Thursday, 8th November 2001.

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

3.8 p.m.

3.17 p.m.

3.25 p.m.

3.30 p.m.

Bill read a third time.

Clause 4 [ When title must be registered]:

The noble Baroness said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 2 to 8 and 10 to 13. I thank the Minister and her Bill team, together with the Land Registry, for taking the time to consider in some detail with us on these Benches a number of points which were unresolved to our satisfaction on Report.

I turn to the amendments. After much discussion and thought we have decided to revisit the term of leases that must be registered. It was raised both in Committee and on Report. The minimum term of lease that currently must be registered is 21 years. The Bill as currently drafted will reduce the term to seven years. It is our view that, in consideration of the adjustment required and the practical implications for both the Land Registry and for conveyancers, the Government should rethink that sharp reduction and strike a balance at 14 years, particularly given the contemporaneous introduction of the welcome feat of electronic conveyancing.

Much has been said by the Minister about the Land Registry's ability to deliver. We know from discussions that that confidence is shared by representatives of the Land Registry. However, we do not share that degree of confidence, given the reality that almost all new electronic systems of size—particularly of this magnitude—endure setbacks. Often they need readjustment and a rethink as the systems develop.

Therefore, limiting the number of leases which must be registered to those with a term of 14 years or more allows a more realistic chance for the Land Registry to implement electronic conveyancing and for conveyancers to adjust to it with minimal disruption and, it is to be hoped, a good deal of success.

It is not our intention to be intransigent, nor inflexible. We can envisage, once the electronic system is working satisfactorily and the conveyancing world has adjusted to the change, reducing the term significantly. That said, it would be remiss of me to ignore those reasons in principle for limiting the number of leases which will have to be registered to no good purpose. After all, registration is carried out at the tenant's expense. He pays both the Land Registry fees and the professional fees. Some of the leases in question will be of residential premises. That will therefore add to the cost of home ownership.

The majority will probably be of business premises. That cost will become an additional overhead which adds nothing to the profitability or productivity of a business. It is yet another burden, particularly on small businesses.

The Minister has informed us that the business community favours the proposed seven years. I must respond by saying that those in the business community whom I have contacted and spoken to within the past 24 hours, find that hard to fathom. Financial transparency of commercial transactions is suggested by the Government as a reason. However, I have yet to meet a businessman or woman, at least not one who remains in business, who is not capable and who does not make it a priority to know the commercial property marketplace. They do not need the helping hand of the Land Registry for that.

We have laboured this point at each stage of the Bill. I make no apology for that. It is an issue that matters very much to a great many people. I urge the Government to reconsider their position. I beg to move.

3.41 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 82; Not-Contents, 132.

Resolved in the negative, and amendment disagreed to accordingly.

3.52 p.m.

[ Amendment No. 2 not moved. ]

Clause 15 [ Right to lodge]:

[ Amendment No. 3 not moved. ]

Clause 27 [ Dispositions required to be registered]:

[ Amendment No. 4 not moved. ]

Clause 80 [ Compulsory registration of grants out of demesne land]:

[ Amendment No. 5 not moved.]

Clause 82 [ Escheat etc]:

The noble Baroness said: My Lords, in moving Amendment No. 6, I shall speak also to Amendments Nos. 15 and 17 to 20. They are all drafting amendments.

Amendments Nos. 6 and 15 correct Clause 82 and paragraph 6 of Schedule 6 respectively. The intention is that the rules to be made under Clause 82(1) may provide for determination of a freehold estate to be dependent on the meeting of registration requirements rather than for the effect of determination to be so dependent. The remaining four government amendments are of greater substance and bring the procedures for restraint orders in four criminal statutes into line with the Bill.

Where a restraint order is made under the Criminal Justice Act 1988, the Drug Trafficking Act 1994, the Terrorism Act 2000 or the International Criminal Courts Act 2001, and it affects registered land, it can currently be protected by means of a caution against dealings or, if the situation warrants, an inhibition. The Bill abolishes cautions against dealings and inhibitions. As restraint orders under the statutes affected prohibit dealings with the land, the appropriate mechanism under the Bill will be a restriction. I beg to move.

On Question, amendment agreed to.

Clause 91 [ Electronic dispositions: formalities]:

The noble Baroness said: My Lords, the amendment is designed to encourage the Minister to reassure conveyancers of their position in regard to electronic signatures where the signature is misused.

The system needs to be secure to retain the confidence not only of the public in their house-buying processes but of commercial enterprises and inward investors buying factories and offices in England and Wales. Therefore, individuals, firms and companies should not be liable where authority was not given.

There are no available secure operating systems for personal computers, and the security risks to which they are vulnerable are notorious. The risk of surreptitious copying of security information from a personal computer, or its subversion to carry out transactions other than those apparent to, and intended by, the user, are risks which firms of solicitors are in no position either to eliminate or to bear.

For these reasons, we would regard it as unacceptable for conveyancers to carry the risk of their electronic signature keys being obtained and misused by third parties. The use of presumptions in statutory terms and their contractual equivalents should, in our view, be ruled out by clear statutory language, as we have proposed, the effect of which should be that it is for the relying party to prove that a disputed signature was made by, or with the authority of, the purported signatory.

If technology is developed which can effectively eliminate the risk of the user being impersonated, then relying parties will find their burden of proof easy to discharge. We believe that currently available technology is very far from succeeding in this objective, even having regard to proposals for the use of smart cards or biometric identifiers. Relying parties face real risks in accepting electronic signatures, which may amount to undetectable forgeries, but it would be wrong as a matter of policy to allow them to solve the problem by transferring the risk to purported signatories.

Where relying parties are major institutions, such as the Land Registry, other government agencies or financial institutions, they are far better placed than firms of solicitors and licensed conveyancers to promote the development of technology to eliminate the risks. That is a further reason for ensuring that they continue to carry those risks.

In essence, will the Government reassure us today that, in the event there is a mistake on the Land Registry as a result of the misuse of an electronic signature, the Land Registry will indemnify the solicitor or licensed conveyancer against the losses incurred as a result of that mistake, and that the right to recourse will not be pursued by the Land Registry against the solicitor or licensed conveyancer concerned unless they are at fault? Further, can the Minister confirm that the onus of proof would be on the Land Registry to show fault? I beg to move.

Amendment, by leave, withdrawn.

[ Amendment No. 8 not moved.]

4 p.m.

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 14.

These amendments were debated at some length in Committee and again on Report. Again, after much thought and discussion, we want to urge the Minister to reconsider this point.

A person in actual occupation of land who possesses an interest under a trust of land is entitled by virtue of his occupation to protection in respect of that interest. Paragraph 2 of Schedule 1 and paragraph 2(a) of Schedule 3 withhold that protection if the person in actual occupation is entitled to an interest under a strict settlement. When we moved the amendment in Committee and on Report, we saw no justification for the discriminatory treatment of the beneficiary under the strict settlement, and we see none now.

We accept that under the existing legislation interests under strict settlements do not constitute overriding interests. But, as the Law Commission points out in paragraph 2.69 of its Third Report on Land Registration of 1987, the distinction in the treatment of beneficiaries under strict settlements and beneficiaries under trusts for sale—now trusts of land—was probably unintended and was in principle unjustifiable. In the recent consultative document (at paragraph 5.63) the Law Commission and the Land Registry both "readily accept" that rights under strict settlement should be capable of existing as overriding interests. We agree wholeheartedly with that view.

As I said on Report, there is a further important consideration to which the Law Commission adverts in its 1987 report. The strict settlement was the classical type of landed settlement designed to preserve family estates from generation to generation, and in this context the need to protect the beneficial interest of persons in actual occupation will seldom, if ever, arise.

However, one of the consequences of the 1925 legislation—one that was not appreciated at the time—has been the unintentional and informal creation of strict settlements in circumstances where the machinery of the Settled Land Act 1925 is inappropriate and often not properly implemented. It is in this context that the exclusion of beneficiaries under strict settlements who are in actual occupation of land is capable of operating unjustly.

I make no apology for adopting an example similar to the one that I used on Report. A widow entitled to a life interest in the former matrimonial home under the will of her husband will be entitled to protection if in actual occupation only if the property was subject to a "trust for sale". In the absence of this magic formula—which may well have been omitted in a home-made or informal will—the widow will be entitled to no protection. When she is evicted, it will be cold comfort to her to know that she is one of the "comparatively few people" who will be affected by the abandonment of the Law Commission's recommendation to extend the protection to persons in her position. The fact that a widow under a strict settlement unintentionally created by a home-made will is one of a diminishing band is not a good reason for depriving her of the protection that the law accords to someone with almost identical rights under a trust of land.

At the risk of detaining the House further, perhaps I may offer a second example to amplify the point. A man of modest means whose main asset is an ex-council house bought under the right-to-buy legislation makes a home-made will stating: "I will give my house to my wife for her lifetime and after her death to my son and I appoint my son my executor". He dies before 1997, so there is an accidental strict settlement, and the son, without legal advice, and therefore without the error being spotted, takes a grant of probate and gets himself registered as proprietor without any restriction on his powers of disposition being entered. After the new land registration legislation comes into force, the son, living with his mother following a divorce, mortgages the property for an advance to start up a business. He tells the bank, "My father left me the house, but of course I let my mother stay there", and the bank accepts that—unwisely perhaps, but such things happen.

Let us suppose that the son's business then goes bust, as so often happens, and the bank seeks possession with a view to selling the property. The mother would have been safe if the land had been held on trust for sale/trust of land, but as the Bill stands she has no defence to the possession claim, because her interest is under a Settled Land Act settlement, and her occupation of the property does not suffice to make it binding on the bank. A mortgage is more likely to create a serious problem than a sale, because even if the mother is not actually consulted on a proposal to sell, she will find out about it on completion and be able to do something then; whereas a mortgage may well not come to light until after the money has been lost and/or the son has absconded. I beg to move.

4.12 p.m.

On Question, Whether the said amendment (No. 9) shall be agreed to?

Their Lordships divided: Contents, 77; Not-Contents, 112.

Resolved in the negative, and amendment disagreed to accordingly.

4.22 p.m.

Schedule 2 [ Registrable dispositions: registration requirements]:

[ Amendments Nos. 10 to 12 not moved.]

Schedule 3 [ Unregistered interests which override registered dispositions]:

[ Amendments Nos. 13 and 14 not moved.]

Schedule 6 [ Registration of adverse possessor]:

On Question, amendment agreed to.

The noble Lord said: My Lords, the point I am making was, like some of the earlier ones, raised in Committee and again on Report. It was discussed again at a meeting with the noble Baroness, Lady Scotland, yesterday which I attended. I am afraid that that meeting convinced me more than ever that the Government had got this issue wrong. Mr Charles Harpum, the former Law Commissioner who was responsible for the Bill, is almost infallible on these issues. However, I believe that on this particular point even he, like Homer, has for once nodded.

Let us assume that the owner of a house—let us call him Mr X—has a garden at the bottom of which there is a patch of derelict land. It lies derelict for some time and Mr X thinks that it would make a nice addition to his garden. Therefore, he takes it over. He knows that it is not his but no one else claims it. He plants up the land and after a few years he thinks that it would be nice to own it.

Under the existing law, Mr X has the right to be registered as the owner of that formerly derelict land which he has incorporated into his garden if he has been in unchallenged adverse possession of it for 12 years. Under the existing law there is one exception to that situation; that is, where there is a trust of land. Under the present law that is quite appropriate as the person who owns the house to which the derelict land is properly attached may be a life beneficiary who perhaps does not even know that the land is his and does not want to do anything with it anyway and cannot be bothered to challenge the matter. Therefore, he takes no steps to end the adverse possession.

Equally, the trustees, who are the legal owners of the formerly derelict land, may well not know of adverse possession of the derelict land by Mr X as they have no reason to look at the land and find out whether anyone has trespassed on it. In those circumstances I can see that it is unfair that a future beneficiary under the trust should lose the derelict land because of the failure of an earlier beneficiary to take action.

However, under the Bill, the situation has now changed. Under the Bill, if X wants to get on the register as owner of the derelict land, he must give notice to the trustees. But he gets on to the register only if they fail to take action within two years, so that there can be no adverse possession against land which is owned by trustees without the knowledge of the trustees and without giving them an opportunity to challenge the claim by the person in possession. However, if paragraph 12 of Schedule 6 stands, the adverse possession may be excluded for a period of 80 years or more as trusts can and do last a long time. Indeed, in the case of a few statutory entails, they may last for ever. There is no reason that I can see why adverse possession should be deferred for a very long time when the trustee must be given notice of any claim by the adverse possessor. If the trustees are given notice and do not respond, and if paragraph 12 is allowed to stand, a difficult situation will arise. Does the Land Registry have to investigate the evidence of the beneficial interests before admitting the trespasser, Mr X, to the register, or does Mr X get registered only to find that the registration is a mistake and it is rectified against him simply because the property is held on trust?

It was suggested in the discussion yesterday that the trustees might fail to oppose the application but might do so without being negligent or, alternatively, might be unable to pay damages to their beneficiary for failing to do their duty to oppose the application for registration. I do not believe that is an adequate excuse. There are extremely few cases where that will apply.

In Committee the noble Baroness, Lady Scotland, recounted what might be described as a "sob story" based on a child beneficiary who lost out because his or her mother, who was also the trustee of the estate that owns the asset, suffered from a severe mental breakdown. However, I think we are agreed that that particular story will not help the situation as such circumstances would be covered perfectly adequately by paragraph 8 of Schedule 6 which prevents adverse possession being claimed against a legal owner who is under a disability.

Of course, adverse possession is not something to be encouraged, but I believe that paragraph 12 creates an unjustifiable anomaly. In the light of the change in the law of adverse possession in the Bill, which will perfectly properly make adverse possession more difficult to achieve, I can see no possible logical reason why the right to acquire title against the legal owner should depend on the nature of the beneficial interests on which a legal owner holds a property.

I should say in conclusion that those who are most likely to benefit from paragraph 12 are the owners of large landed estates, because it is they who most often find that the property is held in trusts. I beg to move.

Amendment, by leave, withdrawn.

Schedule 11 [ Minor and consequential amendments]:

On Question, amendments agreed to.

An amendment (privilege) made.

On Question, Bill passed, and sent to the Commons.

European Communities (Definition of Treaties) (Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States and the European Community and its Member States (The Cotonou Agreement)) Order 2001

4.35 p.m.

The noble Baroness said: My Lords, I beg to move that the draft European Communities (Definition of Treaties) (Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States and the European Community and its Member States (The Cotonou Agreement)) Order 2001, which was laid before this house on 15th October 2001, be approved.

The European Community, as the world's largest multilateral grant provider, the world's largest single market and the main trading partner of most developing countries, can potentially make a huge contribution to eradicating global poverty. In the past, the EC has not fulfilled that potential, but the new Cotonou agreement between the European Union and the countries of Africa, the Caribbean and the Pacific—the ACP—is a landmark.

The EU's negotiating mandate for Cotonou was agreed during the British EU presidency in 1998. Negotiations with the ACP started in the same year and were concluded in 2000. Negotiations were hard, but the Government have been successful in ensuring that the Cotonou agreement is a good agreement for the ACP. The main points of the agreement are: an over-riding objective of poverty elimination; improved and simplified development assistance under the European Development Fund; good governance underpinning the new agreement and the possibility of taking action in cases of severe corruption; a new trade deal, which maximises ACP access to the EU market while promoting those countries' gradual integration into the global economy; and, in exchange for these improvements, an ample replenishment of the EDF.

The trade aspects are important because, in many cases, the impact of the EU's trade relations exceeds that of its development assistance. Under Cotonou, the ACP's current preferential arrangements will be maintained until 2008, after which new WTO-compatible arrangements will come into effect. These will be free trade agreements between groups of ACP countries and the EU. However, to allow ACP countries time to adjust, fully reciprocal free trade would not be expected until up to 20 years from now.

One of the Government's main concerns in the negotiations was those countries that will not be able to join free trade areas in 2008. Here the Government secured two important objectives. First, least developed countries will benefit from the commitment to allow duty free access for essentially all their products. This has now been implemented with the "Everything But Arms" decision this year. Secondly, there is a safety net for other developing countries, with the EU undertaking to do what it can to provide a new, WTO-compatible trading framework with benefits equivalent to Lomé.

While the improvements to the Community's development assistance under Cotonou are welcome, they need to be accompanied by substantial reform. The Commission has started to tackle many of the institutional weaknesses of the past. Since Cotonou was signed last year some important improvements have been made. The challenge now is to ensure that the reforms are fully implemented, while also continuing to press for wider positive change.

Together with the Commission reforms, Cotonou is an important step towards ensuring that the European Community can meet its potential contribution to the millennium development goals. I therefore commend the order to the House.

Moved, That the draft order laid before the House on 15th October be approved [ 6th Report from the Joint Committee].—( Baroness Amos.)

4.45 p.m.

On Question, Motion agreed to.

4.51 p.m.

The noble Earl said: My Lords, there are two Motions on the Order Paper—one Motion to resolve and one Prayer to annul the regulations. I hasten to reassure the House that I propose to make only one speech—unless the Minister positively wants more.

E.M. Forster was quite right: it is the tragedy of life that one gets what one wants. However, for the moment, I propose to make only one speech.

The regulations introduce compulsory work-focused interviews for those who claim incapacity benefit and several other medical-related benefits. I shall deal first with the Motion, because it deals with a limited point and is simple and, I hope, clear. It addresses regulation 13(h). That regulation sets out what shall be taken as good cause for not attending a work-focused interview. Properly, the regulations provide for attending a funeral being good cause for not attending an interview. I propose to add, after funeral, the words "or death bed".

That is not a fanciful example; it is based on an actual case discovered by the National Association of Citizens Advice Bureaux and included in its report, "Benefits and Work", published by Janet Albeson in 1997. The case concerned a woman whose husband was dying of a brain haemorrhage. She spent a week in hospital attending his death bed and was deprived of jobseeker's allowance on the grounds that she was not actively seeking work because she had not made a job application during that period. I am not especially surprised that she had not.

I do not believe that that was the intention behind the legislation. I do not believe that it is the intention of this Government. I do not believe that it was the intention of their predecessors, Mr Portillo and Mr Lilley, who introduced the Jobseekers Act 1995. I am open to correction, but I believe that that is a classic case of the law of unintended consequences. In that case, it led to a particularly harsh application, which I hope will not happen again.

When the report was published, the case was still subject to appeal. I have not been able to discover what happened since, but, as the Minister well knows, one loses benefit pending appeal. As one cannot hang one's stomach on a sky-hook, one suffers considerable hardship in the meantime. This is a case in which the Government could, without any loss of face—without even any change in policy—clarify their intention so as to avoid such hardship in future.

If the present trend towards ever more secondary legislation continues, it will be necessary to deal with the question of how we deal with the one regulation that is not right among a group of others that are. The Motion is non-fatal: were it to be carried in a Division, it would not force the Government to do anything. However, I hope that the Government see fit to take the opportunity, which I offer them, to change something that has produced an injustice that I am convinced that they did not intend.

The regulations give rise to wider issues. They have a good objective: to help people with disabilities into work where there is work that suits them. That objective is shared in all quarters of the House, but the Government are pursuing it with a wrong diagnosis and inappropriate means.

Discussing these regulations in another place, Mr. Alistair Darling said:

"The total case load of incapacity benefit is far too high".— [Official Report, Commons, 25/10/01; col. 473.]

I have given the Minister's office notice—slightly belatedly, for which I apologise—that I should like to know: what is Mr. Darling's evidence for that proposition? As far as I can see, that is a matter of hypothesis.

I suspect that the answer I shall receive will be, once again, a reference to how many people were referred to incapacity benefit before the 1995 Act. If I receive that answer, first, that is a long time ago. Many of those people may not now be of working age.

Secondly—this is important for the whole of our discussion—we need to understand that the link between illness and unemployment is two way. Unemployment may well lead to illness as well as being a consequence of illness. That is fairly well universally medically accepted. It was originally proposed by the Black report and sustained by the Acheson report and a detailed analysis of unemployment and illness by constituency. The fact that constituencies with the highest unemployment have the most incapacity benefit may be perfectly well be evidence that despair is not good for health.

We are all familiar with the phenomenon of an animal that pines when given no hope. I am not certain that human beings can claim to be any different. If the Secretary of State has any good reason for knowing something different, I should like to know it. The Secretary of State talks about history lessons, and says that if we are to have history lessons, let them be complete. I agree. The medical evidence should be included in that.

The regulations will have the wrong effect: they will not get more people into work; they will not help people find work that they can do. If we consider what has happened under ONE—what used, in far-off days, to be called the single gateway—those who have attended compulsory interviews are less likely to be in work than those who have not. That is the finding of the Department of Social Security's research report No. 126. The department comments that that finding is not easy to explain. I hope that I can help. The finding is confirmed by the new deal for lone parents: again, those who have attended the compulsory interview are less likely to be in work than those who have not. We are dealing here with the effect of fear, which is a genuine medical phenomenon.

Several conditions that result in people receiving incapacity benefit are objectively exacerbated by fear. Mental illness is frequently one; back pain is another; asthma is a third and irritable bowel and similar disorders are a fourth. If we make people frightened—we underestimate at our peril the extent to which contact with a bureaucracy bearing a big stick is likely to frighten claimants—we may worsen their health. Getting people with medical disadvantages to do what they are capable of doing depends heavily on making them feel safe.

A long time ago, when my wife had had an operation on her knee, she was on crutches for two weeks. On the day on which she came off crutches, the hospital tested her, and asked her to walk along a straight line. The staff put on an expression of great alarm and said, "Something's wrong. You're not limping". When challenged, they explained that almost everyone who came off crutches limped out of habit because they were afraid of the risk of doing otherwise. That was a case where fear was not present. If we want to get more people with disabilities into work, we need to produce more cases such as that where fear is not present. In my opinion, compulsory interviews are approaching the matter in exactly the wrong way.

The Minister will say, quite rightly, that home visits are available for those who find difficulty in going to a place to be tested. However, I agree with the remark made by Mrs Browning in another place that for many people, especially elderly people, home visits may be traumatic. In fact, my wife is dealing with one such case at the moment. It concerns a lady who will not let anyone into her house because she is not fit to clean it, and she dare not let anyone see what has happened to the house as a result. Consequently, all attempts at help must take place by telephone and that produces a great deal of extra work. I do not believe that that case is unique.

The second reason why I believe that this is a mistaken approach is that it is a mistaken test. The Minister knows that the test for incapacity benefit works so badly that more people who are found unfit for work than are found fit for work actually obtain work. NACAB's report on the matter, An Unfit Test, is entirely to the point.

When the test is conducted by the Government—that is, by the Benefits Agency Medical Service—rather than by the applicant's own doctor, there is a genuine possibility that there will be a conflict of interest. Before the Minister denies that, I shall ask her whether she can give me a categoric assurance that those who conduct the tests will not be subject to any targets whatever as to the number of people whom they find unfit for benefit and therefore fit for work.

There are also considerable administrative problems in relation to the conduct of the test. The noble Lord, Lord Ashley of Stoke, was going to draw attention to that last Tuesday but he had other fish to fry. I know that the noble Lord has many fish to fry, but I hope that he will return to that fish because it needs frying. A great deal of trouble is caused in trying to carry out tests to a time limit. A great deal of trouble is also caused by doctors demanding fees for medical opinion from people on benefits. Those matters need to be put right before any more is done.

In addition, are there jobs for those who are threatened with loss of benefit? Some of them do not get jobs because they face systematic discrimination. Others do not get them because, just as there are lands which God forgot, so there are lands which Mammon forgot. A good many of the people who claim incapacity benefit live in those lands. Mr Dennis Skinner in another place said—I paraphrase—that these provisions may work in some places but it is impossible to make them work here. That applies to many of the cases in which most people are on incapacity benefit. It brings us back to the link between unemployment and illness.

I turn to my final point. Since yesterday, secondary legislation has become even more topical than usual. We are threatened with the possibility of being able to delay such legislation only for three months. But the trouble is that, if that comes about, the Government will be put under a constant temptation to bring in more and more provisions by secondary rather than by primary legislation. Originally we expected these regulations to be dealt with by primary legislation, but that did not happen. There is no clear dividing line about what is fit for secondary and what is fit for primary legislation.

Nothing that I say should for one moment be taken to indicate any softening of my Benches' hostility to this proposal or of our determination to fight it to the very last gasp. However, should it go through under the Parliament Act, we would need as a companion to it legislation along the lines of the Donoughmore report of 1932, setting out limits as to what can be done by secondary legislation and what must require primary legislation. Whenever those limits are brought in, they must include depriving people of benefit.

I am opposed to capital punishment. It is my opinion that depriving people totally of the means of subsistence is capable of becoming a form of capital punishment by the back door. I know that the Minister regards that opinion as hysterical, absurd and erroneous. It is possible that she is right. When she gives me one scrap of evidence in favour of her view to that effect, I shall give it every possible consideration. She has not yet done so. Meanwhile, I believe that we are facing a situation in which the power of secondary legislation is increasing, has increased and should be diminished. I beg to move.

Moved, That this House invites Her Majesty's Government to withdraw the regulations (S.I. 2001/ 3210) laid before the House on 26th September and to lay amended regulations which insert the words "or death bed" after the word "funeral" in Regulation 13(h).—( Earl Russell.)

5 p.m.

5.15 p.m.

5.30 p.m.

5.52 p.m.

5.52 p.m.

The noble and learned Lord said: My Lords, it may be for the convenience of the House if speak at the same time to the other three orders standing in my name: the Northern Ireland Act 2000 (Restoration of Devolved Government) Order 2001, which was laid before the House on 13th August 2001; the Northern Ireland Act 2000 (Suspension of Devolved Government) (No. 2) Order 2001, which was laid before the House on 26th September; and the Northern Ireland Act 2000 (Restoration of Devolved Government) (No. 2) Order 2001, which was also laid before the House on 26th September.

The political context is well known to your Lordships. The then First Minister, the right honourable David Trimble, resigned on 1st July. That created automatically a deadline of 12th August. On the afternoon of Friday 10th August the Secretary of State announced that he would be signing an order to suspend devolution from midnight that night. That order was the Northern Ireland Act 2000 (Suspension of Devolved Government) Order 2001, which is the first order standing in my name today. The Secretary of State then restored the devolved institutions after 24 hours by signing the second order.

The deadline was then reset for Saturday 22nd September. There were various developments and difficulties with which your Lordships are well familiar. The Secretary of State, after appropriate consultations, announced on 21st September that he was again bringing about a suspension by means of the third order. Devolution was restored 24 hours later by means of the fourth order.

That is the historical background to these orders. I have taken them briefly because it is self-evident that your Lordships know what has happened. More recently, as your Lordships know, Mr Trimble and Mr Durkan have been elected as First Minister and Deputy First Minister. The up-to-date material that I have is that the Reverend Dr Paisley returned to court this morning in Belfast and has been given leave to take out judicial review, but leave only on the basis that he has an arguable case. I commend the order to the House.

Moved, That the order laid before the House on 13th August be approved [ 5th Report from the Joint Committee].—( Lord Williams of Mostyn.)

On Question, Motion agreed to.

5.52 p.m.

Moved, That the order laid before the House on 13th August be approved [ 5th Report from the Joint Committee].—( Lord Williams of Mostyn.)

On Question, Motion agreed to.

Moved, That the order laid before the House on 26th September be approved [ 5th Report from the Joint Committee].—( Lord Williams of Mostyn.)

On Question, Motion agreed to.

Moved, That the order laid before the House on 26th September be approved [ 5th Report from the Joint Committee].—( Lord Williams of Mostyn.)

On Question, Motion agreed to.

5.57 p.m.

The noble Lord said: My Lords, perhaps I may remind the House that it is only 30 or 40 years since disabled people were treated as objects of pity and charity, denied rights and patronisingly treated as a regretful necessity.

Since then there have been major achievements with an array of benefits, the establishment of many rights and new public attitudes towards them. Above all, there is a strong sense of the developing independence of disabled people themselves, stemming, in large part, from these advances. I regard that as of tremendous importance.

The Government deserve great credit for the many measures they have taken to help disabled people, especially in the benefits field and in the setting up of the Disability Rights Task Force and the Disability Rights Commission. Under the chairmanship of Bert Massie, the commission has been a leading advocate of new legislation. Its parliamentary affairs manager, Agnes Fletcher, has been particularly helpful.

The changes in both provision and attitudes brought about by these achievements are now part of the fabric of our society. But, as we begin the new century, this is the time to stand back and appraise the extent of the advances and assess what more needs to be done. Key questions to be asked are: to what extent have disabled people got genuine independence; to what extent are they free from discrimination; how different are their opportunities compared with those for non-disabled people; have they got equal chances of a job with others; and, can they be confident that they will get fair treatment by society or is it subject to chance and luck?

In my view, the answers leave room for not one iota of doubt that a new disability Bill is necessary. The Labour manifesto's commitment in 1997 to introduce "comprehensive and enforceable" civil rights for disabled people was welcome and crucially important. But we should be clear about what that means. Comprehensive civil rights mean that all elements of living are provided for with no elements of chance. Enforcement means that disabled people get what is intended, and that, if necessary, they will get it by enforcement. To me, that means secure provision with disabled people being respected as equals with non-disabled people and having the same rights.

How far and to what extent are those reasonable interpretations operative today? Let us take the case of employment. Protection from discrimination in jobs depends on luck for many disabled people who want to work. It can depend on the size of the firm for which they work or want to work and on whether they are public sector employees. No less than 80 per cent of all small businesses, and 7 million workers, are excluded from the current employment provisions of the Disability Discrimination Act. That is astonishing, and there can be no serious excuse for it.

The Government have now decided to include all firms eventually, but not until 2004. Why the wait? This excessive delay means that many disabled people are still vulnerable to discrimination until then. So, there are no comprehensive and enforceable civil rights in that regard.

Employees in the public sector such as fire fighters and police and prison officers also do not benefit from comprehensive and enforceable civil rights. They are simply excluded from the DDA—full stop.

Even when disabled people get jobs, there is no guarantee that they can travel to them. Nondiscrimination provisions of the DDA do not apply to the means of transport. Disabled people can get on to the platform, but not on to the train. That has been called the trainspotters' charter—and with some justification, I think. Transport today is the Achilles' heel of disabled people in jobs. Some transport vehicles are covered under Part V of the DDA, which has not yet been implemented. Transport buildings fall under Part III of the Act, which expressly excludes vehicles. To compound that bizarre concoction, access to aeroplanes and ferries is not covered at all by the Act. It is a Fred Karno situation for many disabled people, in which 7 million people and 80 per cent of small firms are excluded.

If even small links are missing in the transport chain for disabled people, it is obvious that the journey cannot be completed. When elements as major as those that I have outlined are not in place, it is out of the question. This has major implications for jobs and independence.

Another example of the lucky dip principle is discrimination against people with HIV. Regrettably, there is discrimination against people who are diagnosed with HIV, but, incredibly, they are denied legal protection from discrimination under the provisions of the Act. It is designed especially to protect people, but, in respect of HIV sufferers, that protection comes only if and when they develop AIDS.

Some important rights for disabled people are to be found not in the DDA, but in the Human Rights Act. They include provisions ensuring that no one should be deprived of life intentionally and that no one should be subject to torture or to inhuman or degrading treatment. The first provision could affect cases in which life support systems are turned off because of very severe impairment and in which disabled people may be denied life-saving treatment because of their disability.

As there is no commission to enforce the Human Rights Act (there should be one) powers should be given to the Disability Rights Commission to represent disabled people under the European Convention on Human Rights. After two and a half years' consideration, the Government have failed to act on that basis. Their feeble excuse that the Joint Policy Committee on Human Rights is also considering the EOC and the CRA is unconvincing. There is absolutely no reason for the excessive delay.

Those issues and others should spur the Government to consolidate and expand anti-discrimination legislation for Britain's disabled people. No doubt some of that could be done through regulation, but rather than tinkering by making a patch here and there, we need the Government to introduce a comprehensive new disability Bill in the next Queen's Speech. They can thus set a pattern and an example that can be a beacon to all other countries.

I repeat that this Government have a fine record on disability and they should be congratulated on all that they have done, but if they introduce this new Bill—I very much hope that it will feature in the next Queen's Speech—it will be not only a beacon for other countries, but will effectively tackle historic discrimination here and enable disabled people to live fuller and happier lives.

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