asked Her Majesty's Government:

Whether they are satisfied with the response to the recent advertising campaign for recruitment of primary school and secondary school teachers.

My Lords, so far there have been two advertising campaigns as part of the Teacher Training Agency's five-year recruitment strategy on the theme, "No one forgets a good teacher." The first positively influenced a significant number of graduates who later entered teacher training. The second has not yet been fully evaluated. However, during arid immediately after it, the number of inquiries about becoming a teacher was markedly higher than usual. A third campaign began last August.

My Lords, I am pleased to receive that Answer from my noble friend. However, is she aware that in spite of those and other considerable efforts which have been and are being made by the Government, we are failing to attract a sufficient number of teachers to meet the needs of present education policies? That is true in particular in some areas of secondary education. Can my noble friend say what research, if any, is being done with undergraduates and sixth-form pupils to identify their objections and reluctance to train as teachers? We need a clear picture of this serious problem.

My Lords, I readily concede that the recruitment of teachers in secondary schools is difficult and has been for some years. However, we are improving on the position that existed a few years ago. The vacancy rates are now relatively small. The advertising campaign and other government measures are reducing the shortages, but I concede that there is more to be done.

It is also right to ask what encourages and discourages young people about a career in teaching and the Teacher Training Agency is undertaking such evaluation.

My Lords, is the Minister aware that all of us on these Benches support higher standards of teaching and performance but that in the end a teacher stands on his or her own in front of a class? As teachers are being overwhelmed by instructions from the Department for Education, cannot the number of documents sent to them be reduced? I speak for a member of my family who teaches in Tower Hamlets and finds it rather overwhelming.

My Lords, I am sympathetic to the suggestion that it is important not to put too much pressure on teachers by overwhelming them with documents and too many changes. That was one of the reasons why the Government decided not to have root and branch reform of the national curriculum as applied to secondary schools in particular.

We are also trying to reduce the number of documents going to schools and to send them monthly rather than weekly. However, the advertisements emphasise the demands that are made on teachers. I have one in front of me which shows a picture Of a young man sitting thinking and saying, "I couldn't decide on becoming a manager, an actor or a diplomat, so I chose teaching."

My Lords, does the Minister have any recent data on successful recruitment from abroad? I have in mind, as she may recall from earlier Questions, countries in northern Europe which have a high educational culture, where the teaching of English to all students is of a high level and where, particularly in Germany, there is currently an over-production of teachers.

My Lords, I cannot give the noble Lord specific statistics, but I shall be happy to look into the question and write to him. Clearly, if we can recruit good teachers from abroad, that is desirable so long as their qualifications are of the highest level and their English is perfect. I think the noble Lord will agree that that is essential. However, it would be wrong for us to become over-dependent on the recruitment of teachers from overseas.

My Lords, does the Minister share my concern that of the Bachelor of Education students choosing to train for primary school teaching, only 12 per cent are men? What is the Government's campaign doing to try to redress that gender imbalance?

My Lords, there has been a gender imbalance in primary school teaching going back to the 19th century. I agree that we should try to prevent that imbalance worsening, but there has been a slight shift in that direction during the past decade. Once again, the Teacher Training Agency is looking in particular at ways of encouraging both young and older men because the recruitment of mature students is an important source of supply and often brings in people who have helpful experience. The TTA is addressing that gender imbalance.

My Lords, has the Minister considered the possibility of offering scholarships to people who would become teachers? It is fairly certain that a number of people who might have decided upon teaching are deeply discouraged by the prospect of debt, more so than many others because teachers are not exactly highly paid. Is there no possibility of special scholarships for people who commit themselves to teaching? If there were scholarships, there would necessarily be a test of their quality and we should know from the beginning that we were taking on people who could become good teachers.

My Lords, there is actually no evidence that the current system of student support is discouraging young people from entering teaching: the numbers have gone up rather than down since the new student support arrangements were introduced. However, it may help the noble Baroness if I say that, regarding PGCEs—the largest shortages are, of course, at the secondary level—a system exists where teachers training and studying for a PGCE do not pay tuition fees.

My Lords, will the Minister say what evidence there is that young men actually wish to work with primary schoolchildren? Would her resources, currently used to advertise for such schoolteachers, not perhaps be better spent on recruiting part-time male mentors for primary schoolboys in particular, and Afro-Caribbean boys most especially?

My Lords, while most young men seem to prefer to enter secondary teaching, there is a core who want to teach younger children. There is no reason why men should not make good teachers of younger children. The noble Earl's proposal for introducing male mentors is not in any way inconsistent with trying at the same time to encourage more young men to enter primary teaching.

My Lords, given that the Government have chosen to give above-inflation pay rises to particular groups of nurses, is it their intention to do the same for teachers?

My Lords, the teaching profession was given an above-inflation pay rise last year. We are now waiting for the recommendations of the review body. It would be quite wrong for me to pre-judge what the review body will say.

asked Her Majesty's Government:

Whether they intend to implement the main recommendations of the Disability Rights Task Force.

My Lords, I announced yesterday during the Second Reading of the Learning and Skills Bill that the Government will be bringing forward a Bill later this Session to give effect to the education recommendations of the Disability Rights Task Force. That will secure comprehensive civil rights for disabled people in school, further, higher and adult education. The Government are already taking forward a number of the task force's other recommendations and are considering the remainder.

My Lords, I welcome that reply and the early action by the Government on the recommendations on education and their consideration. However, is my noble friend aware that Britain's 8½ million disabled people want more than that? The only hope they have for comprehensive civil rights is the implementation of all the proposals. Will my noble friend agree that the real problem is timing, especially as it is subject to the turbulent vagaries of politics? The best solution, in my opinion, would be to have a specific timetable for every single recommendation so that disabled people know where they are and, perhaps more importantly, the Government know where they are.

My Lords, I am sure that the Disability Rights Commission, the members of which were announced yesterday, will want to remind the Government constantly of the need to have as clear as possible a timetable for implementing the recommendations of the Disability Rights Task Force. However, my noble friend will be well aware that a number of the 150 recommendations of the task force require legislation. It is rather difficult for the Government to have a precise timetable with regard to legislation because it will depend a great deal on parliamentary pressures.

My Lords, as many of the recommendations are simply that a matter be included in future civil rights legislation, are the Government planning a general civil rights Bill on areas other than education, to which the Minister referred, and if so, what would be its timing?

Further to my Question last Tuesday, has the Minister noticed that recommendation 7(4) on guide dogs and taxis recommends that Section 37 of the Disability Discrimination Act 1995 be put into force immediately?

My Lords, with regard to legislation involving a civil rights Bill, I cannot give an answer to the noble Lord because the Government have not yet been able to make any decisions. We must remember that we received the task force's report only on 13th December. Clearly that matter will have to be looked at. The Government are considering all the recommendations and I hope to be able to let the House know, as that consideration proceeds, what decision the Government have made on that question.

I turn to the more specific point that the noble Lord raised about guide dogs and taxis: the Government are consulting on that matter and we have asked for responses by the end of March.

My Lords, does the Minister agree, if we are talking about transport in particular, that it is absurd for a journey to be covered by only part of the regulation? With that in mind, will the Minister agree that a date for the access of all disabled people to train services should be introduced straightaway, as already exists for other types of transport, such as buses and coaches?

Yes, my Lords, I accept that point. There is incidentally also a strong case for ending the exclusion of transport from the DDA Part III rights currently in force. That will require primary legislation, but the Government will be consulting on that matter also.

My Lords, I am delighted by the Government's decision to implement the task force's substantive recommendations on education and by Bob Niven's appointment as Chief Executive of the Disability Rights Commission. But can my noble friend say whether any of the other key recommendations will be implemented in the present Parliament and, in particular, those on transport, on extending the Disability Discrimination Act to the uniformed services and on reducing the employment threshold below 15 or, preferably, removing it altogether?

My Lords, clearly I cannot say whether those many recommendations will be implemented within this Parliament. Those that require legislation are unlikely to be implemented within this Parliament because the Queen's Speech has already been made and we have a full legislative programme. Where matters do not require legislation, the Government will try to make progress and go ahead as fast as possible. My noble friend raised the specific issue of the small employers' exemption. We had a number of debates about that matter in the Bill setting up the Disability Rights Commission. We agreed that the threshold should be reduced over time. We have already lowered it from 20 to 15, but we want to make progress in partnership with all interested parties, bringing business with us as we go.

My Lords, since we are told regularly by the Government Front Bench that the difference between; ask forces and non-departmental public bodies is that they are ephemeral, will the noble Baroness tell us when the task force to which she has just referred will be abolished?

My Lords, the task force has already been wound up with the appointment of the Disability Rights Commission.

asked Her Majesty's Government:

What is the maximum wind strength which the Millennium Wheel (London Eye) has been designed to withstand (a) when stationary and (b) when in use.

My Lords, the Millennium Wheel is designed to withstand a wind speed of 45 miles per hour/20 metres per second when it is in use. The Wheel will not be used at speeds above that. The maximum speed which it is designed to withstand when it is stationary is 94 miles per hour/42 metres per second.

My Lords, I am most grateful for that very helpful reply. However, is it not the case that there has been a good deal of disappointment about the condition of the Millennium Wheel and can the Minister now tell us when it is likely to go into full service?

My Lords, I cannot say precisely when that will be. The decision is clearly a matter for British Airways and the operating companies. As they have indicated, they are replacing the clutch system which was found to be faulty before the Millennium, and they will bring it into service as rapidly as possible. However, that is not a matter for government.

My Lords, if the Wheel gets stuck, is one meant to wait there for several days or is there a ladder long enough to get one off the top?

My Lords, the procedures that accompany the operation of the Wheel include an emergency exit. I fear that I am unable to explain to the House precisely how that operates, but both the technical advisers to the company and the Health and Safety Executive will insist that such emergency procedures exist.

My Lords, will the noble Lord tell us approximately how long it will take for the Wheel, with or without assistance from the wind, to make a complete revolution when it is fully loaded?

My Lords, I believe that that is also probably an operational matter for the company concerned. It takes quite a long time—I should think of the order of half an hour. There are 32 carriages and it is quite a big wheel; therefore, I should say that it will take a fair amount of time.

My Lords, bearing in mind the wind speeds, is 94 miles per hour really going to be enough, considering the recent storms in northern France?

My Lords, 94 miles per hour is the gust speed, and I am assured that that has only ever been reached once—at the time of the hurricane in 1987.

My Lords, will the Wheel have anemometers on the cars?—otherwise, bearing in mind that wind speed is variable according to altitude, how will one know when 45 miles per hour has been reached?

My Lords, the 45 miles per hour speed relates to a certain height of 10 metres. Clearly, the wind speed may well be higher at a higher point. However, the structure is designed to withstand a wind speed of 45 miles per hour in motion and 94 miles per hour when stationary at that height. The structures conform with all the standards that have been promulgated by the health and safety authorities on all steel structures.

My Lords, is the Minister aware that many of us believe that this is a great visual asset to London?

Oh!

Well, my Lords, I certainly do. I believe that it is an additional landmark and I am very supportive of it. Will the Minister tell us whether thought is being given to the Wheel continuing there in the long term, rather than just in the short term?

My Lords, I concur completely with the noble Baroness in relation to the Wheel's visual impact. I believe that it is a magnificent addition to the Thames side and, indeed, to the view down Victoria Street. It sets off the rest of those historic buildings most effectively. Clearly, the case for its continuing operation is, in a sense, a matter for the company. However, I understand that the intention is that it will operate for at least five years, and that it is capable of lasting longer.

My Lords, in view of the possible mishaps to which the noble Lord has alluded, can the Minister say whether the liability of British Airways to its potential passengers is unlimited or whether it is restricted by some international convention?

My Lords, I believe that that is very much a matter for British Airways, which, I am sure, has covered itself adequately in relation to insurance, as it has done on all safety issues. The Wheel is not an aeroplane and, therefore, so far as I am concerned, is not covered by international conventions.

asked Her Majesty's Government:

Whether they will create new special bus lanes on motorways and trunk roads, consider allowing their use by vehicles carrying two or more persons and establish time limits on the use of such lanes.

My Lords, Her Majesty's Government are committed to making the best possible use of the existing trunk road system in tackling problems of traffic congestion. That may, at certain specific locations, involve designated lanes. However, I do not envisage their widespread use in the immediate future on the motorway and trunk road network outside urban areas. Where such lanes are appropriate, consideration needs to be given on a case-by-case basis as to what vehicles may use them and at what times.

My Lords, I thank the noble Lord for that Answer. Can he tell us what advice or consultation took place with other countries which have such roads, particularly with regard to their operation, and does he agree that the more commuters car-share the better?

My Lords, I absolutely agree. Clearly, in the long run, a reduction in the number of car journeys is appropriate, particularly at peak commuter times. It is noticeable, for example, that at the moment on the way into London approximately 80 per cent of car travel is made by single occupants. That matter must be addressed, and a policy of education and persuasion must be adopted to get people to change their habits.

My Lords, with regard to congestion, does the Minister agree that, in aggregate terms, the bus lanes are not strategically very significant and that we should be reducing the number of car journeys in this country, first, by genuinely understanding the needs of the public and, secondly, by recognising that 68 per cent of car journeys are terribly short? However, does my noble friend also agree that the suggestion of the noble Lord, Lord Montagu, of encouraging car-sharing is rather a good one?

Yes, my Lords, I believe I have indicated that I consider it to be a good suggestion and one which individuals and employers should encourage. The bus lanes on motorways and trunk roads may be a relatively small feature of our transport system. However, bus lanes within urban areas have proved most effective and have, for example, improved the average journey time of buses in London by 29 per cent. Those journey times could be significantly further improved if there were no obstructions. I believe that, certainly in the urban environment, bus lanes have proved their worth.

My Lords, can the Minister confirm a report in The Times today that, rather than reducing traffic or, indeed, holding traffic at present levels, Ministers will concede today that traffic levels will rise by more than a quarter over the next decade? If that is true, would it not be better—I think particularly of the M4 bus lane—to scrap bus lanes altogether because all that motorists see on the M4 bus lane are tourist coaches, taxis and the occasional Government Minister?

My Lords, I am not sure whether I have recently passed a copy of a leaflet to the noble Lord, Lord Brabazon, which proves through independent research that at peak times travel times for car drivers on the M4 have improved significantly. There are always a number of taxis on that road, most of which are full of bona fide travellers and not Government Ministers, who, of course, are bona fide travellers in a different sense!

So far as concerns the figures which will be released today by my noble friend Lord Macdonald, the base line figures show an increase in traffic in most areas. However, the various combinations of government policy, applied effectively, would reduce significantly levels of congestion and pollution—the most important issue—rather than traffic volume. That is particularly so in urban areas and to a significant degree on motorways, where traffic is likely to increase most. I suggest that the noble Lord reads that document in detail before he comments further.

My Lords, will the Minister, in association with his colleagues in the Home Office, take steps to ensure that all police forces in the country co-operate with local authorities in using camera technology to enforce discipline in bus lanes, wherever those bus lanes are?

Yes, my Lords. One of the issues to be addressed in the better funding regime we are piloting in relation to speed cameras is the enforcement of parking and lane restrictions. As I have indicated, that will help to improve traffic flow, particularly in congested urban areas. More generally, police forces and chief constables will be following advice to give greater attention to road safety matters including the congestion of bus lanes.

My Lords, will greater consideration be given to allowing powered two-wheelers, which are both economic and environmentally friendly, further use of bus lanes? As the majority of accidents to these vulnerable, powered two-wheelers are ca used by other people, does he think that in heavily congested areas bus lanes would be by far the best place for them?

My Lords, local experiments have been carried out where powered two-wheeler motor cycles have been allowed to use bus lanes. The results are not absolutely clear. Nevertheless, I recognise that in certain circumstances, powered two-wheelers can make a contribution to reducing congestion in urban areas. We would wish an integrated transport policy to take full cognisance of that fact.

My Lords, as the Minister has broadened his answers to include digital cameras, can he confirm reports that the cost of installing them will be met by a substantial increase in parking fines, possibly of 50 per cent?

No, my Lords. Perhaps the media and possibly the noble Lord, Lord Elton, are confusing two separate stories. The funding of such cameras and associated road safety improvements is, indeed, being put on a better and more hypothecated basis. However, the increase in the fixed penalty charge recently indicated by the Home Office relates to a general upgrading of fixed penalties. The previous figure had remained the same for over 10 years. Therefore, an increase was well overdue.

My Lords, can the Minister explain how the Government's policy of reducing car use, or at least stabilising it in future, squares with the policy, which I understand that the DTI wants to pursue, of relaxing almost completely the planning rules on out-of-town "mega" shopping areas?

My Lords, again, I believe that the noble Lord is reading too much into newspaper reports. There has been no change in the planning system as regards out-of-town shopping areas. As regards the general approach to car use, there is a huge underlying growth in traffic, as has been discussed, and it is a case of restraining such traffic. The real issue for motorists and society as a whole is to restrict congestion and pollution. We believe that the measures we are taking will achieve those objectives.

moved Amendment No. 1:

Before Clause 1, insert the following new clause—

My Lords, in explaining his amendment the noble Lord, Lord Campbell of Alloway, mentioned that he is assuming that Clauses 11 and 14 to 25 will not form part of the Bill. He also mentioned the question that was raised in Committee and on Second Reading about the applicability of the Bill in terms of active service. Your Lordships will remember that in Committee I proposed that Clauses 11 and 14 to 25 should not stand part of the Bill. Therefore, it is appropriate that I should explain at this stage why I have not tabled any such amendment on Report.

During the Christmas Recess I took legal advice, as I hope the Minister did. I took such advice from sources that are far more familiar than I am with the goings-on at the European Court of Human Rights. That advice was very clearly that if the existing arrangements for the Army and Air Force Acts over election for trial by court martial at the end of summary proceedings rather than at the beginning were to remain, we would almost certainly lose the case at the European Court, even if we did not lose it in a court in this country. However, more importantly, in the course of that being considered by the European Court, the danger is that the whole issue of whether summary proceedings were themselves in conformity with the convention on human rights might be brought into question. That would be extremely dangerous; indeed, far more dangerous than just bringing the election of trial by court martial to the beginning instead of the end of summary proceedings.

The latter argument has certainly convinced me and it is the one which, I believe, has convinced the senior officers in the Ministry of Defence, as claimed by the Minister in Committee. I accept that they have been converted to full support of this Bill. I should not like to guess exactly when they were converted, but they have been converted.

I am not quite sure of the extent to which the amendment of the noble Lord, Lord Campbell, is dependent on Clauses 11 and 14 to 25 staying in the Bill. However, I should like to make it clear now that I assume that they will stand part of the Bill, and that I do not oppose them standing part of the Bill. As to the operation of the whole system, particularly the clauses before Clause 11, in times of active service and high intensity warfare—I certainly still agree that it could not be made to work in those circumstances—I accept that there need not be anything in the Bill to cover that situation. I believe that a precedent already exists in the derogation that the British Government made over the civil courts in Northern Ireland, which is fully explained in Schedule 3 to the Human Rights Act, and that that would be the way to deal with the issue.

However, I am not sure in my mind because I have other worries about the amendment of the noble Lord, Lord Campbell of Alloway, as regards its relation to other courts. If the amendment is dependent on Clauses II and 14 to 25 not remaining part of the Bill, I should make it clear that I am assuming that they will remain part of the Bill.

My Lords, I suggest that what the noble and gallant Lord, Lord Carver, has said makes it clear that there is a serious confusion which could cause trouble in the administration of law within the Armed Forces. That confusion is caused by our obligations under the European Convention on Human Rights and is to a great extent confirmed by the Human Rights Act of last year and by this Bill. It is right that an attempt should be made to reconcile those confusions. For that reason, I think that what my noble friend Lord Campbell of Alloway has proposed with his new clause must be regarded as a valiant attempt to reconcile these problems.

As my noble friend mentioned, I tried to resolve the problem in Committee in a rather short and simple way. However, the noble Baroness, on behalf of the Government, would not accept my amendment. I have tabled the amendment again, although it appears starred on the Marshall List for a strange reason that I may mention when the time comes to deal with it. I believe that the Government really must seriously consider the confusion that can and will arise on many occasions in the three Armed Forces, unless we try to find a way of reconciling the conflicting problems.

My noble friend has made a splendid attempt in this respect. Of course, one could amend his proposed new clause in various minor ways. However, I think that the Government should, in principle, say that they realise there is this confusion and that it must be resolved somehow. I should have thought that the right thing for the Government to do is to say that they will accept the new clause, realising that they have power to amend it either on Third Reading or when the Bill goes to another place.

Before I conclude I hope that I may mention what my noble friend Lord Campbell said about the part that I played half a century ago when I was one of the representatives—I was a Back-Bench Member in another place—attending the Council of Europe. I went there in 1951 and 1952. By the time I got there in 1951 the European Convention on Human Rights had already been approved. My recollection is—I remember looking up the discussion which had taken place before I got there—that the purpose of the convention was to protect the people of Europe from further instances of the kind of terrorism and horror which had prevailed during the Second World War and which many thought would continue afterwards.

In that context I do not think that there was any attempt to consider and to reconcile the effect of that convention on discipline within the Armed Forces of the European countries. It is rather strange that the conflict could only have arisen almost half a century later. But it has arisen and we have a duty to try to reconcile it. It is for those reasons that I suggest that the Government should apply their minds seriously to this matter and if they do not accept the amendment of my noble friend find a way of their own. However, a good step towards doing so would be to accept his amendment and, if necessary, amend it later.

My Lords, I have not taken part in the previous debates on this Bill but I have carefully studied the Hansard reports. My military qualifications for taking part are rather meagre. During the Suez war I had the privilege of performing national service in the Royal Artillery first as a field gunner and later as a second lieutenant working with but not of the First Brigade of Guards, based in Kent. I suppose that I was on active service in the sense that we were at 24 hours' notice to embark for Egypt, but perhaps happily for others we never left our barracks in Shorncliffe. As a teenage subaltern I assisted in one court martial and on occasion I had to enforce discipline, including briefly depriving offending gunners of their liberty. That experience scarcely qualifies me as an expert on military law and discipline but it convinced me that the regime for dealing with disciplinary offences was archaic and unfair.

A better reason for venturing into this debate in the presence of so many noble and gallant Lords, including the noble and gallant Lord, Lord Carver, with whose legal advice I respectfully agree, is my knowledge and experience of the human rights convention and its case law. The Minister has made a statement under Section 19 of the Human Rights Act 1998 of her view that the Bill is compatible with the convention rights. It is unfortunate that the Government have not sought to set up the long-promised Joint Select Committee on human rights because I have no doubt that such an expert committee would agree with the Minister's view. In the absence of such a committee I shall do my best to explain, as an unworthy substitute, why I believe the Bill to be compatible with convention rights, why I think that it is appropriate and necessary and why I believe that the amendment proposed by the noble Lord, Lord Campbell of Alloway, is inappropriate and unnecessary. I shall also try to explain why the recollections of the noble Lord, Lord Renton, are not totally accurate—there is no reason that he would know this—as regards what went on in the Cabinet before we decided to ratify the convention in 1950.

The Bill secures the convention right to liberty, guaranteed by Article 5, the right to a fair trial by an independent and impartial tribunal, guaranteed by Article 6, and the right to the enjoyment of these convention rights without discrimination, as guaranteed by Article 14. Without this legislation—this Bill—there would be a serious risk that when the Human Rights Act 1998 is in force next October Ministers and senior officers of the Armed Forces would be vulnerable to legal challenge under the existing legislation, with collateral damage to morale, good order and military discipline. The Bill sensibly diminishes that risk—it cannot be eliminated altogether—and the Government are to be commended for introducing a measure to bring our statute book and practice fully into line with convention standards.

When the Human Rights Act is in force British courts will have not the power but the duty of construing legislation where possible compatibly with the convention rights, applying the well-known principles of legality, fairness and proportionality developed by European and Commonwealth courts. Our courts will do so more rigorously than does the European Court of Human Rights as an international court because that is what Parliament has decided that they should do by enacting the Human Rights Act. With effect from next October all public authorities, including Ministers, government departments and officers of the Armed Forces performing functions of a public nature, including disciplinary functions, will be liable for any failure to comply with convention rights in the way they per Form those functions. Therefore the Government are acting in the interests of commanding officers and in the interests of service personnel as well as in the wider public interest in introducing a system which will protect convention rights and avoid unnecessary litigation by lawyers such as myself.

In my view the Bill achieves a fair balance between two vital public interests: the public interest in creating a framework of discipline to be applied effectively to the three Armed Forces wherever in the world they are based in peacetime and in times of conflict; and the public interest in ensuring that the civil rights of service men and women are effectively protected against any abuse of essential disciplinary powers. I am fortified in my opinion by the fact that the Chiefs of Staff have been fully consulted on the changes and endorse the need for them.

Critics of the Bill in this House have made much of the fact that when France ratified the convention in May 1974 it ma de a reservation in respect of the Armed Forces. So, more recently, has Turkey. The French reservation was not open-ended. It was specifically linked 10 the effect of Articles 5 and 6 of the convention on Section 27 of Act No. 72–662 of 13th July 1972 governing the system of discipline in the French armed forces and to the provisions of Article 375 of the French code of military justice. I am not an expert on French law and I cannot inform the House of the scope of those provisions, nor whether their compatibility with convention rights has been challenged. What I can say is that the European Court of Human Rights would interpret the French Government's reservation narrowly to ensure that it did not in any way undermine the very substance of the convention rights to liberty and to a fair trial without discrimination. Opponents of the Bill would be most unwise to draw support from the French Government's reservation, which does not in any event apply to the UK or to any other contracting state. Turkey's reservation has been circumvented by the European Court in the case of Loizidou for slightly different reasons.

Departing for a moment from this theme, as regards the Attlee government of 1949 to 1950 and the first Wilson government in 1965, having read the debates. I read again overnight the Cabinet papers which recorded what happened before we ratified the convention and before we decided to accept the right of individual petition. The then Lord Chancellor, Lord Jowitt, was concerned that ratification would be incompatible with the visiting forces Act in relation to American forces in Britain and the absence of any right to habeas corpus. That was the only issue with regard to military law which troubled the government in 1949 to 1950. Similarly, when the Wilson government decided to accept the right of petition—although by that time it was perfectly clear from the text of the convention and from case law that it applied to the Armed Forces—the Ministry of Defence and other government departments found no difficulty so far as concerned the absence of a reservation.

Coming more to the present, pre-trial custody involves an interference with right to liberty for which there must, under the convention, be adequate safeguards against abuse. The Bill provides for adequate internal and external safeguards in three ways: by requiring the commanding officer to review the need for continuing custody; by requiring the commanding officer to apply the criteria prescribed by the Police and Criminal Evidence Act; and by requiring a judicial officer to approve continuing custody in excess of 48 hours. I believe that these changes are necessary to secure full compliance with Article 5, including adequate safeguards against possible abuses of discretionary powers. The fact that the judicial officer will normally be a judge advocate or a naval judge advocate, who exercises independent judicial functions in courts martial, ensures the necessary safeguards of independence and impartiality as well as the necessary expertise.

The changes made to the procedures for summary discipline are also, in my opinion, needed to secure full compliance with Articles 5, 6 and 14, by giving a right of appeal from summary hearings and by establishing a summary appeal court, consisting of a judge advocate and two independent officers, generally from the appellant's service, with public hearings and a limitation on sentencing powers to ensure fairness and proportionality.

The amendment of the noble Lord, Lord Campbell of Alloway, would, as we have heard, create an Armed Forces human rights court consisting of between two and four members of the Armed Forces, appointed by the Secretary of State, sitting with a senior member of the judiciary as president, appointed by the Lord Chancellor. The court would deal with appeals from decisions of courts martial or the courts martial appeals court on questions relating to the application of the convention, and would be convened by the Secretary of State as and when it was expedient, in his opinion, to attend to business.

There are several objections to the amendment. First, it is unnecessary because courts martial and summary appeal courts will be obliged, under the Human Rights Act and under the Bill, to interpret and apply the law compatibly with convention rights, as will every other court and tribunal in the land. There is no need to add a further tier of statutory appellate jurisdiction.

Secondly, the requirement that the president of the proposed court must be a senior member of the judiciary would impose a considerable and unnecessary additional burden on the already overburdened senior judiciary.

Thirdly, there is nothing to be gained by the amendment in terms of the composition or expertise of the appellate court. Clause 15 of the Bill provides for judge advocates, who must be of at least five years' standing as qualified lawyers, to be appointed by the Judge Advocate General and the Chief Naval Judge Advocate. Clause 16 provides that officers will be qualified for membership of the summary appeal court if they are commissioned military officers in any of Her Majesty's naval, military or air forces with not less than two years' service. Clause 21 provides for the case stated procedure to the High Court on the ground that the summary appeal court's judgment is wrong in law or in excess of its jurisdiction. The respondent to the appeal could presumably challenge the decision by way of judicial review in the High Court, although that is a matter that the Minister may wish to clarify. Obviously it is important that respondents as well as appellants should have some means of access to the most senior courts.

Fourthly, under the amendment it would be left to the Secretary of State to decide when to convene the proposed human rights court. It is difficult to understand why the Minister should decide that question. The Bill is more flexible and practical, enabling the summary appeal court for each service to sit in two or more divisions, enabling a number of courts to sit in different places to hear different cases at the same time, as the interests of justice require.

I regret that I cannot be present throughout the whole of the debate on the Bill—I have to chair a meeting elsewhere—but I hope it is clear from what I have said that I regard the opposition to the Bill as misconceived and contrary to the best interests of the Ministry of Defence and the Armed Forces, officers and service personnel. If I may say so, nothing has been more debilitating to service morale than the completely unnecessary litigation against the Ministry of Defence, involving sex discrimination against pregnant women and others, race discrimination and sexual orientation discrimination. The reason I call it "unnecessary litigation" is that it must have been plain to everyone that all such litigation was bound to lead to defeat for the Ministry of Defence, at enormous expense to the taxpayer and to the morale of people in both the ministry and the Armed Forces. The Government surely are sensible in seeking to avoid further unnecessary litigation by creating a fair, rational and practical new statutory framework.

My Lords, I have listened with great interest to the noble Lord, Lord Lester of Herne Hill. I hope that he will accept—certainly in my case and, I believe, in that of others—that those of us who have been tabling amendments to the Bill are not against the principle of human rights applying to the Armed Forces. We are seeking to test whether the solution that the Ministry of Defence has come up with in the Bill is the best solution from the service discipline point of view. The wise words of the noble Lord, Lord Renton, and the amendment that we are now discussing, have been very helpful in testing whether the solution brought forward by the Minister is the very best one possible. I hope that the House will approach the matter in that way and not by way of assuming that we are trying in some way to disown the obligations of the Ministry of Defence under the Human Rights Act.

When the Human Rights Bill was passing through the House I tried very hard to obtain some arrangement which would minimise the impact of the human rights legislation so far as it concerned forces discipline. I failed in that, but I am very pleased that the matter has come forward in this form. I very much look forward to what the Minister has to say in response to the amendment.

My Lords, I agree with the noble and gallant Lord. We all agree about the common objectives; the question is one of means. It is quite clear from Article 11(2) that the convention applies to the Armed Forces. We agree about that.

My Lords, is this not Report stage? We do not have points of order, but we do not have more than one speech. The noble Lord perhaps has not been here long enough to realise that.

My Lords, I, too, should hate to see the amendment of the noble Lord, Lord Campbell of Alloway, dismissed like that. It is an extremely helpful amendment.

Like my noble and gallant friend Lord Carver, I do not want to make it more difficult for the Chiefs of Staff than it is already. There is no question that, however necessary the Bill proves to be, it will be highly unsatisfactory in practice in many ways for the commanding officer and for the administration of justice, particularly on active service. I do not want to go over all the arguments again but I do want to ask the Minister one question: in view of the detailed legal arguments that the House has just heard from the noble Lord, Lord Campbell of Alloway, and in view of the very important observation made by the noble Lord, Lord Renton, can the noble Baroness put her hand on her heart and say that she has gone back to the legal advisers of the Ministry of Defence and asked them whether they must be quite as inhibiting as they have proved to be?

It has been suggested that some of these contrivances are not really necessary. We want to know that the Ministry of Defence is looking for some way of perhaps reconciling these two opposing issues. I know that the Chiefs of Staff are in a very difficult position; they certainly do not want to expose the various military procedures or in any way lose the powers of a sum nary court. But undoubtedly there will be problems. As has been said many times, the Bill will slow and confuse the administration of justice; it will undermine the authority of the commanding officer; it will be extremely difficult to administer, particularly on active service; and it will greatly add to the workload of the commanding officer and the various staffs involved at a time when they are already extremely stretched. One certainly does not want to do more than is absolutely necessary. I should like an assurance from the noble Baroness that she has looked at this matter again in a questioning manner and asked whether more could be done to rationalise these different points of view.

My Lords, at Third Reading of the Human Rights Bill on 5th February 1998, the noble and learned Lord the Lord Chancellor said:

"I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces. I have given an indication about willingness to consider designating military courts as the appropriate forum for the consideration of complaints on convention grounds by Armed Forces personnel. On that basis I invite the noble Lord to withdraw his amendment".—[Official Report, 5/2/98; col. 768.]

At the time the amendment in question was that of my noble friend Lord Campbell of Alloway. Will the noble Baroness look again at the amendment tabled today by my noble friend in the light of that statement by the noble and learned Lord the Lord Chancellor? Furthermore, can she tell your Lordships' House in what way the amendment of my noble friend differs from the aspirations of the noble and learned Lord the Lord Chancellor?

I listened to the speech of the noble and gallant Lord, Lord Bramall, with great interest. It seems that we can fix ourselves somewhere on the spectrum between the minimum necessary to be compatible with the human rights convention and the maximum possible. I agree with the noble and gallant Lord; I shall be interested to hear from the Minister where she believes us to be on that spectrum.

Having listened to the noble and gallant Lord, Lord Carver, in Committee, I thought that his amendments to Clause 11 and Clauses 14 onwards were absolutely spot-on—to have the appeal to a court martial after the summary decision but before sentencing arid to remove entirely the appeal from summary sentence. I submit to your Lordships that that ought to meet the requirements of the convention. It would also remove enormous difficulties for commanding officers. Above all, it would allow the commanding officer to retain that authority in peacetime which we know is so necessary to him if he must go to war.

In supporting the noble and gallant Lord, Lord Bramall, I urge the Minister to think carefully about whether she can take an initiative of some kind to remove both options so that the provision of one option would satisfy the criteria laid down by the convention.

My Lords, I should like to apologise to the House for not being present at the Committee stage of the Bill. Unfortunately I was ill. I am not a lawyer. Rather, I am speaking to the amendment as a former commanding officer.

I wonder whether this amendment. which would establish an Armed Forces human rights court, might add yet another level of bureaucracy, cause more expense and possibly extend the time for dealing with disciplinary offences when perhaps the existing military courts would be able to deal with them. During the past week I have read the reports of the Second Reading and the Committee stage, the revised Bill and the Explanatory Notes in considerable detail. I constantly put myself in the position of a commanding officer and, for that matter, the adjutant who is responsible for the staff work of dealing with court martial papers.

With all due respect to my noble friend Lord Campbell of Alloway, who has worked so hard on the Bill, I am not sure whether an Armed Forces human rights court would simplify the proposed systems in the Bill. A commanding officer will be able to deal summarily with military offences provided that summary appeals courts are established. That would then make summary dealings comply with the European Court of Human Rights. I may have missed the point here, but it seems to me that, although this may not be entirely satisfactory, the aim to ensure that the commanding officer retains his authority to deal summarily with military offences has been achieved. However, this will allow an accused to appeal against finding and sentence which, as many noble Lords have pointed out at various stages, might undermine a commanding officer's authority. However, an accused has always had the right to submit for redress of grievance and this has not undermined the authority of the commanding officer.

I do not believe that there is a better way than that proposed in the Bill to make trial by the commanding officer compliant with the European Court of Human Rights, or a better way to protect the rights of summary dealings. I do not believe that the staff work will be dramatically increased because the commanding officer will deal with the deputy judge advocate general's department in a similar manner to the way he now deals with the Directorate of Army Legal Services. In other words, the Directorate of Army Legal Services will release some responsibilities which the deputy judge advocate general and judicial officers will then take on.

If I was a commanding officer, I would willingly accept the proposals in the Bill to ensure that disciplinary offences could still be dealt with by the commanding officer as opposed, perhaps, to having them dealt with in the magistrates' court, which would be utterly disastrous.

My Lords, my noble friend Lord Campbell of Alloway has a habit, which he has used effectively on a number of occasions, of moving amendments to appear before Clause 1. This enables him to get in first and to generate a full-blooded debate, not only on his own amendment, but on the Bill as a whole. It is therefore his fault that we have had the benefit of a full-scale Second Reading speech from the noble Lord, Lord Lester, who, with his great knowledge and wisdom as a lawyer, has added to that a full-blooded Committee stage contribution.

The noble and gallant Lord, Lord Carver, has raised the important point as to the position, if this amendment is accepted, regarding the opposition in Committee by the noble Lord, Lord Chalfont, and a number of other noble Lords to the Question. That Clauses 11 and 14 to 25 should stand part of the Bill.

At an earlier stage in the debate the Minister said that one of the purposes of the Bill before us is to demonstrate that life has moved on since the introduction in 1951 of the European Convention of Human Rights, or indeed the original date of the existing Army Act 1955. However, with respect to the noble Baroness the Minister, I suggest that 95 per cent of the purpose of the Bill is to ensure compliance with the Human Rights Act and the European Convention on Human Rights. Throughout the discussions on the amendments moved by my noble friends and others runs the theme that we wish to ask the Government: does this amendment ensure that the Bill is compliant with the Human Rights Act and is it necessary for that Act? In that context, we shall be moving Amendment No. 23, which is an amendment to the Title of the Bill. However, we are now discussing the amendment of my noble friend Lord Campbell of Alloway, which seems, in spite of what may be said by my noble and gallant friend Lord Vivian, to simplify an appeals stage of the court martial procedure. It is in itself not the easiest amendment, but, with respect to the noble and gallant Lord, Lord Carver, it enables us to remove all these other clauses.

I am delighted to have the support of my noble friend Lord Kingsland, another noble Lord who has immense legal knowledge, whose views I trust implicitly. He and the noble Lord, Lord Campbell, have referred to the remarks of the noble and learned Lord the Lord Chancellor on what is now the Human Rights Act. What the noble and learned Lord said at that time gave absolute assurance that what we had was very nearly, though not quite, what we needed. However, the noble Lord, Lord Campbell of Alloway, has moved his amendment. It is an excellent amendment. I hope that the House will accept it.

My Lords, the amendment proposed by the noble Lord, Lord Campbell of Alloway, revisits an issue that first emerged in your Lordships' House during the consideration of the then Human Rights Bill and has since been raised at the Committee stage of this Bill. I am grateful to the noble Lord for the way in which he has argued his case about his specific amendment and also for the opportunity he has afforded the House for a rather wider-ranging exchange.

At the Committee stage we established that the desire for this amendment arose from the debate on the Human Rights Bill in which my noble and learned friend the Lord Chancellor undertook to look into the question of designating military courts to deal with convention points arising in the Armed Forces. At the Committee stage I advised the House that the Ministry of Defence had given the proposition very careful thought, but in the end had decided against it for the reasons I then stated. I wish to make it clear that when I speak of the Ministry of Defence I am, as with all the other issues concerning the Bill, talking about a process of consultation with the services. Since the noble Lord tabled his amendment, I have of course sought further advice. I have, as the noble Lord, Lord Renton, put it, applied my mind. In the present case, the staffs of all three services were clear that, after careful consideration of the matter, they saw no justification for setting up, training and staffing such a court.

However, I should say that the proposition that they were focusing on concerned the possibility of convention points arising in isolation from disciplinary proceedings. This amendment, on the other hand, is concerned with convention points arising in the course of disciplinary proceedings. I think it is important to be clear about that distinction.

We do not consider there to be an issue where convention points arise in the course of proceedings. They can be raised in an accused's defence. If the accused is not content with the outcome of the hearing or trial, he or she has a right of appeal to a court which can deal with any convention points raised in the appeal. These appeal courts are within the service system—either the summary appeal court or the courts martial appeal court. In this respect, I believe that they satisfy the noble Lord's concern that service courts should deal with this kind of convention point.

As the noble Lord, Lord Lester of Herne Hill, said, we certainly do not need a new court even further up the hierarchy of service courts to deal with convention points alone. If an accused wishes to appeal from the decision of the courts martial appeal court on a convention point or any other point, he or she would be able to seek leave to appeal to this House in its judicial capacity. I have every confidence that the House would be fully capable of understanding any service factors that were relevant to the case, and we should of course appoint experienced lawyers to represent the service interest.

I mentioned that the services have examined the possible case for a designated military court to deal with convention points arising in isolation from disciplinary proceedings. Quite frankly, the services did not think that there would be enough business to justify its establishment. There is confidence that there will be very few convention points arising solely in isolation in the service environment. That expectation is not borne of complacency, but because it seems likely that most convention points which do not arise in the course of disciplinary proceedings will nevertheless be attached to another cause of action. For those that do arise in isolation, we still consider that the High Court would be the most appropriate place to deal with them. Again, we would make sure that the service interest was not overlooked by these courts, since we would be properly and appropriately represented.

I have to applaud the persistence of the noble Lord in his pursuit of the cause of creating new courts to deal with convention points in the services. I genuinely believe that there is no difference between the noble Lord's concern and our concern to get the right answers to the questions. However, we are quite firm in our view that there really is no need for such courts. All the various types of cases can be dealt with perfectly adequately elsewhere.

Moreover, we do not want to incur the expense involved in creating new courts for this purpose. Even an ad hoc court as described by the noble Lord—he said that it would be used as and when needed—would use resources better deployed elsewhere and, more importantly, would not gain the depth of experience necessary to do justice to the claims, experience which is readily available in the civilian judicial system.

The noble and gallant Lord, Lord Carver, explained why he will not pursue the amendments which he moved at the Committee stage. I am grateful to the noble and gallant Lord for his explanation and, if I may say so, not a little relieved that the advice he has received is so very similar to the advice I myself received.

I thank the noble Lord, Lord Lester of Herne Hill, for his intervention. His expertise on the European convention is among the best available in this country and is well known in your Lordships' House. I am sure that the lawyers in government service who have advised me, as well as those who have advised the noble and gallant Lord, Lord Carver, will be relieved in that regard.

The noble and. gallant Lord asked about the derogation that is used in Schedule 3 to the Human Rights Act. The derogation in Schedule 3 is a real example of the use of a derogation under Article 15 of the convention. It is a derogation from the convention in order for Her Majesty's Government to rely upon the provisions of the Prevention of Terrorism Act. The reason for the derogation is that the situation in Northern Ireland might be such that it is in our view a public emergency threatening the life of the nation—to use the words of Article 15 of the convention itself. The noble and gallant Lord asked whether such a derogation can be used in times of armed conflict. The answer to his question is yes—if the armed conflict is a public emergency threatening the life of the nation.

The noble and gallant Lord, Lord Craig of Radley, made clear that his misgivings about the Bill, which he expressed cogently in Committee, were not because of a lack of concern about human and civil rights in the armed services. I, and I am sure all other noble Lords, accept that absolutely clearly, but I hope that what I am saying does to a certain extent help to satisfy some of his worries.

The noble and gallant Lord, Lord Bramall, asked me point blank whether I could say "hand on heart"— I believe those were his words—that I had been back to legal advisers. Yes, I can, hand on heart. I have discussed possible alternatives with legal advisers and with officials. I assure the noble and gallant Lord that I have looked at possible amendments in the way I undertook to the House I would. The advice I received was that we have the best possible formulation in front of us now, certainly the best that we in the Ministry of Defence have been able to come up with.

My Lords, I am grateful to the noble Baroness for giving way. Does the advice she was given provide guidance as to what happens when the appeal court, which she mentioned and which arises under the Bill, finds that there is a conflict between the needs of military discipline and the application of human rights?

My Lords, I assume that the noble Lord means the summary appeal courts. The appeal courts would have to take into account the balance of arguments. I do not believe we are in a position to give advice to appeal courts in that way. The advice we would be giving is advice to commanding officers about what they must take into consideration. If there is anything further that I can say, it will be in advice that we shall put out. We hope to be able to move forward as quickly as possible on giving such advice, which is why I feel that the most expeditious conclusion to this will be best for everyone in the Armed Forces. If there are any further written points that I can give to the noble Lord, Lord Renton, I undertake to do so.

I say to the noble Lord, Lord Kingsland, that nothing we are doing now is contrary to what my noble and learned friend the Lord Chancellor said in consideration of the 1998 Act. As the noble Lord reminded us, my noble and learned friend spoke of a willingness to consider military courts. We have considered them but feel that the mechanisms we need are there in the way that I described in my opening remarks to your Lordships on the amendment in the name of the noble Lord, Lord Campbell of Alloway.

Finally, the noble Lord, Lord Burnham, said, a trifle teasingly I thought, that I made the point that life had moved on. However, he said that it was about compliance with the Human Rights Act. I do not believe that the two are in contention. Life has moved on. One example of how it has done so is that we have taken the convention into domestic law. That is one of the ways in which we have moved on, because it was felt right and proper, by all sides of the House, that we should take that action in bringing the convention into domestic law, as we have.

I suggest that nothing in what I have said in any way takes away from the point about, on the one hand, trying to have law that is compliant and, on the other hand, the development in human and civil rights. I am pleased that we have moved on considerably in those respects since 1951. I believe that most noble Lords will be able to agree.

We have given careful consideration to the noble Lord's amendment. I thank him for giving us the opportunity to look at the matter again and for the courteous way in which he approached the issue, both in the House today and in some of the private conversations we have had. I do not believe that the amendment is necessary and hope that on reflection he will feel able to withdraw it.

My Lords, I thank the noble Baroness, Lady Symons of Vernham Dean, for the spirit in which she took the amendment and for understanding the spirit and purpose for which it was tabled. However, as yet no specific breach of any article of the convention has been identified which requires this massive amendment to the service discipline Acts. If one were to take the sense of the House, it has been a good debate and according to my card the majority opinion, the sense of the House, is that we should continue to seek a compromise and a middle way. I am prepared to continue to do that.

I am grateful to the noble and gallant Lords, Lord Craig of Radley and Lord Bramall, for what they said. I am also grateful to my noble friend Lord Renton and my noble friend Lord Kingsland, who was quite right in his interpretation of why I tabled the amendment. I am grateful to my noble friend Lord Burnham; it is quite a change of experience. I was delighted to have such valid support from my own Front Bench.

I mean it when I say to the noble Lord, Lord Lester of Herne Hill, that I am grateful for all the trouble he took and the expertise which he deployed before the House. It was perhaps unfortunate that in the mass of expertise and exposition he somehow misunderstood the spirit and purpose of the amendment. The noble Baroness did not, but he did. I am grateful to all noble Lords. I wish to read the debate in Hansard and have the opportunity to think again. In the meantime, I beg leave to withdraw the amendment.

moved Amendment No. 2:

Before Clause 1. insert the following new clause—

My Lords, it may be convenient to the House if, in responding to Amendment No. 2, I speak also to Amendments Nos. 5 to 7. I am grateful for the opportunity to add to my remarks in Committee in responding to the amendment on the subject of consolidated texts tabled by the noble Lord, Lord Peyton of Yeovil. At that stage I sought to reassure noble Lords that up-to-date texts of the service discipline Acts, having been placed in the Libraries of both Houses, were available to Parliament to assist in consideration of the present Bill.

However, it emerged during debate on the amendment moved by the noble Lord, Lord Peyton, that there was probably as much concern about the availability of up-to-date texts of the legislation outside Parliament. It is possible that I did not address this legitimate area of interest as fully as I might have done at Committee stage. I have subsequently written to a number of noble Lords to clarify the position, and I am happy to do so again today.

We ensure that those who have most need of the discipline Acts—members of the Armed Forces—have ready access to them in their current state. Since Committee stage I have been reassured that in all three services commanding officers and others are provided with a manual—for example, the Manual of Military Law in the case of the Army—containing updated texts of all relevant service law, with explanatory footnotes and textual commentary. A number of copies are available within units at all times. Clearly, it is essential that that should he the case, and I hope that the information I have provided reassures noble Lords. The manuals will be updated further after the enactment of the present Bill.

However, this amendment goes rather further than that tabled by the noble Lord, Lord Peyton of Yeovil. It appears to suggest that the three service discipline Acts should be merged into one. There are two approaches to this. There is the approach implied in the amendment which simply wraps the texts of the three current Acts into a single cover. That does not appear to be very attractive to us. It would produce a piece of legislation for the services to work with which was three times as large as that which each has to operate today. Alternatively, the Government's approach, which is set out in the Strategic Defence Review, is to work towards a genuine tripartite service discipline Act. We believe that this offers very real benefits in an environment where the services work ever more closely together. It will produce a disciplinary regime to match that joint environment. Unfortunately, such an Act cannot be developed overnight or even, as I believe the noble Lord, Lord Burnham, suggested at Committee stage, during the Christmas Recess.

Our priority is the present Bill. In the next Session we shall consider the quinquennial Armed Services Bill. Both Bills will alter the service discipline Acts. After the quinquennial Bill is enacted in 2001, we shall start substantive work on the major project of creating a new framework for service discipline with the development of a new tri-service Act. Obviously, we shall want Parliament to consider that as soon as an appropriate Bill is ready and parliamentary time is available.

I have difficulty in understanding Amendments Nos. 5 to 7. The intention appears to be to prevent a day being appointed for a particular purpose until the manuals of service law containing copies of the updated service discipline Acts have been deposited in the Libraries of both Houses. My difficulty lies in knowing to what the words

"no day shall be appointed for this purpose"

refer. The amendment is attached to the provisions of the Bill which deal with the arrest of art accused during his trial by court martial. It appears, therefore, that the intended effect of the amendments is to prevent these provisions alone from having an effect until the manuals of service law have been deposited in the Libraries. In speaking to Amendment No. 2, I hope that I have made clear the position as to the availability of the updated texts of the service discipline Acts.

We believe it is of the utmost importance that those concerned with the administration of discipline should be aware of both the changes in service law and their significance. I can assure noble Lords that everything will be done to ensure that the changes in procedures envisaged in the Bill are fully understood by the chain of command; that is, commanding officers and all who need to be aware of what is in train. The manuals will be amended and training will be provided. Whatever the purpose behind Amendments Nos. 5 to 7, can assure the House that everything will he done to meet what I believe is their benign intention; namely, to make the new law known to all. I hope that, on the basis of the assurances that I have given, the noble Lord will feel able to withdraw his amendment.

My Lords, I thank the noble Baroness for that explanation. The purpose of Amendments Nos. 5 to 7 is solely to underline what we believe is the necessity to reconcile and consolidate the various discipline Acts. As to Amendment No. 2, I was very happy to hear virtually all that the noble Baroness said. However, she said that after the quinquennial Act the Government would look very seriously at reconciliation of the discipline Acts. I do not now seek anything as ridiculous as completion of the necessary work over the Christmas Recess. A considerable time will elapse before the publication of the Bill. I ask that the quinquennial Act should itself contain the reconciliation of the disciplinary Acts. With that caveat, I have much pleasure in withdrawing the amendment.

moved Amendment No. 3:

Before Clause 1, insert the following new clause—

My Lords, I recognise that the amendment is an ingenious way of meeting the criticism that I made at Second Reading, in Committee and today about circumstances which I refer to as high intensity warfare. For example, if the Gulf War had continued for a great deal longer, it would not have been practical to apply Clauses 1 to 10 concerning custody and gaining authority from the judge advocate.

However, I am not happy with the amendment. Subsection (1) would be difficult to apply. To state that those conditions are the ones automatically to apply will lead to considerable difficulties and complications. It would be unsatisfactory to rely on the reasonable belief of the commanding officer.

I accept that the wording of Article 15 of the convention as a basis of derogation might raise difficulties. But if it can be used as it has been used in respect of the civil courts in Northern Ireland, I cannot understand why it should not be used, as the noble Baroness suggested, in those conditions where it would be impractical to apply the provisions.

The advantage would be that the British Government would determine when they wanted to make the change and when they did not, whereas there could be difficulties in deciding on the conditions suggested by the amendment. Although I recognise that the intention is admirable, I regret that I cannot support the amendment.

My Lords, to a certain degree this amendment returns to the timing provisions that have been drafted for custody regulation. Like many of your Lordships, I was concerned that the proposals in the Bill for custody would not be workable in operations such as the Falklands, the Gulf and certain peace enforcement situations.

However, on further scrutiny of the Bill, I have now noted—I missed it at Second Reading—that in the proposed legislation there are adequate provisions for flexibility in those instances when operational imperatives make it impossible to conform to those legal requirements. New Section 75B(4) provides flexibility in reviewing custody. It states:

"If a review is postponed under subsections (3) [and (4) of this clause]".

Presumably this would then entitle a commanding officer to postponement of a review provided that it is carried out as soon as is practicable after the expiry of the last authorisation under new Section 75A(4) of the Bill.

New Section 75E(2) allows the commanding officer flexibility over the timings of custody hearings and reviews, and periods of time in the relevant clauses are to be treated as approximate only.

My Lords, I speak on the same lines as the noble and gallant Lord, Lord Vivian. The serious intent of the amendment is to strengthen the phrase in new Section 75B, "as soon as practicable", and to put it into a stronger form.

As a layman in many of these matters, during the past week I consulted two acquaintances who have recently held regimental command on whether such an additional amendment was necessary. Their opinions on the quality of the Bill were different. One said, "We have to accept this. It's a necessary evil". The other said, "It's a thoroughly good thing. It's about time we encouraged COs to recognise that justice should reign even on operations". The strongest impression I received is that the communications revolution has made it possible to operate a system where "as soon as practicable" means not a very long time.

One exceptional circumstance remains: the prospect of a nuclear submarine under a Polar icecap. However, whether one's entire military system should be based upon that one exception needs to be considered carefully. One of those to whom I spoke said, "If you are in deepest Kosovo or Borneo, the Ministry of Defence may not want to speak to you all the time, but the BBC or CNN will be demanding an interview, whatever happens". So the image of long operations which are not in touch with base seems no longer to hold. I therefore suggest that the amendment is not necessary and that the phrase "as soon as practicable" covers the necessary clauses.

My Lords, I have been a Member of this House for only a few months. It is interesting to note that when this issue, which loomed large only a few weeks ago, is put under the spotlight it reveals that an active service clause is not a sensible idea. Many Members who believed, as did the noble and gallant Lord, Lord Carver, that that was the way forward do not believe so now. During this debate there has been much reference to flexibility. Clause 2 of the Bill refers to Section 75 of the Army Act and indicates that in practice the issue should be dealt with on a common sense basis.

To reiterate the point in another way, this problem, as perceived by many noble Lords only a few weeks ago, has been thoroughly scrutinised. A broad consensus is emerging on all sides of the House that it has been looked at very carefully and that this is probably not a good solution. The Bill will be debated for many weeks yet in the newspapers and in the country, and those concerned should take note of how this process of scrutiny of this aspect of the Bill has produced a very useful consensus result. It is very useful that the matter has been raised, but I believe that that is the message being received around the House on this point.

My Lords, I am always reluctant to draw analogies between the police service and the armed services. They have very different roles and functions. But there are similarities structurally—hierarchy, uniform and a discipline code.

The amendment seeks to make a distinction for armed personnel on active wartime service. One way in which the police service differs from the armed services is that it is permanently on active, operational service. Therefore, discipline proceedings must be juggled between the ability to deal with the policing of riots, football matches, crime investigations and so on. In such emergencies it is nevertheless possible to have a single discipline code. That does not mean that a police officer has a lower standard of entitlement to human rights because he happens to have committed a discipline offence during a riot or some other emergency.

It is also extremely important when one has a discipline system to have a single discipline system that everybody understands. To have a dual system that applies in some circumstances and not in others could be extremely dangerous. Senior officers and commanding officers in the armed services exercise discipline through mutual respect and trust. It is very important that any discipline system is trusted, respected and understood. To have a dual system would militate against that.

It has been said that the system laid down in the Bill would be sufficiently flexible to deal with the situation of being engaged on the frontline in Kosovo or even under the Arctic ice. With modern systems of communications it would surely be possible to be in touch with the judge advocate and receive his authority for custody if necessary.

My experience is, though, that when officers are actively engaged in an operational situation discipline problems fall away; there are very few in those circumstances. Therefore, the amendment should not be supported.

My Lords, I always listen with great interest to the noble Lord, Lord Burnham. I always did when I was on the Front Bench, very often having to reply to him. I know the concerns that he expressed that exist in certain quarters in relation to when troops are on armed service. But a very good case has been put forward today. Modern communications overcome many of the problems that the noble Lord poses.

I think that what is really being said here concerns the need in the cases in question to get hold of the judicial officer, and that can be done by modern telecommunications. As has been said with regard to Kosovo, the commanders-in-chief from the theatre were almost daily on the news conference given by the MoD. Therefore, the logistical concerns expressed by the noble Lord can be overcome.

There are one or two other good arguments as well. My understanding is that the Armed Forces, and particularly the Chiefs of Staff, support the proposed measures, because they do not want two systems, which would lead to chaos and duplication. We should take on board the views of the Chiefs of Staff as well.

For all the good reasons that have been given, particularly modern communications, and the views of' the Chiefs of Staff, I hope that the noble Lord, Lord Burnham, will reconsider the amendment and decide to withdraw it.

My Lords, the noble Lord, Lord Burnham, made it clear in Committee that he was likely to continue his quest for a provision to be added that would lessen the impact of certain of the procedures envisaged in the Bill in certain circumstances. Part of his difficulty was to find a means of defining those circumstances. This amendment focuses on the Geneva convention of 1949 and the additional protocols of 1977 as a definition of those circumstances in which there could be what might be called an operational opt-out.

I should say that I understand the noble Lord's desire for such an opt-out. On the face of it, it appears to be very helpful to the services. We have certainly re-examined the issue since our debate in Committee; that I have done with colleagues in the Ministry of Defence. Since much of our discussion then was about the meaning of the word "war" and the relevance of Article 15 of the European Convention on Human Rights, we have looked at those issues in particular.

In Committee the noble Lord, Lord Burnham, told us about the Geneva conventions and protocols, in the context of a possible definition of "war". As he will know, those international conventions apply to an armed conflict, whether or not a state of war is recognised as existing by all or any of the parties. Neither "war" on the one hand nor "armed conflict" on the other is defined in the Geneva Conventions or their Protocols, because it was not necessary to do so.

The position was accurately summarised by the noble Lord, Lord Campbell of Alloway, when he said,

"there is no state of war unless there is a declaration of war with all that that entails",

adding that,

"so many activities go on all over the world, and have done so since World War II, which are totally akin to war."—[Official Report, 16/12/99; col. 325.]

As it happens, the United Kingdom has not declared war for 59 years, when Japan entered World War II. All this goes to show the wisdom of the drafters of the Geneva Conventions, when they decided that it was what was actually going on that was of importance, and not what the parties decided to call what was going on. It is significant, too, that the UN Charter does not refer to "war" in any of its operative articles.

The meaning of "war" arose in relation to Article 15 of the ECHR, because a derogation can occur only

"in time of war or other public emergency threatening the life of the nation".

We had cause to reflect on that quotation earlier this afternoon. The qualifying words—

"threatening, the life of the nation"—

obviously limit the availability of the power to derogate to extreme situations, and even then Article 15 only allows for derogation

"to the extent strictly required by the exigencies of the situation".

The European Convention does not define "war"; nor is it necessary to do so. Whether military operations are a declared war, or are part of armed conflict where no war has been declared, the key question is whether the conflict that is going on threatens the life of the nation. That expression is not defined in the convention, but it has been interpreted by the Court of Human Rights, and it is clear that the primary task of assessing whether the test is satisfied is for the state concerned, subject, of course, to the supervision of the court.

I hope that that was not too long-winded and was sufficiently clear. I think it is important that we all define the parameters within which we are discussing the noble Lord's amendment.

A number of noble Lords have asked in particular whether the ability to derogate in respect of our summary discipline arrangements could have arisen in any of our recent military involvements. I was asked particularly about the Gulf and the Falklands in the Committee debate on 16th December, when I remember saying that this was a difficult point. In Bosnia, in Kosovo and in East Timor, United Kingdom ground forces were involved as part of international peacekeeping forces operating under UN mandates, and, of course, with the agreement of the countries concerned. It is difficult to see how such situations could fall within the power to derogate under Article 15.

In the Gulf War, we were also part of an international coalition, authorised by the United Nations, to use armed force to compel the removal of Saddam Hussein from Kuwait. Again, that was not a situation where the power to derogate could very easily be said to have been triggered. The Falklands were a little different in that the islands were, and still are, British territory—indeed, territory in which the convention applied—so it is perhaps more readily arguable that the right to derogate could in principle have been triggered. However, it would be wrong for noble Lords to assume that Article 15 powers to derogate would axiomatically be triggered whenever UK forces are fighting abroad. I am afraid that that is the flaw that lies at the heart of the noble Lord's amendment.

In any event, the conclusions we have reached on the subject of a possible opt-out are rather different from those of the noble Lord. Our conclusions reflect our confidence in the measures in the Bill. I am of course aware that the noble Lord's major concern is that the provisions of the Bill may impede operational effectiveness. These concerns are well intentioned, but they are misplaced. The proposals in the Bill have been designed, with the services, specifically so as to be compatible with all circumstances in which the services might find themselves.

I can assure your Lordships that operational considerations will remain paramount. There must be no misunderstanding on this point. This Government, like any other responsible government, will expect commanders to give appropriate priority to the operational imperatives of the situation and to the lives and security of all those under their command. I hope that is a sufficiently clear and unequivocal statement. There is no conflict between the unwavering intention behind what I have said and the procedures laid out in the Bill.

It may be that the concerns that there could be such a conflict reflect an exaggerated idea of how frequently some of the provisions in the Bill will need to be implemented. In the vast majority of cases, there will be no need to hold a suspect in custody for periods that will require approval by a judicial officer. It will be known whether or not there is sufficient evidence to prefer a charge well within 48 hours and even if there is not enough information on which to base such a decision within this time-scale, it does not follow that it is necessary to hold the individual in custody. The more extreme the circumstance that we envisage—such as the submerged submarine, referred to by the noble Lord, Lord Wallace of Saltaire—the easier it is generally likely to be to assemble sufficient evidence to prefer a charge.

Similarly, after charge, it will not usually be necessary to hold an accused in custody, so the need for a custody hearing will not arise. Where there is a requirement for such a hearing, the Bill provides that it should be held as soon as practicable. The noble and gallant Lord, Lord Vivian, drew that to our attention so cogently. This is dealt with in Clause 2. The formula "as soon as practicable" occurs on page 15, lines 19 and 20, for the Army Act; on page 17, lines 5 and 6, for the Air Force Act; and for the Naval Discipline Act, on page 18, line 38.

This formula gives us the flexibility that we need. Perhaps I may return to the scenario of the submarine, put forward by the noble Lord, Lord Wallace of Saltaire. If it were at the beginning of its patrol, and in the unlikely event that there was a need to hold an individual in custody, there would be no question of the submarine surfacing to enable the individual to be brought before a judicial officer. Such a hearing would have to wait until after the end of the patrol. That would be "as soon as practicable", as provided for in the Bill. I need hardly make the obvious point that, in any event, the accused would have very limited freedom of movement on the submarine in question.

After a summary hearing, there will of course now be a right of appeal. There will be time-limits within which this right is to be exercised and we shall be debating those later. But the Bill allows for applications to be made out of time—another important point—and it is difficult to imagine a more sustainable reason for such an application other than deployment on a submarine patrol or similar operational exigency. Therefore, I believe that flexibility is contained within the Bill before your Lordships.

If an assurance is being sought that in the most extreme operational circumstances the requirements of the Bill will somehow be set on one side, I cannot offer that. Indeed, that is to miss the point. A single system—and as my noble friend Lord Hoyle said, we need a single system—capable of operating in all circumstances reduces the scope for confusion and divisiveness. The system we have proposed in the Bill, because of its flexibility, provides that.

We are not posing commanding officers with the unpalatable dilemma of whether to implement the procedures envisaged in this Bill or, on the other hand, to maintain operational effectiveness. The Bill allows commanders to discharge both those responsibilities.

I again stress that we regard it as key to the proper fulfilment of our responsibilities that commanding officers must be given proper guidance in the application of these new procedures and the way in which they should exercise the flexibilities that are inherent in the Bill. We shall discharge that responsibility.

I ask the noble Lord to reconsider his amendment and, more fundamentally perhaps, the concerns which it attempts to articulate. Perhaps I may borrow a phrase of his and say that we have developed the Bill together with the people who know what they are talking about—those who are responsible for these matters in today's services. That is what gives Her Majesty's Government the confidence that with them we have been able to get the Bill right. I hope that I have given the noble Lord sufficient assurance to allow him to withdraw his amendment.

My Lords, I think that I thank the noble Lord, Lord Hoyle, for his personal remarks. I may have to study them again, but I thank him. There is one point on which I disagree with him and other noble Lords; that is, on their reliance on modern communications in the circumstances we envisage if personal contact is not possible. We have previously talked about video links and goodness knows what else and I was amused to note that the Minister did not pray that in defence of her case. Perhaps some of her military advisers nudged her and told her that such bits of kit do not always work!

I thank the Minister for her clear explanation of her opposition to my amendment. Perhaps I may add to what she said about war. I raised the matter in an intervention in Committee. Different nations treat war in different ways. The United States, with which we are frequently closely associated, has a difficult definition of war. It is not practical to use a declaration of war as a possibility for what I am seeking. As I and other noble Lords have said time and time again, Article 15 is not good enough. It does something, but not enough.

The Minister understands what I am trying to achieve. However, listening to her and to other noble Lords I get the message that, although the end result is desired, the way in which I have approached the matter does not meet with favour. There is one more stage of the Bill. As a result, I shall go away. "I shall come back"—in the words of General Macarthur—but I hope that I shall be able to come back with an amendment which achieves what I am trying to achieve and which will meet with the approval of the House. In the mean time, I beg leave to withdraw the amendment.

moved Amendment No. 4:

Page 2, line 20, at end insert (", or

( ) to obtain authority to search him, his possessions or his accommodation").

My Lords, in order to investigate an offence effectively, it is axiomatic that searches of a person or his possessions and accommodation may be necessary. That may be the case in any investigation conducted by the service police, or indeed otherwise.

It is with that requirement in mind that the services were content in the Bill to adopt the long-established wording in the Police and Criminal Evidence Act 1984, without modification. That is from where the wording is drawn. New Section 75A in the Bill currently provides for someone to be detained without charge if there are reasonable grounds for believing that that is necessary for the purposes of securing or preserving evidence relating to an offence for which he is under arrest.

Because we cannot conceive of any circumstances in which it would be reasonable, in the context of a police investigation, to search a person, his possessions or his accommodation other than for the purposes of securing evidence, we believe that the current provision provides a wide enough definition and that the Bill does not need to be amended in the way that the noble Earl has suggested. I hope that with that explanation he will feel that his probing amendment has revealed sufficient reason as to why the Bill is drafted as it is and will feel able to withdraw his amendment.

My Lords, before I withdraw my amendment, will the Minister say whether there are any plans to amend the Queen's Regulations regarding searches?

My Lords, I am unaware of any such plans, but if it is purely a case of my ignorance rather than my wisdom on the point, I shall write to the noble Earl and let him know that I am wrong. However, I do not know of any such plans.

My Lords, I thank the Minister for that reply and for the time being I beg leave to withdraw my amendment.

moved Amendment No. 8:

Page 29. line 14, at end insert ("and shall enjoy security of tenure, in that they may only be removed from office in the same manner as circuit judges").

My Lords, I warmly agree with what the noble Lord, Lord Burnham, has just said; in particular, that Her Majesty's Government will need to take the lead in regularising the matter of part-time sheriffs, judges and justices of the peace. As the noble Lord said, a complaint was made recently which was mentioned in this House by a number of noble Lords from the opposite Benches. A fairly important case was rejected by the European Court on the basis that it had been insufficiently decided and, therefore, was null and void.

The noble Lord, Lord Burnham, has said that the matter goes much wider than the ramifications of this Bill. I suggest that it will affect, as he correctly said, all parts of the United Kingdom. For example, the phrase "part-time judges" will apply to Northern Ireland. Noble Lords will forgive me for dragging in that obscure part of the United Kingdom!

At an earlier stage in my career I served for 15 or 20 years as a justice of the peace. The highlight of my career was that I presided over the initial stages of a murder trial. I have raised a question in relation to this matter but have rot been able to obtain an answer. I do not direct that at the noble Baroness, who has been very sympathetic and courteous throughout. However, I want to place on the record that currently my successors as justices of the peace are all part-time justices. Certainly, they provide that service—for example, signing summonses and hearing cases—in their spare time and sometimes at the expense of their careers.

However, unless we as a Parliament—I include both Houses—are extremely careful, I am afraid that we may find ourselves in a situation where dozens of trials will collapse by reference to the European Court on the insufficiently decided formula simply because, at some stage, the decision was taken by someone who, in the past, was appointed quite legally arid who believed himself to be authorised by the Crown to hear and decide criminal cases. When the lid comes off, we shall see that a whole range of well-meaning people at different levels have presided over the dispensing of justice when, in the eyes of the European Court, they were not entitled to do so.

My Lords, by way of information, perhaps I should mention that there is another Scottish case which raises the same issue. As has been said correctly, the case of Starrs v. Procurator Fiscal, Linlithgow is not to proceed any further. Therefore, the Judicial Committee of the Privy Council will not have an opportunity to examine the decision in that case.

However, there is another case (the name of which escapes me) which involves the question of whether a temporary judge—that is, a judge at a higher level than temporary sheriff—is properly appointed. I understand that that case has now been reported tinder Scottish procedure by the temporary judge in question to the Inner House of the Court of Session—this being a civil case—and that the question arises as to whether the Inner House will then refer the matter to the Judicial Committee for decision. I have no doubt that that case is known also to Her Majesty's Government. However, it is right that we bear in mind that those issues arise in a number of ways and affect different judicial officers at different levels. Therefore, for what it is worth, I support the point already made that this matter requires careful attention before a final decision is taken.

My Lords, I mention very briefly that my noble and learned friend Lord Mackay of Drumadoon is in court today. My noble friend Lord Burnham asked me if I would stand in to say virtually nothing, other than that I wholly support the amendment. In view of what has just been said by the noble and learned Lord, Lord Hope, there is no question that this matter will need to receive attention.

My Lords, I wrote to the noble and learned Lord, Lord Mackay of Drumadoon, after our discussion in Committee. In all fairness to the noble and learned Lord, who, unfortunately, is not with us this afternoon because of his commitments elsewhere, I should say that he will not have received the correspondence because it was, I believe, placed in his pigeon-hole this morning. However, I make the point to your Lordships that I have tried to pass some information to him.

Perhaps it will help your Lordships if I put a little more flesh on the bones about the present facts of the matter. In the Army and Air Force, trial judge advocates are mainly the holders of permanent, pensionable judicial appointments, although other part-time judge advocates are also used for around one-sixth of courts martial.

In the Royal Navy, judge advocates are fully qualified barristers who are, first and foremost, commissioned officers. Once they have sufficient legal experience, they may be rotated into a judge advocate post in the same way as other personnel in the services are posted into different jobs at different points in their careers. Being a naval judge advocate is one of a number of roles, both legal and non-legal, which a suitably qualified officer will perform during his time in the Royal Navy.

At present, consideration is being given to the detailed arrangements for the appointment of judicial officers provided for in the Bill. As I believe the noble and learned Lord, Lord Mackay of Drumadoon, is aware, my noble and learned friend the Lord Chancellor is considering the implication of the Starrs case and has undertaken to make a Statement to the House when his consideration is complete. Obviously, we shall be guided by his conclusions, but I believe that it would be inappropriate and certainly most unhelpful for me to react to the Starrs judgment outside my noble and learned friend's wider review of the position of the judiciary in the light of that judgment. I assure the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Molyneaux, that the points they raised will be drawn to the attention of my noble and learned friend.

I hope that in the light of the assurances that I have given the House about the intentions of my noble and learned friend in making a Statement on this important matter, the noble Lord, Lord Burnham, and, in absentia, his noble and learned friend Lord Mackay of Drumadoon will understand my position, and that the noble Lord, Lord Burnham, will be kind enough to withdraw his amendment.

My Lords, certainly I fully understand the noble Baroness's position and I withdraw the amendment.

moved Amendment No. 15:

Page 32, line 19, at end insert—

("(3A) An accused who elects for court-martial in accordance with the provisions of subsection (1) above may apply to the commanding officer or appropriate superior authority for leave to withdraw that election.

(3B) An application by the accused for leave to withdraw election for court-martial shall include a written statement as to those of superior rank with whom he has discussed the application.

(3C) The record of the grant of leave to withdraw election for court-martial shall include—

(a) the application together with the statement from the accused required by subsection (3B) above;

(b) a written statement signed by the person or persons who gave advice to the accused on behalf of the commanding officer or appropriate superior authority and such record.

(3D) The record of the grant of leave to withdraw election for court-martial shall be delivered forthwith to the Judge Advocate General.").

My Lords, I support this amendment. I understand what it is designed to achieve and I support that but I wonder whether it really achieves it because within it, although it is the best that can be done, there is always the possibility that the Court of Human Rights would say, "Oh, but the procedure as such leans too heavily against the man". I express it in very simple terms.

For my part, I believe that we may well have to return to the problem of whether Clause 11 should stand part of the Bill. I suggest that that is the only satisfactory way of dealing with this situation in view of some of the arguments which I raised on Amendment No. 1 which really were not controverted by any specific allegation of breach. I shall not return to the Motion that Clause 11 shall not stand part of the Bill unless I am supported in that by my own Front Bench because to do so without that support would be to waste the time of the House.

My Lords, although I understand the intention of this amendment with regard to the Army and Air Force Acts, I must say to the noble Earl, Lord Attlee, that I am extremely concerned that he believes that it is necessary to table this amendment in the first place.

In a sense, the purpose of the amendment is admirable, and I have no doubt that the noble Earl's intentions in tabling it are entirely benign. But it presupposes that there is a problem in the services which is sufficiently serious to warrant primary legislation.

I really do not believe that that is the case. The services obviously consider it very important that there should be no inappropriate influence exercised in relation to whether or not to elect for trial by court martial or the possibility of withdrawing such an election. I am assured that if there were to be instances where undue pressure was found to have been brought, it would be taken very seriously and those responsible for such actions would be disciplined. The services are rightly proud of their system of discipline and they are rightly proud that that system is seen to be fair.

The Army and the Royal Air Force currently have a procedure regulating the withdrawal of an accused's election for court martial, and that is laid down in instructions. During the process, the accused has full access to an adviser of his choice whose services will be available once the accused is charged. He will also have access to any legal advice which he has chosen to seek.

More importantly, the instructions preclude certain persons from acting as the accused's adviser. Those include the commanding officer, the officer commanding, anyone involved with investigating or prosecuting the offence and anyone advising the officers in command. The current procedures seem to reflect the very system which the noble Earl believes should operate. However, that is in contrast to the provisions of the amendment which seem to presuppose some involvement by a representative of the commanding officer.

It is difficult to disagree with the sentiments behind the amendment. However, I do not believe that the amendment achieves what it sets out to do. My doubts may be different in character but they mirror those of the noble Lord, Lord Campbell of Alloway; namely, that the amendment does not achieve the objective which the noble Earl stated nor does it usefully add anything to the impartial procedures already in place. The procedures are well understood and we do not believe that there is any reason to tamper with them. On the basis of the assurances that I have given to the noble Earl, I hope that he will feel able to withdraw the amendment.

My Lords, I am grateful for the response given by the Minister and for that of my noble friend Lord Campbell of Alloway. Perhaps I should have consulted my noble friend before tabling my amendment.

I am not convinced that Clause 11 should not stand part. As I explained in moving the amendment, Clause 11 is not fatal to military ethos or the moral component of fighting power. But I am concerned that pressure can be applied to a soldier or serviceman to withdraw his election. However, I have listened carefully to what the Minister said. I hope that she will listen carefully to what I have said about the problem. In my experience, this problem can occur, particularly if a soldier or serviceman is being stupid and saying that he wants to elect for court martial when it is not in his best interests to do so. I am certain that heavy pressure would be placed on him to withdraw and that he would not be allowed to go through the court martial procedure. In the mean time, I beg leave to withdraw the amendment.

moved Amendment No. 16A:

After Clause 13, insert the following new clause—

moved Amendment No. 17:

Page 39, line 41, leave out ("twenty-one") and insert ("fourteen").

My Lords, half a loaf is better than no bread. Amendment No. 17 is not grouped with Amendment No. 18. I give notice at this stage that I still intend to move Amendment No. 18, but I have pleasure and thanks in accepting Amendment No. 17 tabled by the noble Baroness.

moved Amendment No. 18:

Page 39, line 41, leave out ("twenty-one") and insert ("ten").

My Lords, I am not sure of the applicability of the anecdote the noble Lord, Lord Burr ham, sought to draw to our attention in moving the amendment. However, I am made of sterner stuff than that!

I do not have anything to add to the debate on the length of period that we should grant an accused person in order to lodge an appeal. It is a question of judgment and I do not believe that 10 days is a sufficient period n which to allow somebody to seek to organise an appeal. It is not necessarily a straightforward question of communication; it is a question of drawing together the grounds of appeal and obtaining legal advice. The benefit to the armed services in having properly drawn up appeals is one that we should not forget. Ill-considered appeals will not serve any purpose. We should reflect on the fact that in civilian life 21 days is considered to be the reasonable period for such appeals. To go to a period which is less than half that considered reasonable in civilian life is not a judgment we would wish to make.

I reiterate: what is the point in giving somebody a right and at the same time making it extremely difficult for him or her to exercise that right? Moreover, although the noble Lord, in putting forward this amendment, believes it will simplify the Bill, in fact it will mean more work because there will be more ill-considered appeals and more grounds for people to feel that they have been badly treated.

We have moved as far as we can to address the concerns of the noble Lord. We have done so in a spirit of compromise. If the noble Lord, Lord Burnham, does not recognise that spirit of compromise, I hope that others in your Lordships' House will. I hope that the noble Lord will not feel it necessary to press his amendment.

My Lords, I do not remotely agree with the noble Baroness. She failed to recognise my point of what may happen when two people are convicted of the same crime and may want to be treated differently. However, I do not want to prolong this issue. I may have to decide whether or not to come back to it at Third Reading. In the mean time, I beg leave to withdraw the amendment.

moved Amendment No. 19:

Page 40, line 12, leave out ("twenty-one") and insert ("fourteen").

moved Amendments Nos. 21 and 22:

Page 57, line 20, leave out ("twenty-one") and insert ("fourteen").

Page 58, line 6, leave out ("twenty-one") and insert ("fourteen").

moved Amendment No. 23:

Line 4, at end insert (", to ensure compatibility) with the convention rights within the meaning of section 1 of the Human Rights Act 1998").

My Lords, I see the intention of my noble friend in moving this amendment. It is desirable that the Long Title should in some way deal with the natural incompatibility between the Human Rights Act and maintaining military discipline.

Those concerned, whether commanding officers or members of courts martial, will have to give priority to the maintenance of military discipline. I am doubtful—with deep respect to my noble and learned friend Lord Mackay of Drumadoon who is a distinguished Scottish lawyer, and to my noble friend Lord Burnham—whether the word "compatibility" achieves that purpose. I have some doubt about that. I suggest therefore that my noble friend does not press the amendment at this stage. But, in the light of this discussion and what the noble Baroness may say, another amendment may be tabled at Third Reading which achieves his purpose even better.

My Lords, during all our debates so far on this Bill I have sought to make it clear that we place great store on ensuring that all our personnel benefit from their convention rights. As your Lordships are well aware, the purpose of this Bill is to address concerns about compatibility with the European Convention on Human Rights. However, we do not believe it is necessary to state that in the Long Title.

To include this amendment would only be a duplication of what the Human Rights Act 1998 already provides; that is, that all primary legislation is required to be read,

"in a way that is compatible with the Convention rights".

That requirement is contained in Section 3 of the Human Rights Act and removes any need for provisions to be included in new Bills, stating that one of the purposes of the Bill is to ensure compatibility. The amendment is therefore unnecessary and I ask the noble Lord to withdraw it.

My Lords, was it the Snark who said,

"What I tell you three times is true"?

I may have got that wrong.

I feel that there would be no damage in the Government re-reiterating that this Bill accords with the European Convention on Human Rights. I listened to what the noble Baroness said, and possibly with even more care to what my noble friend said. In the light of their working in unison, I beg leave to withdraw the amendment.

My Lords, on behalf of my noble friend Lord Hunt of Kings Heath, I beg to move that the House do now again resolve itself into Committee on this Bill.

moved Amendment No. 128ZA:

Page 30, leave out lines 14 to 22.

I should like to commend the Government for sticking to their guns on the question of the au pair. This is not always a straightforward relationship. I should perhaps declare an interest here and say that my wife employed a number of very satisfactory au pairs, but with differing degrees of experience. It is an essentially personal relationship; it is an extension of the family. In the ordinary au pair situation, the au pair, who is almost always a girl—but not necessarily—lives with the family, eats with the family and has an understanding as to how much of her time is to be spent looking after the children and how much is available for doing courses (often English-language courses) or for other activities.

If the Government take the view that to try to regulate this activity is unacceptably bureaucratic, I can only reiterate, "Hear, hear!" If ever there were a case of proportionality, this is it. There are a few unfortunate cases, which always seem to attract newspaper headlines because there is something newsworthy about the au pair relationship. However, they represent a tiny number of the totality of families who have found the au pair arrangement eminently satisfactory. I strongly resist any suggestion that there should now be an entirely new extension of childcare requiring the registration, and all the rest of the paraphernalia, of au pairs. If I may put it this way, I hope that the Government will stick to their guns and not be beguiled by what I am sure will be a very eloquent case made by some of the interest groups and, indeed, by the noble Lord, Lord Clement-Jones.

Perhaps I may, first, thank the noble Lord, Lord Clement-Jones, for welcoming me to this Committee. I say that with some reservation because I know that noble Lords on both the Front and Back-Benches are expects in the field. Therefore, I approach the matter with some caution. Nevertheless, I am grateful to the noble Lord for his kind words.

In responding to the noble Lord's amendments, I should like to speak also to Amendment No. 128A tabled in the name of my noble friend Lord Hunt of Kings Heath. I dc so because all three amendments in this group deal with providers exempted from the requirement to register as either child minders or day-care providers tinder the new Part XA to the Children Act.

The effect of Amendment No. 128ZA would be to bring childcare provided in the parents' home under the regulation or Ofsted, or the assembly, while Amendment No. 173A would bring in any day care provided by independent schools. The Government fully understand the concerns which lie behind these amendments, although we take a different approach to tackling them. It may be helpful to the Committee if I set out briefly our plans in respect of these important issues.

As regards Amendment No. 128ZA, the Government believe that care provided in the parents' home, such as that provided by nannies, baby sitters and au pairs, should not be subject to regulation in the same way as that provided by professional child minders, nurseries, playgroups, crèches, and so on. We have sought—and the noble Lord, Lord Jenkin, may get some satisfaction from this—a less bureaucratic approach, which, nevertheless, strengthens safeguards for children looked after in the home.

Yesterday, the Minister for Employment and Equal Opportunities, Margaret Hodge, announced that the new guidance for nanny agencies of the Department for Education and Employment will be published in the spring of this year. The guidance will underpin the revised regulations governing all employment agencies to be issued by the Department of Trade and Industry. The guidance will include advice on areas such as identity checks and verification of a candidate's right to work; further detailed advice about checking work histories, qualifications and references; advice about interviewing candidates; and placing candidates with suitable employers.

The Department for Education and Employment has worked closely with nanny agencies to draft a code of practice which will form the basis of the new guidance. I am sure that it will provide parents and agencies with the help that they need to minimise the risk of children being cared for by unsuitable nannies. In addition, last year the department, in collaboration with the Daycare Trust and the National Early Years Network, issued Need a Nanny, a guide for parents giving the advice and information that they need to check the background and suitability of a nanny before offering employment.

We believe that there are practical problems to the regulation of nannies or the establishment of a register. For example, it would be very difficult to determine what constitutes a "good" nanny. Who would decide—and on what basis—whether someone was removed from a register? Would that be decided on the basis of the parents' word alone? Nannies can move from post to post quite regularly. It would be extremely difficult to keep a register up to date. We do not believe that it would be in anyone's interests to have a register that did not work and which may lull parents into a false sense of security. We believe in short that unless a register works it is better not to have a register at all.

I turn now to Amendment No. 173A in the name of the noble Lord, Lord Clement-Jones. We share the concern that provision of day care in independent schools is not regulated to the same prescribed standards as other day care providers. That is why we have taken a power in the new Schedule 9A in Schedule 2 to this Bill to prescribe circumstances in which the exemption will not apply.

We recognise that some may wish to see the exemption done away with in this Bill. However, we believe that in the first instance it is appropriate to consult the independent schools sector on this issue. As part of a wider review of the regulation of independent schools, the department is to carry out a consultation exercise this year. The consultation will seek views on strengthening the existing requirements for day care in independent schools to bring them into line with those required in other settings. The department will make proposals following the outcome of that exercise and until that process is complete it would not be sensible or right simply to remove the exemption.

I turn now to the Government's Amendment No. 128A. This amendment relates to the exemption from regulation of informal evening baby-sitting arrangements provided away from the parents' home. It is necessary because, as drafted, the current wording would unintentionally exempt much professional after-school care provision from regulation.

We believe that it is important to ensure that informal arrangements such as evening baby-sitting are exempt from regulation and that we avoid unnecessary regulatory burdens whenever that is possible. However, it is not our intention to exempt from regulation professional arrangements for after-school care—a form of care which, as the Committee will know, is vital to so many working parents.

The amendment is therefore essentially a correction which restructures current wording to prevent the existing two-hour disregard in new Section 79A(7) being "added" to the evening baby-sitting exemption over two days, thereby extending the total exemption period from 4 p.m. on day one until 2 a.m. on day two. In simple language the net effect would be to restrict the baby-sitting exemption from 6 p.m. until 2 a.m. instead of 4 p.m. to 2 a.m.

I thank the Minister for his considered response. Unlike the noble Lord, Lord Jenkin, I cannot say that I have experience of employing nannies or au pairs. Indeed I cannot comment on his statement that only a small number of problems arise with au pairs or nannies and that essentially they are regarded as part of the family. However, I am concerned about the quality of care that they provide. If they are considered to be members of a family and enjoy a huge amount of trust, that is precisely where problems may arise. I appreciate the Minister saying that he accepted the concerns that have been expressed even if the way that he mentioned of dealing with those concerns was rather different from what has been suggested by others. I was grateful to the Minister for setting out how he believes the safeguards are being strengthened in terms of the new guidance for nanny agencies which is shortly to be issued.

I believe that the best way to deal with the amendment is to consider that guidance in detail. I hope that it will be issued as the Bill progresses through this Chamber and possibly before Report stage. That would be helpful. Then one would be able to judge whether the regulation of nanny agencies will be tightened up in the way that the Minister suggested. I accept that practical problems arise when one deals with nannies and au pairs in individual households. However, it is important to find some means to ensure that standards in this area are maintained and improved.

I also thank the Minister for his response to Amendment No. 173A to new Schedule 9A. I very much hope that the consultation will be designed to be completed to enable time to be given—in this Chamber or in another place—to consider its conclusions and to table suitable amendments to the Bill, if that is considered appropriate. If, following the consultation, conclusions were reached that a different kind of exemption would be appropriate, it would be unfortunate not then to be able to amend the Bill. That would represent a missed opportunity. I am not sure what future opportunity could easily be found to amend the legislation if we miss the opportunity to do so as the Bill progresses through Parliament. I hope that the consultation will be speedily completed. The Minister mentioned the spring but I do not know whether he can give us a further indication as to when the consultation might be completed. The Minister does not indicate any knowledge of that. I shall withdraw the amendment but look forward to further information on that point at a future date. I beg leave to withdraw the amendment.

moved Amendment No, 128A:

Page 30, line 38, leave out from ("any") to ("is") in line 39 and insert ("day on which he does not act as a child minder at any time between 2 am and 6 pm").

moved Amendment No. 129A:

Page 30, line 42, leave out from ("is") to end of line 45 and insert ("the National Care Standards Commission").

I support the amendment of the noble Lord, Lord Laming. I had not considered fully all the implications when we discussed this matter at Second Reading. The noble Lord, Lord Hunt of Kings Heath, had the courtesy to write to me. I raised the issue of the resources that would be available to Ofsted and I received some assurance that these would be considered. However, it seems to me that the arguments of the noble Lord, Lord Laming, on the practicalities are extremely powerful in these circumstances. My arguments at that stage were about resources, but if one adds the two arguments together, one has a very powerful case against transferring to Ofsted.

I too support the amendment of the noble Lord, Lord Laming. I say straightaway that he knows a thousand times more about this subject than I do.

I have the impression that this extension of the remit of Ofsted has been greeted with some derision in certain circles. I think I am right in saying that the phrase "Oftot" has been used by some commentators.

The noble Lord made the case that this is primarily a matter of care standards; it is not primarily a matter of education. I entirely concede that a good childminder is perfectly capable of assisting in the education process of a child, but so are the parents. Anyone who has the care of a child—if he or she is doing so properly—is constantly aware that he or she is actually promoting the child's education in the widest possible sense.

That does not seem to me to be a matter that lies easily within the remit of Ofsted. To my mind, since it was set up by the previous administration, Ofsted has established its authority, its expertise, its credibility and its acceptability in a most remarkable way. However, it is essentially concerned with the formal education of children in schools. This extension to becoming the authority responsible for monitoring childcare, and day care by childminders of the kind we are talking about, would be of an entirely different character. To my mind, the matter essentially lies within the scope of the new care standards commission, which, after all, has a range of similar objectives in relation to other establishments.

Quite frankly, I am puzzled and astonished as to why the Government should consider that Ofsted is the right home for this particular extension. I agree that there should be proper control of standards, proper monitoring and proper registration, but it does not seem to me that that is an Ofsted function; it should be a function of the new commission. The noble Lord, Lord Laming, is right. I hope that the Government will listen carefully to an argument coming from such an authoritative source.

We know of the great expertise in this field of the noble Lord, Lord Laming, and any amendment he moves will of course be treated seriously.

On this occasion he raises an important issue: which body should have responsibility for the regulation of day care and childminding in England. I am grateful for the opportunity he gives to set out the Government's position on this matter and to attempt to allay any concerns which may have arisen as a consequence of the decision to transfer the regulatory function to Ofsted.

That the regulatory function—and, in particular, the consistent application of standards—should be carried out by a single national body rather than by 150 individual local authorities, as at present, is, I venture to suggest, not in question. Responses to the Government's consultation in 1998 on the regulation of childcare showed clearly the importance attached to the delivery of regulation being consistent across the country; nor is there any doubt that integrating day care regulation and nursery education inspection will reduce burdens on providers.

Having a single regulatory authority operating the national standards will ensure that a child's welfare and safety will no longer be a matter of geography but one of consistency across the country. We believe that the present system has become, in effect, one of localised regulation, which has led to widely varying interpretations of guidance in different parts of the country. A national framework will help to ensure a level playing field for providers and will deliver clarity for both the regulated and the regulator.

In reaching its decision on which body should be responsible for regulation, the Government were bound to be aware of some people's perceptions of Ofsted, particularly having heard the notable contributions to the debate today. I refer, for example, to the perception that Ofsted has no experience of the provision of childcare and that, as a consequence, this will lead to an education "take-over". We acknowledge that that is an important concern. It is one which all who have spoken to the amendment so far have reiterated.

The Government's decision to cast Ofsted in the role of regulator does not ignore these concerns and it is important that I explain the rationale behind the decision. I should also like to reassure the noble Lord, and others who share his concerns, that the well-being of our children will remain the highest priority under the new and distinct early years directorate, which will be established within Ofsted and headed by the early years director, a new post created to carry out this important work.

First, and most importantly, the legislative provision set out in the Children Act 1989, which this Bill seeks to improve further, presents a very clear framework to ensure that the care, welfare and development of children is at the heart of the regulatory function. A new framework of standards will be set by the Government for the provision of care and Ofsted will work within this framework. These legal responsibilities simply cannot be ignored or played down, and there is no doubt that Ofsted has every intention of fulfilling its legal duties in this respect.

I must also make it clear that there is no intention of ignoring or marginalising the vast amount of expertise of the staff currently involved in this work. It is the Government's intention that local authority inspectors, managers and administrative staff will be given the opportunity to transfer to the new early years directorate, bringing with them their knowledge and experience. It is essential that the best of the existing system is maintained in the new one. The necessary competence to carry this forward is currently vested largely with those working in the local authorities.

I do not think it is unparliamentary language—nor do I think that what the noble Lord, Lord Laming, said was unparliamentary—to put the matter directly. Ofsted does not have hundreds of staff hidden away waiting to take on this work. The early years directorate will achieve greater success if many of those doing the job now opt to continue to do it.

In coming to their decision, the Government had regard to the burden that dual inspection placed on many providers. Bringing together the regulation and inspection systems for early years childcare and education in England signals an end to the confusion and duplication which operating two separate regimes has created.

There are a number of other practical considerations to take into account. Ofsted has experience of inspecting new areas of provisions and of successfully putting in place the means to do this. In 1992, Ofsted was given the task of setting up an independent system of school inspection. It had to devise a framework for inspection applicable across all schools, recruit sufficient numbers of suitable inspectors and ensure that they were appropriately trained in the framework and in quality assurance throughout the whole process. We believe that this was done successfully, not only meeting the targets but achieving quality inspections.

When Ofsted was given the function of inspecting nursery education, that was also new to them. They have made a success of this by drawing upon and harnessing the expertise of those in that sector and training them for the purposes of raising and ensuring the standards of education for four year-olds, now being extended to cover three year- olds. Inspection of nursery education has also been generally successful because Ofsted has worked in close partnership with providers and relevant bodies such as early years development and childcare partnerships in this sector.

Ofsted has undoubted considerable experience in driving up standards. It has always delivered what has been asked of it and it has never failed to meet its targets. Ofsted has a national framework for education inspections and, most important, it already has in place a national and regional organisational structure.

Furthermore, Ofsted has experience of publishing inspection reports—an important aspect of the new legislative framework—enabling providers and parents to see the quality of provision at present and what the provider needs to do to make it better. Ofsted has experience of producing thematic reports on more general trends in the provision of education. These types of reports will be important in giving an overview of the national position as regards childminding and day-care provision.

This experience will be invaluable in bringing together the best of two existing systems of regulation and so maintaining the highest standards in both welfare and education.

I have taken a little time to explain the Government's rationale in the decision they have made. I sincerely hope that the noble Lord and other noble Lords who have spoken are happy with this explanation of how the Government came to their decision on Ofsted and how Ofsted will operate within the new framework. I hope also that the noble Lord will consider what I have said and will take the opportunity—which of course he knows exists—to meet with myself and others to discuss further this Government decision in the weeks ahead.

Before the noble Lord, Lord Laming, responds to the Minister, I should like to make two points and to ask one question. I shall start with my question. The Minister laid great stress on not only the desirability but the fact that it would be essential that those who have gained great expertise in this field—principally in local authorities—will be those who will take up the staff posts on offer in the early years directorate. Has the Minister any idea of what proportion of those people will come from local government departments other than the social services department? How many will come from the education department of a local authority? My guess is probably very few indeed, because this area has always been seen to be a social services activity.

First, the Minister made a powerful case, which I do not challenge for one moment, of the desirability of setting national standards in this area. If I may say so, much of his speech was directed to an argument that no one who spoke in the preceding debate had addressed. We accept that point as taken for granted. We are concerned why the area of childminding should in future be regarded as an extension of the education responsibilities rather than the welfare responsibilities of an authority.

Secondly, I sometimes feel that it is a pity that Ministers do not have a second pair of eyes in the back of their shoulders. If, when the Minister was speaking, he had seen the reaction of some very experienced noble Lords sitting more behind his right shoulder than behind his left, I believe that he would have advanced his arguments with rather less confidence. Before we finish the debate, I hope that the Minister will give us some indication that he is now prepared to listen to the arguments rather than merely attempt to persuade the Committee. This is an important matter and I am deeply unhappy about the way the Government have chosen to move forward.

I believe there was a question in the comments of the noble Lord. In one regard in particular, let me say that we accept that what has happened under the existing circumstances has not always been a social services responsibility. Around one-third and rising of inspection units are now based in education departments.

Two-thirds in social services.

That is so. The noble Lord said that most of my speech was directed towards an argument with which everyone agreed. On reflection, perhaps the noble Lord may accept that part of my speech sought to lay the ground on the matter. However, I was attempting to deal with those elements of the Government's decision that are controversial.

The transfer of staff will be a TUPE transfer. With his great experience in the field of local government, the noble Lord will understand that point. Those currently doing the job will transfer from their current positions as a matter of local authority organisation.

What the noble Lord does not seem able to accept—and this may also be true of other critics—is that the idea that nursery education and childcare can be kept apart somehow and that the one should not touch upon the other is a notion the Government believe to be out of date. The two parts must be brought together. The question then remains of who is best placed to bring them together. We are of the opinion that allowing Ofsted to take responsibility for this task does not in any way detract from the responsibility of ensuring that childcare and child welfare is an essential part of our programme.

While I may not have eyes in the back of my head, I hope that, from where I am standing, I can recognise that real concerns have been expressed about this issue. Of course the Government will continue to listen to those concerns. The noble Lord heard me make that point in my speech, as did the noble Lord, Lord Laming. However, I cannot suggest for a moment that the Government are minded to change their mind on the decision to give Ofsted the responsibility, under the new directorate, to look at this field. However, we shall continue to listen to the arguments.

I am extremely grateful for the powerful support I have received from the noble Lord, Lord Clement-Jones and the noble Lord, Lord Jenkin, who of course has vast experience in this field. I am grateful also to the Minister for his detailed response, even if he does think that I am out of date on this matter.

First, I have no disagreement with the Minister on the need for uniformity and I accept that that is the reason that lies behind the Government's decision to establish a national care standards commission. That will achieve the very uniformity that formed a key plank in the Minister's response.

Secondly, I should like to make clear that I make no criticism of Ofsted as a body that is suitable for the inspection of education. Furthermore, I do not believe that any other contributors to the debate have doubts about that body. Many of the noble Lord's points about the qualities of Ofsted are not in dispute. The Minister said that Ofsted publishes all its reports. Well, the national care commission will do so as well. Indeed, an amendment to that effect standing in my name was considered earlier in the Committee's consideration of these matters. There is no dispute about the benefits of uniformity and there is certainly no dispute about the need for reports to be published; nor is there any dispute about the need to have good national standards.

However, I regret to say that the Minister has failed to convince me on the need to recognise that care in a childminder's home is quite different from nursery education. There is every reason for having two systems. One should deal with childcare practice and childcare standards. That is what we should expect good parents to provide for a very young child in their own home. That is different from what we expect in nursery education or in other forms of education. It is entirely right that there are two separate systems. As the noble Lord, Lord Jenkin, rightly said, there is every reason why the two will come together at particular points, as good parents come together with the education system at particular points. However, we should not try to blur the distinction between the two functions; nor should we attempt to weaken good childcare practice at this stage. I believe that this measure, however well intended, will seriously weaken childminding in this country. I have no doubt about the need to improve childminding, but the way to do that is by building on existing practice and doing that through the national care standards commission.

The Minister kindly said that there can be further discussions on this point. I welcome that opportunity for further discussions. I shall approach those discussions having been reinforced in my belief that the Bill is wrong in this regard. While I am happy at this stage to ask the leave of the Committee to withdraw the amendment, I hope very much that we can continue the dialogue elsewhere. I beg leave to withdraw the amendment.

moved Amendment No. 129B:

Page 31, line 5, leave out ("and every prescribed person").

Perhaps the noble Lord will allow me to intervene. Is not the correct procedure that the Minister should move the first amendment in the group and not the others? He is speaking to the others. I hesitate to intervene but I think that we should get these matters right. If I am right—I believe that I am—I hope that the Minister will accord with that.

The noble Lord is of course right. I am extremely grateful to him for putting me right. I hope that I do not make that mistake again.

In moving the first of the amendments, I shall speak to the others. I shall speak also to Amendments Nos. 129DA and 173B, standing in the name of the noble Lord, Lord Clement-Jones. These amendments together relate to important issues concerning suitability—

On a matter of procedure, I understood that the Minister would normally move the lead government amendment, speak to the other government amendments and then we would have the opportunity to speak to our own amendments—not moving them but speaking to them—and that the Minister would respond at the end. If I have that wrong, the noble Lord can correct me.

I am grateful to the noble Lord, Lord Clement-Jones, although I still have at the back of my mind his welcome to me a few minutes ago. I think that I was right to be cautious.

I shall do precisely what the noble Lord said. The purpose of Amendment No. 129B is to remove an unnecessary regulation-making power in relation to the suitability of persons. The power as drafted allows the Secretary of State to prescribe the people—other than the childminder and anyone else looking after the children—who must meet the requirement to be suitable to look after children under the age of eight. This would be a necessary qualification of registration. However, the power was designed particularly to catch proprietors, managers and committee members of day care establishments who may from time to time have occasion to look after children under the age of eight. This has been unnecessarily replicated at what will be new Section 79B(3) of the Children Act 1989 to apply to a childminder's premises and should be removed.

Amendments Nos. 129C and 129D deal with the question of suitability of equipment. These are correcting amendments which seek to clarify that a person is not qualified for registration unless equipment in day care and childminding settings is not only in good condition but is also appropriate. The amendments will improve the Bill and ensure that equipment—for example, toys—is appropriate to the age and ability of the children. That will help to prevent those toys designed for older children—for example, those with very small parts—being made available to babies. I beg to move.

I thank the Minister for arranging matters so as to allow me to speak to Amendment No. 129DA. My noble friend Lady Barker will speak to Amendment No. 173B. I am sure that the Minister will rewrite his reply after hearing my arguments.

The amendment is designed to establish how the new clauses regulating the registration of childminding and day care will work. They are designed to establish that inclusion of a registered person on the Section 1 list under the Protection of Children Act 1999, along with other lists and conditions, is not explicitly a pre-condition of registration of childminding and day care services. It is clear from the clauses what events give rise to disqualification. But additional to that, we propose that there is a positive approach of ensuring that certain categories of person are not included and cannot be registered. In a sense, the amendment is designed to elicit whether that is explicitly the case in the Bill. For that reason we have included in the amendment a rather long subsection which seeks to define someone who is not considered suitable right at the very outset for the purpose of registration, so that rather than awaiting disqualification, one never registers these people in the first place.

In seeking to move Amendment No. 173B—

Speak to!

I was going to say to the Minister that it is comforting to know that someone else is about as proficient as I am in the procedures of the House.

I believe that the noble Lord, Lord Laming, will take an interest in Amendment No. 173B, given that he has just spoken about the difference between day care and childminding facilities and schools. This amendment seeks to do precisely the opposite. It seeks to establish whether those in charge of childminding and day care facilities should have the same responsibilities as schools for child protection.

Throughout our debates a number of noble Lords, including the noble Lord, Lord Laming, have spoken very much from the point of view of people who are or have been practitioners. I take a rather pragmatic view of this issue. Although I have not worked in the field of the provision of children's services, I am given to understand by those who do that being aware of children exhibiting signs of having been abused is very common and ordinary within daycare and childminding settings and settings where young children are engaged in play.

In proposing the amendment, it is therefore our intention to find out whether childminders and people in the provision of day care for small children will have the same duty of care and child protection as do schools.

I wish to ask about "appropriateness". I should explain, rather than declaring an interest, where I come from. I chair a charitable trust connected with Queen Mary and Westfield College, east London. One of the objectives of the trust is to assist in the education of women, which was the role of Westfield College before the merger.

One of the earliest decisions my trust took was to finance a creche for the benefit of the very young children of both staff and students. I was surprised to find that our college was one of the few in London University that did not already have a crèhe. I ask a question in relation to some of the experiences we had with that and the problem of satisfying the local authority that the facilities fulfilled the requirements. We are talking about "appropriateness", the Minister referred to equipment being suitable for young children. Some of the requirements of the local authority for the establishment of the créche went some way beyond what those responsible for running it considered reasonable in the circumstances. One could have taken the matter to appeal, I suppose, but in the end the trust financed the necessary changes.

One point was that the local authority required the uncovered open area outside to be covered in a specially soft and resilient covering so that, if the poor little people fell over, they did not bruise themselves. One can understand the desire of the regulator constantly to want to guard against every conceivable risk. My feeling is that, if a child falls over and hurts itself, it learns not to do it again. That is part of growing up.

I should be sorry if, as a result of the merger of responsibilities for nursery schools and similar establishments with responsibilities for child minders, one would have the same attitude spilling over into the provision of child minding, requiring child minders to install every conceivable measure for the avoidance of any possible injury to children in their care. It could not be reasonable and if one went too far down that road, one would end up destroying the facility. People would say, "I'm sorry, I can't do this, I can't afford what is necessary". I ask the Minister to give an assurance that the requirements for equipment, premises and the other matters mentioned in the subsection for child minders will be appropriate and proportional to the service provided. That is the kind of thing lying behind the anxieties expressed by the noble Lords, Lord Laming, Lord Clement-Jones and myself on the previous amendment. We have had experience of such high standards being imposed on a créche and we wonder whether that will happen to every child minder in the land. It cannot be in the interests of the children and parents or of the achievement of high standards.

I wish to ask a question about Amendment No. 129DA in the name of the noble Lord, Lord Clement-Jones. As I understood him, he said that the people listed in paragraphs (a) to (j) are not suitable, but other people may also be unsuitable even though they do not fall into any of those categories. I venture to suggest that, as his amendment is drafted, there is a nasty risk that no one could be held to be unsuitable unless he fell into one of those categories. The list is likely to be construed as exclusive. A person who is unsuitable on general grounds but does not fall into those categories could no longer be held to be included if the amendment were accepted.

I entirely agree with the noble Viscount. There are defects in the drafting in that respect and we do not wish to curtail other ways in which someone would be not suitable for the purpose of that clause. At this stage, as so often at Committee stage, the amendment is designed to establish a principle.

I wish to say something in this important debate. There was a time when it was extremely difficult to get child minders to register. There was a great resistance to registration and a feeling among many child minders that, if they registered, then all manner of bureaucratic demands would be made of them, some expensive, as has been described.

The way in which it was possible to persuade childminders to register was through working in partnership with them in ensuring that their talents and experience as parents were used positively and creatively in parenting someone else's child during the time they had that responsibility.

The situation requires not only sensitivity to the issues but also understanding of the position of a child minder, not only in terms of the enormous responsibilities a childminder takes on for someone else's child, but also in terms of the kind of support and help they need.

When it comes to dealing with children who may be thought to be at risk or children who have special needs, working in partnership with childminders requires particular skills. It seems to me that the amendments underline the points already made. I hope that the Minister will view the amendments as a positive contribution to the debate.

I shall attempt first to deal with the remarks of the noble Lord, Lord Jenkin, on his fear that "appropriate" may be so harshly defined that too harsh standards are set. I can give him the assurance that he sought, but we are determined to have national minimum standards and it is important that equipment is appropriate. However, I believe that he need not worry too much about what he fears.

I deal now with Amendment No. 129DA, to which the noble Lord, Lord Clement-Jones, spoke. It refers to the definition of suitability of persons to look after children under the age of eight. The Committee will know that the Bill currently provides a power for the Secretary of State to make regulations about the grounds on which people will be disqualified from being registered. Schedule 2 makes it clear that the grounds may include all matters listed in the amendment. To that extent, it replicates existing regulation-making powers and seeks to stipulate the definition of suitability on the face of the Bill. While regulations will need to cover a wide range of issues to be taken into account, I believe that the Committee would agree that it would be cumbersome to seek to specify every issue in the Bill which we may want to cover.

The issue of which persons are suitable to look after young children is a fundamental part of the revised regime that this Bill will create. It is essential that we ensure that we do not constrain unnecessarily the matters which should be taken into account when day care providers and child minders seek to register to care for young children. We need to have flexibility to respond effectively to new developments which may arise in future for protecting children from harm; for example, new arrangements for identifying and recording those deemed unsuitable to work with children. We believe that the regulation-making power set out in the Bill gives us that flexibility.

It is of crucial importance that a proper balance is struck between safety and unnecessary regulatory burdens on business. We believe that such detail is not appropriate for primary legislation. For example, it will not be necessary to include all the matters listed in the amendment as grounds for disqualification, since the Government intend to introduce legislation in a crime and public protection Bill in this Session to implement the recommendations of the inter-departmental working group on preventing unsuitable people from working with children. When that Bill comes before this House, it will provide that a person who is convicted of one of a number of offences against children (to be specified) is to be banned from working with children. A similar ban will apply to persons who are included on the Department of Health's new list or the Department for Education and Employment's List 99 because they are unsuitable to work with children. By that disqualification the person is banned from becoming a day care provider or child minder. There is therefore no requirement to consider such a person's suitability, which is the test applied to each application for registration.

Amendment No. 173B, which was spoken to with such proficiency by the noble Baroness, Lady Barker, draws our attention to a very important and fundamental principle of Children Act regulation: child protection. I am grateful to the noble Baroness for giving me this opportunity to state the Government's position on this important matter. I hope that noble Lords will be reassured that this Bill already includes powers for us to make regulations to govern the activities of registered persons who act as child minders or provide day care and to impose duties on the chief inspector to have regard to the standards prescribed in regulations. We therefore question the need for a specific reference to such matters as are set out in the amendment tabled by the noble Baroness. We urge that such detail is not appropriate for primary legislation.

I restate the commitment of the Government to consult widely on new national standards for the regulation of day care providers and child minders. Child protection and behaviour management are exactly the kinds of issue on which we want to gain a wider view over the next few months. The Government are committed to considering the responses carefully. However, the Government believe that it is inappropriate to pre-empt that consultation by committing themselves now to the details of the national standards and the regulations that they will underpin. Having made those comments on the two amendments that have been spoken to, the Government are grateful to the noble Lord and noble Baroness for having raised what are undoubtedly very important issues.

moved Amendments Nos. 129C and 129D:

Page 31, line 12, at end insert ("and appropriateness").

Page 31, line 29, after second ("condition") insert ("and appropriateness").

moved Amendment No. 129DB:

Page 32, line 5, after ("Inspector") insert (", early years development and childcare partnerships").

In rising to speak to Amendment No. 135, I associate myself with the remarks of the noble Lord, Lord Clement-Jones. One of the inevitable consequences of this part of the Bill is that the role of local authorities will be considerably reduced. But it would be very foolish if the corporate wisdom, as it were, of local authority registration and inspection teams was allowed to evaporate. It is that element of local knowledge, and often considerable development and support work, which will be immensely valuable to Ofsted. If anything, I believe that the local dimension will be required even more than before with Ofsted operating, as inevitably it will be, on a somewhat less localised basis than the present inspection teams. Ofsted will need all the support that it can get in its regulatory role to ensure that it is as close as it can be to each of the many cultures that influence early years education and child care in various ways.

While the wording of my amendment is somewhat more general than that of Amendment No. 129DB, its intended purpose is very similar. I too am interested to learn from the Minister what role he sees for early years development and child care partnerships. I agree with the noble Lord, Lord Clement-Jones, that they should be consulted from the outset not only for what they can bring to the table in terms of effective planning but for the advice that they can give from the perspective of quality assurance. Most people agree that these partnerships act as an effective channel to convey parental issues and concerns.

I do not want to give the impression that I have lost hope on the fundamental point. I support the observations of the noble Lord, Lord Clement-Jones, and the noble Earl, Lord Howe, about ensuring that the current experience and philosophy of many, although not all, local authorities are available in whatever future arrangement is decided upon.

I thank noble Lords who have spoken in this short debate. I should like to speak also to Amendment No. 134B in the name of my noble friend Lord Hunt of Kings Heath. Obviously, partnerships are intended to play a very important role in the system that is developing.

Amendment No. 129DB would require the Secretary of State to consult early years development and childcare partnerships before making regulations governing the activities of registered providers. The regulations in question may cover how providers deliver their services or how Ofsted fulfils its regulatory function. The provision in the Bill as drafted requires consultation with Ofsted and enables the Secretary of State to consult any other party he (the Secretary of State) considers appropriate.

We are sure that it will often be the case that partnerships prove a valuable source of expertise. However, it may not be appropriate to burden partnerships with the requirement to consider proposals for regulation in every case; for example, where the regulations under consideration relate to how Ofsted fulfils its regulatory functions. We therefore think it more sensible to allow the Secretary of State to use his discretion on a case by case basis.

The intention of the amendment in the name of the noble Earl, Lord Howe, is to ensure that local authorities in England co-operate with the chief inspector. We believe that that is a desirable requirement. A similar provision already exists in the Children Act which requires authorities to assist each other under the present regulatory system. It is only sensible that this requirement should be carried forward when Ofsted assumes the role of regulator. However, we do not believe that it is necessary to amend Clause 68 as proposed. The objective of the amendment is achieved already in Schedule 2 to the Bill, which inserts a new Schedule 9A into the Children Act. Paragraph 8 of the new schedule enables the chief inspector and the National Assembly for Wales to ask for assistance from local authorities. In turn, authorities are required to provide the assistance requested where reasonable to do so. That is an important provision.

The Government's amendment, Amendment No. 134B, enables regulations to be laid in support of the general duty set out in new Section 79 concerning the provision of training, advice and guidance by local authorities. As drafted, new Section 79 would require each individual authority to determine how it might fulfil this function. That could lead to 150 different approaches across the country and precisely the kind of inconsistency we are seeking to do away with. Taking a regulation-making power would enable the Government to develop a more strategic approach, guided from the centre. For example, the regulations could set out the involvement of and interaction with those same partnerships which we in this House believe have an important role to play; namely, the early years development and childcare partnerships which draw up and agree early years development and childcare plans in each local authority area and which play a key role in the local delivery of the overall national childcare strategy.

Such an approach would allow for the proper allocation of the function between local authorities and early years development and childcare partnerships and ensure no unnecessary overlap and duplication locally. On that basis, I ask the noble Lord to consider withdrawing the amendment.

My Lords, I thank the Minister for that considered reply, and in particular his words about early years and childcare partnerships. I liked the language on consultation as far as it went: that it would not be appropriate to burden the early years development and childcare partnership with consultation in certain circumstances. I am sure that by and large they would be more than happy to be burdened. However, that is ministerial language.

I understand the Minister's position as regards discretion for consultation being used on a case by case basis. However, I suggest that it would be preferable for the Minister, as agent for the Secretary of State, to set out the general circumstances in which he believes it would be right to consult. A more positive and specific provision at a later stage of the Bill would be helpful. The assurance that the Secretary of State will consult where appropriate is not good enough. Perhaps the Minister would consider a more concrete form of words. I beg leave to withdraw the amendment.

moved Amendment No. 129E:

Page 34, line 2I, leave out ("members of the public") and insert ("any person").

My Lords, I understand what the Government are getting at. However, I should have thought that the expression "inspection by the public" has entered into the minds of the body politic over the decades and that one does not need to give an extended meaning to the word "person", as the Minister sought to do by referring to partnerships, bodies, and so on. If one simply says that the register is open to inspection by the public, everyone knows what that means.

It would be easier—I am sorry that I did not think of it myself—simply to take out the words "members o' and then the matter would be clear. Everyone would understand what the provision meant.

My Lords, I am grateful for the noble Lord's comment. However, we believe that the minor amendment we propose is probably the best way of ensuring that organisations in an official capacity are covered by the clause.

moved Amendment No. 130:

Page 37, line 36, after ("training") insert (", including disability equality training,").

The noble Lord, Lord Rix, with his renowned expertise in this field, is right to be concerned that provision for the special needs of disabled children and children with learning disabilities is not overlooked.

It is, of course, only proper that those responsible for the welfare and development of disabled children receive adequate training and operate within the appropriate guidelines and to the relevant standards.

It is already the case that all early years providers receiving funding for early education must have regard to the code of practice on the Identification and Assessment of Special Educational Need. The noble Lord will welcome the fact that that Code of Practice is currently being revised to include more detailed guidance.

As the noble Lord will be aware, we intend to implement a new framework of national standards for day care providers and childminders. Work on the detail of these new standards is ongoing, and, naturally, there will be full consultation with the sector before the standards are developed fully. However, I can assure the noble Lord that disability and special needs will be covered in the new standards, which will be underpinned by regulation and guidance.

If, as we intend. providers and their staff are to meet these new requirements, they must, where necessary, have access to the proper training. As drafted, the relevant provision in this part of the Bill enables Ofsted to secure such training. Furthermore, in October we implemented further rights under the Disability Discrimination Act, which cover services to the public, including day care and childminding services. In December, following recommendations from the Disability Rights Task Force, the Secretary of State announced that the Government will bring forward legislation to tackle disability discrimination in education, including that for under-fives.

I am grateful to the noble Lord for allowing me, through his amendment, the opportunity to explain how it is envisaged that the new regulatory system and standards will operate in respect of disabled children and children with learning difficulties. I hope that, in the light of the explanation that I have attempted to offer concerning the Government's action more widely in this area, he will at least have been reassured on the point that we are discussing now.

I warmly welcome the assurances that the Minister has given us, and I therefore beg leave to withdraw the amendment.

moved Amendment No. 131:

Page 38, line 27, at end insert—

("( ) The Chief Inspector shall secure that registered inspectors receive appropriate training.").

I rise to speak to Amendment No. 134ZA. We recently discussed the inspection of care homes. Here we are again trying to make that most difficult of judgments as to what constitutes inspections that will be effective without being too onerous.

The noble Earl, Lord Howe, in relation to his amendments, talked about the use of the word "examine" as opposed to "inspect". I want to argue the contrary case on this amendment. Those of us who work in the field of social services, like those who work in other fields, have a language that is all our own. People gradually become fluent in speaking "social services", and words have particular meanings to us.

The word "examine" in this context carries with it a connotation of physical or medical examination. Therefore, we believe that its use is inappropriate in charging inspectors to go into any premises and carry out what could be a detailed physical examination of a young person. Our amendment has the same intention as that tabled by the noble Earl, Lord Howe, but from a different starting point. We believe that the word "examine" is inappropriate and we want to replace it with the word "inspect".

In responding to Amendment No. 131, I shall speak to Amendments Nos. 132,133 and 134ZA and to the Government's Amendment No. 134A. Taken together, they address a number of important issues relating to inspection.

Amendment No. 131 ensures that the chief inspector provides proper training for his inspectors before they are expected to carry out their duties as regulators. That is a sensible requirement. It would not be appropriate for untrained, inexperienced inspectors to carry out this important and often sensitive role.

However, provision for the training of inspectors is already included in Part V of the Bill. New Section 79N(3) on page 28 applies paragraph 11 of Schedule 26 to the School Standards and Framework Act to the register of childcare inspectors in the same way as it currently applies to the register of nursery education inspectors. Paragraph 11 requires registered nursery inspectors to have completed a course of training to the satisfaction of the chief inspector before being permitted to conduct an inspection. As this condition will also be required of the new cadre of inspectors, I am pleased to be able to reassure the noble Earl that the objective of his amendment has been achieved.

I turn to Amendment No. 132. I recognise that there may he concerns in some quarters about who might be contracted to carry out Ofsted's inspections. It might be helpful if I make clear that the actual effect of Amendment No. 132 is to prevent the contracting out of the organisation of inspections, not the inspection itself. This is a useful power as it may prove administratively more efficient, particularly in the longer term, for Ofsted to contract out the administrative function to allow it to concentrate on its key regulatory function. Indeed, Ofsted already successfully exercises a similar power in relation to the administration of the nursery education grant inspections and has found such flexibility helpful and would welcome its replication here.

However, it is important to stress—and I do so—that the Government are concerned to ensure that inspections of both nursery education and childcare are carried out by appropriately qualified persons and the training to which I referred earlier is integral to that. That is why we are introducing new requirements on Ofsted, first, to register early years childcare inspectors and, secondly, to ensure that registered inspectors carry out inspections.

In case there are further concerns about the contracting-out powers, we expect that in the majority of cases the inspectors currently employed by local authorities will carry out those duties and—in response to the noble Earl—to a high standard indeed. However, over time that might change as others such as nursery education inspectors take an interest in the work, which we should welcome. It will remain the case that whoever is charged with carrying out the inspection, he or she will be a registered inspector of a suitably high calibre to fulfil the role. We believe that someone from the voluntary sector could inspect, but only if suitably qualified. I am grateful to the noble Earl for his comments which we shall take away and consider further. Furthermore, there will be transitional arrangements for the transfer of staff, a matter to which we shall no doubt return.

Having completed the inspection process, the regulating authority undertakes to make a full report. It is with regard to the detail of those reporting arrangements that the noble Earl, Lord Howe, tabled Amendment No. 133. We have some sympathy with the general thrust of that amendment and I welcome the opportunity to clarify our intentions.

It is important to ensure that certain sensitive information, including in some cases names and addresses, is not placed in the public domain. That will be particularly so when the publication of such information might in some cases place a child's well-being in doubt.

However, our approach is slightly different from that of the noble Earl. The provision in subsection (2) of new Section 79Q already enables Ofsted to publish reports on providers but to withhold information from the report where appropriate to do so. That might apply, for example, when publishing an inspection report on a childminder and, for child protection reasons, it is considered appropriate not to reveal the provider's identity by publishing his or her name and address. In addition, your Lordships should also be aware that it is routine protocol for Ofsted when completing a report to check matters of factual accuracy with the provider before publication.

We do not believe that that will be necessary, as this amendment seeks to achieve, in order to prevent the publication of names and addresses in every instance. An important part of these reforms is that parents are given access to more, not less, information about the availability and quality of the provision of childcare in their locality. In this context, the Ofsted reports will be rendered meaningless if parents, having identified potentially suitable provision in their area via the register established in new Section 79F(5), cannot assess the quality of its provisions. That is why we consider it proper that there should be discretion in this area, recognising, of course, that a sensible balance must be achieved between protecting children and the provision of information to parents.

Inspection powers and the records which follow from them are the subject matter of Amendment No. 134 tabled by the noble Earl, Lord Howe. It provides an opportunity to explain clearly that this element of the Bill basically carries forward an existing and very important inspection power set out in the Children Act 1989. In brief, this section of the Bill, unamended, sets out what an inspector may do or have regard to upon entering a provider's premises to undertake a routine inspection to report on the welfare and development of children. In addition, it clarifies what the inspector may do, or have regard to on other occasions; for example, on pre- and post-registration checks or unannounced inspections.

As drafted, Amendment No. 134 would undermine this fundamental aspect of the inspection process, removing existing clarity as to the right to interview the care provider and/Dr give regard to the premises, the relevant records or documentation or the children being cared for.

Given the clear implications for child protection and safety, the Government are concerned for the need to be more specific in this regard than the general power of entry which would result from the amendment. As drafted, the amendment would lay the power wide open to interpretation in relation to routine inspections. Furthermore, the amendment would reduce existing and helpful legal clarity regarding rights of entry to premises for purposes other than the prescribed formal inspection.

The noble Baroness, Lady Barker, raises a more specific concern in Amendment No. 134ZA, which relates specifically to the children being cared for. Clearly, inspection of children is a particularly important aspect of the current inspection process to ensure both child welfare and child protection, which again should be carried forward into future arrangements. However, where concerns stem from the application of those various powers, I hope that the Committee will be reassured that the Government are of course determined that all powers are appropriately exercised.

But surely that is a matter not for primary legislation but for regulations and standards? I have said before that the Committee knows that the Bill will for the first time introduce national guidance and standards, which we intend to develop in consultation with the relevant bodies. Those national arrangements will govern the whole inspection exercise and will ensure that the powers are effectively discharged and not abused.

Having said that, the Government have some concerns similar to those expressed by the noble Baroness. They are related to the detailed wording of the draft Bill which introduces into the regulation process the word "examine", which we believe—here I am attempting to answer the noble Earl, Lord Howe— is an unhelpful and unintended "clinical/medical" term. Following helpful representations from both providers and regulators in this area and from the NSPCC, we have tabled an important amendment in the name of my noble friend: Amendment No. 134A, which seeks to remove the word "examine" and put back the original word, "inspect", as used in Part X of the Children Act 1989. We hope that by addressing that point with a government amendment, we may reassure the Committee on other related concerns discussed today.

I hope that I have said enough to encourage the noble Earl, Lord Howe, to withdraw his amendment.

I thank the Minister for the full reply that he gave to all my amendments. I am particularly grateful to him on Amendment No. 131 for pointing me in the direction of paragraph 11 of Schedule 26 to the School Standards and Framework Act, which I believe settles the matter, together with his explanatory remarks. The intention of Amendment No. 132 was purely to probe the Government. I realise that its effect would be to prevent contracting out, which was not in the least my intention. I have every sympathy with the aim of contracting out. I am grateful for the consideration that the Minister said he would give to the points I made about the possible role of the voluntary sector.

In respect of my Amendment No. 132 which deals with the confidentiality of names, I shall read carefully what the Minister has said and consider the matter further between now and Report stage. Finally, I thank him for his remarks in response to my Amendment No. 134, which was again intended purely as a probing amendment. He successfully answered the questions that I raised. I beg leave to withdraw the amendment.

moved Amendment No. 134A:

Page 39, line 33, leave out ("examine") and insert ("inspect").

moved Amendment No. 134B:

Page 40, line 11, after ("shall') insert (", in accordance with regulations,").

I shall not detain the Committee long against this clause, but I should like to draw the Government's attention to the fact that a number of substantial anxieties have been expressed about the way in which the new power has been drawn up, the body to which the registration and inspection has been entrusted and some of the detail about the powers to be given. In the course of his replies, the Minister has given us what I can only describe as some very bland assurances. One is dealing with the matter, as it were, at third hand. The Minister is here to say what he believes the Government will do. We have what is in the Bill as to what that means; then there is the question of the regulations which will follow; and, perhaps most important of all, the actual operation of the registration and inspection as it will be carried out by the people on the ground.

I have a fear that we shall find ourselves with some rather heavy-handed detailed inspections and regulation in an area which, on the whole—although of course there are variations across the country—in the case of well-run local authorities, has actually run fairly satisfactorily. As a result, large numbers of people are prepared to offer child-minding and day care services and, as the Minister himself properly said, that is of great value in present day society when so many more women go out to work.

I simply ask the Minister to take account of the anxieties that have been expressed; and to look seriously at some of the points raised—he has indicated for some of them that he is not disposed to change his mind, although he will listen—because I believe that we risk setting up something of a sledgehammer to crack a nut. Yes, there should be national standards—we agree on that. But I seriously wonder whether we are justified in setting up a whole new national bureaucracy to run them. I have a horrid feeling that, as it unfolds over the years ahead, one will find a rising tide of protest and a falling number of childminders and day care providers. That would be in no one's interest.

I am grateful to the noble Lord for his remarks. I am sorry if my remarks seemed to him to be bland; I am sure that, when he was a senior Secretary of State, his remarks at any stage of any Bill for which he was responsible were not bland. I take seriously the comments and discussion that we have had in the Committee today at the proper stage of the Bill. We do not believe that the consequences of passing the Bill into legislation will be as the noble Lord predicts. However, we have further thinking to do; we shall no doubt return to the House on Report on those matters; and the noble Lord may rest assured that the remarks and comments made from all Benches—some supportive, some not so supportive—on this important part of this important Bill will be taken into careful consideration.

I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage begin again not before 8.40 p.m.

My Lords, I beg to move that the Bill be now read a third time.

I believe that it will be for the convenience of your Lordships' House if, in speaking to this Bill, I speak also to the identical Bill which relates to the Medway Council. Together, these two Bills seek to alleviate the problem of burglary and the disposal of stolen goods over the whole geographical area of Kent covered by the Kent Police.

The Bills have the support of all political parties in the two councils. Wide consultation among organisations in Kent have shown that they are supported strongly by the general public, who are deeply concerned by the losses which they suffer when their homes are burgled. I declare an interest in this matter—a common interest, I am afraid, with many of your Lordships—as a personal victim of burglary in my own home in Kent. I declare an interest also as chairman of the Leeds Castle Foundation, where we have had bitter experience of the theft of valuable and historic items, which later turn up in the second-hand market.

To give some indication of the scale of the problem, over 1997–98 it is estimated that goods worth £105 million were stolen in Kent, with a recovery rate of only 25 per cent. The Home Office has given support of £350,000 to a project in the Medway towns called "Radium". That was recently launched officially by the Prime Minister and the Home Secretary, and is designed to tackle the fact revealed by Home Office research and by police intelligence that a large proportion of stolen property passes through unregulated second-hand dealers.

The legislation will not solve the problem, but I believe that it will make possible a more effective partnership between the police and the consumer protection work of trading standards officers. The provisions of the two Bills go a good deal beyond antiques, which I believe may be the focus of a large part of our debate. However, they will help to tackle, for example, the second-hand car abuse of fiddling the mileage reading of odometers—a fraud which provides profits of many millions of pounds for unscrupulous car dealers. The legislation will deal also with a new development called "squat trading", where rogue traders illegally enter vacant high street premises for what amount to hit-and-run sales.

The main provisions of the Bill are simple. They require registration, which will be free, of businesses which deal in second-hand goods. There is a requirement to keep a record of purchases and addresses, and of the sale of an article worth over £100. The penalties for failure to observe those provisions are set out in the Bills as a range of fines.

The Bills have been before the public in Kent for a long time—indeed, since November 1998. As I said, they have been the subject of wide consultations, including discussions with LAPADA, the national antiques organisation. Those have resulted in a whole series of exemptions being negotiated: for occasional sales by auctioneers; for regular private markets of traders; and for dealers outside Kent who come in either to sell or to buy. There is a total exemption for books, and an amendment to protect the collectors of antiques who must disclose the location of their collections. Those amendments show that the councils listened to the concerns raised with them by various trade interests and took positive steps to address the concerns. As a result, there were no Petitions outstanding that required a Committee stage in your Lordships' House. Therefore, I am bound to say that I am a little puzzled that at this 11th hour the noble Viscount, Lord Astor, should table his amendments, which, if carried, will kill these useful Bills.

Through the good offices of the noble Earl, Lord Howe, the president of'LAPADA—a national body of standing in the antiques field—some of us had the opportunity last week to hear and study its concerns and those of some antique dealers within Kent. I am bound to say that I recognise the strength of feeling behind those concerns. LAPADA expresses support for the motives behind the Bills but believes that the only approach should be through national legislation. It appears to argue that it is wrong in principle to make what it calls "local criminal law". Local by-laws and private Acts lie at the very heart of the whole local government system. I may do something which is perfectly all right in my native Dundee but it may attract a fine if I try it in my adopted county of Kent. In any case, there is no practical prospect of national legislation in this field. I believe that LAPADA's point of view in the matter is a typical example of the ideal being the enemy of the good. That is no more than to argue that if you cannot do something worth while everywhere, you should not be allowed to do it anywhere.

There are, in fact, a number of local authorities which have sought and operate similar powers to those now being sought by Kent County Council and by Medway Council. I shall not take up your Lordships' time in the brief period available by reciting all of them. However, there is a list of eight local authorities with similar powers.]" asked the Kent Police to contact all those councils. Every one of them has confirmed that it finds the legislation useful and that the councils work with the local police forces to enforce it.

The second objection is that the Bills' requirements to keep simple records will impose an unreasonable bureaucratic burden on small businesses. Certainly, it will be a bureaucratic burden; I do not deny that. But some bureaucracy is inevitable as the price of preventing the minority of wrongdoers from exploiting the law-abiding majority. Examples of social security benefit fraud and of income tax evasion readily come to mind. Neither of those can be dealt with without some degree of bureaucratic regulation. For the bona fide antique dealer, this registration should be a price worth paying for deterring the burglars from bringing discredit on decent businesses which deal in second-hand goods. They should be reassured that the police and trading standards officers in Kent have neither the desire nor, indeed, the manpower to impose a heavy-handed and intrusive regime of regulation. They plan a selective, targeted, intelligence-based campaign made more effective by pooling the police's intelligence sources with information from the registration records.

Finally, the noble Viscount's amendments seem to me to raise issues of significant parliamentary principle. LAPADA and the local antique dealers have raised objections which certainly deserve serious consideration. There were discussions between the councils and LAPADA during the consultation period on the Bills and, indeed, I believe that a number of amendments were made to meet their wishes. Personally, I believe that it is a great pity that if LAPADA and the antique dealers in Kent felt as strongly as they now say they do, they should not have put in their Petitions at the appropriate period and therefore enabled a Select Committee of your Lordships' House to deal with the matter in the kind of detail which it deserves and which, I believe, is impossible in this kind of abbreviated debate during the dinner hour. For whatever reason, that was not done. They will, or should, have a further opportunity to do so when the Bill passes to the other place, as it ought to do.

I say seriously to the noble Viscount that surely it would be a great error of judgment and quite wrong if this House, in a sparsely attended debate during the dinner hour, were to prevent the elected Chamber, including the elected Members for Kent, dealing with proposals from the Kent local authorities which are designed to protect householders from burglaries arid loss of precious possessions. I commend the Bill to the House.

rose to move, as an amendment to the Motion that the Bill be now read a third time, to leave out "now" and at end to insert "this day six months".

The noble Viscount said: My Lords, the noble Lord, Lord Thomson, for whom I have great respect, said that this House should send these Bills to another place. I believe very firmly that one of the most important roles of this House is to make sure that we do not send bad Bills to another place. I shall seek to explain that and persuade your Lordships that that is the case this evening.

I believe that these Bills are well-intentioned but they are wrong. The primary reason for that is that they have a national implication. It is not merely a local government Bill affecting a small area. I have no interest to declare. I am not an antiques dealer. I admit that I occasionally pay the bill when my wife buys something from an antique shop but that is as far as it goes. I have no knowledge about why there has been no Petition or anything like that.

It is worth looking at the details of the Bill. It requires anyone who wishes to deal in second-hand goods in Kent to register himself and his premises with the county council. Once registered, the dealer may trade but he must keep a record of the names and addresses of any person from whom the articles are acquired. He must keep a record of the articles themselves, descriptions, the names and addresses of anyone to whom he sells an article valued at over £100 and the date of all transactions. On the face of it, that is perfectly reasonable. The records must be kept in a form prescribed by the county council and must be produced to a constable or authorised officer of the council on demand. There are exemptions which include registered charities, scrap dealers and pawn brokers.

But if one looks at Part III, one sees that it deals not only with occasional sales and, as the noble Lord, Lord Thomson of Monifieth, said, squat trading but also with auctions, fairs and car boot sales. Anybody wishing to engage in those activities must first give notice to the county council of his intention to do so. The notice must include the time and date of the event, the premises to be used, the type of goods to be sold, the names and addresses of all the organisers and an estimate of the numbers attending. In relation to a car boot sale, I should think it is extremely difficult to know all the types of goods which are to be sold, and, indeed, it must be difficult to estimate the likely numbers in attendance. If this Bill is passed, there will be no car boot sales in Kent. They will all be held in a field a mile across the border in East Sussex.

At any occasional sale, the organiser must make a record of the names and addresses of all those selling the goods, whether each article is new or second-hand and, indeed, the registration numbers of all the vehicles used to transport goods to the sale. That is a difficult task.

But there are other important concerns. Part IV grants powers of entry to registered premises by authorised officers of the council or the police in order to inspect, take away and copy records. Powers of entry are granted also to any premises, whether registered or not, in order to inspect records or to serve notice relating to an occasional sale or squat trade.

Although this provision was originally designed to clamp down on dishonesty in the second-hand car market and car boot sales, the Bill casts its net much more widely. More notably, it captures within its scope antique shops, antique fairs, antique auctions, country house sales and village fetes.

The Bill as it stands would mean that dealers in antiques registered in Kent must comply with the provisions of the Bill wherever they do business. Dealers from outside the county doing business in Kent must comply with the provisions, including the registration requirements. Dealers from outside the county include dealers from abroad. A dealer is apparently anyone carrying out just one single trade in a year. There is confusion in that regard. That seems to be the case on my reading of the Bill but I cannot believe that the Bill means to say that.

Any country house sale conducted in Kent falls within the scope of Part III but those sales conducted by outside auctioneers are excluded. Again, that is another anomaly.

The powers of entry in Part IV are not dependent on a warrant and extend to premises outside Kent. As currently drafted, the Bill grants summary powers of entry to council officials and the police to enter private dwellings as well as business premises.

The noble Lord, Lord Thomson, says that there has been consultation and that is true. But, as I understand it, the outcome of that consultation is that there has been no agreement. But this Bill has important implications. No compliance cost assessment has been carried out. Therefore, we do not know what will be the cost to the trade nor to the police when they try to enforce this measure. Is there to be a cost of registration? What will be the costs to the council? Are we imposing burdens on the police? Who is to pay for this? That is not clear and perhaps the Minister will address that point.

The Bill fails an important test of principle; that is, that there should be national consistency in criminal law. Legislation which creates criminal offences arising from every-day commercial transactions should apply nationally throughout the country and not, as in this case, just to one county.

This Bill would impose regulation and burdens on small businesses. It would include a large amount of red tape, something of which the Government are not in favour. Because no regulatory impact assessment has been carried out, we have no estimate of the enforcement costs. There has been no cost benefit analysis. In many instances, it is difficult to see how the police can enforce many of the Bill's provisions when so much business is carried on around the country.

As I said, there are clear issues which have not been addressed; for example, civil liberties issues with regard to the power of entry into domestic and private premises.

The noble Lord, Lord Thomson, said that the problem of crime in Kent is serious and he quoted the figures. I totally agree with him about that. If one extrapolates those figures to other counties, one reaches the clear view that any legislation should be national legislation. The matter should not be left to individual authorities.

There are more than 200 authorities which may wish to bring forward their own Bills and they will all be slightly different. I believe that the noble Lord, Lord Thomson, said that, including North Yorkshire, there are six local authorities which have brought forward similar legislation. That legislation varies dramatically. It is not the same. In some cases it is quite simple; in others, it does not work. It is different. If this Bill addresses a serious problem, it is up to the Government to address it. One cannot have piecemeal law-making in this country. It would bring the law into disrepute. I believe that that is the most important message that we wish to convey. The case has not been made for these two Bills. They are of national importance and should be dealt with nationally. In those circumstances, I hope that your Lordships will support the amendment which I have tabled this evening. I beg to move.

My Lords, I had not originally intended to speak at this early stage in the debate but it may help to clarify matters if I explain the Government's point of view.

I welcome the opportunity to contribute briefly to the debate. In doing so, I shall not depart from the convention that governments take a neutral stance on Private Bills. There are no exceptional grounds in relation to this Bill for me to do otherwise, despite the controversy which, at this late stage, it appears to be generating.

As the noble Lord, Lord Thomson, explained, the Bill is principally intended, through tighter regulation, to help tackle some of the crime-related problems, especially as regards circulation of stolen goods, which have arisen in Kent from various forms of second-hand trading.

The House also knows that an identical Bill is to be brought before us by Medway Council, which is a unitary authority. To have two Bills is the only way to ensure that the whole county is covered. The fact that both Bills are strongly supported by Kent County Constabulary will, I am sure, be a point in their favour as far as this House is concerned.

Your Lordships will also wish to keep in mind that similar private legislation has been passed for other parts of the country as diverse as North Yorkshire, Greater Manchester and Worcester. There is no shortage of precedents.

The Government initially had concerns about some of the provisions in the first draft of the Bill. Levels of proposed penalties seemed too high and proposed powers of entry and seizure were in our view too widely drawn. I am happy to report, however, that these concerns were resolved by consultation and in discussion with the Bill's sponsors prior to its consideration in Committee. The Bill now before the House reflects what has been agreed between all concerned.

The Government have no objection in principle to the Bill. Last November we published our crime reduction strategy. At the heart of the strategy are the new steps we will be taking to ensure that every local crime and disorder reduction partnership and police force is performing to its maximum potential. There are now 375 such partnerships in England and Wales, in which police, local authorities and other agencies work together to identify and combat crime in their areas. The way the local authorities and police in Kent are working together to promote this Bill accords very closely with that approach, which I believe is in itself worthy of this House's commendation.

I should like to mention at this point that the Government are currently funding, out of the £400 million we have made available for the crime reduction programme, two projects aimed at limiting the market for stolen goods. One is in Greater Manchester, and the other, "Project Radium" is, appropriately enough for this debate, in the Medway area of Kent to which I referred earlier. The latter project much impressed my right honourable friends the Prime Minister and the Home Secretary and, I might add, myself when I visited the project last summer. So your Lordships will see how this Bill ties in with other efforts being directed towards the same ends.

I have been aware of the concerns expressed by representatives of some of the legitimate traders who would be affected by the Bill. The noble Earl, Lord Howe, has raised this with the Government specifically on behalf of art and antique dealers. The noble Viscount, Lord Astor, echoed those concerns this evening. The concerns focus on the additional regulatory burden to be placed upon small businesses, the inconsistencies that arise across the country in having legislation applying in some areas and not others, and possible enforcement difficulties.

The inconsistency point cannot be denied. That is inevitably the consequence—perhaps one might even say the beauty—of having local legislation. Where there is no national legislation to deal with a particular problem, as is the case here—and there are no government plans for such legislation—I am sure your Lordships would not wish to deny any local authority its own legislation simply because others do not have it.

The Government are firmly committed to not adding unnecessarily to the regulatory burden on small businesses, and I understand the anxieties that have been voiced on this aspect of the matter. It is clear that a careful and balanced judgment is needed in each situation as to whether additional regulation can be justified. It is for your Lordships to form that judgment on this Bill in the light of the arguments put forward by its sponsors and their opponents.

It is equally for the Bill's sponsors, if necessary, to persuade Parliament that the proposed new laws are enforceable. I feel, though, bound to say—without, I hope, compromising my neutrality on the matter—that I find it very hard to believe that a measure prepared and promoted jointly by the local authority and the police could not be effectively enforced.

As I said at the beginning, it is not for the Government to take sides. However, I remind the House that the Bill is due to proceed to its next stage in another place, where anyone opposed to it can petition against it if they so wish, and where any such petition would be fully considered. Your Lordships may feel it would be better for objections to be properly looked at and debated there, rather than take what I believe would be the most unusual step of refusing to let the Bill go beyond this Third Reading. Whatever noble Lords decide, I hope that this short contribution setting out the Government's view will help them in their careful deliberations on the Bill this evening.

My Lords, I rise to support the Bill and oppose the amendment. I spent 35 years as a police officer and I know the value of such regulation. Similar provisions were passed in relation to scrap metal dealers. The Gaming Act controls gaming clubs. Licensees are regulated in the same way. The provisions would be valuable.

The Chief Constable of Kent is totally supportive of the Bill. He is chairman of the ACPO Crime Committee, so, when it comes to crime, he knows what he is talking about. He is one of the top chief constables and has shown a marked reduction in crime. Crime is an expensive business. The last estimate from the insurers' association indicates that £31 billion-worth of goods are stolen each year.

Any measure that can prevent crime and detect offenders must be valuable. I do not believe it matters if it is confined to one area. If the people enforcing it believe it would be well worth while, this House has a duty to support it. Any crime reduction measure is valuable, not just to the police but to the community concerned. Clearly, if there are no disposal points for stolen goods, it is more difficult to sell the goods. There is also a deterrent effect if thieves are fully aware of the fact that there may be difficulty in selling the goods. The point made about being able to give false names and addresses is perfectly valid. However, if this Bill has any effect at all in deterring crime, we have a duty to support it. I believe that the Bill should continue its passage.

My Lords, first I declare an interest as a dealer in second-hand goods. I buy and sell watercolours and have done so in Kent, so I would definitely be caught by the new regulations.

I believe it is unfair of the noble Lord, Lord Mackenzie of Framwellgate, to compare antique dealers to scrap metal dealers. I take exception to that. In this business there are a great number of small traders. There are the smart people in Tunbridge Wells, Kent and the smart people in London, but the whole business is based on small people going backwards and forwards, saying, "Can I buy or sell your picture for you?" and so forth. Much of the business is conducted as a second business, not as a first business. The amount of bureaucracy which will be necessary to make this provision work is far more than is justified by the gains that will be made.

The noble Lord, Lord Mackenzie, said that the police are keen to have this measure and that they will be able to enforce it. I very much doubt whether the police will have time to do so. These days so much police time is taken up with non-criminal work that they often take hours to turn up after a burglary. If they were busily trying to enforce these new regulations, given all the myriads of small dealers there are, I do not believe they would be able to cope.

The noble Lord, Lord Thompson of Monifieth, mentioned the fact that books will be exempt. There are extremely valuable books available. If this is such a good idea, I cannot see why books should be exempt. That is extraordinary. As regards the provision applying only in Kent, Manchester, North Yorkshire and wherever else, dealers do not respect county boundaries; they move around all over the place. I find it extraordinary, if, as the Minister stated, the Government think this is such a good idea, that they do not come forward with a national scheme, properly worked out, which will then cover the whole country and perhaps make some difference to the disposal of stolen goods.

I cannot see that this scheme, relating only to Kent, can have any good, viable result. It will create a great deal of extra legislation. It will be oppressive to the smaller trader and I support the amendment of my noble friend all the way down the line.

My Lords, I too begin by declaring an interest. My home is in the county of Kent. I have an interest in doing whatever I can to contribute to the reduction in the amount of stolen property which is never recovered. As we have already heard today, only around 25 per cent of stolen property in Kent is recovered, in spite of the attention of an extremely efficient police force under a Chief Constable of whose distinction we were reminded by the noble Lord, Lord Mackenzie of Framwellgate.

I also have a specific interest in hoping that such antiques, cars or other desirables as I may possess remain in my possession and are not stolen. In the course of 23 years as the MP for a constituency already mentioned by my noble friend Lord Luke, my constituents, if they agreed with me in nothing else, passionately shared that concern.

We therefore have the spectacle of the House tonight being invited to consider in all of one hour—the dinner hour at that—a substantial measure affecting law and order in an important way which has been one-and-a-half years in preparation by a major county council and which has the full support of the chief constable and the police committee. I invite the House of course to do the best it can in the short time available to consider the merits of the amendment moved by my noble friend Lord Astor. But it is quite impossible in this short time for us to begin to do anything like justice to the merits of the arguments. We heard arguments about incompatibility with liberty; about impracticability of enforcement and so forth. We cannot resolve those within the half hour left to us.

It is worth reminding ourselves how this extraordinary situation came about. It is not that this Bill has somehow been spirited in without complying with the rules which this House requires for advertisement. I inquired of the Private Bill Office whether or not the rules had been complied with and, as one might expect, the answer was that they had.

A procedure was open for objectors to petition, whereupon all these important discussions could have taken place with, if desired, witnesses being called before a Select Committee. That was not done. My noble friend Lord Astor—I do not say this disrespectfully—says rather loftily, "I have no knowledge as to why there was no petition". I am sure he is right, but that is not enough to dispose of the point. We have here a Bill which can, if it receives a Third Reading tonight, receive after a petition in the other place the examination which it could and evidently should have received here.

One must deal with the principal point made; namely, that piecemeal legislation of this character is wrong. If so, that "wrongness" seems to have eluded Parliament over the past 10 years in a large number of instances. Similar, though not identical Bills, were promoted and passed in respect of South Yorkshire, the county of Merseyside, Greater Manchester, Humberside, the county of Lancashire, Herefordshire City Council, Worcester City Council, North Yorkshire County Council and, most recently, the city of Newcastle-upon-Tyne. I understand that that Bill passed its stages in this House and is now before the other place.

I agree with the Minister that we must not allow the best to be the enemy of the good. Because there is no prospect of national legislation coming forward—one understands the pressures—is it to be said that Kent and those who live there are to be denied the advantage of provisions which the residents of a substantial part of the country received? I cannot see why it should be said that Kent should be singled out and dismissed.

It is said that the police cannot engage in this sort of activity. It is strange that that argument eluded the Chief Constable of Kent, the police authority and an extremely properly cost-conscious county council that is certainly not in the habit of authorising, let alone instigating, expenditure which will be impractical.

I venture to suggest that it is not enough merely to say that this is a well-intentioned but wrong Bill, as my noble friend Lord Astor said. Of course it is well intentioned and those intentions are shared by those who object. They made that clear. The Bill concerns the reduction of crime and the ease with which the police can get on top of the problem of stolen property. The promoters of the Bill are doing something about it. They do not seek to have it spirited through Parliament without examination; they would welcome it being properly examined. They have already shown that they are prepared to respond to a case made against it by a number of amendments which have been made in this House, although the Bill was unopposed. But they wish the Bill to pass and the people of Kent are entitled to that.

I conclude by repeating a point already alluded to but about which I feel most strongly. I was tempted to say it would be frivolous but it would certainly be remarkable, and I believe bizarre, for a Bill of this seriousness to be dismissed at the conclusion of one hour's discussion. That would not sit easily, let alone happily, with the reputation of which this House is so jealous for the serious, mature and scrupulous consideration of legislative proposals brought before it. I hope that my noble friend, having had an eloquent say—to which he will no doubt add—will cap his performance by withdrawing this amendment.

My Lords, I found much with which to agree in what everybody said this evening and, to some extent, much with which to disagree.

I join every speaker to date in saying that the expressed objects of the Bill are praiseworthy. I join my noble and learned friend Lord Mayhew in saying that we owe a great deal of respect to the people and democratic structures of Kent and Medway, who have every right, as has every local council, to make the lives of their citizens as difficult and inconvenient as possible within the normal bounds we set on such things. It should be no part of our life in this House to interfere with that sort of arrangement, which is internal to a county council and with which the voters of that county can properly deal at their elections.

I agree entirely with the noble Lord, Lord Mackenzie of Framwellgate, that we should pay close attention to what the police say about these matters. I do not go as far as he in saying that, if the police support something, we should give it our support. Even the Liberal Democrat Party would be a little more critical than that on most issues. I do not share the disparagement by my noble friend Lord Luke of scrap metal dealers—I believe most of them these days are called "modern art" dealers.

But there are precedents for these Bills. I have read them. I have been through all the Bills which passed through this House. They are entirely acceptable local Bills. They are local in their concept, local in their effect and reasonable in their terms.

In many aspects, this Bill goes much further than any existing legislation. It is not just a national Bill; it is an international Bill in its effects. It is positing the powers of the Kent Police operating world-wide. I find the idea of a Kent policeman or trading standards officer looking over the behaviour of the registered Kent antique dealer, or dealer in second-hand goods, wherever he may be in the world, to be extraordinary.

There are a number of the Bill's aspects that concern me, many of them small but one great. I shall deal, first, with the small ones. I start with the matter of consultation. This may have been public; indeed, I believe it was subject to an advertisement in the Evening Standard, which I do not think is widely read in all parts of Kent. However, clearly it has not been discussed sufficiently with the main organisations representing dealers in second-hand goods. One or two of them have been involved and little exemptions have appeared in the Bill; for example, my noble friend Lord Astor mentioned books, which is extraordinary. Books are a valuable part of many people's possessions. I understand that they are to be exempted in order to avoid the Bill being opposed in this House. The reason why we have not had a proper procedure in this Chamber is that deals were done with those who had the funds and the will to oppose such procedures in this House. We have not been afforded the chance to look at the Bill properly because of actions taken by Kent County Council, among other things.

Secondly, there has been very little exposure of the benefits of the Bill. It may be lack of talent on my part, but I have been unable to find anyone in the police force of North Yorkshire who is willing to say anything in great support of the past 10 years' experience at their end. It is a nice little piece of bureaucracy and is enforced keenly by the trading standards officers. However, as far as I can discover, it does not do much to prevent crime.

The difficulty about the way this Bill is expressed is that it is in danger of turning you and me—that is, ordinary people who may have a little hobby collecting this or that—into criminals without our knowing about it. When we decide what should be a local law and what should be a national one, one of the most important things we must have regard to is whether people coming into the area can reasonably know what is criminal and what is not within that county. We set our traffic regulations in such a way that I know what the signs on the side of the road mean. I know what a thirty-mile-an-hour speed limit is because such limits are set nationally. But parking regulations, and in particular how you get a parking permit, and so on, are set locally because they concern local people. That is the way that the other Bills in this area have been drafted. They set out local regulations applying to people who have premises in the county or area concerned so that they properly know about them.

For example, if you have a shop in Winchester or one in Lancashire, you are governed by the local regulations and when you make a trip to Kent you do not expect, as is the case with this Bill, to find that you are governed by the Kent or Medway regulations, which may be separate. Indeed, if the precedent of this particular type of Bill is followed, we may end up with 200 different sets of criminal legislation covering the country. It would be totally impossible for the ordinary person to know where he or she stands.

I turn to my third point. It is the practice with Bills these days to say where they stand vis-à-vis the Human Rights Act. But there is nothing of that sort in this Bill, although it contains extensive powers of entry and criminal penalties that are quite interesting in the effect that they would have on the ordinary citizen. I believe that that is something which should be looked at in this Bill. Similarly, the consequences of the Data Protection Act are not covered, although the Bill requires record keeping in a quite extensive way, especially as regards purchase transactions by individuals. That will amount to a great dictionary for a thief if he happens to come across it; indeed, he might find information about interesting things around the county.

There is no recognition in the Bill of e-commerce. It is a recently-enough drafted Bill so it ought to have contemplated such consequences. The forms of record which are to be kept are not set out in the Bill—this is different from any other Act—and can be set by the council at a later date. Many of these people will keep records for VAT purposes and that sort of record will do under any other legislation. They are keeping a record for VAT and that same record will do. However, under this Bill, the Kent County Council or the Medway Council can demand that a different sort of record be kept.

There is a phrase in the Bill of what is required to be recorded; namely, a description "sufficient to identify" the articles. That is an innovation in this Bill. How do you come by a description sufficient to identify, say, a Penny Black or the exhaust of an old Austin 1100? They are asking the impossible. They are also asking the impossible at the other end of the scale when it comes to a house clearance. To comply with that particular wording, which is different from the wording in any other similar Act, you would have to record every single pin that you picked up in a House—or perhaps you would be allowed to say "a box of pins". But when you have paid £200 for the general contents of someone's house, it is ridiculous to have to spend two days on record keeping.

In other Bills the definition of "dealer" is quite clearly confined to people who would ordinarily consider themselves to be dealers. If we take the Yorkshire Act, which goes furthest, you would find yourself having to register with North Yorkshire if you go to deal at the Harrogate antiques fair. But if you just turn up in Yorkshire to buy a few things from an antique shop, you are fine. However, under this Bill, if you make one or two transactions—for example, a couple of items bought from an antique shop—or if you are a dealer somewhere else in the country, or, indeed, anywhere else in the world, you will be caught by the provisions and will have to register. The whole business occurs in several places in the legislation; indeed, there can be a variation of the terms of this Act by local order which can apply to people outside the county who will only come across this jurisdiction occasionally. It is something which is fraught with danger for the ordinary citizen. For the record, I should also point out here that there is a typographical error at line 21 on page five.

The great problem with this Bill is that it seeks to deal with a local problem in a way that has national and international effects. It would produce a chaotic and, indeed, comic effect if it were to come into practice. It would be like a combination of the Keystone Cops and "Passport to Pimlico". If an outsider coming into Kent is a dealer he must register; but how does he know that he must do so? If he is on holiday from France, how does he know who he must register with before he drops into an antique shop? He will not even know whether he must do so in Kent, in Medway or, indeed, in one of the other counties which may bring forward this sort of legislation in the future. But if he fails to register he is committing a criminal offence.

Wherever a Kent dealer goes in the world and whenever he does a deal in second-hand goods, he has to read a form of wording to anyone with whom he is doing a deal to warn them of the consequences of failing to provide the correct name and address of whoever he is selling to or buying from. One can imagine a dealer trying this on in Australia and only guess at the reply he would get from the average Australian if he were to try to warn him that, if he did not give the correct name and address, the Kent police would be after him.

If this Bill is to be a blueprint for future Acts, any dealer in second-hand goods who is at all widespread in his activities in the UK will have to register with every local authority, and there might be 200 of them if we follow this practice. He will have to display 200 notices of registration with each local authority. He will have to keep up to date with 200 sets of local rules, which are changed locally and not subject to national advertising or any form of national notification; in other words, things that can be changed just by local regulation. That would change the way he has to behave when he deals in a particular county. He will also face 200 sets of criminal penalties if he gets it wrong, and may well have to keep different forms of record for each county with which he is registered because those things can be changed locally and are not laid down in the Bill. That would mean that every transaction would have to be recorded a number of times. This is oppressive to the honest and it is very hard to see how it will be effective as regards the dishonest: it is costly, tedious and unenforceable. It just will not do as legislation.

We have to live within the procedures of this House as we find them. Like my noble and learned friend Lord Mayhew of Twysden, I find it deeply unsatisfactory that we have not had a proper opportunity to debate this Bill. But we in this Chamber are not in the business of letting through deeply unsatisfactory legislation. I know that we do it sometimes; indeed, I am sad to say that we have done it in the past at my government's request. I deeply regret the handguns and the dangerous dogs legislation, which have harmed innocent people and done very little to deal with the guilty. I do not think that it is an honour to this House to let go flawed legislation just because the procedures of the House have not allowed us to debate it properly. We have a responsibility—

My Lords, will the noble Lord give way? This matter has been referred to on a number of occasions. I was prepared to give all the time that this issue required on a Friday. However, all of those interested in this subject said that they did not wish to discuss it on a Friday and that they preferred to discuss it during a dinner break.

My Lords, I do not remember expressing any such reservation myself. 1 would have been quite happy to spend a long Friday on it but it is not obviously in my hands.

I think that at the end of the day the honour and the position of this House depend on it taking care of the legislation that it lets go, of not being seen as a rubber-stamp, but rather as a critical and honest revising Chamber. On balance, when I look at the way this Bill has been drafted, I think that we owe it to ourselves to ask Kent County Council to think again.

My Lords, my only pretext for intervening, I hope briefly, in this important debate is that I once had the privilege of representing part of east Kent in the other place and had a house in east Kent. I suppose that I bought, if I did not sell, some of the articles that are covered by this Bill.

I say in opening that I certainly applaud the objectives of the Bill. I do not seek to criticise the procedures that have been followed by the sponsors of both Bills in this case. It is difficult for us to say that Members of this House have been remiss in their duties. The petitions for the two Bills were deposited at the end of 1998. The Bills were introduced in this House and read a second time just under a year ago. No petition was deposited against the Medway Council Bill. However, a petition was deposited against the Kent County Council Bill but was withdrawn on 8th July 1999. The effect of that was of course that the Kent Bill became unopposed. A Home Office report was submitted on the two Bills and they were considered by the Unopposed Bill Committee. Amendments were made to both Bills at that stage.

Therefore in form at any rate, if not totally in substance, I believe that the proper procedures were followed. As I say, I believe that the objectives of the Bill are entirely laudable. I agree that the detail and the practicalities are questionable. Some of my noble friends, particularly my noble friend Lord Lucas, to whose speech I listened closely, drew particular attention to that. My noble friend Lord Astor set out attractively and accurately the criteria that ought to be applied to legislation of this kind. He drew attention to the matter of national consistency. I entirely sympathise with that point because if we do not have consistency in a field as important as this, those who want to operate in this field will experience difficulties and the kind of business likely to be covered by this Bill may be driven out of counties such as Kent into adjoining counties with possible unattractive economic consequences. I cannot see that they would be catastrophic but there may be unattractive economic consequences for people who wish to operate in Kent or in the Medway towns. That ought to be reflected upon.

The Minister owes it to the House to explain whether serious consideration has been given to legislation in this field that is national in scope. It is too late at night to go into all the delicacies that may arise from devolution. I cannot for the moment recollect whether this kind of matter would be covered by the Scottish or Welsh devolution Bills. However, as I am now resident in Wales I shall have to become more acquainted with that matter if this provision becomes law. At any rate I believe that there is rather a strong case for considering—I am sure that the Minister or his officials will have considered this—whether there is not a case for some national rather than council-based legislation in this field. Having had a brief spell in government I appreciate that there is always the pretext that there is not the time or the resources to consider a Bill of this kind in this particular Parliament. However, I hope that I may press the Minister to comment on that before this debate is concluded.

Various noble Lords have mentioned the regulatory burden. There is no estimate of the likely costs not only for the councils or the police forces who are involved in this matter but also of the likely transaction costs. Again, we owe it to ourselves and to the country to show that we have considered that aspect of the case. There is also the matter of the general regulatory burden. However, as other of my noble friends have touched on that matter, I do not think that I need comment further on it.

As regards the question of enforceability, I am in no position to say whether these measures are practically enforceable to any reasonable degree. I believe that the noble Lord, Lord Thomson of Monifieth—for whose views I have the warmest regard—said that the measure had been introduced in eight other council areas and they had found it useful. I hope that he will allow me to suggest that it is not so much a question of the utility to the council authorities, or even to the police authorities in those areas; we also have to consider the utility to those involved in the manner of business that we are discussing. There cannot be any presumption that they are somehow on the edges of the law and we can disregard the inconvenience of the practicalities as they affect them. I should like to hear a little more about this matter. During the procedures which have led this Bill to appear before this Chamber tonight, was that aspect of the matter considered at all carefully?

There is also the question of civil liberties. As this matter has been discussed at length and with authority, I shall not discuss it further, but we must take that matter into account. The House will be relieved to hear that I say in conclusion that I approve of the objectives of the Bill and I have no particular criticism—indeed, in some senses I approve—of the course taken by the sponsors of this Bill. There is no question of it being forced through in an underhand way, but evidently the points were not taken up in the appropriate quarters at the appropriate time. I therefore cannot go along with my noble friend Lord Astor. I do not think that after a rather limited debate it would be right for us to kill off these Bills at this stage. Were the matter to be taken to a Division, I would vote that the Bills should be passed tonight, but on the clear understanding on the part of the sponsors of the Bills that ample time will be found—I know that that does not rest entirely with them—for a proper debate and investigation of these two Bills in another place. Subject to that reservation I am prepared to let the Bills go through tonight.

My Lords, in what I hope will be a brief speech on one or two procedural matters, I must first of all apologise to your Lordships for being perhaps somewhat overdressed for an occasion of this kind. While no trouble is too great to take for the benefit of your Lordships, the reason I am dressed in this manner is that I am due to attend the dinner which is being given by Cross-Bench Peers to mark the retirement of the former Convenor, the noble Lord, Lord Weatherill.

I am sure that your Lordships have listened with considerable interest to the speeches which have been made both for and against the Third Reading of the two Bills. I am also sure that your Lordships will understand that it is not my responsibility to take part in any discussions on the merits of a Private Bill. However, as Motions have been tabled which, if carried, would have the practical effect of rejecting the Bills on Third Reading, your Lordships may find it helpful if I say something briefly to remind you, or perhaps to confirm in certain cases, some of the procedural implications of the amendments of the noble Viscount, Lord Astor.

As your Lordships have heard, neither the Kent County Council Bill nor the Medway Council Bill was referred to a Select Committee. This was because the only petition presented against the Kent County Council Bill was withdrawn, as has been indicated already, and the Medway Council Bill was never opposed in your Lordships' House at all. Neither Bill therefore received the detailed scrutiny of its merits which takes place in Select Committee if a Private Bill is opposed. I can assure your Lordships that both Bills received the detailed technical scrutiny that your Lordships would expect. Both Bills were amended, as has also been indicated, mainly on technical points, by the Unopposed Bill Committees.

Perhaps I should refer to one specific point which was mentioned by the noble Lord, Lord Lucas, during the debate. I confirm that private legislation is not covered by the requirement that there should be a statement by the Minister that the Bill is compatible with the Human Rights Act. That is true for both Houses.

I should mention that it is unusual for Private Bills to be opposed at Third Reading. The last time a Private Bill was rejected at Third Reading in your Lordships' House was the Swanage Yacht Haven Bill in 1987. That Bill differed from the two present Bills in that it had been considered by a Select Committee, which had produced a special report on the Bill. If the House agrees to the Third Reading of the two Bills today—this has been mentioned by at least one noble Lord—they will of course pass to another place, where there will be a further opportunity for opponents of the Bills, or either of them, to petition against them and for the Bills to be considered by a Select Committee there.

Your Lordships may consider that such a course would be more appropriate than the outright rejection of the Bills by this House, where they have not been considered by a Select Committee. Without mentioning the merits of the Bills, I would suggest that, on the procedural point I am making, that may be the appropriate course for your Lordships' House to adopt.

My Lords, before the noble Lord the Chairman of Committees sits down, can he say whether the Bill—should we pass it here tonight—can be amended in another place, as opposed to being totally rejected following petitions against it? That would seem to be the deciding factor in how we shall vote if the amendment goes to a Division.

My Lords, I can confirm that it would be possible for amendments to be made. The procedures in another place are similar to procedures here. If a Select Committee were to be appointed on either of the Bills, there would be opportunities to consider amendments there. Similarly, if the re were to be an Unopposed Bill Committee in an other place, just as happened in this House, it would be possible for amendments to be brought forward there.

My Lords, I shall take one moment to reply to the amendment moved by the noble Viscount in the light of what has been said during this interesting debate. We are all grateful for the advice we received from the Minister, who spoke from his balanced position of neutrality. He conveyed some important information about the background to the Bill. Finally, we had some very clear advice from the noble Lord the Chairman of Committees.

I thought that the noble Viscount made two main points—both of them valid in their ways. One of his objections to the Bill was that there should be no "piecemeal law-making". With respect, it would put a stop to almost all local authority legislation if that concept were to be followed.

The debate has shown a number of detailed points of real concern. The noble Lord, Lord Lucas, recited a great many of them. They cannot be dealt with in a debate of this kind, but they can be dealt with by accepting the advice of the noble Lord the Chairman of Committees.I very much hope that the noble Viscount will feel able to follow that advice.

My Lords, we have had an interesting short debate. Perhaps I may deal with a few of the points that have been made.

The noble Lord, Lord Mackenzie, said that the police had no problem dealing with scrap metal dealers. I am sure that he is aware that they are covered by the 1964 Act—which is a national Act, as is the Gaming Act.

It pains me greatly to disagree with my noble and learned friend Lord Mayhew. He has stated his distinguished views and he is concerned about the implications in Kent. So am I concerned about the implications in Kent. My noble and learned friend Lord Mayhew pointed out that a number of other local authorities had introduced some kind of legislation. That is entirely true and entirely valid. But the difference is that that kind of legislation affects only the county to which it relates; it does not extend across the border. This legislation extends across the border and affects the whole country.

If the Minister had been prepared to stand up and say, "This is the blueprint that we should like local authorities to follow; this is the Government's view", that would be different. As it was a private Bill, the noble Lord said that he was neutral and sat on the fence. He got off it for a brief period and then jumped back on again. But he did not help the House. That is the difference.

My noble friend Lord Rees pointed out that there should be national consistency. I agree with him. I am not trying to deprive the citizens of Kent of any protection, but it is important that this House should consider legislation when it goes beyond affecting only a small area.

The noble Lord, Lord Boston of Faversham, quite rightly said that the Bill has been subjected to technical scrutiny. That is entirely right. I am not looking at it from a point of technical scrutiny but from a point of principle. The point of principle is important for this House. I believe that this House has a role in legislation; I believe that we should not send Bills to another place unless we are entirely confident in those Bills. I know there is an opportunity to petition, but I do not know what will happen in another place.

There is a duty on this House, as a revising Chamber, not to send to another place anything that we believe is flawed. I believe this Bill is flawed because it affects the nation and, therefore, goes beyond the normal private Bill. I support the aims but I cannot support the Bill. Therefore, I feel that I must move my amendment.