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Lords Chamber

Volume 685: debated on Wednesday 25 October 2006

House of Lords

Wednesday, 25 October 2006.

The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Peterborough): the LORD SPEAKER on the Woolsack.

Energy: Nuclear

asked Her Majesty’s Government:

What is their reaction to the pledge byMr Warren Buffett of $50 million to establish a nuclear fuel bank run by the International Atomic Energy Agency; and whether they are considering making a matching contribution of their own if the proposal for the nuclear fuel bank is widely accepted.

My Lords, the international community is actively seeking ways to ensure that the development of nuclear energy does not increase opportunities for the proliferation of sensitive technology. The Nuclear Threat Initiative put forward an interesting proposal at a special session of the IAEA last month. At the same meeting, the United Kingdom also put forward an innovative suggestion for an enrichment bond. The IAEA is currently considering these and other proposals, and its conclusions will be important in guiding future decisions.

My Lords, I thank the Minister for that response. Is he prepared to put some of these proposals in the Library of the House so that we can be better informed about them? Does he agree that an international system of the sort being explored is by far the best way of heading off the pressure for new enrichment plants, which are the short cut to proliferation, and that the proposal by Mr Warren Buffett is perhaps one way of addressing the fear that countries with civil nuclear will be at a commercial disadvantage vis-à-vis countries that already have enrichment capacity?

My Lords, I am delighted to announce that we will put the documents on the bond in the Library of the House so that all Members can see them. I also think that Warren Buffett has made a major contribution, as has the noble Lord, Lord Hannay, in the role that he played on the high-level panel.

Earlier this year, the UK, together with the US, France, Russia, the Netherlands and Germany, presented to the IAEA board of governors a proposal to provide reliable access to nuclear fuel of exactly the kind described in the Question. Since then, we have been working hard to demonstrate how that would work in practice. The UK’s enrichment bond idea is a bold and, I believe, practical proposal that would provide recipient states with a genuinely credible guarantee of the supply of low-enrichment uranium without the risk of weapons proliferation.

My Lords, does the Minister agree that the proposal has much merit to it, particularly if one is talking about an international and independent nuclear fuel bank? Does he also agree that the future is bound to involve a major expansion of carbon-free civil nuclear power if we are serious about lowering carbon in the atmosphere; that in those circumstances there is bound to be a huge advance in civil nuclear power around the world; that the inspection system, which we have lived with since the Second World War, is not working very well; and that this alternative of an independent nuclear fuel bank to service and facilitate the use of civil nuclear energy around the world might be a much better approach? So could we have not merely putting the documents in the Library but positive thinking inside Her Majesty’s Government and possible support for an initiative based on these ideas?

My Lords, I certainly agree that the ideas are important and that they may signal a much more productive way forward than we have had. Placing the documents in the Library just makes sure that everybody has seen the proposals so far asthey have developed. I completely agree that the widespread development of enrichment capabilities leads to the threat of further nuclear proliferation. If states can be assured of reliable access to nuclear fuel, they should and, we hope, will choose not to develop enrichment and processing capabilities of their own. The bond that I have described is one part of a mechanism that in practice—it must be a practical solution—will lead to that outcome.

My Lords, I declare an interest as a member of the Nuclear Threat Initiative board, to which the Buffett proposal was originally made. I wish to press the Minister a little further on the matter. Does he see any conflict between the proposal on the enrichment bonds, which I am delighted to hear has been put forward by the UK Government, and the concept of an LEU bank? That would enable the IAEA to approach a great many countries that have highly enriched uranium, often in a research reactor or something of that kind, with a proposal for substitution by lowly enriched uranium, which cannot be turned into nuclear weapons. Will he consider carefully whether the United Kingdom might support the Buffett initiative, as well as pressing its own case? The two seem to me to be helpful to one another and not in conflict.

My Lords, I do not think that there will be a difficulty in evaluating the Buffett initiative alongside other initiatives. We are talking about different kinds of nuclear material that could not in practice all be stored in one place; nor would that be desirable. Therefore, we are bound to have different arrangements; some of them will be virtual arrangements, which would make the supply of nuclear materials for peaceful purposes practicable, and some will deal with near-weapons-grade materials. We need to look at all that range and make sure that the arrangements are appropriate for the whole range.

My Lords, the Minister will beaware that the Buffett proposal—the $50 million—is contingent on one or more countries either coming up with $100 million of matching funds or jump-starting the fuel bank with low-enriched uranium to that value. What are our stocks of low-enriched uranium and to what value would we be able to contribute to such a bank?

My Lords, I am not briefed on our stocks of lowly enriched uranium, but I shall ensure that that information is made available in so far as it is not classified material.

Employment Equality (Age) Regulations 2006

asked Her Majesty’s Government:

What guidance they have given to employers and employees on their rights and responsibilities under the Employment Equality (Age) Regulations 2006.

My Lords, ACAS good practice guidance for employers and employees and DTI guidance on the occupational pensions aspects of the regulations were published in April. The DTI website contains additional guidance, including the Explanatory Notes on regulations. The Directgov and Business Link sites also provide information and an interactive tool for individuals and employers. The Department for Work and Pensions “Be Ready” campaign has provided1.4 million employers with information about the legislation and good-practice guidance, and a quarter of a million further guidance materials have been ordered.

My Lords, I thank the Minister for that reply, but is he aware of the grave concern expressed by the Employers Forum on Age and others—experts in the field who positively want the legislation to improve the lot of older workers—that the regulations in their present form will seriously upset the provision of a wide range of insured employee benefits that are currently available? Will he assure the House that the Government will consider sympathetically the amendments proposed by the EFA, which are designed to prevent that unintended but certainly perverse result?

My Lords, we issued the regulations and the guidance after a great deal of consultation. With the exception of pensions, where further aspects need to be looked at, we should see how the measures work in practice. Further work is being done on pensions, and amendments will be made.

My Lords, in view of what my noble friend has just said on pensions, will the Government do anything to encourage employers to offer employment opportunities to older women? Many older women would welcome access to light part-time employment as they approach retirement age. Is anything being done to encourage them to do that?

My Lords, as far as I am aware, the regulations are entirely concerned with discrimination and preventing discrimination. Other issues involve encouraging employers to take certain steps, but the matter that we are discussing is different and is a much more difficult task.

My Lords, does the Minister recognise that to remove age discrimination at work there needs to be real and equal opportunities for older workers in training and vocational education? That is certainly not the case, particularly regarding NVQs and modern apprenticeships. Have the Government considered the problems that may well arise with regard to employers who want to continue rewarding employees for seniority or long-term service in a job? Will the Government clarify those points?

My Lords, it is clear that the regulations cover discrimination on the ground of age in all aspects—recruitment, promotion, transfer, training, or terms and conditions of employment. They very much cover training, although there are obviously specific issues concerned there.

My Lords, I have sympathy with the Government, because age discrimination raises more complicated issues than many other kinds of discrimination. Is the Minister aware, following what was said by the noble Baroness, Lady Howe, that the specific issues raised by the Employers Forum on Age are really quite serious? They include the lack of guidance or sensible policy on redundancy, insured benefits, pension-related matters and government-funded training schemes. It seeks not just policy changes but further guidance to clarify those issues. Would the Government be prepared to look again at the lack of proper guidance, as the forum says, on those issues, and in particular consider giving guidance on what is meant by an “objective justification” for refusing to continue employing workers beyond the age of 65? That seems a particularly important practical question.

My Lords, if there is serious concern on those issues—I have not been made aware of it—I will certainly look at it. If there are real doubts about what the regulations say, we will of course have a further look at them and issue any clarification necessary.

My Lords, the Minister described an incredible amount of guidance that had had to be issued. Does not the need for so much guidance reflect rather badly on the clarity of the regulations?

My Lords, this is a case where the House normally has it both ways. If there is little guidance, it objects that there is not enough guidance and clarity. If there is a lot of guidance, people say, “That must show that the regulations are not clear”. It looks to me as though there is perfectly sensible guidance, that it has been distributed very widely and as a whole has had a good response.

My Lords, I will ask a broader question if I may. Very many people want to continue to work full time past the age of 65, but I suspect that very many more would like the opportunity to combine part-time work with a part-time pension. How are the Government progressing their initiatives on that front?

My Lords, the Department for Work and Pensions covers the pension part of the age discrimination legislation, but I will make certain that the noble Baroness has an answer to that question.

My Lords, will my noble friend also look at the possibility of removing discriminatory upper age limits for appointments to public bodies?

My Lords, if the House would like a briefing on the regulations that is tailored to its particular needs, I am sure DTI officials can provide one.

My Lords, is the noble Lord aware that the regulations are being interpreted by many employers, on legal advice, as having the effect that it is not permissible to request dates such as the start and finish of former employments, let alone of education? Does he appreciate that this is making the process of deciding whether a candidate is suitable for many jobs almost impossible, despite having nothing to do with discrimination on the ground of age?

My Lords, I do not think that there is a question about whether the guidance is right. If there is a question about what the legislation says or if the guidance is misleading, ifthe noble Lord will write to me I will find out the answer.

My Lords, is it the case, as is anecdotally stated, that not only can those dates not be stated but the date of birth cannot be given in a CV or be asked for by employers? That surely must be mad.

My Lords, I think the guidance states that it should not be on the application form, but it can be asked for alongside this for the purpose of monitoring diversification.

My Lords, can the Minister tell us whether the employment of Clerks in this House is subject to the new legislation?

My Lords, I cannot. The two Houses are almost always removed from this legislation for reasons that are slightly obscure to me, but I will look into that and let the noble Baroness know.

Iran: Nuclear Programme

asked Her Majesty’s Government:

Whether they support the proposal that security guarantees should be offered to Iran by the European Union 3 (Germany, France and the United Kingdom) and the United States, in return for Iranian suspension of work on producing highly enriched uranium.

My Lords, Javier Solana presented proposals to Iran in June on behalf of the EU3, China, Russia and the United States. Those proposals offer the basis for a long-term agreement. They would give Iran everything it needs to develop a modern civil nuclear power programme and political/economic benefits, while meeting international concerns. We would support a new conference on regional security and discuss in negotiation any ideas that Iran wishes to propose. Regrettably, Iran has not yet taken the steps necessary for negotiations to begin, including a full suspension of all uranium enrichment-related and reprocessing activities, as required by the IAEA and the UN Security Council.

My Lords, I am most grateful to the Minister for his reply. May I ask two further questions? First, will he make it absolutely clear that it is not the purpose of those who are negotiating with Iran to seek regime change in the way indicated yesterday by Mr John Bolton, the US ambassador to the United Nations? Secondly, within the welcome thought of a regional conference, might it be possible to consider alongside the suspension of enrichment activities—I strongly agree with the Minister on that—security arrangements that would allow Iran to recognise that no one is about to attack her?

My Lords, the proposals made by Javier Solana on behalf of the EU3 plus three, which includes the United States, were very clear and certainly did not involve any notion of regime change; that was never part of the proposals or any of the discussions that followed them. Discussions on any security issues—I should make it clear that Iran itself has never asked for a regional security package of this kind—would have to be held on their merits. I do not think that it is a matter of getting into negotiations by threatening one another, but, equally, Iran must stop the enrichment process. It must abide by United Nations and IAEA decisions. That is absolutely paramount.

My Lords, might this not be perceived as rewarding Iran for its contempt of the international community? Is there not some danger of creating an unfortunate precedent?

My Lords, I suppose that there is always a risk that, if people are particularly truculent and the international community is drawn into ever more detailed negotiations, that could be seen as a reward. I must confess that I look at the matter through the other end of the telescope. Unless we can make diplomatic systems work with a country like Iran, the dangers are very much greater.

My Lords, are the Government fully briefed on the wilder voices in Washington that are still talking about forcingregime change in Iran or, even, about using military force against Iran? Given that Iran has to be partof the equation in dealing with the problems in neighbouring states—Iraq to one side and Afghanistan to the other—and that we know that some American officials are having to talk to Iran about the management of developments in Iraq, are the Government making it clear to the Americans that we have to deal with Iraq’s neighbours on a constructive basis in order to bring some resolution to the current conflict in Iraq?

My Lords, I had hoped that from my initial Answer to the noble Baroness, Lady Williams, it would have been clear that we have urged an open and diplomatic process in which Iran could bring matters to the table, provided that it stops the processes of nuclear proliferation that may well follow from its enrichment programme. It has to do that. We are very open in what we think. If other countries take a different view, it is for them to answer those questions. Everybody understands exactly what we have intended, and Javier Solana put that in terms.

My Lords, does the Minister feelthat the EU3 intervention exercise from its commencement has been, on balance, a considerable success, notwithstanding the continuing existence of a number of large problems? Apart from the latest outburst by John Bolton at the UN, would the Minister not agree that one consequence has been that the United States has confirmed that it would not consider any military intervention in Iran? Does that not lead us all to the obvious conclusion that the sooner there is a regional solution to these problems, which would include Lebanon, Israel, Palestine, Iran and Syria, the better? That would require Israel’s co-operation as well.

My Lords, I am sure that the interplay of issues throughout the Middle East requires the involvement of a number of parties. That process of negotiation would be unlocked and would move forward more rapidly were the negotiations on the road map in the Middle East to be pursued vigorously and as rapidly as possible. Having said that, with regard to the particular problems of engaging with Iran, Iran needs to engage with everybody else. Iran must also realise that we cannot accept breaches of the UN Security Council resolutions or threats if we continue to pursue what the Security Council has agreed.

My Lords, why should a man sitting on an omnibus in Tehran support a compromise by the Iranian Government when he knows that Israel is not prepared to cede on nuclear weapons?

My Lords, different issues are involved here, and it would take a rather long answer—longer than is permitted at the Dispatch Box—to explore all of those differences. We wish to see a Middle East free of nuclear weapons, and we would prefer to see the Israelis controlled in that respect by the non-proliferation treaty as well—we have made that clear on any number of occasions. The problem in Iran is straightforward: it has started a process which the IAEA has concluded is dangerous and that the Security Council has concluded must stop. It is a simple proposition: Security Council resolutions on this matter must be obeyed.

My Lords, the Minister is putting the matter clearly. He is right to say that the proposals from the EU3 and America are also clear. But is not the reality that, even while we are talking here and certainly while the proposals are being put forward, the Iranians are continuing to fire up a large new cascade of centrifuges and that they are simply continuing with the purpose that they have in mind, which is to develop civil and possibly weapons-grade nuclear power? Does not all this conversation reinforce the validity and worthwhileness of the proposition that the noble Lord, Lord Hannay, put forward in the first Question today—namely, that this inspection route and the attempt through the IAEA to curtail Iranian activities when they are determined to push ahead is probably not going to work and that a far better way would be through the nuclear fuel bank idea, which we should develop as rapidly as possible?

My Lords, I do not know that I can add much to what I said about our support for that development when I answered the first Question. However, UN Security Council Resolution 1696 makes provision for other options to be considered as forms of pressure on the Iranian regime. Under Article 41 of the UN Charter it is possible in those circumstances to discuss sanctions. If the Iranians cannot bring themselves to accept the United Nations’ decisions on the matter, that is inevitably the next step.

My Lords, we accept that there is considerable sensitivity in this issue, but will my noble friend remind us that there is an unstable regime in Iran, which is part of the trouble? Should we not also remember that there is no political or moral equivalence between states that do not have rule of law and an open system of government and statesthat do?

NHS: Tattoo Removal

asked Her Majesty’s Government:

What was the cost of tattoo removal to the National Health Service in the last year for which figures are available; and on what grounds patients qualify for this treatment on the National Health Service.

My Lords, information on the cost of removing tattoos on the NHS is not collected centrally. Tattoo removal may be available on the NHS if a clinician considers that an individual patient’s health requires it.

My Lords, I thank the noble Lord for that Answer. I draw his attention to the Answer to a Written Question on 18 October, which said that 187,086 tattoos were removed in the past year. As most of that work will have been done by plastic surgery, consultants believe that it could represent a bill of either £37 million or as much as £300 million. Will the Minister comment on the fact that people pay privately to be tattooed and that the general attitude of dentists and those who work in the National Health Service is that you cannot have beauty treatment on the NHS, only clinically necessary treatment? Is there not a risk that a great deal of money is being spent here on something that should have a lower priority?

My Lords, the noble Baroness is of course right that cosmetic surgery and treatment is not available on the NHS. I am aware of the Written Answer that she mentioned, which was made on9 October in another place. I need to inform the House that I asked for the calculation that was used in that Answer to be rechecked by Department of Health statisticians for the purpose of this Answer. Shortly before coming into the Chamber, I was informed that the calculation was incorrect by a substantial margin owing to a significant number of errors in coding usage. I will of course ensure that the Written Answer is corrected, and I shall write to the noble Baroness, placing a copy in the Library—when we have double-checked the new calculation.

My Lords, does the Minister agree that, if the tattoo involves the whole of a patient’s back and it is a complete fox hunt scene with the fox going to ground, that could present certain major surgical problems? On the other hand, a patient came to me with a very offensive tattoo that he had had put on his hand while he was in prison. He was a reformed character and wanted it removed, but no one would do it, so I did it under local anaesthetic on a Saturday morning at no expense to the NHS.

My Lords, I am sure that the whole House will want to compliment the noble Lord on his humanitarian actions. We also suspect that, given his surgical skill, he would be able to cope with the fox-hunting dilemma that he described. I suspect that he and a number of his colleagues on the Benches opposite may well want to use the services offering laser treatment to remove tattoos saying “I love William” that have been replaced with others saying “I love Iain”, “I love Michael”, and so on.

My Lords, my noble friend indicated in his Answer to the noble Baroness, Lady Gardner, that statisticians had said that the Written Answer figures were incorrect. Did the statisticians indicate whether the figures were higher or lower?

My Lords, are the Government considering allowing patients to mix private payment for some parts of their care with standard NHS provision, thereby subsidising their own care, rather than, as currently happens, each episode of care being wholly funded by the NHS or wholly privately funded?

My Lords, although the noble Baroness’s query is a bit wide of the Question, I think she knows that, since the beginning of the NHS, it has been possible to have private pay beds in NHS hospitals available for people to receive private treatment, the profits going towards funding the NHS.

My Lords, is it not extraordinary that a Question should be answered in another place grossly wrongly and that that should emerge only when a Question is asked here that would be embarrassing to answer with the true costs? How can we give credence to any Answer about costs and statistics in the National Health Service when such things are allowed to go on unchecked until there is a further Question in this House?

My Lords, I seem to recall thatunder the previous Government and indeed under successive Governments there have been errors in answers given in the other place, which have been corrected and the record has been put straight. A certain amount of humbug is coming from thenoble Lord.

My Lords, the Minister referred in his initial Answer to the problems of coding. When a clinician decides on mental health grounds to go ahead with a procedure, does the money come from the mental health budget or is it under another budget, such as an ISTC?

My Lords, when a tattoo is removed for mental health reasons, I am not sure where that would figure in the accounts, but I shall make inquiries and write to the noble Baroness.

Energy: Radioactive Waste Management

My Lords, with permission, I shall repeat a Statement made earlier in the other House by the Secretary of State for Environment, Food and Rural Affairs. The Statement is as follows:

“With permission, Mr Speaker, I would like to make a Statement on the report of the Committee on Radioactive Waste Management—CoRWM—which was published on 31 July. Similar Statements have been made in the Scottish Parliament and Welsh Assembly. I thank the chair, Gordon MacKerron, and the members of the committee for the outstanding effort that they put into arriving at their unanimous report.

“The issue of nuclear waste disposal has dogged successive Governments. CoRWM was asked to recommend the best option, or combination of options, for the long-term management of the UK’s higher activity radioactive waste to provide protection for people and the environment. The Government believe that CoRWM's report provides a very strong basis for moving forward with clarity and consensus. We accept CoRWM's recommendations that the UK's higher activity waste should be managed in the long term through geological disposal, and the continuing need for safe and secure interim storage until the geological disposal is available. We also agree with CoRWM that we must continue to build on the momentum that it has helped establish.

“As CoRWM’s report observes, geological disposal is the approach being adopted in many countries, including Belgium, France, Finland, Japan, Sweden, Switzerland and the US. Nevertheless, securing geological disposal represents a major challenge and will require a commitment over many decades. We accept CoRWM's recommendation that the process for developing a geological disposal option should be undertaken on a staged basis, with clear decision points. This will allow Government to review progress, assess costs and value for money and environmental impact before decisions are taken to move to the next stage.

“Planning and development of the geological disposal option must be based on four keypillars. First, it must have a strong and effective implementing organisation, with clear responsibilities and accountabilities. Secondly, there must be strong independent regulation by the statutory regulators—the Health and Safety Executive, the environment agencies and the Office for Civil Nuclear Security. Thirdly, there must be independent scrutiny and advice to Government on implementation. Fourthly, there should be a partnership with the host community.

“The CoRWM report observes that the safe and secure storage of civil legacy radioactive waste already falls within the remit of the Nuclear Decommissioning Authority established under the Energy Act 2004. The NDA also has responsibility for disposal of low-level radioactive waste in its current remit. We have decided that responsibility for securing geological disposal of higher activity waste should also fall to the NDA, to create one organisation able to take a strategic view through all stages of the waste management chain, accountable in a clear and transparent way to independent regulators and Government.

“The NDA is already subject to statutory safety, environmental protection and security obligations under the Energy Act 2004, and its contractors are subject to regulation by the environment agencies, the Health and Safety Executive and the Office for Civil Nuclear Security. Its strategy and annual plans are subject to approval by Government. We will ensure that in future the longer-term radioactive waste management interests of Government are appropriately represented in the NDA’s strategy, and that it has governance arrangements to reflect its increased responsibilities.

“Nirex has played an important role in maintaining and developing the UK's knowledge on geological disposal, including the provision of advice to industry on waste conditioning and packaging, since the demise of its own geological disposal development programme in 1997. The Secretary of State for Trade and Industry and I, as joint shareholders in Nirex, are grateful to the successive chairs and the board for their hard work, and of course to the expert staff involved. None the less, the Government believe that having two organisations on the same playing field with potentially overlapping responsibilities has the potential to confuse and blur accountability. Instead we are determined to harness the skill and commitment of the staff involved within the NDA. Following the Statement we shall allow Nirex a short period to comment on the proposed ownership transfer and how it could best be brought about.

“The independent environment and nuclear safety regulators believe that this proposal will provide a framework that they can regulate in a strong and effective manner. They are content that the Nuclear Decommissioning Authority will be responsible for implementing the geological disposal programme, within the constitutional arrangements which I described earlier. The regulators’ support is of major importance, as strong independent regulation is key both to ensuring the safety of people and the environment and to securing confidence and trust in the delivery arrangements.

“Coming to the third key pillar of our approach, we remain committed to independent advice. Accordingly, a successor independent committee will be appointed to give advice on the plans for the long-term management of radioactive waste. CoRWM has set the standards for open and transparent advice that takes into account not only the best available scientific and other expert input, but the views of the public and stakeholders. It has also built up support and brand recognition.

“The new committee will therefore maintainthe current name, but its membership will be reconstituted to reflect its role in the next stageof the Managing Radioactive Waste Safely programme. The committee will be sponsored by Defra, the DTI and the devolved Administrations. Its primary functions will be to advise onthe implementation of a geological disposal programme, including considering the strategy and delivery plans and the site selection process. It will make its advice available to the UK Parliament, the Scottish Parliament and the National Assembly for Wales, as has been done by CoRWM.

“The circumstances surrounding the long-term disposal of higher activity radioactive waste are unique. We have made it clear that we are not seeking to impose radioactive waste on any community. In this context, we are strongly supportive of exploring the concept of voluntarism and partnership arrangements with the local authorities serving communities that might be affected. As CoRWM recognises, there is a need to consider further how such arrangements could work in practice. Accordingly, we will look to further develop a voluntarist and partnership approach including the stages and decision points, how communities would be involved, the role of democratically elected bodies, and the potentialfor involvement and community packages, as suggested by CoRWM.

“Disposal facilities will be built only in a geologically suitable area, and we will consider how geological and scientific considerations will be meshed with other societal considerations as, for a successful programme, all criteria will need to be met. I invite any local authority or group of local authorities that wishes to be involved in these discussions to contact myself, my honourable friend the Member for Dudley South or officials directly. Similar invitations are being extended by my colleagues in the devolved Administrations.

“It must be stressed that any future facility-siting process will be a wholly new process, divorced from the historical Nirex process. Lessons have been learnt from that. We are also determined that the new approach will be carried out fromthe beginning in an open and transparent waywith appropriate opportunity for public and stakeholder as well as expert involvement.

“In the light of this further work, the Government will produce an implementation framework and publish it for consultation as soon as possible next year.

“This announcement, and the more detailed response which I am publishing today, copies of which have been placed in the Library of the House, completes stage 2 of the Managing Radioactive Waste Safely programme. We are now entering stage 3 on planning for implementation. We aim to be able to move to stage 4—the final implementation stage—in 2008, confident that the sharing of information and viewpoints and the transparency of the CoRWM process has been maintained.

“The CoRWM report says that,

‘for over three decades, efforts to find solutions to the problem of long-term radioactive waste management in the UK have failed’.

Governments of all parties have struggled to develop a long-term approach to this issue founded on science and driven by openness and transparency. I believe my Statement today combines scientific rigour and clear accountability, and I commend it to the House”.

My Lords, that concludes the Statement.

My Lords, I begin by thanking the Minister for repeating the Statement by his right honourable friend in another place. I add my thanks to his to the Committee on Radioactive Waste Management for its work and the completion of its report, which is now clear. As it says, this problem has been around for more than 30 years. Interestingly enough, it is still the same problem today as it was30 years ago. The solution has been around throughout that period, and has not changed in those 30 years.

There has been a culture of prevarication and obfuscation over that time, and I regret that there is no political honour for anybody in our discussing this matter today. The real question is: do the Government actually mean business? I note what is said at the end of the Statement about moving through the stages to implementation, but regrettably the possibility of further prevarication exists.

I welcome the decision that the Nuclear Decommissioning Authority will take responsibility for disposal of nuclear waste, and that body’s proposed absorption of Nirex. I also welcome the continuation of CoRWM to provide independent advice. However, the Statement is not clear on what happens if the Nuclear Decommissioning Authority and CoRWM disagree on the strategy. Is there a mechanism to resolve that disagreement, or would such disagreement impose further delay?

I would be grateful if the Minister could explain the cryptic remark that occurs on the top of page 5,

“exploring the concept of voluntarism”.

Is that, in effect, a bidding process for local authorities that have suitable geology to, shall we say, advance themselves as possible candidates when sites are considered? That prompts a further question: what happens, as seems perfectly possible, if nobody volunteers? How is that to be resolved, or will we come back to someone having to say, “In this situation we will have to look and act without a volunteer”?

I am not quite sure what,

“divorced from the…Nirex process”,

means. Nirex considered all types of disposal and the whole of the country. I even remember a consultation, sometime in the late 1970s, about a possible disposal site in Essex. Since we know that its work must have been very thorough, is all that work to be disregarded? Are we really to do it all again?

The final question that is not clear in this paper—inevitably so, I suspect—is the little matter of finance. Is sufficient funding already provided to enable the planning process to be fully undertaken, because it will still involve a great amount of detailed work that will incur expense? Some assurance on that would certainly help. Even more importantly, deep geological repositories, which are a major long-term development, will involve a long-term financial commitment. The horrible reality of 30 years of delay means that the cost of that work is now grossly inflated from the figure that it might have been had the job been undertaken 30 years ago. Will the Government therefore establish a fund now—not putting in all the money, but some funding? Will they start building a fund so that when we come to construction some of the money will be there? That would provide two assurances: first, that the Government are absolutely determined to get this through; and, secondly, that the planning work cannot possibly impose any additional delay. I look forward to hearing the Minister's response.

My Lords, we on these Benches welcome the Statement as a small but very important step on the road to dealing with the immense legacy of nuclear waste from the second half of the 20th century. As has been said, the solution has been around for a long time. It has been accepted that the waste should be buried. I know that CoRWM was set up to reconsider all the options, but it has returned to the same conclusion. The issue has always been: where? If there is a weak point in the Statement it is: what happens if no community is willing to take the waste? Although fine words are said about democracy and that a community will be allowed to say no, what if a local council in Wales, for the sake of argument, says yes—obviously, the Government will have to offer considerable benefit to go with the acceptance of waste—but the Welsh Assembly says no? The issue is fraught with questions. I hope that it can be worked through, because it is essential just to deal with the legacy of waste. I am glad that the terminology is “managing” now, because it certainly still cannot be viewed as disposal. The waste is not being disposed of; it is simply being managed underground.

One of the most interesting recommendationsand government responses comes under recommendation 7, which states:

“If a decision is taken to manage any uranium, spent nuclear fuel and plutonium as wastes”.

That is one of the biggest items in the whole report. First, there is a fair amount of such material and, secondly, there is an enormous budget implication well beyond what the Government have already costed. Will the Minister repeat the estimated cost of disposing of nuclear waste as envisaged by CoRWM? If recommendation 7 is taken on board to include all those materials, the spent plutonium will have to be moved in budgetary terms from an asset column, as it is now classified by the Government, to a cost column, with considerable implications for budgeting. I hope that safety issues will be paramount rather than accountant-speak—being worried about the shifting of figures, which will have to happen.

The industry has been subject to constant change. Only yesterday, the formation of the new nuclear research body and the break-up of British Nuclear Fuels Ltd were announced. Reorganisation undoubtedly brings difficulties. The Government have accepted that there is an ever decreasing pool of expertise in this area. Although the Statement talks of independence, it will be very hard to get people who are truly independent, in the sense that they are likely to have worked for a long time in the industry. The democratic process will have to bring the checks and balances of that independence into being. I certainly hope we will have the time to examine that in this House.

The creation of the Nuclear Decommissioning Authority, which we debated in your Lordships’ House during consideration of the Energy Act 2004, was a very positive move, and I hope that, in tandem with the other changes announced today, it will add impetus to dealing with the legacy of waste. None of this Statement can be taken as encouraging us to think that a future nuclear-build programme, in the unlikely event that we get there in our lifetimes, will be any more possible or likely until all these enormous questions about waste are dealt with.

Finally, I hope that the House will now welcome CoRWM’s work more than it did in a memorable debate in which I was probably the only person in your Lordships’ House, apart from the Minister, to defend its work, because the committee involved had produced such a damning report on it. I hope that we can be a little more welcoming today.

My Lords, I am grateful for the responses from noble colleagues. The noble Lord, Lord Dixon-Smith, said that the problem has been around for 30 years, and so have the solutions. I am not sure whether that is literally correct, but he is generally correct that many people have considered the problem.

Regardless of whether there is an issue between CoRWM and the Nuclear Decommissioning Authority, the Government must agree the plans. The Nuclear Decommissioning Authority was set up under the Energy Act, so there are constraints. Indeed, we are considering the Government’s arrangements, as the Statement said. We need a public discussion on the matter. I do not want to go over the past, because things can be misunderstood, but we also need a clear and transparent audit trail, exactly as the CoRWM process has shown. CoRWM has produced a first-class report with a first-class audit trail, and there can be no criticism of that. In some ways, that is where the answer lies in relation to the new facility siting process being divorced from the Nirex process. We must discuss how voluntarism and partnership can be linked to the scientific assessment of sites. The Nirex site list is, however, disregarded. That is what was meant by the new process being divorced from the Nirex process. One cannot wipe out what happened, but we now have a different arrangement. There is no question of going over the Nirex sites.

I cannot answer the financial question about possible start-up costs, but point to evidence from other countries—I listed six, seven, or eight of them; I forget the exact number. We do not want to look as though we will fail. The Statement was made only today. I would not be surprised if the odd local authority had not made inquiries, because that is the way in which things will be done. We must set up a process in 2007, as we have said, so that we can assess the voluntary approach. We want an assessment and a solution based on partnership and a willingness to participate. As I have said, international experience indicates that this approach is the one that is most likely to succeed. So I do not envisage failure at the moment. It is true that the costs are large. We are talking about huge sums of money, as nobleLords know better than I do. The Nuclear Decommissioning Authority, funded by the Government, deals with historic waste. Any new operators must share the costs of their work.

The Written Statement yesterday is, in a way, quite separate from today’s Statement, and I am not briefed to answer questions about it. Moreover, as always, in this narrow and specialist area as in other areas where science is involved, there will be debates about the independence of the people involved. One has to be realistic. Expertise probably will come from a specific area of scientific and academic research, and one of the practicalities of the industry is that you draw on that advice. I cast no aspersions on what the noble Baroness said, but while there must be checks and balances in the governance arrangements to weigh up the risks involved in taking independent advice, just because a person has worked in the industry does not mean that their advice on the best way forwardin another context—advice based on their experience—is not valuable or not independent. We are talking about an issue where no one around now will ever be accountable for their advice. This is decades of work.

On the question about cost implications if plutonium is declared a waste material, the Nuclear Decommissioning Authority will consider this as part of its strategy and planning, which will require government approval. It goes without saying that the Government are accountable to Parliament. Parliament would be involved in terms of scrutinising government actions. The planning I have referred to will include carrying out further important work to determine the costs. To be honest, I cannot go down the road of costs. All kinds of figures are bandied about and these costs will run over decades. Whatever ballpark figure one puts out, whether it is hundreds of millions or indeed billions, the costs will stretch over an indeterminate number of decades that neither I nor anyone else can begin to predict at present. Further work has got to be done.

Finally, in response to the noble Lord, Lord Dixon-Smith, we are determined to proceed on this and to secure as wide a consensus and partnership as possible. Previous approaches have failed, and that is no criticism of either Government. But the fact is that it is now time for action and we have to make some progress. The voluntary partnership approach seems to work elsewhere in the world and there is no real reason why it should not work here.

My Lords, perhaps I may advise the Minister that my noble friend Lord Dixon-Smith is absolutely right about the time span of 30 years. Some 27 years ago I had ministerial responsibility in this area, and if one is inclined to be cynical, one would say that the only thing which has changed is that the Radioactive Waste Management Advisory Committee (RWMAC) has become CoRWM. I inherited a situation in which the previous Labour Government’s attempts to develop geological storage had failed in the face of strong public opposition in several different places. I formed the view then that interim storage, as it is described in this paper, was much the most likely outcome and that it would be built in places which had a strong economic interest in the future of the nuclear industry. Moreover, vitrification would be a good way of making safe these materials and would therefore be the most likely process.

Is the position of the Government still the one recommended I think by the committee of the noble Lord, Lord Flowers, that there should be no more nuclear power plants before we have an established means of nuclear waste disposal? Is that still the position and is it the reason for the Statement today? Does it open up the opportunity to introduce more nuclear power provision, which I certainly support? However, I should say that the one very sensible statement made in the longer document to which the Minister referred is that local authorities should plan for interim storage to last for at least 100 years.

My Lords, I welcome the noble Lord’s confirmation. I asked my officials aboutthis because in the past a lot of people involved in this area would come to round to my house about this subject—and not just those in the industry, but Ministers. So I respect what the noble Lord has said. The energy White Paper made the position abundantly clear. I am well aware of the allegations that nuclear waste would somehow not be dealt with, thus making it much easier for us to oppose new nuclear build. But we have to deal with nuclear waste whether there is new build or not; that is the reality. We owe it to future generations to deal with this waste. The people of this country want the lights to come on when they turn on the light switch. Approximately a fifth of that power is from nuclear energy.

I do not want to get into new plants, but we have to deal with the waste whether or not there is a new build. The position on that was wrapped up more in the energy White Paper, quite separate to the CoRWM report.

My Lords, this partnership with host communities was the pipedream of Nirex, which tried to impose the repository on West Cumbria, where I live. It was a disastrous proposition which met universal hostility in the local community. From this we should learn a clear lesson: it is highly unlikely that anyone will volunteer. I might change the phrase from nimby to wimby—“Welcome in my back yard”—but this will not be welcome in anyone’s back yard.

Is not the real answer the one that people simply refuse to examine, which we concluded at the time was the solution; that is, to have an international settlement or site somewhere in the world where everyone sends their nuclear waste? That is the long-term solution that will survive a century; it is not for every nation state to somehow deal with the matter in a local way which offends local communities.

My Lords, I will not go down that road. I do not know the details and am going on advice here, but I read out a list of countries where this process appears to work. The evidence is that we ought to be able to find a site—I do not know whether a site or sites will be involved—based on international experience. I fully respect what my noble friend says about what happened under the previous proposals, which is probably why the voluntary route is the only way we can go down now.

My Lords, as the Minister repeated the Statement, I was struck by how many of the recommendations that form part of it closely mirror what the Select Committee of this House said some seven years ago, in a report under the chairmanship of the noble Lord, Lord Tombs. However, there is one exception: our report recognised, as the Minister said today, that Parliament has to be involved. The recommendation we made was that at least once in every Parliament, there should be an opportunity for both Houses, with a Statement of progress in front of them, to have a debate and to support the continuation of the process. I hoped that this line would be supported by all parties.

The Minister is right: this problem has to be dealt with and it will take decades. It is not enough just to say that Ministers are accountable to Parliament. The opportunity for a regular parliamentary debate at least once in every Parliament was seen by that Select Committee as an important measure in giving democratic accountability, so that Governments and those involved—the NDA and the new forum, which I hope will have lots of scientists and engineers on it—have the support of Parliament as the voice of the nation. I do not want a categorical undertaking but I ask that the Minister will take that away and discuss it with his colleagues.

My Lords, I can give a more specific answer. I am not familiar with the advice that the Select Committee gave seven years ago. However, only two years ago when Parliament pressed the Energy Act, it gave the Nuclear Decommissioning Authority the status of a non-departmental public body. It is subject to scrutiny by Parliament, it can be and is called before the Select Committee in the other place that looks after the DTI, and there are Select Committees here. It seems quite normal that Parliament would want to have regular check-ups or stock-takes on such a long-term process, and that Parliament would do so in the way that it thought appropriate. This matter affects everybody, and if it goes wrong we get the blame. Government are accountable to Parliament.

My Lords, I have two questions. My first question relates to devolved Administrations. I am not clear what the position would be if it proved impossible to find a geological site in Scotland or Wales but one was found in England, or vice versa. Would the waste from one part of the United Kingdom go to the other part which had accepted it, or is it intended that there will be self-containment, as it were, within each of the units of the United Kingdom?

Secondly, like other noble Lords, I am fascinated by the idea that we are not seeking to impose radioactive waste on any community. That is made very clear in the Statement. To discover what the Government mean by “community” I looked inthe report, but all it has, on page 13, is a list of all the fairly obvious and interesting questions.

It may be unrealistic but let us assume that support could be found to revisit the proposal for a site in west Cumbria. What is a community? What would happen if the parish councils were against the proposal—and perhaps parish polls voted against it—but the district council could be bribed to be in favour of it; if the National Park Authority and the county council were against it, but the North West Regional Assembly voted in favour of it? What do the Government mean by “community” in this sense?

My Lords, as I understand it, most of west Cumbria and the coast are not within the park authority in the first place, so that issue does not arise. But that is a minor point; the central point of the noble Lord’s question relates to devolved Administrations. Today’s Statement has been agreed with the devolved Administrations. The CoRWM report was published on 31 July, just after Parliament went into Recess. We are making the Statement today because this is the first available opportunity when all three bodies have been sitting. It has not been possible since we have been back because I understand the Welsh Assembly has been in Recess, having come back earlier. If the noble Lord checks the legal arrangements he will find that nuclear waste is a devolved issue—and that, therefore, should answer the first part of his question.

My Lords, when covering CoRWM, the Statement referred to the views of the public and the Minister spoke about public discussion. Whenwill the Government start the process of educating the public about the nature of radioactivity and the problems we face, as advocated in the report of the Select Committee of your Lordships’ House in 1999? At present, the general public believe that the problem is insurmountable, that there is no technical solution that works. Clearly such a process will take some time, not a few months—I think the report stated that it will take at least a year or maybe 18 months—so when will we start work on educating the public?

My Lords, attempts have been made all along. It is true that most people just want to get on with their lives without any interference from the Government. By and large, this issue affects people when it affects them—either through their jobs, their communities, their locality, their family and so on. CoRWM has gone through an incredible process of consultation around the country which has been open and transparent. For those areas the process is under way. There is no single magic policy or annunciation or statement that will convince everyone. Surely people by now are wised up to the fact that we are losing control over our supplies of gas because the North Sea is running out; that there are some parts of the world that are politically unstable so where are we going to get our energy from? The issues of climate change are beginning to impinge on people. The process goes forward on a daily basis.

My Lords, having had, for the second time this year, a three-hour black-out at home, which again reminded me of the 1960s, I have some idea of what could happen in not too many years time unless we move forward on this question. It is absolutely essential that the message is got across to the public and, in that sense, the noble Earl, Lord Attlee, has raised a very important point. Certainly two of the countries which come to mind, to which my noble friend referred in his list, carried out immense work with the public. The Canadians were outstanding and got a great deal of support. Admittedly it is a very large country and it is not unsurprising that some interest has been shown. But Finland, which is smaller, I think had three competitors for its storage plant. It is important that the public should understand that a number of countries have done this and how they have done it.

Secondly, the general public’s perception of nuclear waste is grossly misleading. We have heard it described in this House this afternoon as “immense”. That is in the eye of the beholder. I think the last spokesperson for Greenpeace described it as “mountainous,” which it is not. Therefore, it would be helpful if some very clear information could be provided to the public, to remove from people’s minds what is being fed to them by those who are, I think, pushing another agenda: that of not having any further nuclear power plants.

Maybe I am anticipating something that will come along, but most countries have offered incentives. It would be extremely encouraging for local authorities to know that there is a benefit beyond creating employment for those who do not have it. The French did remarkably well in this, but, again, that is a differently run country, although they run my electricity supply. Lastly, presumably it is possible to indicate that some parts of the country are unsuitable. Why have greater anxiety in those parts if we can say, as I am sure Mr Livingstone will say of London, that they are not suitable?

My Lords, I take my noble friend’s point about needing to overcome an anti-science climate. It does not apply just to this area of activity; there are others. Most people go to hospital without thinking about what happens to the low-level waste. I remember, some years ago, my former colleague, now a Member of this place, the noble Lord, Lord Cunningham, receiving letters which said, “You should have this stuff put in your constituency”. Of course, that is where it now is: at Drigg, in Cumbria—tonnes of low-level waste from hospitals all over the country, looked after perfectly adequately. If we were not going to do that, we could not use X-rays in our hospitals. We have to make clear to the public the connection between the benefits they receive from our use of science—including electricity and medical attention—and the need to deal with the consequences. We must explain it properly.

In the past, I suspect this industry has probably been its own worst enemy, by not discussing matters openly enough. When HIV became a problem, the noble Lord, Lord Fowler, broke all precedent for the Conservative Party by having all those leaflets that talked about sexual practices put through 20 million doors. No one ever dreamed of doing that. If you explain these things to people, they begin to understand why other policy actions are being taken. If we do not explain, we have only ourselves to blame.

My Lords, my memories of this issue also go back a considerable time. I seem to remember a proposition that nuclear waste should be buried at sea. That was very soon thrown out. While we have considerable experience of this issue, and of the general opposition to it over the decades, the Government are now quite optimistic. I wonder what has persuaded them that certain local authorities will come forward and volunteer to have suitable sites within their boundaries. Secondly, while we have been very much involved with this issue over the years, it will be new to the devolved authorities: the Welsh Assembly and the Scottish Parliament. I wonder whether they will not take the traditional view of this issue.

My Lords, I have had no personal involvement with the devolved Administrations over this, but all the signs are that this is an agreed Statement. The devolved Administrations have been part and parcel of this. This is not a question of abdicating responsibility. The Scottish Executive and the Welsh Assembly have dealt admirably with the issues that they have been faced with since devolution. There was a time when material was dumped at sea, around our coast by the MoD, and had to be dealt with. This Statement is agreed with the devolved Administrations and I have every reason to believe that they are part and parcel of dealing with this issue.

My Lords, that last aspect to which the noble Lord referred seems very optimistic. It is very good news indeed that the devolved Administrations have been involved in this Statement. Does the noble Lord see signs thatthe political parties across those devolved Administrations recognise that they have a responsibility to take a lead on this, that their country’s future depends on it and that playing politics with people’s fear and ignorance about nuclear power is simply irresponsible? Does he see any sign that the political parties want to give a lead?

My Lords, I am not going to comment on the political parties. It is exactly the same with the non-governmental organisations, some of which have misused science to play on people’s fears to achieve their policy objective or raise funds. We have to let the science speak, take the risks and assess them, listen to independent voices, see what is produced by the CoRWM committee—which no one has criticised—and take matters forward in an open and transparent way.

Civil Aviation Bill

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

Moved accordingly, and on Question, Motion agreed to.


[The page and line references are to HL Bill 21, the bill as first printed for the Lords.]

1: Clause 1, page 1, line 7, leave out “may” and insert “shall”

2: Page 1, line 8, leave out from “in” to “by” and insert “proportion to the noise made by aircraft and”

4: Page 2, line 31, at end insert-

“( )Charges, in relation to noise, shall be proportional to the noise emitted.”

The Commons disagree to these amendments for the following reason—

4A: Because it is not appropriate to require aerodrome authorities to fix their charges in the manner proposed

The Lords insist on their Amendments Nos. 1, 2 and 4 for the following reason-

4B: Because it is appropriate to require aerodrome authorities to fix their charges in the manner proposed

The Commons insist on their disagreement with the Lords in their Amendments Nos. 1, 2 and 4 but propose Amendments Nos. 4C and 4D in lieu—

4C: Page 2, line 28, at end insert-

“(4A) In determining whether, and if so how, to exercise his power under subsection (4) above in relation to an aerodrome authority, the Secretary of State shall have regard (among other things) to the interests of persons who live in the area in which the aerodrome is situated.”

4D: Page 12, line 15, after “38(4)” insert “and (4A)”

My Lords, I beg to move that the House do not insist on its AmendmentsNos. 1, 2 and 4, in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 4C and 4D in lieu.

Airports have had the statutory power to charge for aircraft by reference to their noise for almost25 years. Many of our larger airports do so. Moreover, BAA already applies an emissions-related charge at Heathrow and at Gatwick, using the airports’ conditions of use. We believe, however, that it is important to put it beyond doubt that any licensed aerodrome has the power to set such emissions charges, should their local circumstances make it necessary. That is the key purpose ofClause 1.

The Government believe that imposing a requirement that an airport's charges must be set by reference to noise and emissions would hamper airports' ability to reflect their own local circumstances. The Secretary of State will be able to require an airport to fix its charges in a way that takes into account its local environmental impact. This safeguard is already in Section 38 of the Civil Aviation Act 1982 as regards noise charges; the power, now of course extended to cover charging by reference to emissions, is in subsection (4) of new Section 38. This power would be used if the introduction of noise and emissions-related charges at an airport seemed appropriate, and the airport operator was unwilling to do so.

The Commons' Amendment No. 4C in lieu would qualify that power of direction. The Secretary of State would be required to have regard to the interests of people who live in the area of the airport in determining whether—and how—to make use of the power. The Government's intention in proposing this amendment was to acknowledge the concern of stakeholders, reflected in previous debates in this House, that the provisions of this clause did not take sufficient account of the impact of aircraft noise on people living near airports. By accepting Amendment No. 4C the Bill would place a duty on the Secretary of State to consider this when deciding whether to use his power of direction, providing an additional safeguard for the interests of a local community around an airport. The further proposed Amendment No. 4D to Clause 11 is a minor consequential amendment that would ensure that this new provision, like the power of direction to which it relates, was executively devolved to the Scottish Ministers.

I am sure that on mature reflection the House will now see the point of the Government’s view that Amendment No. 1 would be disproportionate. It would impose a legal duty on all 140-odd licensed aerodromes to set noise and emissions-related charges. I argued forcefully against that in previous proceedings on the Bill. I recognise that the noble Lord, Lord Bradshaw, has now tried to address this issue by proposing a monthly level of commercial air traffic. It would become a duty for airports to fix their charges in this way.

Although the noble Lord’s new amendment may seem attractive, and I congratulate him on his ingenuity in proposing it, I am afraid it has drawbacks that mean we cannot accept it. The first is that although it would compel some airports to fix their charges with reference to noise and emissions, it would so alter Clause 1 that other airports with lower traffic levels would not have the power to fix their charges in this way at all. Clearly, that is not something the Government want to see. Our position is quite clear: all along we have sought the power to be available for use by an airport dependent on local circumstances. It should not be dictated by some other broad criterion, which the noble Lord’s amendment introduces.

Similarly, we are not convinced that fixing the requirement on the basis of monthly commercial traffic is appropriate. Commercial traffic fluctuates from month to month, whereas airports generally set their terms and conditions of use from one financial year to the next. As I have already noted, the local circumstance of each airport, and therefore the nature of its impact on the surrounding area, will be different. There remains a possibility that using the threshold recommended by the noble Lord would impose unnecessary regulation on some of the airports caught by the duty. For instance, Blackpool airport would be caught by the noble Lord’s proposed criterion, having just over 1,000 commercial traffic movements per month. Yet it will be recognised that Blackpool has relatively few residential neighbours, and the largest aircraft regularly using it are Boeing 737s, which are generally comparatively quiet. The airport is considering its operating instructions with a view to further minimising noise nuisance. Under the noble Lord’s amendment, Blackpool would fall within requirements and circumstances where the Government would not consider it necessary.

My Lords, does my noble friend realise, and I am sure he does, that most organisations concerned with aviation agree with the Government? The case he put forward today is immeasurably advanced by those who know about aviation, including the previous Conservative Government.

My Lords, I am grateful to my noble friend for attesting, with his intensive knowledge of the airline industry, that there is great support for the government position. The Opposition will have a chance to speak for themselves, and of course the noble Lord, Lord Bradshaw, has already indicated that his colours are nailed to a different mast.

The airports operator has used its master plan, published earlier this year, to confirm that,

“it would be prepared to work closely with all the relevant bodies and the community to alleviate any particular concerns over noise and activity surrounding the airport”.

Examples of the measures it would be prepared to contemplate include a limit on the total number of flights or a limitation on the extent of a particular noise contour.

The airport operator has also undertaken to continue to work with the airport’s joint consultative committee and to continue its other liaison forums, which involve members of the public, on a proactive basis. In such circumstances it does not seem appropriate to the Government that the airport should be required to fix its charges by reference to noise and emissions when it is perfectly capable of relating to its local circumstances and recognising the needs of local interests.

The noble Lord’s Amendment No. 4E, like Amendment No. 1, would also be contrary to guidance from the International Civil Aviation Organisation that noise-related charges should be levied only at airports experiencing noise problems. I am aware that debate on these amendments has previously enabled noble Lords to raise their wider concerns about the Government’s policy with regard to aircraft noise and emissions. However, the Government will not be changing their policy, as set out in The Future of Air Transport, that wherever possible local solutions are to be preferred for addressing the local environmental impacts of airports’ operations.

Amendments Nos. 2 and 4 would affect the way in which noise and emission charges should be set. As I have previously said, the Government of course agree that airport operators should set noise charges that are appropriate but, as ICAO guidance alreadystates that noise-related charges should be non-discriminatory between users and should not be established at such levels as to be prohibitively high for the operation of certain aircraft, we do not think it necessary to place these requirements in the legislation.

As I have already remarked, airports have been making use of the power to set noise-related charges for almost 25 years. We have no reason to believe that the powers have been applied inappropriately or disproportionately during this time. That is why we do not believe that this additional requirement needs to be added to Clause 1.

I cannot emphasise enough that charges are just one means by which airport operators can address the environmental effects of their operations on local people. The powers such as those in Clauses 3 and 4, which would enable airport operators to impose penalties for breaches of measures such as noise limits on departing aircraft or noise preferential routes, can effect more direct improvements for people living around airports.

I say again that should there ever appear to be a problem with a charging scheme, the Secretary of State will have the power to direct an airport operator as to the manner in which its charges are to be fixed. I hope that noble Lords can reach an accommodation on this clause, taking into account the thrust of Commons Amendment No. 4C in lieu. I think that it will be recognised that the Government have listened carefully to previous debates in this House. The House can rest assured that we have the necessary powers within the Bill to meet the challenges of airport noise and emissions. I beg to move.

Moved, That the House do not insist on its Amendments Nos. 1, 2 and 4, in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 4C and 4D in lieu.—(Lord Davies of Oldham.)

moved, as an amendment to Motion A, leave out from “disagreement,” to end and insert “do disagree with the Commons in their Amendments Nos. 4C and 4D in lieu, but do propose Amendment No. 4E in lieu of the original Lords amendments”.

4E: Page 1, line 7, leave out “may” and insert “shall, if the number of commercial (freight and passenger) flights exceeds 500 per month”

The noble Lord said: My Lords, I must apologise for the fact that during the summer when the latter stages of the Bill were considered, I was absent due to illness. However, today we are considering Commons amendments. I do not consider that the Commons reasons for disagreement are very clearly stated. The reason:

“Because it is not appropriate to require aerodrome authorities to fix their charges in the manner proposed”,

is not very good, bearing in mind that some airport authorities fix their charges in the manner proposed. The Government may well disagree with us that we should have a limit on the size of airports above which a regime would be appropriate, but it is not appropriate to say that it is not right that they fix them in the manner proposed.

Turning to the points made by the Minister, I fully appreciate that it is most important that local issues are taken into consideration, but this needs to be looked at from the point of view of not just the airport operator but the people who live underneath airports and suffer from noise and pollution. There are instances that I brought before the House in the early stages of the Bill. Bearing in mind what the noble Lord, Lord Clinton-Davis, said just now, I should say that I know something about airports. I specifically visited the Birmingham area to be taken through the whole question of noise and pollution and how they are tracked there. I have been the director of an airport company. I may not have the knowledge that he does, but I am not speaking from a position of entire ignorance on the matter.

The airspace over Birmingham airport is partly shared with Coventry airport. Coventry is quite a big airport, but it does not have a noise and pollution regime, and that raises issues of competition. They are using the same airspace, so the issues about whatever international conventions there may be apply to both airports. One airport, in setting its charges and having lower standards of environment or safety, can decide whether an aircraft uses it or the next airport. We want a level playing field, so that airports are competing on the basis of efficiency and not on the basis of one airport having certain standards and another having lesser standards.

I take seriously what the Minister said about Amendment No. 4C, and if he can put on record that the Secretary of State will,

“have regard…to the interests of persons who live in the area”,

as well as the question of whether competition between airports is affected, I will withdraw my Motion, because I would then be in a position to come to him if a particular case arose—

My Lords, successive Secretaries of State have taken account of the views of people who live near the area and other people who have interests in flying. In what way does the noble Lord consider that successive Secretaries of State have been in breach of their obligations to both Houses of Parliament?

My Lords, there must be many cases and many people who feel that Secretaries of State have not taken into account their concerns about the effect of airports on their lives. I will not go up that avenue and be distracted from the point that I was making to the Minister.

I am prepared to accept the Minister’s assurances that, under Amendment No. 4C, if particular cases come to light whereby local residents are considerably annoyed or have pollutants dumped over their houses, they will be in a position to come to the Secretary of State for him to take action under the new clause. If that is so, I will withdraw the Motion. I wait to hear what the Minister has to say. I beg to move.

Moved, as an amendment to Motion A, leave out from “disagreement,” to end and insert “do disagree with the Commons in their Amendments Nos. 4C and 4D in lieu, but do propose Amendment No. 4E inlieu of the original Lords amendments”.—(Lord Bradshaw.)

My Lords, we are having another debate about a vital issue that concerns us all in this House and the public at large—noise and emissions from aircraft. There has been growing interest in this and, even as we debated the Bill over the past few months, the issue has been much more in the public eye.

I have some sympathy with the amendment of the noble Lord, Lord Bradshaw, but I am in the middle here. I totally agreed with the Minister that local circumstances were the most important consideration. I am very much a localist and do not like too much direction from us in this place about what happens in a local area.

However, the noble Lord, Lord Bradshaw, highlighted an example. I too have visited Birmingham airport, one of two airports that are close and of a considerable size in urban areas, and where there should be some alignment of practices. I would be interested to hear the Minister’s comments on that. In spite of the intervention by the noble Lord, Lord Clinton-Davis—I do not dispute what past Secretaries of State have done—it would help us all if the Minister could categorically repeat what he has just said, so that it is put determinedly in Hansard that Secretaries of State would intervene and issue directions. I do not normally like them to direct too much, but here I would very much support that. If an airport was not complying with the sort of things that we would like, the Secretary of State should definitely intervene to try to put that right. If that was the case, I would not support the amendment.

My Lords, this has been an interesting debate and noble Lords opposite have raised the question of when the Secretary of State must do something and when he may do something. Coventry has been repeatedly mentioned by noble Lords. If someone complained about the noise at Coventry, who would that have to be for the Secretary of State to intervene? Coventry is an example of where a local authority owns an airport and, therefore, has a commercial interest in its success. That interest has everything to do with running lots of planes in and out of it, but has it anything to do with how noisy they are? That clearly matters to the residents, but we should consider whether that matters to the bean counters in the council.

I would be interested to know under what circumstances a Secretary of State would take into account the views of residents affected. Many more airports than Coventry are affected, including Blackpool. How would the Secretary of State balance the interests of both parties before deciding whether he would look at the matter? That is the big worry.

My noble friend mentioned the ICAO policy on airports that have noise problems, but who decides whether the airport is experiencing the problem or the residents around it? Words are all good and fine, but while there has to be a cut-off somewhere—the noble Lord, Lord Bradshaw, mentions a figure of 500 in Amendment No. 4E—many of us would feel much more comfortable if there was a requirement to take noise and other environmental considerations into account for the larger airports. Some of them do it already and some might if the Secretary of State intervened, but why should they not do it as a matter of course? It is a question of “the polluter pays”. I shall listen to other contributions with great interest before deciding which way I shall vote if there is a Division.

My Lords, I am grateful to all noble Lords who have spoken in this short debate. The noble Lord, Lord Bradshaw, raised questions about the reasons that are advanced. That is a matter for procedures, both in this House and the other place. He has been involved in these exercises and it is not a question of each House spelling out exactly why it has reached a conclusion, otherwise we would have a document as long as the Hansard that covered the previous debate. What emerges from that short meeting held to convey reasons is a formula merely to indicate the broad area of dissent, discontent or unacceptability. That is all that this does. He is not advancing his cause by saying that he wants to take this position literally. The argument which is meant to be taken literally is the statement from this Dispatch Box that justifies the Government’s position as we see it, which is what I am attempting to do.

The noble Lord mentioned Coventry and Birmingham, as did the noble Lord, Lord Hanningfield. Coventry airport featured in our previous debates. It is an airport of some significance and is close to Birmingham, another major airport. I draw the attention of the House to the planning agreement which exists between Coventry airport and its local planning authority, Warwickshire District Council, which includes a mitigation package. There are a range of noise-related measures in this agreement, such as a sound insulation grant scheme, a ban on night flying by the noisiest aircraft, a night-noise quota to ensure that night noise reduces, and a quiet operations policy that restricts the ways and times aircraft can operate. The airport also includes noise surcharges for louder aircraft in its conditions of use.

The airport reached this agreement and it now has a noise complaints procedure in place. The minutes of its sub-committee concerned with these issues are placed on the internet site, so that all local people are aware of the discussions which go on with regard to this issue and the way in which they can influence it. All these measures have been put in place using the existing powers available to the airport. There has been no compulsion; it is an agreement with the local authority. I certainly appeal to the noble Lord, Lord Hanningfield, given his significant position with a leading authority in this country. I also appeal to the noble Lord, Lord Bradshaw, who also has some experience of local government. Why should we impose from the centre when airports can satisfactorily reach agreement with their localities? That is all the Government are saying. Of course we have a reserve power.

I reassure the noble Lord that anyone can put forward proposals to have an airport designated for consideration by the Secretary of State. As we have said in our White Paper, The Future of Air Transport, we will consider designating other airports beyond those already designated if there is evidence that a major noise problem is not being dealt with adequately through local controls. But Coventry is being dealt with adequately with local controls to local satisfaction. Why therefore should we insist that it must follow nationally imposed requirements when airports the size of the one at Coventry can solve this problem? There are many airports other than Coventry which are solving these problems on a regular basis and which would not welcome, and should not receive, the requirements designated from the centre that they must deal with this matter only in the way defined strictly in legislation.

I appeal to the House to recognise this. The Government are mindful that airports bring an enormous boon to our nation, in terms of both economic development and of course the great pleasure which tourists receive from being able to fly. We all know that the expansion of airports is a reflection of the expansion of the availability of flights to the benefit of our nation, but we also know that airports bring attendant problems—noise and emissions—and controls are necessary. What I want to establish today and want the noble Lord to recognise—I hope that he will therefore withdraw his amendment—is that the other place carefully considered the views of this House on these matters. It has put forward an amendment which strengthens the Secretary of State’s position in taking local factors into consideration. If the Secretary of State decides to act, he has the power to do so, but the best solution is to have permissive legislation so that the main responsibility for airports meeting their requirements lies with the operators of those airports, taking into account the local communities which they serve.

My Lords, I thank the Minister for that answer but I honestly do not find it very satisfactory. I think that people will be plagued with noise and I wanted the Government to take the matter more seriously, as I believe most people wish us to do. However, I recognise that, if I were to divide the House, I would probably lose and I would be better off accepting the assurance that he gave under Commons Amendment No. 4C. But this is a very serious issue and I warn him that I will come back to him through other channels if I become aware that people’s interests are adversely affected in the areas concerned. I beg leave to withdraw the Motion.

Motion A1, by leave, withdrawn.

On Question, Motion A agreed to.

5: Clause 2, page 2, line 41, leave out subsection (2)

The Commons disagree to Lords Amendments Nos. 5 and 11, but propose Amendment No. 11A in lieu.

The Lords insist on their Amendment No. 5, do not insist on their Amendment No. 11 and do disagree with the Commons in their Amendment No. 11A in lieu for the following reason—

5B: Because it is desirable to maintain the current system of regulating night flights

The Commons do not insist on their disagreement with the Lords in their Amendment No. 5, do not insist on their Amendment No. 11A, but propose the following amendment to AmendmentNo. 5—

5C: Line 1, leave out “subsection (2)” and insert “subsections (2) to (4)”.”

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5C to Lords Amendment No. 5.

I am sure that, by now, the House will be aware that Section 78 of the Civil Aviation Act 1982 enables the Secretary of State to take steps to limit or mitigate the effects of noise and vibration connected with the taking off or landing of aircraft at designated airports. He is not required to set any operating restrictions at night or at any other time but, if restrictions are set, they must be in the form of a numerical limit on movements by aircraft of the types that it is intended to restrict.

In our White Paper, The Future of Air Transport, which followed extensive consultation on our longstanding aircraft noise powers, we said that we would amend the 1982 Act so that operating restrictions might in future be set on a different basis—for example, one more directly related to the noise nuisance caused. Subsections (2) to (4) of the clause as originally drafted would have allowed a future Secretary of State to impose restrictions that limited cumulative amounts of noise caused by an aircraft using a designated airport. The provisions would not have prevented movement limits being set but Ministers could have chosen to set alternative restrictions—for example, noise quotas or a limiting noise contour area. Those might have provided a more effective incentive for the use of quieter aircraft.

In bringing forward these provisions, it was never our intention to prevent future Governments setting stringent controls on night flying at these airports. We have not sought to relax the restrictions. Any suggestion that we have should be considered in the context of our announcement on 6 June this year on night flights at Heathrow, Gatwick and Stansted. That announcement did not provide for any slackening of current limits; it tightened a number of controls, and that demonstrates our commitment to the effective management of noise impacts.

The restrictions regime which comes into effect on 29 October—this coming weekend—will run until October 2012. It has been set using the current legislative framework; that is, the Secretary of State’s powers under Section 78 of the 1982 Act. Nor would we seek to interrupt that regime before 2012 to impose different forms of restriction. Night flying restrictions are put in place for a number of years to allow the industry to plan fleets and scheduling, and to give local stakeholders some certainty. Interrupting a regime would not be sensible or constructive. The value of movement limits to residents round the designated airports and the sense of certainty they are given is clear. Moreover, movement limits would have been a fundamental part of the next night flying regime, regardless of whether the Bill received Royal Assent before the new restrictions were set.

There have been advances in technology since the 1982 Act was passed, and a movements limit alone would be a pretty blunt instrument as that would not directly influence the types of aircraft used at night or control the amount of noise permitted. That is why noise quotas are set alongside the movement limits at present, as a secondary control to drive the use of the quietest aircraft available.

I am disappointed that the Government’s arguments in favour of amending the Act were not accepted. However, in the interests of moving forward with the many other worthwhile provisions in the Bill, the other place has now proposed an amendment that would remove subsections (2) to (4) of the clause as originally drafted. This means that the relevant provisions of the 1982 Act will, as at present, say unambiguously that any future restrictions will have to be set by limiting the number of aircraft movements as they are now.

By tabling the amendment, we accept that this is not the right time to make a change to the legislation. However, the Government still think that there would be merit in giving the Secretary of State a more flexible power to set such restrictions. That would be possible only if a new legislative opportunity arose. As yet, no such opportunity is apparent. I am therefore clearly signalling to the House that we have nothing in the offing in that respect. The Government seek to continue a balanced approach to controlling and mitigating the noise impacts of night flying at Heathrow, Gatwick and Stansted.

We have now delivered our commitment to maintain strict controls on night flying and to set those controls by limiting both aircraft movements and noise quota until at least 2012, as stated in the decision announced on 6 June. We remain of the view that it would be sensible for the Secretary of State to have more flexible powers to control aircraft noise at designated airports but accept that this Bill is not the vehicle for that. Accordingly, I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 5C to Lords Amendment No. 5.—(Lord Davies of Oldham.)

My Lords, I thank the Minister. We have had numerous debates in this House in the past few months about the noise andthe numbers of night flights. I am grateful that the Government have accepted that this legislation should not be used to change the current regime. We need not go over all the debates again, but the public, especially the public in London, do not want more flights even if they create a lot less noise. Most say that the problem is often not the amount of noise but the fact that there is noise. There is a tremendous fear in London about a considerable increase in the number of night flights. We know that some airlines would like that.

We have had various debates, and I have had numerous representations from all political parties from all over London about this issue. That is why we shall continue to debate it. I declare my interest as leader of Essex County Council. Stansted is not using its quota at the moment; it could have more flights under the existing regime. But it is Heathrow that most concerns people. Therefore, I am grateful to the Government for agreeing with this House. It is a notable victory for this House that we have for the moment abandoned any idea of changing the current regime.

I accept—as I think we all do—that technology moves on and things will change. Future Governments—this Government or my own party when it is in power next year—might want to look at the issue. I do not accept that anyone can set rules and legislation for ever; it is a moving area. I am sure that both Houses, in whatever form, will be debating these issues in the future. I repeat: I am grateful to the Government for accepting this House's view. I therefore accept what the Government are saying today.

My Lords, perhaps I may ask the Minister just one question. He said that the matter of altering the Secretary of State's power will have to await another legislative opportunity. I assume that he is referring to primary legislation and that we will not have an order brought before the House which is unamendable so that at a future date we are not going to be able to amend what the Secretary of State is doing.

My Lords, I take the opportunity to follow the remarks of the noble Lord, Lord Bradshaw, about possible future increases in the Secretary of State’s powers. I beg the Minister to take this matter seriously. I recall our debate on the White Paper on airports policy a couple of years ago. Two questions were raised which worried me very much at the time and continue to worry me. First, in considering the possible expansion of Stansted, the Government’s document made no reference to the fact that the southern boundary of Stansted Airport was the northern boundary of a unique forest in southern England which is regarded by dendrologists as a matter of great importance. It is astonishing that the department responsible for environmental matters did not even refer to that.

The second issue is the possibility of creating a new airport in Sheppey. There was also a short page on that, and it relied exclusively on the danger that an airport there would pose to migrating birds. The paper did not examine the issue properly or reveal that it would be perfectly possible to move the bird sanctuary created by the RSPB a few miles further to the east, thus making it possible to consider a new airport serving London which would be approachable over sea any time of the day or night, open 24 hours a day and very close to the Channel Tunnel link.

I hope that when future plans are made for these important decisions on airports—this is not specifically on the subject of the amendment today—great care is taken by the department to ensure that the highest quality of environmental information is available to it. I think the White Paper showed that that was not the case.

My Lords, I am grateful to noble Lords who have spoken in the short debate. The noble Lord, Lord Bridges, will forgive me if I do not open a significant discussion on the issues of Stansted now. The noble Lord, Lord Hanningfield, has shown extraordinary restraint this afternoon in a self-denying ordinance and I intend to follow him. The idea that I might protract these proceedings by a widespread debate on Stansted, or even on Sheppey for that matter, fills me with obvious horror. The noble Lord will recognise that we are at the last stages of this Bill, so I will resist that temptation.

I am grateful to the noble Lord, Lord Hanningfield, for recognising that the Government, with the proposals which now come from the other place, are meeting the arguments presented previously with some force in the House. The noble Lord, Lord Bradshaw, must accept that I cannot bind a future Government. He will recognise that there will be another Government before 2012 by another Administration of whatever colour, though I will almost certainly be the one answering on these matters at this Dispatch Box in 2011. The House will, however, recognise that I cannot possibly commit beyond a certain period except to say that in this afternoon’s statement I am reflecting the announcement that the present restrictions will obtain until 2012. The noble Lord, Lord Bridges,will recognise that that position would not be eroded under any changes that Parliament would make to the legislation. That is the best that I can offer and I hope that the noble Lord will accept it in the spirit in which it is given. I commend the Motion.

On Question, Motion agreed to.

NHS Redress Bill [HL]

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

Moved accordingly, and, on Question, Motion agreed to.

commons amendments

[The page and line references are to Bill 137, as first printed for the Commons.]

1: Clause 3, page 3, line 3, leave out “and”

2: Page 3, line 4, at end insert “and

(d) the giving of a report on the action which has been, or will be, taken to prevent similar cases arising,”

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 1 and 2. This group of amendments deals primarily with the provision of reports to individual patients, and annual reports.

Amendments Nos. 1 and 2, made to Clause 3(2) in the other place, provide that redress will now ordinarily also include the giving of a report on the action that has been, or will be, taken at local level to prevent similar cases arising. During the debate in both this House and another place, the point has been well made that patients harmed during their NHS healthcare often say that they do not want that to happen to anyone else.

There will be occasions where mistakes can simply be ascribed to genuine human error or where no procedural changes need to be made, and there a report of that type will not be appropriate. In these specific types of circumstances, the scheme may provide that a report will not be necessary. Ordinarily, though, such a report will now be provided.

Amendment No. 6, agreed in the other place, requires the scheme to provide for the findings of an investigation to be recorded in a report, which is to be made available on their request to the individual seeking redress. To reduce unnecessary bureaucracy for scheme members, we do not wish to impose an extra burden on them to provide the investigation report in every case. In some cases, an explanation may be adequate, but these amendments now ensure that, ordinarily, the investigation report will be provided if requested.

The amendments enable the scheme to provide that the report need not be provided before an offer is made or before proceedings are terminated, which is also intended to reduce the administrative burden on scheme members. It is envisaged that when the offer of redress is made an investigation report will be sent to the individual, where they want a copy of it. That will give them a complete set of documentation, which they can then consider with their legal adviser when the offer under the scheme is being assessed.

The amendments also enable the scheme to specify other circumstances where the reports need not be provided. That is intended to be used for rare cases where, for example, the person seeking redress is not the patient and it is considered appropriate to withhold certain confidential health information. I wish to provide reassurance that any exceptions will be the subject of full consultation.

I hope that the amendments made in the other place will satisfy noble Lords that we fully intendthe investigative process to be transparent. The investigation report will not be kept back on grounds that it is privileged, nor will it be claimed that investigation reports are “without prejudice” and inadmissible in any subsequent legal action.

Regarding Amendments Nos. 11, 14 and 15, it has been the Government’s intention to require a member of the redress scheme to prepare and publish an annual report about cases falling under the scheme and the lessons to be learnt from them. However, Clause 10(2)(i) provided that a scheme may require a member of it to prepare and publish an annual report about such cases and their lessons. These amendments are a response to the discussions that have taken place in both this House and another place. They place on the face of the Bill a requirement on scheme members to publish an annual report. The “may” has been replaced by “must”.

Amendments Nos. 12 and 13 are minor drafting amendments and clarify existing policy. Amendment No. 12 leaves out the words “a specified person” in Clause 10(2)(h) and replaces it with the words,

“an individual of a specified description”.

The amendment makes clearer the intention that the scheme may require a member to give an individual of a specified description responsibility for overseeing the scheme. The provision will enable the schemeto specify qualifications and experience, to be determined after consultation with stakeholders, that such an individual must possess to undertake the role.

Amendment No. 13 splits Clause 10(2)(h) to avoid any implication that only a person who has given responsibility for overseeing the carrying out of functions can be given responsibility for advising on lessons to be learnt. As we draw up the secondary legislation, we may wish to enable bodies to appoint two different types of people to carry out the two functions. For that reason, it again seems preferable to retain flexibility by splitting up the function. I commend the amendments.

Moved accordingly, and, on Question, Motion agreed to.

3: Clause 6, page 4, line 10, leave out “(3) and” and insert “(2A) to”

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

Amendment No. 3 is a drafting amendment consequential on Amendment No. 6, which we discussed in the last group and Amendment No. 7 is a consequential drafting amendment to Amendment No. 10, to which we shall come later. It may be convenient for the House if I explain the legal advice that I have received on Amendments Nos. 3A, 3B, 7A and 7B.

I understand that the amendments question the drafting of Clauses 6(1) and 8(1). The noble Earl, Lord Howe, has written to me about this. I know that he is concerned that the wording of Clauses 6(1) and 8(1) could give rise to ambiguity or incoherence. I have consulted my legal advisers—we have been back to parliamentary counsel on this—and I am satisfied that there is no realistic risk of that. I hope that I can provide some reassurance. This will be rather technical, but it is important that we put this on record.

The general powers in Clause 6(1) are intentionally subject to the duties imposed by Clauses 6(2A) to (4).  Clause 6(1) appears to give the Secretary of State an unfettered discretion, but that discretion is in fact fettered by subsections (2A) to (4).  In the context of the clause, we think that it is helpful to flag up the fact that the discretion conferred by subsection (1) is not as wide as it might at first appear. 

Amendment No. 3B does not assist the reader of the Bill, as his attention is no longer helpfully drawn to the fact that the Secretary of State’s power is qualified. Furthermore, Amendment No. 3B causes ambiguity and confusion as the reader’s attention is now drawn to subsection (2B). Yet subsection (2B) merely confers another power. The reader’s attention is therefore drawn to another power. The power in subsection (2B) is linked to the duty in subsection (2A), but the reader’s attention is not drawn to subsection (2A).

As I said, I have taken legal advice, including that of parliamentary counsel, and do not accept that there is, or could be, any realistic risk of ambiguity regarding the drafting of Clause 6(1). The Commons amendment to Clause 6(1) is properly drafted, according to the legal advice that I have been given. It helpfully draws the reader’s attention to the fact that the power conferred by subsection (1) is subject to the duties imposed by subsections (2A) to (4).

On Amendment No. 7, the general powers in Clause 8(1) are intentionally subject to the duties imposed by Clauses 8(2) to (4). Clause 8(1) appears to give the Secretary of State a discretion, but this discretion is in fact fettered by subsections (2) and (4) of that clause. In the context of the clause, we again think that it is helpful to flag up the fact that the discretion conferred by subsection (1) is not as wide as it might at first appear. Amendment No. 7B, again, would no longer helpfully draw the attention of the reader of the Bill to the fact that the Secretary of State’s power under Clause 8(1) is qualified. For these legal reasons, I encourage noble Lords not to pursue Amendments Nos. 3A, 3B, 7A and 7B and to accept Commons Amendments Nos. 3 and 7.

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

moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 3, leave out “agree” and insert “disagree and do propose the following amendment in lieu”—

3B: Clause 6, page 4, line 10, leave out “subsections (3) and (4)” and insert “subsection (2B)”

The noble Earl said: My Lords, in moving Amendment No. 3A, I shall also speak to Amendment No. 7A. I thank the Minister for his explanation of the amendments. I realise that the points are fairly legally abstruse. I wrote to him only because I received advice that the drafting was questionable. I note what he has said. I interpret his words as meaning that, for practical purposes, the wording is clear. As he knows, one of the issues that I flagged up was that a court, if we are to judge by case law, could interpret the word “may” as “shall”, because the power conveyed by the word “may” is fettered in the way that the Minister acknowledged. However, the Government and the Minister may be prepared to pay that price. I do not propose to press the point, and I will not press my amendment.

My Lords, as the amendment has been spoken to, I must put the question on it.

Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 3, leave out “agree” and insert “disagree and do propose Amendment No. 3B in lieu”.—(Earl Howe.)

My Lords, I do not know whether this is in order, but I beg leave to withdraw the amendment.

My Lords, I am not allowed to say that that is perfectly in order.

Amendment, by leave, withdrawn.

On Question, Motion agreed to.

4: Page 4, line 13, leave out from "scheme" to end of line 15

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4.

When the Bill was last in this House, it was amended to require the Secretary of State for Health to make provision for the appointment of patient-redress investigators. There was to be a panel of independent investigators, and the Healthcare Commission was to maintain a list of those investigators and oversee them. The independent investigation was to be confined to fact finding, and the scheme authority was to have no role whatever in investigations. It could not even provide advice or guidance to scheme members. To refresh the memories of noble Lords, the amendments were passed here by the narrowest of margins—one vote—and were comprehensively rejected in the other place by 95 votes.

When the Bill went to Report in the other place, there was no attempt to reinstate references to patient-redress investigators or the Healthcare Commission. I believe this to have been an appropriate response. The model passed in this House suffered from excessive cost and impracticality. On that occasion, I mentioned that Department of Health economists estimated that the cost would be £41 million a year.

We are now presented with a group of amendments that would enable the scheme to provide for independent oversight of investigation, with the person overseeing the investigation required to be independent of the scheme member in question and the body or person being investigated. I suggest that this is an attempt to reintroduce the concept, firmly rejected in the other place, of independent oversight of the initial investigation. This again raises many unanswered questions, the obvious ones being: who is to provide the independent oversight; how will these people be chosen, and by whom; what qualifications are they to have; to whom, if anyone, will they be answerable; how and by whom is administrative support and accommodation to be provided; and what if the member carrying out the investigation and the independent overseer do not agree about the investigation report?

In Committee in the other place we were toldthat there would be the same administration, but operating under the direction of an independent person, so that there would be no new bureaucracy. This seems to imply that the investigation will merely be checked by an independent person but from the wording of the amendment before us, I do not know how we can be sure of that. It seems strange to be introducing at this stage in the Bill an un-thought-out set of proposals that is uncosted and which must make the whole scheme more bureaucratic and difficult to explain to patients.

It is not as though we have not provided for independent oversight, and I know that Members on the Benches opposite have been concerned about independence in this Bill. Should the investigation not be carried out properly, the Bill has in place a complaints system, ultimately to the ombudsman, who is of course fully independent of the NHS and the Government and who may be used if a patienthas a complaint about maladministration in an investigation which has fallen below the standard expected. Ann Abraham, the Health Service Commissioner, has welcomed the fact that the operation of the scheme will fall clearly within her jurisdiction subject to the usual conditions set out in the Health Service Commissioners Act 1993. She said:

“I hope the fact that an independent review of complaints about the scheme will be available will give reassurance to both complainants and the NHS bodies involved”.

It certainly gives reassurance to the Government.

The Bill also takes powers that will enable the scheme to have other elements of independence. There may, where appropriate, be independent medical advice and evidence, and free independent legal advice that must be provided to people to whom an offer of redress is made. We have existing powers in Clause 10(2)(a) which will enable the scheme to require its members to charge an individual of a specified description with the responsibility for overseeing the carrying out of specified functions. This enables the scheme itself to provide that the person must oversee the investigation at the local level and have particular qualifications and/or experience. We envisage that the person given the task of overseeing the carrying out of investigations will ensure that appropriate information is properly collected and provided to the scheme authority. This will provide an additional check on the standard of investigation.

Finally, responding to concerns expressed by noble Lords about the need for an independent check on performance in the operation of the redress scheme, we intend that consideration of the effectiveness of the operation of the NHS redress scheme, including investigations carried out under the scheme, will be included as part of the Healthcare Commission’s annual review of the provision of healthcare by and for NHS bodies. The intention is that the Secretary of State would include a new standard relating to redress and that the Healthcare Commission would include new criteria against which the operation of the scheme would be reviewed. This role can be taken on by the Healthcare Commission without the need for any amendment to its existing powers. Because I know of the concerns about independence, I have gone through this to demonstrate the wide provision in the Bill for independent elements at the various stages.

I want to say a little about natural justice because the term has been bandied about in this context on the issue. We need to be clear whether it is at stake here. It has been said in the Commons Committee that:

“Independence is a basic principle of natural justice enshrined in the rule against bias that no man may be judge in his own case”.—[Official Report, Commons Standing Committee B, 26/706; col. 1539.]

That is absolutely right, but the rules of natural justice are rules of procedure. The common law recognises procedural fairness and this same principle is reflected in the rights contained in the European Convention on Human Rights. If decisions are being taken which determine a person’s civil rights and obligations, then the requirements of Article 6 of the European Convention on Human Rights must be met. There must be a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. We accept that.

However, the redress scheme will not involve any determination of civil rights and obligations. An offer may be made to a complainant, but it is only an offer. No rights will be determined when cases are investigated under the scheme in an effort to resolve disputes without having to go to court. It is standard practice for potential defendants to investigate, to try to discover what happened, and, if appropriate, to try to resolve matters without legal proceedings. Neither the rules of natural justice nor the rights under the European Convention on Human Rights require an independent investigation procedure to be established under the redress scheme. We have gone into this with a great deal of care, and this is the established legal advice in this particular area. There is no question of the NHS or the NHS Litigation Authority acting as judge in these cases.

I fear that some of the objections in this area lose sight of the purpose behind this Bill: to provide patients with the speedy resolution of low-value monetary claims without the need to go to court. We do not intend to set up a second independent judicial process or to duplicate the existing court systems. Throughout this Bill, we have argued that where a mistake is made, it is right that the scheme member promptly investigates the case, where appropriate makes an offer to resolve it, and learns from the mistake. If we remove or in some way fetter that responsibility, we damage the integrity of the scheme.

I must stress that the proposals put forward in this amendment are bound to lead to considerable additional bureaucracy, and they must lead to some costs—we do not know at the moment what those costs would be. It would mean there was no single body with overall responsibility to ensure consistency of approach, cost-effectiveness and good standards. If investigations are to be independent, it is hard to see how a separate bureaucracy is to be avoided, even where the role is limited to oversight. This is why we believe we should accept the Commons amendments, and not pursue the ideas and proposals in the amendments to them.

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

4A: Line 1, at end insert “and insert “in accordance with natural justice such that the person overseeing the investigation is independent of the body or person under investigation (such investigation to be confined to the facts of cases and not to consider issues of liability in law, whether civil or criminal);””

The noble Earl said: My Lords, I beg to move Amendment No. 4A and shall also speak to Amendment No. 5A and Amendment No. 16A. I have listened carefully to the Minister and thank him for his full remarks. I would be the first to acknowledge that we have come a long way during the course of this Bill. There are a number of amendments incorporated into it as well as undertakings given by the Government that are positive and welcome. Yet it is with disappointment as well as a sense of genuine puzzlement that we on these Benches view the Government’s resistance to the single most important concept which we have sought to introduce into the Bill and into the scheme—independent oversight.

We genuinely want this scheme to work. I am not in the business of making life difficult for the Government just for the sake of it. We all know and all agree that there needs to be a workable alternative to civil litigation for patients who feel aggrieved about treatment they have received from the NHS. One of the main ingredients of a workable alternative is that it has to be credible. It has to command confidence. Patients have to believe that it will produce a fair result. What have we got? We have a scheme that will see a patient’s application for redress disappear into a closed process, one that is the very opposite of transparent. The patient has no idea whether the facts of his case have been looked at fairly or fully.

Additionally, we have, examining the claims and acting as the scheme authority, a body that is a part of the NHS itself. The NHSLA is not, in a true sense, independent of the interests of the trust whose actions it will be examining. Why is it not? Because one of the main functions of the NHSLA at present—a function which it fulfils with considerable success—is to defend the health service against claims made against it. That is essentially its current role. It is there not to take the patient’s part but to act on behalf of the NHS. How can patients regard the NHSLA, for all its in-house expertise, as having the necessary degree of objectivity and independence to do what is fair and right? They surely cannot. That is why we have sought at an earlier stage, with the approval of the House, to introduce amendments designed to import into the process that vital element of independence.

It is important to emphasise one thing here: independent oversight is needed at the initial stage of the process when the facts are being assembled. It is not necessary or appropriate thereafter. I am not suggesting that there should be independent oversight of the NHSLA when it comes to consider issues of fault and liability—it will consider those issues and make an offer of compensation at the end or not as the case may be; the patient can take the offer or leave it—but unless the patient is confident that the factual basis on which his claim has been considered is accurate and fair, it is very difficult to see how the scheme will command his confidence.

There are all kinds of ways in which this element of independence could be imported. At Report stage I proposed that there should be a panel of independent redress investigators, who would act rather as a coroner does when conducting an inquest. I am not bringing that idea back because the Government have told us repeatedly that it would be too expensive. In these amendments I am asking the Government to accept the principle of independent oversight of the fact-finding part of the process. I am not being prescriptive about how this should be achieved—after all, this is largely a skeleton Bill; a great deal will be left to regulations—but, as one idea, I would propose that where the actions of a particular trust were the subject of a redress claim, a non-executive director of a different trust could be brought in to provide the necessary element of independent scrutiny and oversight. The cost of such an arrangement should not be a factor. Indeed, it should be no greater than the cost of the Government’s proposals. Someone has to be responsible for ensuring that the trust assembles the facts of a case fairly and fully. Instead of it being someone within the trust itself, I am saying that it might be someone from another trust. The cost implications are surely de minimis.

My amendments preserve the concept of independence, to be fleshed out in regulations, and they also preserve the necessary accompaniment to independence—the separation of fact-finding from fault-finding. The scheme itself covers both elements but the wording is designed to make clear that there are two separate processes—fact-finding and fault-finding—under the aegis of the trust and the NHSLA respectively.

In another place, the Minister, Andy Burnham, conceded that the scheme would have to comprise de facto a two-stage process. I suggest, therefore, as regards this point, that there is not much separating the Minister and me. Indeed, one has only to look at Section 2 of the Inquiries Act to see that the separation of fact-finding and fault-finding is one that the Government accept as a way of achieving a ready separation between what is privileged and what is not privileged and as being conducive to achieving natural justice.

Natural justice is what these amendments seek to achieve. I note that the Minister argues that this concern is out of place in the context of the redress scheme. I am sorry to hear him say that, because I disagree. It really is a question of patient confidence in the scheme. It is, I suggest, a nicety to point out that this is not a judicial process. Of course we agree that it is not a judicial process, but the patient will want fairness. I very much hope that the Minister can take these points on board and I look forward to hearing what other noble Lords have to say. I commend the amendment to the House.

Moved, as an amendment to Commons Amendment No. 4, Amendment No. 4A.—(Earl Howe.)

Lord Hughes of Woodside: My Lords, I hesitate to intervene in this debate, since health matters are generally considered to be outwith the remit of Scottish Members. However, the issues of redress, and of confidence in the medical profession and the health trusts, are very important. I do not know how we will get that confidence. In all the cases I have dealt with in my years as a Member in the other place—and in some personal experiences, which I have related to this House before and will not repeat, as the issue is now resolved—generally speaking, people who do not have confidence in the system will never accept a decision that goes against them. That is the nub of the problem.

I honestly do not know how one can get independence in the health service. The noble Earl suggests that someone from a different trust could be brought in. If my memory serves me correctly, this often happens with police authorities: a chief constable from one authority is brought in to oversee, or look at the problems in, another authority. What is the cry? “You cannot trust the police to investigate themselves.” I suggest that exactly the same thing would happen in this case. It is quite wrong to sow the seeds of the suspicion that the medical profession cannot investigate itself. For my sins, I sat as a lay member of the General Medical Council on its old disciplinary committee. I was constantly told that, although I was a lay member and independent, I could not be trusted because, not being a medic, I would automatically accept the views of the medical profession. All I say in this debate is that we have come a long way with this Bill. I wish we could achieve an absolute guarantee of transparency, of fairness, and that in every case the right result would be achieved. What we can hope for from this Bill is that the progress made will lead to more satisfaction, less delay and better care of the patient.

Baroness Murphy: My Lords, I was a strong supporter of this Bill at Second Reading. It is fundamentally worthwhile to get early resolution of these cases, keeping down legal fees and the frustration of patients. I have administered complaints systems in the NHS for the past 15 years or so. The problem has always been that when local resolution fails in-house, and goes on to the next stage of the convenor system, it is perceived by patients to be partisan. As one patient’s relative said to me: “You think you are appealing to an independent person, and you get an answer on the headed notepaper of the organisation you are complaining about”. The system thereby encourages people to seek independent legal advice. Unless we have, in here, the principle that the fact-finding, at least, should be independent, we will not encourage patients to accept the fact-finders’ reports., We should remember that fact-finding is usually the most disputed part of the case.

I know the Minister is concerned about the costs, but we do not yet have regulations worked out. There is everything to play for in the practical implementation of the scheme. We know that it is possible to set up panels of people from the local community to do a number of jobs around the NHS, very professionally, with the right support and training, without incurring costs. For example, people who serve on research ethics committees have to do very complex work for which they do not get a great deal of financial reward. They do it because the work is interesting.

It can easily be worked out how these schemes could be administered so that there was an independent fact-finding element. We have heard of one possibility which I believe would be quite practical. In any case, fact finders will require training, and that will cost, whether it is done in-house or out of house. It is a detailed job that needs a lot of professional work, but it does not have to be expensive.

This issue could be delegated to regulations but having an independent fact finder is such a fundamental principle of an effective complaints system that it should be in the Bill. It would add immeasurably to the confidence that patients have in the scheme, which is why I have added my name to Amendment No. 4A.

My Lords, I thank the Minister for the things he has said that have given us a degree of comfort. I speak on this amendment again, in sadness more than anger. This has been a long-running saga, as the Minister indicated, and I pay tribute to him for accepting that some level of independent oversight of the NHS redress scheme is necessary. He stated in terms back in February that the Healthcare Commission would make looking at how the scheme works part of its annual review,and he has repeated that today. The Healthcare Commission is regarded as independent, and that is good news. But as my noble friend Lady Barker said in further consideration of the Bill, and as the noble Earl, Lord Howe, said from the Conservative Benches in previous debates, this is still not enough. We accept that both sides can instruct an independent medical expert, but even that is not adequate when there is no clear fact-finding separate from the fault-finding.

The Minister will forgive me if I go back to an earlier time in my life, when I was part of the advisory group that worked up the previous complaints system. We all, in good faith, believed that an in-house complaints investigation system could work. He will also know, because this will have landed on his desk now and in his previous incarnations, that we were wrong. As an NHS chairman, like the noble Baroness, Lady Murphy, I chaired a community health service NHS trust and had to sign off the letters responding to complaints. Very often, I felt that the trust had investigated itself fairly. Sometimes I did not. Either way, it was equally clear that the punters outside—the patients and their families—were dissatisfied because no one outside had had a proper look.

I know the Minister will tell us that this would add hugely to the costs; he has already done so. Let me put it to him like this: whether investigation is done internally or externally, as the noble Baroness, Lady Murphy, has already said, someone has to be paid to do it. They also have to be trained and their activities monitored. Irrespective of being inside or outside the trust concerned, that is the case. If, for instance, non-executive board members from neighbouring trusts were to carry out and supervise the fact-finding, I cannot see why that would be more expensive than the board members or the employees of the trust itself doing so.

Why does the Minister think that it would cost so much more when the amount of time spent on investigating complaints by the trust’s own staff is also considerable? It does not make sense to me. What does, however, make sense is that patients and their families have little faith in a wholly internal system of investigation of complaints. We were wrong when we thought they would have confidence, and we need to recognise that for what it is—a fact. Given that, surely the Minister can see some way to allow fact-finding before any assessment of fault, independent of the trust concerned. Surely he can see that it would be perceived as fairer by the patients and their families to go down that route.

Given that the scheme authority is to be the NHS Litigation Authority—we all feel that it has a clear role to play here—it might be thought that a wholly internal investigation conducted by a trust, although at a distance under the NHSLA’s auspices, could amount to a conflict of interest. The NHSLA, as the noble Earl, Lord Howe, has already said, has legitimately to try and keep the lid on compensation payouts to the public. Many of us would say it was quite right that it should do so. That means, however, that it does not necessarily have the interests of individual patients close to its heart. However, if the NHSLA is the body that makes the offer but the investigation that went on before had an independent element within it, people might trust the system more. The non-exec route is one possibility, while groups like the people who serve on research ethics committees are another. That is still to be debated, and regulations are still to be written. The system might not then be seen to be unfair, with a trust likely—in people’s minds, at least—to exonerate itself, and a scheme authority wanting to keep the payouts low.

The advantage of independent oversight of fact-finding also goes to the heart of the Chief Medical Officer’s original intention in Making Amends. He wanted to see the National Health Service become a learning organisation. If fact-finding is independent but it is people within the broader NHS family, such as those who serve on research ethics committees and other non-execs from neighbouring organisations, who discuss the matters with those they are investigating, there does not need to be an automatic blame culture. Things go wrong and mistakes happen, but they can be discussed within the organisationwith sympathetic but outside supervision of the investigation before the fault-finding even begins.

In his consultation paper on the governance of doctors, Good doctors, safer patients, published last July, the Chief Medical Officer, Sir Liam Donaldson, put forward a two-stage scheme for investigating doctors. I quote:

“In serious fitness to practice cases … investigation … should be carried out by the General Medical Council but formal adjudication should be undertaken by a separate and independent tribunal”.

That was clearly in reference to serious cases, but earlier in the same report he had argued that:

“As the complexity of both medicine and the system within which it is delivered increases, the General Medical Council cannot reasonably be expected to fulfil the roles of complaint recipient, processor, investigator, prosecutor, judge and jury. Involvement of a single organisation in all of these processes brings with it difficulties that are philosophical, presentational and practical”.

I could not have put it better myself. What Sir Liam wrote may apply to medical regulation, but the principle applies to any scheme where one authority is to be in charge of both the investigation and the redress, hence our continued demand for an independent element in fact-finding and our desire for it to be seen as being separate from fault-finding. That is why we are back here at this stage, making the point yet again.

The Government have accepted that this is a two-stage process. We know the scheme is relatively inexpensive; we all recognise and applaud that. Indeed, when we were originally told of the Bill’s arrival, we were all delighted. Such an attempt to help in cases of clinical negligence is long overdue. If it is to work, however, it has to have certain elements: independence—we have been arguing for it each time we have come back to this subject—sufficient for patients to trust the fact-finding involved, and it has to carry trust more generally.

We are not alone. Just to make the point even clearer, the chairman of the Bar Council has written to me on the subject this very week. The very distinguished noble Lord, Lord Patel, who expresses his regret that he cannot be here, has written to me saying how strongly he supports the desire to have independence here. InterResolve has written about it. The noble Lord, Lord Hughes of Woodside, has made the point.

It gives us no pleasure on these Benches to keep pressing for a reasonable level of independence in the scheme, and it gives me no pleasure to say that the NHS Litigation Authority on its own will not be seen as independent as the scheme authority without an independent element in fact-finding. The Healthcare Commission’s oversight and the responsibility of Ann Abraham as the ombudsman give us some comfort, but that is not yet enough. I hope the Minister will see his way to accepting that this amendment and those that go with it are intended to bring some public trust to this scheme, and that he will recognise that it is not that expensive. The costs do not need to be huge, as the investigation has to happen anyway.

We all want to see a good, solid, trusted NHS redress scheme. I hope the Minister will give us the assurance that we can have some real independence in the fact-finding in this process.

My Lords, it is often a very simple matter to deduce why the Commons has rejected amendments passed in this House, but I am puzzled about this one because surely it is unarguable that no verdict can be seen as just if those reaching it are biased or clearly linked with one side of a case. I listened most carefully to what the Minister said. I am bound to say that I am still just as puzzled as I was at the beginning because none of the points that he made alters those facts. A decision made by people who are biased will be rejected by those on whom that decision must rest. The Minister says that they can always go to the ombudsman, but is that the best way to look at it? Do we say that our courts need not have unbiased judges and unbiased juries because the matter can always be taken further? Surely not. In this case we are dealing with people who deserve justice and deserve to see that justice is being done.

The Minister pleaded the case that the cost would be too high. Is it too expensive to have justice? Is it too expensive to ensure that decisions made in this land of ours are reached fairly and justly? I think not. I have argued for years that natural justice is not served when suspended hospital doctors are judged by those who suspended them. No judge in any court would have his judgment accepted if he were known to be very much on the side of those to whom he awarded a favourable verdict. Even the chairman of the most modest and humble committee is expected to be impartial. Surely investigation must be not only open and conducted solely on facts but clearly seen to be exactly that. Do the Government not recognise that deep resentment will be caused in doctors and patients if this un-British amendment of the other place goes through? Is the Minister impressed—I hope that he is—by the fact that noble Lords on all sides of this House are begging him to accept that we need to have a just conclusion to these matters?

Is the Minister not moved by the fact that many people outside this place have written to us about this matter, as the noble Baroness has just pointed out? I have received letters and I have no doubt that other Members of this House have received them as well. I felt so strongly about this that I was determined to make a small speech. It is such a basic point of justice that I could not keep silent.

My Lords, I remind your Lordships that the community health councils have been eliminated and now the patients forums are going. Therefore, patients do not have an independent voice to help them. I support the noble Earl’s amendment.

My Lords, I consider that we do have a just conclusion. I am sorry that I did not get my points across clearly. I shall reiterate briefly one or two of the points that I made and challenge the amendment’s intellectual basis.

In my opening remarks I mentioned the number of elements in this scheme which have a fair degree of independence. I mentioned independent legal advice and independent medical advice. There are provisions in the Bill that you can make requirements on the experience and qualifications of the investigator. There is the ombudsman waiting in the wings for complaints. There is the Healthcare Commission, which I think everyone will agree is very independent, and it is overseeing the functioning of the scheme.

Let us examine what the Commons actually rejected. By a majority of 95 votes, it rejected a proposal from this House, which was passed by one vote, that there should be a panel—I am not making this up; this is what was passed—of patient redress investigators. It has rejected that idea of a panel of independent investigators. We are now coming back, as far as I can judge from the amendments, to a panel of independent overseers. Some would cynically say, “What’s in a name?”. Let me explore what the overseer does. I am not altogether clear on it. Does he or she sit on the shoulder of the investigator? How far do they follow through the investigation? Are they a duplicate investigator? Is that what this House is providing in the Bill? That provision was rejected by the other House.

I have not heard any answers in any of the speeches that have been made to the questions that I raised about this proposal in my opening remarks, yet people want to place this in the Bill. I am going to repeat those questions, because they are relevant. What if the member carrying out the investigation and the independent overseer do not agree about the investigation report? That is not fanciful; that is quite possible. Who resolves that conflict? Who provides support to the overseer? Does the overseer just come along and decide whether they like the look of the draft report at the end of the process? Do they track the quality of the investigation by the investigator? How do they monitor and carry out their oversight arrangements? Those are the practical things that would determine whether the scheme works well.

The scheme has been introduced at the very last knockings of the Bill without any explanation of how it would work. If the Government come along and have a go at making a general provision, rightly we are interrogated in Committee about the details of those schemes. Here are the opposition Benches coming along and trying to put in the Bill a set of proposals that have not previously been discussed, for which they can give no explanation of how they would work or how much they would cost. I am charged with exaggerating the costs; I do not know what the costs are. I cannot see how it would work in a very clear way if we do not know exactly what the overseer would do or how much detail they would have to give to the investigation.

The noble Earl, Lord Howe, said that it is said that patients will have no idea whether their claim has been investigated fairly. However, the Government have tabled an amendment to explicitly require the redress scheme ordinarily to provide an investigation report to be prepared and provided to the individual. That is a new approach. The individual sees that investigation of the facts, and they are then in a position to challenge that report if they think it is unfair, using legal advice and independent medical advice. We have put things very clearly in the Bill that support the independence of the investigation and will ensure that patients are properly supported. We have learnt from the past; we have introduced changes here that make it much more likely that patients will get a fair shout on this issue. I come back to the point that we really do have to know how an overseer system would work, because it looks remarkably to me like the panel of investigators by another name, which was rejected by 95 votes in the other place.

My Lords, the Minister said much that was helpful, but I am extremely disappointed that he has not acknowledged the central point of principle here. He acknowledged it obliquely by listing those elements of the scheme that will provide a measure of independence. Yes, we can assume that the legal and medical advice received by a complainant will be independent. The ombudsman is clearly independent, as is the Healthcare Commission, but my concern is that patients look at the scheme and see a closed process that is not transparent as it deliberates.

A report will be produced at the other end, but you cannot see that report at the outset. I do not wish to accuse the Minister of disingenuousness, but that is the word that springs to mind when he protests that we have not fleshed out how independence would be imported into the scheme. The Government have not fleshed out many of the details of the Bill; it is a skeleton Bill and we have had extensive debate on many aspects of it, but much needs to be fleshed out in regulation.

I have outlined one way in which the element of independent oversight could be imported; that is to say that the person charged with responsibility to deliver a full and fair investigation of the facts should come from outside the trust being investigated. That is not a complicated proposal. The noble Lord, Lord Hughes, helpfully drew our attention to a parallel from the police service. That is exactly right. It is not an unworkable system—

My Lords, I thought that I had made it clear that the general public did not accept that a police authority investigating another police authority was independent or acceptable.

I am not so sure about that, my Lords. I differ from the noble Lord on that; a much greater degree of confidence is perceived by the public when such an arrangement is put in place.

The Minister listed a raft of practical difficulties in this matter and pointed out that I had not made clear how, for example, a conflict of views would be resolved, how the independent overseer could be supported and so on. Those are not complicated questions to resolve and are certainly not beyond the wit of all of us, with good will, to sort out between now and a further day when the Bill could return to this House, should I decide to divide it.

This is an issue of principle. As the noble Baroness, Lady Neuberger, indicated, the concern is not confined to this Chamber or even to Parliament; it extends much more widely than that. The need for an element of independence in the scheme, in whatever form, is an issue of principle. Because I want the scheme to work well, we owe it to ourselves to ask the Government and the other place to have one further look at this issue.

Motion, as amended, agreed to.

5: Page 4, line 17, leave out paragraph (c)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5.

Moved, That the House do agree with the Commons in their Amendment No. 5.—(Lord Warner.)

moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 5, leave out “agree” and insert “disagree”.

The noble Earl said: My Lords, I spoke to Amendment No. 5A together with AmendmentNo. 4A and made clear that it was grouped. I beg to move.

Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 5, leave out “agree” and insert “disagree”.—(Earl Howe.)

On Question, amendment agreed to.

Motion, as amended, agreed to.

6: Page 4, line 23, at end insert -

“(2A) A scheme must

(a) make provision for the findings of an investigation of a case under the scheme to be recorded in a report, and

(b) subject to subsection (2B), make provision for a copy of the report to be provided on request to the individual seeking redress.

(2B) A scheme may provide that no copy of an investigation report need be provided -

(a) before an offer is made under the scheme or proceedings under the scheme are terminated, or

(b) in such other circumstances as may be specified.”

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 6.

Moved accordingly, and, on Question, Motion agreed to.

7: Clause 8, page 4, line 41, leave out “subsection (2)” and insert "subsections (2) and (4)"

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7.

Moved accordingly, and, on Question, Motion agreed to.

[Amendments Nos. 7A and 7B not moved.]

8: Page 5, line 1, leave out “in connection with proceedings under the scheme”

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

I shall deal, first, with Commons Amendments Nos. 8 and 9. During debate in another place, the point was rightly made by representatives of the Benches opposite in relation to Clause 8(1)(a) that it is vital for a legal adviser to know to whom he is providing advice. It was suggested that clarification was required to make it clear whether the legal advice was to be provided to the person seeking redress or to the scheme. These amendments make it clear that legal advice without charge may be provided to individuals seeking redress under the scheme.

I turn to Commons Amendment No. 10. Clause 8(1)(b) enables the redress scheme to provide for the services of medical experts. In the statement of policy, published in November 2005, we made it clear that, where evidence from an independent medical expert is necessary, the scheme authority will seek to ascertain the wishes of the patient to reach agreement on an acceptable person. The amendment makes it clear that, where the services of medical experts are provided under the scheme, the medical expert will be an agreed independent expert. The services of that expert will be provided without charge to the individual.

Although the amendment makes specific reference to medical experts,

“instructed jointly by the scheme authority and the individual seeking redress under the scheme”,

I reassure the House that we do not consider it reasonable to expect a lay person to instruct a medical expert on a complex issue. It is our firm intention that the individual seeking redress will have access to appropriate legal advice without charge to enable the individual to be fully informed and involved in the joint instruction of the expert. We have existing powers to enable that in Clause 8(1)(a).

Amendments Nos. 8A, 8B and 9A would completely remove the power for the scheme to provide free legal advice to people using the scheme prior to an offer of redress having been made. By rigidly preventing free legal advice being provided to patients seeking redress under the scheme, the scheme will not give patients the assistance that they may require.

The argument for these amendments, put forward in the other place, is that legal advice is not necessary during the fact-finding process. Investigation merely ascertains what happened. I do not agree. For example, there will be circumstances in which it will be appropriate for there to be instruction of medical experts to help to ascertain the facts of a case. As I have said, we do not consider it reasonable to expect lay persons always to instruct medical experts without legal advice. If the redress scheme is to be effective and to gain the confidence of patients, there needs to be appropriate support throughout the process.

However, not only are patients to be prevented from having legal advice to assist with the instruction of medical experts, but Amendment No. 10A would remove the provision inserted in the other place that guaranteed that any medical expert would be jointly instructed.

In Grand Committee, the noble Baroness, Lady Neuberger, seemed to suggest that, if patients as well as the NHS trust are to be able to start proceedings, which they are, they will need help to do so and to understand the proceedings. These amendments would prevent the scheme making provision, where appropriate, for the availability of legal support under the scheme to assist patients seeking redress.

For those reasons, I strongly urge the noble Earl not to pursue Amendments Nos. 8A, 8B, 9A and 10A but to agree to Commons Amendments Nos. 8, 9and 10.

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

moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 8, leave out “agree” and insert “disagree and do propose the following amendment in lieu”—

8B: Page 5, line 1, leave out paragraph (a)

The noble Earl said: My Lords, I shall speak also to Amendments Nos. 9A and 10A. I should say at the outset that it is not my intention to press these amendments but I think that it is right to take a brief time to debate them. We need to hear from the Government in a little more detail why they have changed their minds about offering free legal advice throughout the redress process.

I do not have, and never have had, a problem about free legal advice being available under the scheme at the point at which the NHS local authority comes forward with an offer. It is at that stage that the aggrieved person wishes to assess the adequacy of the offer and to weigh up the alternatives open to him if he decides not to accept it. To make those decisions, he needs legal advice. Perhaps more importantly, he needs legal advice on the implications of his accepting an offer from the NHSLA, because the acceptance of an offer brings to an end his legal right to pursue civil litigation on that matter. Clause 8(2) covers that situation, and it is important. I have no argument with it.

But here we find that in another place the Government have agreed to the insertion of Clause 8(1), which would apparently allow for a complainant to have access to free legal advice from the very outset of the redress process. That is a significant changeof mind. In Grand Committee, the Minister acknowledged that at the beginning of the process support to the patient would be provided by PALS and ICAS. I had reservations about PALS and ICAS and suggested that we might think about someone more akin to a Mackenzie friend to support the patient, but the one thing that neither the Minister nor I envisaged was the intervention of lawyers.

There are two reasons why I am resistant to the presence of lawyers at this stage of the process. The first is cost. One reason why we all agree that we need to find an alternative to civil litigation is that it is costly to all concerned. Although the Government have not said it in so many words, they surely cannot be oblivious to the size of the legal aid bill associated with civil claims against the health service—it is enormous—yet here we seem to be reimporting one of the features of the current unsatisfactory system into the new one.

The second reason that I balk at the amendment is that I cannot see why lawyers are necessary at this point of the process. The whole point of the redress scheme is that it affords a quicker, less cumbersome way for a patient to receive an explanation; where appropriate, an apology for treatment that has gone wrong; and, in appropriate cases, an offer of financial compensation. By making an application under the scheme, you lose none of your legal rights; you are simply making an application. The added value of a lawyer at this stage of the process is therefore unclear to me. I have heard the argument that, if you make an application under the scheme and have it rejected on the grounds that it is ineligible, you might need a lawyer to contest that decision. Again, I do not follow that argument. If an application is rejected on grounds of ineligibility, the reasons for the decision will presumably be given, and that is certainly a situation in which ICAS could be brought in to offer the patient appropriate guidance. But a rejection need not be the end of the road: civil litigation may still be open as an alternative. Once you import lawyers into this early stage, you introduce elements appropriate to an adversarial, judicial process. The redress schemeis not a judicial process, nor is it adversarial; it is essentially an offer-making process which is consensual.

I have noticed in my time working on this Bill that there are only two groups of people who believe we need more lawyers for the NHS redress scheme—the lawyers themselves, and those with an interest in promoting the services of lawyers. It is unfortunate that the Government have allowed themselves to be beguiled into modifying the Bill in this way. I put it no stronger than that.

In Amendment No. 10 we also see that the Government have changed their minds on the question of having jointly instructed medical experts. They were always in the Bill, but here we have a new subsection about joint instruction. Again, that concept introduces a dimension that we see operating in the courts. The redress scheme is not the same as a court. It is an executive process. A joint instruction implies that an adversarial tussle is going on. As I have said, I do not view the redress scheme in that way, and I did not think that the Government did either. What will be the status of the medical experts’ evidence? Will it be privileged, or will it be available to the patient at the end of the process? That is an important point.

In our earlier debates the Minister was quite clear that some elements of the NHSLA’s deliberations would have to remain legally privileged. I am not sure whether the Minister has changed his position, but should be interested to know whether that is so. If he has not changed his position, I understand exactly why that should be. If the patient is party to a joint instruction it implies that he or she should be entitled to know what evidence is given as a consequence.

I should be grateful if the Minister could elucidate a little further how he sees this provision working and exactly how it fits with the concept of the scheme as the Government envisage. I beg to move.

Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 8, leave out “agree” and insert “disagree and do propose Amendment No. 8B in lieu”.—(Earl Howe.)

My Lords, let me reassure the noble Earl that it is certainly not our intention to have free legal advice available at every stage of the proceedings. However, we recognise that in some cases legal advice may be necessary at an earlier stage, for example, when the services of jointly instructed medical experts are required. In these cases, it may be inappropriate not to offer appropriate legal advice, but without that provision the scheme is unlikely to gain the confidence of patients.

I notice that the Liberal Democrats are not speaking on this Motion. I was pleased that Dr John Pugh said in the Commons Standing Committee that the Minister had confirmed that medical experts, where instructed, would be jointly instructed. It is imperative for any meaningful joint instruction of a medial expert that the patient has specialist legal representation. It would not be reasonable to expect a lay person to instruct a medical expert on such complex issues.

The noble Baroness, Lady Neuberger, will be pleased to see this new accord between the Government and some of her colleagues on this aspect. We agree with that entirely. We have certainly not changed our minds in the area of reports. They will be made available, and there is no question of using the excuse of privilege in denying access to the views of the expert medical witness. I tried to make that clear earlier, but I may not have done so as well as I might. A claim for privilege to prevent disclosure to another party can be made if a document is a communication between a solicitor and a third party, which arises after litigation is contemplated and the purpose of which is to obtain legal advice. Where documents have a dual purpose the test is whether the dominant purpose of the document was for legal advice. Privilege cannot be claimed for an accident or investigation report unless the sole or dominant purpose for which it was prepared was for submission to a legal adviser for advice.

In this case, the expert advice will be a shared appointment and what they say will be made available to both parties, so I do not think there is any question of doctors claiming privilege on that issue. I hope that that reassures the noble Earl.

My Lords, that was a helpful reply, and I am grateful to the Minister. My reservations about the interpolation of lawyers still stands, but I note what he said and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Motion agreed to.

9: Page 5, line 2, at end insert “to individuals seeking redress under the scheme”

10: Page 5, line 12, at end insert—

“(4) A scheme that makes provision for the provision of the services of medical experts must provide for such experts to be instructed jointly by the scheme authority and the individual seeking redress under the scheme.”

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 9 and 10.

Moved accordingly, and, on Question, Motion agreed to.

11: Clause 10, page 5, line 29, at beginning insert “Subject to subsection (2A),”

12: Page 6, line 9, leave out “a specified person” and insert “an individual of a specified description”

13: Page 6, line 11, leave out "and" and insert

“(ha) require a member of the scheme to charge an individual of a specified description with responsibility for”

14: Page 6, line 14, leave out paragraph (i)

15: Page 6, line 15, at end insert

“(2A) A scheme must require a member of the scheme to prepare and publish an annual report about cases involving the member that are dealt with under the scheme and the lessons to be learnt from them.”

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 11 to 15.

Moved accordingly, and, on Question, Motion agreed to.

16: Page 6, line 26, leave out from “scheme” to end of line 27

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 16.

Moved, That the House do agree with the Commons in their Amendment No. 16.—(Lord Warner.)

moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 16, leave out “agree” and insert “disagree”

The noble Earl said: My Lords, I spoke to the amendment earlier. I beg to move.

Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 16, leave out “agree” and insert “disagree”.—(Earl Howe.)

On Question, amendment agreed to.

17: Insert the following new clause—

“General duty to promote resolution under scheme

A scheme must include provision requiring the scheme authority and the members of the scheme, in carrying out their functions under the scheme, to have regard in particular to the desirability of redress being provided without recourse to civil proceedings.”

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 17.

This new clause imposes a general duty to promote resolution under the scheme. A duty will now be imposed on scheme members and the scheme authority to have regard when carrying out their functions under the scheme to the desirability of settling the case.

The redress scheme to be established under the powers in the Bill aims to open up access to justice for the less articulate, less wealthy and those who traditionally would have been fed up and would have abandoned the process before a case is completed. Providers of NHS services will now be expected to take forward cases when they believe there may be a case of negligence.

An active approach of redress will be required under the scheme. There will be scheme members who are already taking an active approach to complaints and to clinical negligence cases. Some organisations will be prepared to be open and honest and will embrace the redress scheme, but there will be others who continue to be defensive and drag their heels. We need to do all we can to ensure that this will not happen.

The new clause signals that the redress scheme is not simply a parallel process to run alongside the courts. It is intended to be the primary means by which disputes arising out of NHS hospital services are, where reasonably practicable, to be resolved rather than leaving cases to be pursued through the courts. It would be wrong to require cases to be settled under the scheme willy-nilly, but the desirability of resolution is a factor that must be taken into account along with all other relevant considerations. For those reasons, I commend the Motion to the House.

Moved, That the House do agree with the Commons in their Amendment No. 17.—(Lord Warner.)

My Lords, with the leave of the House, I wish to ask a question. Despite the Minister’s explanation, I am a little puzzled as to why the wording has been chosen. Despite the reasons adduced by the Minister, there is a problem of whether the new clause has genuine legal force. How could one ever verify one way or the other whether the scheme authority or scheme members were abiding by it, or failing to do so? In practical terms, the provision is unenforceable. If so, it is bad law and should not be in the Bill.

The whole point of the redress scheme is to provide an alternative to civil proceedings. The NHSLA is tasked at present with keeping disputes and complaints out of the courts. It does that successfully. No doubt it will continue to do so when the scheme is up and running. I cannot see why we need to state in the Bill that it must have regard to the desirability of redress being provided without recourse to civil proceedings. I am not sure what value that adds.

Perhaps the Minister could say a little more on those issues.

My Lords, as I understand it this new clause was tabled on Report in the Commons. Views were expressed outside the Commons—for example by Action against Medical Accidents—that some reinforcing mechanism was needed in the Bill. The new clause seeks to reinforce the message that scheme members and the scheme authority should actively seek resolution under the scheme.

I can understand where the noble Earl, Lord Howe, is coming from. But the clause is not meaningless; it makes it very clear that there may be a legal remedy if the duty to promote resolution is not properly exercised. We felt that it was important to put this matter beyond peradventure, given some of the points made. This provision was generally approved in the other place as a way to give a clear signal that the redress scheme is intended as the primary means by which disputes are resolved, so far as is reasonably practicable. That is the reason we went ahead with this particular provision.

On Question, Motion agreed to.

18: Clause 12, page 7, line 1, leave out Clause 12

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 18.

Moved accordingly, and, on Question, Motion agreed to.

19: Clause 19, page 12, line 10, leave out subsection (6)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 19.

This is a privilege amendment. It removes Clause 19(6), which is commonly known as the “privilege amendment” and which states that nothing in the Bill will impose any new or increased charges on public funds. It is the privilege of another place to control charges on public funds. In order to acknowledge that financial privilege of another place, when a Lords Bill such as this, which includes charges on public funds, transfers to that other place, this House formally declares that the Bill will not result in any new or increased charges. The privilege amendment is then added to the Bill as it passes to another place. This amendment simply removes the privilege amendment.

Moved, That the House do agree with the Commons in their Amendment No. 19.—(Lord Warner.)

On Question, Motion agreed to.

Violent Crime Reduction Bill

Read a third time.

Clause 45 [Power to search school pupils for weapons]:

Page 46, line 4, leave out “may” and insert “must”

The noble Baroness said: My Lords, in moving Amendment No. 1, I shall speak also to Amendment No. 2. The amendments simply ask the Government to provide further clarification about issues we touched on in Committee and on Report. I welcome the noble Baroness, Lady Scotland of Asthal, to our proceedings. The noble Lord, Lord Bassam, has done sterling service throughout all previous stages, so I wait with bated breath to see why we have been targeted by a Minister of State as well.

I hope my amendments will give the Minister the opportunity to carry out his commitment given at col. 620 on Report. Clause 45 introduces a power to search school pupils for weapons. We have made it clear that we support that measure. Paragraph 312 of the Explanatory Notes states that,

“in the case of maintained schools (which carry out a public function), there is an obligation to act compatibly with Convention rights and schools will be given guidance on how to ensure that searches are carried out compatibly with Convention rights”.

In Committee, I tabled an amendment to probe what kind of guidance would be given by the Government regarding how searches would be carried out and what training would be required. In particular, I asked what training would be given in schools to those carrying out the searches to ensure that the search was carried out in an appropriate manner.

In practice, the Minister did not respond to that question, perhaps simply because my amendment was at that stage grouped with a number of government amendments that had already been spoken to by him. In so doing he referred at col. 637 on 22 May to the fact that guidelines would be issued. The problem was that we did not obtain any further information about precisely what those guidelines might address. That debate was five months ago. Since then concern has been expressed particularly over the past two weeks about the wearing of veils in schools and elsewhere. I therefore felt that it was only right to give the Government the opportunity to put on record their view on the interpretation of the powers of search within that context.

On my reading of the Government's drafting, they have tried to cover the matter in the most sensible and sensitive way, but we need to be sure. Clause 45(5) permits a member of staff to require a pupil to remove outer clothing. Does that include the hijab? The subsection also states that the member of staff who carries out the search of the pupil while looking for weapons must be of same sex as the pupil and,

“may carry out the search only in the presence of another member of the staff who is also of the same sex as the pupil”.

In my amendment I stipulate that the first member of staff must carry out the search only when the second member of the staff is the same sex as the pupil. I anticipate that the use of the word “may” in subsection (5)(c) is intended to have the same force as “must” in subsection (5)(b). I am puzzled why the terminology is different. It could lead those not used to parliamentary drafting to assume that a different objective is sought. I suspect that the objective is not different.

Amendment No. 2 gives the Secretary of State the power to issue guidance regarding how the search powers in subsection (5) may be carried out. In particular it allows the Secretary of State to specify what should be considered as outer clothing. It is therefore more targeted than the amendment I tabled in Committee, which covered the whole clause.

How will guidance regarding the searches be formulated? Will there be national guidance from the Secretary of State after consultation with schools, their governing bodies, local authorities, teachers’ unions and professional associations, or will the guidance be provided by individual local authorities or schools? What progress have the Government made on this matter since the clause was published over a year ago in July 2005? I beg to move.

My Lords, I support the thinking behind Amendment No 1. It is a matter of English. If the Minister says in terms that a search may be carried out only in the presence of another member of staff, as a matter of English that is fair enough, but if there is a possibility of a search being carried out without another member of staff being present, that would be terribly wrong, from not only the point of view of protecting the pupil but that of protecting the teacher from false allegations. It would be very easy for a person who is carrying a weapon and who is discovered in flagrante delicto so doing to blame the teacher concerned and to suggest that there had been some impropriety, some planting of evidence or something of that sort. It is essential to have two people to carry out searches. I hope to hear the Minister agree.

My Lords, before I start I should return the compliment to the noble Baroness and say how much I have enjoyed her company on the Bill, and of course that of the noble Lord, Lord Thomas of Gresford. I greatly appreciate—I want this understood by all Members of the House—the constructive way we have had our debates on the many and varied issues that the Bill has raised. It has been a model of the way Bills should be considered and taken forward in the House. It has worked particularly well with some of the more practical, hard-nosed issues that we have had to consider.

These amendments, as set out by the noble Baroness, Lady Anelay, seek to alter the wording of the requirement that a member of staff must carry out a search only when another appropriate member of staff is present. They also seek to enable the Secretary of State for Education and Skills to issue guidance, and suggest that may in particular refer to who will conduct the search or be present during it, and the clothing that can be required to be removed.

Under subsection (5)(c) it is already a requirement of the search power that another member of staff of the same sex is present when a search is conducted. Therefore we would not seek any changes to the way that the requirement is expressed, as we believe the clause as currently drafted adequately meets the policy objective. It would not permit a search that is not carried out in the presence of another member of staff who is of the same sex as the pupil.

Noble Lords will be aware that my right honourable friend the Secretary of State for Education and Skills plans to issue guidance for schools, and that my department will issue guidance for attendance centres. Preliminary discussions took place this month with the working group on school security—which includes representatives from teacher unions, parent organisations, police representatives and others—and liaison is continuing with faith groups. Obviously, all comments will be taken into account and we will then consult fully on the draft guidance. That will include advice on staff training, on employers’ duties to take reasonable steps to keep staff safe and on the importance of having insurance to cover any liability for injury in the course of employment.

My Lords, I hope the Minister will forgive me, but would the advice or guidance include the requirement to keep an occurrence book, so that everything is properly recorded? These are important interferences with liberty, and it is essential that they should be properly marked.

My Lords, the noble Lord makes an important point. Yes, it would certainly be my expectation that there would be a proper record of the events surrounding a search of that nature. It may also be helpful to say a little more on the planned scope of this guidance, which has already benefited extensively from suggestions from stakeholders—a term that, although I do not like it, we all understand. It will cover the context and practicalities—the sort of points that the noble Lord raised—and the consequences of searching. The context is likely to involve a school statement of policy, and options that staff should consider before embarking upon a search.

Practical aspects, to which I have already alluded, will include training for staff, the use of security firms, factors to take into account in suspicion, and being sensitive to issues of race, culture and religion arising from items of outer clothing—headgear, veils and so on. The consequences section will cover keeping records—the point raised by the noble Lord, Lord Thomas—informing parents and dealing with complaints. I hope it is clear from this that the guidance will be thorough. It is certainly our intention that it should be. If noble Lords feel that other things, which we have missed or not dealt with, should be put into the guidance, then we will be open to listening to those concerns as part of the consultation.

While it is unnecessary to detail the contents of the guidance in the Bill, since the Secretary of State for Education and Skills will be issuing guidance following what I hope noble Lords will now realise is a full consultation process, I can also assure the noble Baroness, Lady Anelay, that we will note all issues raised during these debates and try to ensure thatthey are taken into account properly during the consultation process.

The guidance will be national and issued by the DfES. What is outer clothing is, apparently, a matter of law, but non-statutory guidance can give indications, and it will.

Questions such as, “Can a search ever be carried out in front of a male when a female is involved?” have been asked. Our guidance will certainly recommend that only in exceptional circumstances should a school allow more staff to be present at a search than the two who must be present, and that any other person present should be of the same sex as the pupil. I have now covered the points raised by the noble Baroness, Lady Anelay, and the noble Lord, Lord Thomas, unless there are other questions.

My Lords, a question that concerns me is whether this may take up a huge amount of time for the school staff. The Minister referred to using security firms. If using those firms is to become a regular matter of course—as it obviously has become in American schools—presumably that would mean staff do not have to be present. Or, if the security firm’s staff is used for this security clearance, would there be one member of staff? How does the approach work in that case?

My Lords, it is difficult to be precise in answering each and every circumstance, but there would clearly have to bemuch negotiation involved in the employment or deployment of security staff. In any event, if firms of security staff are used, there will have to be compliance with the general principles of the process to which I referred. Points of detail like that are best left in guidance, but I am happy to respond to individual issues raised outside the terms of this debate. I hope that my comments have been generally helpful and constructive, as they are meant to be. I am certainly attempting to answer the noble Baroness’s points in raising her useful amendment this evening.

My Lords, I am grateful to the Minister. I expected him to say that the “must” in subsection 5(b) was intended to mean the same as the “may … only” in subsection 5(c), as that did look like an odd bit of drafting for those not perhaps used to the vicissitudes of this particular Bill.

I also agree with the Minister that it is useful to have the outline of what might be in guidance now; in this case, we certainly do not expect to see detailed guidance. Sometimes it is important to see what is in guidance before one progresses further, but as the Minister points out there are existing issues on guidance—both in statute, and non-statutory—upon which one hopes this consultation will build. However, it was right to raise today the sensitive issue of matters such as head-covering and what it comprises.

On the important issue of who is going to be present at a search—and what sex they should be—we had earlier discussions about how one defines a member of staff. I was pleased that the Government made amendments earlier, ensuring that they would be members of staff and not volunteers or just anybody who might be brought in to assist. So, there is a greater quality control over what kind of search is carried out. I appreciate the Minister saying that it might, on occasion, be necessary to have more than two persons present at a search. One might envisage a particularly healthy teenager overpowering two members of staff, and for the security of those present one might want more than two adults there. However, it is important that they fall within the parameters of the rules set down, both in the Bill and subsequently in guidance.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Before Clause 59, insert the following new clause-


(1) It shall be an offence for any person intentionally to make an audio or visual recording of a criminal offence for the purpose of obtaining gratification for himself or another.

(2) It shall be an offence for any person to place on the internet an audio or visual recording made under subsection (1).

(3) A person guilty of an offence under this section is liable-

(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both; (b) on conviction on indictment, to imprisonment for a term not exceeding five years.”

The noble Baroness said: My Lords, in moving Amendment No. 3 I hope that our happy agreements are going to continue. I have tabled it to give the Government the opportunity to carry out a commitment that I learned of recently. It would create a new offence of recording a criminal offence for personal gratification—something otherwise known in the newspapers as “happy slapping”.

Noble Lords will be all too well aware from those press reports that there has been much concern about the prevalence of a new sort of activity. People with ready access to a camera phone or smart-phone that can take still or video pictures can use them to record a criminal event. That usually involves a group, perhaps kicking, beating or sometimes even raping an individual. The pictures are then transmitted to others so that they can all have a good laugh at the victim and applaud the criminal. Often, the pictures are posted on the internet. To take the footage is a despicable way to behave. The whole purpose behind it is for people to enjoy watching—not to encourage others to commit the offence, which would obviously be a conspiracy—but simply for the person in some sick way to enjoy what they see.

Incidents reported in the press here have ranged from minor assaults to the killing of the Soho barman, David Morley, in a gang attack on the South Bank in London in October 2004—all recorded and circulated on mobile phones. I am aware that the mobile telecoms industry has put in place measures to assist in the prevention and detection of such behaviour. I am grateful to Aleyne Johnston, the government and public policy executive at Orange, for her very helpful and detailed briefing on these matters and for her support for my amendment.

The amendment introduces a new offence that would make it illegal for any person intentionally to make an audio or visual recording of a criminal offence for the purpose of obtaining gratification for himself or another. I am trying to ensure that those who record criminal events for the purposes of prosecuting them are not caught out by the new offence. I want to protect the police and journalists who take pictures and pass them on to police, using them in a perfectly laudable way. I also want to protect those quick-thinking members of the public—for example, those who were present at the horrendous events in London last summer—who take video footage or still pictures on their cameras and hand them over to the police. The pictures taken then were invaluable in backing up CCTV footage.

I intend to protect all those innocent applications of the use of mobile telephony to take pictures, while trying to target those who take pictures for a sickening purpose. I believe that the drafting ensures that only those who are seeking to obtain gratification for themselves or another would be committing an offence. Police, journalists and members of the public who take pictures for detection, prevention, solution or reporting of crime would not fall foul of the offence. They are clearly not seeking to obtain gratification for themselves or another. Neither are the police when they take videos of offences such as dangerous driving on the motorway and then allow them to be shown on TV. That is clearly for educational reasons—to deter others from committing offences.

I did not move my original amendment on Report, having debated it in Committee, because the Government indicated that they were not prepared to make any concessions on the matter. Although I felt strongly that my amendment was the right thing to do, I did not wish unnecessarily to take up the time of the House at that stage at a late hour. However, developments since Report have persuaded me that I should bring back my amendment on Third Reading, so that the Government can provide an explanation and clarification of comments made by the right honourable gentleman, Jack Straw, in Business Questions in another place just last Thursday. I have redrafted my original amendment so that it includes a new subsection (2) to respond to the specific point made by Mr Straw.

He was asked by Iain Wright, the Labour MP for Hartlepool, whether he would arrange for time to be given to a debate on YouTube. Mr Wright said that he was concerned about a posting on it from his constituency entitled, “Milton Road Fight Club”. It shows a man being attacked in the street and kicked in the face until he is unconscious. Mr Wright said that he was worried that,

“acts of violence and instances of happy slapping recorded on mobile phones are being transferred to the web for wider consumption”.

I entirely agree with him. Mr Wright went on to ask for a debate so that Members of another place could discuss how they might help to stop the problem.

Lo and behold, Mr Straw’s response was to state that the Commons did not need time for a debate because it was already in the pipeline. He said that another place,

“will discuss the Violent Crime Reduction Bill during the next week, and I hope that he raises the matter in relation to an appropriate amendment. There is a very serious issue about how such videos should better be controlled”.—[Official Report, Commons, 19/10/06; col. 1025.]

But, in Committee, the Government had already rejected my amendment to deal with happy slapping, so how on earth would another place have the opportunity to discuss that, unless the Government are minded to accept my amendment today? My new subsection (2) does exactly what Mr Straw hoped that his honourable friend Mr Wright would do: it makes it an offence for anyone to upload or place on the internet an audio or visual recording made for the purpose of obtaining gratification for himself or another. The word “gratification” already appears in legislation, but I understand from the Public Bill Office that the word “upload” does not yet. So, under its advice, I have used the words, “place on the internet”.

Presumably, the Government will now accept my amendment, as I am only doing what the Leader of another place wants—what he asked his honourable friend to do as recently as last Thursday; what he obviously thought that the Home Office had already agreed should be an amendment to the Bill. Without my amendment, no debate can take place in the Commons when the Bill returns to another place next Monday. Let us help another place to have that debate. I beg to move.

My Lords, I share the condemnation of the noble Baroness of happy slapping, but I wonder whether her amendment is sufficiently tightly drawn. Obviously, what she has in mind is those who video rapes, muggings or fights outside a pub in which several men kick another man in the head while he is lying on the ground, and so on. In such cases, her amendment would be entirely justified, but there is no requirement in the amendment for the criminal offence to be a serious one. This may sound far-fetched, but suppose that a particularly unpleasant individual lived in a street who was disliked by all his neighbours and someone videoed him creeping out late at night to deposit illicit rubbish in someone else's recycling bin, or something like that, and all the neighbours got together to laugh at that individual’s misdemeanours being revealed.

More pertinently, perhaps, what about, heaven forbid, another 9/11? Let us suppose that someone were to video an al-Qaeda plane crashing into a skyscraper on Canary Wharf and hand the video over to the police, assuming that no one else had videoed it. Surely, it would not be wrong for him to keep it to show to his family and friends time and time again, just as—whether or not it is right for them to do so—people enjoy seeing a replay of the 9/11 tragedy when planes crashed into skyscrapers. It may be wrong of them to do so, but I suggest that millions of people do. I fear that that would be automatically caught unless more discretion is given to the prosecuting authorities to ignore such things. Even if the video were handed over to the police for the purposes of trying to track down and prosecutethe individuals concerned, it would still be an offence for the person who took the video to keep it for the purposes of replaying it to his family and friends.

My Lords, I congratulate the noble Baroness, Lady Anelay, on bringing this idea forward in Committee and persisting with it at Third Reading, now that the Government have indicated their support for the basic idea. I, too, have some reservations about the drafting—I hope that the noble Baroness will forgive me for that. As drafted, it requires the prosecution to prove that the purpose of recording the criminal offence was to obtain gratification for the person making the recording or for the gratification of someone else. It would be better if a statutory defence were included, so that it was an offence for any person intentionally to make an audio or visual recording of a criminal offence and then, in subsection (2), for it to be a defence to show that it had been done for a legitimate reason—however that is expressed.

I am also concerned that we know about these things because the media publish them in a “shock, horror” way—“Look at what these people are doing!”. At the same time, one wonders whether there is not a secondary purpose in the publication of material of that kind. Although I applaud how subsection (2) is drafted, in the traditional Liberal way, I wonder whether it goes far enough.

My Lords, I am grateful to the noble Baroness for her introduction to happy slapping, and I congratulate her on her persistence in raising the issue again and on her diligence in following matters in another place. I will deal with this and other issues in turn.

As the noble Baroness has explained, the amendment attempts to tackle the unsavoury practice of recording offences, often on a mobile phone,for personal gratification, and publishing those recordings on the internet. It is clear that the aim of the amendment is to create an offence to ensure that any person who participates in happy-slapping incidents can be prosecuted under the law. I think we all agree that incidents of happy slapping can be vicious and traumatic for the victim, and the Government condemn the practice entirely, as does everyone else. We are therefore naturally sympathetic to the aim of the amendment. However, we have already done quite a lot of work to investigate the issue, and we have sought views from other government departments and agencies since the noble Baroness first raised the issue quite properly in Committee. We have tried to focus on identifying whether there is a gap in the legislation and, although we sympathise with the objectives of the amendment, we remain sceptical that there is a need for a new offence of recording a criminal offence, as proposed in the amendment.

The noble Baroness’s approach is not supported by ACPO or the CPS, which have told us that they know of no cases where prosecutions have failed or have not proceeded because of a gap in the law. There is already adequate criminal law to deal with anyone involved in an incident of happy slapping, and we are confident that any individual who is involved in such an incident in any way will be committing a criminal offence and will therefore be liable to be prosecuted for that offence.

Under subsection (1) of the amendment, a person who recorded a violent offence should be criminally liable, either because they also committed the offence being filmed, or because they were involved in the planning of the offence and so would be open to charges of conspiracy, incitement, or aiding and abetting, or were involved in a joint enterprise to commit the offence. I reiterate—noble Lords will already be aware of this—that a person does not have to make physical contact with the victim to commit what is an extremely serious criminal offence. Aiding, abetting or inciting an offence can be subject to the same penalties as committing the offence, and therefore an individual who does this can be dealt with as robustly as those directly involved. Moreover, happy slapping that is an element of a violent offence should be taken into account as an aggravating factor of that offence under current sentencing guidelines. This type of offence would usually involve three factors: planning, offenders operating in groups or gangs, and additional degradation of the victim. These factors would apply to all those committing the offence, not only to the person doing the filming.

Subsection (2) of the amendment relates to the newer offence of downloading on to the internet an audio or visual recording of a criminal offence. Under the current law, anyone who publishes material on the internet that is held to be obscene under the Obscene Publications Act 1959 is committing a criminal offence. It is also an offence under Section 127 of the Communications Act 2003 to transmit, by means of a public electronic communications network such as a mobile phone, images that are,

“grossly offensive or of an indecent, obscene or menacing character”.

Material that is not caught by this legislation is widely available for the general public to see elsewhere, for example in the media and the entertainment industry, and is not subject to criminal law. In this sense, the issue under consideration goes far beyond images on the internet, and it would not be appropriate to legislate only against images on this medium.

I am afraid that the amendment also has some drafting difficulties that could render it unworkable. First, the amendment would make it an offence to record any criminal offence. By not restricting this to violent offences, we could be criminalising the recording of anything from a minor traffic infringement to much more serious crimes. The amendment would also require there to be intention before an offence is committed. However, it is not clear whether the intention relates solely to the filming of the act in question or to the filming of a criminal offence. In other words, it is not clear whether the person must know that the act they are filming for gratification is in fact a criminal offence.

Finally, the proposed offence would require the recording to be for the gratification of the individual or another person. Although there are currently 14 references to gratification in legislation, they all relate to sexual gratification. It is not clear what would be caught by the term “gratification”. For example, it is not clear whether publishing such material for legitimate purposes—for example, as CCTV footage as part of the news or a “Crimewatch”-type programme, many of which can be viewed on the internet—would be for personal gratification, and whether or not gratification in this sense would be legitimate.

As noble Lords will be aware, many news and other television programmes or clips can now be viewed over the internet. Even if a defence along these lines were included, there would be significant evidential difficulties in, for example establishing whether the offence being uploaded was real or staged and, if staged, therefore not a criminal offence. It is true that many of us find certain material available on the internet distasteful. However, I should say for the record that the vast majority of the internet industry takes a responsible approach to the content that it hosts, both of its own volition and in co-operation with law enforcement and government agencies. Where the industry is advised that the content that it hosts contravenes legislation or its broader acceptable-use policy—many companies’ policies provide for them to remove material that will cause distress to an individual—they will readily remove it. Any individual who is concerned about the contents of a particular website can approach the relevant internet service provider to ask it to remove either the site or some of the material hosted on it.

The Government accept the noble Baroness’s concerns and, as I said at the outset, are sympathetic to the aim of the amendment. However, we are not convinced that there is a gap in current legislation. We do, of course, want to ensure that the law is enforced fully, consistently and robustly, and we think that by working with ACPO, the CPS and the Sentencing Guidelines Council we can ensure that the police, prosecutors and sentencers have the proper guidance to enable them to deal appropriately with incidents of happy slapping.

We also want to send out a clear message to children that incidents of happy slapping are abhorrent and will not be tolerated. We are therefore working with the Department for Education and Skills on how we can best educate young people, who are often the group exposed to incidents of happy slapping, about the seriousness of committing a criminal offence of assault and, indeed, about the seriousness of the penalties for crimes of this nature. I realise that this may be something of a disappointing response to the noble Baroness, although I have indicated our general support for what she is attempting to achieve; that is, to ensure that people are fully aware of the abhorrent nature of happy slapping and that the full force of the law can be used against them for perpetrating this appalling crime.

The noble Baroness made some salient points about my right honourable friend Jack Straw and his comments in another place. I have now looked at what he said. I think that the Leader of another place was making an observation in a way designed to be helpful, to assist his honourable friend Iain Wright, the Member for Hartlepool, in finding a venue to hold a lengthier discussion on the issue of YouTube. I think he said that he hoped that the issue would be raised with an appropriate amendment. In a sense we have done that and the noble Baroness has been helpful in that regard. My right honourable friend simply encouraged his honourable friend to use the opportunity of perhaps having an amendment to the Bill and perhaps returning it to another place for there to be a discussion. I do not think that he made a commitment or asked Iain Wright to do anything. It was just one of those moments when Jack Straw was trying to be helpful, as he is on many occasions.

I am grateful for the opportunity provided by the noble Baroness to discuss this issue further. I have tried to go through in detail the way we see the issue and how we feel it is best dealt with. In those terms, I hope that she has found my response useful.

My Lords, the noble Lord has now made much clearer the Government’s objections than he was able to in Committee, and of course I understand that my drafting is not perfect. The noble Lords, Lord Monson and Lord Thomas of Gresford, were worried about how wide the offence would go and who it would capture. I was not in a position to explore these issues further on Report—I gave an explanation at the time, and therefore it was not possible to knock off the rough edges of the amendment. Given that, I offer it again to the House today, but in a slightly different form.

The Minister spoke of the drafting rather than the objective. He shares my aims and concerns, but has said that there is no gap in the current legislation. This is a matter that is abhorrent in nature. Happy slapping is not something that should be tolerated and it is clear that Jack Straw agrees. The Minister has said that his right honourable friend was trying to be helpful in another place. Well, he was helpful to me. It is one of those occasions when I shall remember his words very clearly indeed. The Minister is inviting me to believe that the Leader of the House of Commons does not understand the rules of amendments in lieu that proceed when we have exchanges between both Houses. The right honourable Jack Straw has been in Parliament for more years than me and has vastly more experience than I have now or ever could have, so I find that difficult to swallow. It is clear that Jack Straw believed that this Bill would be in another place and could be amended in such a way that Mr Wright would be able to table his amendment. If he did not believe that, he was misleading another place, and I do not believe that Jack Straw was doing that. I shall give him the opportunity to satisfy his honourable friends in another place. I wish to test the opinion of the House.

Clause 63 [Removal of sports grounds etc. from private security industry regulation]:

Page 58, line 13, at end insert-

“(6A) An employee for a visiting team who engages in licensable conduct shall not be guilty of an offence under section 3 in respect of that conduct if-

(a) it is carried out in connection with the use of a certified sports ground or certified sports stand for purposes for which its safety certificate has effect; and (b) that visiting team is involved in the activities for which the ground is being used, or which the stand is being used to view. ( ) In subsection (6A) a reference to a person being an employee for a visiting team is a reference to his being a relevant employee in relation to the visitors' ground, or in relation to a certified sports stand contained in the visitors' premises.”

The noble Lord said: My Lords, AmendmentNo. 4 and consequential Amendments Nos. 5 to 9 are designed to slightly change Clause 63, which was added on Report. This relatively small change is intended to clarify the effect of that amendment, and I regret that it was brought to my attention only after Report. The clause that I put forward was intended to ensure that in-house staff performing security activities would not have to be licensed by the SIA if they were working at a ground covered by the safety at sports grounds legislation.

I have been informed that the wording of the clause limits it to affect only those staff who work at their home sports grounds. It would not cover those sports security staff who sometimes accompany their club or team to work in other sports grounds. This minor amendment aims to meet the intended position of the original amendment. It will also remove from the remit of the Private Security Industry Act 2001 those in-house staff whose home ground is covered by the safety at sports grounds legislation and who accompany their team to play at another venue which is also covered by the safety at sports grounds legislation.

This will apply regardless of whether they are playing a single other team or participating in a group event, such as an athletics meeting where several other clubs are involved. It will also apply regardless of whether the sports ground they play at is the home ground of the club or team they are competing against. I beg to move.

My Lords, I thank my noble friend Lord Pendry for tabling this slight change to Clause 63, which he introduced so eloquently on Report. I am more than content that these amendments cover, and remove from the scope of the licensing requirements, those in-house sport security staff who from time to time accompany their clubs to other sports grounds, where both their home ground and the sports ground being visited are covered by sports safety legislation. This is a simple, practical addition to what is an important change to the legislation. I am extremely grateful to my noble friend for agreeing to move these amendments, which we on the government Benches naturally accept.

Page 58, line 14, leave out “subsection (6)” and insert “this section”

Page 58, line 21, leave out “subsection (6) the reference” and insert “this section a reference”

Page 58, line 28, leave out “subsection (6) the reference” and insert “this section a reference”

Page 59, line 8, leave out “and” .

Page 59, line 10, at end insert-

“‘visiting team', in relation to a certified sports ground (‘the home ground') or a certified sports stand contained in any premises (‘the home premises') means a team which uses as its base, or as one of its bases, any premises which are either- (a) a certified sports ground which is not the home ground (‘the visitors' ground'); or (b) premises which are not the home premises and which contain a certified sports stand (‘the visitors' premises'); ‘visitors' ground' and ‘visitors' premises', in relation to a visiting team, have the meanings given by the previous definition.”

On Question, amendments agreed to.

Clause 66 [Short title, commencement and extent]:

Page 59, line 31, at end insert-

“( ) No order may be made bringing into force sections 31 and 32 until the Secretary of State has presented to both Houses of Parliament the results of research demonstrating that air weapons used in the commission of offences are disproportionately those sold by way of trade or business by persons who are or may become registered firearms dealers, as distinct from sales between private persons; and that air weapons used in the commission of offences are disproportionately those sold by mail order or other remote transactions, as distinct from those sold by way of private sales (whether face-to-face or not).”

The noble Earl said: My Lords, I apologise for coming into the Chamber late. In moving this amendment I declare an interest as President of the Gun Trade Association and Chairman of the British Shooting Sports Council.

This amendment is the same as one I tabled at Report last week but did not move as I had been in touch with the Minister and had received a letter from him dated 11 October explaining the Government’s position. I find the contents of that letter satisfactory. Yet, having since taken advice on the matter and bearing in mind the severe restriction to trade which the gun trade will suffer as a direct consequence of the Government’s actions, I have tabled my amendment again in order to extract—I hope—the same response from the Minister, this time with the benefit of having it on the parliamentary record. I beg to move.

My Lords, I briefly rise to support my noble friend’s amendment, to which I have added my name. I certainly understand and sympathise with the consternation of the reputable dealers in airguns across the country, both registered and unregistered, who find themselves faced with this restraint upon their trade after a consultation that took place some time ago, yet where we have still not seen the publications and analysis of the responses to that consultation.

My noble friend says that he simply seeks, onthe record, a statement of assurances that the Government have already been able to give in writing. My noble friend is right to do so because these are important matters. I am certainly pleased that they will be thereby resolved.

Can the Minister also respond to the point I put in Committee, which has so far gone unanswered? I asked whether the Government have taken into account the fact that not all air weapons have a specific number, so that it is more difficult to carry out any registration. I am aware that it could be advantageous for the trade were the Government to adopt a pragmatic approach of allowing registration by batches of sale. The Minister said that he would give “further thought” to that matter. What is the result of that further reflection?

My Lords, I am grateful to the noble Earl for joining us in your Lordships’ House today and for moving his amendment. It enables me to place on record my thanks to him not only for the diligent and courteous way in which he has conducted himself during the debates and in raising these questions and issues, but also for seeking clarification on behalf of the Gun Trade Association and lobby.

The amendment challenges the Government to justify the inclusion of Clauses 31 and 32 and to show that they will be effective in tackling air weapon misuse. I know that the Gun Trade Association unreservedly condemns the misuse of air weapons—as we all do—and has done much in the past to promulgate safe and responsible handling. However, although there has been some recent improvement in the situation, the level of misuse remains a matter of real concern. In 2004-05, there were 11,825 crimes in which air weapons were used, resulting in 1,502 cases of injury, including—sadly—143 serious injuries. Occasionally the use of air weapons results in fatal injury, as occurred in Glasgow last year when two year-old Andrew Morton was killed.

All of this adds up to what we all agree is an unacceptable situation. We pledged in our party’s last manifesto that we would tighten the law on airguns. Clearly one way of doing this would be to make all air weapons subject to certification but we recognise that this would impose a considerable administrative burden on all concerned. We concluded that restricting the points of sale to responsible registered dealers would help tackle the problem at source and, in any event, be more proportionate in its effect on legitimate users.

The amendment tabled by the noble Earl, Lord Shrewsbury, seeks to establish whether the misuse of air weapons stems from those bought from retailers and by mail order or from weapons acquired through private sales. It also requires the Home Secretary to present research findings on this point to both Houses before the relevant clauses are brought into force. There are currently no comprehensive statistics, research or other studies on where offenders obtained their air weapons. Although it is very likely that some will have been obtained through private sales, I am equally sure that some will have come direct from retailers. I do not think this is generally disputed. Absence of evidence is not always evidence of absence and the Government do not propose to delay bringing into force these important measures while research is carried out. The results would, in any event, be largely academic as we want to tackle all air weapon misuse irrespective of where the gun was purchased.

Having said that, I understand the concerns about the impact of the clauses. As I made clear in Committee, we will work closely with the gun trade to ensure that the guidance on security and the requirements on keeping a register are kept proportionate. It will be open to existing sellers to apply to be registered and the fee of £150 works out at less than £1 a week, covering as it does a three-year period. Existing registered dealers will of course be able to continue to sell air weapons, with no charge to their business apart from a need to maintain a sales record and to conduct face-to-face transactions. We have already drafted Clause 32 in a way which minimises inconvenience to shooters in remote areas by allowing the final transfer of possession to be undertaken by a representative of the seller.

As well as bearing down on the present indiscriminate and anonymous sale of air weapons to unsuitable or under-age people in the way proposed, it will also be important to continue to tackle misuse through education and safety awareness and through the rigorous enforcement of existing offences. We believe that these measures, taken together, can only be good for the long-term future of the legitimate airgun industry if they succeed in tackling the present unacceptable levels of misuse.

I am grateful to the noble Baroness, Lady Anelay, for raising the question of the “batches” approach. I accept that not all air weapons have numbers and we have agreed with the gun trade that batch numbers will be sufficient in the absence of serial numbers. I hope that that assurance clears up that final point.

Again I am grateful to the noble Earl and I pay tribute to him for his diligence in this issue. No doubt if there are any loose ends that he wishes to see tidied up I am sure that we will be able to deal with that in the usual way through correspondence and so on. I shall be happy to speak to the noble Earl outside the Chamber if there are any other matters that are still unresolved. Having heard what I have said, I hope the noble Earl will now withdraw his amendment.

My Lords, I am most grateful to the Minister for his comments; they have satisfied entirely my questions on this matter. I should like to put on record to the Minister and his department my thanks and the thanks of the Gun Trade Association and the British Shooting Sports Council and to express our appreciation of the assistance we gave been given, the dialogue that has gone on and the courteous manner in which the Minister has dealt with all the details and matters that I have raised during the course of the Bill. On that note, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Lord Bassam of Brighton.)

My Lords, I rise to put on record that while the Bill has improved slightly as it has gone through the House it still retains some of the worst aspects of bureaucracy and may not deliver quite the benefits that the Government hope.

The Bill has been marked throughout its passage by the willingness of the Minister and all members of his Bill team to work with all the bodies which have a direct interest in how the Bill may be operated. We hope that, as a result, some of the regulations may be better prescribed than otherwise they might. I received today the notice of draft guidance on alcohol disorder zones. Although it arrived very late it was not too late for me to see it before this session and for it to be forwarded to the Wine and Spirit Trade Association and the British Retail Consortium. It is a measure of the constructive activity of the Bill team that has enabled the Bill to have a less rocky ride than some.

There is one small pebble in it that will return to us by way of exchange between the Houses in a week or two but, given the work that has been done behind the scenes, I do not anticipate at this stage any difficulty with that.

My Lords, I associate myself with the expressions delivered by the noble Baroness in relation to the Bill team and to the Minister’s handling of the Bill. It has been a pleasure to be a part of the debate. I have made all my criticisms of the Bill and its mechanisms—I shall no doubt come back to them at a later time—but it would be churlish of me to repeat them now.

My Lords, that just leaves me to say thank you to the noble Lord, Lord Thomas of Gresford, and to the noble Baroness, Lady Anelay, for their courtesies and their conduct during the passage of the Bill. On behalf of the Bill team, I thank them for the co-operative spirit in which we have endeavoured to carry out the proceedings. With the exception of the one minor matter, on which I think we can reach a reasonable compromise as a result of exchanges between the two Houses, the Bill will have had a happy passage rather than a happy slapping.

On Question, Bill passed, and returned to the Commons with amendments.

Safeguarding Vulnerable Groups Bill [HL]

The Bill was returned from the Commons agreed to with amendments and with a privilege amendment; it was ordered that the Commons amendments be printed.

Police and Justice Bill

The Bill was returned from the Commons with certain Lords amendments disagreed to with reasons for such disagreement; with a Lords amendment disagreed to but with amendments to the words so restored to the Bill; with certain other Lords amendments agreed to with amendments; and with the remaining Lords amendments agreed to; the Commons amendments and reasons were ordered to be printed.

House adjourned at twenty-one minutes before eight o’clock.