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Grand Committee

Volume 718: debated on Monday 29 March 2010

Grand Committee

Monday, 29 March 2010.

My Lords, it has been agreed that should any of the Questions for Short Debate not run for their allotted hour this afternoon, the Committee will adjourn during pleasure until the end of the allotted hour. Therefore, each of the Questions for Short Debate will start at half past the hour.

If there is a Division in the House, the Committee will adjourn for 10 minutes and, if necessary, time can be added on to the time for the Question for Short Debate so interrupted.

Gulf War: Veterans

Question for Short Debate

Asked By

To ask Her Majesty’s Government what further consideration the Ministry of Defence has given to the implications for British veterans of the 1990-91 Gulf War of the findings of the congressionally mandated and funded United States Research Advisory Committee on Gulf War illnesses on the toxic effects of exposure to organophosphates and of the nerve agent pre-treatment sets (NAPS) tablets given to British troops deployed to the conflict.

My Lords, we meet to debate the importance of the landmark findings of US congressionally-mandated research on Gulf War illnesses for many thousands of British veterans of the conflict now in broken health, many of them terminally ill, who were prepared to lay down their lives in the most toxic war in western military history, and the bereaved families of those who did so.

I have interests to declare, not pecuniary, as honorary parliamentary adviser to the Royal British Legion, the authentic voice of the ex-service community; as vice-president of the War Widows’ Association; and, uniquely for a non-American, as a co-opted member of the United States Congressional Committee of Inquiry into Gulf War Illnesses, whose deliberations led to federal funding of the Research Advisory Committee whose findings we are here to debate.

I want also at the outset today to thank most warmly the noble Lords who will follow me in this debate. I know that they share my deep sadness at the passing of Lady Park of Monmouth, who spoke in almost all our debates on Gulf War illnesses before today. We have lost a valiant and much loved friend.

The House knows of my regard for my noble friend Lord Tunnicliffe and for my noble friend Lady Taylor, who would be here but for a ministerial commitment abroad. She was described by veterans as the first Defence Minster ever to make an unreserved apology for unacceptable treatment of a Gulf War veteran after I had put it to her on 10 December 2007:

“Is it not shaming that wrangling with veterans over pensions still drags on, 17 years after the conflict, and that it has now engulfed so grievously Terry Walker, who had his pension cut from 100 per cent to 40 per cent shortly before he died, leaving his two orphaned children in poverty? How can any apology ameliorate the depth of distress caused by the handling of his case?”.

My noble friend’s response was immediate and forthright. She said,

“no apology can make amends for what happened. Great distress was caused to the family”—,[Official Report, 10/12/07; cols. 5-6.]

and she went on to speak of interim help the family could be given, including payment for Terry’s funeral expenses.

Yet the anguish and often anger of Gulf War veterans trying to cope with medically unexplained illnesses was not assuaged. A great many of them backed the remonstration of Flight Lieutenant John Nicol, whose bravery under torture in Iraq in 1991 was seen on TV screens across the world when he protested,

“we weren’t the enemy but that’s exactly how Gulf veterans have been made to feel by the MoD”.

Samantha Thompson, the widow of a Gulf War veteran was no less pointed in stating that she and her seven year-old daughter would have been,

“far better treated had her husband been in the United States and not the British Armed Forces”,

and she was strongly backed by Brigadier Ian Townsend, the then secretary-general of the Royal British Legion, who told the legion’s annual conference in 2004 that,

“14 years on Gulf veterans with medically unexplained illnesses and the dependants of those who have died are still cruelly locked in a long hard battle with the MoD”.

Just as British troops now serving with such valour in Afghanistan knew before they were deployed of the hazards that they would face, so too their predecessors in the Gulf War were aware of dangers facing them in 1990-91. They were the first British troops since 1918 to confront an enemy known not only to possess but to have used chemical weapons, as Saddam Hussein had done both in Iran and against many thousands of his own citizens in the massacre at Halabja.

What our troops deploying to the Gulf did not know was that many thousands of them would be exposed to sarin from the fall-out when Hussein's chemical weapons storage plant at Khamisiyah in southern Iraq was totally destroyed by US bombing in March 1991. Nor did they know the health consequences of the pyridostigmine bromide used in the NAPS tablets they were given as an antidote to biological agents; or of the heavy use of organophosphates in spraying their tents to prevent fly-borne diseases.

Professor Malcolm Hooper, president of the National Gulf Veterans and Families Association, set out in a recent paper hazards faced by our troops deploying to the first Gulf conflict. Time restriction makes it impossible for me to refer to all of them in this debate, but I will copy the paper to my noble friend for a reply in writing to points not addressed this afternoon.

Nor is there time now to quote all the ministerial replies to questions tabled by noble Lords about the MoD's refusal to consider the implications of the RAC's report for British veterans, even its damning findings on the real, serious and potentially deadly effects of neurotoxic exposures. What all the replies amounted to was a claim that in November 2008, the then US Secretary of Veterans Affairs referred the RAC's report to the US Institute of Medicine for peer review; that the IoM would be publishing the outcome of the review in February 2010; and a repetitive insistence that the MoD could not consider any possible implications of the RAC's findings until then.

This was the constant refrain despite my having quoted to Defence Ministers a letter sent to me last June by Roberta Wedge, the IoM's senior programs officer, stating that the Secretary of Veterans Affairs had not referred the RAC's report to the IoM. She has since made this utterly clear also in evidence on the record to the US Congressional Sub-committee on Oversights and Investigations, chaired by Congressman Harry Mitchell, with whom I have corresponded directly.

Roberta Wedge’s letter also stated categorically that the IoM had not been, and would not be, peer-reviewing the RAC's report; and that it was grossly misleading to contradict this and to claim that the IoM would be publishing the outcome in February 2010.

What in fact happened in November 2008 was that, while the then Secretary of Veterans Affairs in the Bush Administration announced that he was referring the RAC's report to the IoM for peer review, he did no such thing. In any case, it would have been both absurd and constitutionally highly questionable for the IoM to review a report from the congressionally-mandated committee described on high medical authority as,

“packed with eminent medical scientists, all leaders in their fields, and based on 1,840 scientific communications, the vast majority of which had appeared in peer-reviewed journals, most of the remainder having been included because of the high repute and eminence of their authors”.

What is hard for veterans to forgive now is the repetition of errors that a single telephone call could have corrected. Of course, February 2010 has come and gone, and time has falsified the replies given to noble Lords over the 18 months since the RAC's report was published. This is why there is such determination now, all across the ex-service community, to prevent further delay in addressing the implications of the RAC's report for British veterans. Thus, it would be helpful if my noble friend could make a start today by providing the MoD’s figures for the number of British veterans exposed to organophosphates and to Sarin from the fall-out at Khamisiyah; how many were given NAPS tablets, and how many in each case have still undiagnosed illnesses.

In sharp contrast to how British veterans fared in striving to have the RAC’s findings considered, the new US Administration have taken major initiatives to start giving them effect. General Eric Shinseki, the new Secretary of Veterans Affairs, ordered an urgent review of the files of thousands of Gulf War veterans to see whether their claims for disability pensions were wrongfully decided. He published a statement entitled Comprehensive Approach to Delivering Care and Benefits for Veterans and spoke of,

“challenging all the assumptions made for 20 years”.

More recently, he announced recognition by the Department of Veterans Affairs of presumptive illnesses and said:

“This will be the beginning of historic change for how the VA considers Gulf War veterans’ illnesses”.

In an authoritative message from Washington yesterday, I was told that while the IoM will release a comment on 9 April, it will not review the RAC’s report, and Secretary Shinseki has made clear that he has not been and is not waiting for any comments from the IoM. Rather, he has carefully studied the RAC’s findings and has acted. So must we.

None of us here, least of all my noble friend, wants to see the afflicted and bereaved of the first Gulf conflict made to suffer the strain and hurtful and demeaning indignities of still further delay in reaching closure on their anxious concerns. Of all the duties that fall to parliamentarians, their priority of priorities must be to act justly to those who, alone in this country, contract with the state to lay down their lives in its service. There was no delay in the response of our troops to the call of duty in 1991, nor must there be any further delay now, in this 20th year since the conflict, in discharging in full our debt of honour to them.

No one has done more to honour that debt than James Binns, who chaired the RAC with such humanity, excelling integrity and unswerving dedication. He deserves well of service and ex-service communities everywhere and stands high in my gallery of heroes and heroines, among them my noble and learned friend Lord Lloyd, my noble and gallant friend Lord Craig, and the late Daphne Park.

My Lords, I congratulate the noble Lord, Lord Morris, on obtaining this debate, and I apologise for my momentary absence at the beginning.

The noble Lord, Lord Morris, has been a fine champion of the Armed Forces and a real force for good in their interest. He and I co-chaired a well attended meeting in the Robing Room in March last year, when we were privileged to hear at first hand from the chairman and members of the Research Advisory Committee set up by the United States Congress to examine scientifically the issues of Gulf War illness and the present and future health of affected Gulf War veterans.

Under the inspired leadership of Colonel Binns, this committee of experts established beyond peradventure why so many US and UK service personnel who fought in Gulf War I returned with unexplainable illnesses. That work did much to shed a clear, bright, penetrating light on these issues. When I spoke at that gathering, I had hoped to note and welcome the presence of representatives from the Ministry of Defence, but it seemed that invitations had regrettably arrived too late for any Minister. However, it should still have been possible for one or more officials to attend on Ministers’ behalf. That would have helped underline Prime Minister Gordon Brown’s personal and explicit promise to treat fairly those who had been prepared to put their lives on the line, as directed by their Government, and who have suffered as a result.

We should never forget that we are concerned about the care and fair treatment of individuals whose illnesses were triggered almost 20 years ago. At various times in the course of this long period attempts have been concentrated on reaching conclusions and closure. It is in no one’s interest that it still drags on, causing difficulties on all sides, confrontation and disillusionment rather than co-operation and satisfaction.

In spite of efforts over the years by this Government going back to when they first entered office in 1997, the unfortunate impression has been left with Gulf veterans and their families that while the Government may be fulsome with their praises for veterans, they are unwilling or unable to give greater practical help to those who suffer. The Government’s claim is that all who have a recognised incapacity or illness are compensated, but this does not seem to reach over satisfactorily to the many individuals who are clearly unwell but do not have a classified condition of illness.

The fine work of the Research Advisory Committee opens a new door on these poorly defined conditions, so it was a bitter blow when the Government’s reaction to the RAC report was to inform this House that, although they had examined the report following its publication on 17 November 2008 because the United States Department of Veterans Affairs had sent the report to the highly respected Institute of Medicine (IoM) for review, Her Majesty’s Government would await the outcome of this process before reaching any conclusions on the report. The noble Baroness, Lady Taylor, wrote a letter to me dated 20 May 2009. A copy of the letter is also in the Library. It states:

“The IOM are committed to updating their 2006 report by reviewing newly published research and taking into account the Report submitted by James Binns as chair of the Research Advisory Council”.

But has any such reference taken place? Indeed, the noble Lord, Lord Morris, has dealt with that point. The information that I, too, had from Colonel Binns months ago was that no such reference would take place. Has there been any further statement or action on the RAC report from the Government that I may have missed? It seems extraordinary that it takes a further Question for debate in your Lordships' House to get further comment or commitment from the Government even after their deadline of February 2010 had passed. Surely, this is not the sort of treatment that ill veterans should bear.

I finish by quoting from the executive conclusions of the Research Advisory Committee’s report. It is a very heavy and thick report, so I have reproduced it in my notes. It states:

“The extensive body of scientific research now available consistently indicates that Gulf War Illness is real, that it is the result of neuro-toxic exposures during Gulf War deployment, and that few veterans have recovered or substantially improved with time. Addressing the persistent health problems affecting Gulf War veterans remains the obligation of government, and all who are indebted to the military men and women who risked their lives in Iraq, Kuwait and Saudi Arabia 17 [now 19] years ago. This obligation is made more urgent by the length of time that Veterans have waited for answers and assistance”.

Does that not say it all? I hope that we hear some good news from the Minister when he replies.

My Lords, I put my name down to speak in this debate because Gulf War illness is a subject in which I have had a close interest for a long time. Having heard what the noble Lord, Lord Morris of Manchester, and the noble and gallant Lord, Lord Craig, have said, there is very little, if anything, that I can usefully add. I agree with everything that they have said. Like them, I regard the report of the Research Advisory Committee in the United States as providing the answer for which the Government have been looking for so long—namely, the causes of Gulf War illness of 19 years ago.

That report establishes that there were two causes: NAPS tablets and organophosphates. As for NAPS tablets, they were taken by our forces at the insistence of the Government. As for organophosphates, that was what their tents were sprayed with—again, organophosphates purchased by the Government. These are the facts established by the Research Advisory Committee report, and in my view it is high time that the Government accepted those facts and acted accordingly.

My Lords, I, too, pay tribute to the noble Lord, Lord Morris of Manchester, who has, in his characteristically indomitable way, managed to make sure that this House and, indeed, the wider public have been constantly reminded of the way in which the nation effectively let down those who served on our behalf in the first Gulf War. I pay tribute to him; like him, I have been a member for some years of the Royal British Legion Gulf War group. I pay tribute to the work that the RBL, too, has done over the years to make sure that the veterans, particularly those who have suffered ill health, have been kept constantly in the mind of the Government and of the nation.

Unlike the noble and gallant Lord, Lord Craig, I cannot claim any military expertise, and unlike the noble and learned Lord, Lord Lloyd, I cannot claim any legal expertise. I am the layman—the man of the street—in this issue, but my long-term commitment stems from the fact that I was brought to realise how dangerous organophosphates were many years ago, when I was first elected to the Commons, by sheep farmers in my constituency in Cornwall and more widely throughout Wales and the south-west of England.

It became apparent soon after the invasion in the Gulf War, in 1991-92, that organophosphates had played a role in the problems that subsequently resulted in ill health for our troops. Soon after that war, I questioned the Minister for the Armed Forces, Mr Nicholas Soames—obviously, this was under the previous Government—on what use had been made of OPs. I was told it was minimal. A few Iraqi prisoners of war had been sprayed to delouse them, but that was it. It subsequently became apparent that the Minister had been misinformed. The Ministry of Defence had to admit—and the Minister had to apologise to the House, to me and to other Members of Parliament—that OPs had been very widely used among the Armed Forces who had gone to the Gulf. Indeed, their equipment had been extensively sprayed with OPs obtained locally, without proper protection either for those operatives given that responsibility or for the troops themselves.

As has been made apparent this afternoon, and has so often been made apparent, the cocktail of vaccination against the various diseases and infections that were anticipated in the Gulf, with the use of OPs for that extensive delousing operation, has undoubtedly caused a huge problem among our serving personnel. It is estimated that up to a third of those who were deployed into the active area of engagement during those hostilities have suffered from ill health of various types since then. The cocktail of pyridostigmine, the so-called NAPS tablets and the exposure to organophosphates—themselves extremely dangerous chemicals whose origin is in the chemical warfare attempts of the Second World War—clearly has had a very damaging effect on the health of a number of individuals.

That came out strongly in the investigation that was undertaken by an independent tribunal, chaired by the noble and learned Lord, Lord Lloyd of Berwick, which has been the only effective, comprehensive analysis of what went wrong to have taken place in this country. No proper, independent inquiry has covered the whole field, as has happened in the United States.

What is apparent not just from the speech of the noble Lord, Lord Morris, today but from successive exchanges in the House is that we have lagged behind dangerously in the work undertaken both by the US Government and on their behalf. Sadly, we have also not seen an effective response to the 2008 Binns report, which has already been referred to in the debate. Had we done so by now, surely we would have been able to see that the causal connection between the NAPS tablets and OPs was at the root of a considerable number of those suffering with very serious ill health. The latest study, from the American Society of Toxicology, which reported just a few weeks ago, has also been given remarkably little attention in this country, not least by the Government, so far as I can see. It shows indisputably that sick veterans are suffering from organic brain disease as a result of this particular concoction. It is also significant that troops from other nations who were deployed at the same time and did not undergo this programme of vaccinations combined with OPs have not had anything like our levels of ill health thereafter.

The critical issue is that while we understand perfectly well that Ministers are anxious not to replicate the work of US organisations, let alone the government-sponsored research activity that has taken place over the past 15 years, surely that puts a responsibility on the United Kingdom Government to take full advantage of that research. It is the worst of all worlds to say that we will not undertake the research because someone else is doing it, and then not take advantage of the results. That, sadly, has been the long-term complaint of our troops who have been made chronically ill by, as it were, the worst friendly fire incident of modern times. It is not that no research has been done, and not that the Government have attempted to duplicate it, but that they simply have not taken advantage of it. It is also true, sadly, that monitoring the ill health of those who have been the most badly affected has not been as substantial as we would like. Only deaths are recorded, which ignores all the morbidity problems that so many face on a daily basis as a result of their service for their country during the Gulf War.

We still await a reaction—perhaps we will get one from the Minister today—to the question of why we have not seen a full response to the United States Research Advisory Committee report. It is not good enough simply to say, “We are still waiting for the Institute of Medicine review”. It has been made only too apparent that that is like waiting for Godot. I believe that the constant experience of those who have been badly affected is that their Government—the Ministry of Defence in particular but more generally as well—have not been as assiduous as the Government of the United States in respect of their ill health. For a whole period, too much emphasis was placed on trying to dispel the idea that there is just one Gulf War syndrome when we all know that a number of specific illnesses seemed to derive from this unfortunate episode.

Nobody is asking for huge sums in compensation at this stage. What we are asking for is for the Government to be as upfront as we can and should expect them to be in taking full advantage of the United States research, making it available to those who are the worst affected, and in the process trying to restore trust among these veterans. Surely it is the prime responsibility of any Government that those who serve the nation in the frontline should expect every consideration and respect. The Government must obtain at least the trust of those who in this particular case have been so badly affected through their service to this country.

My Lords, I congratulate the noble Lord, Lord Morris, on securing a debate on this difficult subject, on which we all acknowledge he is an expert.

As we all know, Gulf War syndrome refers to the complex of symptoms which particularly affects the veterans of the 1990-91 Gulf War at significantly excess rates. These symptoms are not explained by established medical diagnoses or standard laboratory tests but typically include a combination of memory and concentration problems, persistent headache, unexplained fatigue and widespread pain, and can also include chronic digestive difficulties, respiratory symptoms and skin rashes.

Around 6,000 British service personnel, out of some 55,000 mobilised for the conflict, are still reported to be suffering from the symptoms of Gulf War syndrome. In 1998—as we heard from the noble Lord, Lord Morris, and the noble and gallant Lord, Lord Craig—the US Congress mandated the appointment of a public advisory panel of independent scientists and veterans to advise on federal research studies and programs to address the health consequences of the Gulf War. The panel was directed to evaluate the effectiveness of US government research in addressing central questions on the nature, causes and treatments of Gulf War-related illnesses. This committee published a report in November 2008, which we have heard about this afternoon. The report provides a comprehensive review of information and evidence on topics reviewed by the committee since its previous, interim report published in 2004, as well as additional information on topics considered in the 2004 report.

In brief, the committee found that veterans who took pyridostigmine bromide—which was used by our soldiers and our allies as a protective measure against possible nerve gas exposure—for longer periods of time had higher illness rates than veterans who took less PB. The report establishes that the widespread use of multiple types of pesticides and insect repellents—often, as we have heard, containing organophosphates—in the Gulf War theatre supports a consistent and compelling link of being associated with Gulf War illness; that veterans of the Gulf War have developed amyotrophic lateral sclerosis at twice the rate of non-deployed veterans of the same era; and that veterans who were downwind from nerve agent releases resulting from weapons demolitions at Khamisiyah, Iraq, in March 1991 have been found to have twice the rate of death due to brain cancer as other veterans in theatre.

Although studies of Gulf War veterans do not provide consistent evidence that exposure to oil fire smoke is a risk factor for Gulf War illness for most veterans, questions remain about effects for personnel located in close proximity to the burning wells for an extended period. Limited findings from epidemiologic studies indicate that higher-level exposures to smoke from the Kuwaiti oil-well fires may be associated with increased rates of asthma in Gulf War veterans, and that an association with other Gulf War symptoms cannot be ruled out.

These are extremely serious, often sadly fatal, side effects our soldiers and veterans are still suffering from and will have to contend with for as long as they live. They come as a direct result of defending our country. We are for ever indebted to them; therefore it is the least we can do to investigate these illnesses fully and make the lives of these brave people as comfortable as we possibly can.

I have some questions that I would like to put to the Minister. Will he inform the Grand Committee what, if any, purposeful research the Government have commissioned since the publication of the American Research Advisory Committee on Gulf War Veterans’ Illnesses report in November 2008? It was published 18 months ago and surely now requires some proper answers. Can he also say whether Her Majesty’s Government have any immediate plans to conduct research into the health of veteran's children, and does he agree with me that there is still considerable scope for research into that particular issue?

What consultations have the Government had with their US counterparts relating to the findings of their latest report? Will the Minister inform the Committee what consultations he has had with his ministerial colleagues relating to the findings of the latest report, and what assessment he has made of the cost of compensating those who are suffering illnesses symptomatic of Gulf War syndrome? What assessment has the Minister made of the possible health implications of prolonged exposure to Kuwaiti oil-well fires during the Gulf conflict? Finally, will he give the Committee the Government's assessment of the number of British Gulf war veterans who are said to be suffering from Gulf War syndrome? It is vital that assessments of claims made by veterans of the first Gulf War who have subsequently become ill should continue to be made on a case-by-case basis and that, where a causal link to service can be established, they should then be compensated.

We on these Benches urge the Government to make a Statement without further delay, detailing the action that they will take in the light of the congressional report, since British veterans of the first Gulf War were exposed to the same agents that have been implicated in the US and many have become ill. I look forward to the Minister's response.

My Lords, I, too, thank the noble Lord, Lord Morris, for maintaining the Government’s alertness to this issue. He has raised it on every possible occasion. He certainly maintains the pressure—particularly on me, since it always seems to come up on my watch. That is a good process, for which we thank him. We thank him also for the tremendous work that he has done on behalf of veterans and the wider disabled community, and for his roles in the Royal British Legion, the Inter-Parliamentary Gulf War Group and as vice-president of the War Widows’ Association. I thank other noble Lords—in one case, a noble and gallant Lord—who have taken an interest in this. We, too, miss the noble Baroness, Lady Park.

Many questions have been raised, particularly by the noble Lord, Lord Morris, who was good enough to say that he will give me a series of written questions so that I can complete the spectrum of answers. I shall touch on some of the questions now, and start with the sarin incident which the noble Lord mentioned in his speech. In general, we do not think that it is appropriate to comment on individual cases. However, as he knows, in the case of Terry Walker, the Government have acknowledged the distress that Mr Walker’s next of kin have suffered on the issue of his war pension, and have apologised for it. The Government have taken appropriate corrective action.

The noble and gallant Lord, Lord Craig, said something that he has said a number of times before—that he craves closure. The implication is that we have somehow failed to provide appropriate closure. I and the Government cannot see that. Any Government must look at how we treat veterans who suffer as a result of serving their country. This Government—and, I believe, all Governments—have sought to make sure that proper schemes are in place to compensate individuals who suffer as a result of their exposure on behalf of the nation.

It is not about classifications but about compensating for specific disablement. That is the thread that runs through our system, and that is the thread on which the Gulf War veterans are being considered. It is difficult to see what more the Government can do than meet the standards of that scheme. We believe that we have met those standards. We have acknowledged our poor handling early on—at least two Ministers have apologised to the House for our early mishandling—but we go back to the essence of the scheme. The essence of the scheme is not about its title or its classification; it is about the impact that it has on the individuals.

Another question concerned the way in which the Institute of Medicine’s report will involve the RAC report. My noble friend Lady Taylor answered a Question on that subject on 27 July. I cannot do better than cite her reply because it clearly states the Government's position. She stated:

“The RAC report represents a body of work whose key findings are inconsistent with numerous previous studies on this subject by the US IOM. It is for this reason that the Department of Veterans Affairs asked the IOM committee to engage with the RAC and to consider the same scientific literature that the RAC used to come to its conclusions.

The IOM committee is expected to report in February 2010”.

We expect the report on 8 April. She continued:

“The IOM is an independent scientific body, and the degree to which it will consider the findings of the RAC report remains uncertain at this stage. The British Government's position is that we will not comment on the RAC report until the IOM issues its own report”.—[Official Report, 21/7/09; col. WA 337.]

The noble and learned Lord, Lord Lloyd, said that he had nothing new to add; I thank him for that. He said that the RAC provides the answers. That is not, and consistently has not been, the Government’s view. The noble Lord, Lord Tyler, said that, as a layman, it is self-evident. As a layman, I have read at least the executive summary, and it did not seem at all self-evident to me. It is not the Government’s view that it is self-evident that there is something in the RAC report that should cause us to take a different view. We believe that our view is sound.

The noble Lord, Lord Tyler, touched on a number of points. He wanted us to hold a public inquiry. We have said that we have not ruled out the possibility of looking at the matter again. However, in the present circumstances, it is research, not any form of public inquiry, that will best allow us to understand and help the veterans. I think that it was the noble Lord who touched on the issue of brain damage. We announced that, based on advice received from the Medical Research Council, we would not pursue neuroimaging studies. However, it was made clear that the MoD would not close off the possibility of looking at that again once ongoing US studies have reported.

On organophosphates, in 1996 the MoD carried out a thorough investigation into the use of OP pesticides in the 1990-91 Gulf conflict. The report found that, in the main, OP pesticides were properly used by personnel who had been carefully trained in the safe use of such products, including the wearing of personal protective equipment. On the vaccine interaction research programme, much has been made of the fact that it is not the one vaccine or the other, it is the interaction of the two. We carried out research into that. The vaccine interaction research was an in-depth examination of the potential adverse effects of the combination of medical countermeasures administered to troops in the 1990-91 Gulf conflict. The overwhelming evidence from the programme was that the combination of vaccine and tablets offered to UK forces at the time would not have had an adverse health effect.

I am grateful to the Minister. On that specific point, will he confirm that, as a result of the experience in 1991, there was no repeat of the administration of that cocktail combination when it came to preparing our troops for the invasion of Iraq in 2003?

I can assure the noble Lord that we did learn from the events of 1991, one lesson being the importance of much better record-keeping. I can confirm that Gulf War syndrome inasmuch as it exists—that is, the higher propensity which we acknowledge of the occurrence of a certain range of symptoms—did not recur in subsequent engagements.

There has been a general statement that we have done little research. The MRC has undertaken a lot of research—about £9 million-worth. I was asked if we have done any since the publication of the RAC. No, we have not, because we reached a position where we felt that the only useful ongoing research was that which related to rehabilitation. The suggestion that we have not been concerned to learn from what has been happening in this community is simply not true. The medical assessment programme based at St Thomas’ Hospital was open to all service men and women who took part in the Gulf War, and some 3,000 veterans were seen by the MAP as a result. We have been very sensitive to the importance of learning from that and ensuring that any symptoms were tracked.

I was also asked about the number of past cases. In 2007 the Government conducted an exercise looking at some 1,375 claimants of a war pension or a gratuity. The total number of veterans in receipt of disability benefit that is not necessarily anything to do with Gulf War syndrome per se is some 4,600.

The Government’s position on Gulf War veterans has been stated on many occasions. Please be assured that we do not ignore our veterans, but I regret that I am unable to comment on the report from the Institute of Medicine because it has not yet been released. However, I understand that work has been concluded and the findings will be published on 8 April. MoD officials will consider any findings carefully. One of the first things that the Government initiated on coming to power was to commission new research into Gulf War-related illness. As I said, we have to date spent some £9 million on that research. This research has arrived at the same conclusions as the independent Medical Research Council report in 2003; namely, that there is no evidence from the UK or international research that a single syndrome is related specifically to service in the Gulf. The anticipated US report is expected to summarise and report on peer-reviewed scientific literature published since the institute’s last report in 2006. The Research Advisory Committee report on Gulf veterans’ illnesses, which was published in 2008, falls within this timeframe.

Noble Lords will be aware that the Vaccines Interaction Research Programme was an in-depth examination of the potential adverse effects of the combination of medical countermeasures administered to troops during the 1991 Gulf conflict. The overwhelming evidence from the programme was that the combination of vaccines and tablets offered to UK forces would not have had an adverse health effect. I know that exposure to organophosphate pesticides and the use of nerve agent pre-treatment tablets during the Gulf conflict is of concern to some veterans, and the MoD continues to monitor ongoing research in these areas. However, the overwhelming evidence from scientific literature shows that there were no adverse effects following the administration of NAPS tablets or any evidence of acute exposure to OP pesticides during the deployment of UK troops in the Gulf in 1991.

I turn to the events in Khamisiyah. The accidental release of nerve agents provides clear evidence of why it was so important that the Ministry of Defence provided UK service personnel with NAPS tablets prior to the start of the operation in the Gulf. In January 2005, the Ministry of Defence announced the publication of a paper entitled Review of Modelling of the Demolitions at Khamisiyah in March 1991 and Implications for UK Personnel. The purpose of the paper was to evaluate work undertaken by the US Department of Defense which modelled the distribution of nerve agents released by the US demolition of Iraqi chemical weapons at the end of the Gulf conflict and discussed its implications for UK personnel. Approximately 9,000 UK service personnel may have been within the area of possible exposure, with the closest some 130 miles from Khamisiyah. However, the level of nerve agent would have been too low to have any biologically detectable effect.

We are always willing to consider credible new evidence. The overwhelming consensus of the scientific and medical community is that there are too many symptoms for the ill health reported by veterans to be characterised as a syndrome according to the strict medical definition. However, we acknowledge that that the phrase “Gulf War syndrome” has become widespread. We reviewed our position and accepted it as an umbrella term.

It is good of my noble friend to give way, and I am most grateful to all noble Lords who have spoken in the debate. Before the Minister concludes, I must again make it utterly clear that the senior programme officer of the Institute of Medicine in the United States has stated categorically that the RAC’s report was not referred to the IoM for peer review, that it has not peer-reviewed the report and that it will not be doing so. There will be no report on 8 April. There will be a statement from the IoM on 9 April, and I cited Secretary Shinseki to the effect that he has not awaited the outcome of the IoM’s comments to take his decisions. I hope that noble Lords will look at the statements I made this afternoon because it is important that we should not misrepresent American organisations of high standing. Secretary Shinseki has made important statements about the future and his change of policy. They are easily checkable by telephone and must be heeded in any steps taken here as a result of this debate.

I thank my noble friend for his intervention. As I said, we will always be sensitive to any information that comes forward. A report will be published on, we believe, 8 April. We will then see the extent to which it comments on the RAC and to which that improves our understanding. If it improves our understanding, we will act accordingly.

Veterans experiencing ill health as a result of their service should rightly expect our support, and we remain committed to delivering it. Veterans have access to a range of support services, including the medical assessment programme that I mentioned, which has been used by 3,500 veterans. Data from that programme continue to support the results of previous research. Gulf veterans seen as part of the programme complain of symptoms similar to those complained of by the general veteran population. No unusual pattern of disease emerged, nor is there any evidence of unusual neurological or other disorders among Gulf veterans. The same high standards of medical care and treatment under the National Health Service is therefore appropriate for them, as it is for other veterans.

One area where we are looking specifically at the needs of Gulf War veterans is rehabilitation. We have initiated specific research into rehabilitation therapies for those with persistent symptoms. This work is being conducted by Cardiff University and is expected to conclude in 2012. There is no doubt that very real progress has been made since 1997. I am pleased to say that our depth of knowledge about ill health reported by Gulf veterans is now much greater and our delivery is good.

I touch on one or two of the comments that the noble Lord, Lord Luke, made. He felt that the RAC report was compelling. Much professional opinion does not regard it as quite so compelling, but we will have time to reflect on it in the light of whatever is published. He said that we are talking about fatalities. That is clearly a very important issue. Each year—the document is dated 31 March, though I am not sure when it is published, but shortly thereafter—we look at all the people who have served in the Gulf. We look at a sample of service personnel and a matched sample of the general population. The fatality rate among the two populations of service personnel—those who went to the Gulf and those who did not—is slightly less for those who have served in the Gulf. However, there is not a major statistical difference. The figures are substantially the same. The rate is, of course, significantly less than for the general population because service personnel are generally healthier. This study has not as yet led to any statistical conclusions on fatalities. We will repeat the study every year so that we can assure society that we believe that this information continues to be valid and true.

The noble Lord spoke about costs. It is difficult to see how the Government would incur more costs because the essence of our reaction is to ask how much disablement has occurred. If we find a different relationship in this regard, that may of course change things, and we never close our minds to this; but the essence of our reaction is not what the label is but the extent to which the citizen cannot manage in their day-to-day life. That is what our system is based on.

I hope that noble Lords will forgive me for speaking for so long. This is a very important issue and I assure noble Lords that we take it seriously. I thank noble Lords for their concerns and their representations on these matters, which affect people to whom we owe a great deal. I assure noble Lords and the people concerned that the Government remain committed to helping them. We await with anticipation the report of the Institute of Medicine. I assure all noble Lords that we will consider its findings carefully.

Sitting suspended.

Crown Dependencies and British Overseas Territories

Question for Short Debate

Asked By

To ask Her Majesty’s Government what rules and conventions govern whether the extent clauses of Acts of Parliament implementing treaties which the United Kingdom has signed extend to particular Crown Dependencies and British overseas territories.

My Lords, should this debate not run for an hour, the Committee will adjourn during pleasure so that the next debate can start at half-past five. Should there be a Division, we will of course adjourn for 10 minutes, and time can be added on to the time for the Question for Short Debate so interrupted.

My Lords, in many ways this is a debate about a minor issue, but one which is not at all unimportant. I have on a number of occasions raised the question of the extent clause—usually on the fourth, fifth or even sixth day in Committee, at about a quarter to 10 at night when everyone else wanted to go back—and, not surprisingly, have not got very good answers. There is very often obscure wording about an obscure and not very central relationship.

When I raised this some months ago on the borders Bill, the Minister responsible told us a great deal about the problems of maintaining a secure border between the United Kingdom and Northern Ireland, but he seemed unable to cope with my questions about how we made sure that the maritime border between the Channel Islands and the continent—a fairly narrow border—could somehow be managed and did not pose the same sort of problem for us. Clause 323 of the Marine and Coastal Access Bill was also extremely unclear to us. It proposed that some parts of the legislation should apply to the Bailiwick of Jersey but not to Guernsey, and to the South Atlantic overseas territories but not to the Caribbean overseas territories, let alone the British Indian Ocean Territory.

On the principle that Parliament should not pass legislation unless we understand what it means and, even more strongly, that Ministers and officials should not attempt to get us to pass legislation unless they can explain to us what it means, I thought that now was the time to raise this short debate. Perhaps I may quote someone to whom I spoke about the Committee stage of the Marine and Coastal Access Bill. I was told:

“It is the settled view of officials within Defra that they do not wish to address this issue”.

I understand what they meant by that; it was a very minor issue and there were a huge number of other issues. However, that is part of the problem with the Crown Dependencies and the overseas territories. They are not a central issue for anyone except the relevant bits of the Ministry of Justice. However, as globalisation and international legislation expands, the Treasury, Defra and a whole range of other departments across Whitehall increasingly find themselves dealing with issues that overlap into the Crown Dependencies and the overseas territories.

The relationship between these territories and the United Kingdom is, as we know, relatively loosely defined. I see that the fifth edition of Bennion’s Statutory Interpretation clearly states:

“As the sovereign legislature of that part of Her Majesty’s dominions, the United Kingdom … has the same undoubted power to legislate for the Channel Islands”—

and the Isle of Man—

“as it has for any other part of those dominions … ‘in modern times the legislation for these islands has generally been by act of parliament’”.

Actually, legislation for those islands is usually by Order in Council, and what we get in the extent clause is that:

“Her Majesty may by Order in Council”,

agree to extend. Certainly, from talking to people in the Crown Dependencies, one learns that that is a matter of consultation. Again, we are entitled to know what consultation means in that process, who takes the actual decision at the end of the consultation and whether it is left to the choice of the Crown Dependencies and overseas territories authorities or whether, in the last resort, Her Majesty’s Government have the final say.

I have talked to people in the Channel Islands on many occasions, and I am conscious that many of them wish the relationship to be left unchanged, but I recall the first piece of evidence given to the committee in another place—whose report will, sadly, not be published until tomorrow morning—as stating that the sheer weight of international legislation from the European Union, the Financial Action Task Force, the OECD and a range of other global and multilateral negotiations and agencies is such that it is impossible for the relationship between the Crown Dependencies, the United Kingdom and the EU to remain as it has. That is even more the case for some overseas territories whose administrative capacities are even more limited than those of the Crown Dependencies.

The multilateral agreements that Her Majesty's Government sign for the overseas territories and Crown Dependencies cover such issues as nuclear materials, drug smuggling, people smuggling, environmental treaties—an increasingly important and complex area—economic sanctions, financial regulation and fraud and the International Criminal Court. They cover a whole host of matters. That is likely to increase further as negotiations proceed.

I have just spent the weekend in Brussels, at a transatlantic conference at which the head of the World Bank assured us that global financial regulation covering tax evasion, tax avoidance and a whole range of other issues was moving rapidly and will continue to move further. Many of our overseas territories and Crown Dependencies are now significant offshore financial centres. Those matters matter for them. They have negotiated with Her Majesty's Government that their international identity shall be respected and that Her Majesty's Government will on occasion provide representation for them, recognising that their interests are not always identical to those of the United Kingdom. That opens up another set of uncertainties, including how the United Kingdom provides such representation in highly complex and technical multilateral negotiations: how it manages to ensure that the dependencies and territories are regularly informed of what is being said and how correct it is for Her Majesty's Government to represent interests which are not their own in those circumstances. There is of course the minor question of who pays for the cost of that representation, which is another issue that I do not want to raise further at this point.

Tiny Crown Dependencies and overseas territories are now operating in a global system of regulation—not all of them with the capability to represent their interests, to take part in negotiations or to ensure the implementation of obligations to which Her Majesty's Government have signed up. They raise a number of questions that this Parliament ought from time to time to consider.

It is, after all, the stated belief of Her Majesty's Government and the Department for Communities and Local Government that the minimum efficient level for a local authority in Britain is somewhere between 150,000 and 250,000. Crown Dependencies and overseas territories are all way below that level. In effect, they are like county councils running international activities on a very large scale. Her Majesty's Government are responsible for the good governance of the Crown Dependencies and the overseas territories. Her Majesty's Government sign international treaties and conventions on climate change, on financial crime, and on immensely complex international cases. I recall a recent case in Jersey where a well known drug smuggler who had been released from prison in the Netherlands was tried in Jersey for a drugs scam which involved several different countries and is now in prison in the United Kingdom. Jersey is now necessarily dealing with a whole range of different countries even in one case. I am conscious that a great deal of important litigation is under way in the courts in the Crown Dependencies.

When we have consulted the overseas territories and the Crown Dependencies and have sorted out how far, in signing international conventions, Her Majesty's Government are signing on behalf of all the territories under Her Majesty's dominions and are therefore responsible for implementing them throughout Her Majesty's territories and dominions, how do we ensure that the Crown Dependencies and overseas territories implement them? How do we check on the quality of that implementation?

My Lords, the constitutional standing of the Crown Dependencies and the overseas territories has always seemed to me to be very mysterious. That is largely due to the fact that the Executive and legislature in the United Kingdom are not separated in the way that happens in many other countries, such as the USA or France. The Prime Minister and his Ministers are the chief officers both of the Executive, when exercising royal prerogative, and of Parliament, when it is legislating. The boundary between the exercise of the royal prerogative and the exercise of the power to legislate is extremely obscure.

Let us start by considering the Channel Islands and the Isle of Man. They have never been part of the United Kingdom, but they have come under the control of the sovereign of England or, since 1707, the sovereign of Great Britain or the United Kingdom. One would expect, therefore, that the royal prerogative could be exercised over the Channel Islands and the Isle of Man, but not parliamentary powers. That is not how it works out. That is to some extent recognised by the fact that in many cases where an Act of Parliament has been extended to the Channel Islands or the Isle of Man, that has been done by creating a power in the Act to extend it to the Channel Islands or the Isle of Man by Order in Council.

My noble friend Lord Wallace of Saltaire referred to Orders in Council. In constitutional theory, the Order in Council is an exercise of the royal prerogative, not of the parliamentary power of legislation, but we frequently find that an Order in Council is subject to scrutiny by Parliament—using the negative or affirmative procedure, but definitely involving scrutiny. A good example of that is Section 224 of the Extradition Act 2003. Sometimes, the Act operates directly without an Order in Council—for example, Section 152(6) of the Criminal Justice and Immigration Act 2008.

Are there any rules and conventions which cover the extension of treaties to the Channel Islands or the Isle of Man under an Act of Parliament implementing those treaties? If so, what are they? Does the same principle apply to overseas territories, such as Gibraltar, the Falkland Islands, Bermuda or the Cayman Islands? What was the process, for example, by which Gibraltar became part of the United Kingdom for the purposes of the European Union, but the Channel Islands and the Isle of Man did not? The British Overseas Territories are dealt with differently from the Crown Dependencies. Very rarely are the provisions on the face of an Act of Parliament directly extended to overseas territories, but Acts of Parliament do sometimes do that and still have an important role.

Whenever independence, for example, is to be conferred on a colony, there is an Act of Parliament to do this. If we look back 75 years to 1935, the immensely important Government of India Act of that year was passed and put India some way forward on the road to independence. Acts of Parliament traditionally had, in some respects, provisions to deal with what was happening in the colonies or what used to be the empire.

If Bermuda sought independence, as from time to time it has suggested that it might, presumably there would have to be a Bermuda Act. But, again, what is the procedure for legislating against the use of Grand Cayman for tax avoidance? What is the power, for example, that enabled the Government to remove from office politicians in the Turks and Caicos Islands on the grounds of corruption? What is the constitutional position of the British Overseas Territories? Does Parliament have more power, or less or the same, as it does in relation to the Channel Islands and the Isle of Man? How far can Parliament legislate for these territories, or is that something which is normally left to the FCO or some other part of the Executive?

My noble friend Lord Wallace of Saltaire has raised an interesting and quite important subject. The answers to many of the questions that he and I have raised is notably obscure, and I think we need a better explanation of what the rules are in these matters and what is the reasoning behind them.

I am grateful to my noble friend Lord Wallace of Saltaire for raising this issue. He asked an important question which forms the theme of what I want to say, and that is: what does “consultation” mean when it comes to the extension of treaties? My noble friend Lord Goodhart has said that the relationship between the United Kingdom and its overseas territories and Crown Dependencies is somewhat mysterious. That, I think, is because it has grown up in an ad hoc way as a result of the various compromises, fudges and deals that have been done between the domestic legislatures of the various territories and the Crown and Governments over many years.

They are very diverse. The Cayman Islands are wealthy with a gross domestic product of nearly $50,000 per capita, which is certainly higher than it is in this country. They are a major banking centre with more than a trillion US dollars invested in assets, which makes the islands by some measurements the fifth largest centre in the world. They also have 80 per cent of the headquarters for hedge funds. All of this is based in an overseas territory which has been so badly governed that the legislature has been sacked and, for a period of two years, it is being run directly by the Government of this country. That is a complete paradox. Bermuda, referred to by my noble friend Lord Goodhart, has had its own legislature since 1605, so it is a very different sort of place. I mention also Pitcairn, which is inhabited by fewer than 50 people. These are certainly diverse territories.

How are these treaties to be extended to them? So far as the British Overseas Territories are concerned, the Foreign and Commonwealth Office has issued guidelines on what sort of consultation should take place. In asking why the overseas territories should be consulted, the answer is that it is a matter of good policy and administration, and that the views of those in the overseas territories may be required to formulate the United Kingdom negotiating position on a treaty.

The next question concerning the guidelines is: when? They state that,

“consultation ... should occur during the course of negotiation of the treaty, if the subject of the treaty is relevant to the OTs”,

so that the Governments,

“can be made aware of the issues and can express any views or concerns”.

The guidelines emphasise that overseas territory Governments,

“must be given adequate time to examine a treaty and its implications, with advice as necessary from the UK … It follows that hurried or token consultation is not acceptable, nor is the assumption that an OT is content to accept, and is in a position to fulfil particular treaty obligations because it has not replied to any consultation”.

That is a very valuable guide. How it is applied is another matter. I have two examples here. Protocol 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty, was ratified in the United Kingdom in 2003 and has been extended to virtually all of our overseas territories, apart from the British Virgin Islands, the Cayman Islands and Pitcairn. Why they should have no ratification or extension to them is a complete mystery. That is the purpose of my noble friend Lord Wallace's Question: why to some but not to others?

The United Nations Convention against Corruption was applied in this country by ratification in 2006 and, as the Minister knows, was the subject of much discussion when we considered the Bribery Bill. It has been extended only to the British Virgin Islands. Curiously, it has not been extended to the Cayman Islands, which is where corruption has been established and proved and the Government sacked. It has not been extended to any of the other overseas territories. We are looking for some principle that would ensure that the Foreign and Commonwealth Office guidelines have been followed in relation to all the overseas territories.

I turn to the Crown Dependencies. A fortnight ago, I was fortunate to be able to give some refreshment to the Chief Minister and Chief Executive of the state of Guernsey and to get some grasp of their problems. As I understand it, a framework of international identity was adopted in 2006 between the Crown Dependencies and the United Kingdom. That signifies that the Crown Dependencies have their own international identity and that the United Kingdom will not act internationally on behalf of Guernsey without prior consultation. The United Kingdom recognises the conflict that can exist because the Crown Dependencies have a different status in the European Union from the United Kingdom as a whole. Obviously, there could be a conflict of interest there.

As my noble friend Lord Goodhart pointed out, the United Kingdom Government have entrusted the Crown Dependencies to negotiate and conclude their own international agreements relating to taxation. A matter of great concern to them is effective consultation. I have been told about three examples. On 17 July 2009, there was informal consultation about the United Kingdom’s intended ratification of the United Nations Convention on the Suppression of Nuclear Terrorism. The request was made on 17 July, and they wanted a response by 23 July, with the explanation that the Home Office team needed to confirm the position in advance of the September 2009 annual treaty event. Here was a serious matter, and a week was given for consultation. On 26 February 2009, the Ministry of Justice sought a response by the next day in respect of work that was being undertaken by Defra on an EU regulation on substances that deplete the ozone layer. How on earth were the States of Guernsey Government expected to respond overnight on the issue of depleting the ozone layer? It beggars belief.

The draft Iran (United Nations Sanctions) Order 2009, which was to be made on 8 April 2009, was forwarded by the Ministry of Justice on 1 April 2009, accompanied by the comment that the opportunity to feed into the order had now passed. The Government of Guernsey were told about it a week before it was to be made, but told that they could not do anything about it because the opportunity to make any representations to the Government had passed. This brings me to the critical point that I would like the Minister to deal with. I have referred to the guidelines that the Foreign and Commonwealth Office has published on extension of treaties to overseas territories. Has the Ministry of Justice, which for some reason has been asked to look after the Crown Dependencies, issued similar guidelines? Why is there a difference?

When I was asked to meet the Chief Minister of Guernsey, I said: “Why me? I have never been there in my life”. Then, to my surprise, this turned out to be a Ministry of Justice responsibility: I had not known that. That cost me a tea in the House of Lords restaurant—which was fine, because I learnt why I was being approached. I hope that I have been able to convey some of the concerns that were expressed to me, then and afterwards, about the lack of consultation. There is no point in having this framework in place if it is simply ignored. I await with interest what the Minister will say about that.

My Lords, the noble Lord, Lord Thomas, will not have to wait long before we hear what the noble Lord, Lord Bach, says in answer to the questions put by him and other noble Lords, partly because I endorse much of what the noble Lord said. I, too, offered refreshment to the Chief Minister and Chief Executive of the States of Guernsey when they were over here seeing Ministers, my honourable friend Dominic Grieve and noble Lords including myself. I did not know why they were approaching me until they explained that responsibilities had been transferred from the Home Office to the Ministry of Justice. We thought that some of the responsibilities had not even been with the Home Office, but had been with the Foreign Office—

Is that right; it was with the Lord Chancellor? Anyway, they are now with the Ministry of Justice, which is why we are dealing with them today.

My first point deals with extent clauses. I agree with the noble Lord, Lord Wallace of Saltaire, that one does not get very good answers about such clauses because they often come towards the end of a Bill, which, as the noble Lord reminded us, comes fairly late at night on the last day. I remind the noble Lord, Lord Wallace, that we will have an opportunity to discuss many of these matters, certainly in relation to treaties, when we reach Clauses 24 to 28 of the Constitutional Reform and Governance Bill, which is scheduled for a Committee stage in due course. No doubt the Minister will be able to assist us on its timing when he responds, because that deals with treaties, and it should not be beyond the wit of man to table amendments to tease out the questions that the noble Lord wishes to ask.

As has become clear from the various questions, the relationship between the United Kingdom and all these different territories is pretty loosely defined and rather varied. We have the British Overseas Territories, which are mainly relatively small former colonies, and we then have the various Crown Dependencies, which again have rather different origins. The Channel Islands presumably spring from the Monarch’s role as Duke of Normandy. The Isle of Man is again somewhat odd. There used to be a figure called the Lord of Man. I believe that Lord Derby in the past was Lord of Man and somehow that was transferred to the Crown, but again the noble Lord, with all he has behind him, will be able to explain the relationship between the Isle of Man and the United Kingdom and how it varies from that of the Channel Islands.

We then have Gibraltar which, as the noble Lord, Lord Wallace, pointed out, is now in the EU, as neither the Isle of Man nor the Channel Islands, in their three different states, is. On top of that, within the European area, we have the sovereign base areas in Cyprus, which again presumably have some other relationship, although I do not know how that comes in.

The territories are all varied in their origin, size and populations. As the noble Lord, Lord Thomas, pointed out, we have some as small as Pitcairn, with a population of barely 50; the British Antarctic Territory, which I imagine has no permanent population at all; and then some with populations of 70,000 or 80,000 or more which have had self-governing Assemblies of some sort or another, such as the one in Bermuda since 1604. They are varied in many different ways, and I rather welcome the diversity. I suspect that the Liberal Democrats do not like the untidiness that this seems to represent, but I would suggest that we should leave these arrangements in place as long as we can be fairly sure that there is a degree of good governance and a means of ensuring—such as those in the Cayman Islands—that things are run properly when the arrangements go amiss.

I was going to say a little more about the States of Guernsey because, as I said, I was also consulted by them and received a similar briefing to the one that the noble Lord received. It was right of him to underline those problems of consultation in which they were given such a short time to respond. I hope the noble Lord will give an assurance that in future they will have more time and ensure that the consultation is fair and proper.

I think that that deals with all the points that I wanted to raise, and I very much look forward to hearing from the Minister who in the department has specific responsibility for some of these issues—and Guernsey is certainly one of them. Perhaps he can assure us that the next necessary consultation will take place in exactly the right manner.

First, I congratulate the noble Lord, Lord Wallace of Saltaire, on securing this debate. Parliamentary time is at a bit of a premium at the moment—I am not sure why—but he has done extremely well in getting this debate going. I know from talking to him and reading what he has written that he has had a real interest over many years in Crown Dependencies and overseas territories. I thank him on behalf of the House for raising this today, and I also thank other noble Lords, of course, for their interesting and informative contributions.

I, too, entertained the Chief Minister of Guernsey, whom I am glad to say I know very well. I am delighted for both the noble Lords, Lord Henley and Lord Thomas of Gresford, that his visit took place and that he had conversations with them. Otherwise, both noble Lords would have been shocked, when this debate was scheduled on the Order Paper, to find out that they were expected to speak for their respective parties.

I am grateful to the noble Lord for giving way. I feel extremely aggrieved that I was not invited to tea.

Perhaps I may add to that. The Chief Minister and chief executive had had so many teas that they were unable to eat anything.

Perhaps I can tell the noble Lord why. Not only did I have a cup of tea in the House with the Chief Minister, he was also invited to the parliamentary all-party annual football dinner on the first night that he was in London. I was glad to go along with him: he is a keen football fan and enjoyed it very much.

The noble Lord, Lord Henley, is right to say that I have responsibility, under the Secretary of State and Lord Chancellor, for this part of the department's duties. The Committee will know that the Ministry of Justice is responsible for relations with Crown Dependencies, and that Her Majesty’s Foreign and Commonwealth Office is responsible for overseas territories. I respond today on behalf of both departments.

The UK is responsible for the international relations and defence of the Crown Dependencies. As has been said, they are not sovereign states. We are responsible for their international relations, and ultimately for their performance of international obligations. They are not part of the United Kingdom and are not represented at Westminster. They are self-governing: each has its own democratically elected Parliament, its own machinery of government and its own justice system. Their legislatures make their own domestic legislation, and Acts of the UK Parliament do not automatically apply to them.

While the constitutional position is different, the overseas territories are also separate jurisdictions, which constitutionally do not form part of the metropolitan United Kingdom, unlike the situation across the Channel. The residents of most territories are served by their own local legislatures, which were established under their respective constitutional arrangements. It is a long-standing convention that UK legislation is not normally extended to Crown Dependencies without their consent. In circumstances where it might be considered appropriate or desirable for UK legislation to extend to the dependencies, the usual practice is to consult them on the Bill and seek their views on whether and how provision should be made for it to extend to them. The overseas territories are not normally consulted on whether a general territorial expansion provision should be included in the Bill—the decision is taken by the UK Government—but it is the practice to consult them before such a provision is used to extend an Act to them.

Where we intend to extend the Bill to the territories, there would usually be prior consultation with them. It is recognised that each Crown Dependency and each overseas territory may have particular reasons for wanting or not wanting UK legislation to extend to it. For example, depending on the subject matter and the circumstances of the dependency or territory, including its own domestic legislative framework and constitutional responsibilities, it may decide that it would be preferable to enact its own similar legislation, instead of having the UK enactment extended to it. I hope that this goes some way towards explaining why any piece of UK Parliament legislation may not extend or permit extension to any or all of the territories and dependencies.

I move on to the question of international agreements. Being legally non-sovereign, the Crown Dependencies and overseas territories do not have international personality, and so cannot enter agreements of their own accord with sovereign jurisdictions. However, the UK can and does enter into such international agreements on their behalf; and where the UK ratifies a treaty or agreement, often it can also extend its ratification to include one or more of the dependencies or territories.

Where this occurs, we, the UK, retain responsibility in international law for all their international obligations. In general, when the UK is considering ratifying a treaty or convention, the Crown Dependencies and the overseas territories are consulted about whether they wish the UK’s ratification to be extended to them. As and when the UK ratifies the treaty or convention, it will do so on behalf of the United Kingdom of Great Britain and Northern Ireland and any of the Crown Dependencies or overseas territories that wish the treaty to apply to them.

However, it is not always possible to include the Crown Dependencies or the overseas territories in the instrument of ratification, even though they may wish that treaty or convention to apply to their jurisdiction. Generally, this will be because they do not yet have the necessary legislation or other measures in force to enable them to comply with the obligations under the treaty. Rather than require them to work to the UK's ratification schedule, which may not be practicable for them or for us, the United Kingdom will sometimes extend its ratification to include them at a later date, once they have the necessary legislation or other arrangements in place.

The noble Lord, Lord Wallace of Saltaire, will know better than I that many, if not most, treaties are silent on territorial application these days. Only the European conventions and some others have territorial application provisions. Whether extension is to happen at the same time as the UK’s ratification or later, I assure noble Lords that there will be no extension unless and until the UK Government are satisfied that the dependency or territory concerned has all the necessary law or structures in place to meet the obligations of the agreement.

The UK is clearly supportive of the dependencies’ and territories’ understandable desire to promote their identity and reputation on the international stage, and the extension of international agreements to them is obviously an important aspect of that. Having said that, it is recognised that a particular dependency or territory may have good reason for not wishing to have an international agreement extended to it at a particular point, depending on factors such as the subject matter of the agreement, the domestic legal framework in the dependency or territory and the wider context. There may be some situations where we in the UK have a stronger interest in seeing an agreement extended to the dependencies or territories. In these circumstances, we would seek to follow the established process of constructive engagement with the dependency or territory with a view to achieving this.

The noble Lord, Lord Wallace, invited me to comment on the position where there may be a difference of opinion. If the UK and a Crown Dependency have a different position, we—that is, HMG—reflect that with the international partner. We invite the Crown Dependency to represent its own view to that international partner. For example, that happened between Guernsey and Iceland a few months ago.

We believe that, on balance, the arrangements that I have outlined continue to work well to the mutual benefit of the UK and the Crown Dependencies and overseas territories. As the noble Lord, Lord Wallace, said in his opening remarks, it is true that, just like us, the dependencies and territories operate in a fast-moving, ever-changing globalised economy. That relationship must evolve to reflect those changes.

Therefore, the UK sometimes gives the Crown Dependencies and overseas territories a measure of independence in their international engagement by the process noble Lords will know as “entrustment”. It is increasingly the case that dependencies and territories may, in some circumstances, run their own negotiations with other states under the entrustment, and so the ultimate control, of the UK. Under entrustment, Crown Dependencies and overseas territories may negotiate and conclude agreements with certain sovereign states, but only with the terms and conditions of a letter of entrustment issued to their Government under the signature of the appropriate UK Minister which, where appropriate, includes a requirement that the text of the agreement is submitted to the relevant Whitehall department for approval. This process has been used widely to enable territories and dependencies to conclude tax information exchange agreements and some other related agreements. We are looking at ways in which the scope of entrustment may be widened to dependencies.

The systems of government in the Crown Dependencies and the overseas territories may be somewhat different from those in the UK, but one size certainly does not always fit all. We believe that the dependencies and territories have an appropriate degree of flexibility to allow them to decide what will and will not work in their unique situations. The overseas territories are very different from each other. I emphasise that the UK Government keep a close eye on which treaties are excepted and when it would be desirable for others to be extended.

Before I finish, I need to deal with some questions. The noble Lord, Lord Wallace, asked how we make sure that territories and dependencies comply and about the quality of implementation. Any UK legislation extended to the Crown Dependencies is registered by the islands’ authorities. That ensures that the provisions have been applied to the jurisdiction beyond any reasonable doubt. It also serves as a formal notification to the island communities that the legislation now applies there and reinforces its application. Before any international instrument can be extended to any of the Crown Dependencies, we must be satisfied that the island concerned already has the necessary frameworks in place to perform the obligations that will be extended. Making that judgment is likely to involve scrutiny of their legislation to ensure that it will support extension of the international instrument in question and that they fulfil their reporting obligations under any international instrument to which they are a party.

Can we intervene to ensure that overseas territories meet their international obligations? We maintain close contact with territory governments to ensure just that. Where it appears that a territory Government may be breaching international obligations, we would take up the matter with that Government to encourage them to take remedial action to comply. If that does not happen, we may, where appropriate, legislate for the territory by Orders in Council to ensure compliance. That is one of the issues about which the noble Lord was concerned. That would be a last resort, where the overseas territory would not or could not act to remedy the position itself. We work with the overseas territories to ensure full implementation of existing conventions applicable to them.

I apologise for interrupting, but what happens if the overseas territory lacks the capacity to implement the obligation? I am thinking of the huge issue of marine conservation for which the overseas territories—mostly islands—have large responsibilities. I happened to be listening to an American admiral a few days ago talking about the huge problem of enforcement on the oceans. Very few of our overseas territories begin to have capacity to enforce the obligations that we are taking on in these international conventions for marine conservation. How do Her Majesty’s Government cope with that sort of issue?

I hope that I will have some detailed advice on that in a moment, but I understand that we do not extend international treaties that we enter into to the overseas territory unless we are sure that it can play its part in implementing the treaty. That is exactly why we do not extend all treaties to all territories—for the very reason the noble Lord gave, they do not all have the capacity.

I am conscious that I have spoken for much longer than I should have, but I think that we are still within the allotted time. I shall try to answer the questions that the noble Lord, Lord Wallace, asked me arising from his tea and briefing with the Chief Minister. I acknowledge that from time to time there has been a problem with late consultation. It has largely been caused by departments discovering only at a late stage that a task on which they are working may have implications for the Crown Dependencies. By the time they approach us at the Ministry of Justice, there is sometimes very little time left for the islands to respond. However, I make clear that this is by no means always the case. There are some very good stories of officials in government departments being very keenly aware of the need to take the Crown Dependencies’ interests into account. We accept, however, that there is still work to be done in this field. We are developing documents which, among other things, set out the responsibilities of government departments towards the Crown Dependencies. One of the examples that the noble Lord gave the Committee related to sanctions orders and Iran. Sanctions orders are rather exceptional. The UK must implement UN sanctions resolutions as soon as possible in respect of the entire territory of the UK, which includes for these purposes the Crown Dependencies and overseas territories. Therefore, it is not always possible to offer as much time for consultation as we would wish to give on other draft orders.

I hope that there is one message that we may take away from this short debate—that those of us who look after the UK’s relationship with the Crown Dependencies and overseas territories take our responsibilities and international obligations seriously. I am confident that the constitutional relationship with the dependencies and territories, which is not always easy to describe but which works pretty well, has evolved and will continue to evolve in a way which safeguards our interests and those of the Crown Dependencies and overseas territories.

Sitting suspended.


Question for Short Debate

Tabled By

To ask Her Majesty’s Government whether they will reconsider their position with regard to the recognition as genocide of the events in Armenia from 1915 to 1917.

My Lords, I begin by declaring an interest as chairman of the British-Armenian All-Party Parliamentary Group and as a recipient of various non-financial awards during 69 visits to Armenia and Karabakh. I am grateful to all noble Lords contributing to this debate, which is timely for several reasons. First, the Swedish Parliament and the US Congress Foreign Affairs Committee have recently recognised the Armenian genocide, which was already acknowledged by France, Italy, Poland, Greece, Cyprus, Belgium, Slovakia, the Netherlands, the Holy See, Russia, Canada, Uruguay, Argentina, Lebanon and, I am happy to say, the National Assembly for Wales. Moreover, the Swedish Parliament also recognised the genocide by Turkey of the Assyrian Christian and Greek peoples.

Secondly, last October a significant report was published: Was there an Armenian Genocide? Geoffrey Robertson QC's opinion with reference to Foreign & Commonwealth Office documents which show how British Ministers, Parliament and people have been misled. Thirdly, this year marks the 95th anniversary, and recognition is long overdue. Each unrecognised genocide can encourage subsequent genocides, which is infamously illustrated by Hitler's reference to the Armenian genocide before he began the Holocaust in Poland:

“I have sent my Death's Head units to the East with the order to kill without mercy men, women and children of the Polish race or language. Only in such a way will we win the lebensraum that we need. Who, after all, speaks today of the annihilation of the Armenians?".

Whenever initiatives are taken to encourage recognition of the Armenian genocide, the Turkish Government respond in a way described in a FCO briefing to Geoff Hoon in June 2006:

“Turkey is neuralgic and defensive about the charge of genocide despite the fact that the events occurred at the time of the Ottoman Empire as opposed to modern day Turkey. This defensiveness has meant that Turkey has historically stifled debate at home and devoted considerable diplomatic effort to dissuading any further recognition”.

The price of telling the truth ranges from political and economic sanctions abroad, such as withdrawal of ambassadors, to punishment at home varying from imprisonment to the ultimate sacrifice of murder, paid by the courageous journalist Hrant Dink.

However, refusal to acknowledge the truth prevents any healing for the Armenian people or genuine reconciliation between Armenia and Turkey. It would be healing for the Turkish people themselves for their Government to stop the systematic distortion of Turkish history. Recently, a very courageous Turkish journalist, Ahmet Altan, and a distinguished Turkish historian, Taner Akcam, have restated passionate opposition to genocide denial in Turkey. We hope they will not suffer as a result.

The British Government's position perpetuates a dishonest refusal to acknowledge a historical truth. Geoffrey Robertson QC’s concluding paragraph claims:

“HMG’s real and only policy has been to evade truthful answers to questions about the Armenian genocide, because the truth would discomfort the Turkish government. It can be predicted that any future question on the subject will be met with the same meaningless formula about ‘insufficiently unequivocal evidence’, disguising the simple fact that HMG will not now come to terms with an issue on which it was once so volubly certain, namely that the Armenian massacres were a ‘crime against humanity’ which should never be forgiven or forgotten. Times change, but as other civilised nations recognise, the universal crimes of genocide and torture have no statute of limitations”.

I will briefly address the historical reality. Winston Churchill's account is compelling:

“In 1915 the Turkish government began and ruthlessly carried out the infamous general massacre and deportation of Armenians in Asia Minor ... whole districts were blotted out in one administrative holocaust ... there is no reasonable doubt that this crime was planned and executed for political reasons”.

The then US Ambassador Henry Morgenthau's personal account is devastating:

“The Central Government now announced its intention of gathering the two million or more Armenians living in the several sections of the empire and transporting them to this desolate and inhospitable region”—

the Syrian desert—

“it really represented a new method of massacre. When the Turkish authorities gave the orders for these deportations, they were merely giving the death warrant to a whole race; they understood this well, and, in their conversations with me, they made no particular attempt to conceal the fact.

All through the spring and summer of 1915 the deportations took place. Scarcely a single Armenian .... was exempted from the order … Before the caravans were started, it became the regular practice to separate the young men from the families, tie them together in groups of four, lead them to the outskirts, and shoot them. Public hangings without trial—the only offense being that the victims were Armenians—were taking place constantly”.

The soldiers,

“showed a particular desire to annihilate the educated and the influential ... I was constantly receiving reports”,

of Armenian men marched to a secluded valley where,

“a mob of Turkish peasants fell upon them with clubs, hammers, axes, scythes, spades and saws”.

A guard of soldiers,

“accompanied each convoy ... From thousands of Armenian cities and villages these despairing caravans now set forth; they filled all the roads leading southward ... When the caravans first started, the individuals bore some resemblance to human beings; in a few hours, however, the dust of the road plastered their faces and clothes, the mud caked their lower members, and the slowly advancing mobs, frequently bent with fatigue and crazed by the brutality of their ‘protectors’, resembled some new and strange animal species. Yet for the better part of six months, from April to October 1915, practically all the highways in Asia Minor were crowded with these unearthly bands of exiles. They could be seen winding in and out of every valley and climbing up the sides of nearly every mountain—moving on and on ... every road led to death. Village after village and town after town was evacuated of its Armenian population ... about 1,200,000 people started on this journey to the Syrian desert.

Death in its several forms—massacre, starvation, exhaustion—destroyed the larger part of the refugees. The Turkish policy was that of extermination under the guise of deportation. In one particular death march ... On the seventieth day a few creatures reached Aleppo. Out of the consigned convoy of 18,000 souls just 150 women and children reached the destination ... I have by no means told the most terrible details ... I am confident that the whole history of the human race contains no such horrible episode as this”.

The evidence of state-sponsored massacres and deportations is overwhelming and incontrovertible. I am grateful that the noble Lord, Lord Avebury, will refer to the compilation of systematic and compelling evidence in the Blue Book. But in the face of all the evidence, Her Majesty’s Government’s position was summarised as recently as 4 March 2008 by the noble Lord, Lord Malloch-Brown:

“The Government acknowledge the strength of feeling about this terrible episode of history and recognise the massacres of 1915-16 as a tragedy. However, neither this Government nor previous Governments have judged that the evidence is sufficiently unequivocal to persuade us that these events should be categorised as genocide as defined by the 1948 UN Convention on Genocide”.—[Official Report, 4/3/08; cols. WA 165-66.]

In June 2006, Geoff Hoon made the spurious claim that it is not possible to apply the term genocide retrospectively:

“I recognise that it is perfectly possible intellectually to try to apply the definitions of genocide from the convention to appalling tragedies that occurred, in this case, some 30 years before. The common practice in law is not to apply such judgments retrospectively”.—[Official Report, Commons, 7/6/06; col. 136 WH.]

To which Geoffrey Robertson robustly replied:

“This is nonsense. There is no ‘common practice in law’ not to apply the definitions of genocide ‘intellectually’ to tragedies that occur before the convention was ratified”.

He went on to say:

“There can be no logical or legal objection to an authoritative judgment which decides whether the events of 1915 satisfy the 1948 definition”.

I will place a copy of Geoffrey Robertson’s publication in the Library.

One of the gravest consequences of denial is a sense of impunity which extends to the present day in the forcible expulsion of all the Armenians living in Nakhichevan—I was there when some of that was happening—and the systematic destruction by Azeri Turks of priceless Armenian archaeological sacred treasures beyond count, such as ancient crosses, churches and graves, continuing the terrible trajectory of destruction of remnants of Armenian civilisation and culture. Similarly, the assaults on Armenians in Nagorno-Karabakh by Azeri Turks in the 1991 Operation Ring policy was a brutal rerun of the deportations of 1915, until the Armenians in Karabakh resorted to their constitutional right to self-determination. That prompted Azerbaijan to begin full-scale military offensives and attempted ethnic cleansing, an issue for another day.

I return briefly to the desirability of recognition for the Turkish people. Many feel that, in a culture where the concepts of shame and honour carry great weight, it could be interpreted as a mark of honour for a contemporary Turkish Government to acknowledge the historic reality of the genocide carried out by a past government and for which they are not responsible. Turkey would gain respect from the international community if it became an open, civil society, allowing freedom of speech to its own people and respecting the rights of the international community to speak the truth now widely available in scholarly publications and expert legal opinions.

Non-recognition can be interpreted as a denial of a cruel reality which will exacerbate the pain for those for whom the memory of genocide is still raw: survivors, their families and communities. As I am sure the Minister does not wish to exacerbate that pain, would Her Majesty’s Government at least send a representative to attend the 95th anniversary commemoration at the Armenian genocide memorial at the Temple of Peace in Cardiff? Even if the word genocide is not used, that act would convey genuine feelings of sympathy, which would at least be some comfort for those who will be remembering the anguish of their history.

Until or unless the truth is acknowledged, it is not only that justice is denied to the Armenians but that the freedom of the so-called free world is jeopardised. While we have our freedom, we must use it to fight for truth to be acknowledged and for justice to be achieved for victims of untruth and genocide.

My Lords, I am sure that we are all very grateful to the noble Baroness, Lady Cox, for raising not only the subject of the Armenian genocide but its treatment in modern Turkey and the lack of freedom to discuss the issue among Turkish writers, journalists and thinkers. However, in the last few years it has to be acknowledged there has been some relaxation of the total ban on discussion of the Armenian genocide in Turkey, enforced as it used to be by the constitution itself. That was buttressed by criminal sanctions, social ostracism and, in tragic cases such as that of Hrant Dink, who the noble Baroness mentioned, murder.

It was perhaps a consequence of the international furore created by the prosecution, under the notorious Article 301 of the Turkish criminal code, of Nobel Prize-winning novelist Orhan Pamuk that the crime of “insulting the Turkish state” is no longer used systematically against the few brave writers who affirm that what happened in 1915-16 was indeed a genocide. Although no statistics are available of the use of that law, it seems that other laws are being used to prosecute for thought crime, such as Article 216 of the penal code, which criminalises,

“instigating a part of the people having different social class, race, religion, sect or region to hatred or hostility against another part of the people in a way dangerous for the public security”.

There is indeed still a strong taboo on discussion of the issue, and the few dissidents like Temel Demirer or Ragip Zarakolu who speak out are harassed relentlessly. According to the report by the EU Commissioner for Enlargement to the Council last November:

“Turkish law does not sufficiently guarantee freedom of expression in line with the European Convention on Human Rights.... Political pressures on the media and legal uncertainties affect the exercise of freedom of the press in practice”.

As we saw only this month from the extreme reaction to the resolution by the US Congress Committee on Foreign Affairs, formally recognising the Armenian genocide, Ankara’s efforts to suppress discussion of the facts extends overseas. When the BBC asked Turkish Prime Minister Erdogan, who was on an official visit here earlier this month, about the US initiative and a similar, recent vote in the Swedish Parliament using the “G” word, his response was to threaten to summarily deport 100,000 Armenian guest workers from Turkey—reminding the world that it was in the mass deportations of 1915, which the noble Baroness raised, that a million Armenians met their deaths. At the moment, the Turkish media are getting wound up about a supposed Bill in the UK Parliament providing for a day of remembrance for the events of 1915-16. They do not seem to have realised that Parliament is rising for the election in a few days’ time.

I want to deal specifically with an attempt to bully our own Parliament into silence. There had been regular debates in both Houses about the genocide, many of them starting from the contemporary analysis of the evidence then available, which was published in the Blue Book, The Treatment of Armenians in the Ottoman Empire, 1915-16. That compilation, sourced from missionaries and the consulates of states that were neutral in the war, is by no means the only original source material available today. It has been supplemented by voluminous records such as those published by the US State Department, many now in the public domain in a 700-page book published by the Gomidas Press, and by the memoirs of Americans who were in Turkey at the time, from Ambassador Morgenthau to Dr Ussher, an American physician who was running a hospital in Van at the time of the siege by the Ottomans. There is also a surprising amount of evidence from Turkish sources despite the systematic destruction of incriminating documents; for example, in Vahakn Dadrian’s bibliographical analysis published by the State University of New York.

Perhaps because the Blue Book was the first summary of evidence to reach a wider audience and because of the prestige of its editor, the great historian Arnold Toynbee, the Turkish Grand National Assembly singled it out by addressing an appeal to the UK Parliament in April 2005, labelling it as a piece of fabricated wartime propaganda and asking us to repudiate it. The Speaker sent the petition to the Foreign Office, which wrote a soothing letter in reply saying that the petition had been deposited in the Commons Library. The Turkish media continued to write about the issue through the summer, and in October 2005 some of us held a meeting to discuss a proper response to the TGNA. This was drafted and, after being signed by 33 Members of both Houses—including, I think, the noble Lord, Lord Hylton—it was sent to every Member of the TGNA in January 2006. Not one of them reacted to our proposal that a meeting should be held between Turkish and UK parliamentarians, with academic advisers, to discuss the limited question of the authenticity of the documents quoted in the Blue Book.

At a conference on Turkish-Armenian relations in Istanbul in March 2006, the arch-denialist Sukru Elekdag MP acknowledged that he and his colleagues had received our letter, and said that the reason it had been ignored was that it did not come from all the Members of the UK Parliament. We have written to Mr Elekdag to renew our attempt to hold this dialogue, and the FCO has kindly agreed to deliver the letter to him in person.

In August, we emailed the 400 Members of the TGNA who are online, repeating our proposal for a meeting; but again not one of them responded. We had come up against a brick wall. Then, last summer, what seemed to be a new opportunity for starting a dialogue presented itself to us. The eminent scholar and publisher Ara Sarafian had translated the Blue Book into Turkish, and I had the honour of writing the foreword. The authorities refused to deliver the copies that we sent to every Member of the TGNA, and not one of the intended recipients came to the meeting we held in Ankara. The event was reported briefly and factually by the two main dailies, but they ignored what was said at the launch about getting together to talk about the petition.

I appeal to the Minister to help us to open up this dialogue between British and Turkish parliamentarians on the limited question of the sources for an appraisal of the events of 1915-16, starting with the Blue Book since they first raised the subject with us. Will the Minister facilitate our proposal to hold a meeting between interested MPs from both countries, with their academic advisers, so that in the new Parliament we can help them to open up a part of their history that has been swept under the carpet for nearly 100 years? Will the Minister ask Mr Erdogan to join us in promoting a discussion that the TGNA itself began?

My Lords, I shall make three brief points. From 1915 onwards, it is pretty clear that the Ottoman Government planned and organised deportations and massacres. This was to have been the final solution for the Armenians of Turkey, and alas, it included in its scope—whether intentionally or not—a good number of Assyrian Christians from those parts. The evidence is compelling. Perhaps the most telling point is that it was the Austrian and German consuls in the region who spoke out, even though their countries were allies of the Government of Turkey. If Turkey would now acknowledge its history and apologise, if possible, for the dying acts of the pre-republican Government, honour might be satisfied. That should be preceded—as the noble Lord, Lord Avebury, mentioned—or followed by an end to the prosecution and persecution of historians and writers trying to present the truth from within Turkey.

I conclude by suggesting that the current clamour for attaching the particular label “genocide” to the terrible events that took place is misplaced. It certainly annoys Turks and their Government, and encourages, if anything, the continuance of denial of what happened. It has already harmed the détente that was beginning between Turkey and Armenia, and as has again been mentioned, it has caused threats by Turkey to deport a large number of Armenian workers. It has also diverted attention from the urgent constitutional reforms that many Europeans and others consider necessary within Turkey and has thus hindered Turkey’s application for EU membership.

My Lords, a number of noble Lords have indicated that they wish to speak in the gap. I remind them that this is a time-limited debate and that the time that they use in the gap, of which there is little, will come out of the closing speeches.

I am grateful for the opportunity to speak briefly in the gap. I apologise for having failed to realise that the debate was taking place until now.

I want to contribute because I feel that it is inappropriate to dwell on events of a century ago while the ongoing Nagorno-Karabakh conflict remains unresolved. Currently nearly 1 million Azerbaijanis have refugee status after being denied the right to return to their homes. It is a humanitarian disaster carried out by the Armenians. I would have thought that that would be more relevant instead of self-indulgence about something that happened 100 years ago in the dying days of the Ottoman Empire. I would never suggest that there is a reason or an excuse for multiple deaths and killings on one side or the other, but from my reading, I believe that there was an organised Armenian-Russian attempt in the dying days of the Ottoman Empire, which provoked conflict, and in that conflict equal or comparable numbers of people were killed in pretty harsh circumstances.

In the short time available to me, I suggest that the United Kingdom should remember that in 1922 Kemal Ataturk turned Turkey around. It became our ally. It has been our ally for almost 90 years. During the days of the Warsaw pact and the NATO stand-off, we required, and were grateful for, Turkish participation in guarding the freedom of Europe. For that reason, I believe that like the American congressional committee we should be very careful not to alienate further our Turkish friends. I draw attention to the fact that the American congressional committee voted by a majority of only one in favour of such a resolution. My time is up, but I am grateful, thank you.

My Lords, I, too, will be brief. The history of Europe, and, indeed the world at the moment, is a conflict between Muslims and Christians in many different countries, the most recent example being the slaughter of several hundred Christians in Nigeria. Armenia is a Christian country, and Turkey is a Muslim country. My sympathy would therefore go towards Armenia, because I am a practising Christian. My daughter, through Tear Fund, has done voluntary work there for many months, assisting the people since their freedom from the Soviet Union.

However, as has been said, this is something from 100 years ago. To bring it all up now and clamour—to use the well chosen word of the noble Lord, Lord Hylton—to have it qualified as genocide is unhelpful to the situation between Turkey and Armenia. Of course, there is also the problem of Nagorno-Karabakh, where there have been more recent murders of hundreds of people by the Armenians, supported by other countries. Hundreds were killed and nearly a million Azeris had to flee, so Armenia does not have clean hands.

It is a bit like Cyprus, or Palestine and Israel or, dare I say it, even Ireland: there are arguments in favour of both sides. The best way forward is for the two countries involved to negotiate. I do not see why we in the United Kingdom should think that we, plus the Turks, can solve the problem by holding talks in Ankara, and so on. It is really a matter for Turkey and Armenia to get together to resolve, knowing that hundreds of thousands died on both sides—the Turkish side and the Armenian side.

At the moment, we have some movement. The President of Turkey took the initiative and went to a soccer match in Armenia. That brought about a meeting between the Governments of Armenia and Turkey to try to create movement on the subject. A sub-commission has been set up involving not only Turkey and Armenia but Switzerland and several other countries to try to search out the facts, quietly and diplomatically, not trying to raise the temperature—which this kind of resolution does. We see what happened in America and Sweden. I therefore suggest that it would be better not to support the Motion.

My Lords, much has been said on both sides. As often, as a foreign policy spokesman for the Liberal Democrats, I find myself standing in the middle. In the past few weeks, I have found myself disappointing Turkish Cypriots who wanted me to give absolute and unconditional support to the Turkish Cypriot view of the Cyprus conflict, as I had previously disappointed Greek Cypriots who wanted me to give absolute and unconditional support to their view of the Cyprus conflict. Similarly, I have found myself between Tamil lobbies and the Sri Lankan High Commission, and between traditional supporters of the current Israeli Government and people who feel that we should be deeply committed to the Hamas view of the Palestinian community. Indeed, I have just returned from a conference in Brussels where, this time last year, I criticised the Israeli Government's intervention in Gaza and was accused bluntly by one of Mr Netanyahu's closest advisers of being an anti-Semite for daring to raise the subject.

We know that passions go very high in this area, and we need to tread carefully. I echo what the noble Lord said: we also need to tread carefully to ensure that we do not always support Christians against Muslims or against Hindus. We must recognise that there have been many historical wrongs. It is not just the Turks and the Armenians who do not have clean hands: if one looks back 90 or 100 years, the British Government’s hands were not particularly clean. The responsibility for the Bengal famine during World War II, in which an extraordinarily large number of Bengalis died, was clearly that of our fathers and grandfathers. I was reading about the British Army retaking Delhi after the Indian mutiny, during which we massacred the entire Muslim population. We have not been wonderfully civilised in the past.

We all recognise that the fate of the Armenians during World War I was a tragedy. A huge number were killed or forced to leave their villages. Much of the legacy of Armenian civilisation was lost. I also recognise—because I have been reading about the history of the Caucasus in recent months, as the north Caucasus becomes less and less stable—that this was one further event in the decline of the Ottoman and Tsarist Empires. As I got to know Turkey better in recent years, I discovered that many of the current population of Turkey are the great-grandchildren of people who were expelled from south-east Europe or from the Tsarist Empire. For example, in 1870, the Circassians, who are actively supporting from the outside the revolt in the north Caucasus and the very sad events that are happening there, were offered the choice of expulsion, conversion or death by the Tsar during the final conquest of the northern Caucasus. Sadly, many of them remember it. When one goes to Turkey, one finds oneself arguing with people whose great-grandparents were themselves the victims of expulsion and worse in other parts of the world.

Undoubtedly, there were massacres of Armenians in World War I. There were also massacres of Greeks as the Turkish army, under Kemal Ataturk, managed to expel the Greeks from Smyrna. Had the Greeks won the battle of Smyrna, there would have been massacres of Turks instead. Sadly, that was the nature of the debate.

Now we have the least bad Turkish Government that we have had in my lifetime. I have found myself debating with members of the AK Party on several occasions in recent weeks. This is a Government that is attempting to modernise Turkey, and which is also attempting to open up to Armenia and to its Kurdish minority. It finds itself coming up against—

Perhaps I might ask the noble Lord whether he remembers that Turkey has made an accord with Armenia, with a view to friendship. Perhaps the noble Lord would like to say a word on that, if he has the time.

I am well aware of what is under way. I am also aware of the pressure that the Turkish Government are coming under from what one has to call the deep state within Turkey—the secularists, the judiciary and the army—and the problems that leaves for them in managing to make progress in reconciling with the Kurds and the Armenians as they try to move forward. One has to remember that many of those who conducted the massacre of Armenians were Kurds: there are very delicate memories here.

I support what the Turkish Government are doing. I recognise that they find themselves caught between Azerbaijan and Armenia as they attempt to move forward, and I recognise that that means that Nagorno-Karabakh must be dealt with as part of the package. Both sides committed a number of very unfortunate acts during the chaos of 1990-92 in the south Caucasus—as they did in Georgia. If we are to sort out Nagorno-Karabakh as a compromise between Azerbaijan and Armenia, concessions must be made by both sides.

We should now encourage the opening that is under way and the hesitant steps that the Turkish Government are making towards a more open and civilised society. I wish that they were moving faster, but I recognise the obstacles that they face within Turkey—particularly within the Turkish state. We should encourage the Armenian Government, the Azeri Government and the Turkish Government to come to more open and friendly relations.

My Lords, it is always a pleasure to follow the noble Lord, Lord Wallace of Saltaire, especially on historical debates. The Hamidian policies which were enacted and the massacres which were repeated in 1895-96, 1909, 1915-18 and 1920-22 formed a truly horrendous period in Armenian history. I thank the noble Baroness, Lady Cox, for initiating this Question today.

As we know, the Ottoman Empire massacred up to 1.5 million people in 1915 alone. The Armenian population was annihilated in the most cruel and barbaric way. The events were an appalling crime against humanity and a terrible tragedy for the Armenian people, and they can never be forgotten. We must learn from the past, move forward and do all that is in our power to help and support Turkey and Armenia to move forward so that they have a better chance of a better future.

Turkey and Armenia have initiated a diplomatic protocol between them, for the first time in their history, which promises to establish and develop better relations between the two and to formalise an official investigation into the past. This is a constructive step. However, the process has stalled, despite pressure from the US and EU, amid mutual accusations by Turkey and Armenia of attempts to modify the deal. Neither Parliament has yet approved the protocols. Armenian President Serzh Sargsyan has said that the Armenian Parliament will ratify the deal as soon as Turkey does, but he has also threatened to walk away from the protocols if the Turks fail to honour them,

“within the shortest period of time”.

Does the Minister agree that it would be a catastrophe if the progress made so far by both countries were to stall? What are the Government doing to support these countries and persuade them to work together, and to persuade both Parliaments to co-operate and ratify the deal as soon as possible? In light of the pressure that has already been applied, to date with limited success, what new plans have the Government drawn up to help with this issue?

Relations have also been soured this month by Tayyip Erdogan's threat to deport thousands of Armenian migrants working illegally in Turkey. What is the Government's assessment of this situation and how are they helping to calm tensions over this matter? Can the Minister tell the Committee what discussions have taken place with Turkey and Armenia's neighbours to make them aware of the importance of their role and support in easing friction between the two countries?

It is widely accepted that the prospect of European Union membership is helping to drive reform within Turkey, and that this process of change is a constructive way for it to examine its past in this area. The criteria for EU membership demand that a country should be, in effect, a liberal democracy subject to the rule of law. We on these Benches believe that the process of change in society and politics which the criteria for EU membership involve is the best context for Turkey to examine the Ottoman Empire’s past in this area. What discussions are Her Majesty's Government having with representatives of the EU and Turkey to help the country meet these criteria and progress to its accession to the EU?

For us and the outside world to label such events, and pass judgments, changes very little. The best way to arrive at the historical truth and to reconcile the descendants of perpetrators and victims is for there to be a free and open historical debate. I urge the Government to do all they can to assist and support both parties in this process.

I thank the noble Baroness, Lady Cox, for initiating this debate and for her assiduous pursuit of challenging issues such as this one. I also thank noble Lords who have participated so ably in this debate.

At the outset, I reaffirm that the Government deeply regret the deaths of hundreds of thousands of Armenians who were either killed by Ottoman troops or died from starvation or disease at the beginning of the previous century. We share the view expressed today that the victims of such suffering should not be forgotten. The fate of ethnic Armenians and smaller Christian minorities, including the Assyrians, living in the Ottoman Empire at the time was roundly and robustly condemned by the British Government.

I confirm that the position of the Government is to continue to work for rapprochement and reconciliation between Turkey and Armenia. In October 2009, two protocols were signed by the Foreign Ministers of both countries, agreeing a framework for the normalisation of relations and the opening of borders. This represents a landmark step in progressing better relations between the two countries. Signing the protocols—a number of noble Lords alluded to this—was not an easy step for either country, and ratification will remain sensitive. The UK Government will not make any statements that have the potential to jeopardise this process.

It is apparent that there is a strong political will, and indeed popular support, for improving relations. The Armenian president and the Turkish president have been focused and engaged in the process, which also allows for the creation of a sub-committee to examine historical issues, including the events of 1915-17.

I shall now answer some of the questions that noble Lords asked. I say to the noble Baroness, Lady Cox, that Geoffrey Robertson concluded that while the 1948 UN Convention on Genocide could not be applied retrospectively, the term “genocide” should be applied to the Armenian massacres. “Genocide” is a precise term and its use is best assessed by a competent court. However, then as now, there is no court with the authority to make such an assessment. Therefore, it is inappropriate for the British Government to apply the term to events on which no legal judgment can be made.

I was aware last year that noble Lords had raised the issue of a memorial. Sending a government representative might suggest recognition, so, despite our sympathies for the tragedy, we do not intend to send a representative. The Government reject any suggestion that Parliament has been misled, but I will also make it perfectly clear that Ministers, not officials, are responsible for the statements that they make to Parliament.

The noble Baroness, Lady Cox, referred to recent resolutions and decisions in the US Congress and the Swedish Riksdag. Those have not changed the UK Government’s view that it is for the Turkish and Armenian people to address the issue together. Neither the US nor the Swedish Government have changed their position as a result of these votes.

The noble Lord, Lord Avebury, referred to the Blue Book, with which he has a long association. As he pointed out, it contains many compelling reports of eye-witness accounts of the events in question. It should be considered alongside other documents relating to the events of 1915-16 in archives around the world. Our embassy in Ankara can certainly assist in passing on a letter from UK parliamentarians to their Turkish counterparts inviting dialogue over the validity of the Blue Book. I understand that officials have already been in touch with the noble Lord to take this forward.

It remains our view, with regard to those events, that the greatest need is for dialogue between Turks and Armenians. However, on the issue of parliamentarians, in which the noble Lord, Lord Avebury, has been extremely engaged, we can do only so much to encourage Turkish parliamentarians to engage on the issue. I fear that, to date, their response to the idea of a conference has been somewhat negative, but of course any progress on such a front would be very welcome and would represent more of the reconciliation which we all want.

The noble Lord, Lord Hylton, and other noble Lords raised the issue of deportations. Prime Minister Erdogan and the Foreign Minister have now clarified that there is no immediate plan to deport illegal Armenian immigrants from Turkey. President Gül has also clarified that Turkey does not discriminate against Armenians working in Turkey. Subsequent comments by Turkish politicians have underlined the tolerance shown by Turkey towards migrants. I repeat that it is for the Turkish Government to manage migration issues and illegal immigration in line with their international obligations and Turkish law.

On EU membership, which several noble Lords raised, the issue that we are discussing today is not a precondition for Turkish membership of the European Union. However, under the political criteria for membership, Turkey is expected to maintain what is called in the criteria “good neighbourly relations” with countries in the region, which of course include Armenia.

The issue of Nagorno-Karabakh was raised by noble Lord, Lord Maginnis, and others. The Presidents of Armenia and Azerbaijan have had useful and constructive meetings in the framework of the Minsk group process, including, most recently, at the end of January. We hope for continuing progress. On the issue of our contacts, my honourable friend Chris Bryant, Minister for Europe, discussed Turkey-Armenia relations with his Turkish counterpart during the Turkish Prime Minister’s recent visit, and he lobbied his counterpart in January and February this year to encourage progress on the normalisation of relations with Armenia.

The noble Baroness, Lady Rawlings, raised a number of points. I may not get round to them all, but if there is anything that I have not covered in my response, she may expect me to give her a written answer as soon as possible. Politically, the UK Government continue to urge both the Armenian and Turkish Governments to move forward with the normalisation process and to find ways to reconcile their differences. The Foreign Secretary recently raised the issue with the Armenian President, we have had many discussions with foreign ministers and others and, in-country, our ambassadors are engaging on the issues.

We have supported a number of projects designed to promote conflict resolution and break down the stereotypes that clearly exist. These have included sponsoring a Turkish film festival in Yerevan and a touring theatre production about the conflict, and bringing together young people from both countries—women, journalists and others, but especially women activists from both countries—to talk about the prospects for EU integration and working together to ensure that both countries have open contacts and discussions.

The noble Baroness, Lady Rawlings, also mentioned the EU. The European Union remains fully involved in helping Turkey and Armenia to improve relations. Commissioner Fule, who is responsible for enlargement and neighbourhood, will visit the south Caucasus in April, and High Representative Ashton is planning a visit in the next few months. The EU Special Representative for the South Caucasus, Peter Semneby, is following the Turkey-Armenia normalisation process closely and using his contacts with both parties to encourage more progress. The EU continues to make it clear that it is ready to provide practical support, should that be needed, to further the implementation of the protocols once they are ratified.

The 2009 EU accession report for Turkey shows that it is not meeting the conditions for joining the EU, in particular in relation to neighbourly relations with countries such as Armenia. That question was raised by noble Lords. The accession progress report recognises the significant progress that Turkey has made in normalising relations with Armenia. It has made efforts to improve relations with neighbours, although we recognise that there is still some way to go.

I thank noble Lords for this debate—in particular the noble Baroness, Lady Cox, who has made a great contribution on these issues. We must all work together to ensure that we see the progress that will be essential to bring consensus and closure to the tragic history that the two countries are grappling with. I hope that noble Lords, who have great interest and commitment, can assist with that.

Sitting suspended.

Mental Capacity Act 2005

Question for Short Debate

Tabled By

To ask Her Majesty’s Government what assessment they have made of the effect of the Mental Capacity Act 2005.

My Lords, I am grateful that time has been found for this debate. I tabled the Question because, since the Mental Capacity Act came into force in October 2005, there has been remarkably little debate about it. I say “remarkably” because this is one of the most important pieces of legislation affecting health and social care that we have seen in my time here. It provides a framework to empower and protect individuals who lack the capacity to make decisions for themselves. These principles are honourable and important, and recognise the state's duty to uphold public safety while respecting the dignity and worth of each human being.

The framework enabled through the Mental Capacity Act reflects the complexity of loss of capacity in terms of its practical, financial and emotional implications. It pushes decision-making to be clearer; to be in the patient's best interests, unclouded by value-laden judgments; and if possible to take into consideration what the person would have wanted. Personally, I have found it helpful to explain to other clinicians why I suggest or do not support a course of action.

I am glad that the noble Baroness, Lady Barker, is here, as she amended the Bill in one of the most important ways. She introduced the concept of advance statements of wishes. This has led to advance care planning. We have not yet gone far enough, but we are moving towards more personalised care. She deserves praise for driving that through.

Overall, the training of staff as outlined in the Act has happened, and the many educational activities included in the Act have had a beneficial secondary effect on care attitudes in general. However, some problems have arisen. Advance decisions to refuse treatment remain a relatively rare occurrence. I am surprised by that. When they are spoken about, they are often misnamed in common parlance as “advance directives”, which leads to unrealistic expectations. Of course, you cannot direct someone to do something to you in advance. If you could, we would have seen unnecessary and dangerous operations or interventions on demand.

The framework for best-interest decisions has perhaps been overinterpreted in some physical care settings, so that things that ought to be done as part of basic care have been excessively deliberated over, and the Act has been used as an excuse for risk-averse rather than risk-intelligent behaviour. The independent mental capacity advocates have proved helpful. I was sceptical about them, but I was wrong. Separately but importantly, the convictions for neglect of vulnerable adults have had a knock-on effect in the protection of vulnerable adults—POVA—orders, making more work for staff but hopefully protecting more people appropriately.

Although awareness in health and social care is not all that it could be, things are going in the right direction—but not fast enough. However, some parts of the bureaucracy have not panned out well. One has to ask of the administrative procedures: how and for whom is the Act working? Does it successfully illuminate the complexities of grey everyday areas by disentangling the overwhelming web of processes that people are faced with, or does it confuse them more? Is the law empowering and reassuring the many people who are touched by the loss of mental capacity, or does it present frightening hurdles?

Deprivation of liberty safeguards and the supporting guidance are not interpreted uniformly, and there has been confusion between the interaction of the Mental Capacity Act and the Mental Health Act. Current case law is bringing some clarification, but would it not be less expensive and more effective to bring together the experts who have experience of this in practice, and to produce better guidance that is more easily interpreted with consistency, so that we do not risk a yo-yo effect from case law decisions?

An essential test is to evaluate the effectiveness of the Court of Protection that was set up under the Act. The court was established to appoint or endorse deputies to act on behalf of someone when they have lost mental capacity. The current president of the Court of Protection, Sir Mark Potter, conceded last October that the court had had,

“its fair share of difficulties in its early stages”.

He is now chairing an ad hoc committee to scrutinise its efficiency which I hope will shine a light on some areas, including the working relationship between the Court of Protection in Archway and the Office of the Public Guardian, now moved to Birmingham.

When a family is anticipating or is in the process of experiencing a relative’s loss of mental capacity, the sudden upheaval in their everyday lives is unimaginable. Therefore, an absolute prerequisite in staff training should be handling applications with efficiency, professionalism and sensitivity. Sadly, recent reports indicate that during the past two years, the Court of Protection has received more than 2,000 complaints and applications for deputyship are taking between three and six months. This is far too long, especially when the loss of capacity is sudden and unexpected. When someone phones the court, they are not allowed to speak directly to the case worker for their case, but surely this depersonalisation of process runs counter to the spirit of the Act. Would the Minister undertake to ask Sir Mark to look at this too?

In terms of protection, the Mental Capacity Act allows for lasting power of attorney to whom a donee can allocate decision-making over legal, financial and health dilemmas in the event of loss of capacity. The demand for this option is huge. In February of this year, applications since the Act’s inception totalled almost 127,000. Although this is a commendable system in theory, experience has revealed severe flaws. Not only does it take weeks to process an application, but the fee charged by most solicitors seems to be about £600 per person, although some charge that sum for a couple. But such a fee represents a lot of money for many people and deters them from proceeding. Moreover, because the processes are slow, some die before their application is ever fully processed. Does the Minister feel that this is satisfactory or will he undertake to look into how the processes can be simplified and made more accessible and affordable for those who want to make plans in the event of losing capacity?

A recent Radio 4 report, for example, cited the case of one gentleman entrusted to take care of his sister’s financial affairs. As her care costs rose substantially, he needed to apply for increased funds. Alongside reported gross discourtesy from the staff at the Court of Protection, he was informed that the process would take up to 21 weeks and that the application for varied allowance carried a fee of £400. This was a predictable scenario. Surely the Court of Protection should operate in a way that is fully prepared for such an eventuality, that of a rise in the costs of care.

In 2008, more than 22,600 applications were made to the Court of Protection, and more than 18,900 in 2009. I appreciate that the staff processing such a volume of applications have an unenviable task. However, it seems that the rigidity of the application process has sometimes eclipsed common sense, to the detriment of staff, applicants and carers. During discussions with a solicitor who specialises in care of the elderly, she cited one scenario of concern to illustrate this. A doctor, supporting her patient’s application for lasting power of attorney, submitted the required medical report but forgot to certify her own date of birth. So the application was sent back on the grounds that it was not clear if this doctor was over 18 years of age, even though she would not be registered to practise as a doctor if under that age. It was made worse by the fact that she was on extended leave when the form came back, resulting in lengthy delays for the elderly and anxious applicant.

That incident is a depressing illustration of an institution designed to meet complex human needs responding in a mechanical and inflexible way. It strikes a discordant note with the very spirit of the Act: to empower and protect. Will the Minister undertake to try to ensure that we do not lose the spirit in which this important and impressive Act was conceived and written?

My Lords, first, I take this opportunity to thank my noble friend Lady Finlay of Llandaff for securing today’s short debate on this extremely important issue. I remind your Lordships that at Second Reading of the original Bill on 10 January 2005, I welcomed the Bill most warmly and paid tribute to the late, lamented Lord Carter, as we scrutinised the draft version of the Bill. I also reminded the House that I had and still have a particular interest in the Bill, now an Act, as joint chairman of the All-Party Group on Learning Disability and as President of Mencap.

Since its introduction in 2007, the Mental Capacity Act has aimed to promote and safeguard decision-making within a legal framework. The legislation rests on the principle that people should be empowered to make decisions for themselves wherever possible, while at the same time protecting people who may lack capacity by providing a flexible framework that places the individual at the head of the decision-making process. That is a fundamentally important principle in improving the lives of people with a learning disability, particularly those who have profound and multiple learning disabilities and therefore complex needs.

Although I warmly welcome the principles and intentions of the Act, I remain concerned as to how it is being applied in practice and the wide discrepancies which may arise when these principles are being implemented. Doctors, health and social care professionals, as well as paid carers, have a responsibility to work in line with the Mental Capacity Act code of practice. However, there still seems to be a great deal of confusion about the Act, with individuals unsure about their responsibilities. This undermines quality of life for many people with a learning disability and fails to recognise the respect and dignity to which they are entitled.

As all noble Lords present are only too aware, when it comes to healthcare, the decision-making framework for a patient with capacity involves the doctor presenting options to the patient and the patient weighing up the potential benefits, risks and burdens of the various options. Doctors need to ensure that their suggestions have not been influenced by discriminatory assumptions simply because that person has a learning disability. The Act allows people to make decisions for themselves and plan ahead for a time in the future when, for any number of reasons, they may lack capacity. For those who have already been assessed as lacking capacity to make a particular decision, such a decision must be taken in their best interests, and a person’s capacity must be assessed on a decision-by-decision basis. A person’s “best interests” means involving the person as much as possible, consulting with those close to them where practical and appropriate, while avoiding discrimination. As is all too apparent, people with learning disabilities face unique difficulties in accessing end of life treatment and care. That is part of a pattern of health inequalities which has been well documented, including those illustrated only too horrifically in Mencap's report Death by Indifference, which told of the deaths of six patients with a learning disability who died because of NHS ignorance and neglect, and has been the subject of two official inquiries since its publication.

Let me tell you about Victoria, who has profound and multiple learning disabilities. In the words of her mother, Jean:

“Victoria was rushed into A&E after a series of seizures. She wasn't responding to medication and needed to be put on a ventilator. The doctor came up and spoke to us. It took me a moment to realize that he was questioning whether we should go ahead with treating Victoria.

He was suggesting that it wasn't worth trying to save her. He didn't know our lovely 33 year old daughter and the quality of her young life. I sometimes wonder what might have happened if I hadn't told him how good her life was when she was well, about her social life and the people who love her”.

This most disturbing story highlights why it is so important that the principles of the Mental Capacity Act are stringently enforced, and underlines the need for proper training for health professionals to complement the guidance which is already in place. Training should cover general disability issues and, specifically, what is a learning disability, as well as meeting health needs and how to communicate with somebody with a learning disability. It should cover issues around quality of life to ensure that doctors do not make discriminatory judgments, as in Victoria's case. In essence, doctors must look at the individual and not just at the disability.

Mencap knows from its research that doctors and health professionals do not always make appropriate best interests decisions, so we are trying in a project entitled “Involve Me” to correct this and by showing how people with profound and multiple learning disabilities can be involved in decision-making. The project is supported by the Renton Foundation—named after the first president of Mencap, the late Lord Renton—and is being run by Mencap in partnership with the British Institute of Learning Disabilities. Staff and people with profound and multiple learning disabilities at four sites are taking part in the project, with each site using a different and creative approach. An interactive DVD and training guide will be produced to show how creative approaches have been used at each site. It will also show how everyone, including staff, families and policy makers, can start involving people with profound and multiple learning disabilities in decision-making. The “Involve Me” project will also be running workshops and conferences. It is an excellent example of how innovative and creative approaches can be used to empower people with grievous disabilities to take more decisions on how they lead their lives, as well as involving them in the benefits of the Mental Capacity Act.

To pile Pelion on Ossa, in June this year Mencap's Getting it Right campaign will be launched in Learning Disability Week to highlight evidence of best practice in the NHS and to ensure better healthcare for people with a learning disability. A key component will be to ensure that healthcare professionals do have training in the Mental Capacity Act. So, we are doing our best and we trust that after the forthcoming election, whichever party is in power, the incoming Government will ensure that even more doctors, health and social care professionals understand and apply the principles of the Mental Capacity Act 2005. While much progress has been made since the introduction of the Act in 2007, a great deal of work still remains to be completed before we can say, as I did at the end of my Second Reading speech five years ago, that,

“many thousands of people will enjoy better support in expressing what they want; and many thousands more will gain greater dignity, better treatment and happier lives. No Member of your Lordships’ House could ask for more than that”.—[Official Report, 10/1/05; col. 51.]

My Lords, the Mental Capacity Bill, as it then was, was the first piece of legislation to be subjected to the then new process of pre-legislative scrutiny. I had the honour to serve alongside the noble Lord, Lord Rix, on that committee. As a result, it was one of the best pieces of legislation that had ever been put through the House. It was the product of considerable effort on the part of Peers from right across the political spectrum.

I congratulate the noble Baroness, Lady Finlay, on starting to complete the equally important process of post-legislative scrutiny. We do not formally have that yet in Parliament, but I have long thought that it is something we should do. Those of us who take part in passing legislation have an intention about how that legislation should work in practice. That is important and I hope that we will develop it in the next Parliament.

Before diving into the detail, I want us to remember that this is legislation for which a broad coalition of people have campaigned for 30 years, because it was necessary to deal with the widespread but largely undocumented abuse of vulnerable people. I thank the noble Baroness, Lady Finlay, for her kind words about me. During the passage of the legislation, it was my intent that advance statements would not simply be used by people to refuse treatment but could also be used to ensure that people were not refused treatment. The examples used at the time were about people with fluctuating mental health conditions who might say, “I know that when I am unwell I may say that I don’t want treatment, but at this moment when I am well, I am saying that I wish you to disregard that”. I am pleased if that has come to pass.

I want to focus on lasting powers of attorney and deprivation of liberty, because those were always predicted to be the two key pillars of the legislation. The noble Baroness, Lady Finlay, highlighted the problems that there have been with the Office of the Public Guardian. Perhaps it was to be expected that when such wide-ranging and detailed legislation came into force there would be difficulties for those who were given the task of implementation. It is now five years on, and it is important to listen to people such as the Law Society and the Mental Health Alliance, to which I am indebted, about how the legislation is working for front-line practitioners. I was pleased that the noble Baroness, Lady Finlay, mentioned the issue of fees during the passage of the legislation at the prompting of my then colleague in Age Concern, Pauline Thompson. We flagged up to Ministers the issue of fees and how we thought that if the issue was not considered it would be a major cause of people avoiding taking out lasting powers of attorney when they should. There is now a significant body of evidence saying that that is so.

I am pleased to learn from the Law Society that the forms used for lasting power of attorney are being reviewed. It is always the case in such matters that the form-filling can be the make or break factor in whether people use legislation that is there for their protection. I am glad that that is being simplified, but I add my voice to those who make the plea that the Office of the Public Guardian should use e-mail. I understand that everything has to be written down and recorded, but if greater use were made of e-mail that would speed things up considerably. The noble Baroness, Lady Finlay, is right to say that it is taking far too long in many cases to register these very important things.

I shall touch briefly on the matter of finance, because I talked a lot about that during the passage of the legislation. Even a lay person reading the financial bits of the newspapers at the weekend, particularly the questions from members of the public who write in with the problems they have experienced with financial institutions, will know that there are difficulties. Nearly every week, somebody writes in about a problem to do with powers of attorney and banks. It is evident that financial institutions are very patchy in the way that they heed this legislation. The Law Society published a practice note, called Powers of Attorney for Banking, which outlines how lasting a power of attorney should be. What are the financial regulators doing to ensure that good practice becomes much more widespread throughout the financial institutions?

I want to talk briefly about the deprivation of liberty. When the concept was introduced under the legislation, as it had to be because of the Bournewood ruling, everybody knew that it was an extremely important concept. We were right, back when the legislation was going through, in guessing that the term “deprivation of liberty” would in itself be a problem. That, plus the lack of a clear definition of it in guidance, has meant that practitioners in care homes, for example, do not quite know what a deprivation of liberty is. They assume that if a deprivation of liberty application is made, they are immediately going to escalate the issue of somebody's care into a heavy legal process.

Would the Minister consider changing the terms? I know that he is not the relevant Minister and therefore do not expect him to be able to answer this, but what is the Department of Health doing to monitor the number of deprivations of liberty which are being registered? Also, is the CQC, as the regulator of care standards, monitoring whether deprivations of liberty are being sufficiently authorised and, where they have, whether they are in fact leading to changes in the care plans of people who are having their liberty restricted?

The Mental Health Alliance continues to monitor the impact of this legislation and has collected quite a lot of evidence from a number of organisations about how it is working. Its key point is, again, the one that we predicted: this legislation represents such a fundamental change of professional practice and attitude that it requires a great deal of training, information and constant publicity. What will the Government be doing, on an ongoing basis, to make sure that practitioners and members of the public understand the legislation and their rights and responsibilities under it? Finally, do the Government intend to revise the code of practice, now that we are a few years into its implementation? We always recognised that the code of practice would have as much importance as the legislation itself, and it was always conceived that that document could be easily amended. Perhaps the time is coming now when that should be the case.

I would have liked to talk about the appointment of independent mental capacity advocates, but I will simply say that there appear to be too few of them. It was always the case that such complex legislation would take a great deal of time to become established and to be good practice. The legislation gave the best possible basis for good practice to take hold. It is now the Government’s job to consider how it is being implemented and to listen to those on the front line who, while they may have criticisms of detail to make, believe overall that this legislation has changed the lives of vulnerable people for the better. We should support that.

My Lords, like the noble Baroness, Lady Barker, I was briefed by the Law Society. I am very grateful for the advice that it gave me and for the advice that I received from a number of individual practitioners to whom I spoke. Like the noble Baroness, Lady Barker, the noble Baroness, Lady Finlay, who introduced this debate, and the noble Lord, Lord Rix, most of us welcome the principles behind the 2005 Act and how it is working, although we accept that some problems have been highlighted in the press. The noble Baroness and other speakers also highlighted some problems this afternoon.

I shall start, as I always do, by being positive and making the point that we believe that the Act, being major legislation—although it is still early days to understand fully its effectiveness—has been a catalyst for cultural and behavioural change among health and social care professionals. It reinforces the position, as the Act makes it clear, that the person involved is at the centre of decision-making whether they have the capacity or not. As I said, I have a number of questions to put to the Minister, and I hope that he will be able to touch on some of them. Even if he cannot, as the noble Baroness, Lady Barker, put it, we need a degree of post-legislative scrutiny of all legislation, so I hope that in due course he will come back to the questions he cannot address in the form of a letter.

The noble Lord will remember that the Act abolished the enduring power of attorney and brought in the lasting power of attorney. However, EPAs that were already in existence—there must have been quite a number since I know that quite a lot of solicitors were encouraging people to take them out in advance of the Act because they thought that there were certain advantages in the EPA over the LPA—can still be used in the future. So, in effect, a number of EPAs are floating around waiting to be activated that could come into play for several years hence. I would be grateful if the Minister could give his view on how many EPAs he thinks are running in parallel with LPAs and whether that is likely to cause any problems. I suspect that it will not, but it is something we must be aware of, particularly given that there is some evidence of a rush of EPAs being taken out in the run-up to the legislation.

Secondly, I want to touch on the application forms, which were also mentioned by the noble Baroness, Lady Barker. Again, the Law Society has made it clear that the original forms were overly long and complex, but I gather that some work has been done on them. However, there are considerable problems with the complex nature of the form. Again, I would be grateful if the noble Lord could outline what work the department is doing in looking at the form again and producing a new one. I imagine that that is a problem not just for the department but also for the Office of the Public Guardian.

Thirdly, banks and financial institutions were quite used to the old EPAs, and there is anecdotal evidence of some problems with LPAs. I appreciate that LPAs go wider than the older EPAs, which covered only property and financial affairs. A lasting power of attorney can cover those areas and health and welfare issues. However, the banks appear to be having problems with them. I do not know whose job it is to deal with the issue and put the message across to the banks to ensure that they have adequate processes in place.

Operational concerns have been raised about both the Office of the Public Guardian and the Court of Protection. The noble Baroness, Lady Finlay, highlighted the issues, so I hope that the noble Lord will look at those bodies to see whether they are operating quite as well as they ought. The noble Baroness referred to the fact that as one located is in Archway and the other in Birmingham, delays arise as things are referred back and forth between them. I imagine that this is a matter that Sir Mark Potter will look at in his review, although I hope that the Minister will also be able to comment on it.

Finally, I come to the deprivation of liberty safeguards, which were referred to by the noble Baroness, Lady Barker. A number of problems have been associated with them, including inconsistency in decision-making arising from a lack of understanding about what deprivation of liberty means and a lack of certainty about when the deprivation of liberty safeguards apply. There is also an issue about lack of awareness of the deprivation of liberty safeguards within healthcare settings.

I appreciate that I have repeated a number of questions that have been put to the Minister, but I am sure he will find a way to answer them all. We look forward to his answer. However, I return to the first point that I and all other speakers made: in general, we welcome the Act. We think it is performing, but there are one or two signs of underperformance that need to be addressed by the department, the Court of Protection and the Office of the Public Guardian. We hope in due course to have answers to them and that where there are improvements to be made they will be made.

I congratulate the noble Baroness, Lady Finlay, on getting the authority from the usual channels to find time for this debate. As I said earlier today, there seems to be a great deal of pressure on time at present—I cannot think why—so the noble Baroness needs double congratulation on finding time for this debate.

If the noble Lord, Lord Henley, will forgive me, we have in this Room three experts on this Act who played important parts in the passage of the Bill from its early days to Royal Assent. We are lucky that they have found time tonight to come and talk about how the Act is doing. I cannot speak for the noble Lord, Lord Henley, but I was no expert on the Act until I read my briefing for tonight. I think the noble Lord, Lord Henley, is more of an expert than I am, but perhaps not much more.

The thing to notice straightaway is how popular this Act is. All sides agree that it has improved the prospects for a large number of people. It was necessary social care legislation, and something that we can all be proud of. I shall do my best to deal with many of the questions raised. I apologise in advance because I may not cover them all, but I am content to deal with those I do not cover in the form of a letter following this debate.

It is nearly 30 months since the Act came into force and a good time to take stock. The Act brought in provisions for people to make lasting powers of attorney. There are two types—one to cover financial matters and one to cover health and welfare issues, which was a new provision. They offer people who have capacity new choices to decide how they are cared for in the future by giving them the opportunity to plan ahead for a time when they may lose capacity. We know that many people take comfort from knowing that someone whom they have chosen will look after their best interests.

I am pleased to tell the Committee that in 2008, 33,653 LPAs were registered with the Office of the Public Guardian and that that number increased to 75,874 last year. Perhaps this shows that we are beginning to ensure that people are aware of how important it is to make an LPA and how it can ensure that their best interests and wishes are taken account of in decision-making should they lose the capacity to make those decisions themselves. If no LPA is in place, an application has to be made to the Court of Protection for a deputy to be appointed, which is a more costly, complex and often longer process than having an LPA in place. I shall return to that.

We promised that we would start to review the Act 12 to 18 months after implementation. My department, the Ministry of Justice, has undertaken two consultation exercises on the provisions of the Act, which have led to a streamlined and simplified LPA form. It has been well received, and informal evidence shows that it has reduced the number of incorrect forms being received by half—from approximately 20 per cent to about 10 per cent. The first consultation also led to a reduction in the fee to register an LPA from £150 to £120, and to the introduction of a more flexible supervision regime.

The second consultation—the Government response to which was printed today and the resultant SI laid in Parliament—was on more technical but still important matters, which impact on the quality of service that we offer to customers. We intend to report back to Parliament, as promised, by way of a memorandum to the Justice Select Committee. This will be after the Summer Recess. It will take into account all that we have learnt so far and will lay out what research is still going on.

As has been said in the debate, a major part of the review of the Act has been to look at the way in which the new Court of Protection has been working. Key to this has been the establishment of an ad hoc committee to undertake a review of the Court of Protection Rules 2007. The committee is made up of professional and non-professional court users, judiciary and officials. It is chaired by two High Court judges. This committee will look at key areas that have been referred to, such as the continued improving and simplifying of court forms, quicker and simpler procedures to deal with straightforward property and affairs applications, and improving the guidance in practice directions. The committee expects to produce initial recommendations for the president this summer.

Not surprisingly, the Department of Health’s main focus has been on implementation rather than review, as the Act has required changes in policies for many people, as it affects the work of approximately 3 million staff. Such changes take time to embed in an organisation the size of the National Health Service, and the department has an ongoing programme of implementation for the Act. As part of the review, the Department of Health commissioned a large piece of research on the successes and difficulties of making best-interest decisions in both the NHS and in the field of social care. It has also commissioned a set of audit tools that will enable organisations to carry out their own reviews of the Act.

We have heard mention of the new independent mental capacity advocates. They are trained professionals who support and represent people who lack capacity and who have no one else to speak for them when decisions need to be taken about serious medical treatment and long-term residential care. This is an important step forward in ensuring that the best interest of the patient is always taken into account.

As part of its implementation programme, the department has developed training materials for the Act that were widely distributed, and has also provided funding for others, such as the Royal College of Psychiatrists, the Intensive Care Society and the Alzheimer’s Society, to develop their own guidance. The department has maintained a national implementation manager and a team of regional implementation leads to support the embedding of the Act in practice.

During implementation, it became clear that not all health and social care practice was as good as it might have been prior to the Act’s introduction. There is a greater than anticipated need to work with care homes, hospitals, local authorities, primary care trusts and other providers of treatment and care, as well as a range of other bodies such as those responsible for training and development, to ensure best practice.

I turn briefly to some of the many questions that were posed. The cost of registering an LPA was referred to by the noble Baronesses, Lady Finlay and Lady Barker. As I said, the OPG has reduced the cost of registering to £120—the same as it costs to register an EPA. I am told that the OPG is looking at other ways in which it may reduce costs without impacting on the speed and quality of the service provided. We asked for views on this in the recent consultation.

I remind the House that the Legal Services Commission can fund legal help in relation to the making of lasting powers of attorney in advance decisions when the client is aged 70 or over, or is a disabled person within the meaning of Section 1 of the Disability Discrimination Act. Legal help is subject to the general means test and the merits test is that of sufficient benefit. The length and complexity of the form was referred to by the noble Lord Henley, and the noble Baroness, Lady Finlay. It is longer than the old one. It has been reduced in size since it was first introduced. In part, its length is to enable it to be filled in by ordinary people without the need to seek legal advice. It contains some additional safeguards that the old enduring power of attorney form did not. It requires an independent person to certify that the person making the LPA has the capacity to do so and is not doing it under duress. I am sure that noble Lords will agree that to reduce it still further could run the risk of weakening some of these measures, but we are interested in feedback.

The noble Baroness, Lady Finlay, talked about complaints. Between October 2007 and April 2009 there were 3,000 complaints to the OPG and the court. That figure was widely publicised. The majority were in relation to the speed of processing of lasting powers of attorney which were the result, as the noble Baroness, Lady Barker, implied, of a higher than anticipated workload in the first year of operations. The OPG has put in place measures to deal with that and between April and September 2009—six months—there were 899 complaints. The OPG annual report stated that there had been considerable improvement in the registration process and that that was expected to be maintained and built on in the future.

On the issue that LPA fees are too high and too complex, as I said, the forms have been simplified. We continue to look at ways to make the process simpler. Timetables have been shortened and seem to take around 11 weeks now as opposed to up to six months when the Act first came into force. Six weeks is of course the statutory waiting period for objections.

There were comments from all noble Lords about deprivation of liberty safeguards—DOLS. The NHS Information Centre on social care published activity data last week for the first nine months of last year. The Department of Health is drafting a briefing and commentary on this data to be published on its website in early April. The department has published guidance on its website for the first three significant case law judgments and the Care Quality Commission has to publish an annual report on DOLS under the Act, which will include best practice guidance. The Mental Health Alliance will also publish a report on its view of progress, which will be based on feedback from alliance members. It is understood that the report confirms that there have been some improvements in practice and that there are major causes for concern in the low level of applications. There are significant variations in levels of activity between supervising bodies, lack of understanding of the Act, which was referred to by all noble Lords, and some lack of adherence to legal requirements. The Department of Health shares a number of these concerns.

The noble Baroness, Lady Barker, asked about deprivation of liberty safeguards. We hope that they provide a framework for improving the deprivation of liberty of people who lack capacity. They contain detailed requirements about when and how deprivation of liberty may be authorised. Delays have been referred to. As I said, the workload of the court exceeded expected levels. Now nominated judges from the regional courts can be used to assist with casework within the Court of Protection, which came under Her Majesty’s Courts Service from April last year and which allows more flexibility in terms of judging.

There has been a lot of training and awareness raising on the requirements of the Health and Social Care Act. There are good examples of policies and procedures throughout England and many examples of best practice. I agree with the noble Baroness, Lady Finlay, that not all health and social care practice was best practice prior to the Act’s introduction, so there has been a greater need than was anticipated to work with the institutions to which I have referred. As regards the point about the “over-18 box”, without going into detail I can say to the noble Baroness that we do not believe this will happen again.

The noble Lord, Lord Rix, has a well-known interest in those with learning difficulties. The Act is clear that there should never be an assumption that a person lacks capacity to make a decision. This applies to those with learning difficulties as much as to everyone else. The starting assumption has to be that a person has the capacity to make a decision unless it can be established that they do not. All possible steps must be taken to try to help people make a decision for themselves. An important point must be made clear—that a person’s capacity refers specifically to their capacity to make a particular decision at the time it needs to be made. It cannot be based just on age, appearance, assumptions or one aspect of their behaviour. The noble Lord informed us about the “Involve Me” project. We are very interested to hear of the work Mencap has done with this project. We would be interested to hear more about the remits of this work and to consider what wider lessons can be learnt.

The noble Lord, Lord Rix, was concerned about the working of the Act in practice. Two pieces of research are under way from the Office of the Public Guardian and the Department of Health, as I think I mentioned. Both are looking at the quality of best interest decision-making. The noble Baroness, Lady Barker, and the noble Lord, Lord Henley, referred to financial institutions. The noble Baroness is absolutely right to refer to the awareness of LPAs among banks and financial institutions. I am told that the public guardian liaises regularly with the British Banking Association, and where individual concerns are brought to his attention will write to banks informing them of their duties. Over the coming year, his office will consider what further engagement may be needed in this area.

As regards the number of people subject to the DOLs legislation, between April and December last year, more than 5,300 people had been the subject of completed assessments. Of these, 43 per cent had resulted in authorisations, two-thirds for people aged over 65; 50 per cent of those assessed have dementia. There is no over-representation of any ethnic minority group in this field.

We agree with the noble Baroness, Lady Barker, that the two codes of practice are integral to the ways in which the Act is interpreted. Feedback about them is positive so far and no major issues have been raised. However, I hope she will be pleased to hear that we intend to consider the results of research commissioned by my department and the Department of Health in this area and consider more widely how well the code is working in practice and what changes may be necessary.

I know that I have gone over my time, but I shall finish. The noble Lord, Lord Henley, asked whether it is possible to say how many EPAs are out there. They can be used while the person lacks capacity without being registered, and therefore without us knowing about them. That is why it was decided that all LPAs must be registered in order to be used. The noble Lord also asked about inconsistencies in the understanding of the DOL safeguards. We acknowledge that at this early stage in implementation there are inconsistencies in understanding and practice.

All noble Lords asked about what the Government are doing to raise awareness, which is perhaps the crucial question about the Mental Capacity Act and the deprivation of liberty safeguards. The Department of Health and the Social Care Institute for Excellence have recently delivered seven regional events to look at best practice on the Act. They were attended by more than 1,000 health and social care staff. The Social Care Institute for Excellence has produced four TV films about mental capacity and more are planned for this year. The department has an ongoing national and regional implementation programme and continues to work through 152 locally established MCA implementation networks to disseminate the Act’s requirements.

Perhaps I can sum up by saying so far, so good. I know that many noble Lords and other people outside this House will be looking carefully to see how the Act continues to work and will make their criticisms and comments about it in due course. That is just the way it should be. I once again thank the noble Baroness, Lady Finlay.

Committee adjourned at 7.26 pm.