asked Her Majesty's Government:

My Lords, it is government policy that there should be no unfair discrimination in the Civil Service on the basis of age. Best practice to remove any discrimination on the grounds of age in recruitment, training and promotion is contained in my department's guidance to departments and agencies on age diversity.

Departments and agencies are free to set the normal retirement age for their own staff outside the senior Civil Service. This can be above 60. In the light of the Winning the Generation Game report by the Performance and Innovation Unit, the Cabinet Office is currently considering with departments and agencies changes in their policy on normal retirement age, as recommended in the report, and will consider the implications of extending any changes to the senior ranks of the Civil Service.

My Lords, I thank my noble and learned friend for that Answer, particularly for the first signs of change in the Civil Service. Surely, it is by definition a form of unfair discrimination to force people into retirement at the age of 60 and the Civil Service above all should not engage in it. I can see no reason why any government department should be permitted to impose a form of institutionalised ageism of the worst kind.

Will my noble friend accept that, if it applied to people in this House, whether for their work here or elsewhere, many of us, including my noble friend Lord Winston, would be driven out of work at just the age when we are becoming mature and ready to serve society at our best?

My Lords, I do not know when my noble friend Lord Winston will be driven out of work but I agree that in many cases the age of 60 is the wrong age to require people to retire. The effect of the report of the Performance and Innovation Unit, Winning the Generation Game, was that all government departments are required to see whether they can extend the retirement age. They are in the process of doing so and by 30th September 2001 they must come back to the Cabinet Office with a case for not extending it to the age of 65.

My Lords, is my noble and learned friend aware that I can still get to my feet? A serious issue exists because population profiles of the United Kingdom show that within the next decade, and certainly this century, approximately 1 per cent of the population will be over 100 years old. Many people in the older age group will be increasingly fit. Moreover, if the existing retirement age limit continues, less than 40 per cent of the population will be earning. Is not there a clear need to re-evaluate the use of older people in our society as working members of that society?

My Lords, I am pleased to see that my noble friend is still able to get to his feet! I agree entirely with what he said. Far too many people lose the opportunity both to fulfil themselves and to give to society by being forced out of work at much too young an age. We need to look fundamentally at the way in which people can be more engaged in work and make other contributions in the years after 60.

My Lords, will my noble and learned friend agree that there is at least the consolation that many senior civil servants who retire at 60 undertake useful work after retirement, including many in this House? Will he also agree that there exists within the senior Civil Service a dilemma that unless the older ones go the younger ones will not stay because they are not paid much and the prospect of promotion is the one thing which keeps many of them on?

My Lords, I agree that many senior civil servants who retire at the age of 60 have many opportunities to work in other walks of life in both the public service and the private sector. I also agree that the retirement age must be examined in terms of encouraging younger people to begin careers in the Civil Service. However, an appropriate balance must be struck.

My Lords, will my noble and learned friend add to the answer he gave to a previous question? Will he agree that the issue relates not only to career prospects but also to finding employment for youngsters who enter the job market after leaving school? If there is no retirement age somewhere along the line, will there not be higher unemployment in the younger age group?

My Lords, that is the point which was made in a different form by my noble friend Lord Lipsey. A balance must be struck between, on the one hand, ensuring that people have an opportunity to fulfil themselves after age 60 but, on the other, ensuring that there are gaps enabling younger people to take jobs and to be promoted when they have them.

My Lords, will the Minister accept that as regards the Armed Forces a retirement age of 60 and above may well be wrong and that we do not want to end up with a "Dad's Army"?

My Lords, I stray with diffidence into the case of the Armed Forces. I can see the problem with a "Dad's Army" but, as the noble and gallant Lord proves, many able and gallant soldiers have much to contribute after 60.

My Lords, some 30 years ago when I was—I believe—in day-to-day charge of the Civil Service I was very worried by the fact that those who reached the age of 60—for example, ambassadors who had just got to terms with the countries to which they had been appointed—had to leave the service. Is the noble and learned Lord aware that I am very glad to hear that consideration is to be given to the introduction of flexibility into the present arrangements?

My Lords, I am grateful for the noble Earl's support for the proposal. The fact that the noble Earl was head of the Civil Service 30 years ago indicates how many useful years he had beyond that post.

My Lords, as to flexibility, will reconsideration of this matter include the possibility of part-time employment? Does the Minister agree that a considerable number of people with careers in the Civil Service, engineering and elsewhere have much to contribute but may not want to do it as a full-time occupation? Does the noble and learned Lord agree that if it was part-time work it would not stand in the way of younger people who thrust forward?

My Lords, it is right that that very important point should also be considered. Obviously, a balance must be struck between the opportunities for part-time work and the creation of opportunities for people as they pursue their careers.

My Lords, does the Minister agree that another balance to be struck is between the worthy aim of individuals to have different careers, with the avoidance of logjams in the promotion of young people, and the question of pensions and the funding thereof? Does the noble and learned Lord agree that we must be extremely careful about what rabbits we allow to run here because the implications for pensions, particularly in the Civil Service, are horrendous?

My Lords, the retirement age is the age for which pension funds make appropriate funding. However, pension entitlement and the extent to which a person should be allowed to continue to work may be two different matters.

My Lords, does my noble and learned friend agree that a retirement age well before 60 should be encouraged for those involved in criminal acts?

My Lords, I believe that that very much depends on the criminal act.

asked Her Majesty's Government:

My Lords, the target to halve the proportion of people who live in extreme poverty by 2015 is one of seven that were agreed by the international community at the series of United Nations' global conferences held in the past decade and now form the centrepiece of the international development effort. Progress is measured from 1990 when 29 per cent of people in developing countries lived in extreme poverty.

My Lords, I thank the Minister for that reply. Does the noble Baroness agree that the international development targets which were set five years ago in Beijing and Copenhagen are now beginning to look unrealistic, given that the poverty reduction strategies in those countries are at a very early stage? Does the noble Baroness agree that it would be safer to set up intermediate development targets every five years to enable those countries effectively to monitor and evaluate their progress?

My Lords, I do not agree with the noble Earl that the targets are unrealistic. Although the targets are difficult, they are achievable if there is strong political will and commitment behind them. The international development targets are important because they are a commitment by all the members of the UN. The noble Earl asked specifically about the setting of intermediate targets. Individual countries, through their poverty reduction strategies, set intermediate targets. If countries write poverty reduction strategies, the inclusion of long-term, medium-term and intermediate-term targets which they intend to reach at specific points is compulsory. Both of those matters are important. Individual countries have the opportunity to set intermediate targets, but international development targets are an international effort.

My Lords, does the Minister agree that some of the countries in sub-Saharan Africa are going backwards at the moment? Considering that the targets for Africa are not being met, will there be a reassessment of viable targets in Geneva in June? In asking that question, I recognise the good work that DfID has done over the past five years.

My Lords, we are experiencing difficulty in meeting the targets in sub-Saharan Africa for a number of reasons, including the scale and spread of HIV/AIDS and the degree of conflict in many of those countries. But it is important to recognise that there are differences between countries in sub-Saharan Africa. For example, Nigeria and South Africa have a very good record in economic growth. Therefore, we should not be pessimistic about the region as a whole. As for a reassessment of our ability to meet the targets in sub-Saharan Africa, I repeat my response to the noble Earl, Lord Sandwich. As a global community it is important to have a commitment to a set of international targets. How we apply those targets in individual countries will depend partly on the degree of commitment by those countries to putting in place pro-poor development policies. We do not want to roll back from the commitment to those targets, but clearly when countries put in place their poverty reduction strategies we shall look at what they can realistically achieve.

My Lords, we all agree that one of the main routes towards the successful eradication of world poverty is through the education of adolescents, especially young girls. Can the Minister tell the House what additional plans Her Majesty's Government have prepared to target female education and healthcare? Does DfID have any links with important charities in this field, such as the International Women's Health Coalition and AMR EF?

My Lords, I am in total agreement with the noble Baroness that it is important to invest in education. It has been shown that such investment is one of the most important determinants in meeting all the other targets, including health and poverty targets, because of what happens to families where, for example, mothers and daughters have been educated. In the past three years we have committed £400 million to support primary education programmes, all with a strong focus on gender equality. The noble Baroness will be aware that of the nearly 900 million people across the world who are illiterate 600 million are women. So the education targets are very important indeed.

The noble Baroness asked about health. Infant and under-five mortality rates fell by more than half between 1960 and 1990. But progress has slowed during the 1990s. In most regions, particularly sub-Saharan Africa, which we have already mentioned, a big effort will be needed to meet the targets.

The noble Baroness asked also about AMREF and one other organisation. We are in touch with AMREF. I had a meeting with AMREF relatively recently. We are in touch with a number of NGOs which are working in this area.

My Lords, in pursuit of the objective of poverty reduction, will the Minister ensure that European Commissioner Lamy's proposals in the "Everything but Arms" initiative do not prejudice either Article 12 of the Cotonou agreement, which provides for prior consultation with the African, Caribbean and Pacific countries if their interests are detrimentally affected, or the legal status of the sugar protocol or the sugar regime proposals which, inter alia, provide for the renegotiation of the special preferential sugar agreement? Either of those will have a serious effect on Caribbean producers. It would be wrong to pursue poverty reduction in some parts of the world at the expense of creating poverty in others.

My Lords, my noble friend will be aware that we worked extremely hard in the successor to the Lomé Convention to protect the interests of Caribbean producers. We shall continue so to do. In principle, we support "Everything but Arms" and we are willing to work with the European Commission to help Caribbean industries adjust. We want to look at the impact of "Everything but Arms" on Caribbean countries. However, I reiterate to my noble friend that we want to protect the interests of Caribbean producers.

My Lords, perhaps I may ask the noble Baroness a question which has puzzled me for some time. For so long as we define poverty as a percentage of GNP, how can we hope to arrive at its abolition?

My Lords, it is important that we recognise that poverty reduction is not just about aid to developing countries; it is about development and in particular looking at the capacity of developing countries to improve economically. Therefore, part of our strategy relies on seeking to work with business and with other partners to achieve economic prosperity and growth in developing countries.

asked Her Majesty's Government:

My Lords, the number of qualified speech and language therapists increased by 310 between September 1997 and September 1999. The NHS plan will see a further 6,500 therapists and other health professionals by 2004. The department's recruitment and retention strategy embraces this important and valued group of staff.

My Lords, I thank my noble friend for that reply. Is he aware that there is still a serious shortage of therapists? As a result, waiting lists are long and vulnerable children are not getting the assessments and treatment that they need. Is he satisfied that the problems which were identified in the study carried out by the Royal College of Speech and Language Therapists last year of poor morale, low pay and poor recognition have been addressed and that, therefore, speech and language therapists can expect the increase in recruitment to which my noble friend referred and can continue to perform their absolutely invaluable role in helping children overcome their communication difficulties?

My Lords, I certainly share my noble friend's view of the importance of speech therapists. I also acknowledge, as I did in my main Answer, that we need to see further increases in the number of speech and language therapists employed within the National Health Service. We have made good progress in the past two years; and we shall be looking at the number of training places that are available as one way in which to increase the numbers of therapists in the long term.

My noble friend referred to morale. In common with other groups of non-pay review body staff, speech and language therapists have benefited from an above inflation pay increase this year. Additionally, a new pay and grading structure was introduced on 1st April 2000. This importantly extended the existing pay spine for speech therapists in line with that of clinical psychologists. That will increase the pay availability for senior speech and language therapists by around £20,000.

My Lords, I welcome what the Minister said on cases of equal value and the settlement of those cases earlier in the year. One of the reasons for problems with the morale of speech and language therapists referred to in the survey mentioned by the noble Lord, Lord Faulkner, is the constant change in reorganisation of the National Health Service. How will the Government's new proposals on regulation of the professions allied to medicine improve that? Surely, they will only compound that problem.

My Lords, I do not agree with that but over the past 20 years the various managerial changes have adversely impacted on many of the professions allied and supplementary to medicine. Part of our strategy in relation to those professions is to ensure that at local level their views, concerns and management are given sufficient attention by the boards of NHS trusts.

But so far as concerns regulation, what is proposed in the consultation paper that we are considering will enhance the whole regulatory process for this and other similar professions. It will speed up disciplinary processes and enhance public confidence. Through that I believe new confidence will be established among the professions.

My Lords, since speech therapists were accepted as a profession supplementary to medicine, does the noble Lord agree that there has been an increasing demand for them and never enough of them, particularly because they can perform important functions, for example, when someone has a sudden paralysing stroke and all means of communication come to an end?

My Lords, I do not disagree at all with what the noble Lord has said. There is no doubt that communication is vital to everyone's lives in this country. Speech and language therapists work with people of all ages, not just children. They have a valuable role to play. I am sure that in the future we will need even more speech therapists than we have at the moment. That is why, alongside a review of the training places, we shall be working with the appropriate professional body to examine our future requirements to make sure that the NHS is in a position to take advantage of the profession.

My Lords, is the Minister aware of the extreme difficulty faced by adults, as opposed to children, with a learning disability in accessing the services of people concerned with speech therapy? If the Minister is so aware, can he suggest solution to the problem?

My Lords, I am well aware of the issues that are being faced and of the waiting that some members of the public undergo in order to access speech and language therapists. We are making progress. We have seen an increase in the numbers of therapists employed in the past two years. We shall be increasing the number of training places. Most importantly, we have commissioned a labour market analysis of speech and language therapists. The result of that project, which is expected next spring, will be used to inform recommendations on future training places. Clearly, that takes time. I want to ensure that in the meantime we do everything we can to recruit more people back into the profession.

My Lords, I declare an interest as someone who suffered a stroke and has had invaluable help from a speech therapist. While the Government certainly deserve a great deal of praise for what they have done, does my noble friend agree that there is a housing problem for NHS staff in London and the South East? What steps are the Government taking to deal with that problem?

My Lords, my noble friend is absolutely right. The long-term vacancies for speech therapists in London are 5.9 per cent compared with the English average of 3.4 per cent. We are exercised in relation to the facilitation of affordable accommodation for NHS staff in London. We have appointed Mr John Yates to help us develop schemes to arrange affordable accommodation for such staff. Those will include speech therapists.

asked Her Majesty's Government:

My Lords, we are determined to ensure that the NHS Plan represents a step-change for the health service that is both affordable and deliverable. I am confident that the plan can and will be delivered within the set timescales.

My Lords, it has been suggested that what the British Medical Association has been saying is simply a spin designed to affect the pay review for doctors which is presently under way. Can 1he Minister confirm that, far from that being the case, the BMA gave detailed views as to its anxieties on the day the plan was announced—at the end of July—and that since then other bodies have confirmed very much the same view? I refer to the Royal College of General Practitioners, the National Health Service Alliance and the National Association of Primary Care. All those bodies have detailed anxieties. Will the Government pay attention to the views of general practitioners?

My Lords, I suppose it depends on which Dr Bogle we are listening to. Is it the Dr Bogle to whom the noble Baroness refers, or is it the Dr Bogle who said on 7th September 2000:

"Overall, the NHS plan is an exceedingly good document. It shows a desire from Government, patients and those working in the health service to achieve the best health service in the world"?

That was a fairly strong commendation of the NHS plan. Of course we will listen to what organisations such as the BMA have to say to us, but we are confident that the figures in the NHS Plan are robust. We see primary care as an integral part of the development of the plan. I am confident that the targets we have set of 2,000 extra GPs by 2004 will be met.

My Lords, is not one of the ways of relieving pressure on GPs to allow much more nurse prescribing in primary care? The Government issued a paper in August but consultation is still going on. At a time when the Government are facing demands for more GPs, why are the Government dragging their heels in the area of nurse prescribing?

My Lords, the Government are certainly not dragging their heels. Nurse prescribing has proved to be very important indeed. We are keen to develop it as soon as we can. I can assure the noble Lord that we will be bringing our conclusions to the House as soon as we possibly can.

My Lords, I heard what the Minister said about 2,000 extra GPs by 2004. Does he agree that that still puts us in the third division of world health systems? If he so wishes, I can refer to Greece, Germany and France. How does the noble Lord equate the figure of an extra 2,000 GPs with the plan's idea of a patient being able to see his GP within 48 hours, which I understand the BMA. says is totally unrealistic?

My Lords, I do not agree with the noble Baroness. She may be referring to the number of doctors employed in each healthcare system. If she is, I would certainly acknowledge that this country has traditionally employed fewer doctors than many other healthcare systems. That is one of the reasons why we are committed to increasing the number of GPs and hospital consultants. But I would also say that in this country we have a very good record of using other staff, such as nurses, to do work that might be done in other healthcare systems by doctors. The noble Lord, Lord Clement-Jones, has already referred to the potential of nurse prescribing.

The noble Baroness referred to the 48-hour limit. Perhaps I may quote from Dr Adrian Attard, whose practice is participating in a primary care collaborative. The practice has cut its waiting times from five to six days to the Government's target time of 48 hours. Dr Attard said:

"We are not doing any extra surgeries and we are not working harder than before, we are just working in a different way".

Many of the ways in which we can achieve the 48-hour limit will be by GPs working more effectively.

My Lords, can my noble friend confirm that a number of senior members of the British Medical Association, having read the national plan, signed an endorsement of it before it was published, as did many major leaders in the healthcare professions? Does he not agree that the great majority of the medical professions welcome the national plan and intend to work with it?

My Lords, there is no doubt about that. The 150 or so people who were involved in writing the NHS plan included many doctors. Many distinguished doctors signed up to the core values at the beginning of the NHS Plan. I can do no better than to quote from The Times, which is always to be believed in these matters. It quoted Sir George Alberti, President of the Royal College of Physicians, who urged Dr Bogle on 21st November to "stop belly-aching" and start innovating.

My Lords, after the Third Reading of the Freedom of Information Bill, my noble friend Lady Symons of Vernham Dean will, with the leave of the House, repeat a Statement being made in another place on European defence co-operation.

moved Amendment No. 1:

Page 2, leave out line 31.

My Lords, I have a great deal of sympathy with the amendments tabled by my noble friend, who certainly knows a thing or two more than I do about e-mail, the Internet and so forth. He is quite right to pursue this issue. Furthermore, he is right to point out that we have not seen a great deal of joined-up thinking across government on this. For example, when we debated yesterday the Political Parties, Elections and Referendums Bill, we exposed the fact that electoral registers will not be available in a unified form on e-mail for the commencement of the Bill next year, even though they form an important part of how the provisions of the Bill are to operate. That provides another example of the point that my noble friend seeks to make here.

If the Government are serious about moving into the e-commerce age—we were told constantly that they were serious when we dealt with the Electronic Communications Bill covering e-commerce—they must ensure that they themselves have entered the electronic age.

My Lords, perhaps I may deal first with Amendment No. 7, which refers specifically to communication by "electronic means". The noble Lord quite fairly indicated that he covered this matter at earlier stages of our deliberations on the Bill. We responded to his points and I fear that my answer today may be quite similar to previous responses that he has received.

Amendment No. 7 deals with the code of practice. The code will provide guidance to public authorities to meet their obligations under Part I of the Bill. Clause 11 already puts clear duties on authorities to comply, as far as is reasonably practicable, with the applicant's expressed preference for communication. This will include the provision of information by electronic means. Thus there is no need to include any specific reference to the provision of information by electronic means so far as concerns the method of response to requests for information.

It is worth remembering that a wide range of public authorities will be required to comply with the provisions of the Bill. The figure of 50,000 such public authorities was given on a previous occasion. Some of those bodies will be very small indeed, while some may be comparatively poorly resourced as regards information technology. It would be inappropriate to make electronic or any other means of communication a recommended method for communicating information under the terms of the Bill. The Freedom of Information Bill is extremely important, but for many of those 50,000 public authorities, the delivery of their mainstream activities will be even more important.

Each authority must do what is reasonably practicable, taking into account its individual circumstances. It may be that the noble Lord has in mind the importance of encouraging the electronic information age. Indeed, he has made that specific point clear. That is, of course, a matter which is close to the Government's heart, as the noble Lord, Lord Mackay of Ardbrecknish, pointed out. Furthermore, I believe that we hold a commendable record in the area. As the noble Lord is no doubt aware, Clause 19 relates to publication schemes that will provide the vehicles by which proactive disclosure is required. Publication schemes must specify the manner in which information to be made available proactively by the authority is to be published. The information commissioner must approve such schemes. Therefore the means by which authorities make information available in accordance with the publication schemes is a matter over which the commissioner will have direct control.

If the information commissioner thinks that an authority is not making appropriate use of electronic communication in a given set of circumstances, she can require the authority to include the necessary provisions in its scheme. That would seem to be the most appropriate way to ensure that the intention behind Amendment No. 7 is met. I hope that the noble Lord will find this response to be of assistance as regards Amendment No. 7. Although the means may be different from that which he has proposed, the intentions are similar.

Amendment No. 1 seeks, in effect, to remove Clause 21 from the absolute exemptions. This clause refers to information that is already available through other means. The Bill concerns freedom of information. If that information is already available by other means, and the question of whether such information has been made readily available is a point on which the information commissioner can rule, then there is no need to address it under the terms of Clause 2. For that reason, I believe that it would be inappropriate to set down anything other than an absolute exemption for Clause 21.

I hope that my remarks have been useful to the noble Lord and that now he will feel able to withdraw Amendment No. 1 and not move Amendment No. 7.

My Lords, I believe that that is the best response that I am going to get here. I draw a little comfort from the point made by the noble and learned Lord as regards the powers of the information commissioner. However, I do not draw much comfort at all from his proposition that, in 2005, a number of public authorities will still be poorly resourced as regards information technology. His noble friend mentioned that some doctors would still not be using computers by that year. I do not know of a school which does not already have 2,000 computers in place. Similarly, I do not know of a doctor who is not well advanced in the use of information technology, employing it increasingly for medical diagnosis, checking on the side-effects of pills and so forth. I believe that the noble and learned Lord may be a little out of date on the capabilities of public authorities—or at least I hope that he is.

If the noble and learned Lord is truly suggesting that in 2005 we shall still have public authorities that are not well provided for in information technology, would he let me know which authorities are so affected? Perhaps I might then have a go at doing something about the situation. Otherwise, I shall assume that the noble and learned Lord is simply less well informed than is usually the case.

I shall withdraw the amendments. I hope that, in this instance, the Government will live up to their fine words. With that hope, I beg leave to withdraw the amendment..

Amendment, by leave, withdrawn.

moved Amendment No. 2:

Page 9, line 10, after ("is") insert ("expressed to be").

moved Amendment No.3:

Page 21, line 4, at end insert—

("() Information consisting of—

(a) scientific, medical or technical data,

(b) the analysis of such data, or

(c) the opinion of a scientific, medical or technical expert as to the interpretation or significance of such data or analysis,

is not exempt by virtue of subsection (1)(a) or section 36(2)(b) or (c).").

My Lords, Amendment No. 4 in this group stands in my name. The amendment seeks to write into the Freedom of Information Bill words which are contained in the code but which the Government have omitted from the Bill. There is a lot to be said for doing our best to make sure that the Bill is at least as good as the code. This is one respect out of several, I am sad to say, where the Bill falls short of what is contained in the current code.

The noble and learned Lord, Lord Falconer, has been kind enough to write to me twice on this subject. In his latest letter he has clearly set out how he sees the difference between fact and analysis. I hope that the noble and learned Lord will not object if I quote from the letter.

No.

My Lords, the letter states:

At one extreme, analysis may be no more than separating a fact into its component parts, tabling and perhaps statistically comparing them. Where such an exercise does not, for example, require any assessment of the relative weight or merit of the information, it would in my view be difficult for a public authority to make the case that such analysis should be withheld…

"At the other extreme, the analysis of facts will require a public authority to determine or attribute a weight to the whole, or one or more component parts, to compare and contrast the merit of one part relative to another or to speculate on assumptions which may underlie or be evidenced by any statistical comparison. In such a case, it seems to me that the 'analysis' becomes much less dispassionate and is closer to opinion than fact".

I read that to say that if the noble and learned Lord were presented with a scientific paper, he would fillet it. He would leave in the tables, but anything which constituted the application of a lifetime's accumulated expertise to those facts would be eliminated. It would be opinion and therefore would not be freely available to the public. That is a terrible state of affairs. It would certainly have caused a great deal of difficulty if this had been the practice when we were faced with BSE and we were hoping that this new Bill would allow us to avoid its main consequences.

It is quite clear that the wording of the code encompasses the idea that the analysis of factual information by someone who is equipped to do so, rather than by someone providing mere speculation, is an integral part of that information being made understandable to the general public. If we have only a table of the results of some medical experiment and we are asked, as members of the public, to draw conclusions from it, we are set at a great disadvantage. We are deprived of the expertise of researchers, perhaps of the Chief Medical Officer or of someone who understands what is going on. That is not the way in which information should be treated and viewed.

I hope that the noble and learned Lord will reconsider this issue. At an earlier stage he described statistical information by sending me extracts from papers containing statistics. The extracts did indeed contain statistics, but they also contained a good deal of building on those statistics and drawing conclusions from them. Those statistics related to crime in a particular area of Britain and were being put forward to support a case for CCTV cameras in the area. Statistics are fine, but unless the arguments about what has been achieved elsewhere with CCTV cameras, the relevant statistics in other parts of the country and the comparisons and conclusions to be drawn from that are set out, you are left with a meaningless collection of data. People are then at a great disadvantage in understanding what the Government are at and in trying to reach the right conclusions, which is one of the underlying purposes of the legislation—at least, I believe it to be one of the underlying purposes of this legislation.

I hope that even at this late stage the noble and learned Lord will reconsider and accept either the amendment of the noble Baroness, Lady Whitaker, which is admirably succinct, clear and limited in its objectives, or my more general call for this matter to be put back onto the basis which exists in the code at the moment. That basis will not exist unless we make some amendment to this particular aspect of the Bill.

My Lords, my noble friend Lady Whitaker and the noble Lord, Lord Lucas, have focused our minds on the dangers of exempting from the right to disclosure a wide category of information without differentiating between the various kinds of information and the various situations in which the question may arise. Information relating to,

"the formulation or development of government policy"—

the words of the Bill—may concern a problem which falls to be addressed, what was said about it by someone, who provided the information, what statistics exist or how they may be analysed. The prejudice, if any, occasioned from disclosure of those various kinds of information in those various kinds of circumstances will be very different.

The prejudice arising from disclosing to a totally unsuspecting public the first intimation that there may have been an outbreak of infected beef will be quite different from disclosing whether the number of cases is increasing or decreasing. If it is argued that it does not matter because everything is to be subjected to the balance of the public interest test in Clause 2, I hope that my noble and learned friend and the noble Lord, Lord Goodhart—both of whom have deployed that argument in previous debates—will forgive me if I say that that may require rather careful scrutiny.

Leaving aside the ministerial override in Clause 52—which we will debate later, but which, in any event, dulls the edge of that argument—I believe that it runs together a number of issues which should be considered separately. First, if there is no realistic danger that the disclosure of a particular category or sub-category of information would cause harm, then it ought not be in an exemption at all. The question of harm tests would not then arise and there would be no need for a balancing assessment under Clause 2. If there is a potential danger that its disclosure might cause harm, it should be subjected to a harm test. I do not believe that that is identical to the balancing of public interest in Clause 2.

The argument of the noble Lord, Lord Goodhart, in particular, appears to be—I hope I paraphrase him correctly—that it does not matter whether there is a prejudice test in a specific clause defining an exempted category because, even if the information in question falls within the exemption, the balancing of public interest is identical with the prejudice test. I wonder whether his rather cheerful optimism is justified.

Let us suppose that, in applying the public interest test, the Government were to argue, "We agree that there is no specific harm which would be occasioned by disclosing this particular information, but we believe that there is a public interest in maintaining the integrity of this whole category of information. It would do no harm to disclose the results of the tests conducted on this beef herd by this veterinary surgeon, but it might inhibit vets from passing on to the Government the results of their tests on other occasions".

The public interest test may well exclude from the right to disclosure information the disclosure of which would cause no specific harm because, it may be said, there is a public interest in maintaining the principle. That is not an academic supposition; it is an argument that has been used by Ministers in the course of our debates on the Bill.

My Lords, I am grateful to the noble and learned Lord for giving way. He is right. The public interest test could result in a decision against disclosure on the grounds, not of the consequences immediately following the disclosure of the particular facts of that case, but from the wider harm that might be done, for instance, by making it harder to obtain information in subsequent cases.

The flaw in the noble and learned Lord's argument is that that point could equally be raised where there is a prejudice test. The prejudice does not have to be absolutely specific to the information the disclosure of which is sought; it could apply also to a wider harm that would be caused consequentially on disclosure of the particular facts of that case.

My Lords, it might be. If I were drafting the Bill afresh—which, ipso facto, I shall not be allowed to do—I should want to make the distinction between those two tests very much clearer. But the psychology—the way in which someone's mind would work in addressing those two tests—might be very different. I shall argue that it might be too easy to introduce the test about maintaining the integrity of the whole category.

Perhaps I may give two instances where that has been cited by Ministers in the course of debates. Addressing this question in Committee in another place, my honourable friend David Lock, said:

"It is generally acknowledged that the Government must have time and space to evaluate policy options. That view is shared by all Committee members. The premature disclosure of information in those areas can only hamper, and in some—perhaps even most—instances, prejudice the effective conduct of public affairs. It follows that, for a significant proportion of the information falling into that category, disclosure will never be justifiable, even under a harm test … certain categories of information will always prejudice the effective conduct of public affairs".—[Official Report, Commons, Standing Committee B: 27/1/00; col. 293.]

On 24th October, my noble and learned friend said that the amendment then under discussion,

"would mean that the difficult questions, the uncomfortable options and unthinkable scenarios would not be debated as frequently or as clearly. Governance would suffer.That is why a class exemption rather than a harm test is the right way to achieve a balance for good and open government".

He went on to say:

"Cabinet papers and minutes would always be likely to prejudice the effective conduct of public affairs".—[Official Report, 24/10/00; cols. 282–3.]

Even where there is to be a public interest test, the category exemption is not the same as the harm test. That is a point of view, but it is certainly not the same as arguing that because of Clause 2 we already have a harm test.

It is too easy for a government or a public authority to decide that disclosing information in a particular category is always against the public interest. Some of us believe that the Government should have to undergo the discipline of actually directing their mind to the harm that would result from the disclosure of the particular information in question; or at least, where they seek to exclude by category, that the definition of that category should be subject to careful scrutiny, as my noble friend seeks to bring about.

What is certain is that, for that reason, a balancing of public interest is not a complete substitute for a harm test. That was the argument of my noble and learned friend himself. The object of the amendment is to compel Ministers and public authorities to focus their minds on the question of whether disclosure would occasion a specific form of harm. To argue that that exercise is superfluous because there is always a balancing of public interest at the end of the course is to circumvent the whole scheme of the Bill. If that were the whole test, we should not have needed to trouble with all the clauses defining the exemptions.

If the Bill is to achieve its objective, a request for information should be considered in three stages: first, does it fall within a category of information which has a potential for causing harm—we should define the category with some care; secondly—and only if it does—is there some specific harm which may be caused in this particular instance; if so, thirdly—and only then—where does the balance of public interest lie? My noble friend's amendment is directed to the first of those questions. It is on that question that the debate should focus.

Perhaps I may seize this opportunity—since it will be my last opportunity in the course of our debates—to thank my noble and learned friend for the care with which he has addressed our arguments throughout and for his unfailing courtesy.

My Lords, I apologise to the House for the fact that, for reasons given by the Select Committee on Science and Technology, air travel and health, I shall be even more difficult to listen to than normal. If at some point I choke, the House will realise that that is not on argument, but for other reasons! I should like to try to explain, for the last time I am sure, why I believe that the Bill as it stands now provides a proper constitutional and legal framework for balancing the competing public interests. My starting-point is Article 10 of the European Convention on Human Rights, which guarantees the right to free speech, subject to necessary exceptions.

Article 10 does not segment information and ideas into little categories. What it does is to treat all information and ideas as being the subject matter of the right to freedom of communication and the receipt of information and ideas. It then subjects that right to necessary exceptions. Those exceptions are scrutinised carefully as exceptions to a fundamental right, using the well-known principles of proportionality.

The other relevant convention right in Article 8 is to personal privacy, which is one of the exceptions that has to be balanced against free speech. Again, it does not seek to segment the subject; it balances these two fundamental rights using proportionality. So if we had no freedom of information Bill but simply the European Convention on Human Rights as our framework, the information commissioner/the Data Protection Commissioner, being the same person, would be balancing free speech on the one hand covering information and ideas against personal privacy on the other.

But the great weakness of Article 10 as a touchstone is that it has not been interpreted by the European Court of Human Rights yet as giving a general right of access to official information. So, although it applies to the balance between free speech and a fair trial, free speech and copyright, or free speech and official secrecy, it does not guarantee a positive right of the public to government information.

One of the most important things that we have achieved in this House in relation to the Bill is that we have repaired the weakness in Article 10, effectively by writing in to Article 10 a right of public access to information and ideas—not subject to particular categories, but subject only to necessary exceptions. There are two kinds of exceptions: those that are absolute, where there is no balancing, and those that are qualified; for example, those that we are considering at present under Clause 35, which are not absolute but are subject to the public interest test.

It will not, ultimately, be for the Minister, for myself, for the noble and learned Lord, Lord Archer of Sandwell, or, indeed, for the Campaign for Freedom of Information to decide what Clause 2 means: it will be a matter for the information commissioner and, in the end, for the courts. I find it inconceivable that the information commissioner and the courts will apply a different standard to the freedom of information legislation from that to be applied to the Data Protection Act, which is the other side of the coin. It is possible that the Minister will say, as the Home Office will probably require him to say, that he does not necessarily accept everything that I say—I understand why he will say that. Thank heavens it will not be left to him, the Home Office or me to decide the matter. It will be a question for the judges to decide.

I find it inconceivable that the proportionality principle will not apply. There is no way in which that test is other than a harm test—a substantial harm or substantial prejudice test. What are the information commissioner and the courts doing when they weigh the right of access to government information against necessary exceptions? They are weighing whether there is a sufficiently substantial prejudice or harm to another facet of the public interest to justify, on an objective basis, curtailing the right of public access to information.

The noble Baroness, Lady Whitaker, and the noble Lord, Lord Lucas, both of whom deserve our gratitude for raising such issues in these amendments, are seeking to carve out as specially not capable of being qualified and balanced, information or analysis of particular kinds. I have great sympathy with what they seek to do. In the kind of cases covered by these amendments, I have no doubt that the Government would have a particularly hard time in justifying the withholding of the information for the reasons that they have given—and which I am sure other Members of the House will give—especially in the scientific area where there will be an overwhelmingly strong case in favour of disclosure.

In answer to the noble and learned Lord, Lord Archer of Sandwell, I also have no doubt that the Government would have an extremely hard time justifying the non-disclosure of whole categories of information on a hypothetical future basis, just as we found in the courts in the field of public interest immunity when what were called "class claims" were made. In the end, the courts said, "The game is up. You can't simply have very broad categories of information whose disclosure is completely and absolutely immune from disclosure in the circumstances of a particular case".

I apologise to the House for having taken so long with my remarks. As for some of those who have been strongly critical of those of us who support the general shape of the Bill as it now appears before us, I really believe that they continue not to understand that the terms of engagement are radically altered. The Home Office will deny that that is so; it will say that these changes are minimal. The Home Office will instruct its counsel in particular cases to argue the contrary, as is its right. However, it will be contrary to the whole of the decided case law of the Court of Appeal and of the House of Lords in a whole string of recent cases if those courts do not adopt the liberal principles that I believe we have succeeded in writing into the Bill.

As to the merits of the particular amendments, one awaits the Minister's response before forming a judgment. I believe that the object of the amendments would in fact be achieved in the way in which the issues are hammered out on the anvil of adjudication, if necessary. I very much hope that the Minister and his colleagues will have had that conversion, as will their officials, to the new culture that will make such disputes much rarer than would otherwise be the case.

My Lords, does the noble Lord agree that it was his amendment that placed subsection (4) in the Bill and that all my amendment seeks to do is to change, in a small way, the scope and emphasis of that amendment? I do not see that that qualifies for all the criticisms that the noble Lord has just made of me.

My Lords, I agree. I have not criticised the amendments; indeed, I hope that I made that plain. I sought to place both amendments into a context and to repeat the argument that my noble friend Lord Goodhart put forward on the previous occasion; namely, that the changing of a constitutional framework transforms this into a Freedom of Information Bill of which we should all be proud.

As shall not be speaking again, perhaps I may also add my thanks to the noble and learned Lord, Lord Falconer, and his colleagues for having been open-minded enough to accept these changes.

My Lords, I rise tentatively to support my noble friend's amendment. Perhaps I may ask for a little clarification from my noble and learned friend the Minister. The noble Lord, Lord Lucas, has raised quite an important issue. Certainly to publish part, but not all, of a scientific paper can be very seriously misleading. There is an issue here, especially as regards scientists, about not publishing the discussion on data that is generated during scientific investigation. The best way for me to illustrate the dangers involved is to put forward an argument relating to a particular case that happened a few years ago.

Noble Lords will remember the publication on Dolly the sheep regarding the cloning of this animal in Scotland. Because the paper in which that information was published did not allow for discussion, the consequence was extraordinary and adverse publicity for what was a very important scientific achievement—publicity that has clouded a whole area of reproduction and developmental medicine. Had such discussion been included, it would have been very clear from the scientists' views based on their best evidence that the cloning of a human being—that is to say, reproductive cloning—would have been quite impossible. If the Government do not publish the whole data and the intention is to fillet papers, it seems to me that there may be a serious issue here that I hope my noble and learned friend can address in his response.

My other concern relates to the fact that much scientific research is carried out on the basis of funding that usually comes from one of our research councils, such as the Medical Research Council, or one of the other funding councils. It is often linked—it may or may not be through direct government funding—with other independent peer review funding because most scientists work with more than one single budget. Such grants are given as part of the public purse, not least because there is a public interest in devolving these grants to the individual scientist. Therefore, there is a serious question about withholding that information, except in the most extreme circumstances. It seems to me that that would clearly not be within the spirit of this legislation.

My Lords, I have asked the forgiveness of my noble friend Lady Whitaker for not being present in the Chamber to hear her opening remarks, because I was unavoidably delayed. I also apologise to the House. My noble friend has given me a broad outline of what she said. I rise to express my support for the amendment, which I believe illustrates an issue of great importance at the close of this freedom of information debate; namely, the way in which the Government will treat the scientific and technical data (and the analysis of it) that they possess.

On 20th July of this year the Chief Scientific Officer to the Government, speaking on behalf of his colleagues, issued a statement in which he declared it to be their wish that their scientific material should be disclosed to the public. There is always the proviso of a very good reason why not, but the general intent was that the public should know. On 26th October the Minister of Agriculture, Fisheries and Food in the other place said on some half dozen occasions that he wanted the public to know about the scientific material on BSE.

I am sure the House will agree that those two approaches were entirely commendable. They were not afflicted by any legal concerns. They were made without having to take into account the existence or purpose of a Freedom of Information Bill and their intent was obvious: within reason, what the Government know the public should know. In our society we are reaching a period of great complexity. The example of the BSE tragedy has horrified us all. The public debate on GM crops persists. The debate yet to come on human cell research will produce the most profound concerns for us all. In any of those debates or concerns do we not want the public to know what they ought to know in order to make their own decisions?

From what my noble friend Lord Winston said, I have the impression that what the Chief Scientific Officer said represents the views of science. I am sure scientists feel that they serve the community and that if they give information to the Government it is given for the benefit of the community. In time to come we shall have a triangle of power in these areas: government, commerce and the world of science and medicine. All three are not above us; they serve us. I can think of no cogent reason why scientific and technical data should not be in the public arena.

At the end of this debate it would be appropriate for my noble and learned friend the Minister to reassure the public that this Bill does not constitute some new barrier between them and the Government with regard to information, but is rather a new and effective bridge to ensure that they receive the information. Whatever the Government's view on the amendment, I hope that the Minister will take the opportunity to tell the world outside, "Never mind the Bill; never mind government interest, commercial interest or the amour propre of science, what we know you will know unless there is an extremely convincing reason why you should not".

My Lords, this has been an interesting short debate. It is one in which those of us who have struggled with the Bill during its various stages have been involved before; namely, the question of the data, facts and analysis that are presented to government Ministers day after day in order to help them reach decisions. I believe that no one in the committee or the House would wish to see made public the mechanics of how Ministers reach their decisions and the papers that flow between them and their civil servants. Sometimes they are made public to the embarrassment of at least some of the parties concerned. However, it would not help the way government reach their decisions for everyone to know that they might read about the issues before them, the options they had and the way they debated them in the newspapers the next morning. No one has argued to the contrary.

However, we are arguing about much of the background material—sometimes that is vital material—on which the Government make their decisions. The noble Baroness, Lady Whitaker, has done us a favour in coming back yet again with another variation of the amendment to try to make it more acceptable to her noble and learned friend the Minister. I am not sure what the noble and learned Lord will say in response.

I called the noble Lord, Lord Goodhart, the shadow Minister. Now that the noble Lord, Lord Winston, has appeared in the debate, I shall change that title. We have heard from the surrogate Minister. They come in twins which I gather is one of the problems with fertility treatment. We have heard a definition. I say to the noble Lord, Lord Lester, that I am not entirely satisfied with what he suggested; namely that the courts will decide what the measure means. I prefer Parliament to decide what it means and say what it means, or even the Government to decide what it means and say what it means. Then we would be clear. The people, through Parliament, would make it clear what they want to happen in this regard.

My Lords, I am grateful to the noble Lord for giving way. I thought that under our constitution it was Parliament that made the law and the courts in their independent capacity that interpreted and applied the law. It is not the function of Parliament to interpret the law; it is the function of the courts to do so.

My Lords, I shall not try to cross legal swords with the noble Lord. The courts apply the law. They interpret it if they have to, but we ought to make the law crystal clear when we pass it. The less interpretation the courts have to do, the better. I see that the noble Lord assents, so at least we agree on that.

The problem here is the one on which the noble Lords, Lord Winston and Lord Brennan, put their fingers. As someone who a long time ago studied science at a rather lower level than the noble Lord, Lord Winston, I know that scientific data can be almost meaningless, at least to everyone bar a small number of experts. It is the analysis of the data that is hugely important. The analysis of the data is important for Ministers who tend not to read the data but the analysis of the data. Occasionally they will study the data to see whether they can work out whether the analysis is correct. Great scientists do not do that; they read the data and then make the analysis. However, there are few scientists in government. That is perhaps a pity. Therefore the analysis is of vital importance. The amendment of the noble Baroness, Lady Whitaker, to which I have added my name, would improve the position.

I am told that the existing open government code of practice is inadequate. As I have made clear, we now agree that an Act is a better way to proceed. The existing open government code of practice states that,

"the facts and analysis of the facts which the Government considers relevant and important in framing major policy proposals and decisions",

should be proactively published. Unless we are clear that not only the facts but also the analysis of the facts will be published as a result of the provisions of the Bill, I suggest to the noble and learned Lord that that will be a step backwards which I am sure he does not intend. I look forward to hearing him accept his noble friend's amendment. If he cannot do that—it is sometimes difficult for government Ministers to accept amendments—I hope that he will at least put on record the simple proposition that it is not just the facts that should be published (because that expression can be narrowly interpreted) but also the analysis of the facts.

When the information is made public and people, and especially newspapers, can study the analysis of the facts, I hope that the debates which take place on the important issues which science will present to us will at least be based on an informed position on the data and that we shall not just be presented with the data and allow every Tom, Dick and Harry to peddle their prejudices. The point of the noble Lord, Lord Winston, about Dolly the sheep was well made. I hope that the Minister will satisfy those noble Lords who have taken part in the debate with regard to the current position of the Bill on that matter.

My Lords, in this short debate noble Lords have gone over two pieces of ground that we have often gone over during the passage of the Bill. The structure of the Bill now involves exemptions but also, under Clause 2, provisions whereby the public authority should disclose the information unless there is a public interest in maintaining the exemption.

I do not intend to go over those debates which we have already had on a number of occasions save to make one point in response to the points made by the noble and learned Lord, Lord Archer of Sandwell. I hope that I have made clear on previous occasions— if I have not done so, I make it clear on this occasion— that, in the case of a piece of information to which an exemption applies but which also falls under the provisions of Clause 2, it is necessary for the public authority to consider in each case whether or not the Clause 2 discretion requires disclosure of the document or the information. It has to be considered on a case-by-case basis.

The second issue is of real concern to noble Lords and the Government: the publication of factual and scientific material and the analysis of scientific material. The noble Lord, Lord Lucas, has returned to the point again and again, in particular by reference to the BSE affair. In this House and in government we are all aware of the condemnation in the report of the noble and learned Lord, Lord Phillips, of the culture of secrecy. That is something we no longer wish to see exist.

The Bill has an important part to play but it is worth emphasising that the remarks by the Chief Scientific Officer and the Minister of Agriculture, Fisheries and Food, which the noble Lord, Lord Brennan, mentioned, referred not to the Freedom of Information Bill but to a policy adopted by the Chief Scientific Officer and the relevant Minister which does not depend in any way on the terms of this Bill. I wish to make that clear.

I turn to the specifics of the two amendments. Amendment No. 3 was moved by the noble Baroness, Lady Whitaker. I believe that the Government have already made provision for what I understand to be the concerns underlying the noble Baroness's amendment. It is difficult to see what information would come within the terms "scientific, medical or technical" which would not be covered by the provisions for factual and statistical information already in the Bill. Statistical information in relation to a government decision already taken has been taken out of the harm test in Clause 35 and is now subjected to the prejudice test in Clause 36. There is also a significant steer for public authorities towards the particular public interest which exists in the disclosure of factual information which has been used to provide an informed background to decision taking.

In moving the amendment, the noble Baroness was supported by the noble Lord, Lord Lucas, and my noble friend Lord Winston. They mentioned that the amendment does not extend to cover advice on policy given by government scientists and that it is limited to the scientists' opinion on the significance of the data. This is the analysis point. I believe that it is impossible satisfactorily to distinguish pure analysis of information from advice which is to be given based on that information. The noble Lord, Lord Mackay of Ardbrecknish, made that point. For example, analysis of data could relate to collation of statistical data or the expression of such data in other ways in order that it be more easily understood. The Government believe that it would be exceedingly difficult for a public authority to make a case for withholding this type of information. However, it is important to have protection for the provision of advice to Ministers in order that good governance be maintained. But the kinds of analysis to which I and other noble Lords have referred would, I think, be impossible to withhold in the vast majority of cases.

The noble Baroness also made reference to the Government being able to withhold information if they felt that there was a public interest in all ingredients of their internal discussion remaining confidential in order to allow the free and frank provision of advice. The Government believe that there is a public interest in keeping certain parts of internal discussions confidential for this reason, as reflected in the existence of exemptions in the Bill. However, balancing the public interest is a completely separate exercise to be conducted if an exemption applies. It is this exercise which will ensure that the legitimate concerns of the noble Baroness are met and that, where it is in the public interest, such information as is covered by her amendment will be released. I hope that these remarks reassure the noble Baroness and others who have spoken on this important issue.

With regard to Amendment No. 4, the noble Lord, Lord Lucas, expressed the same concerns as those mentioned by the noble Baroness, Lady Whitaker. I hope that I have dealt with them adequately in my remarks.

Before I sit down—I suspect that this may be the last opportunity to do so—perhaps I may pay a special tribute to the noble and learned Lord, Lord Archer of Sandwell, and the noble Baroness, Lady Whitaker, who have made substantial and influential contributions to the debates in the House during proceedings on the Bill and have contributed significantly to the changes which have been made.

My Lords, this has been an important debate with distinguished contributions from lawyers and others. My noble friend Lord Winston made significant points on matters which go to the heart of the Bill. I thank all who took part. I thank the Minister for his detailed explanation and, as others have said, the courtesy with which he has dealt with our misgivings.

His explanation will be extremely helpful with regard to the interpretation of the Bill by the public. I hope that the noble and learned Lord will support the interpretation that he furnished today with guidance to the public which makes crystal clear the kind of access they have. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

moved Amendment No. 5:

Page 22, leave out line 21 and insert—

("any action or decision for the effective conduct of public affairs which the department, Assembly or authority proposes at some future time to take in any case where—

(i) the information is not exempt by virtue of section 22; and

(ii) it is reasonable in all the circumstances for the information to be withheld at the time when the request for it is made").

My Lords, I entirely support the noble Viscount, Lord Colville of Culross. We had an unsatisfactory answer from the Minister on Report. The noble Viscount's interpretation of the clause is entirely reasonable. The wide terms of subsections (1)(a) and, in particular, (1)(b), mean that an exemption is available for almost any information held by almost any public authority at the whim of one of the named individuals. There is no limitation on them and no effective control of them.

The Minister tried to put a different construction on the problem on Report. He said the clause merely provided a helpful restriction on the number of people who could operate the clause, putting the power in the hands of a relatively small number of individuals who would all be upstanding and responsible. He said that the clause would be entirely helpful to the cause of freedom of information.

The crucial distinction between those two views is the position that the information commissioner finds herself in when presented with an appeal against a refusal of access to information as a result of the exemption. It is stated that under the clause the qualified person can determine whether prejudice exists. That is fine, but can they also determine the quantum of that prejudice? Does the information commissioner have to accept that determination? If the qualified person says that the information would cause such prejudice that it should never be released, will the information commissioner be bound by that view, or can she substitute her own view? If she is entirely free to substitute her own view, the clause could do only a relatively limited amount of harm. If, on the other hand, the amount of prejudice is to be determined by the vast array of qualified persons, the clause could do extreme harm to the cause of freedom of information. We got no answer from the Minister on Report. I hope that we shall get one now.

My Lords, as the noble Viscount, Lord Colville of Culross, said, the examples given by the Minister on Report almost brought noble Lords to the edge of their seats with laughter, particularly the need for a qualified person to be able to prevent potential examination questions being revealed. My noble friend Lord Norton of Louth, who has probably made up more potential examination questions than anyone else in the House, dealt with that. That situation clearly does not need such protection.

We remain worried about the scope to be given to the reasonable opinion of a qualified person. The noble Viscount has done us a favour by coming forward with a modest limitation on that scope. I look forward to the Minister's answer. Perhaps he will give us some better examples this time.

My Lords, I am grateful to the noble Viscount for raising this important issue. I accept that we have degrouped Amendments Nos. 5 and 6. I shall deal only with Amendment No. 5 at the moment. The Bill provides an exemption for information that would,

"prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs".

The amendment would exempt information that would,

"prejudice, or would be likely otherwise to prejudice, any action or decision for the effective conduct of public affairs which the department, Assembly or authority proposes at some future time to take in any case where

(a) the information is not exempt by virtue of section 22; and

(b) it is reasonable in all the circumstances for the information to be withheld at the time when the request for it is made".

The difference between the existing draft and that draft is quite difficult to detect. It does not for one moment, for example, touch the definition of the qualified person, the number of qualified persons or the role that they perform in determining where the balance lies.

The noble Viscount justifies his proposed amendment by saying that it would cover the examples given. It would, so long as the noble Viscount knows what view the information commissioner or the courts would take about the phrase,

"it is reasonable in all the circumstances for the information to be withheld".

In parenthesis, I refer to what the noble Lord, Lord Mackay of Ardbrecknish, said. If one wants uncertainty about what will happen in the future, one should insert a phrase such as,

"it is reasonable in all the circumstances for the information to be withheld",

because absolutely no guidance is given as to how that would be effected.

However, the clause is not intended simply to deal with the two examples that have been given. As was said on the previous occasion that we discussed this matter, the clause has been inserted because 50,000 public authorities are covered by the Bill. From where we sit at the moment, it is impossible to determine the precise circumstances in which it might be appropriate for information to be withheld because in the future that would prejudice the effective conduct of public affairs by a public authority. If there is a case, first, a named individual must say that such a prejudice exists. Then, under Clause 2, disclosure of that information takes place unless the relevant public authority can satisfy the information commissioner that there is a good reason for not disclosing.

The noble Lord, Lord Lucas, asks whether the information commissioner can weigh the quantum of the prejudice. Of course, she can. The information commissioner will have to do so because she is deciding where the weightier balance lies when it comes to Clause 2.

My Lords, I entirely understand that that is the process through which the information commissioner goes and that the commissioner will make her own judgment of the weight of public interest in disclosure. However, I am anxious to determine that the judgment of the weight of prejudice will be hers and not that of the authorised person, which is the other side of the balance.

Yes, my Lords. I confirm that that is the position. That is the effect of our present draft. With the greatest respect to the noble Viscount, the effect of his draft is more complicated, more open, more wide-ranging, less restricted and, in my respectful submission, would not deal with the problems that he identified in moving the amendment. Therefore, in the light of what I have said and in the light of the reassurances that I have given in relation to a number of points, I suggest that the noble Viscount does not move Amendment No. 5.

My Lords, I have moved Amendment No. 5, so I am afraid that we have to deal with it. I shall now respond to the noble and learned Lord, and I am grateful to other noble Lords who have taken part.

I am afraid that I do not understand the noble and learned Lord when he criticises the test that I have provided. As has now been clearly established—I am grateful to the noble Lord, Lord Lucas, for helping in this matter—in every one of those cases the information commissioner will have to ensure that the prejudice, which of course will have to be disclosed to the commissioner, is weighed against the public interest which is relied upon as part of the exercise in non-disclosure. She will have both parts of the equation in front of her.

Why the noble and learned Lord considers that his draft in paragraph (c) is clearer, better defined, more restricted and more ordered in every possible way than what I have put forward is beyond my comprehension. I do not want to prolong this debate. I understand that the noble and learned Lord does not intend to accept anything. Therefore, perhaps I may suggest to him that some device is produced whereby the information commissioner gives guidance to those 50,000 qualified persons who are to take the decisions.

Such guidance will not be provided under Clause 49 in the annual report or in any special report given to Parliament. It will come in case law. That will be difficult, and I do not understand how it will be achieved because the circumstances of individual cases may well be such that the details on the basis of which the information commissioner has reached her decision cannot be publicised. Nevertheless, some guidance will have to be given about the lines that the information commissioner will draw as to where the qualified person is allowed to exercise the powers that at present are set out in paragraph (c).

I am sure that the noble and learned Lord is listening to what I am saying. I hope that in a moment when I move my next amendment he may have the opportunity to respond to that matter. I believe that guidance in this field will be very important, not only to qualified persons but also to members of the public who seek information. At least they will then gradually build up some knowledge of how the system works and of what the information commissioner is likely to do in relation to the balancing act that will be her copious duty in future.

I am very disappointed that the noble and learned Lord gives no further examples, although I had not expected him to give any. I am afraid that it is clear from reading and listening to these debates that we shall never achieve any clarity in this matter. As I cannot do anything about it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 6:

Page 22, line 21, at end insert—

("(For the purposes of paragraph (c) of subsection (2), the effective conduct of public affairs is not to be regarded as prejudiced or likely to be prejudiced insofar as disclosure of the information would, or would be likely to, result in any member of the public seeking, by lawful means, to influence the public authority in relation to any action or decision which that authority has the power to take.").

My Lords, the point which the noble Viscount makes is important and it is the first time that it has been raised in the course of our debates. It does not apply only to Clause 36. There is nothing specific to do with that clause. It simply makes the point: what happens when the information is needed urgently? That is the point which the amendment raises.

The position under the Bill is that a public authority must inform the applicant within 20 working days if it is not going to comply with the request. At the same time, if the public interest test applies by virtue of Clause 2, then the public authority must inform the applicant of its determination under that clause or it must indicate when it is going to determine that beyond the 20 days; and if the applicant disagrees with that length of time, the applicant can go to the information commissioner and complain about the length of time.

Obviously, under the Bill there must be a period of time within which the public authority has time to comply with the request. As regards appeals procedures, the noble Viscount is right to say that domestic complaints procedures must be exhausted first—for example, local authority complaints procedures—when there has not been a disclosure. Whether or not there is a provision in relation to those for urgency will depend upon the individual procedure.

The information commissioner's code of practice will say that applications should be dealt with promptly and, if there is good reason why it should be dealt with urgently, no doubt that will be taken into account in determining how quickly to deal with the individual complaint or appeal against a particular ruling by a public authority.

That is as far as I can take it. Inevitably, there must be some period of time within which both public authorities and information commissioners are allowed to deal with the applications. Of course, if the applicant has a particular reason for needing the information urgently, no doubt that will be taken into account when the application is being considered.

My Lords, I do not think that it will because, although the noble and learned Lord sets out what is in Clause 10 and says that there must be some test of urgency, there is still the stage which he did not mention at all—the complaints procedure under Clause 45. That must be gone through too and that is in the hands of the public authority itself. There is no timetable in relation to that and it is on the face of the statute that it is only after that process has been exhausted that the information commissioner can come into the picture.

There is no guarantee that the person who seeks the information will have been able to overcome all those delays in order to obtain the information before the public authority makes the decision. There is no appeal to the commissioner until all the complaints procedures have been completed. Therefore, the noble and learned Lord has disclosed a very substantial gap in the way in which this Bill will be practicable from the point of view of ordinary people.

Again, it is no use my pressing this matter at this stage, particularly as it is the first time that it has been raised. But I trust that the Government and the information commissioner will apply themselves to the problem which I have tried to adumbrate; in other words, when an urgent decision is required and the procedures need to be very substantially curtailed in order that a decision can be taken upon the matter in time, before the decision is finally reached by the public authority.

My Lords, I apologise for interrupting the noble Viscount but what I say will provide him with some assistance. The commissioner will be able to hear complaints before the exhaustion of the authority's internal appeals procedure. Urgent cases would fall into that category. But that obviously does not deal with cases in which the 20-day period has elapsed.

My Lords, I am extremely grateful to the Minister for that clarification. However, it does not appear to me to comply with Clause 50(2)(a), which states:

"On receiving an application under this section, the Commissioner shall make a decision unless it appears to him"—

which, of course, means "her"—

"that the complainant has not exhausted any complaints procedure".

It appears to me that, if the complaints procedure has not been exhausted, the commissioner will be denied the opportunity to make a decision.

My Lords, perhaps I can assist the noble Viscount in relation to that. If he reads the remainder of Clause 50(2)(a), he will note,

"that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 45".

That is a reference to the commissioner's code of practice, which will specify the circumstances in which the local or domestic appeals procedure must be complied with before the commissioner's role comes into play.

My Lords, I understand that point, for which I thank the Minister. I do not invite him to say anything further at the moment, but I ask him to listen to my next point. The commissioner would need a code of practice that would enable her to take on board appeals against refusals to disclose in cases of urgency, which have to bypass the complaints procedure. I know that that will be laid down in her own code of practice but, nevertheless, the code of practice will then be applicable to the public authorities, which will have to set up a procedure. She will have to ensure that, where an applicant can make out a case for an urgent decision, the whole process of the complaints procedure would not need to be gone through before her jurisdiction started. I shall leave it at that. The Minister nods his head—I hope to me. I hope that he will ensure that some such provision is included in the code of practice so that public authorities can be required to make timely decisions, or the commissioner allowed to make decisions on their behalf.

In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 8:

Page 31, line 26, leave out from ("information") to ("that") in line 27 and insert ("which falls within any provision of Part II stating").

moved Amendment No. 9:

Page 31, line 36, at end insert—

("() Where the accountable person gives a certificate to the Commissioner under subsection (2), the Secretary of State shall as soon as is practicable thereafter arrange for details of the certificate to be drawn to the attention of each House of Parliament.

() In any case where a certificate under subsection (2) relates to a decision notice or enforcement notice which has been served on a Northern Ireland department or any Northern Ireland public authority, the accountable person shall as soon as is practicable thereafter arrange for details of the certificate to be drawn to the attention of the Northern Ireland Assembly.

() In any case where a certificate under subsection (2) relates to a decision notice or enforcement notice which has been served on the National Assembly for Wales or any Welsh public authority, the accountable person shall as soon as is practicable thereafter arrange for details of the certificate to be drawn to the attention of the National Assembly for Wales.").

My Lords, I rise to speak to Amendment No. 11, which is grouped with the amendments tabled by my noble friend. His represent the modest option; mine represents the radical option. I thank the noble and learned Lord in advance for what I am sure will be a constructive response to my amendment. In an ideal world, I would be thanking him in advance for accepting it.

In Committee and on Report, the noble and learned Lord stressed that any Minister issuing a certificate under Clause 53 would be accountable to Parliament for that action. He said that the Bill provides that decisions must be transparent and that a Minister signing a certificate must give reasons for that decision. There is no dispute about the importance of ministerial accountability. The disagreement relates to how effective accountability can be achieved. My amendment is designed to ensure that Parliament is provided with a means of achieving that desirable end. It requires that a certificate issued by a Minister has to be confirmed by both Houses; it provides for a Joint Committee to have sight, on a confidential basis, of the material that is the subject of the veto. The amendment thus ensures that Ministers cannot avoid parliamentary scrutiny. Scrutiny will take place. Ministers will have to answer to both Houses. The amendment also ensures that Ministers cannot fall back on some broad defence, parliamentarians being unsure as to whether or not that defence is justified. The House would be able to have the advice of a Joint Committee as to whether or not the defence was justified.

In Committee, I proposed that the relevant departmental Select Committee of the House of Commons—or, if the certificate covered an issue of national security, the Intelligence and Security Committee—should have confidential sight of the material. On reflection, I have decided that a Joint Committee of both Houses would be appropriate. However, if the certificate relates to an issue of national security, which, of course, is a distinct possibility, I suggest that it should also be referred to the Intelligence and Security Committee.

Making use of a Joint Committee would be feasible and appropriate. It would be feasible because the issue of a certificate would be rare. I take the Government at their word on that. Both Houses would, therefore, rarely be called upon to nominate members to serve on such a committee. It would be appropriate because both Houses would be called upon to confirm the certificate, and it would allow both Houses to appoint senior members to serve on the committee. The Intelligence and Security Committee, which is a statutory body, comprises senior Privy Counsellors. I envisage the Joint Committee comprising a similar membership. It would thus be a body of high standing and integrity.

I made the case for strengthening parliamentary accountability on Report. I do not intend to repeat what I said then; rather, I propose to explain briefly why the Minister's response on that occasion was not persuasive, and hence why I have returned to the issue at Third Reading. On Report the Minister advanced the argument that existing arrangements were satisfactory and that my proposal had two principal defects.

The Minister's justification for the Bill's provisions was that the commissioner, who would have had an opportunity to see the relevant information could,

"report any shortcomings in the decision-making procedure to Parliament".—[Official Report, 14/10/00; col. 259.]

Doubtless the commissioner could. However, I am not concerned here with shortcomings of the decision-making procedure. I am concerned with the decision itself. The Minister argued that my proposal was deficient because it would not add any greater transparency to the process and because the action of issuing a certificate was an executive and not a legislative power.

I would argue that my proposal should be seen in terms of legitimacy. Under the clause as it stands, Ministers will be judge and jury in their own cause. There will always be the suspicion—it may be groundless, but it will exist—that Ministers will exercise the veto to avoid embarrassing material being put into the public domain. My proposal provides for Parliament, enjoying a legitimacy of its own, to confirm that the Minister's reasons for exercising the veto are reasonable.

I would also contend that my proposal does aid transparency. Knowing that they will be answerable to Parliament for their actions—something they cannot avoid—is likely to ensure that Ministers provide as full a justification as possible; and, indeed, that they will not embark on a course of action unless they are sure that they can justify it to Parliament.

As regards the argument for it being an executive power, I understand the case the Minister advances but I do not think that it is conclusive. Parliament confers powers upon Ministers, but variously makes the exercise of those powers subject to parliamentary approval. The ministerial veto here is a power conferred by Parliament. We are not dealing here with executive actions derived from the prerogative.

I therefore do not find the Minister's arguments persuasive. I am greatly tempted to tell the noble and learned Lord that I have applied a balancing test, weighing the needs of the executive against the imperative of parliamentary scrutiny. It is really no contest. Government must be accountable to Parliament.

In this clause we are giving an important power to Government without balancing it with an effective provision for parliamentary scrutiny. My amendment is designed to provide for that scrutiny. I hope that Members of this House will always act to maintain effective scrutiny of the executive.

My Lords, we agree on the need for proper accountability in relation to Parliament for the giving of a certificate under Clause 52 which has been described as the ministerial veto. Amendments Nos. 9 and 10 are alternative methods of directly notifying Parliament of that. We have considerable sympathy with the spirit behind the amendments.

Amendment No. 9 is vague because it states that the relevant accountable person should draw the attention of the relevant body to the details of the certificate. That phrase is somewhat vague. Amendment No. 10 does not suffer from the same defect. It states that the accountable person shall lay a copy of the exception certificate before each House of Parliament or the appropriate devolved assembly. We have always made it absolutely clear that the relevant Minister should be accountable to Parliament. We therefore accept that amendment and would support it if the noble Lord, Lord Mackay of Ardbrecknish, is minded to move it. He has made his contribution to the Freedom of Information Bill.

I turn to Amendment No. 11 tabled by the noble Lord, Lord Norton of Louth. The effect of the amendment would be that the certificate would be invalidated unless approved by a resolution of both Houses within 20 sitting days. The amendment would also have the effect that a Minister, having signed an exception certificate, would be required within the same period of time to pass in confidence to a Joint Committee the information in question.

As I said in the debate on an identical amendment on Report, that would certainly result in additional delays in reaching a view on whether information might be disclosed or withheld, but I do not believe that it would lead to any greater transparency than the Bill already provides, in particular with the amendment soon to be moved by the noble Lord, Lord Mackay of Ardbrecknish. It is clear that the exception certificate process is not something which would be undertaken without very serious consideration. There are safeguards to ensure that decisions must be transparent. The Minister must give public reasons for the decision. The commissioner will have had the opportunity, if she wishes, to see all the relevant information. She can report under Clause 49 any shortcomings in the decision-making procedure to Parliament, and Parliament itself can, at any time, hold the Minister to account for his actions. We think that that is sensible. It delivers the objectives that the more complicated procedure proposed by the noble Lord, Lord Norton of Louth, also seeks to deliver.

We have repeatedly made our position clear on why it is important that Ministers are and must be seen to be responsible in relation to decisions of that sort. We believe that it is right that Ministers, backed by the collective responsibility of Cabinet, should be seen to be responsible for taking decisions in areas such as these and that this is preferable to a position in which that responsibility is transferred to Parliament. In effect, that is what the amendment tabled by the noble Lord, Lord Norton, would do. It is right that Parliament holds Ministers to account in relation to that in a way which involves reasons, direct knowledge of what is happening and an independent person able to report any shortcomings. However, ultimately it is for Ministers accountable to Parliament, with Parliament being provided with the proper information, who have to take the decisions. In all the circumstances, I would invite the noble Lord, Lord Norton of Louth, not to move his amendment.

My Lords, I am grateful to the Minister for accepting the argument put forward by myself and noble friend Lord Norton. I am sure that my noble friend accepts that his amendment was pretty much a nuclear option and would require much more parliamentary procedure than my amendment. However, I am grateful to the Minister for accepting that Amendment No. 10 carries out that for which we were searching at Report and, indeed, in Committee; that is, a way for Parliament to be informed expeditiously about the occasions on which government Ministers have used the veto. I suppose I can mark that as a triumph. I shall now be able to look the noble Lords, Lord Lester, and Goodhart, in the face in the competition for who made any amendments to this Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 10:

Page 31, line 36, at end insert—

("() Where the accountable person gives a certificate to the Commissioner under subsection (2) he shall as soon as practicable thereafter lay a copy of the certificate before—

(a) each House of Parliament,

(b) the Northern Ireland Assembly, in any case where the certificate relates to a decision notice or enforcement notice which has been served on a Northern Ireland department or any Northern Ireland public authority, or

(c) the National Assembly for Wales, in any case where the certificate relates to a decision notice or enforcement notice which has been served on the National Assembly for Wales or any Welsh public authority.").

moved Amendment No. 12:

Page 71, line 4, at end insert—

(" . In Schedule 3 to that Act (conditions relevant for the purposes of the first data protection principle: processing of any personal data) in paragraph 8(2) after the words "medical research," there is inserted "for the purpose of monitoring the public health".").

My Lords, I have listened most carefully to the noble Lord, Lord Clement-Jones, on this occasion and on Report, and also to my noble friend Lord Turnberg, who expressed similar concerns in relation to public health work, including the tracing of communicable diseases.

We share the concern of the noble Lord, Lord Clement-Jones, for the future of cancer registries, but the amendment to the Data Protection Act will not help in the way he intends. As I shall explain, it is not primarily a data protection issue. I should like to reassure the noble Lord that the Government are taking these concerns seriously and will take whatever action is necessary to secure the future of cancer registration and other essential medical work, including work relating to public health. If there is no practical alternative, as I told the House on Report, we shall introduce supporting legislation at the earliest opportunity.

Perhaps I may briefly go through the points. The noble Lord, Lord Clement-Jones, knows that the Data Protection Commissioner believes that the processing currently being done by the registries is being done for medical purposes. The commissioner was kind enough to copy to the Home Office and to the Department of Health her letter of 15th November to the noble Lord which makes that point. Disclosure of personal data for such purposes is provided for by Schedule 3 to the 1998 Act. There is therefore no need for a change in that Act. The noble Lord may consider, despite the commissioner's views, that that is still to be tested and that legislation will put it beyond doubt.

The Government take the same view of the law on that point as the commissioner, but I can repeat the assurances I gave a few moments ago. In the unlikely event that our interpretation of the law is wrong, the Government stand ready to consider with the noble Lord and his advisers what actions may be necessary to secure the future of cancer registration or public health work. The Act allows additional "gateways" for the processing, including disclosure, of medical data to be provided by subordinate legislation. If it is necessary—for the reasons I gave neither the Government nor the commissioner believe it is—we will introduce amending secondary legislation to address the concerns.

The point was also clearly made by the noble Lord in regard to common law confidentiality. We believe that the General Medical Council's advice that doctors should disclose sensitive personal data only with consent reflects its understanding of the common law duty of confidence rather than any concerns about the 1998 Act. It is said that the law of confidence requires patients to consent to the disclosure of their personal data unless there is an overriding public interest. The Department of Health is aware of the concerns raised from medical research, including the activities of cancer registries and also in relation to the public health. If there is evidence that the common law duty of confidence might put continuing medical research or public health activity at risk, the Department of Health made it clear that it will look to see what can be done without the need for legislation. But if that is not possible, it will be prepared to introduce legislation at the earliest possible opportunity to address those concerns.

I hope that in the light of those assurances the noble Lord, Lord Clement-Jones, will feel able to withdraw his amendment.

My Lords, I thank the Minister for that reply. I am grateful for that clear exposition, which wholly tallies with my understanding of the situation. I am fairly convinced that legislation will be needed and in those circumstances I am grateful for his assurance that early legislation will be brought forward. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Moved, that the Bill do now pass.—(Lord Falconer of Thoroton.)

My Lords, I well realise that the Minister is waiting to make a Statement and I see the foreign policy buffs gathering. But it is worth making one or two short observations.

We are at the end of a 25-year road along which many colleagues have travelled. So I should like to pay tribute in the passage of this Bill to my colleagues, my noble friends Lord Goodhart and Lord Lester, for their contributions, and also to the Minister, the noble and learned Lord, Lord Falconer, who dealt with us at all times with great courtesy and often with great constructiveness.

The noble Lord, Lord Mackay of Ardbrecknish, asked on a number of occasions whether these Benches spoke as shadows or surrogates. We are glad to take both descriptions in the final shape of the Bill. Much was made by the Conservatives of the so-called "deal" we made with the Government Front Bench over some key amendments. A lot of that indignation was synthetic. They proved, with the age of consent Bill and the Disqualifications Bill, that if they want to turn out their troops they can do so without our support.

However, the concessions we obtained from the Government were worth while. Those who claimed that we "blinked too early" must consider whether they really wanted the Freedom of Information Bill thrown into the maelstrom of the last eight days of this Session. Whatever else, the passage of the Bill tonight guarantees that the Freedom of Information Bill will be on the statute book this Session. The real analogy is not parliamentary ping-pong but parliamentary poker. It is sometimes smart to know when to cash in your chips and we did that at the right time.

This is not the Bill which the Liberal Democrats would have passed. It is not the Bill which David Clarke would have passed. At this stage it is worth paying tribute to David Clarke's White Paper, which will remain for all of us a benchmark yet to be attained. But it is a Bill worth having. I should have preferred to hear a few more cries of pain from the noble Lords, Lord Armstrong of Ilminster and Lord Butler of Brock well, but you cannot have everything! In conclusion, there are three hurdles which even an Act of Parliament must clear in order to be effective. The first two were referred to by my noble friend Lord Lester. First, the Bill will need an information commissioner who is robust in testing the powers which it gives her. Secondly, it will need the courts to be liberal and radical in their interpretation. Thirdly and most importantly—and this was referred to by the noble Lord, Lord Brennan—it will need Ministers who believe in freedom of information. One of the most telling points ever made about the previous administration was made by the noble Lord, Lord Lamont, when he described his colleagues as being in office but not in power. That charge sometimes hangs over the present Government.

All ministerial office is transitory. One of the lasting marks which each and every one of the present Ministers can make during their period of office is to ensure that the Bill is followed in spirit as well as in letter in the Whitehall departments over which they preside. It is no use blaming the wiles of Sir Humphrey, or even of Sir Robert or Sir Robin, if Ministers do not try to make the Bill work. If they initiate the training programmes to instil a new culture into the bureaucracy, and if they believe in the citizens' right to know, the Bill will be seen as more significant than its critics now allow. It will redeem a 25-year promise and justify the Campaign for Freedom of Information, Charter '88, the UCL Constitution Unit and others who have worked so hard to put it on the statute book. It will strengthen our democracy, make the executive more accountable and increase the power of both Houses of Parliament and of the three aspects of the media to ensure that those who seek to rule us are our servants, not our masters.

My Lords, your Lordships will appreciate the need of my noble friend Lord Mackay to prepare for his business scheduled for today. It will come as no surprise to the Minister— indeed, to the whole House—that he is even now working feverishly to engender the same degree of consensus and co-operation which we enjoyed during the Bill's Third Reading, particularly on Amendment No. 10.

Accordingly, and although I am a poor substitute, on behalf of my noble friend I join in the plaudit; of the noble Lord, Lord McNally. As usual, the House can congratulate itself that the Bill, whatever its gestation, is returned to another place in much better shape than when it arrived. I congratulate all noble Lords who have assisted in that process, not least my noble friends Lord Lucas and Lord Norton. I thank the Government Front Bench, the noble and learned Lord the Minister and his officials for ensuring that our debates on the Bill have been unfailingly courteous and informative.

My Lords, I, too, join noble Lords in their remarks about the good natured and constructive way in which debates on the Bill have been conducted. We have made significant changes to the Bill and I am grateful for all the contributions from around the House.

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

My Lords, before we move to the Statement on European Defence Co-operation, I should like to take this opportunity to remind the House that the Companion indicates that discussion on a Statement should be confined to brief comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.

My Lords, with the leave of the House, I shall now repeat a Statement on European defence co-operation being made by my right honourable friend the Secretary of State for Defence in another place. The Statement is as follows: "With permission, I would like to make a Statement to the House about recent developments in European defence co-operation. There are those who in recent days have, frankly, become a little over-excited. I would like to try to set out the facts and separate them from the Euro-sceptic fiction.

"Our aim is the improvement of European military capabilities to deal with the security challenges now facing us. These enhanced capabilities will be available to the countries concerned, to the European Union and to NATO. This is a key step towards achieving our goal of strengthening the European pillar of NATO and encouraging our European partners to do more.

"This is an aim that everyone in this House should share. It is about making it easier for British Armed Forces to deploy in a multi-national context—something which is a routine requirement of modern operations. I spent this morning with the Royal Regiment of Wales and the Royal Green Jackets, currently serving in Paderborn in Germany. They emphasised the number of recent occasions when they had been deployed alongside European forces, from Holland, from France and from Italy.

"I would like to set out just what we have been discussing this week at the Capabilities Commitments Conference in Brussels. Last year, at the Helsinki Summit, it was agreed that European Union nations should by 2003 be able to deploy rapidly up to 60,000 ground troops to meet the full range of crisis management tasks. These troops could either contribute to NATO-led operations or, where NATO as a whole was not engaged, to European-led crisis management missions.

"Over the past two days, European partners, both in the European Union and those outside it, have been identifying the type and level of forces that they might be able to make available to Petersberg operations. This is not a standing European army. It is a pool of potentially available national forces. It envisages full transparency and consultation with NATO as a potential crisis develops. It would then be for contributing countries to decide whether, when and how to deploy their armed forces. No country would have to take part. The British Prime Minister, answerable to this House, will always have the final say over the use and deployment of British Armed Forces.

"NATO is, and will remain, the cornerstone of European defence. It alone remains responsible for the collective territorial defence of its member states. The European Union has stated repeatedly that its aim is to have the ability to conduct military crisis management operations only where NATO as a whole is not engaged. Nothing that has been done in the European Union this week changes any of that. For the foreseeable future, major operations of this kind would draw on NATO assets and use NATO operational planning and command structures. It would, in short, be NATO-supported. So, it is time we lowered the temperature and raised the tone of the debate.

"One way of doing this is to place the current developments in context. In 1992, the Maastricht Treaty established the present framework of the European Union. It was this treaty which established the so-called 'second pillar' of a common foreign and security policy. It said that member states,

'shall define and implement a common foreign and security policy'

and went on to specify that this,

'shall include all questions related to the security of the Union, including the eventual framing of a common defence policy, which might in time lead to a common defence'.

That policy was signed up to by the previous Conservative Government—by both the right honourable Member for Huntingdon as well as the current Leader of the Opposition. Through the Western European Union, the previous Government explicitly promoted the development of a European capability for use when NATO as a whole was not engaged. They seem to have forgotten that.

"I assume that this policy is still supported by the right honourable Member for Huntingdon. Those who look for consistency in their politicians might assume that the Leader of the Opposition would still support a policy to which he signed up as an ambitious Minister in government. At least it can be said that in terms of consistency the Shadow Defence Spokesman has consistently opposed Maastricht and the European Union. His Euro-sceptic opposition now leads the Conservative Party, with its leader jumping on the anti-European bandwagon.

"The Leader of the Opposition should not try to hide behind NATO. It was NATO at Berlin in 1996 that offered to make its assets available for European operations; and it was NATO at the Washington Summit last year that offered its support for the European Defence Initiative. The policy we are discussing today has not suddenly appeared. What we are doing is a long way short of the aspirations to which the previous Government agreed.

"I apologise for this short history lesson. It is important to be clear that the aim I declared at the beginning—the improvement of European capabilities—is not only one that all parties have shared but one that has already been pursued over several years. Yet, if it is necessary for Europeans to do more, why do they not simply take action within NATO? The answer is that we do take action within NATO. The fundamental structures of co-operation are there in planning, training and command and control arrangements. What we are doing through the European Union will complement this action.

"There are three main reasons for saying so. First, there is a clear imbalance in capabilities between the Europeans and the United States which has grown over the past decade. Kosovo was a wake-up call. Both the US and NATO strongly support increased efforts by Europe to respond to this challenge. Not a single senior figure in the US Administration is opposed to these proposals. Madeleine Albright described Monday's conference in Brussels as

'a strongly positive development [that] we wholly support'.

At the recent NATO conference in Birmingham Bill Cohen, the US Defense Secretary, said:

'Let me be clear on the American position. We agree with this goal, not grudgingly, not with resignation, but with wholehearted conviction'.

"The effort that is now being put into developing better European capabilities, which is being led by Britain, is beginning to have an effect. For years defence budgets around Europe have been falling. Next year, according to figures given to NATO by its member nations, defence spending will rise in real terms in 11 of the 16 European states of NATO. The restructuring of armed forces to make them better equipped to face today's challenges is taking place in a number of EU countries.

"Secondly, the European Union is already actively involved in crises through economic sanctions, diplomatic measures and humanitarian aid, but it has lacked clout. In security matters, especially in a real crisis, political weight reflects military weight. The EU has lacked a practical method for mobilising a military response.

"The third reason is that additional political will and momentum for Europe to improve its capabilities is best generated through NATO and the EU. The multi-dimensional nature of security issues demands a co-ordinated political response. For that, frankly, we would be failing if we did not make full use of the mechanisms offered by the European Union. The Capability Commitments Conference earlier this week is neither something to fear nor something to scaremonger about. On the contrary, we as a nation should be delighted to see our European partners making a serious commitment to improve their capability to be able to respond to crisis management situations. It strengthens the military capability and resolve in the EU and also the capability within the NATO Alliance.

"This is a statement of requirement—a goal, a level of ambition. It is a means of galvanising action. That is why it is called the Headline Goal. It is not a European army: it is not even a standing rapid reaction force. Nor is it confined to the European Union. On Tuesday, we heard from non-EU NATO nations and from the 15 EU aspirants. They too support this goal and have offered forces towards it. Yet, as we have seen, the Opposition would pull Britain out of this process and isolate us not only among the 15 EU members but also non-EU states.

"Since Helsinki, military experts in both EU countries and NATO have developed a detailed statement of requirement for the pool of forces and capabilities needed to cover the Petersberg tasks: peacekeeping, peace support and peace enforcement. On Monday, countries nominated elements of their national forces which they believed could contribute to this requirement. The process of identifying these forces is, in principle, no different from the process of declaring forces to NATO or to the United Nations. We need the ability to assemble the right sort of force quickly for a range of possible operations.

"The key difference about the current initiative is that capabilities are being identified against a specific goal. The countries involved are demonstrating their determination to follow through in the areas of shortfall and deficiency which this process will highlight. Therefore, this is a step in a process, not the end of the road. We are perfectly well aware that there are many detailed issues to be followed up in both the EU and NATO.

"Like others, the UK has identified a pool of forces and capabilities as its contribution to wards achievement of the headline goal. These forces provide for a balance across the full range of Petersberg tasks, including the most demanding. In the maximum scale operation envisaged at Helsinki—a corps level deployment of up to 60,000 ground troops—the UK land component could be about 12,000 strong. Maritime and air deployments of up to 18 warships and 72 combat aircraft could be made in addition. I set all this out in more detail in my response to the Question from my honourable friend the Member for Loughborough on Monday.

"Let me be clear about what this initiative is and what it is not. It is a planning process to ensure a more effective defence effort by European forces. It is a mechanism to improve European contributions to NATO and to ensure that European nations can in future play a more effective part in alliance operations. It will encourage more efficient and targeted defence spending by our European friends, and it will ensure that when NATO is not engaged the European Union can act effectively in a wide range of peace support operations, if and when its member nations want it to.

"It is not a European army or even a standing reaction force. It is not an agreement to give up or reduce Britain's sovereign control over British forces, and it is not a commitment to undertake operations in which we would not previously have wished to take part. It is not, therefore, a new burden for our Armed Forces. Those who have said this either do not understand what is happening or deliberately seek to mislead for reasons of political opportunism. The success of our Armed Forces in co-operating with our partners and allies deserves better. The Opposition should be ashamed of themselves for trying to use our Armed Forces to further their own anti-European obsessions".

My Lords, that concludes the Statement.

My Lords, I am extremely grateful to the noble Baroness for repeating the Statement. I hope that the Minister will forgive me if I do not pursue the reference to over-excitement—I note that the earlier draft referred to "hysteria"—and the partisan jibes. I am sure your Lordships agree that those matters are more suitable for another place, and in any event they are not appropriate in view of the very serious nature of the issue that we are discussing. So I shall ignore them.

We on this side of the House are totally in favour of a stronger European contribution to NATO, a stronger European branch of NATO. If this project is about that, and that really is the aim of the entire undertaking, we would have no problems with it. We have always supported that. That is what NATO put forward at Berlin in 1996. The Secretary of State for Defence is right to allude to it. The previous government supported it. We still support it from this side.

But the question is: is this still the same project? Does not this new proposal have its own unified command; its own planning committees under the European Union; its own military staff, already set up incidentally—I do not know under what powers, but perhaps the noble Baroness will tell us; and its own headquarters? Eventually, the clear intention is that it should have also its own intelligence, logistics and heavy-lift. That will happen only when the money is found, because we are talking about enormous sums. If it is not found there would be a danger of vast duplication.

We want to see NATO strengthened by a greater European contribution. But anyone who has been in the Army, even in a junior position, will know that it is essential for soldiers to have a single command and control structure and single and clear planning procedures. There is a risk here that we shall have double command and control and a double set of planning procedures. For instance, the Deputy SACEUR will not be the co-ordinating officer for the new force and for NATO; he will have merely a liaison role. Can the noble Baroness explain why that should be so? That does not imply the kind of unity and clarity of command which soldiers need.

I turn to the question of defence spending. Where is the money coming from? In his Commons Statement the Secretary of State mentioned more spending next year. But it will need to be a very large increase. What will be cut to make room for it? Will other defence arrangements be cut? We need to be clear on that issue and not just push it aside. Everyone, including the Pentagon and the Americans concerned, has made it clear that they want to see more spending to make a reality of this, if it is not just to be a paper exercise.

Then we have the non-EU NATO states which are extremely worried. The statement pushes that aside. But Turkey has expressed profound concern that it is being cut out of the planning procedures. Norway has also expressed some worries. Can the noble Baroness reassure us that those countries' worries are misplaced and that it will be the same as before for them? Is she aware—this is perhaps the most important of all the points—that, despite the strong statements, which I recognise from Madeleine Albright and others, there are many worries in the United States. She must have heard them. She is very close to these matters. Did she notice the recent quotation from the US Ambassador to NATO? He said:

"done poorly, this process can divide the transatlantic alliance, lead to decreased US engagement in European security matters and diminish European capacity to manage crises".

Those are not the words of someone who is not worried or who is totally and unconditionally supportive. There are worries.

Finally, I would say to the noble Baroness that the Secretary of State's Statement offers us some history lessons. There is much history in the role and position of the noble Baroness's party in defence matters. I do not want to go over that now. But a couple of years ago the Prime Minister said that nothing must undermine NATO. Our view is that there is a real risk that this could undermine NATO. It is regrettable that our superb Armed Forces, which the world admires, are now caught up in what looks dangerously like a political game. We need much more reassurance from the noble Baroness and from the Government before we can say that this is just more of the same and no one should worry.

My Lords, this was an unusually partisan Statement. On most occasions from these Benches we would deplore that. But on this occasion we agree that that is justified.

The reaction of the Conservatives and of the press has been—I am sorry the Minister did not repeat the word—hysterical. This is a British initiative which has been well-signalled over the past 18 months and builds on the policy of the previous government. It has been carried through by a Secretary-General of the Council who was previously the Secretary-General of NATO. The idea that this is some dreadful French plot being sprung on the British—which is how the Daily Telegraph likes to describe it—is clearly absurd.

Perhaps I may remind noble Lords that in June 1962 President Kennedy of the United States of America first called for a European pillar of NATO. In 1964, as a young Liberal, I took part in a study group in the United States on how to improve the European pillar of NATO—a short while ago. The Americans have made it entirely clear since then that they expect the Europeans to stand more on their own two feet. If we now face a Bush administration, Condoleeza Rice, one of his key advisers, has also made it clear that the Americans will reduce the number of their troops in Europe and will expect the Europeans to stand more on their own two feet.

My understanding is that British troops have been engaged in some 22 to 24 operations since 1990. In 17 of those we have operated outside of NATO command with forces from a range of other countries. Part of the origin of this initiative, as I understand the matter, is the co-operation from which British and French troops have benefited in Bosnia, which was a learning process for both sides. It was out of that that the previous Conservative government developed the Franco-British defence initiative, at a time when Michael Portillo was the Secretary of State for Defence. Indeed, a Franco-British air wing had been agreed during the term of office of the previous government. German forces were already training in Britain. That had been agreed many years previously. There was the joint Tornado training team in England and Italy. German tank crews were training in Pembrokeshire and elsewhere. There is the Dutch-British marine amphibious force. So much of this is not new.

As we understand it on these Benches, the aim of the defence initiative is to improve European capabilities; to challenge other European governments to follow the British model; and to improve our ability to work together in the field. Under most circumstances, we expect that British troops will be working with troops of other nations in the field.

Perhaps I may ask the Minister a few questions. First, how satisfied is she with the pledges which were given in this pledging conference and what are the most worrying remaining gaps? Secondly, does this imply that changes will need to be made to the treaties at Nice in order to incorporate the interim arrangements, to which the noble Lord, Lord Howell of Guildford, referred, and to bring them more within the constitutional arrangements? Lastly, is parallel progress underway in civilian crisis management and in the provision of seconded police forces for the follow up to necessary Petersberg task engagements?

My Lords, I thank both noble Lords for their responses to the Statement and for the constructive way in which they have approached it.

Perhaps I may say to both noble Lords that I repeated the Statement as it was given by my right honourable friend in another place, as is my duty in your Lordships' House. The word "hysterical" was not used in another place.

I am very pleased that the noble Lord, Lord Howell of Guildford, is in favour of a stronger European defence. That is entirely consistent with the position that has been taken by his party under the Maastricht Treaty and indeed elsewhere. The noble Lord said that he had a number of misgivings. To a certain extent, I can understand those misgivings. I believe that they were based on a number of fundamental misconceptions. We are talking here about Petersberg tasks. Those Petersberg tasks might range from humanitarian relief, which is fairly straightforward, through peace-keeping, to—as the Statement made clear—peace enforcement. Peace enforcement is likely to include a commitment to a greater number of troops.None the less, these are Petersberg tasks.

The noble Lord was worried about the costs that might be involved. The additional costs to the Ministry of Defence are expected to be over £200,000. That figure is based on the cost of additional persons for the EU military structures. But it is offset—this is an important point—against the wind-down of the WEU. Both those factors have to be taken into account. In addition, the FCO will require an establishment of six posts within the EU structures. The cost of that will be somewhere between £300,000 and £500,000. Therefore, the additional cost to the UK taxpayer should be somewhere between £500,000 and £1 million. It is important that all noble Lords understand that there will be an off-set.

The noble Lord was understandably concerned about the way in which planning procedures will be undertaken. I may be able to help him a little on that point but I cannot go into great detail. For many of the operations, the preferred option will be the Deputy Supreme Allied Commander Europe—DSACEUR—and the facilities of SHAPE—Supreme Headquarters Allied Powers Europe—will also be deployed. Planning would be done initially by SHAPE and recommendations would be made from SHAPE to the European governments. It might make recommendations about the operational commanders and how a group of forces might go into an operational position. The commander would be responsible to the European governments.

I do not think that there is anything very exceptional in that. What is proposed is not particularly startling. I do not think that many of your Lordships will find it particularly different from the accepted means of multi-national co-operation on a number of these issues. I hope that that puts some of the noble Lord's worries into context. Of course, it would not always be SHAPE. For example, for small operations—such as humanitarian operations—different planning mechanisms might be used. I am sure that your Lordships would find that entirely proper and consistent for operations that did not involve a heavy military deployment. I hope that I have dealt satisfactorily with the questions about costs and about the way in which the commander structures will work.

The noble Lord understandably raised concerns about those who are members of NATO but stand outside Europe. He referred in particular to Turkey. I can say that Turkey attended the meeting in Brussels yesterday morning. The noble Lord is quite right. Turkey has in the past expressed some concerns about these discussions. But I am happy to say that yesterday Turkey was able to commit some troops to the Headline Goal. I am not able at the moment to put this into the public arena any more than I am able—I say this to the noble Lord, Lord Wallace of Saltaire—to put into the public arena the details of what has been put forward by other European Union countries. That is because not all countries are as open about these matters as the United Kingdom; and in any event they would want to put them into the public arena first in their own countries. I hope that as soon as such information becomes publicly available in their own countries we will be able to give maximum information on what has been put forward by other countries. I am sure that your Lordships would wish to have that information. I shall do my best to ensure that it is made available to the House as soon as possible.

The noble Lord, Lord Howell of Guildford, was worried about what had been said by the US ambassador to NATO. Anything done poorly can cause trouble between nations. But it was interesting to hear the US ambassador to the EU saying yesterday:

"We strongly support the European defence force—the rapid reaction force. We think it will help and strengthen NATO".

The noble Lord has been kind enough to acknowledge what Madeleine Albright has said. He will know, because he is very experienced in these matters, that that reinforces what Strobe Talbot and Bill Cohen have said. We have had a considerable degree of support from our allies in the United States who, for a considerable time, as the noble Lord pointed out, have been stressing to the European nations that we had to do more to strengthen our position. I am happy to say that a number of European countries are not only putting more resources into their defence effort but are also reviewing that effort to ensure, as we have done with the SDR, that it is in line with modern defence needs and does not ratchet back into the old Cold War stance.

I am grateful to the noble Lord, Lord Wallace of Saltaire, for his support on the Statement. The Liberal Democrats have been very understanding of the position.

Oh!

My Lords, the Liberal Democrats have quite rightly studied the position properly and, if I may say so, I thought that the noble Lord, Lord Howell of Guildford, had also understood the position very much better than some others in his party.

We have learnt considerable lessons from Kosovo. As the Statement said, Kosovo was a wake-up call. When we look at the number of sorties undertaken by NATO in Kosovo and see the sharp contrast between the number undertaken by the United States and the number undertaken by Europe, any responsible country would have to look at what it was able to do.

I hope that I have dealt with the questions asked by the noble Lord, Lord Howell, about our contribution. We believe that it is a proportionate contribution. It is in the range of about 20 per cent of the proportions put forward. But we are a strong defence nation in Europe and we believe that that is entirely consistent with our standing in Europe. We have been very pleased to see the way in which other nations have come forward. The noble Lord was quite right on civilian crisis management. These are important issues. We have been able to get rather further ahead on them than on some of the defence issues. Our discussions are continuing. As the Statement makes clear, this is not an end of the road; it is an important step on the way.

My Lords, soldiers are supposed to advance to the sound of the guns; and so here I go over the parapet. Is the Minister aware that there are a number of us former military men who have had considerable experience over 50 years or more—one might say that one has almost lived history—of our Armed Forces serving under foreign commanders and non-national banners, inside NATO and elsewhere? Is she further aware that we do not subscribe to or share that—I hesitate to use the word, certainly not in your Lordships' House but in other places—hysterical reaction against closer European defence co-operation within NATO and indeed think it is entirely sensible for European countries, using their own national contingents, to get their act closer together to deal with specific eventualities of a limited nature and also to put them under some pressure to put their defence money where their mouth is?

This is a serious initiative which should be looked at in a positive way. I am distressed to see that it seems to have been swept up in a much wider political argument.

My Lords, I thank the noble and gallant Lord for his words. I am aware of his very great experience in these matters. As he said, on very many occasions British armed forces have served under foreign commanders. I thank him for what he said about this being an entirely sensible way forward. He said that this will put pressure on our European partners. The noble and gallant Lord has often put pressure on me and on other Ministers concerning the resources available to the Armed Forces. I agree with him. I hope that this move will put pressure on others, those who so far have not been able to come forward with increases in their defence budgets, to think again on that front.

I thank the noble and gallant Lord for saying that this is a positive initiative. He has also said that he agrees with what has been said by the current Chief of the Defence Staff, General Sir Charles Guthrie. He commented that he had never heard anyone in authority within the chain of command in this country, whether Ministers or servicemen, talk of a European army, navy or air force. This move is not so very extraordinary. Once again I thank the noble and gallant Lord for his words of welcome, given that he has been so robust in his criticisms on other occasions.

My Lords, can the noble Baroness tell the House whether the neutral countries of the European Union have taken part in any of the conversations on this matter? I refer in particular to the Republic of Ireland and Sweden. Do those countries intend to take part in this initiative? If so, under what circumstances?

My Lords, I believe that the neutral countries have taken part in the discussions. The noble Viscount will know that, on occasion, the neutral countries do subscribe troops to NATO actions. Indeed, they did so recently in the Balkans, although on that occasion Ireland did not.

I cannot tell the noble Viscount that their representatives have been present on every occasion that this matter has been discussed. We would not necessarily expect them to be. However, if there is any more detail that I can reasonably send to the noble Viscount on what measures have been discussed with the neutral countries, I shall write to him and place a copy of the letter in the Library of the House.

My Lords, on a couple of occasions my noble friend referred to peacekeeping and peacemaking activities. Can she tell the House, first, whether it is intended that this force shall have serious war-making capabilities and whether it is intended that those should be used? Secondly, can she confirm that it is not the present or future intention of Her Majesty's Government that either the deployment of British forces or the non-deployment of British forces shall at any time be subject to the decision of any organ of the European Union without the consent of the British Parliament and the British Government?

My Lords, I can give an unequivocal assurance to my noble friend: there will be no deployment or non-deployment of British forces without the express agreement of the British Prime Minister, who will be accountable to another place. I hope that that was made clear in the Statement. But I am grateful to my noble friend for giving me the opportunity to re-emphasise the point to the House.

As regards the other issues raised by my noble friend Lord Gilbert, perhaps I may explain in detail the Petersberg tasks. I know that they will be familiar to him but perhaps they will serve to bring home the point. Those tasks are of a humanitarian and rescue nature; namely, peacekeeping and tasks of combat forces in crisis management, including peacemaking. Peacemaking is an important task because it includes the separation of warring parties, conflict prevention, the evacuation of nationals and the provision of humanitarian aid. The important point to note here is that the Petersberg tasks imply a degree of conflict which can move beyond those of pure peacekeeping because they involve the separation of warring parties as well as peacemaking. Given the noble Lord's enormous experience in the Ministry of Defence, he will know far better than I that the tasks imply a greater degree of engagement in conflict than mere peacekeeping.

My Lords, does the Minister agree that the Statement which she has repeated indicates that the Government have now accepted the position put forward from these Benches over a long period; namely, that there is no contradiction between being a good Atlanticist and being a good European? Does she also accept that the proposals which have been put forward for planning had already been accepted by NATO last year at its Washington summit? At that point, the representatives went as far as to form a "Berlin plus" agreement, a series of decisions which,

"Assured EU access to NATO planning capabilities able to contribute to military planning for EU-led operations",

as well as giving us,

"The presumption of availability to the EU of pre-identified NATO capabilities".

Does not this indicate that the 19 member states of NATO have already collectively endorsed this as a way of strengthening the capacities for security in Europe?

My Lords, perhaps I may say to the noble Lord, Lord Roper, that I believe that this reflects the position of sensible parliamentarians across all three parties. The noble Lord, Lord Howell of Guildford, has demonstrated to the House today that there are extremely sensible members in all the main political parties.

The noble Lord, Lord Roper, is right to say that these proposals are based on the planning put forward in Washington. I am happy to confirm that NATO has not, as some have suggested, been wringing its hands with despair over these developments. It has been pleased to see the development of what might be described, loosely, as a European pillar of NATO. As I have said already, we are happy to take this forward. We have not yet reached an end position but we have reached an important signpost in our progress on this matter.

My Lords, I am grateful to the noble Baroness for repeating the Statement, although I must say that on occasion it sounded rather more like a party political broadcast than a ministerial Statement. However, the one point which most frightened me, but which I believe was meant to be reassuring, was that this is only one step along the road rather than the end of the road. That is what is worrying some of us a great deal. What is at the end of this road? If the establishment of this force is not the end of the road, to where does it lead? Is it leading to a political end or is it leading to a greater integration of the Armed Forces? I should be grateful if the noble Baroness could answer those questions when she comes to reply.

I think it is clear from the Statement that whichever side of the argument one is on there are clear and serious implications for the morale and effectiveness of our Armed Forces. It is no good to say that this does not affect the deployment of our Armed Forces. If such a force is ever deployed, it will increase the overstretch from which our Armed Forces already suffer. There are implications for our relationship with NATO. However that may work out and whomever one speaks to in the United States or in the Royal Regiment of Wales, it does not really tell us exactly what will be the impact on NATO.

At the very least, this has implications as regards our relationship with the United States, especially in the world of intelligence. I know that we cannot delve too deeply into the matter in your Lordships' House, but the noble Baroness will know that the implications of setting up a separate intelligence organisation within the European Union will be considerable. Furthermore, relationships with Russia are involved. President Putin has already begun to paddle in these waters, as we have seen from recent reports.

However, what is most important is this. Has anyone thought through the consequences of the expeditionary force concept, which this force will reflect? If it is to do anything at all, it will either form or be the basis of an expeditionary force activity taking place somewhere. Has anyone yet worked out how that force is to be protected, especially against missiles if its members start dabbling in areas in which there has been a proliferation of ballistic missiles? Can the noble Baroness tell us whether all these implications have been thoroughly studied? When we come to debate these matters, I hope that we shall be given rather more information about this.

In that context, I wonder whether any other noble Lords share my view? I have received a signal from the Government Front Bench to sit down. I am not going to sit down because this matter is too important. My final point is this: I am surprised that this was not made the subject of a full debate in Parliament before any action was taken. This represents a fundamental change in the deployment of our Armed Forces, with constitutional implications. I hope that the noble Baroness will use her influence with the usual channels to ensure that we can have a full debate on this in your Lordships' House at the earliest possible opportunity.

My Lords, as to the noble Lord's final point, to my certain knowledge the House has discussed this issue following Statements in relation to NATO summits and EU summits, and I have, both as a Foreign Office Minister and Defence Minister, answered a number of questions raised in a number of debates. As this Statement makes clear, this has not come as a bolt from the blue. The Government have signalled it for a very long time—certainly from the St Malo discussions at the end of 1998, which began with the Prime Minister's visit to France on that occasion. I take issue with the noble Lord's implication that this matter has been sprung on Parliament when the groundwork has been very carefully laid.

The noble Lord asked where this is all leading. He said, "The noble Baroness said that this was a step on the way, so where is this path taking us?" It is leading to better equipped European armed forces. It is leading to forces which will be able to engage where NATO decides not to. That is where it is leading. It is very clear. It is doing so because of the lessons we learnt in Kosovo and because the United States, on a number of occasions, has made clear to its European allies that it believes we should be putting more effort into our defence capability. We believe that is right, as do the other nations in Europe. That is where it is leading.

This is a step forward because we are now agreeing to it. Implementation is, of course, a quite different issue. Having now made these agreements, we have to see how they are implemented. That is the sense in which I say this is a very important step.

Our colleagues in NATO believe that this is a sensible move. On 20th November, the noble Lord, Lord Robertson, stated:

"This is simply a sensible project designed to build relevant European capabilities, all of which will be available to NATO. It is designed specifically to complement NATO and not to duplicate it or undermine it, and certainly not to replace it".

I heard a commentator on the radio this morning say, "Well, Lord Robertson would say that, wouldn't he? He used to be a Labour Minister". That is to do less than justice to the integrity of the noble Lord, Lord Robertson, as the Secretary-General of NATO. Quite rightly, he puts NATO first. Noble Lords on the Benches opposite may find that amusing, but we on these Benches take those points very seriously. I shall certainly defend the integrity of the noble Lord, Lord Robertson, in what he said.

As I said to my noble friend Lord Gilbert, it is important to remember that the tasks to be undertaken are Petersberg tasks. The noble Lord is right to say that if we are to engage in these tasks—whether as a single country or in co-operation with others—our troops must be properly equipped. That is why we have taken such pains to learn the lessons from Kosovo. We are being painstaking over what we should be doing about communication systems and painstaking over what we should be doing about our missile systems. We have taken steps to ensure that we have better equipment for our Armed Forces in the short term as well as in the long term.

I can assure the noble Lord, Lord Chalfont, that the safety of our troops is at the forefront of our minds. These issues would be the same for any expeditionary force in which the United Kingdom's Armed Forces were engaged.

My Lords—

My Lords, the Minister—

My Lords—

My Lords, I believe it is the turn of the Conservatives.

My Lords—

My Lords, perhaps I may ask the Minister—

My Lords, I suggest that we first hear the noble Lord. Lord Pearson.

My Lords, no less than three times the Minister has said that this will not be a European army. Will she perhaps comment on the remarks of no less a person than the President of the European Commission, Mr Prodi, who said recently,

"You need not call it an EU army if you do not want to. You can call it a Margaret, or you can call it a Mary-Anne. You can call it what you like, but it will be an EU army".

Does the Minister agree that there is also another view on this European initiative; that it is in truth inspired by France's jealousy of the United States—by France's unfortunate need to bite the hand that freed her in no less than two world wars? Is not that the real reason why the new force has to be capable of autonomous action from NATO, and why it will inevitably undermine NATO in due course?

Finally, what will happen if our troops are fully committed to an EU operation, lasting perhaps more than a year, and something happens in another sphere of our interest which requires those troops? Will we be able to withdraw them from the EU operation and send them to the other area, or will they remain under the command of the EU commander and subject to a qualified majority vote for the prosecution of that operation?

My Lords, the noble Lord has quoted something that he said that Mr Prodi said. There have been an awful lot of quotes put forward from an awful lot of European colleagues in the past few days. As the noble Lord will know if he is quoted in the press as often as some of us, these quotes are not always reliable. I prefer to look at the communiqué that was issued at the end of the Brussels meeting. After all, it is the authoritative voice of what was said. The communiqué states:

"This is a process without unnecessary duplication and it does not involve the establishment of a European army".

It is unequivocal; it is in the communiqué—and it is there for everyone to read.

The noble Lord made tendentious comments about what he described as France's jealousy of the United States. I shall not get involved in speculation about why any country has decided to do what it has done. I know that France—like Germany, the United Kingdom and our other major colleagues in Europe—believes that the United States is right when it says that Europe must pull its weight better over defence. We agree. We agree with the United States and we agree with our European colleagues. We agree because it is the sensible, right and proper thing to do.

The noble Lord asked what would happen if we have committed our troops and we find that we need to commit them elsewhere. What would happen anyway if we had committed our troops and another conflict arose? We would take sensible decisions in the light of the prevailing circumstances. The United Kingdom Government will take those decisions. The noble Lord may shake his head, but that is the position. The decision will be taken by a British Prime Minister answerable to a British Parliament. It would not be done by qualified majority voting. It would be a decision for the Government of this country—and it would be a sensible one.

My Lords, my noble friend will accept—

My Lords, the Companion is quite clear. We have reached 20 minutes and we must end the debate.

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report. —(Lord Bassam of Brighton.)

On Question, Motion agreed to.

moved Amendment No. 182:

Leave out Clause 115.

My Lords, I support my noble friend. I shall not repeat his arguments and propose to make one point. We are all aware that there is a powerful danger that the reputation for rectitude of our electoral arrangements is increasingly susceptible to attack. My noble friend Lord Mackay gave the example of the referendums on the Scottish and Welsh devolution proposals. I shall not venture into the arguments for and against pre-legislative and post-legislative referendums because they will not add to my point. However, in themselves they certainly open up any government who indulge in them to accusations of a kind that must undermine the reputation for neutrality of the administration of elections and referendums in this country.

As my noble friend made perfectly clear, the arrangements that the government propose in this Bill for the financing of referendums and the control of the way that they are financed will further undermine the reputation for fairness upon which consensus as to those rules must depend. When he responds, I earnestly beseech the Minister to consider whether what is now proposed will deliver yet another hammer blow to what is already a very dangerous tendency.

Because of their actions, those of us who believe that the Government effectively rigged the Welsh referendum—whether intentionally or not—are given an enormous amount of credibility when we make such an accusation. There is no doubt at all that those of us who will be fighting in referendums conducted under the rules proposed by the Government, if they are passed, will be able to say with absolute truth that the rules enabled one side to be given a huge financial advantage. For the reasons that my noble friend explained, that would apply especially in a referendum on the euro.

As the noble Lord, Lord Barnett, pointed out to the Minister in another context only yesterday, the results of elections are increasingly influenced by money. This is not a negligible affair. We are talking about the perceived probity and fairness of referendums, which, like it or lump it—I know that my noble friend Lord Mackay does not like it—are with us in some form or another for the foreseeable future. It would be doing an enormous service to the political life of this country if the Government were able to look us in the eye and say with reason, demonstrably with reason, that they are not passing a law which suggests that they are rigging the conduct of the most likely referendums within the next few years in their favour. If they do so, those of us on the receiving end of that action will be able to cry "Foul!". As we have seen from events in the United States, that does no one any good.

My Lords, there was a time when I was young and slim and eager to advance in the law. There was no one's feet at which I would rather sit than those of the noble Lord, Lord Wedderburn. I note with interest that the noble Lord is present in the Chamber this evening. I am sure that he has been considering the argument advanced by my noble friend Lord Mackay. I shall have to determine which side of the argument to follow. However, if the noble Lord, Lord Wedderburn, were to say that my noble friend's argument did not meet with his approval, I suppose that I would retreat. But my deep suspicion is that he understands very well that what my noble friend has said is a serious and important aspect of the issue now under consideration.

If the noble Lord, Lord Wedderburn, wishes to rise to dispute what I say, I should be very much minded to depart from the position taken by my noble friend. However, I have been watching the noble Lord as this argument has developed and my deep suspicion is that the intellectual integrity for which he is famed is such that he will not find it easy to dispute the argument that my noble friend Lord Mackay has advanced.

My Lords, the noble and learned Lord was once a devoted student at some of my lectures. However, he will have to do without one tonight.

My Lords, that is a very good response.

We have long known that the Official Opposition were ill at ease with the provision that the Bill makes for spending limits in referendum campaigns, although I still do not fully understand the real reasons behind their objection. However, noble Lords opposite have clearly been in two minds up until now as to what to do about the situation, just as their colleagues were in another place: should they seek to remove spending limits altogether or should they seek to ensure that the limits are aggregate limits biting on each side as a whole in a referendum campaign?

The amendments now before the House answer that question in a curious way. They clearly appear to have come down in favour of removing the spending limits for "permitted participants". I am pleased that the noble Lord has now at least agreed that it would be impossible to impose a global limit on each side in a referendum. That seems to me to be a realistic point of view to have reached. When we debated the matter on earlier occasions there seemed to be a schizophrenia in the mind of the noble Lord and one that he appeared to share, in part, with the noble Lord, Lord Lamont. However, as I understand it, the amendments of the noble Lord, Lord Lamont, will not be discussed.

I suppose that the case I have to meet in respect of these amendments is as follows. If we cannot control what each side as a whole spends, what is the point of controlling what anyone spends? That is the essence of the argument behind these amendments. In a nutshell, we believe that it is just as useful—and we would say necessary—to control what each participant can spend in a referendum campaign as it is to control what each party can spend in an election campaign. The object served in both cases is to ensure that an organisation, or an individual, does not gain a preponderant voice simply by reason of the money at its, or his, disposal; that is to say, the amount of money in the war chest. That is a useful object and I cannot see why anyone should oppose it—

My Lords, I am extremely grateful to the noble Lord for giving way. He is always most courteous at Report stage.

Let us take, for example, the euro referendum. If, let us say, the Liberal Democrats supported a "Yes" vote in such a referendum—which I suppose is at least possible—and the Government did the same, their combined funding would, therefore, be greater than that of the only party that opposed the euro; namely, my party. To use the noble Lord's argument, would that not mean that there would be a disproportionate amount of support for a "Yes" vote compared to that for a "No" vote?

My Lords, certainly that scenario is a possibility; I do not deny that. I am saying that it is better to have some control and some ability to contain the level of expenditure in a referendum of the nature that the noble Viscount, Lord Cranborne, mentioned rather than none at all. Part of the problem is that the noble Lord's assertion has been predicated on the assumption that the only referendum that is ever likely to see the light of day is a referendum on the euro. That is not necessarily the case. Although the spending limit—

My Lords, whatever the subject of the referendum, there are three major parties in this country. Unless one of them splits its money—I refer to the sums of £5 million and £5 million—to one of those fives will be attached the Liberal Democrats' £3 million. That makes £8 million as opposed to £5 million. That is not a level playing field; it is unbalanced. If the noble Lord wants it to be balanced, he is simply falling at the first fence.

My Lords, I intervene briefly before we progress too far. Questions for elucidation should be asked at Report stage. Noble Lords know well how to do that. As has already been acknowledged, my noble friend is generous in giving way. However, we all have to adhere to the rules for Report stage.

My Lords, I have not argued that we are trying to create a level playing field. What I am trying to argue is that we should try to keep a sense of balance and proportion in the way in which we view referendum campaigns. I do not argue that we can create a perfect balance. I have made that point.

Moreover, as I said, the spending limits in the Bill cannot ensure that each side spends the same amount. As I have argued, they will help to do so. They will ensure that the governing factor is the number of organisations ranged on each side and not the amount of money which any one of them, or some of them, have available.

Having put the case positively in that way, I now feel entitled to put the negative case too. What is wrong with the spending limits in the Bill? Why are the Official Opposition so opposed to them? How would the Bill be improved if they were left out? I have not heard exactly how the Official Opposition envisage that that would improve the Bill. Here I draw, with due acknowledgement, on points made by the Liberal Democrat spokesman in another place, Mr Stunell. If it is a mischief that there is no overall control of aggregate spending on each side as a whole, one would make the position worse, not better, by removing the limits that the Bill provides.

Official Opposition spokesmen seem to talk as if the limits set by the Bill are in the nature of financial allowances, or perhaps even mandatory spending targets. As we have just heard, they then count up the organisations which they imagine will be ranged on one side and conclude that one side will necessarily have the edge. They may be right or wrong about that; no one can tell. However, the alternative is to allow a single individual or organisation on one side to outspend the totality of individuals or organisations on the other simply because they happen to have more money. We say that that cannot be right. That seems to be the dividing line between the Government and the Official Opposition on this issue.

I have no hesitation in advising the House that Clause 115 and Schedule 14 should stand part of the Bill and that Amendments Nos. 182 and 186 should be rejected. That is where the argument rests. That is the difference between the two sides in the argument. It appears to me that noble Lords opposite want to give up any system of control. I do not believe that that is right. I believe that we should have a system of control. We argue that that system should be the best that we can possibly achieve in the circumstances. That is the Government's case.

My Lords, dear, dear, dear! I suppose there is one thing we must be grateful for; namely, that the noble Lord, Lord Bach, managed to prevent the Minister having to answer the question of whether £8 million is more than £5 million. That was a most unconvincing reply. The noble Lord accused me of being schizophrenic when I said that there were two options at earlier stages of the Bill and that we wanted to consider which might be preferable to governments. To base his case on that argument is weak indeed.

I am not schizophrenic. Is the Neill committee schizophrenic? Before we finally leave the issue I remind the noble Lord of what the Neill committee stated at paragraph 12.46 of its report. It stated:

"It appears to us that under these circumstances it would be impracticable to try to control campaign spending. The number of individuals and organisations involved would often be too large. The time-scale would often be too short … The administrative apparatus required would resemble one of Heath Robinson's most outlandish contraptions—and would almost certainly not work".

That is fine. Last night I think that I persuaded the Minister—because he did not answer me—that money would be spent from abroad over which the Government had absolutely no control. Here we have an attempt to impose limits which is, in my view, flawed—the Minister does not think that it is flawed — because it would not be equal. If the object is to achieve equality of arms, and the Government's proposals do not achieve that, surely the Government have failed in that regard. The Minister's answer seemed to be that the Government had failed to do that but wanted to place some controls on individual participants. The fact that—this is beginning to resemble the language used on the previous Bill we discussed—the balance may be heavily in favour of one side and not in favour of the other side at all is something that the Government will leave to one side.

My Lords, I am not saying that we can achieve equality of arms. I have not argued that this evening. I am saying that we need to have some controls on the arms race. I accept that there is a difference there, but I argue that we need to have at least some controls. That is the Government's position.

My Lords, but the other side of the argument on election spending is that we should have equality of arms between the two main parties. The Conservative Party and the Labour Party should have the same limits. It seems to me that equality of arms involves having the same limits. However, I leave that point because clearly the Minister has not even begun to address it. It is rather like sailing on the ocean in the fog in that one does not see the ship that passes five miles away, let alone worry about it. The Minister seems to take that view.

The point is that these limits could not be implemented. The Minister has not addressed the point that he made last night. It appears that, for the Minister, last night's proceedings did not take place. However, they did take place. I know that because I was present until a late hour. I have read the proceedings in Hansard. The Minister said rather amusingly that I was in danger of becoming an ace loophole spotter, a sort of green ink merchant of the loophole territory. That suggested to me that I had found a fairly large loophole in the Bill. He did not deny that for a minute.

Here we have a situation where the Minister is saying, "This is the best we can do and we think that you should accept it". If it cannot be implemented in reality, we should not pass legislation. This matter is important. I shall not attempt to argue my case further because I shall not engage the Minister in any discussion. He will simply stick by his brief. I am tempted to try what I used to call the "Hollis trick" which is to lean over and say to the Minister involved, "You are the Minister. They are the officials. Forget that the brief states 'Reject' and change that to 'Accept' if you think that the argument is worth it". I do not even think that that will work with the Minister. Therefore I seek the opinion of the House.

moved Amendment No. 188:

Page 84, line 33, at end insert —

("() Notwithstanding anything in Schedule 15 or Part IV, a permitted participant shall be prohibited fromaccepting during a referendum period any donation from a permissible donor of the type specified in section 52(2)(c).").

My Lords, before the noble Lord sits down—I know that he has, but let us assume that metaphorically he is still on his feet—I should like to put one point to him. I listened to him with great interest. His complaint is not that the Labour Party might donate money to the Liberal Party but that the Liberal Party would not accept money from his party if he wanted to give some. The noble Lord seems to assume that there is a permanent alliance between the Liberals over there and the Labour Party over here and that we should be treated as one party. On the voting record of the past Session, that is not axiomatic.

My Lords, I think that I probably now have to interrupt the noble Lord's speech before he sits down. If the Liberal Party and the Conservative Party were on the same side in a referendum and the Labour Party were on the opposite side, the Bill would allow the same scenario. Even in those circumstances, it would not be fair.

My Lords, when I attended school dances, I used to look enviously at the prettiest girl in the room, who sat there smugly knowing full well that all the boys wanted to dance with her. I am beginning to feel like that girl this evening.

My Lords, will the Minister confirm that, as the Bill stands, the Labour Party could give money to parties with which it is normally at loggerheads, such as the Scottish nationalists and the Welsh nationalists, for the specific purpose of winning a referendum vote on the euro?

My Lords, the noble Lord, Lord Mackay, has described his amendment perfectly, so I shall not repeat its intent. His particular concern is that, in addition to spending up to its own limit, the Labour Party might contribute to another political party's campaign. I have been in the Labour Party for 20 years or so. I do not have the longest membership of the Labour Party, but 20 years is not a short time. I have been involved in some pretty hairy debates in that time. I remember the ghastly years when we had the militant tendency in our midst I also remember some rather more halcyon years. I cannot remember any Labour Party general management committee or branch meeting debating the merest possibility that we mightwant to make a donation to another political party. I have heard some pretty weird debates in the Labour Party during that time, as well as some interesting and exciting ones, but I have never heard anyone argue that we might want to give money to the Liberals. That would have been a very strange argument. I am puzzled by the noble Lord's attempt to tie us in with our friends on the Liberal Democrat Benches at this stage in our development as a political party. Technically the noble Lord, Lord Monson, is right, but practically what he suggests is a non-runner.

I do not like to say so, but the noble Lord, Lord Mackay, seems to be having some good fun with his amendment and making a slightly mischievous point. The amendment emerged because he did not seem to understand earlier in our debates that some of us in the Labour Party could also be members of the Co-operative Party. I have two party cards. One tells me that I am a member of the Co-operative Party and the other tells me that I am a member of the Labour Party. That is the eventuality that the Bill permits. It is not about trying to top up another party with extra resources in the event of a referendum on the euro. The noble Lord needs to be disabused of that.

We have had the argument before. I am not convinced that the noble Lord is being entirely serious. Technicallyhe is right that there is a possibility, but in reality it will not happen.

My Lords, I was interested to see the Minister brandish membership cards for the Labour Party and the Co-operative Party. This is the Minister who, about 30 minutes ago, accused me of being schizophrenic.

My Lords, the two are entirely compatible.

My Lords, I am glad about that.

This has been an interesting debate. The noble Lord has often said at the end of debates that the point that I have made is right but that it is so theoretical that it would not happen. In my view, to say, "Yes, there is a loophole; yes, there is a way round it; yes, there is a way through it. But don't worry, it is only theoretical", is an extraordinarily unsatisfactory way to leave legislation. Perhaps I may suggest to the noble Lord that he talks to some of his colleagues on the Treasury team. They will tell him that they spend most of their waking hours trying to ensure that even the most theoretical loophole in finance legislation has been closed; otherwise, a whole army of accountants will lead a whole army of people through that loophole. That is true in relation to finance legislation and it is also true in relation to all other legislation.

This is not a satisfactory position. However, I shall not divide the House on this amendment. I say simply that I shall take it as a statement on behalf of the Labour Party that there is no circumstance under which it would pass money to the Liberal Democrat Party. That is what the Minister has just said. I shall rest my case on that if at any time in the future an attempt is made to do what I have theoretically suggested is possible. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 189 not moved.]

moved Amendments Nos. 190 and 191:

Page 187, line 25, leave out ("(2)(d)") and insert ("(1)(d)").

Page 187, line 27, leave out ("(2)(e)") and insert ("(1)(e)").

moved Amendments Nos. 193 and 194:

Page 189, leave out lines 38 to 47.

Page 189, line 47, at end insert —

("(2A) For the purposes of this Schedule, any relevant donation received by a permitted participant which is an exempt trust donation shall be regarded as a relevant donation received by the permitted participant from a permissible donor.

(2B) But, for the purposes of this Schedule, any relevant donation received by a permitted participant from a trustee of any property (in his capacity as such) which is not —

(a) an exempt trust donation, or

(b) a relevant donation transmitted by the trustee to the permitted participant on behalf of beneficiaries under the trust who are —

(i) persons who at the time of its receipt by the permitted participant are permissible donors falling within section 52(2), or

(ii) the members of an unincorporated association which at that time is such a permissible donor,

shall be regarded as a relevant donation received by the permitted participant from a person who is not such a permissible donor.").

moved Amendment No. 195:

Page 190, line 6, leave out ("not less") and insert ("more").

moved Amendment No. 196:

Page 191, line 16, leave out ("(2) to (10)").

moved Amendment No. 198:

Page 85, line 16, leave out ("and") and insert ("or").