Before the Minister moves that the Bill be considered, I remind noble Lords that in the case of the Bill and the order, the Motions before the Committee will be that the Committee do consider the Bill or the order in question. I should perhaps make it clear that the Motions to give the Bill a Second Reading and to approve the order will be moved in the Chamber in the usual way.

That the Second Reading Committee do consider the Perpetuities and Accumulations Bill [HL].

Every Bill that comes before your Lordships’ House is in some way special, but the Perpetuities and Accumulations Bill is particularly so for three reasons. First, it will reform the long-standing rule of English and Welsh trust and property law known as the rule against perpetuities and the rule against excessive accumulations. Secondly, it is a Law Commission Bill, and there have been all too few such Bills in Parliament in recent years. Thirdly, it is the first Bill in the trial of the new procedure for Law Commission Bills approved by the House last year. We hope that this Bill will be the first of many to use the procedure. This may very well be the first time that a Second Reading of any Bill has been heard in the Moses Room. No doubt inquiries will be made to see whether that statement is accurate. Perhaps we are making history in a small way this afternoon.

Before I consider those three themes in greater detail, I thank those who have been particularly instrumental in developing the new procedure. My noble friend Lady Ashton, as one of my predecessors at the Ministry of Justice, and as Leader of the House, worked closely with the noble Lords, Lord Kingsland and Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick, to develop an acceptable new procedure for Law Commission Bills. The noble Lord, Lord Brabazon of Tara, and members of the Procedure Committee recommended that the procedure be given a two-Bill trial, which is worthy of thanks. I am grateful to them all.

In thanking those who have contributed to the development of the new procedure, I should not omit to mention Sir Terence Etherton, the chairman of the Law Commission, without whose vigorous prompting we may not have been here today.

The development of the new procedure was only possible because of the co-operation between all parts of your Lordships’ House—the Government, the opposition parties and the Cross Benches—and I hope that we will carry this spirit through our debate, because a new procedure is founded on the principle of consensus.

Few, if any, bodies outside Parliament can claim to have had such an influence on our laws as the Law Commission. It has established an international reputation for excellence of legal research and analysis. However, all too often and for all too long, potential Law Commission Bills have languished unimplemented because parliamentary time could not be found for them. The new procedure is intended to address part of this problem. It is not intended for every Law Commission Bill. However, it will be suitable for what might be described as unspectacular but worthy law reform; work that will not command headlines on the front page, but without which our laws will become out of date and dislocated from the real world. It is work that this House, if I may say so, seems to me to be especially suited to scrutinise and carry forward.

I turn now, not without some trepidation, to describe the content of what can only be described as a very technical Bill. The overall aim, which is based on the result of extensive consultation, is to modernise, simplify and streamline the rule against perpetuities and the rule against excessive accumulations. Clauses 1 to 12 deal with the reforms to the operation of the rule against perpetuities, and Clauses 13 and 14 deal with the reform of the rule against excessive accumulations. The remaining clauses are ancillary to these substantive reforms. As the rules are largely independent of one another, I shall deal with each in turn.

The rule against perpetuities is an old common law rule that originally developed in the context of family trusts. The first question facing a prospective settlor, or more likely his or her lawyer, is whether the rule applies. This is defined by common law and not by statute. Over time, the scope of the rule has been extended from family trust-type situations to include commercial transactions such as options, rights of pre-emption and future easements. The rule therefore now reaches into areas well beyond its original justification.

Clauses 1 and 2 define precisely when the rule is to apply and when it is not to apply. It will apply only in three sets of circumstances: successive interests in trusts or executory bequests, non-successive interests subject to conditions precedent, and rights exercisable on breach of conditions subsequent. If it transpires that the rule still applies where it ought not to do so, Clause 3 provides an order-making power for the Lord Chancellor to specify exceptions. This is subject to the affirmative resolution procedure. Where the rule applies, Clause 2 preserves the present exception for gifts over from one charity to another and extends the current exception for pension schemes to all personal occupational and public service schemes. By necessary implication from Clause 1, the rule will no longer apply in other cases. Options, rights of pre-emption and future easements currently subject to this rule will cease to be so. This major reform responds to the concerns of the consultees that the rule was unnecessarily complicating commercial transactions.

Having defined when the rule is to apply, the Bill defines the perpetuity period. At present, that period is the length of a “life or lives in being” designated by the creator of a trust, plus an additional 21 years, or a fixed period of up to 80 years. Subject to one exception, Clause 5 provides that where the Bill applies, the perpetuity period will be 125 years. This is broadly the maximum likely to be achieved under the present law and present life expectancies. The exception is that where an existing special power of appointment is exercised, the period will be the same as that which applies to the trust from which the power derives. This broadly preserves the effect of the present law.

Clause 6 defines when the period will start. The general rule is that it will begin when the instrument creating the relevant interests takes effect. But for special powers of appointment, as under the present law, the period will start at the date the instrument creating the power took effect.

The Bill is in general only prospective and will not, subject to one beneficial exception, affect the terms of existing trusts or wills. The exception is that where the trustees of a pre-commencement trust believe that it is difficult or not reasonably practicable to calculate whether a perpetuity period defined by reference to “lives in being” has ended, they can opt in to a fixed period under the Bill of 100 years.

The remaining clauses applying to perpetuities broadly replicate instruments to which the Bill applies the effect of the “wait and see” and class-closing reforms effected by the Perpetuities and Accumulations Act 1964, an Act that, if I may mention in passing, was built upon the work of the Law Reform Committee in 1956. It was work in which the father of the noble Lord, Lord Goodhart, played a prominent part. I am sure that he would be delighted to see his son continuing in the family tradition today.

The second of the rules to be reformed is the rule against excessive accumulations. Broadly speaking, accumulation is the rolling up of trust income into capital. This rule, originating in a statute enacted at the turn of the 19th century in respect of the Thellusson case of 1799, limits how long income can be added to capital, rather than being distributed to beneficiaries. Currently, six alternative statutory periods can apply. The rule applies to trusts created by natural persons, but not trusts set up by corporations.

The Law Commission found that for most cases the rationale for the rule had disappeared and recommended that the current rule be abolished for all but charitable trusts. Charitable trustees are under a duty to distribute funds to provide for the charitable purposes for which the trust was established. The Bill therefore repeals the present rules but retains a statutory accumulation period of 21 years for property held on trust for charitable purposes. This period will however not apply where the court or the Charity Commission under their existing powers have made specific provision for a charity.

As in the case of the reforms to the rule against perpetuities, these reforms will apply only to instruments taking effect after the Bill comes into force unless the instrument is a will made before that date and taking effect after it. In that case, the present law will apply.

Having completed this brief and, I fear, far from expert summary of the principal provisions of the Bill, perhaps I may mention one final general point. The Bill is not intended to affect income from taxation. However, with a Bill of this complexity, dealing with matters over such a long time period, it is difficult to be absolutely certain that the Bill would not have any effect on revenue. If, however, any unintended effect on revenue becomes apparent, the Government will act swiftly to remove any unintended Exchequer consequences in the unlikely event that they arise.

I failed to notify the Committee that if there were to be a Division the Committee would adjourn for 10 minutes to allow Members to vote.

I think that all Members of the Committee have returned, so I think that we should return in the interests of using time well.

I remind the Grand Committee that we are today taking part in the first Second Reading Committee debate in this Room in the long history of the House. The reforms that we propose in the Bill are based on consultation with experts—of course their comments have been taken into account. Some may have wished for more radical reform, but that was not the consensus. I hope that this modest but important Bill will be the first of many to use the new procedure. I beg to move.

I thank the Minister very much for explaining a complex, technical Bill and for the new procedure under which we are to operate, in which we are, in racing terms, the first out of the traps. I begin by declaring interests—charitable interests which are on the Register. Perhaps in the light of the subject matter that we are discussing, I should draw the Committee’s attention to the fact that I am president of the National Council of Voluntary Organisations, which of course has some interest in our proceedings. That having been said, I am not a lawyer, and I shall leave the legal aspects to my noble friend Lord Kingsland, who has already forgotten more law than I will ever know, and focus instead on one or two practical implications that could be tweaked in the Bill and which may represent an improvement.

As I said, I welcome this new approach, because speeding up the modernisation of legislation is very important. I had a bit of a baptism of fire on this when dealing with what was originally the Company Law Reform Bill—on which I had the honour of representing the party on the Front Bench—which became the Companies Act 2006. As one dug into that, one saw how the 2006 Bill was going to amend the 2004 Act, which amended the 1989 Act, the 1985 Act and, in a few cases, as far back as the 1929 Act. The archaeological layers meant, as the Minister said in his opening remarks, that often provisions have become entirely dislocated from the real world and completely incomprehensible other than to the specialist. We were able, thanks to the Government’s good offices, including the Minister’s colleague, the noble Lord, Lord Sainsbury, to expand the Bill to bring everything into one place in a much bigger Bill—a 1,300-clause Bill. There were a couple of exceptions, including community interest companies, which we shall of course touch on later in our debates. In so far as this is part of the same process, I welcome it.

The Minister was unduly modest when he explained the history of the Bill. I understand that the initial consultation on this Bill took place in 1993. It was the subject of a Law Commission report in 1998, a constitutional affairs department report in 2002, more consultation in 2008 and now, 16 years on, we have the Bill. That shows that there is a need to speed up the procedure.

I turn to the Bill itself. My first point concerns the issue of perpetuities. Obviously, I find perpetuity a complex issue, given concepts such as “lives in being”. I ask for one clarification. I hope that the Bill team will forgive me when I say that when I read the Explanatory Notes trying to unravel the matter, I got to paragraph 6 on page 2. The fourth sentence says:

“The perpetuity period will be the life of A plus 21 years, measured from the date of X’s death”.

Should it not read,

“at the date of X’s death”

rather than,

“from the date of X’s death”?

“From” indicates a continuum; “at” represents a point in time. This is a single point of measurement. I would be grateful if the Minister could confirm that. If I am wrong, it merely shows that perpetuities are even more complicated than I thought they were.

Specifically, I welcome the extension of the fixed perpetuity period to 125 years from 80 years in Clause 5. Clearly, we want as little complexity as possible. The more time that is offered in terms of the period, the greater time there is to sort out any difficulties that may arise. Therefore, the principle of Clause 5 is greatly to be welcomed. However, there is a problem with Clause 2 on exceptions to the rule’s application. This concerns successive gifts to a charity. For example, charity A receives a gift but is unable, does not wish to or cannot fulfil the conditions of the gift, and so the gift goes to charity B and so on. Paragraph 39 of the Explanatory Notes lays this out very clearly. The exception for successive charitable gifts arises because any gift to a charity, whether to a named charity such as the lifeboats or to an exclusively charitable purpose, fulfils what I understand is the legal requirement for certainty. Therefore, it does not matter if the charitable purpose alters, because it remains a charitable purpose.

Clause 2 does not refer to the second of these gifts for charitable purposes, only to gifts to a charity in subsections (2) and (3). The definitions on page 17 of the Explanatory Notes state that a charity is:

“An organisation established for charitable purposes only”.

The 1964 Act allowed gifts for charitable purposes to be excluded from perpetuities. Therefore, when we consider the Bill in more detail, I hope that the Government will think again about this because it represents a narrowing of the way in which perpetuities operate. In this highly technical area there may be an answer to this question, but a simple amendment to the relevant subsections of Clause 2 would enable us to address this apparent narrowing.

My second point concerns accumulations. Although we welcome making the accumulations rule much more straightforward and comprehensible, the charitable sector is concerned about the default provision of 21 years for charitable trusts. The Minister made clear in his opening remarks that there is an opportunity in Clause 14(2) for this to be set aside by a court or the Charity Commission. I accept that. It is also true that charitable trusts will probably be used less frequently in the future because we now have community interest companies and charitable incorporated organisations under the Charities Act 2006. Therefore, the trust structure may be used less in the future. Nevertheless, some people may wish to use trusts. I also accept that it will apply only going forward, not going back, although paragraph 25 at the top of page 6 of the Explanatory Notes states:

“Accordingly existing trust instruments and wills, that is, those taking effect before commencement, will generally not be affected by the Bill”.

As I say, I am not a lawyer, but when I see words such as “generally” I begin to wonder what they mean in reality. I think that we should be doing everything that we can to encourage philanthropic endeavour, and this 21-year rule is an unduly heavy and inflexible sledgehammer.

I will illuminate the argument with three brief examples. Trusts may have what are known as wasting assets. The wasting assets could be in two particular forms. There will be leaseholds, where the trust’s only asset is the lease of a property with an expiry date. When the lease comes to an end, the property reverts to the original owner; the trust no longer has any asset or any income and therefore will have to cease its operations. In such circumstances, it surely would be appropriate for the trust to be converting income to capital in the latter years of those leases in order to provide for endowment to enable it to carry on its original purposes. Many of these leases will run for longer than 21 years; they may be 99 years.

This comes to its sharpest point on things such as copyright. I think it was Westminster School that benefited enormously from the endowment of AA Milne’s copyright on the Winnie the Pooh books. While Westminster School had a sufficiently large endowment to be able to avoid converting income to capital, because it had other capital endowment of its own, a charity with a single asset which was a valuable copyright would find, as the copyright began to run out, that it had to either cease operation or convert income to capital to provide a sum of money to enable it to continue operations. My Oxford college, being a poor college of relatively modern foundation, had at one time great hopes of getting the Reverend W Awdry’s Thomas the Tank Engine books as he was a member of the college, but unfortunately it was unrequited in the end.

Wasting assets is one thing. Secondly, there is building up the sum endowed. The Minister and I in our different ways might decide that we wish to set up a charitable trust for a purpose that we feel is very worthwhile, and we get proper charitable permission but, being men of modest means, we can put only a smallish sum of capital in. We decide that during the rest of our lives, to have a decent sum of money for its future operation of our trust, we will roll up all the income and keep it in the capital so that there is a bigger pot for the trustees to work on after our death. The Minister and I—I think I am a few years ahead of the Minister—have a reasonable hope of passing 21 years, and therefore we would find that the rule as presently drafted would impact on us. That is a mistake because anything that encourages people to set up trusts and to accumulate income and build up the sum during a lifetime seems to me to be entirely sensible. Under the present rules you can do that, because the life of a settlor is the limit on accumulations at present.

Lastly, and perhaps most importantly, there is what I call the “total return” approach to investment management. Historically, people have considered the return on their investment as being two parts—a flow of capital gain and a flow of income. The income comes from dividends and interest on bonds, and the capital gain comes from the increase in asset values. In recent years, those two streams have become increasingly co-mingled. They have become co-mingled because tax rates for private individuals have become much the same and therefore whether you took it as income or capital gains does not really matter, and because of the emergence of the new asset classes, such as private equity, where there is no income, only capital gains. Therefore, the total return concept of investment management has emerged. If you are looking for a 10 per cent return, you do not really mind whether it is 10 per cent capital gain or 10 per cent income, or some mixture of the two. I am concerned that in the way that we are currently looking at the Bill, with a 21-year life, some charitable trusts will find that the total return concept actually begins to work against the efficient operation of their investment management.

I have already accepted that Clause 14(2) provides a let-out. We are trying to work to a situation where we have certainty and where a philanthropist knows what he or she can do. It may be that you can hope that the court or the Charity Commission will deal with you kindly, but we could try to increase that certainty by providing something a little less inflexible than the present approach. It is bureaucratic. I also think that it brings the Charity Commission into an invidious position of having to make value judgments about the readiness and appropriateness of rolling up income and converting it to capital.

I conclude by welcoming the Bill’s general approach. I have raised a couple of points which I hope the Government will consider and reflect on as we work through the Bill. The Charity Commission’s strategic plan for 2008-11 gives it six tasks, two of which are to be innovative and responsive. I hope that the Government can be innovative and responsive as regards these questions.

As my noble friend Lord Bach and the noble Lord, Lord Hodgson, reminded us, today we are makers of history for various reasons which they elicited, but, most particularly, because we are participating in the new procedure to expedite Law Commission Bills. If that is not the sole topic of conversation in the village where I live, at least we will have something to relate on future winter evenings. For much too long, the excellent work of the Law Commission has gathered dust on remote shelves because the business managers of successive Governments have found more pressing work for the two Chambers. The report on which this Bill is based was dated 1998.

I do not presume to match the expertise of the noble Lord, Lord Hodgson, nor of the noble Lord, Lord Goodhart. I intervene simply because, long ago, a distinguished predecessor of Sir Terence, Lord Scarman, and I plotted to introduce a more expeditious procedure for Law Commission Bills. But our efforts never came to fruition. I suspect that somewhere out there, he is now looking down on us with that enigmatic smile on his face. I regret that I was unable to attend the Second Reading last week of the Law Commission Bill, but I hope that the Government will accept my belated congratulations.

I must confess that so far as I recollect, the last time I had occasion to discuss perpetuities and accumulations was while attempting a question in my law finals. I have grasped that sometimes the mysteries of the law really do engage with the real world. This Bill is not just an exercise in esoteric logic, nor even simply concerned with preserving intact vast estates. It is an attempt to enable ordinary people to make reasonable dispositions of their property without tripping over archaic tangles which, no doubt, once related to genuine practical problems. This is the Law Commission doing what I believe Lord Gardiner originally intended that it should; namely, building bridges between the law and the real world. It deserves to succeed.

This is a once-in-a-generation opportunity. There has been no legislation on this since 1964, so I welcome the consensus that appears to lie behind the Bill. It is important to listen to the Chancery Bar, because it will be dealing with this. It is also a happy occasion to see a new procedure for Law Commission Bills. My very first job on graduation was with the commission under the late Lord Scarman, to whom we owe so much.

It would therefore be churlish for anyone to oppose the Bill, but I want to place a few points on record that I hope will be helpful. For example, Clause 1(1) is misleading. One starts by reading the Bill, and this clause suggests that the Bill contains the entire law of perpetuities. Only when they get to Clause 15 does the reader realise that the provisions apply prospectively, although including wills already made where the death occurs after commencement. The net effect of this prospective element is that the Law of Property Act 1925 and the Perpetuities and Accumulations Act 1964 will still be needed for about 100 years to come. This law, complicated as it is, is having yet another layer added to it, possibly needlessly, and it should be made plain at the outset that this is what is happening. Were there to be a draftsman skilled enough, some consolidation might be a good idea, but I yield to no one in my admiration of the skilled drafting of the Bill.

Imagine oneself a lawyer dealing with instruments and settlements affected by perpetuities. You would start, depending on the will or the instrument, by looking at the common law as it was before 1964. If the gift failed under common law, you would then move on to the 1964 Act and see if that helped by the application of “wait and see”. Then, prospectively, there will be this new Bill or something very much like it. Imagine the ignorance among high street solicitors; I have mentioned the Chancery Bar but not them.

My one claim to fame is that I used to lecture on this—I did so for 20 years at Oxford. In a course of eight one-hour lectures we did no more than merely scrape the surface of the subject, and at the end of those eight hours I used to forget it until the following year came around. My second claim to fame was that when I first had the privilege of meeting the Prime Minister before last, Tony Blair, he told me that he remembered me from my lectures.

As soon as I left Oxford, your Lordships will be interested to know that perpetuities were removed as a compulsory part of the syllabus. There is now only one tutor, and he is retiring in three months’ time, who gives it two hours a year in tutorials. It is taught at University College, London, and to Cambridge graduates. There is an essay available for purchase online for baffled students who are prepared to download an essay if they need to hand one in. I doubt whether this subject is widely taught or known, and I suspect—indeed, this has been said quite authoritatively in other common-law jurisdictions—that wills are drawn up by lawyers in complete ignorance and carried out in the same state. There is an American film called “Body Heat”, starring Kathleen Turner, where the entire plot turns on the failure to notice the application of the rule against perpetuities in a will, although I suspect that I was the only person in the audience to have been overcome with excitement at that point.

Even where the rule is known by a skilled lawyer, the application of “wait and see”—I will not go on for too long about this—may often mean that the money is spent on the wrong person, because while one is waiting and seeing for maybe 125 years, or 80 years under current law, the trustees have the right to spend the money that is the subject of the trust on the prospective beneficiary, even though it may turn out in 50 years’ time that he or she was the wrong recipient.

“Wait and see”, which continues under this law, tempts the testator to reach out. If you know the law and that you have a period of 125 years, you might just as well try to apply conditions for as far ahead in the future as you possibly can on the chance that you might get what you want. That is because if the period of wait and see passes and the law then applies to exclude members of a class, you may very well achieve most of your objectives.

Moreover, some of the retained law is extremely controversial. Who are the lives in being for the purposes of wait and see under common law and under the 1964 law? Learned articles still rage on this point and there are different schools of thought. There have been no decided cases that I can find directly on point of the 1964 Act since it was passed. We will be enacting this Bill without even knowing the result of the earlier attempt to reform it in 1964 and, of course, we will not know until probably the middle of this century, when I venture to suggest that many of us will not be around. That is because if people have started to wait and see under a will which came into effect in 1965, it could be some 80 years from then until we find out what happened.

It is therefore welcome that under Clause 12, a trustee who really does not know whether the lives have come to an end may choose to opt in to the new provisions. But the clause serves to demonstrate that the law could be retrospective, and there is no reason why it should not be. However, there will be problems: this involves not only who are the lives—the lives specified in the gift—but also the 1964 Act, which supplies a separate list. It is a question not only of who they are, but also whether they are still alive. It is therefore good that a fixed period of 125 years is provided, although it is probably too long and, of course, it is prospective. The much shorter period of 80 years was regarded as the proper length of time in the 1964 Act. As I have said, 125 years effectively removes any constraint on a testator when coupled with “wait and see”. Frankly, anything can be tried.

Having got this far in—that the testator can probably almost do what he likes—the whole rule becomes rather incredible and lacking in any sound base. It was based on a system of settlements when the age of majority was 21 and settled property was passed from generation to generation. That is simply not the case any more. We have held on to it because of our belief that you need some constraint on a testator or settlor to stop them reaching out too far in the future. Indeed, some extraordinary things in which I have had dealings in another job have now come to pass. We all take it for granted, as explained in paragraph 6 of the Explanatory Notes, that A cannot produce more children once dead. However, I need hardly remind at least the younger Members of the Committee that because of advances in fertility law, even it if it is not common, it is perfectly possible to produce children once you are dead. Perhaps I may remind noble Lords of the famous Diane Blood case. It happens quite often in the United States when soldiers freeze their sperm before going off to fight. The statement in paragraph 6 of the Explanatory Notes used to be perfectly valid and understandable, but is no longer so. Further, there is the much-laughed-at clause, or so my students told me, from the Perpetuities and Accumulations Act 1964, that a woman cannot conceive over the age of 55. Noble Lords will know that virtually every day in the red-top press we have yet another story of a woman of 60 or 65 who, with the benefits of modern science, gives birth to what is always termed “my miracle baby”. The law simply does not make sense any more. For aficionados of the topic, Barton Leach’s famous dictum that the child “en ventre sa frigidaire” or the impossibility of the fertile octogenarian have indeed come to pass.

So we come down to the rationale of why we are keeping this rule. We are taking a leap into the dark because no economic analysis of it has been made, as admitted by the Law Commission. We simply do not know what the economic effect of the law was or will be. One Harvard article suggested that states in the US that abolish the rule have more investments coming their way. The rule does not exist in Scotland to any extent, or indeed in several jurisdictions, with no ill-effects reported. No research has been made into whether life plus 21 years or 125 years is what testators either use or desire. The only justification for the rule is the so-called “dead hand rationale”, in other words: stop the dead hand of the long-since dead testator reaching out into the future. That rationale is several hundred years old with, as I have said, no research behind it. After all, ever since 1925, property legislation has freed up settled properties for sale. Taxation on settlements are penal, and it is taxation that will affect their status. The Trusts of Land and Appointments of Trustees Act 1996 gives extremely wide powers of investment. It is now impossible to create strict settlements.

However, the settlor, if he knows the law, can still exclude the power of the trustees to sell. The dead hand rationale has been undermined by tax law and by a testator’s perception of the need to shed conditions and rearrange gifts every now and then when new tax laws are passed. Who, in 1900, could have said what the needs of today’s beneficiaries might be, or the requirements of complying with or avoiding tax today, 109 years later? Yet that is the sort of situation that will arise 100 years from now. If anything, it could be argued that there is too little freedom of testation. The Inheritance Tax Act 1984 takes away great chunks of property on death, while the Inheritance (Provision for Family and Dependants) Act 1975 ensures that family members receive property even where the testator did not want them to. Divorce settlements and the results of divorce will send property off in directions not foreseen.

One might say that it is time the settlor had a bit more liberty by abolishing the rule. The Bill, in effect, keeps a troublesome law while at the same time effectively removing its constraints because 125 years is such a long time. One might worry that, by making it easier to create future interests, we are encouraging donors and testators to suspend future ownership. Is making a gift, as this Bill will allow, to my descendants living in 125 years’ time, really a benefit to the public, and will it be welcomed by the family? A famous case called Green where a mother did not accept that her son had been lost in a wartime plane crash left her property,

“to my son if he reappears within the next 80 years”.

Such cases will be cured by the power in this Bill for the trustees. Where the extent of the life is uncertain, trustees will be able to opt in to the fixed-length provision here. But that will take the property out of commerce for even longer. The common law had a lot to be said for it because if a gift was bad, you knew it right away. The conditions were lost and the property was freed up. “Wait and see” has actually made the situation worse. By helping gifts of vest, as this Bill will do, one helps one member of the family at the expense of another.

What is welcomed widely is that perpetuity will no longer apply to commercial interests, pensions and accumulations, and I think that that is right. There is concern in some quarters about removing the constraints on accumulation. It started with a case called Thellusson, which was a trust for prolonged accumulation, and it was feared at the time, almost 200 years ago, that the entire economy might have been sucked into this trust. In our present financial crisis, it is conceivable that a hedge fund might accumulate and suck up whatever is left of the entire economy. But it would be interesting to know whether economists think there is a real danger in removing this because we simply do not know; we have seen no economic analysis.

To conclude, I welcome the way in which the Bill positively applies perpetuities and takes them away from some other elements, I welcome the application of a fixed period of years, albeit I think it is rather long, and I welcome the drafting. My own preferences, though, would have been, first, abolition and, secondly, to leave it alone; however, if neither of those is on the cards, some consolidation of the three sets of law would be valuable.

I crave the indulgence of the Committee to say a few words in the gap. I did not put my name down to speak at Second Reading for the good reason that, as the prospective chairman of the committee that will be hearing evidence in due course, it seemed better that I should not express any view at all on the substance of the Bill. However, I did not want my silence today to be taken in any way as meaning that I had any doubts about the new procedure that we are adopting today for the first time; indeed, I warmly welcome it. The Minister said at the end of his introduction that he hoped that this would be the first of many Bills to adopt this course, and I entirely agree.

The noble and learned Lord, Lord Archer, said that he foresaw something of this kind many years ago when he was negotiating with Lord Scarman, the first chairman of the Law Commission. I just hope that the progress that the Bill takes through the House will fulfil some of his early hopes at that stage.

I agree with the Minister that the proceedings we have started today are important, and I say that for the same reasons that he did. This is the first Bill dealt with under the new procedure for Law Commission Bills. It is a pilot scheme, a trial to see whether the new procedure works. If it does, that will reduce the amount of time spent by Law Commission Bills on the Floor of the House, which is likely to make it possible to get more non-controversial Law Commission Bills enacted, and to get them enacted more swiftly than they are now. That would be very desirable.

This Bill, which is technical and, I believe, non-controversial, is based on the Law Commission’s report that was published 11 years ago, in 1998. Proceedings should have been possible that meant it could have been enacted within a matter of two or three years of the publication of the report. Of course controversial or important Bills, even though based on Law Commission reports, will continue to go through the usual procedure, as they should. That will deal with Bills on such recent Law Commission reports as its report on murder or that on the law of corruption.

I turn to the Bill itself. Perpetuities and accumulations are a subject that I am familiar with; indeed, I am prepared to say that looking at it now makes me quite nostalgic. Trusts were a substantial part of my practice as a member of the Chancery Bar, and trusts require knowledge of the rule against perpetuities and the rule against accumulations. The rule against perpetuities limits the time for which money or other property can be held in a trust, and the rule against accumulations limits the time for which income yielded by assets held in those trusts can be added to trust capital instead of being distributed to beneficiaries as income. However, while those principles are in fact both quite simple, the mechanism by which they have been applied is immensely complicated. I will not add to what the Minister has said about how those rules operate, but they are plainly complicated and anachronistic and need to be simplified.

I have some doubts about the detail of two of the Law Commission’s proposals that are proposed to be enacted in the Bill. My first doubt, which I share with the noble Baroness, Lady Deech, concerns whether the perpetuity period of 125 years is too long. I think that it plainly is because if such a rule had been in force in the past, it would mean that a trust set up in 1885 could still be in effect for a few more months. That seems to me pretty absurd. I therefore agree with the noble Baroness that this is a longer period than is needed. However, I do not agree with her that no perpetuity period should be imposed. I think it is desirable that there should be a limit on the time during which any owner of property can direct what happens to that property through creating a trust. If somebody wishes to set up a trust for a young, seriously disabled child who will never be able to manage his or her own affairs, and who might have a long life, that might suggest a maximum period of something like 100 years, given that a large number of people now live into their 90s. However, we can look at that point in detail later.

I also have doubts about the complete abolition of the rule against accumulations. The origin of that rule was the decision of a wealthy banker, Mr Thellusson, to leave a large part of his estate on trust to accumulate the income for the whole period of the trust, which was until the death of his last male descendant living at Mr Thellusson’s death. In theory, the effect of compound interest could have produced a gigantic sum of money by the end of the trust period. That is not so much a danger nowadays given the costs of running a trust, but I think it is still plainly undesirable that property should be locked up so that it cannot be applied for the benefit of anybody over a long period. While Mr Thellusson’s will was, to say the least, an eccentric action, under this Bill as it now stands there would be no way of preventing a new Thellusson creating a similar trust, which I do not think is desirable. My own preference is to allow the accumulation of income throughout a trust period but only as a power for the trustees to implement, not as an obligation imposed on them by the settlor or the testator. From time to time it may be in the interests of the beneficiaries that the income be accumulated rather than distributed, but that should never be unavoidable.

I noted with interest what the noble Lord, Lord Hodgson, said. That is a matter of detail to be dealt with by the Special Public Bill Committee when that is set up, as it shortly will be, and it will need considering. I hope that he will give evidence on that matter to that committee when it is formed. The noble Baroness, Lady Deech, made an important point concerning what to do with the existing trusts, which may go on for many years. I do not think there is an absolute solution to that, but in some circumstances at any rate it may be possible for trustees to opt into the new law and get out of the more complicated old one. Those are the sort of technical issues that ought to be left to the Special Public Bill Committee, not debated on the Floor of your Lordships' House. Subject, therefore, to the points that I have just mentioned, I am strongly in favour of the Bill and in principle I am completely in favour of it. My concerns rest only on relatively subsidiary points. I hope that the Bill will now be formally sent on its way in a day or two’s time to the Special Public Bill Committee. I look forward to the works of that committee.

If we needed any reminder about the historic nature of this Second Reading, it could not have been brought home to us more forcefully than the intervention of the noble and learned Lord, Lord Archer. It is difficult to convince oneself that it is now more than 35 years since he became Her Majesty’s Solicitor-General, an office which he adorned for many years. I know, because he has told me on a previous occasion, how much he admired Lord Scarman; and his story about their conspiracy does not surprise me in the least. The fact that the noble and learned Lord, Lord Archer, not only took the trouble to come this afternoon but also contributed has enriched the whole occasion.

The initial stage of this new procedure involves the three political parties agreeing that this Bill is uncontroversial. I was perfectly happy to do that and continued in this sublime state of ignorance until I heard the intervention of the noble Baroness, Lady Deech, whose intermittently excoriating remarks about the Government’s draft led me to believe that we are going to have a much more exciting Committee stage than I thought we would. We are extremely lucky that the noble Baroness has taken an interest in this matter. She reminded your Lordships that she lectured on this subject at Oxford University for 20 years. But she modestly failed also to say that she plays a prominent part in the footnotes of the Law Commission’s Bill, particularly in respect of an article entitled, “Lives in Being Revived”, which appeared in the greatest legal periodical that we publish in this country, the Law Quarterly Review. I look forward greatly to later stages of this Bill when I know that the noble Baroness will play a prominent part.

The noble Lord, Lord Goodhart, made what I believe the noble Lord, Lord Bach, would describe as a characteristically Goodhartian intervention. The noble Lord, Lord Goodhart, is of course on home ground in talking about this subject. I suspect that not only the noble Lord, but also his clerk, is rather nostalgic about the days in practice when he had a succession of perpetuities and accumulation cases. He is an acknowledged master in this field and I know that the Government will listen very carefully to any criticisms he has to make about the Bill.

However, the Opposition have their own well established track record in this sphere. My noble friend Lord Henley is a member of the committee. Indeed, he sits beside me as I speak. His great-great-great-great grandfather was Robert Henley, the Earl of Northington, who, in 1759, sitting in your Lordships’ House as Lord Keeper, handed down a much admired and much cited judgment on perpetuities and entails in the leading case of Marlborough (Duke) v Earl Godolphin. He said, inter alia:

“The common law seemed wisely to consider that the real property of this state ought, to a degree, to be put in commerce, to be left free to answer the exigencies of the possessors and their families, and therefore permitted no perpetuities by way of entails: although it allowed contingent remainders, it afforded them no protection … if the law would permit the confinement of an estate beyond a life in being, and the time for a remainderman’s minority to expire”.

To these great matters, I have no doubt that my noble friend will bring the same clarity and perspicacity as did his illustrious ancestor exactly 250 years ago.

I also observe that we are extremely fortunate to have heard this afternoon from my noble friend Lord Hodgson, whose combined experience of intensive work on charities law when it came before your Lordships' House not long ago, together with his experience in the City, has given us a great deal of matters to think about.

Unlike many of your Lordships who have spoken this afternoon, I have been rather taken by the Bill. I suppose that the reason for that is the way in which I approached it by, first, looking carefully—some might say uncharacteristically carefully—at the Law Commission report, which I find a most impressive document. I start as someone who has no experience in practice of this subject; so I am perhaps impressed in a way that some who are more familiar with it were not.

Very succinctly, graphically and effectively, the commission put the issue right at the beginning of its introduction:

“A property owner is thinking of making a will or creating a trust. How far into the future should the law allow him or her to reach when tying up that property? Can he or she control the devolution of that property indefinitely? For a lifetime? For a fixed period of years? How far should one generation be given the freedom to dispose of property in ways that will restrict the freedom of the next?”.

That is the scope of the investigations that lie before us.

As your Lordships know, since Lord Nottingham's judgment in the Duke of Norfolk case in 1681, there has been a rule against perpetuities, requiring future dispositions of property to vest within a prescribed time limit and making void those dispositions that fall outside it. Despite its name, the rule is concerned with the commencement of interests rather than their duration.

Historically—as, again, I am sure your Lordships are well aware—the rule falls into two phases. For dispositions taking place before 16 July 1964, the date when the Perpetuities and Accumulations Act took effect, the common law rule prevailed. That is to say that a future interest in property will be void from the date that the instrument that seeks to create it takes effect if there is the merest chance that the interest may invest outside the perpetuity period. This period comprises one or more lives in being plus 21 years. After 15 July 1964, the interest will be void only if it is inevitable that it vests outside the perpetuity period. It is therefore necessary to wait and see to determine whether or not the interest will vest within the prescribed common law period. The 1964 Act furnishes an alternative perpetuity period of up to 80 years and 21 years for options.

Your Lordships have heard the trenchant criticisms made by the noble Baroness, Lady Deech, about the deficiencies in the “wait and see” approach. She is quite right in saying that that concept is preserved in the new law. I must confess that I find her observations most illuminating in that regard. I shall find myself in Committee being more inquiring about that matter than I might otherwise have been.

As far as accumulations are concerned, at common law—again, as we have learnt this afternoon—they were permitted for the duration of the perpetuity period. The modern rule—again, as we have learnt this afternoon—has its origin in the Accumulation Act 1800, which followed the notorious case of Thellusson v Woodford, whose judgment was handed down in 1799. In its existing state, the law prescribes no fewer than six periods during which the accumulation of income is permitted. Four are set out in Section 164 of the Law of Property Act 1925, and two more in Section 13 of the 1964 Act.

The legislation before your Lordships today seeks to achieve three objectives. The first is to restrict the application of the rule against perpetuities to successive estates and interests in property. It will no longer apply to rights over property such as options, rights of pre-emption and future easements, and would exclude virtually all pension schemes. Secondly, in future, to those remaining interests to which it still applied, there will be a single perpetuity period of 125 years, and the principle of “wait and see” will apply. Thirdly, the rule against excessive accumulation will be abolished except in relation to charitable trusts. These proposals, moreover, when implemented would have prospective and not retrospective effect, as the noble Baroness, Lady Deech, has again pointed out. In other words, we will at the point of implementation and thereafter have three perpetuity and accumulation regimes. The relevant regime in any particular case will, of course, depend on the date of the instrument seeking to create the future interest.

These legislative proposals, essentially, seek to rectify two major flaws in the operation of the existing rules. First, the existing rules were designed to prevent settlors or testators from tying up property so that it was kept in the family permanently. However, its application has developed, as we have seen, so as to cover a variety of future interests that arise in a commercial context, such as future easements or options to acquire valuable consideration and interest in land. Secondly, there is considerable uncertainty as to its application both to certain types of pension schemes and to nominations and advancements made under pension schemes.

Clarification with respect to pension schemes appears to have been of particular concern to the Law Commission. Pension schemes are established under trusts. Under them, benefits are made contingent upon beneficiaries attaining a certain pensionable age. Moreover, some benefits may be contingent on the exercise of discretion by trustees. In Lucas v Telegraph Construction and Maintenance Co. Ltd, it was decided that the rule against perpetuities does apply to pension scheme trusts. In that case, Mr Justice Russell held that the period begins to run when the scheme is established. A competing approach is to say that every time an employee forms a scheme, a new settlement is created and he or she is treated as the settlor, so that the perpetuity rule applies to each individual settlement. Under that happier construction, the vesting of any benefits under the pension in favour of the employee’s dependants is almost certain to happen within the perpetuity period. Attractive as the latter analysis is, however, we cannot be sure that it is the law.

Since 1927 there have been statutory exemptions from the rule for certain types of pension scheme. The present position is to be found in Section 163 of the Pension Schemes Act 1993, which states:

“The rules of law relating to perpetuities shall not apply to the trusts of, or any disposition made under or for the purposes of a personal or occupational pension scheme at any time when this section applies to it”.

This section applies whether the trusts are made before or after Section 163 comes into effect. However, the section does not revive, with retrospective effect, any trusts that the perpetuity rules require to be treated as void before Section 163 becomes applicable.

The application of Section 163 is wide, comprising public service pension schemes, contracted-out occupational pension schemes and personal pension schemes. Nevertheless, the section is not all-encompassing—it excludes, for example, unapproved retirement benefit schemes.

It seems obvious that the need to place limits on the extent to which one generation can control the devolution of property for the future has no relevance to pension funds. Moreover, the reasons for exempting pension schemes from the rule apply to approved and unapproved schemes alike. Why should unapproved schemes to which the perpetuities rule currently applies have to be wound up on a date that is entirely arbitrary?

The approach to reform adopted by the Law Commission in its 1998 report is inclusionary. The commissioners defined those interests to which the rule should apply rather than those to which it should not. Your Lordships will be relieved to hear that I do not intend to comment on the Bill clause by clause this afternoon; otherwise what is the point of hearing evidence on it? This exercise is best left to a later stage in the procedure, following the evidential hearings. However, I have already noted the observations that the Charity Law Association made when responding to the Law Commission consultations in September 2008. Generally speaking, we warmly welcome this Bill, which seeks to simplify what the Charity Law Association describes as this,

“complex and somewhat illogical area of law”.

The provisions, with one or two mildly controversial exceptions, appear to have achieved the objective of narrowing the scope for the perpetuities rule by excluding from its grasp pension arrangements and commercial transactions. Moreover, the introduction of an exclusive period for those matters that remain subject to the rule is a welcome simplification; and the extension of time from 80 to 125 years appears unlikely to inhibit the objectives of future settlors, except in the most unusual circumstances.

As far as the law relating to accumulations is concerned, the six options open to settlors until now are to be abolished and replaced by a single period of 21 years, which applies only to charities. If I may respectfully say so to the Government—as yet I have not heard the evidence—this is the one component part of the Bill on which I have hesitations; so I might as well express them now. I wonder whether it would have been wiser to permit, as an alternative to 21 years, the life of the settlor. Given the important role that charitable grants play in our society, I should have thought that we ought to give as much encouragement to settlors as possible.

I thank all noble Lords who have spoken in the debate. I do not expect that this Second Reading Committee will make the headlines tonight or tomorrow—actually, I hope it does not—but perhaps it will help to make the law simpler and help to keep our trust industry competitive with overseas jurisdictions. I hope that House will be pleased to hear that I do not intend to make a long speech in response. The Special Public Bill Committee is the place for many of the matters raised today to be debated, under the chairmanship of the noble and learned Lord, Lord Lloyd of Berwick. I am delighted not only that he was in his place, but that he contributed to the debate today. The whole House will be grateful to him for taking on what may turn out to be a slightly more onerous role than it might have appeared about an hour and a half ago.

I will respond by letter to a number of the issues that have been raised today. I think that is probably a more appropriate way to do it in this case. Listening to the fantastic expertise shown in this debate, I now rather wish I had read law at the university where the noble Baroness, Lady Deech, taught. If I had been to one of her lectures—I am probably too old to have done so—I would feel much more confident about being able to deal with the points that she made.

I would like to say a couple of things about the noble Baroness’s contribution. I very much hope that she will play a part in the Committee stage. It would be a terrific disappointment if she was not able to in one way or another. We must see how that can best be done. Her speech was of great interest and some of her comments obviously hit home as far as some noble Lords were concerned. I hope she will forgive me if I say that I take her to be in broad support of the Bill, but I would hate to be the Minister on a Bill that she was opposed to. I am very grateful for her comments.

My noble and learned friend Lord Archer made a fascinating contribution with historical references and great enthusiasm for the way we are conducting this Bill and, I think, for its contents broadly. I am grateful to him. The noble Lord, Lord Hodgson, showed his expertise in the field of charities and companies in particular. I am grateful to him and he will get answers to some of the more detailed questions that he raised. Of course I am grateful to the noble Lords, Lord Goodhart and Lord Kingsland, for what they had to say.

We hope to meet again not before long in the Special Public Bill Committee to get on with the detail. We have had a good afternoon’s work today. If the House will forgive me, that is where I will end my response to today’s debate.

That the Committee do report to the House that it has considered the European Communities (Definition of Treaties) (United Nations Convention on the Rights of Persons with Disabilities) Order 2009.

In speaking to this, I will cover the basis on which the Government propose to ratify this important convention, including the reservations and the interpretative declaration. These are issues that have been covered in the recent report of the Joint Committee on Human Rights, which is the subject of the Motion to be moved by the noble Lord, Lord Lester of Herne Hill. I shall turn to these points shortly.

The order specifies the United Nations Convention on the Rights of Persons with Disabilities as a Community treaty for the purposes of the European Communities Act 1972. The provisions of Section 2 of the Act, which provide for the general implementation of Community treaties, will apply in relation to the UN Convention and will be available for implementation of its provisions should the need arise.

In my view the provisions of this order are compatible with the rights in the European Convention on Human Rights.

The need for specification arises due to the involvement of the European Community which, as noble Lords will be aware, is a signatory to the UN Convention and proposes to become a party to it, in accordance with UN Convention Article 44. Once the European Community becomes a party to the UN Convention, its provisions, so far as they are within Community competence, will form an integral part of the Community’s legal system.

Matters covered by the UN Convention lie partly within the competence of the European Community by virtue of, for example, Community law on discrimination, and partly within the competence of member states. It is accepted practice, agreed with the European Commission, that mixed agreements such as the UN Convention, which may give rise to directly effective rights, are specified as Community treaties.

The order therefore ensures that the UK is in a position to give effect to Community obligations falling on it as a result of the UN Convention’s incorporation into the Community legal order. Specification enables the provisions of Section 2 of the European Communities Act 1972 to be used to implement any Community obligations which may arise as a result of the convention’s incorporation into the Community legal system and enables expenditure to be incurred out of the Consolidated Fund for that purpose.

While no implementation measures under the powers conferred by specification are at present required, the order must be in place before the UN Convention can be ratified. The order is, therefore, a technical but crucial step in achieving our shared aim of UK ratification of the UN Convention, and I beg to move that it should be approved.

I will move on to discuss the UN Convention, more generally. We are reaching the end of the process leading up to ratification, and will soon be looking to the more exciting journey of implementation. At this point, I would like to pay particular tribute to all those who have campaigned on behalf of disabled people and have helped us to reach this point. These include, of course, my noble friend Lord Morris of Manchester, whose work in the field of disability rights in both the domestic and international arenas is universally recognised. My noble friend specifically asked me to say that he may be unable to join us today because he is, characteristically, moving an amendment on the Health Bill, but he would join us if he could. Of course, there are others as well, such as the noble Baroness, Lady Campbell, and the noble Lord, Lord Ashley. The work of my noble friend Lord Morris on Rehabilitation International’s Charter for the Third Millennium was in many ways the origin of the call for a UN convention on disability rights, a call which culminated in the adoption by the UN General Assembly of the UN Convention on the Rights of Persons with Disabilities.

I also want to pay tribute to the work of Lady Darcy de Knayth, who is sadly no longer with us. For it was the noble Baroness who, on 14 July 2000, opened the first debate here on the case for a UN convention on the rights of disabled people.

As I have said, we are close to being able to ratify this convention and, subject to consideration of our debate today and the Government’s consideration of the JCHR’s recommendations, I hope that it will be possible to make an announcement next month—May—about the basis on which we will do so.

Let me now talk about the proposals that we have put forward. The basis on which we propose to ratify was set out in the Explanatory Memorandum that was laid before Parliament on 3 March. As I have said, our proposals have now been the subject of a report by the JCHR. The Government are currently considering the detail of that report’s recommendations and will respond in full in due course. I cannot prejudge the outcome of that consideration today, but I will rehearse briefly the rationale for the position we adopted.

I know that all noble Lords will share the Government’s view of the importance of this convention. It is a powerful statement of the human rights of disabled people in the UK and internationally. While it does not confer new rights, it is an explicit statement that the estimated 650 million disabled people across the world have, and should enjoy, the same human rights as others.

The convention is very wide-ranging in its application and covers all areas of life. In government we have always been very clear about the benefits of the convention. That is why we supported the negotiations leading up to its adoption, why we signed it as soon as it was possible to do so on 30 March 2007, and why we believe that it is important that the UK ratifies it at the earliest opportunity. We have been working hard to achieve this ambition.

There should be no doubt about the UK’s continued commitment to human rights for disabled people at home and abroad. The convention sets international standards for human rights, and it will be incumbent on the UN member states that ratify it to act consistently with its obligations when it comes into force.

The UK already has extensive legislation that outlaws discrimination against disabled people; yet it is undeniable that they still face complex and diverse threats to their rights. Disabled people can too often be easily dismissed or undervalued. The Government’s pledge is that by 2025 disabled people should have the same opportunities and choices as non-disabled people, and should be respected and included as equal members of society. Our firm commitment to the convention is part and parcel of our commitment to the achievement of this equality. I might add that our signature of the optional protocol to this convention, which we also intend to ratify, is further demonstration of our commitment.

As the Government set out in the Explanatory Memorandum, we are proposing to ratify the convention on the basis of a handful of reservations and one interpretative declaration. I recognise that these have been the subject of considerable discussion, and that there is a body of opinion that argues that some or all are not needed.

With regard to education, the Government are proposing to enter an interpretative declaration to make clear that the UK general education system includes both mainstream and special schools, thereby clarifying how the UK Government interpret the convention.

We are also proposing to enter a reservation to allow for circumstances where disabled children’s needs may be best met through specialist provision, which may be some way from their home, and which means that they will need to be educated outside their local community. This also maintains parental choice for schools outside the local community. The purpose of the proposed reservation and declaration is to maintain the present policy and legislative position in respect of inclusive education.

On freedom of movement, a general reservation is proposed in order to retain the right to apply Immigration Rules and to retain the right to introduce wider health screening for applicants entering or seeking to remain in the UK, particularly in the event of a global health emergency, if this is considered necessary to protect public health. However, the Government are committed to reviewing that reservation 12 months after the UK has ratified the convention, in order to assess whether there is a continued need for it in practice. Disabled people and their organisations will be consulted at an early stage to ascertain how they can be involved in formulating the review.

The Explanatory Memorandum explained that the UK’s reservation in respect of service in the Armed Forces and a complementary one proposed by the European Commission in respect of its proposals for European Community conclusion—that is, ratification—would be the subject of discussion. Following, and reflecting, discussion with the European Commission, the Government propose to enter a reservation in respect of the Armed Forces in the following terms:

“The United Kingdom accepts the provisions of the Convention, subject to the understanding that none of its obligations relating to equal treatment in employment and occupation, shall apply to the admission into or service in any of the naval, military or air forces of the Crown”.

That is a slight change of wording, but the substance and rationale for the reservation have not changed. We believe that these provisions are required to preserve the combat effectiveness of the Armed Forces. The Armed Forces are called on to perform a wide range of different tasks, and great damage would be done if the base requirement for physical fitness was abandoned.

Lastly, a reservation is proposed in respect of arrangements for social security benefit appointees. In looking at the relevant article in the convention, my department has been carefully considering the arrangements whereby a person may be appointed to claim and collect benefits on behalf of another person who for the time being is unable to act due to physical or mental incapacity. At present, those arrangements are not subject to the safeguard of regular review. We believe that the convention requires that they should be, so my department is now actively working towards a proportionate system of review. We propose to withdraw the reservation as soon as the arrangements are in place. It is important that we address this issue, and we are engaging with relevant stakeholders, including disabled people and their organisations, as our work on the review of the arrangements progresses.

As I said earlier, I recognise that there is a body of opinion that believes that the UK should not have any reservations or interpretative declarations, or should reduce their number. It has been suggested that by entering them we will undermine the UK’s reputation as a leader in the field of disability rights. We will continue to consider the views expressed by the Joint Committee on Human Rights and others before we make a final decision on how to proceed. The Government’s view, however, is that it is better to ratify the convention now with a small number of reservations rather than delay in the hope that they will not be needed—a view shared, I believe, with the JCHR.

To those who suggest that we are undermining our reputation, I argue that our approach must be seen in the wider context of our achievements in respect of disabled people. For example, the Independent Living Strategy details over 50 government commitments that seek to deliver real choice and control for disabled people, along with greater access to housing, health, education and training, employment, transport and participation in community and family life. The Welfare Reform Bill, which, I hope, will get its Second Reading tomorrow, includes provision to give disabled people a right to control certain services that they use and will pilot how that right will work.

Ratification of the convention is key if we are to send the very strong and clear message to both disabled and non-disabled people that disabled people have, and should be able to enjoy, the same human rights as others. Specification of the UN Convention on the Rights of Persons with Disabilities as a Community treaty for the purposes of the European Communities Act 1972 is a prerequisite to achieving that ambition, and I therefore commend the order to the House. I beg to move.

I will move that the Grand Committee has considered the report of the Joint Committee on Human Rights, United Nations Convention on the Rights of Persons with Disabilities: Reservations and Interpretative Declarations. This is the 12th report, HL Paper 70.

The JCHR has previously published a full report on the convention—HL Paper 9 of 4 January 2009—and on the Government’s response to that report—HL Paper 46 of 6 March 2009. We warmly welcome the Government’s decision to ratify the convention and to sign the optional protocol. As the Equality and Human Rights Commission has said, the convention represents a major milestone on disabled people’s journey from being treated largely as objects of welfare and charity to being respected as full citizens, with the rights and responsibilities that this status confers.

However, we do not welcome the Government’s refusal to consult publicly about the reservations that they intend to make, or the unnecessary breadth of those reservations. I am grateful to the Minister for his helpful introductory speech and for the indication that the Government’s mind is still ajar and not firmly closed to some of the issues that I shall be raising. I have given notice in advance of some of the questions that I will ask, in so far as they are not clear already.

I am delighted that the noble Lord, Lord Hannay, and my noble friend Lord Maclennan are taking part in this debate, because of their particular experience and concern about the role of Parliament in scrutinising treaties. This is a subject that I have frequently raised in Private Member’s Bills and evidence to the Wakeham committee on Lords reform. I persuaded the previous Conservative Government to enhance parliamentary scrutiny by publishing Explanatory Memorandums when laying conventions to Parliament prior to their ratification, as was done in this case on 3 March, but, despite the Wakeham committee’s recommendations, we still have no treaty scrutiny committee and the arrangements for parliamentary scrutiny of treaty-making remain haphazard and unsatisfactory. The Government have lost enthusiasm for even their timid Constitutional Renewal Bill, grandly described two years ago as,

“intended to rebalance power between Parliament and Government, and give Parliament more ability to hold Government to account”.

It looks more and more likely that that will not be part of this Government’s legacy.

I should begin by declaring an interest as chair of the board of the United Nations Association of the United Kingdom, because my association lobbied Ministers on behalf of the early ratification of this convention with the minimum of reservations and interpretative declarations. I thank the Minister and the Government for bringing forward these measures, which clear the way to ratification in what I think can be politely described as a reasonably prompt timeframe, and for having reduced the list of reservations below what some of us feared initially was going to be the case.

I also welcome the UK’s agreement that the EU as such can sign and ratify this treaty. That is right for the reasons given by the Minister. I would just like him to state in his reply whether our national ratification will be able to go ahead promptly when the procedures are complete, even if the EU takes longer to get its act together, or whether we are chained together. It would help to have that point clarified.

That is about where the good news ends. Like the noble Lord, Lord Lester, I distinctly dislike some of the reservations and would argue that they are unnecessary. In some cases, they are a little like Don Quixote; there is a tendency to tilt at windmills. I shall take them in a slightly different order from the noble Lord, but follow the path he has laid.

With regard to equal recognition before the law, I accept that the proposed review the Government are going to undertake by a competent, independent and impartial authority into the issue of persons appointed to claim and collect benefits is necessary, that it may not be complete before ratification, and that it therefore justifies a reservation. I hope that it will be carried out with urgency. Perhaps the Minister can say something about the timeframe, as the noble Lord, Lord Lester, asked. Will the outcome be reported to Parliament? I would hope so. Will the Government lift the reservation if the review concludes that such a reservation is not necessary? The Minister pretty well said that in his opening, and if he said it categorically, I apologise for asking him to repeat it.

Then there is the military reservation. I, too, do not believe that this reservation is either necessary or desirable. The case of the exemption from the Disability Discrimination Act 1995 for police and fire services, which was lifted in 2005 as it was deemed unnecessary, points to strong arguments for saying that it is not needed and that this would not impose an unnecessary burden on the Armed Forces. This situation sounds similar to me in that both the police and the fire services undertake tasks as onerous—in fact, in this day and age, every bit as onerous—as those of the Armed Forces. A blanket ban is not justified. Is there an intention in any other EU country to make such a reservation for the Armed Forces? If not, that is surely another powerful argument for saying that it is not necessary.

On the question of mainstream and special schools, this reservation and the interpretative declaration seem at least to risk to contradict the commitment of the Department for Children, Schools and Families to develop an inclusive system. As the noble Lord, Lord Lester, has said, countries that have taken a similar approach to our own, like Australia, New Zealand and Germany, are not making similar declarations or reservations. Why are they not doing so if there is an incompatibility? As the noble Lord said, fewer than 16 per cent of disabled children in Germany get inclusive schooling, and yet that country appears not to require any kind of reservation.

Fourthly, there is the question of the liberty of movement and nationality, which seems to be an entirely unnecessary and undesirable reservation. Why can we not make do with an interpretative declaration of the kind that has been made by Australia? It is well drafted, clear and precise, and I do not understand why that does not suffice. As the noble Lord, Lord Lester, said, a similar reservation we made on the Convention on the Rights of the Child has now been withdrawn, so why put one back in here?

I end by expressing the hope that the Government will reconsider. I welcome the open-mindedness displayed by the Minister when he introduced this debate, pointing out that the Government have not yet reached the final point of decision and will reduce these reservations before we proceed to ratification. The reason for doing so, I would argue, is not so much because of our reputation but because we would set an extremely unfortunate example to a lot of other countries that are probably less liberal and less meticulous—some might say less pernickety—than we are. Festooning our ratification with these reservations merely opens the door for others to make use of them and say that they are merely doing what the United Kingdom has done. They would say that everyone understands that the United Kingdom is a well developed country that has thought these things through, and so why should they not as well?

The problem, therefore, is that if we open this door, we are acting not only against the interests of disabled people in this country but against their interests worldwide because we are enabling such reservations to be entered into by countries that are probably a good deal less advanced than we are in looking after the interests, and furthering the equality, of disabled people. I hope that the Minister and the departments for which he is speaking will see their way to a sharp reduction in the number of reservations.

I hope that I will be forgiven for not following too closely what has already been said in this important debate because in my opinion it has been expressed with great clarity. The Minister already has the questions, many of which arise from the sequence of reports from the Joint Committee on Human Rights. However, I hope that the Minister will animadvert, if he can, on the reflection that this debate may cast on the Government’s attitude to the scrutiny of important multilateral conventions by Parliament.

I recognise that the particularity of this debate rests to some extent on the fact that it is a necessary consequence of the provisions being considered for ratification as part of the European Union processes, and consequently there is a requirement to have an order affirmatively accepted. However, there remains the question whether we could and would have contemplated ratifying the convention as a national measure binding on the United Kingdom without that feature and that, if we had, it would have led to such a debate. I am grateful to my noble friend Lord Lester and to the Government for availing the Committee of this opportunity, but it seems to me that a matter of this kind ought not to be discretionary, but a common matter and not one subject to a mere convention. It should be the outcome of this House and the other place, having established the propriety of a full and proper scrutiny prior to the Government finally ratifying such an important treaty.

I think heard the Minister say early in his remarks that the treaty does not confer new rights. If that is correct, it modifies to some extent the position taken by the JCHR, which has indicated that where there is an evident conflict between the convention and our domestic law, we should seek to align our domestic law with the convention. Our debate about the position of the armed services indicates that there is some willingness to acknowledge that we need to go further than our domestic law presently provides to ensure that there is not an exclusion.

I am grateful to my noble friend. The problem of whether it creates new rights is exemplified by the fact that we asked the Government in our first report to tell us—to tell the public—how domestic law and practice are compatible with the requirements of the convention. I have already explained the Government’s reply to that, but it is impossible to tell whether it confers new rights unless one holds to the Government’s view of how it is compatible with domestic law. As they will not tell us, I for my part very much doubt whether it is correct to say that it does not conform to the rights, but that is why we cannot give a coherent answer.

I am grateful to my noble friend. I was attaching myself not so much to the formal reply or explanations in the memorandum as to what the Minister himself said, as I understood it, in his opening comment about this not conferring rights. I understand that that underlay part of the Government’s argument that for the avoidance of any doubt about whether they were amending the law, they would be required to include these reservations. However, there is some certainty about this. It is important that Parliament should not be uncertain before the treaty is ratified.

Notwithstanding the desirability of ratification being expeditiously concluded, if there are new rights, they ought to be clearly set out in an explanatory memorandum or in authoritative statements. If they are not, what is the intention? If domestic law does not reflect the requirements of the convention, the Government should indicate their intention to move towards accepting the agreed international standards.

There has been a definitional point in respect of the education of special needs children. The position is very different in Germany from that in Britain. Fewer children are in comprehensive education in special schools in Germany than in this country. I recall in earlier evidence to the Joint Committee that the Government indicated that they were not interested in the views of other countries in ratifying, that comparisons were not really a matter that exercised them and that some countries entered into such commitments because they were aspirational. Such ambiguity is not appropriate for this country. I accept that we have stated an acceptance of the need to conform our domestic law with the international law to which we subscribe.

The particular points have been made so well made by the noble Lords, Lord Hannay and Lord Lester. What I am most concerned about is that the process should allow that clarity to be fully displayed before Parliament, so that Members of Parliament can give their full-hearted consent to what is being done.

Notwithstanding the fact that the convention has, from the evidence deployed earlier by the Government, reached this stage under the allotted time by quite a margin from that of certain other UN conventions, I fear that because these issues have not been built into the process for ratification, they will be opened up for discussion not just with special interest groups but more widely with their representatives in Parliament.

I hope that we see this debate as one that reflects a transitional state in which the Government are moving towards the recognition that the Ponsonby Rule will not suffice and that in a modern legislature we have a duty to take on the burden of implementing these international obligations. I had hoped that by this time we would have seen the Government’s proposals for the Constitutional Renewal Bill published in a form that takes account of what was said about it by the Joint Committee on which I have the honour to serve. It seems to be slipping back in the parliamentary Session and one must express some concern about that. This is an important matter and it is not new. The Wakeham commission recommended that there should be a joint committee to scrutinise such legislation and pronounce on its importance, and indeed that has been progressively part of the Government’s own thinking. However, I fear that there has been some recoiling on this and that it is almost in a sense an accident that we are holding this debate. I say that because it is not conceived as appropriately necessary for Parliament to underpin and, indeed, along with the Government, take credit for the enhancement of the protection of human rights—in this case the rights of those with disabilities.

Although I understand the narrow focus of the debate, I hope that the Minister will feel able to give some indication of the Government’s intentions with respect to scrutiny by Parliament, confirm that we are moving in that direction, and further confirm that it is not their intention to confine the debate. The apology given in written evidence so far for not revealing the information requested by the Joint Committee explained that there was a need for speed. Of course that could have been foreseen and responded to earlier, and I hope that we can have a reassurance from the Minister on these points.

I, too, welcome the debate about the Government’s decision to ratify the UN Convention on the Rights of Persons with Disabilities. Slowly but surely the milestones are being reached on the long road towards equal treatment for those with disabilities. Like my noble friends, I deplore the Government’s refusal to consult publicly on the reservations they intend to make, which makes it sound as though they have something to hide or are ashamed of them. Before coming to the reservations, I also record my concern that there is still no formal procedure by which Parliament can scrutinise treaties or even conventions before they are ratified. I am grateful to the JCHR for publishing a report on which a debate can be held. In my ignorance, I thought that a treaty scrutiny committee had been agreed, and cannot for the life of me think why it has not.

Turning now to the only reservation I shall speak about, the one on special schools and parental choice in education, one immediately steps into a minefield. What we all want is for all mainstream schools to be able not just to cope with children with all kinds of disabilities, but to do the very best for all these children. I gather that if this reservation goes ahead, the Government are in danger of giving the wrong signal to the mainstream world that they do not have to bother with quite the same urgency with adaptations, extra help and so on, because the special schools are always there to take the children with the most challenging problems. I can see that point. However, I can also see that there are severely disabled children who flourish in some absolutely brilliant special schools, such as Prior’s Court near Newbury, which caters for children at the far end of the autistic spectrum.

So what is the answer? I think that it must be that if the Government are going to lodge this reservation, they will have to demonstrate that they will work doubly hard to ensure that the vast majority of disabled children are enabled to access mainstream education. I heard only this morning that there are still schools where there are no lavatories accessible to children with muscular dystrophy, for example. That is unforgiveable in 2009. I echo the question that my noble friend Lord Lester of Herne Hill asked about whether the purpose of the reservation is simply to clarify that nothing in the convention requires the UK to work towards the eventual elimination of special schools.

My last word on the subject is to ask the Government what new, positive action they are going to take to compensate, if that is the right word, for putting in this reservation on educating people with disabilities. If the noble Lord, Lord McKenzie, cannot answer that question now, as I do not expect him to, perhaps he could write to me. As far as the other reservations are concerned, I concur with the views of my noble friend and look forward to hearing the speech of my noble friend or, if I can call her that, my noble colleague Lady Campbell.

First I must apologise to the Minister and to the noble Lord, Lord Lester, for not being here to hear their opening speeches. What can one do? I am a passionate speaker on behalf of haemophiliacs, so I had to support an amendment in the House, but I am equally passionate about this issue. One cannot be in both places at once, so thank you so much for allowing me to come in now.

The significance of the UN Convention on the Rights of Persons with Disabilities is immense. It represents an international acceptance that disabled people are disadvantaged in society due to social, economic and environmental barriers, and not because of their physical or mental conditions. In the disability world, we call that the social model. Disabled people have campaigned for this definition of their status for more than half a century. This convention reaffirms disabled people’s inalienable human rights to freedom, respect, equality, dignity and autonomy and it charts positive steps that Governments must take to make these rights a reality.

Most significant of all, this convention, the first international human rights treaty of the 21st century, is a genuine product of partnership, of co-production, between disabled people and Governments. The principle of partnership captured in the phrase, “Nothing about us without us” must continue as this treaty is implemented. That is why I must share with noble Lords my grave disappointment that the Government on this occasion have failed to involve disabled people and their organisations in the last stage before ratification. Oh dear, what a shame. We had such a good record on partnership work. It was only on 3 March, with the publication of the Explanatory Memorandum, that the Government set out in detail their proposed reservations and declarations in the areas of education, immigration, employment and legal capacity. This was the very first opportunity for disabled people and others, including the Equality and Human Rights Commission and the Joint Committee on Human Rights, to examine these reservations and declarations.

My Lords, with your leave and with the permission of the House authorities, the noble Baroness, Lady Campbell, has asked that I speak from her notes while she regains her breath. I hope that meets with your agreement. She says that the progressive realisation of an inclusive education system is the only vehicle through which to genuinely expand parental choice and protect and promote human rights in the process. In the response to her letter, the department provided her with its rationale for this declaration. The department quoted Ofsted’s report, Inclusion: does it matter where children are taught?, as finding that,

“The most important factor in determining the best outcomes for pupils with learning difficulties and disabilities (LDD) is not the type but the quality of the provision”.

However, the department neglected to mention that the same Ofsted report goes on to say:

“There was little difference in the quality of provision and outcomes for pupils across primary and secondary mainstream schools and special schools. However, mainstream schools with additionally resourced provision were particularly successful in achieving high outcomes for pupils academically, socially and personally. PRUs were the least successful”.

It goes on to say,

“Pupils with even the most severe and complex needs were able to make outstanding progress in all types of settings. High quality, specialist teachers and a commitment by leaders to create opportunities to include all pupils were the keys to success”.

The noble Baroness, Lady Campbell, says that she cannot help but fear that such commitment will be needlessly undermined by this declaration, which represents a firm commitment by the Government to a permanent and fixed role for special schools. As such, she considers the declaration incompatible with the objectives of the convention. She notes the commitment of the Home Office to review in 12 months the necessity for the reservation concerning immigration and she would like the Government to withdraw their reservation regarding education. If they are unwilling to do this, at least let them agree to also review this reservation in 12 months. In fact, she would like to ask the Minister whether he will consider securing a review of all the reservations and the specific declaration in relation to education not later than 12 months after the date of ratification, including the full consultation with disabled people and wider society that has been sadly lacking to date.

I have to say that when I walked into the Moses Room this afternoon, I did not entirely expect the sort of debate that we have just had, but the Grand Committee should be grateful for the very full explanation that the Minister gave to an order that, on the face of it, can be described as nothing less than opaque. Thank goodness, then, for the Explanatory Memorandum, which, although brief, shorter than either the speech made by the Minister for Disabled People when he introduced the order in another place or that of the noble Lord himself, is some guidance to what we are discussing this afternoon, namely the United Nations convention.

Interested as I am in parliamentary procedure, I will not be going into the parliamentary actions of treaty-making, or rather, as has been pointed out, the lack of them. They are for another day. I would point out, though, and I think I am right in so doing, that Governments usually sign treaties—one thinks, for example, of war treaties—in some degree of haste and the ratification depends on the number of signatories. I hope that the noble Lord, Lord Hannay, with his vast experience, will be able to confirm that.

To go back to the convention, its purpose is to promote, protect and ensure the full and equal treatment of all human rights and fundamental freedoms of all disabled people so that they can participate fully in society. Who better to remind us of that need than the noble Baroness, Lady Campbell?

As the noble Lord, Lord Maclennan, noted from the Minister’s speech, it is a reaffirmation of these human rights for disabled people. There are, as I understand it, no new rights involved, but one of the questions we ought to ask is where this reaffirmation springs from. Is it a previous UN treaty or is it something else?

As the Explanatory Memorandum sets out, this treaty confirms the obligation of the United Nations states to protect, promote and ensure the human rights that all people already have on an equal basis to those of able-bodied people. These are, of course, very wide and encompass several political, economic, social and cultural rights.

I have lost count of the number of times over the past 20 years that I have had said to me that disabled people are people first and disabled second. My second question to the Minister is what rights able-bodied people have that disabled people do not. I accept that all too often disabled people are treated as second-class citizens across the world, but I would like to hear the Minister’s answer, particularly as I do not believe that this is the case across the European Union. In this country, as has been pointed out, we have the Disability Discrimination Act, which we strengthened only recently, with all-party support. I understand that it has its equivalent in other EU countries.

Since the EU believes that it is necessary, we have to agree today’s order willy-nilly. Despite the speech of the noble Lord, Lord Lester, and the views of the Joint Committee on Human Rights, we on this side of the Grand Committee agree with the Government that a few exceptions are needed. The tenor of the remarks of all noble Lords who have spoken is this: are these reservations new, and are they needed now? I think that is a reasonable paraphrase of the debate that we have had so far.

My honourable friend the shadow Minister for Disabled People, Mr Harper, listed the exemptions in another place. There is an exemption for service in the Armed Forces, who, when able-bodied, do such a magnificent job in helping other nations secure peace around the world and on their own in Northern Ireland, although, mercifully, they are not needed there in such numbers as previously. I heard the noble Lord, Lord Lester, speak of compatibility. Our own DDA excludes them too. However, if they become disabled in the course of their service, there is no requirement to keep them on in another capacity within, say, the Army, or indeed in any other of the Armed Forces. In many cases this would be a waste of their training, and I hope that the MoD, which does so well for disabled veterans, will take that on board. The Minister will correct me, as he loves to do when I am wrong, but I do not believe that this reservation is to do with recruitment. Does he agree that it applies to the retention of troops who become disabled in the course of their armed service? Should our reservation not make that clear?

Another exemption retains the right to maintain Immigration Rules, which in essence give us the right to screen immigrants. I believe that this is entirely for health reasons. We agree with that too, although we note that the Government intend to review this in a year’s time to see whether it remains a useful tool in our public health armoury. Perhaps the Minister will expand on that. How confident can we be in this timing, though? The Minister for Disabled People committed the Government to laying this order by the end of last year and we have it three months later—not exactly, to quote from the Minister’s speech, at the “earliest opportunity”.

There is a third reservation, which concerns the DWP itself. The convention requires a regular review of what it calls “substituted decision-making” by a competent, independent and impartial authority or judicial body. The DWP has no review system for people who are appointed to claim and collect benefits on behalf of disabled people. I understand that the department is working towards just such a review. I would therefore be grateful for a progress report, both now and as things evolve.

The noble Baroness, Lady Thomas of Winchester, majored on the interpretative declaration that makes clear that our general education system includes both mainstream and special schools. I am glad that this is so because I believe, perhaps unfashionably, that in most cases disabled children are better off in mainstream schools. The conventional education wisdom on this point has varied, I note, during my time in this House. Nevertheless, there are those for whom special schools are appropriate—indeed, are vital. Although education is not my subject and never has been, I think the Government are in a bit of a muddle here. On the one hand, they have a stated belief in special schools; on the other, local authorities are allowed to close them. I would be grateful for a response on that point.

Will these reservations and the interpretative declaration be attached to the ratification that the EU sends to the UN? How exactly does all this work? As I said earlier, this order does not permit the UK to ratify the convention. Indeed, as the noble Lord, Lord Lester, also said, no parliamentary debate is needed at all.

I am sorry to interrupt, but I think that the noble Lord is under the misapprehension that the reservation for the Armed Forces has only a limited application. I think that he said it applies only to retention within the service of those who have been injured in combat, or words to that effect. The text of the reservation is set out in paragraph 48 of the JCHR report. As does the Equality Bill in its present draft, it exempts the whole of the employment and occupation provisions—

“equal treatment in employment and occupation, in so far as it relates to discrimination on the grounds of disability, shall not apply to the armed forces”,

at all. It is a completely blanket reservation and not of the narrow kind.

No, that is exactly so. What I was trying to get out of the Minister was whether the narrow interpretation, which I made during my remarks on that part, is appropriate. To me, it is appropriate.

I thank the noble Lord.

I am now hopelessly lost. Notwithstanding these comments, we are pleased to support this order, even though it does not in itself ratify the convention. However, many more states or groups of states will be needed to achieve that. How many are we talking about? Are we talking 30, 40, 50 or 90? I have no idea. Did I understand the Minister correctly when he talked about ratification? As I now understand, and did not when I prepared my speech, we are talking about two ratifications; that is, the EU ratification and this country’s ratification. But still, if we ratify separately, do the reservations and the statutory declaration have to be attached to the EU ratification document?

In all this, I am concerned as to how the developing world, where 80 per cent of the world’s disabled people live, will be encouraged to sign up to it. What discussions have been undertaken within the Government to encourage developing countries to sign the convention? Is the Secretary of State for International Development bringing it to the attention of those countries as he and his Ministers go on their travels around the world? The Minister will be delighted to know that that is my final question.

I did not rise to speak before the noble Lord, Lord Skelmersdale, because I was expecting the noble Baroness, Lady Campbell, to come back into the debate. I apologise for perhaps missing my cue. As I sense that we are pressed for time and coming towards the end of the debate, I will cut short my remarks. I shall cut to the chase and make a few remarks about a couple of the proposed reservations. I welcome the JCHR report. The Convention on the Rights of Persons with Disabilities has iconic significance for disabled people as providing important validation and underpinning of their rights, which have provided such a potent focus for campaigning by disabled people in recent years for improvements in their situation.

The role of the UK and the process leading to the adoption of the convention have been widely welcomed, but the ratification process has become somewhat contentious as soon as it was learnt that there was some possibility that ratification might be attended by the entering of reservations. I can understand that concern. As the JCHR report says,

“scrutiny of the reservations and interpretative declaration proposed for this Convention”,

should proceed,

“from the standpoint that there should be as few such statements as possible, preferably none, and that where such statements are necessary, the Government should be committed to making the legislative and other changes necessary to enable them to be withdrawn as soon as practicable”.

However, I have never thought that the call for ratification without reservation, irrespective of any consideration of what these reservations might be, was very credible. With the JCHR, I would say that the Government’s view that the UK should not accede to any treaty unless domestic law and practice are capable of complying with its obligations is clearly right. I therefore welcome the balanced approach adopted by the JCHR and the Equality and Human Rights Commission in accepting the necessity for some of the reservations, but subject to review, with the aim of getting rid of them at the earliest possible date.

I shall cut to the brief remarks I want to make about two of the proposed reservations. The first is on education. There seems to be some confusion here. The Joint Committee states that it welcomes the restatement in the Explanatory Memorandum of the Government’s commitment to inclusive education, but that,

“we are concerned, however, that the scope of the reservation and the interpretative declaration may send a confused message to people with disabilities about the purpose and intention of the Government’s position … We also ask the Government to confirm that the purpose of its proposed reservation and interpretative declaration is simply to clarify that nothing in the convention requires the Government to work towards the eventual elimination of special schools in the UK. If this is the purpose of the Government’s reservation and interpretative declaration, we accept that a lack of clarity in the convention may necessitate a reservation and an interpretative declaration which is compatible with the object and purpose of the convention”.

If one wants the Government to reiterate that nothing in the convention requires the eventual elimination of special schools, one can hardly argue for no reservation on the ground that the convention is intended to lead to the progressive elimination of all special schools. However, the concern here is not with the maintenance of specialist provision, but with the Government being explicit about it in their reservation and interpretative declaration. The JCHR points out that Germany has ratified without reservation, although its system of special education is overwhelmingly based on specialist provision. This is surely disingenuous, and the UK is only being straightforward and above board in being explicit about its position—another case, perhaps, of the UK signing up to international obligations only on a basis that it is able to go along with, in contrast to the oft-observed tendency of others to sign up to obligations that they are largely content to ignore. The noble Lord, Lord Maclennan, was also at pains to make this point.

There is a continuing need for specialist provision. The disability community is divided about this. For example, the blind, the deaf and the deaf-blind had a major struggle in the negotiations leading to the convention to gain recognition at Article 24(3)(c) of the need to maintain specialist provision to meet their particular needs. Having achieved that, it seems only logical for the Government, in ratifying the convention, to make it clear that the UK’s education system includes specialist provision to meet highly specialised needs.

I turn finally to the reservation concerning service in the Armed Forces. The argument that bans all disabled people from serving in the forces on the basis that people in wheelchairs, or people who are totally blind for that matter, could not possibly go into action, which they could not, is based on a very narrow and outdated stereotype of what disability is, and is certainly not one which is recognised by the DDA. There, disability includes things such as severe disfigurement, diabetes, controlled epilepsy, a history of mental illness and many more conditions, none of which would disable a person from active service in the Armed Forces. All we are talking about here is a right not to be automatically excluded from serving in the forces, not an automatic right to serve. No one is saying that any disabled person can perform any role in the services. All that disabled people want is the right not to be subjected to a blanket ban which says that the one thing a disabled person cannot be allowed to do is fight for his country.

The matter came up—this is my final point—on the Disability Rights Task Force, which sat towards the end of the 1990s and brought forward the recommendations that led to the setting up of the Disability Rights Commission, on which I had the honour to serve with the noble Baroness, Lady Campbell. The task force was nothing if not reasonable on this question. We acknowledged the defence chiefs’ concerns about being sued by disabled people claiming to do things that were unreasonable. However, the Act gives disabled people rights only to do things that are reasonable. We suggested that a code of practice should be drawn up to regulate what was reasonable in return for removing the blanket ban. I am sorry to say that this suggestion was never followed up. However, I tentatively put it forward again as a basis on which the Government could feel safe in removing the blanket ban on bringing service in the Armed Forces within the scope of the DDA during the passage of the Equality Bill.

I start by thanking everyone who has contributed to this debate which has been extremely well informed, if somewhat challenging from a Minister’s point of view.

Specification of the UN Convention on the Rights of Persons with Disabilities as a Community treaty under the European Communities Act 1972 may be a somewhat technical issue but nevertheless is a crucial step towards ratification of the convention, and one which must be in place before we can ratify. The convention itself is a very significant landmark for disabled people and their organisations, and for the Government and society as a whole. The noble Baroness, Lady Campbell, expressed that most forcefully. I am delighted that she is able to join us given that she had double duty in another place.

Several points about the Government’s proposals for ratification have been raised in the debate. I shall attempt to deal with as many as I can. As I said in my opening remarks, we need a formal government response to the JCHR report. As I indicated, we hope to move that forward fairly swiftly. I cannot guarantee what it will say or whether it will change anything that I am referring to now. The parliamentary scrutiny of treaties was raised by the noble Lords, Lord Lester, Lord Hannay, Lord Maclennan and Lord Skelmersdale, and by the noble Baroness, Lady Thomas. The point was made that the fact that we have a specification process in this case gives us a rare opportunity to debate treaties. Noble Lords called, not unreasonably, for Parliament to be able to scrutinise proposals to ratify treaties, and for proposals to enhance scrutiny to be brought forward. The Government intend to introduce before the Summer Recess the Constitutional Renewal Bill covering the ratification of treaties. I hope that news is welcome to those who have concerns about this.

I wish to pick up on one or two other points about ratification. The noble Lord, Lord Hannay, sought an assurance that we do not have to wait for the European Community to go through its ratification process before we can complete ours. I am advised that the answer to that is clearly no and that we will move ahead and ratify as soon as we can. The noble Lord, Lord Skelmersdale, asked whether our reservations and declarations have to be attached to the European Community’s ratification, and the answer to that is no as well. Our reservations and declarations reflect domestic UK needs. However, the European Community proposes to enter a complementary reservation to ours to cover the position of service in the Armed Forces.

Is that the only reservation that the new instrument will incorporate? What about the other two?

It is the only one that we are aware of. The EU and all member states are doing what we are doing at the moment. Those who have not ratified have to go through the process of reviewing their legislation practices and so on to see that there is compatibility.

Perhaps I can deal with one other general point, which the noble Baroness, Lady Campbell—

I am dismayed. Is the position that the UK Government, having decided on a very broad reservation about the Armed Forces, are saying that within the European Community there should be a matching Community-wide provision that would apply to the 27 member states? I hope that that is not what the Minister is implying. He will probably not know that so far as sex discrimination is concerned, EU law prevents such a broad exclusion, which is why we do not have it in our domestic law. It does not apply to the disabled, unfortunately, but surely the United Kingdom should be setting a good example, as the noble Lord, Lord Hannay, has indicated, by seeking a narrow exception across the European Union rather than by crafting a broad one and then getting a matching one for all the member states. Is the position that we are promoting a similar reservation to our own across the EU, or is it that, for some other completely separate reason, the EU wishes to have something as broad as this? Is the dog wagging its tail or the tail wagging the dog?

I understand the point that the noble Lord is pressing me on. I see that the Box is scribbling a note and coming to my aid, so perhaps I might come back to that before I have finished dealing with the rest of the debate.

A number of noble Lords spoke about the reservations and the interpretative declaration. The noble Lord, Lord Lester, asked whether the Government agree that there should be as few reservations and declarations as possible. Our answer to that is yes, clearly we do. However, we do not consider that the handful we are proposing are excessive in this context, and we are proposing to enter them only where we consider there is a need. The noble Lord also asked whether the Government should be committed to making the legislative and other changes necessary to enable them to be withdrawn as soon as possible. The Government have made clear that the reservation in respect of arrangements for the review of benefit appointees will be removed when the proportionate system of review is introduced and the reservation in respect of liberty of movement will be reviewed after 12 months. The need for the other reservations will also be kept under review and where reservations become redundant they will be withdrawn.

The noble Baroness, Lady Campbell, raised the same point and asked whether there should be a commitment to review all reservations in 12 months. All the reservations will be subject to periodic review and where they are no longer needed they will be removed. The noble Baroness particularly emphasised the need for that review and I anticipate that the Equality and Human Rights Commission, in its role as part of the independent monitoring framework, will ensure that the Government are mindful of that, and rightly so.

There were many comments on education issues, not all taking the same position, from the noble Lords, Lord Low and Lord Skelmersdale, and the noble Baronesses, Lady Campbell and Lady Thomas. Concern has been expressed that the reservation and interpretative declaration in respect of education are unnecessary and that other countries with education systems similar to ours have not found it necessary to enter either. Germany was mentioned several times, including by the noble Lord, Lord Hannay. I reiterate that, although I cannot comment on the basis on which other countries may have come to their conclusions when ratifying, the UK Government consider both the declaration and the reservation necessary.

I note the concern expressed by noble Lords that the education reservation and declaration represent a change in policy. Let me be very clear: that is not the case. The purpose of the proposed declaration and the reservation is to maintain the present policy and legislative provision for inclusive education, which, in the UK, includes a range of provision including mainstream and special schools. I assure noble Lords that they do not represent a dilution of our commitment but are intended to make the UK’s current position clear. The interpretative declaration is proposed to make it clear that the UK’s general education system includes both mainstream and special schools and thereby clarifies how the UK Government interpret the convention. That will make it clear that special schools are considered part of the UK’s general education system and that parents have a right to express a preference for a special school. The reservation is proposed to allow for specific circumstances where disabled children's special needs may be best met through specialist provision, which may be some way from their home, so that they will need to be educated outside their local community. That also maintains parental choice for schools outside the local community.

On this point, can the Minister explain what the reservation adds to the interpretative declaration on education? It seems to me from this debate that there will be quite broad support for the interpretative declaration explaining what we actually do and how we interpret the obligations under the convention, but I fail to see the need for a reservation. Reservations are far more damaging than interpretative declarations.

My understanding is that the reservation is to deal with the point that for some children specialist provision—which I think that there is agreement should be a part of our inclusive system—may be some way from the home. I think that that is why that reservation is lodged. I see the noble Lord shaking his head. I will certainly review that and I am sure that we will pick that up more specifically in our response to the JCHR report, but I think that that is the purpose of the reservation. The thrust of the convention is the right to have education in your local community, but some special schools may be some way away from someone's local community. We see inclusion as being about the quality of a child's experience and providing access to a high-quality education that enables them to make progress in their learning and to participate fully in the activities of their school and community.

I am conscious that there is not an identical view among noble Lords about the extent to which special schools should be maintained, but I am trying to set out the Government's current position on education and special schools. Given that that is the Government’s position, it is appropriate to have both the declaration and the reservation—the latter, perhaps, on the narrow point that I have just outlined.

One noble Lord raised the issue of Northern Ireland. The Northern Ireland Executive has been fully consulted throughout our work towards ratification of the convention and we understand that the Executive support the proposed basis for ratification. No concerns have been previously raised about the proposal to enter the declaration and reservation on Article 24. My honourable friend Jonathan Shaw is seeking clarification from the First Minister and the Deputy First Minister about Northern Ireland's overall position.

A number of noble Lords asked about the Armed Forces. The rationale for the reservation is based on the need to maintain the operational effectiveness of the Armed Forces, and that relies on teams consisting of fully able personnel who can meet a worldwide liability to deploy. Armed Forces personnel therefore need to have a robust constitution both physically and mentally to serve in situations where they may be called upon to work for prolonged periods under difficult and stressful conditions in arduous terrain. It has been suggested that the fact that the Armed Forces retain a number of personnel who become disabled in the course of their duties, a point probed by the noble Lord, Lord Skelmersdale, is evidence that the reservation is necessary.

We would agree that there is a clear moral obligation for the services to look after personnel who have been injured. Rehabilitation can often best be facilitated within a military environment, particularly as the individuals concerned often have relevant experience which can be exploited to the benefit of all serving. Cases are considered on an individual basis against manpower requirements, and while the services have continued to retain those people injured on operations who wish to stay, where necessary in an alternative role, they do not artificially create posts to accommodate them. There is a fundamental difference between retaining someone who has relevant military experience and recruiting someone with no previous experience and is unable to meet the standards required.

I am grateful to the Minister. I understand everything he has said, but what is not clear is why a narrow reservation to deal with the point made by the noble Lord, Lord Skelmersdale, would not suffice. Why is it necessary and proportionate to have a sweeping reservation that excludes from the entire employment and occupation provisions both under the convention and in the Equality Bill under our domestic law every aspect of recruitment, training, promotion, terms and conditions and terms of service throughout the entire Armed Forces? I do not understand why anything the Minister has said so far indicates the need for that kind of reservation when, as the noble Lord, Lord Hannay, has indicated, it does not apply to the police, the fire service, and certainly not to women, transsexuals or others under existing domestic law. Again, why is it necessary to have this extraordinary reservation in place? Indeed, where is the EU competence for a similar reservation to enter into EU law if that is what is proposed?

All I can say to that is “ditto”.

Let me acknowledge the concerns about the breadth of this reservation, which have been powerfully made. However, I have tried to set out the Government’s position. There is also an issue about the ECHR’s request for evidence in relation to the proposed reservation, and indeed the noble Lord referred to the correspondence with the Secretary of State, John Hutton. There is a general question about whether the reservation will be reviewed, and of course the answer to that is yes, it will. It will be kept under periodic review as part of the process of monitoring and reporting on the convention. This, of course, is not related to the Equality Bill. The noble Lord identified that legislation which was published, I think, on Monday, but it does not itself remove the necessity for a reservation in this area. I should also say that the reservation, as I understand it, does not preclude the Armed Forces from recruiting disabled people into the services. It is not a blanket provision, but judgment on these issues has to be provided. That is the thrust of the point. Perhaps I may refer to what the noble Lord, Lord Lester, said about the UK’s position in relation to the European Community. It will enter into a reservation that effectively mirrors that of the UK. We understand that that will not be outside compliance with Community law. It of course does not require other member states to enter an equivalent reservation. I can see the challenge that might come from the noble Lord about where Community competence runs on that and where that puts other member states. I will have to take further advice on that.

It would be helpful if the noble Lord could write when he has had an opportunity to reflect on this. I am not very familiar with this particular area, but I have a certain familiarity with the EU. My assumption is that the EU is signing and ratifying this treaty only for areas where it has competence. It is not signing and ratifying it on behalf of all 27 member states wherever they have competence, which is why we are ratifying it ourselves and why we are entering reservations. If I have got it right, all our reservations as I see them are in areas where the European Union does not have competence directly. Certainly, regarding the Armed Forces, unless we are going to follow the noble Lord, Lord Pearson of Rannoch, galloping down the route towards a European army, I am not sure where the European competence for that comes. It would be a great pity if we were driving the European Union into making a reservation that was basically unnecessary. However, I am happy to await a reply from the noble Lord when he has taken further advice on that point.

I am grateful to the noble Lord for allowing me that route to deal more specifically with that reasonable point, which deserves a proper, full and complete answer. I will make sure that that is forthcoming, if not through our response to the JCHR report, then otherwise in correspondence.

Noble Lords also asked about the reservation relating to immigration, the Australian approach to the right of freedom of movement and the review of our reservation after 12 months. Again, I cannot comment on the rationale or merits of the Australian approach. Our assessment has been that a reservation in the terms we are proposing is necessary.

However, as I made clear in my opening remarks, the Government are committed to reviewing this reservation 12 months after the UK has ratified the convention so that we can assess whether there is a continued need for it in practice. As we have made clear, disabled people and their organisations will be consulted at an early stage to ascertain how they can be involved in formulating the review. I hope that noble Lords are happy with the starting scope of that; namely, that the process to review it would find favour.

Before the noble Lord leaves that point, will he confirm my understanding that it is there only for health reasons and for no other?

I do not have the detailed wording in front of me. No, the reservation certainly covers health issues, but it is not limited to that. Again, I will look to the Box for some support on that later.

I hope that it is clear that, while we consider it necessary to have a reservation in respect of the arrangements for social security benefit appointees, we intend to remove that reservation as soon as is practical. We anticipate that it will take at least two years before that is possible. Given the number of customers with appointees estimated at half a million, introducing a review system would be a huge undertaking and we need to make sure that we get it right.

The noble Lord, Lord Lester, asked whether we should take the opportunity of the Welfare Reform Bill to ensure that the review system can be put in place. But at this time we do not think that we will need to make changes to primary legislation and have no plans to do so in the Welfare Reform Bill. Therefore, we believe that it is not necessary to have that in primary legislation.

The noble Lord, Lord Skelmersdale, asked about the timing of the review. I have indicated that it could take up to two years. We are scoping the task at the moment, which is neither simple nor small, given that half a million people might be affected by it. Introducing the review system will be a huge undertaking, but it is important that we do it.

A number of noble Lords expressed concern that we are proposing to make more reservations than other countries, and that this could jeopardise our standing with other countries or send a signal that the UK has concerns about the contents of the convention. However, the Government’s view is that comparisons cannot be made on the basis of the number of reservations and/or interpretative declarations made by other countries. Countries have different cultures, different ways of doing things and different legal systems and policies, which may raise different issues. Whether that is us being meticulous or pernickety I leave to noble Lords to judge for themselves, but we believe that it is the right approach.

The issue was raised of the compatibility of domestic law with the convention, and of the reservations with the convention. The UK’s approach, and I make no apology for it, is not to ratify any international treaty until it can ensure that it can implement the provisions and therefore comply with the obligations that it has accepted. That is why government departments and the devolved Administrations have compared their policies, programmes, practices and procedures with the convention’s requirements. The noble Lord, Lord Lester, asked about the Government’s views on the compatibility of domestic law and practice with the terms of the convention. The Government took account of the requirements for reservations to be compatible with the object and purpose of the convention when considering the terms on which we were proposing to ratify, and we set out our rationale in the Explanatory Memorandum.

The noble Lords, Lord Lester and Lord Maclennan, asked about compatibility with the convention and what these reservations mean. The UN convention allows for the making of reservations and interpretative statements so long as they do not defeat the object and purpose of the convention, so this is specifically provided for. We have considered the reservations and interpretative statement that the UK will be entering, and we are satisfied that they do not defeat the convention’s object or purpose.

Unfortunately, the Explanatory Memorandum does not tell anyone, article by article, how domestic law already complies. There is nothing in it that says that, nor is there anything in any other government document. The Joint Committee has asked not for the fruits of two years of interdepartmental discussion but for a short document that says, “Article 13 is already covered in UK law by Section so-and-so of the Commonwealth so-and-so and the Disability so-and-so, while Article 14 is covered by so-and-so”. That is what one needs to answer, for example, my noble friend Lord Maclennan’s question. Unless we have that, we cannot tell how it is that the Government are saying that legislation is not necessary in order for ratification. It is important that the public should know where existing law gives full protection and, therefore, where it is unnecessary to legislate further.

On the broader questions about review, I am sure the Government will realise that Parliament will be reviewing all this during the Equality Bill debates. It may therefore be in less than a year that the Government will be compelled by Parliament to withdraw some of it—but that is another point.

On that latter point, I am well aware that the Equality Bill is now with us and I have no doubt that several noble Lords will be actively engaged on that, pressing some of the points that they have raised today.

I understand the point that the noble Lord is making about the quest for some form of document that lists all the UK provisions and matches them against the convention. I doubt whether that would be a short document; rather, I imagine that it would be extensive. That does not necessarily argue against it being produced, but the fact that we are supporting the signing and ratification of the convention, given our starting proposition, means that that work has been undertaken, although I accept that it has not necessarily been fully visible.

I am very grateful. I am not asking for new work to be done, nor am I asking for revelations of all the old work that has been done. All I am asking for is a summary of the work that has already been done. It does not matter whether that is in short form or long form. There is no reason why that should not be disclosed in a convenient form so that the public are well informed. That is all we are saying. I hope that can be done.

I shall certainly take that away and raise it with colleagues to see whether we can do more on that front. I can see that that would be helpful.

I wish to pick up on the point that several noble Lords raised about whether new rights derive from the convention. The convention sets out what was considered by those negotiating it to be a list of existing rights applying to disabled people. These are general rights and the convention allows for those ratifying it to take into account provisions in their own legal systems, so long as in doing so, as I said a moment ago, they do not defeat the object and purpose of the convention. Therefore, national differences can be accommodated.

Issues were raised about consultation, particularly by the noble Baroness, Lady Campbell. I say to the noble Baroness, Lady Thomas, that we are not ashamed of these reservations. We have tried to explain their purpose. There is no hidden agenda here. However, I recognise that many groups with whom we have worked actively and fully are disappointed, which is a shame.

It has been suggested that the Government should have consulted more about their proposals and that they should have consulted on the justifications for and precise terms of the reservations and interpretative declaration that they propose. However, the Government made clear in May 2008 that at that time they were considering reservations and/or interpretative declarations in respect of service in the Armed Forces, education and immigration, and were continuing to explore whether there were any compatibility issues that might result in the need for an interpretative declaration or reservations in respect of measures relating to the exercise of legal capacity, aspects of mental health legislation or choice of place of residence, and interpretative measures in respect of cultural services.

A further update on the position was provided in the response to correspondence from the Joint Committee on Human Rights in the autumn and in the Minister for Disabled People and the South East’s evidence to the Joint Committee on Human Rights in November 2008. Ministers and officials have had meetings with a number of stakeholders. The Explanatory Memorandum on the convention, laid before Parliament on 3 March, provided a detailed explanation of our proposals for ratification and the rationale behind those proposals. This information was circulated widely, and this and other information has been placed on the website of the Office for Disability Issues. Information has therefore been in the public domain for some considerable time.

Looking forward, the Government recognise that it is essential that disabled people and their organisations are involved in the future implementation of the convention—for example, through participation in the monitoring and reporting processes that will be developed.

The noble Lord, Lord Skelmersdale, asked what we were doing to promote the convention around the world. The UK is active, both at home and abroad, in promoting the convention. Overseas the FCO supports local NGOs to promote awareness of the issues covered by the convention and is supporting the work of the Council of Europe in promoting the UN convention among member countries that have not yet signed and ratified. The Department for International Development has made positive efforts to integrate disability into development practice and has, for example, provided country office staff with practical advice on how to engage with disabled people as part of poverty reduction efforts.

I am conscious that there are probably some issues that I have not fully covered but I think we have a process going forward to pick those up. I assure noble Lords that we will consider the views that have been expressed today, together with those expressed by the JCHR and others, before we make a final decision on how to proceed to ratification. Specification of the convention is a step that moves us closer to ratification, and ratification is the immediate objective and the end of a detailed process. Equally importantly, it will be a beginning of the implementation of this important convention when it comes into force within the UK. I look forward to us embarking on that journey.

To move that the Grand Committee do consider the Report of the Joint Committee on Human Rights on the United Nations Convention on the Rights of Persons with Disabilities: Reservations and Interpretative Declaration (12th Report, HL Paper 70).

I thank everyone for taking part in a most memorable debate. I have already spoken to the Motion, and I beg to move.