resolve his or her problem before seeking funding under the scheme.

    In particular, we intend to replicate in the code the requirement currently set out in Section 15(3F) of the Legal Aid Act 1988 to attend a meeting with a mediator before seeking legal representation in private law family proceedings. It may become appropriate in future to establish analogous conditions about other types of case or other forms of alternative dispute resolution.

    On the basis of that explanation, I commend Amendment No. 10 to the House.

    Moved, That the House do agree with the Commons in their Amendment No. 10.—( Lord Falconer of Thoroton.)

    On Question, Motion agreed to.

    Commons Amendment

    11 Clause 11, page 8, line 37, leave out from ("both,") to end of line 38

    My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11. I shall speak also to Amendment No. 12.

    Amendment No. 11 makes a minor drafting change to shorten Clause 11. It removes some unnecessary words carried over from the Legal Aid Act 1988 about paying contributions from capital by instalments. The existing legal aid regulations about contributions do not make such provision. Under the amended Bill, it would still be possible to provide for instalments, relying on the words in Clause 11(3)(a) about "periodical payments" or "one or more capital sums."

    Amendment No. 12 makes another minor drafting change to Clause 11. It clarifies Clause 11(4)(b) which allows interest to be charged on contributions that fall due after the costs to which they relate are incurred. It is not intended that interest should run from the moment any costs are incurred—whether that means costs incurred by the service provider or costs incurred by the commission in making payments on account to the provider under a contract. This provision is intended to allow for the possibility of regulations postponing payment of a capital contribution until after the end of the case, or—although the Government have no plans to do this—requiring contributions from income to continue after the end of the case. The amendment makes this clearer. I beg to move.

    Moved, That the House do agree with the Commons in their Amendment No. 11.—( Lord Falconer of Thoroton.)

    On Question, Motion agreed to.

    Commons Amendment

    12 Clause 11, page 8, line 43, leave out from ("payment") to ("or") in line 45 and insert ("in respect of the cost of services required by the regulations to be made by him later than the time when the services are provided,")

    My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 12.

    Moved, That the House do agree with the Commons in their Amendment No. 12.—( Lord Falconer of Thoroton.)

    On Question, Motion agreed to.

    Commons Amendment

    13 Clause 12, page 9, line 22, leave out from beginning to ("shall") in line 25 and insert ("Except in prescribed circumstances, costs ordered against an individual in relation to any proceedings or part of proceedings funded for him")

    My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 13. I shall speak also to Amendments Nos. 14 to 21, 47 and 48.

    This group of amendments concerns the protection that a person assisted by the community legal service is given from having to meet the costs of the other side should the action that he or she brings with the help of public funds be unsuccessful.

    Amendment No. 13 allows the general protection afforded by Clause 12(1) to be disapplied in prescribed circumstances. This power is necessary because, unlike the present legal aid scheme, the new commission will fund cases in a range of different ways. For example, Clause 7(3)(e) empowers the commission to provide help by making a grant or a loan to an individual to enable that person to purchase legal services for himself as a private litigant. Another option proposed by the Legal Aid Board in its draft funding code is to provide limited "litigation support" funding for a case that is principally funded privately—probably under a conditional fee agreement. We believe that it would be wrong if people helped in these ways were entitled to special protection from having to meet their opponents' costs.

    Amendment No. 47 makes any regulations disapplying the protection available under Clause 12(1) subject to the affirmative resolution procedure.

    Amendments Nos. 13 to 16 also effect drafting changes to make clear that protection against costs applies only while the commission is funding a case. There are circumstances when support from the commission may not be provided until after litigation has commenced when, for example, a person's means change so that he or she becomes financially eligible for assistance. Similarly, support may be withdrawn because the individual is no longer eligible financially or the case no longer passes the requirements of the funding code but the assisted person proceeds with the case nevertheless through some other means of funding. The amendments make clear that costs protection is limited to that part of the proceedings when an individual was receiving help from the scheme.

    Amendments Nos. 19 and 20 rephrase and reposition Clause 12(3)(c) which deals with the payment of costs by the legal services commission to the opponent of an assisted person. At present, a court can order the Legal Aid Board to pay an opposing defendant's costs if he or she would otherwise suffer severe financial hardship. Regulations under this Bill will broadly replicate that position, although the Government hope to relax the test to plain financial hardship.

    It is necessary to rephrase the paragraph to refer to the "costs incurred" by the opponent rather than those "ordered against" the assisted person. Otherwise the costs that the commission could be ordered to pay would be limited by the protection enjoyed by the assisted person. That anomaly did not arise with the previous drafting of Clause 12(1).

    Amendments Nos. 21 and 48 are consequential on the repositioning of Clause 12(3)(c). The latter ensures that regulations under that paragraph remain subject to the affirmative procedure. Amendments Nos. 17 and 18 ensure the consistent use of tenses throughout the clause. I beg to move.

    Moved, That the House do agree with the Commons in their Amendment No. 13.—( Lord Falconer of Thoroton.)

    On Question, Motion agreed to.

    Commons Amendments

    14 Clause 12, page 9, line 28, at end insert ("to which the proceedings relate")

    15 Page 9, line 29, leave out from beginning to ("his") in line 30 and insert ("and for this purpose proceedings, or a part of proceedings, are funded for an individual if services relating to the proceedings or part are funded for him by the Commission as part of the Community Legal Service.

    (1A) In assessing for the purposes of subsection (1) the financial resources of an individual for whom services are funded by the Commission as part of the Community Legal Service,")

    16 Page 9, line 33, leave out ("that") and insert ("subsections (1) and (1A)")

    17 Page 9, line 33, leave out ("cases in which services have been") and insert ("relation to proceedings in which services are")

    18 Page 9, line 38, leave out ("the services were funded,") and insert ("services are funded by the Commission as part of the Community Legal Service,")

    19 Page 9, leave out lines 42 and 43

    20 Page 9, line 46, at end insert—

    ("(da) requiring the payment by the Commission of the whole or part of any costs incurred by a party for whom services are not funded by the Commission as part of the Community Legal Service,")

    21 Page 10, line 2, leave out ("such a party") and insert ("a party for whom services are so funded")

    22 Clause 13, page 10, line 15, leave out subsection (2)

    23 Page 10, line 36, leave out subsection (4) and insert—

    ("() The Commission shall fund services as part of the Criminal Defence Service in accordance with sections 14 and 15.")

    24 Page 10, line 44, at end insert—

    ("(5A) The Commission may charge—
  • (a) for accreditation,
  • (b) for monitoring the services provided by accredited persons and bodies, and
  • (c) for authorising accreditation by others;
  • and persons or bodies authorised to accredit may charge for accreditation, and for such monitoring, in accordance with the terms of their authorisation.")

    25 Page 10, line 46, leave out ("subsection (5)") and insert ("subsections (5) and (5A)")

    26 Clause 14, page 11, line 5, leave out ("in such other circumstances as the Lord Chancellor may prescribe") and insert ("involved in criminal investigations in such other circumstances as may be prescribed;

    and for this purpose "criminal investigations" means investigations relating to offences or to individuals convicted of an offence.")

    My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 14 to 26, which have already been spoken to under Amendments Nos. 4, 7 and 13.

    Moved, That the House do agree with the Commons in their Amendments Nos. 14 to 26.—( The Lord Chancellor.)

    On Question, Motion agreed to.

    Commons Amendment

    27 Clause 14, page 11, line 18, after ("assistance,") insert—

    ("() itself providing advice or assistance,")

    Motion Moved On Consideration Of Commons Amendment No 27

    27A That the House do disagree with the Commons in their Amendment No. 27.

    My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 27. I shall speak also to Motions Nos. 28A and 30A.

    All of the arguments about the criminal defence service have been canvassed exhaustively. I hope that your Lordships will forgive me if I do not go over the territory explored so widely at Second Reading, Committee and Report stages. I shall summarise my argument.

    First, in an adversarial system, it is absolutely fundamental that a defendant should have full confidence that his legal representatives are genuinely independent. Secondly, in high-profile cases in particular the employed public defender lawyer may be unwilling to take a stand—as is frequently necessary—and criticise the Government, the Crown Prosecution Service, the police and so on. It is essential to the administration of justice that there be fearless advocacy on the part of an accused person.

    Thirdly, if only limited resources are available to the public defender system, fewer and lower-paid lawyers will provide a poorer quality of service. The necessary work of tracing witnesses and instructing experts will not be carried out if budget limits are exceeded. By contrast, the resources of the prosecution in investigations through the police are unlimited in respect of individual cases. Consequently, the proposals will fundamentally shift the balance between the prosecution and the defence that exists under our system.

    I have no doubt that the word "indignation" is written in large letters on the noble and learned Lord the Lord Chancellor's brief as he leaps to the defence of a class of persons—namely, public defenders—who have not yet been recruited. How dare I suggest that they will not employ professional standards and so on? But if the Government think that people employed for a fixed salary for fixed hours will put the same effort into a case that independent counsel and solicitors do at present, then they do not understand the realities of the criminal Bar.

    I shall give a small instance. Tomorrow I shall go to a remand centre. It will take me two hours to get there. When I arrive I will be searched, my shoes will be taken from me and my coat will be taken from me. They will be put through a machine and any papers I may have on me will be removed if they do not appertain to the case. Recently, for example, I had a bill from the House of Lords Refreshment Department confiscated in case it gave the inmates of the prison I was in some notion or inkling of the bill of fare in your Lordships.' House.

    These are the indignities that independent counsel are prepared to go through, and to spend the time. I should add that, under the graduated scheme, I will not be paid for a whole day's work, because it will take me two hours to get home. For that reason, I do not see that this level of service will ever be provided by a salaried defender service such as is proposed.

    I do not believe either that the proposal will achieve the purposes for which it has been put forward; namely, the saving of money. I do not believe it has ever been pretended that it will improve the quality of justice to have a public defender system. Increases in the costs of defending criminal cases are, at least by implication, frequently put down to the activities of greedy lawyers trying to up their fees. What is never put into the reckoning is the cost of the measures which have been developed to improve the speeding-up of justice, a very necessary aim. In the old days of the assizes one walked into court and one did the case. Today we have systems of primary discovery, defence statements, secondary discovery, plea and directions hearings, public interest immunity applications, preliminary hearings on points of law, and frequently consultation with the client at various stages is essential. That is all commendable, but it is not quick and it certainly is not cheap. It costs time and money.

    A further fundamental objection to the criminal defence service, to which I have referred on previous occasions, is the concept that a nationwide service will be set up with offices all over the country and that a defendant will have the right to choose whether he accepts the state service or whether he goes on legal aid to an independent legal representative. The idea that the choice will be made in favour of the state defence service is in my view ludicrous, and I do not see such a choice remaining very long for a defendant. We will be in a kind of "signs of the Zodiac" situation described by the noble Baroness, Lady Kennedy, at Second Reading.

    We would have no objection if there were parts of the country where there were no independent solicitors. I know of none, but if that should be so, let there be a public office, but only in that very limited kind of circumstance. I do not believe that a public defender system can ever match the efficiency and cost-effectiveness of the competitive, independent Bar where ability and hard work are the ultimate criteria.

    No nationalised industry has ever proved itself as efficient as the private sector. Hence, in all fields other than this one, New Labour has accepted and acquiesced in privatisations carried out by the previous government. Indeed, even in the Bill the purpose of having contracts is to increase competitive tendering between solicitors. But here, a state nationalised service of defending is being set up. I do not believe that that is right in principle. I do not believe that it is practical, and I believe that it will fail. I beg to move.

    Moved, That the House do disagree with the Commons in their Amendment No. 27.—( Lord Thomas of Gresford.)

    My Lords, I did not intervene on this part of the Bill during its earlier stages in this House. However, I listened to many speeches, including at least two excellent speeches by the noble Lord, Lord Thomas.

    A number of noble Lords, including the noble Lord, Lord Thomas, attacked the provision which would enable lawyers employed by the criminal defence service to provide not only representation but advice or assistance of any kind in the criminal courts. They attacked the provision—it has emerged once more in the speech we have just heard from the noble Lord—on the basis that the proposal might lead to the extreme of removing the choice of an accused person to have a private practitioner as his lawyer and advocate, if that is what he wants. It is thought, and it was repeated by the noble Lord, that the proposal might lead to the extreme of a comprehensive public defender system. The noble Lord used the word "nationalisation", no doubt because it has an emotive effect. There is the suggestion that it would replace the independent Bar, as it exists not just as we know it in London, but in Manchester, Birmingham and Newcastle.

    During the course of previous debates, the noble and learned Lord the Lord Chancellor denied any such extreme intention. There is no basis or evidence for the suggestion of the noble Lord, Lord Thomas of Gresford, that the extremes he envisages are likely to come about. Furthermore, there is no evidence, certainly in this country, of any lack of dedication or lack of fearlessness—qualities which the noble Lord of course regards very highly—on the part of an employed lawyer of a criminal defence service because we do not have one. However, this links up with debates we have had as regards civil courts, to which we may well return tonight.

    There is a kind of distrust on the part of eminent practitioners like the noble Lord, Lord Thomas, that the employed lawyer, the in-house lawyer, is incapable of giving independent advice and independent representation and is incapable of being fearless because he is scared of losing his job or his present post. We shall come to that in due course. However, it seems to me—and of course the proposals are of a modest nature—that there is no basis for saying that an employed lawyer would not be capable of doing the very best he could for the accused person.

    Let us not forget the importance of Clause 15. Rather rashly perhaps, I draw in aid my recollection that the noble and learned Lord, Lord Ackner, was very keen that employed lawyers should be subjected to a code—a code now set out in the Bill—which would involve consultation with the Law Society, the Bar and so forth, ensuring dedication, fearlessness, and above all duty to the court, which are so important, whether he or she is independent or an employed lawyer.

    In conclusion, it is not the noble and learned Lord the Lord Chancellor who is being extremist in the proposal that he is bringing forward. I am afraid it is the majority of this House who were extremist when they tried, by the successful anti-Government amendment, to make it completely impossible for the courts to allow any lawyer employed by the criminal defence service to act in any way, by advice or assistance or representation, in any court. That seems to be extreme, and there is no warrant for it.

    My Lords, I rise to support my noble friend Lord Borrie, as I think I did—my memory does not go hack that far—in previous debates. If I merely made the speech to my wife, I apologise.

    This is an extreme amendment, in that it casts doubt upon the ability of lawyers who operate in any salaried service, because the same criteria would apply, and that is wholly unjustified. Why should we have a Crown Prosecution Service? There is a very strong case for it. Anyway, it is establishing itself over the years. It has had difficulties, as one recognises, but they do not constitute a reason for saying that the Crown Prosecution Service has failed and should be abolished, or anything of that kind.

    Therefore, I do not think that this form of extreme amendment puts the case made by the noble Lord, Lord Thomas, in a good light. It is somewhat protectionist. In fact, if lawyers were to adopt that attitude they would be seen as being protectionist, and that is unhelpful. The job of a defending lawyer is to do his or her work to the best of his or her ability. In the United States it is seen as a valuable way of gaining useful experience, and subsequently many people in that position go on to offer their professional abilities to the private sector. I see nothing wrong with that. Therefore, the noble Lord should reflect further on an amendment which I think is wholly without cause.

    My Lords, the noble Lord, Lord Thomas, is clearly a great, persuasive advocate, because he has persuaded my noble friend Lord Clinton-Davis to describe his amendment as extreme. In fact, it is not at all extreme, because all that he seeks to do is to remove Commons Amendment No. 27, which adds another sub-paragraph to Clause 14(2). The subsection, with the Commons amendment, would read:

    "The Commission may comply with the duty imposed by subsection (1) by … itself providing advice or assistance".
    The reason that the noble Lord, Lord Thomas, is being so persuasive is that he is not addressing at all the individual amendments that he is seeking to have removed. His speech did not address them either. It was directed towards the principle of the criminal defence service. As he argued strongly in Committee and on Report—and he may well have done so again on Third Reading—he has very strong views on the subject: he is opposed to it. But that is not the Commons amendment with which we are dealing. The principle of setting up the criminal defence service is in Clause 13(1). That is not what we are debating now.

    My Lords, the amendment raises a profoundly important debate. The fact that it arises now, at this late hour, much to the Government's convenience, does not make it any less profoundly important. Of course, we all now have to tear up the speeches that we would have made if the matter had come on at the proper time; we all have to curtail our arguments.

    The case against the amendment can be put very shortly. No doubt I shall be accused yet again of smugness, of superiority, of special pleading and, as we have just heard yet again, of protectionism. The case can be put very simply. Let me spell it out.

    Our democracy and our fundamental freedoms depend on the rule of law. The law is upheld first by an independent and uncorrupt judiciary. Secondly, it is upheld by the advocates—barristers and solicitors—without whom the judges could not operate and from among whom the judges are drawn. The essential characteristics of the judge are those which are instilled into him and observed by him as an advocate: above all, independence and integrity. Thirdly, when the chips are down and the citizen is in danger of losing his liberty, his livelihood or his reputation, he can appeal to a jury of 12 ordinary people like himself, unbiased and, once again, independent—independent in each case of government, of police, of all the agents of power and privilege which bind together the structure of the whole criminal process, fought for over the years and correctly described as the bulwark of our liberties. That is the structure, and attacks on the structure are fierce and continuing.

    My Lords, on a point of order. We should be addressing Commons Amendment No. 27. We should not be addressing Clause 13(1).

    8.15 p.m.

    My Lords, I am at the moment addressing the submission that this House should not agree with this Commons amendment. The amendment has been introduced by my noble friend Lord Thomas, and I think everybody agrees that what we are discussing now, with all the other amendments that go with it, is the question of the public defender. It is to the question of the public defender that I am addressing myself. If I am out of order, no doubt someone will tell me, and I will sit down; otherwise, I intend to continue as I have begun.

    The attacks on the structure that I have set out come mainly from politicians. The judges are criticised for being too powerful and too political. The right to jury trial, I understand, is now to be cut down. Attacks on the advocates have been sustained throughout the passage of the Bill in almost a violent form. But it must be blindingly obvious that to introduce under this clause a salaried defender, a staff lawyer from the bureaucracy of the criminal defence service, working in the office under the control of the legal services commission, watched over by the legal services consultation panel, in touch with his colleagues in the CPS, is to undermine the whole structure which I have described. This ominous figure is there to assess, we are told, value for money, not because he is more honest, more assiduous, more learned or more cheap. He is apparently to report back to his employer on the extent to which his colleagues in court are wasting public money—a kind of Treasury spy. His name perfectly describes his bureaucratic origins: "A quality assured public supplier of legal services", what we happen to call at the moment "counsel".

    No codes, no guidelines telling such persons that they must behave as though they were independent, will clear the mischief. Once the public defender is introduced to complement the public prosecutor, the stage is set for a nationalised legal criminal service—the CPS against the CDS.

    Although the Bill has some radical provisions, I suggest that this clause is an aberration, if not an abomination. It is difficult to see why the Lord Chancellor persists in a course which is so widely condemned. He deserves praise for introducing the Human Rights Bill, for which he will be remembered. But I ask him to listen to those who have fought the human rights battle for years where it really mattered to the citizen; that is, in the magistrates' and Crown Courts of this country. It may be more prestigious and remunerative to argue abstruse legal points at Strasbourg or in the Judicial Committee of this House, but I suggest that there is more to be learnt about human rights in the cells of the Old Bailey or in the squalor of Wormwood Scrubs. I sincerely hope that this House will not agree to the amendment.

    My Lords, I agree with my noble friends Lord Borne and Lord Clinton-Davis. I would not dream of calling the noble Lord, Lord Hutchinson, any name at all. However, I disagree with him and feel that he has a rather romantic view of the standing in which the legal profession is held in this country today.

    We have had considerable discussions about the issues surrounding salaried defenders and the role that they might play in the new legal scheme being proposed. An ordinary person requiring legal services needs, most of all, a guaranteed standard—I am sure we all agree on that. Secondly, they need some choice. I believe that this proposal to establish salaried defenders gives them that choice.

    People do not understand why members of the legal profession feel the need so fiercely to protect their interests and guarantee their incomes. It does not happen elsewhere; why should it happen to them? I also do not understand why noble Lords on the Liberal Democrat Benches feel the need so fiercely to defend those interests.

    My Lords, will the noble Baroness accept that we are not here to defend the legal profession? We are here because we know something about it. We know something about criminal procedures and the way in which the criminal system works in this country. We are concerned about the quality of justice if the standard of advocacy in defence criminal work is reduced.

    My Lords, we are all concerned about the quality of justice, and the voice of the consumer who receives that quality of justice is extremely important. The consumers in this country have long felt that the legal profession needed reform, and have said so loudly on many occasions. That is what these proposals seek to do.

    I urge the Liberal Democrat Benches to think carefully about the path they follow throughout this legislation. It is not in keeping with other things they do and policies that they pursue.

    My Lords, we on these Benches support the Motion of the noble Lord, Lord Thomas of Gresford, for four reasons. First, we see no evidence for the need for this. Secondly, we do not understand how injecting a degree of nationalisation into criminal defence can enhance competition. Thirdly, we do not understand how the quality of criminal defence in this country will be improved by a system of state defenders. Fourthly, we fear that the introduction of state defenders will certainly undermine the perception, and also perhaps the reality, of criminal justice. That is particularly true when we consider that in future we are likely to be faced in many trials with not only the prosecution being represented by government officials in the form of the Crown Prosecution Service but also the defence being represented by a government official.

    My Lords, in contributing to this debate I speak also, with your Lordships' leave, to Amendments Nos. 28 to 30 and 34 to 36. As the noble Lord, Lord Thomas of Gresford, observed, this is a course we have been round before.

    I did not find as the noble Lord's most persuasive argument that it is only sturdy members of the Bar such as himself who are capable of enduring the indignities of the forfeiture of their restaurant bills as a condition of admission to prison, which he would have us accept would be completely beyond the resoluteness or sense of economy of salaried lawyers. I remind him that many salaried solicitors are employees with rights of audience who act for defendants in criminal cases and do so to a high standard.

    The noble Lord, Lord Hutchinson of Lullington, complained about our addressing this subject at around eight in the evening. But when the noble Lord was the industrious and much admired leading defence counsel that I recall, 10 minutes after eight would not have been regarded as late by him. He would probably just be getting round to considering his brief for the next day. If I may say so, he was in vintage form a few minutes ago and in fine voice.

    Amendments Nos. 27 to 30 reintroduce powers for the Legal Services Commission to employ staff directly to provide some criminal defence services. Salaried defenders will give the public a wider choice of representative. They will provide the Legal Services Commission with the means to assess value for money provided by criminal defence services generally. They will increase the commission's flexibility in the provision of criminal defence services and they will provide a competitive stimulus to lawyers in private practice.

    The state is under no obligation to guarantee to the legal profession that it and it alone may provide publicly-funded legal defence services. And provided high standards are maintained, the public could gain from the introduction of salaried defenders as part of a mixed system of provision of legal services. I tend to wonder—I am sure the noble Lord, Lord Thomas of Gresford, will forgive me for wondering—whether he is one of the last of the timorous souls who believe that the Bar cannot survive on its own merits but needs to be cocooned with restrictive practices and guarantees of state provided work.

    As I said in Committee, I stress that it is not our intention that salaried defenders should supplant the independent Bar, or indeed the solicitors' profession. That will never happen. We see value in the commission having power to introduce into the system a salaried element, subject to appropriate ethical safeguards, but it will always be a mixed system. We are not—repeat "not"—establishing a comprehensive public defender system of the type found in many parts of the United States of America. Further, there will be consultation with the professions and others about the detailed arrangements for the introduction of salaried defenders. Following that consultation, the Legal Services Commission will establish pilot projects to test and evaluate different models for providing services through salaried defenders. We would start with small pilots and monitor them to see how effective the arrangements were. The pilot projects would be extended across the country only after we had experience of salaried defenders in practice. We will learn from the example of successful overseas schemes and the current pilot in Scotland to meet the particular needs of England and Wales. Only against that background would decisions be taken, based on evidence.

    It is clear from international research that mixed systems with salaried service defenders operating alongside private lawyers can be the most effective way of providing criminal defence services. That is the view of Bar associations, including those in Canada and America. It is advocated by official bodies such as the Legal Services Corporation and the National Legal Aid Advisory Committee in Australia.

    There are many methods of providing mixed systems, with some particularly good examples in Canada, which has more than 20 years' experience of mixed systems. In Scotland, a Public Defence Solicitors Office was established as a pilot project from 1st October last year. It is based at a single office in Edinburgh and employs a maximum of six solicitors. Initial reports about the Scottish pilot have been favourable. It allocates defendants to the PDSO, but a significant proportion—22 per cent—of clients already use it by choice. We shall take account of the results of the Scottish pilot evaluation when developing pilot arrangements under the Bill.

    There are some very good public defender schemes abroad, but I acknowledge that others are less satisfactory. Adequate funding is the key to success. However, that is also true of schemes that purchase services from the private sector. Most of the schemes that have been criticised are not underpinned by a statutory framework such as that proposed in the Bill. That underpinning, which includes an obligation on me to fund the criminal defence service in its private and directly employed elements, will ensure the quality of services that suspects and defendants require.

    However, unlike the Scottish pilot, which was based on assigning clients to the PDSO, Clause 15 builds choice into the system from the outset. Regulations cannot be used to require a person to use a salaried defender. We are confident that salaried defenders will develop to play a valuable role in the criminal defence service without compulsion. I challenge the private profession to demonstrate the same confidence in the service that it provides. I have that confidence and believe that the private professions have nothing to fear from competing alongside salaried defenders in a system based on an informed choice of representation.

    Those who disagree with the amendment put forward in another place are effectively seeking to protect the vested interests of an established legal profession and to prevent the public from having the choice. I am surprised and disappointed by the Liberal Democrats' position. They are not prepared to accept that there might be lessons that we can learn from other countries and that there may be a case for considering arranging our legal services differently. I regret that restricted vision that is not prepared to accept that there can be merit in change and diversity.

    Subject to the safeguards set out in the Bill, there is great merit in allowing criminal defence services to be provided by private practitioners—whether in independent practice or employed by law firms—and those employed by the criminal defence service. For those reasons, I commend Commons Amendments Nos. 27 to 30 to the House and invite the noble Lord, Lord Thomas of Gresford, to withdraw his Motions to reject them.

    Commons Amendments Nos. 34 to 36 relate to Clause 16, which provides for a code of conduct for salaried defenders employed by the Legal Services Commission. However, it is likely that we shall wish to pilot the provision of salaried services, not only by lawyers employed directly by the commission but by those employed by separate not-for-profit bodies established and maintained specifically for that purpose. As originally drafted, the clause would not apply to salaried defenders in the latter situation. Amendment No. 34 ensures that the code of conduct will apply in both situations.

    Amendments Nos. 35 and 36 reflect suggestions made by the now shadow Attorney-General, who led for the Opposition on the Bill in another place. Amendment No. 35 requires the code to include duties on employees providing criminal defence services who are members of a professional body—be they barristers, solicitors or legal executives—to comply with the rules of that body. Amendment No. 36 requires the commission to consult the Law Society and the General Council of the Bar before preparing or revising the code. In due course I shall commend Amendments Nos. 34 to 36 to the House.

    My Lords, I have been described as a romantic yet timorous extremist. I think that that is rather good and I shall have to tell my wife about it.

    I have no fear that the independent Bar would beat any public defender service if the accused person was given any choice. I have never been afraid of competition and neither has the Bar. It is one of the most competitive professions in the country. This is not the dangerous step; it is when that choice is removed, as inexorably it will be. I cannot imagine any government sustaining on public funds two separate and competing services, as the Bill proposes.

    I shall not weary your Lordships further. I seek the agreement of the House to the Motion.

    8.37 p.m.

    On Question, Whether the House do disagree with the Commons in their Amendment No. 27?

    Their Lordships divided: Contents, 141; Not-Contents, 85.

    Division No. 1


    Ackner, L.Eccles of Moulton, B.
    Addison, V.Eden of Winton, L.
    Anelay of St. Johns, B.Ellenborough, L.
    Annaly, L.Elton, L.
    Astor of Hever, L.Ezra, L.
    Avebury, L.Falkland, V.
    Beaumont of Whitley, L.Fookes, B.
    Belhaven and Stenton, L.Gage, V.
    Belstead, L.Gainford, L.
    Berners, B.Gisborough, L.
    Biddulph, L.Glentoran, L.
    Birdwood, L.Goodhart, L.
    Blackwell, L.Gray, L.
    Blaker, L.Hamwee, B.
    Blatch, B.Harmar-Nicholls, L.
    Brabazon of Tara, L.Harmsworth, L.
    Bridgeman, V.Harris of Greenwich, L. [Teller.]
    Brougham and Vaux, L.Hanowby, E.
    Buckinghamshire, E.Hayhoe, L.
    Burnham, L.Henley, L. [Teller.]
    Byford, B.Higgins, L.
    Cadman, L.Hogg, B.
    Carlisle, E.HolmPatrick, L.
    Camegy of Lour, B.Hooper, B.
    Chalker of Wallasey, B.Howe, E.
    Chesham, L.Howe of Aberavon, L.
    Clark of Kempston, L.Hunt of Wirral, L.
    Coleraine, L.Hutchinson of Lullington, L.
    Cope of Berkeley, L.Jacobs, L.
    Courtown, E.Kingsland, L.
    Crickhowell, L.Knight of Collingtree, B.
    Cross, V.Lane of Horsell, L.
    Dahrendorf, L.Leigh, L.
    Dean of Harptree, L.Lester of Herne Hill, L.
    Dholakia, L.Lindsey and Abingdon, E.
    Downshire, M.Linklater of Butterstone, B.
    Dundee, E.Lucas, L.
    Eccles, V.Lucas of Chilworth, L.

    Luke, L.Pilkington of Oxenford, L.
    Lyell, L.Rawlings, B.
    McColl of Dulwich, L.Razzall, L.
    Mackay of Ardbrecknish, L.Redesdale, L.
    Mackay of Drumadoon, L.Rochester, L.
    Mackie of Benshie, L.Rodgers of Quarry Bank, L.
    Mackintosh of Halifax, V.Romney, E.
    McNair, L.Rotherwick, L.
    McNally, L.Rowallan, L.
    Mar and Kellie, E.Russell, E.
    Marlesford, L.Saltoun of Abernethy, Ly.
    Massereene and Ferrard, V.Seccombe, B.
    Mayhew of Twysden, L.Selkirk of Douglas, L.
    Methuen, L.Sharp of Guildford, B.
    Miller of Chilthome Domer, B.Shaw of Northstead, L.
    Monk Bretton, L.Steel of Aikwood, L.
    Munster, E.Stodart of Leaston, L.
    Murton of Lindisfame, L.Tebbit, L.
    Naseby, L.Thomas of Gresford, L.
    Newby L.Thomas of Walliswood, B.
    Northbrook L.Thomson of Monifieth, L.
    Northesk, E.Thurso, V.
    Tope, L.
    Norton, L.Trefgame, L.
    Norton of Louth, L.Trumpington, B.
    Onslow, E.Vivian, L.
    Oppenheim-Barnes, B.Waddington, L.
    Park of Monmouth, B.Wallace of Saltaire, L.
    Parkinson, L.Wigoder, L.
    Pearson of Rannoch, L.Wilcox, B.
    Pender, L.Williams of Crosby, B.
    Peny of Southwark, B.Wise, L.
    Phillips of Sudbury, L.Wynford, L.


    Acton, L.Grenfell, L.
    Ahmed, L.Hacking, L.
    Amos, B.Hanworth, V.
    Archer of Sandwell, L.Hardy of Wath, L.
    Bach, L.Harris of Haringey, L.
    Barnett, L.Haskel, L.
    Bassam of Brighton, L.Hayman, B.
    Berkeley, L.Hilton of Eggardon, B.
    Blackstone, B.Hollis of Heigham, B.
    Borrie, L.Howie of Troon, L.
    Bragg, L.Hoyle, L.
    Brooke of Alverthorpe, L.Hughes of Woodside, L.
    Burlison, L.Hunt of Kings Heath, L.
    Carter, L. [Teller.]Irvine of Lairg, L. [Lord Chancellor.]
    Castle of Blackburn, B.
    Chandos, V.Islwyn, L.
    Christopher, L.Kirkhill, L.
    Clarke of Hampstead, L.Lockwood, B.
    Clinton-Davis, L.Lofthouse of Pontefract, L.
    Cocks of Hartcliffe, L.McIntosh of Haringey, L.
    Crawley, B.


    David, B.Mackenzie of Framwellgate, L.
    Davies of Coity, L.Milner of Leeds, L.
    Davies of Oldham, L.Mishcon, L.
    Dean of Thomton-le-Fylde, B.Monkswell, L.
    Desai, L.Morris of Castle Morris, L.
    Dixon, L.Murray of Epping Forest, L.
    Donoughue, L.Nicol, B.
    Dormand of Easington, L.Pitkeathley, B.
    Dubs, L.Ponsonby of Shulbrede, L.
    Evans of Watford, L.Ramsay of Cartvale, B.
    Falconer of Thoroton, L.Randall of St. Budeaux, L.
    Farrington of Ribbleton, B.Rea, L.
    Gilbert, L.Rendell of Babergh, B.
    Gladwin of Clee, L.Sainsbury of Turville, L.
    Gordon of Strathblane, L.Sewel, L.
    Goudie, B.Shepherd, L.
    Gould of Pottemewton, B.Simon, V.
    Graham of Edmonton, L.Strabolgi, L.
    Grantchester, L.Symons of Vernham Dean, B.

    Taylor of Blackburn, L.Uddin, B.
    Thomton, B.Warner, L.
    Whitty, L.
    Tomlinson, L.Williams of Mostyn, L.

    Resolved in the affirmative, and Motion agreed to accordingly.

    Commons Amendment

    28 Clause 14, page 11 line 20, leave out (", except itself providing advice or assistance")

    Motion Moved On Consideration Of Commons Amendment No 28

    28A That the House do disagree with the Commons in their Amendment No. 28.

    8.45 p.m.

    My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 28.

    Moved, That the House do disagree with the Commons in their Amendment No. 28.—( Lord Thomas of Gresford.)

    On Question, Motion agreed to.

    Commons Amendment

    29 Clause 15, page 11, line 40, at end insert—

    ("() itself providing representation,")

    Motion Moved On Consideration Of Commons Amendment No 29

    29A That the House do disagree with the Commons in their Amendment No. 29.

    My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 29.

    Moved, That the House do disagree with the Commons in their Amendment No. 29.—( Lord Thomas of Gresford.)

    On Question, Motion agreed to.

    Commons Amendment

    30 Clause 15, page 11, line 43, leave out (", except itself providing representation")

    Motion Moved On Consideration Of Commons Amendment No 30

    30A That the House do disagree with the Commons in their Amendment No. 30.

    My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 30.

    Moved, That the House do disagree with the Commons in their Amendment No. 30.—( Lord Thomas of Gresford.)

    On Question, Motion agreed to.

    Commons Amendment

    31 Clause 15, page 12, line 25, at end insert—

    ("() an individual who has been provided with advice or assistance funded by the Commission under section 14 is to be taken to have selected as his representative pursuant to that right the person who provided the advice or assistance,")

    Motion Moved On Consideration Of Commons Amendment No 31

    31A That the House do disagree with the Commons in their Amendment No. 31.

    My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 31.

    Moved, That the House do disagree with the Commons in their Amendment No. 31.—( Lord Thomas of Gresford.)

    On Question, Motion agreed to.

    [ Amendment No. 31B, as an amendment to Commons Amendment No. 31, not moved.]

    Commons Amendment

    32 Clause 15, page 12, line 35, at end insert—

    ("(10) Regulations may provide that in prescribed circumstances the Commission is not required to fund, or to continue to fund, representation for an individual by a particular representative (but such provision shall not prejudice any right of the individal to select another representative).
    (11) The circumstances which may he prescribed by regulations under subsection (8) or (10) include that a determination has been made by a prescribed body or person.")

    My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 32. I wish to speak also to Amendments Nos. 33 to 36 and 49. This group of amendments amends Clause 15 which establishes the duty of the commission to fund representation, sets out the means by which it may do so and provides powers to limit the extent to which the defendant may choose his or her representative. Amendment No. 33 splits this now lengthy clause in two: the first clause to deal with the provision of representation, the second choice of representative. The other amendments all concern choice.

    It is desirable that defendants should be able to choose their representative, not least to promote their confidence in the criminal justice system. Clause 15(7) enshrines this principle. However, a completely unrestricted choice would undermine our ability to achieve value for money. Therefore subsection (8) contains powers to limit that choice.

    Clause 15(8)(c) is the key provision. It will allow the defendant's choice to be limited to any lawyer with a current contract with the Legal Services Commission (or, had that provision prevailed, a salaried defender). Our intention is to ensure that suspects and defendants generally have a choice between several contracted firms and, were salaried defenders to be permitted, with them too.

    One of the major weaknesses of the system of legal aid in its present form is its fragmentation. This can lead to help being given under several different parts of the scheme in a single case: for green form advice, advice and assistance at the police station, assistance from the duty solicitor at the magistrates' court, and a full legal aid order. We would have been concerned to ensure the elimination of duplication, delay and unnecessary cost. We would have been concerned to ensure that individuals would stay with the same lawyer throughout the case unless there was good reason to change.

    I shall explain how we envisage the system working in practice. A person being questioned by the police will be able to select his or her adviser from any firm holding a contract with the Legal Services Commission. Suspects would be shown a list of all firms based in the area and be informed of the implication of their choice. If the chosen adviser were not available, the individual would use the duty solicitor for the time being. But the duty solicitor would not be considered to have been selected, as a preference had been expressed for someone else.

    In dealing with the element of the client's choice we intend to create a criminal legal service which would avoid imbalance. We have already argued that the purpose of the provision which the noble Lord, Lord Thomas of Gresford, was concerned to maintain was to eliminate choice. However as regards Amendment No. 32 there are some categories of very complex case, for example fraud trials, where specialist panels of lawyers may be set up to promote value for money. Regulations under Clause 15(8)(c) will limit choice in these cases to firms on the panel; that is, firms which had demonstrated both the necessary competence and administrative systems to deal with these specialised and weighty cases. However, it may not be self-evident from the outset that a particular case was of such complexity that it required the services of a panel member. Amendment No. 32 deals with this situation by providing in effect for the individual to choose again from among those lawyers competent to handle a case of this complexity. Amendment No. 49 makes regulations under this subsection subject to the affirmative resolution procedure.

    Moved, That the House do agree with the Commons in their Amendment No. 32.—( The Lord Chancellor.)

    On Question, Motion agreed to.

    Commons Amendments

    33 Clause 15, divide Clause 15 into two clauses, the first ( Representation) consisting of subsections (1) to (6) and the second ( Selection of representative etc.) of subsections (7) to (11)

    34 Clause 16, page 12, line 37, after ("Commission") insert (", and employees of any body established and maintained by the Commission,")

    35 Page 13, line 1, at end insert—

    ("and duties on employees who are members of a professional body to comply with the rules of the body.")

    36 Page 13, line 4, leave out from ("shall") to end of line 5 and insert ("consult the Law Society and the General Council of the Bar and such other bodies or persons as it considers appropriate")

    My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 33 to 36.

    Moved, That the House do agree with the Commons in their Amendments Nos. 33 to 36.—( The Lord Chancellor.)

    On Question, Motion agreed to.

    Commons Amendment

    37 Clause 17, page 13, line 19, leave out ("the Crown Court") and insert ("any court other than a magistrates' court")

    My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 37. I wish to speak also to Amendments Nos. 38 to 41.

    Amendments Nos. 37 to 39 make technical changes to Clause 17 to ensure that it delivers the Government's intended policy. Clause 17 provides that a judge may order a defendant to pay some or all of the cost of any representation funded for him as part of the criminal defence service. This will replace the existing complex and wasteful system of means testing every applicant for criminal legal aid at the start of a case. The new system will eliminate the delay caused by means testing and target wealthy criminals more effectively.

    Orders under Clause 17 will be made where the cost of the representation to be recovered is high enough to justify the cost of the scrutiny of a defendant's assets by a special investigation unit; that is why these orders are not available for cases which do not proceed beyond the magistrates' courts.

    This Government's intention is that in all courts other than the magistrates' court, the court at the end of a case will have a duty to consider whether a defendant should pay for his defence costs. It may be apparent to the judge that the defendant has substantial assets as a result of the nature of the evidence given during the trial. In these circumstances, after hearing representations from the defence, the court could make an order. In other cases it may be appropriate for an investigation to be conducted into a defendant's means by a special investigation unit.

    As drafted, the power to make a recovery of defence costs order is restricted to the Crown Court, and the scope of an order to representation in the Crown Court. Amendments Nos. 37 and 38 ensure that the Court of Appeal can also make orders under Clause 17. Amendment No. 39 allows the order to cover the cost of all representation, including representation in the magistrates' court. Amendments Nos. 40 and 41 concern the information necessary to allow the court to make a recovery of defence costs order.

    As I have said, in some cases it will be appropriate for an investigation to be conducted into a defendant's means by a special investigation unit. During this investigation it might, in exceptional circumstances, be appropriate to prevent the defendant from disposing of substantial assets, perhaps with a view to him avoiding an order. Amendment No. 41 would give this power. I commend these amendments to the House.

    Moved, That the House do agree with the Commons in their Amendment No. 37.—( Lord Falconer of Thoroton.)

    On Question, Motion agreed to.

    Commons Amendments

    38 Clause 17, page 13, line 20, leave out ("trial judge") and insert ("court")

    39 Page 13, leave out line 22 and insert ("any representation so funded for him (in proceedings in that or any other court).")

    40 Page 13, line 31, leave out from ("furnishing") to second ("to") in line 32 and insert ("of information and evidence to the court or the Commission for the purpose of enabling the court")

    41 Page 13, line 34, at end insert?—

    ("() prohibiting individuals who are required to furnish information or evidence from dealing with property until they have furnished the information or evidence or until a decision whether to make an order, or the amount to be paid, has been made,")

    My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 38 to 41.

    Moved, That the House do agree with the Commons in their Amendments Nos. 38 to 41.—( Lord Falconer of Thoroton.)

    On Question, Motion agreed to.

    9 p.m.

    Commons Amendment

    42 Clause 22, page 16, line 6, at end insert ("and any authorised by the Commission to be taken.").

    My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 42. I shall also speak to Commons Amendment No. 44.

    Amendment No. 42 corrects an omission in the Bill as drafted. Clause 22(2) provides that people providing services funded by the commission cannot take any payment other than that made by the commission. This carries over from Section 31(3) of the Legal Aid Act 1988 the prohibition on "topping-up"; that is, seeking to supplement legal aid rates by charging the client an additional sum. The Legal Aid Act allows exceptions to be made by regulations. Amendment No. 42 will enable the Commission to authorise exceptions to the general prohibition. It would do this as a term in any relevant contract.

    Commons Amendment No. 44 is a drafting amendment intended simply to shorten the Bill by some eight lines. Clause 22(5) mirrors Section 31(2) of the Legal Aid Act 1988. Section 31(2) puts beyond doubt that a successful legally-aided litigant can recover his or her costs from the opposing party. This is to prevent any argument that the assisted person is not entitled to costs under the indemnity principle.

    A provision along these lines has been part of the legal aid legislation since 1949. Since then, legal aid has become a firmly established part of the legal system, and several other forms of funding which override the strict indemnity principle have developed. Commons Amendment No. 69, which we will discuss later, is a general provision to allow rules of court to override the indemnity principle. So it is now inconceivable that any court would seriously entertain the argument that a legally-assisted litigant was not entitled to costs.

    But even if that were in doubt, Clause 22(5) is unnecessary. Clause 12 contains a broad power to make regulations about costs in cases involving people funded by the Community Legal Service, and subsection (3)(e) specifies that these may include regulations about the principles for determining the amount to be awarded to such a person. As for criminal cases, Clause 22(5) does not apply in any event. Costs in these cases are governed by the Prosecution of Offences Act 1985. I commend the amendment to the House.

    On Question, Motion agreed to.

    Commons Amendment

    43 Clause 22, page 16, line 7, leave out second ("of") and insert ("to")

    My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 43. With the leave of the House I will speak also to Amendments Nos. 45, 46, 50, 143 to 158 inclusive and 199.

    This group of amendments clarifies the powers to prescribe the procedures for courts carrying out functions under Part I of the Bill, particularly in relation to granting rights to representation in criminal cases. It also includes a number of minor drafting amendments.

    Amendment No. 45 provides a general power to prescribe in regulations what member or officer of a court is able to exercise the functions of any court or tribunal under this part. This would, in particular, enable regulations to prescribe the procedure for consideration of an application for a right to representation. In addition, for the magistrates' courts, Amendment No. 151 gives power to prescribe in rules when a justices' clerk can make decisions about the right to representation.

    Amendment No. 46 provides the flexibility to prescribe different provisions for different areas to accommodate, for example, pilot arrangements.

    A right to representation includes a right to advice and assistance as to an appeal. As presently drafted, this is an open-ended entitlement. Amendment No. 50 would allow regulations to prescribe time limits for the provision of advice on appeal, after which the right would lapse. Regulations on the scope of advice and assistance could be made under Clause 14 to allow for cases where advice was needed at a later date.

    Amendment No. 150 places the court under a duty to consider withdrawing a right to representation in prescribed circumstances. The Bill as presently drafted gives the court a general power to withdraw a right to representation. Regulations will require the court to consider withdrawing a right to representation in certain circumstances. For example, it is intended to place the court under a duty to review the need to continue representation where a reduction in the charge means that representation is no longer necessary in the interests of justice.

    It is also intended to prescribe circumstances where the individual fails to co-operate with a means enquiry under Clause 17. Where there is reason to believe that an individual could afford to pay for his own defence, it may be appropriate to conduct a means enquiry during the case so that the judge could consider making a recovery of defence costs order immediately after the trial. If the individual fails to co-operate with a request to provide financial details, the court would have to consider withdrawing the right to representation.

    Amendment No. 199 adds two new sub-paragraphs to paragraph 9 of Schedule 11, which contains transitional provisions about the funding of representation in criminal cases. At present, criminal cases in the Crown Court and appeal courts are funded directly by the Lord Chancellor. In future most, if not all, criminal representation will be provided under a contract with the Legal Services Commission or by salaried defenders. But initially, before contracting is fully developed, it will be simpler to retain the current administrative arrangements by which the higher courts assess and pay remuneration on a case-by-case basis, and the Lord Chancellor funds it directly. The existing paragraph 9 of Schedule 11 provides the power to achieve this. The first new sub-paragraph added by Amendment No. 199 provides a link with the power to make case-by-case payments in Clause 15 and deals with the consequential implications for other Acts. The second new sub-paragraph provides for the provisions in Clause 25 about remuneration orders to apply when the Lord Chancellor is funding representation as well as when the Commission is.

    Finally, Amendments Nos. 43, 143, 144, 146, 148, 149 and 152 to 158 inclusive achieve drafting consistency by referring to the right as a "right to representation". I commend the amendments to the House.

    On Question, Motion agreed to.

    Commons Amendments

    44 Clause 22, page 16, line 18, leave out subsection (5)

    45 Page 16, line 28, at end insert—

    ("(7) Regulations made under subsection (6) may in particular authorise the exercise of the functions of any court or tribunal by any member or officer of that or any other court or tribunal.")

    46 Clause 25, page 17, line 24, at end insert ("(including different areas)")

    47 Page 17, line 26, leave out (" I2(3)(b)") and insert (" 12(1) or (3)(b)")

    48 Page 17, line 27, leave out ("(c)") and insert ("(da)")

    49 Page 17, line 27, after (" 15(8)(a)") insert ("or (10)")

    50 Clause 26, page 17, line 44, after first ("and") insert (", subject to any time limits which may be prescribed,")

    My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 44 to 50 en bloc.

    Moved, That the House do agree with the Commons in their Amendments Nos. 44 to 50.—( Lord Falconer of Thoroton.)

    On Question, Motion agreed to.

    Commons Amendment

    51 Clause 28, page 18, line 16, leave out ('"'disability working allowance"") and insert (""disabled person's tax credit"")

    My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 51. With your Lordships' leave I will speak at the same time to Amendments Nos. 52, 129, 132 and 200.

    Amendments Nos. 51 and 200 are technical amendments arising from the inter-relationship between this Bill and the Tax Credits Bill. As currently drafted, Clause 28 of this Bill amends the Legal Aid (Scotland) Act 1986 to allow advice and assistance to be provided without a means test or contributions to recipients of disability working allowance. That is already the case for recipients of family credit. It is also already the case for recipients of both benefits in England and Wales. The Tax Credits Bill provides for the replacement of family credit and disability working allowance by, respectively, working families' tax credit and disabled person's tax credit. That Bill also makes consequential amendments, including to the 1986 Act, in relation to family credit.

    Amendment No. 51 replaces the term "disability working allowance" with disabled person's tax credit in Clause 28. Amendment No. 200 is a transitional provision to allow for the possibility that this Bill comes into force before the Tax Credits Bill.

    Amendment No. 52 corrects an oversight regarding the availability of legal aid for references from the Scottish Criminal Cases Review Commission to the High Court in Scotland.

    Amendments Nos. 129 and 132 are consequential on this new clause. I commend the amendments to the House.

    On Question, Motion agreed to.

    Commons Amendment

    52 After Clause 28, insert the following new clause—

    References By Scottish Criminal Cases Review Commission

    (". In section 25(7) of the Legal Aid (Scotland) Act 1986 (legal aid in appeals), for "Secretary of State under section 124" substitute "Scottish Criminal Cases Review Commission under section 194B".").

    My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 52. I have already spoken to this amendment with Amendment No. 51.

    Moved, That the House do agree with the Commons in their Amendment No. 52.—( The Lord Chancellor.)

    On Question, Motion agreed to.

    9.15 p.m.

    Commons Amendment

    53 Clause 29, page 18, line 25, after ("but") insert ("(subject to subsection (5))")

    My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 53. I wish to speak also to Amendments Nos. 54 to 63 and 66.

    This is a large group of amendments that seek to change Clause 29 of the Bill, which amends the existing provisions of the Courts and Legal Services Act 1990 relating to conditional fees.

    Amendments Nos. 54, 55, 57, 61 and 63 are simple drafting amendments to replace the expression "enhanced fees" with the more familiar term "success fee".

    Amendment No. 58 seeks to ensure that the decision in the case of Bevan Ashford v. Yeandle is accurately brought into statute. That held that where a person uses an alternative dispute resolution forum in a type of proceedings in which conditional fees are lawful, and provided the form and content of the agreement between the lawyer and the client follow the prescribed requirements for cases brought in the courts, that agreement is lawful notwithstanding that it is not technically a conditional fee agreement. The Bill seeks to reflect that within the new statutory scheme for conditional fees.

    Amendment No. 58 responds to concerns raised by the Bar Council and the Law Society. They have pointed out that, as presently drafted, the new Section 58A(4) of the Courts and Legal Services Act, inserted by Clause 29, does not accurately and fully bring the Bevan Ashford decision into statute law. The problem arises from the complex structure of Section 58 and Section 58A of the Courts and Legal Services Act 1990 as introduced by Clause 29 of the Bill.

    Section 58(1) to (3) applies to conditional fee agreements whether of the Thai Trading type without an uplift, or with an uplift—that is, a success fee.

    Section 58(4) applies only to agreements with a success fee and permits those to be regulated by the Lord Chancellor. The problem with Section 58A(4) as it stands is that it refers only to Section 58(4) and therefore only to agreements providing for a success fee. It does not, therefore, permit Thai Trading type agreements to apply in "any sort of proceedings for resolving disputes" other than court proceedings. If that extension away from court proceedings to any sort of proceedings for resolving disputes is right for no win no fee cases with an uplift, it should obviously also apply to cases where an uplift is not agreed; that is to say, a Thai Trading type agreement. Amendment No. 58 remedies that and brings Thai Trading agreements within the benefit of Section 58A(4).

    Amendment No. 59 responds to an amendment moved by the noble Lord, Lord Kingsland, who sought to ensure that a client could not raise a question of whether an agreement was lawful if proceedings had not commenced. The amendment puts beyond doubt that the agreement is lawful and enforceable whether proceedings have commenced or are only contemplated.

    Amendments Nos. 60 and 66 make clear that success fees and insurance premiums are recoverable where the forum in which the dispute is resolved is not subject to rules of court: for example, arbitrations under the Arbitration Act.

    Amendments Nos. 53 and 56 concern non-contentious business agreements sanctioned under the Solicitors Act 1974. As drafted, Clause 29 might have the unintended effect of making these agreements unlawful. I know that some of your Lordships have expressed an interest in this area. My primary purpose, in amending the Bill to protect the position of solicitors working under a non-contentious business agreement, was not to maintain the situation where solicitors offer their services in employment tribunals on a contingency basis, but to protect areas of genuine non-contentious business where they work under such an agreement. I am thinking in particular of property sales and business acquisitions where working on a contingency basis can provide a satisfactory basis for remuneration agreements between two informed parties.

    I accept, of course, that one effect will be to appear to give continuing legitimacy to these agreements in the employment tribunals. In seeking your agreement to these amendments, I recognise that there is great disquiet that non-contentious business agreements may be used to allow solicitors to offer to undertake cases before the employment tribunals on the basis of a contingency fee. I suspect that this is the concern that underlies the amendment standing in the name of the noble and learned Lord, Lord Ackner.

    Contingency fees are payable only if the client is successful and are calculated solely by reference to the amount of the award made by the tribunal. They allow the lawyer to share in the proceeds of the action. That kind of fee would be unlawful and unenforceable if it were used to fund a case before