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Lords Chamber

Volume 620: debated on Friday 19 January 2001

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House Of Lords

Friday, 19th January 2001.

The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers—Read by the Lord Bishop of St Albans.

Business

My Lords, before the start of the debate, I should like to complain about the fact that the order of business today, although it is the same as in the Minute, is different from that published yesterday in the list of forthcoming business, on which most Members of this House rely.

So far as I am aware, all speakers in the first debate are present. However, I was only notified of the change by a telephone call at 9.59 and 52 seconds this morning. I could well, in reliance on the list of forthcoming business, have arranged not to arrive until after 11 o'clock. It is also seriously inconvenient for those taking part in the debate on the Psychotherapy Bill, most of whom, I believe, will have assumed that that Bill would come first and may have made arrangements accordingly for the business of the afternoon.

My Lords, I join the noble Lord, Lord Goodhart, in his complaint. I was slightly confused when it was brought to my attention this morning that a change was taking place. It suited me, and I understood that all speakers had been notified. However, if some Members of this House have been inconvenienced, it might be helpful if the noble and learned Lord the Attorney-General could throw some light on why the change has taken place.

Also, I understand that the list of forthcoming business published yesterday does not make it clear that, on Tuesday afternoon, before we take the main business, there will be a discussion on the Procedure Committee report which includes the potentially valuable proposal to swap the business on Wednesdays and Thursdays, although that is stated in the Minute. I wonder whether the noble and learned Lord the Deputy Leader of the House might examine this matter to make sure that such confusion does not occur again.

My Lords, I am sure that is right. Apparently, the order of business as we presently have it has been set out on paper since 21st December. However, I agree with the noble Lord, Lord Goodhart. I received notification at about the same time as he did.

I am not able to cast any further light on the matter. I shall inquire with the Chief Whip, particularly bearing in mind the point made by the noble Lord, Lord Strathclyde, which I, too, had noted. Obviously, quite a number of noble Lords will be interested in the discussion on that particular matter. I hope that no inconvenience has been caused. Certainly, no discourtesy was intended. I shall make further inquiries.

My Lords, perhaps the Minister will include a further point in his inquiries. Because of the confusion, I went yesterday to the Government Whips' Office to ask specifically about this matter and was told that the order of business would be the reverse of what is now happening. Will the Minister please inquire about ghat as well?

My Lords, I shall certainly make that inquiry. I note that the noble Lord, Lord Alderdice, who is introducing the Second Reading of the Psychotherapy Bill, is not present. I do not know whether there is any connection between those two matters. It is possible.

My Lords, the noble Lord was upstairs. He is present in the building.

Parliament Acts (Amendment) Bill Hl

11.8 a.m.

My Lords, I beg to move that this Bill be now read a second time.

As your Lordships know, the Parliament Act 1911 gave the other place power to secure the enactment of Bills with which this House disagreed. However, the power was subject to conditions.

In the case of a Money Bill, the Commons had only to pass it once, and wait one month to see whether this House would agree. If the House did not agree, the Commons could forthwith submit the Bill to the Monarch for enactment.

In the case of any other Bill to which the Act applied, the Commons could submit it for enactment only if they had passed it on three occasions and two years had elapsed between the first Second Reading and the third occasion on which it was passed by that House. The 1911 Act expressly provided that the new procedure could not be used in the case of a Bill which made provision for extending the life of Parliament beyond five years.

In 1949, the then government took the view that the timetable in the 1911 Act imposed too long a delay. They wished to substitute a requirement for the Bill to be passed by the Commons on two, instead of three, occasions and for only one year, instead of two years, to have elapsed. The other place supported that proposal. For reasons which escape me, as I thought it a reasonable proposal, this House disagreed.

The Bill as enacted by the Commons expressly stated that this was done on the authority of the 1911 Act. If that had been the case, matters would have been fine. There was, however, a fatal flaw. As your Lordships well know, it is a fundamental tenet of constitutional law that, prima facie, where the sovereign Parliament—that is to say, the Monarch acting on the advice and with the consent of both Houses of Parliament—delegates power to legislate, whether to one House unilaterally, to the King or Queen in Council, to a Minister or to whomsoever, the delegate cannot use that power to enlarge or vary the powers delegated to him. The only exception is where the primary legislation, in this case the 1911 Act, expressly authorises the delegate to do so. In other words, there has to be a Henry VIII clause.

The 1949 Act purported to vary the powers delegated to the Commons by curtailing the timetable. This could have been authorised by a Henry VIII clause in the 1911 Act, but there was no such clause. It follows that the other place, in enacting the 1949 legislation, exceeded its authority.

What is the result? That Act is not void; nor is it a nullity. But is flawed. As it is subordinate legislation—that is to say, legislation under delegated powers—the courts can be asked to exercise their power of judicial review. If, as in my view is undoubtedly the case here, the 1949 Act was made in excess of authority, the courts have the power to set aside the Act itself or anything done in reliance upon it. But—this is important—unless and until the courts take action, the flaw does not matter. Life goes on as if nothing were amiss.

That brings me to the very important question of whether the courts would grant an application for judicial review. Their power is discretionary. They will refuse to exercise it if the applicant has no personal interest in the matter; that is, if he would not be personally affected one way or the other whatever the court decided. In other words, the court will give no assistance to busybodies. They will also refuse judicial review if the applicant could have been expected to have applied to the court sooner. This is because third parties are entitled—and, indeed, bound—to treat the legislation as valid until they are told to the contrary. If they are not told very promptly, they may have acted to their detriment and may not be able to extricate themselves.

I should not expect the courts at this time to grant any application for judicial review of the 1949 Act, or of any of the legislation enacted on the basis of its amended timetable. They would say that it was all too late, or that the applicant had insufficient interest, or both.

However, a wholly different situation would arise if the other place again legislated without the consent of this House using the 1949 Act timetable and if that new legislation—I have little doubt that this might happen—were challenged promptly by someone with a sufficient personal interest. I know from long, bitter personal experience how difficult it is to say with certainty what a court will do, unless of course you are the judge! Even then, there is a substantial risk that an appellate court will lose its way. But making allowance for all of that, I would forecast that the court would set aside the new Act on the basis that the 1949 Act was flawed and could not be relied upon to authorise a new Act using that timetable. This would leave the 1949 Act on the statute book, but it could never thereafter be relied upon by the other place to justify legislation using its timetable.

As I say, I cannot forecast when that challenge will come. But, at present, the front-runner must be the Hunting (with dogs) Bill, if and when it is rejected by this House for a second time and one year has elapsed since its first Second Reading. But let me make it abundantly clear that the mischief at which this Bill is directed is not the Hunting Bill, or any other change in the substantive law.

What has troubled me and given birth to this Bill is something wholly different. One of the foundations of our unwritten constitution is a respect for the separation of powers. This involves Parliament avoiding criticising judicial decisions—and quite often it does so—and vice versa. The courts are also very strict about not criticising parliamentary decisions. Unfortunately, the scenario that I foresee will involve the judiciary being obliged to pass judgment on one aspect of the work of the other place. There will be no escape, even if it is only an application for leave to move for judicial review; indeed, no escape whatever. It will be misrepresented by the media and by some politicians as a major constitutional crisis.

I want to avoid that situation. Clause 1 achieves just that aim. It "confirms" the 1949 Act and everything done under its authority. The use of the word "confirm" will, I hope, satisfy those who, like me. are wholly convinced that the 1949 Act is deeply flawed. It will convince us that the flaw has been repaired. I hope that it will satisfy those who could not detect the flaw that all doubts on the part of others have been silenced. Either way, if this Bill becomes law no question of judicial review will arise in the context of the use of the 1949 Act timetable—either in the past or in the future. I should emphasise that I am speaking about the timetable.

In the Explanatory Notes to the Bill, I appear to have misunderstood and, therefore, misrepresented, the position of Professor Sir William Wade. I have received a letter from him in which he says that he agrees that the 1949 Act is subordinate legislation. He also says that my Bill is needed. However, he appears to think that the only limit on the delegated authority is the term relating to extending the life of Parliament. I have the greatest possible respect for his views on any matter of administrative law, but I simply cannot follow his reasoning.

There are two bars—two conditions—in the 1911 Act: one relates to extending the life of Parliament and the other relates to a timetable. If the House of Commons, acting unilaterally, can vary the timetable, so, equally, I should have thought that it could vary the provision about extending the life of Parliament. I cannot see the distinction between the two.

In the interests of freedom and human rights in the broadest sense, the true scope of primary legislation empowering subordinate legislation needs to be scrutinised with very special care. It is not sufficient that the literal wording of primary legislation appears to confer very wide authority if, when viewed in its legislative context, its purpose must have been more limited. This would arise in an acute form and the courts would be bound to become involved if, hereafter, the government of the day were to seek to vary the constitution or powers of this House using the Parliament Acts procedure. It is not a question of timetable; it is fundamental.

Subject to correction, I believe that the historical background to the 1911 Act was that in November 1909 this House rejected the "People's Budget", as it was called, introduced by the Liberal Government. Thereafter, the Government won two General Elections in 1910 focusing on that aspect and secured a promise from King George V if necessary to create sufficient new Peers to secure the passage of the Parliament Bill which by its terms enabled the House of Commons to enact a Money Bill within a month of its passing notwithstanding any objections by this House. It also ensured that this House could not delay the coming into force of other Bills to which it applied for more than two years.

That leaves open the question of whether the category which I have termed "other Bills" is limited to Bills designed to change substantive law or whether it extends to something which is fundamentally different; namely, changing the parliamentary legislative framework by varying the constitution or powers of this House. It is in my view a question which is decisively answered by the recitals to the 1911 Act. They read:
"Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament:

And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation"—
that is a masterpiece of understatement—
"And whereas provision will require hereafter"—
"hereafter" is important—
"to be made by Parliament"—
"Parliament" is important; it is not the House of Commons—
"in a measure effecting such substitution for limiting and defining the powers of the new Second Chamber, but it is expedient to make such provision as in this Act appears for restricting the existing powers of the House of Lords".
Quite clearly just as the 1911 Act was an Act of the Sovereign Parliament, so it was envisaged that any further limitation or definition of the powers of the new Second Chamber should also be enacted by the Sovereign Parliament and not by the House of Commons acting unilaterally. It is in that context that the phrase,
"provision will require hereafter to be made by Parliament",
can have no other meaning.

The 1911 Act restrictions on the powers of this House, to which this House consented, were an interim measure to enable the King's government to be carried on effectively pending a constitutional change. It did not authorise constitutional change at the sole wish of the other place. In a word, the 1911 Act contained the agreed terms of an armistice. The terms of a peace treaty were to come later. Part of those terms were agreed in 1999. I would not hazard a guess at when the process will be completed.

In Clause 2 of the Bill I have made express only what I believe to be implicit in the 1911 Act. Thus, for example, I have not suggested that the Parliament Act procedure can be used only for "manifesto commitments". There is no support whatever for such a proposition in the 1911 Act. Furthermore, even at that time it must have been clear that any such restriction had no logical basis. Voters do not in fact approve or disapprove of everything which is contained in a manifesto. A political manifesto is simply a prospectus upon the basis of which Members of Parliament are elected and a particular political party is entrusted with the government of the country. As time goes on the Government may think that the national interest requires some new initiative which was not contemplated at the election and did not make even a fleeting appearance in the manifesto. If it is considered to be sufficiently important, the Government must be able to use the Parliament Act procedure in order to change direction. However, it certainly should not be used on every occasion; it should be used only when a matter of grave importance arises.

Clause 2 of the Bill contains one exception to my self-imposed approach of not seeking to use this Bill to vary the existing law, and that is contained in paragraph (c) of Clause 2. This provides that the Commons shall have an opportunity fully to consider this House's views before it can proceed to pass an. Act without our consent. If this proves controversial, I shall be perfectly happy to abandon it. As I say, it is designed to ensure that timetable Motions in the other place do not deny that House an opportunity of fully discussing and considering the views of this House before imposing its own view. At the same time it was necessary to avoid providing a charter for Members of the other place seeking to mount a filibuster. I took the view that it was impossible to draft a precise definition of "fully discussed and considered" which would be appropriate in all circumstances. The concept was clear enough but its detailed application called for judgment rather than legislative precision.

Conveniently, Section 2(2) of the 1911 Act requires the Speaker to certify that the provisions of the section have been duly complied with. If the present Bill becomes law, he would need, before certifying, to exercise his own judgment as to whether there had been full discussion and consideration of all the provisions of the Bill concerned at a stage when the views of this House would be available. Section 3 of the 1911 Act provides that the Speaker's certificate shall be conclusive for all purposes and shall not be questioned in any court of law. I am aware that while there has been one case (Annisminic v Foreign Compensation Commission) where the courts have held that such a clause did not prohibit all judicial intervention, I am confident that they would not seek to review the Speaker's certificate.

I now turn briefly to the other provisions of Clause 2 of the Bill which are, I hope, largely self-explanatory. The exclusions in Section 2(1) of the 1911 Act concerning Money Bills and Bills containing provisions for extending the life of Parliament are removed, but reinserted by paragraphs (a) and (e). This has been done in order to provide a more intelligible lay-out. If there are about seven exceptions in a sentence, one cannot understand what it is all about. Paragraph (b) entrenches this House's constitution and powers, subject, of course, to the omnipotence of the Sovereign Parliament. Paragraph (d) is designed to prevent some ingenious soul seeking to unravel all the protective provisions of this Bill by using the Parliament Act procedure to amend this Bill if it becomes law or to amend the 1911 Act.

As I said at the beginning of my remarks, I stress that this Bill is designed to remove doubts as to the past and to avoid doubts for the future. It is designed to avoid a collision between the courts and the other place. I commend this modest, but constitutionally very important, Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Donaldson of Lymington.)

11.27 a.m.

My Lords, we should naturally be indebted to the noble and learned Lord for having raised this issue. However, this is the second time he has raised it. He published a Bill at the end of the previous Session which has now been resurrected with some amendments in the measure before us.

It is ironic that I do not think we would have discussed this matter if it had not been for the fact that since 1997 the Government have either used, or threatened to use, the Parliament Act as frequently as they have done. That action has led to this debate.

Why is this occasion so important? It is because this Bill goes to the very heart of the issue of bicameral government in our parliamentary system. There is no point in an upper Chamber if the executive dominating the other place is not prepared to listen to it and sometimes change its mind.

A century ago this issue would have grasped the attention of political commentators, academics, newspaper editors and, indeed, the general public. But, so anaesthetised do we seem to be by the daily trivia of government spin, that, until this week, the matter has barely broken the surface. Now, thanks partly to the initiative of the noble and learned Lord, Lord Donaldson, and partly to the threats of the Government over the Hunting Bill, that is beginning to change. Only this week those of us who read all the papers will have seen major pieces by, for example, Hugo Young, Peter Riddell, Donald Macintyre and Paul Routledge. These are not House of Lords "groupies" or, indeed, fanatical hunters. They are people who care about liberty. They are disturbed by the growing tendency of this Government to use, or threaten to use, the Parliament Acts. They are concerned about the growing intolerance of the Government.

But still many people seem too ready to take the Government on trust with regard to the constitution. That is the very area where, if I may say so, they have shown themselves least worthy of such trust. Of course, I do not throw that charge at the noble and learned Lord the Attorney-General but at the people in the heart of the command and control centre inside No 10. If nothing else, I hope that the Bill, introduced by such an authority as the noble and learned Lord, Lord Donaldson of Lymington, will open more people's eyes to the risks of the executive exerting untrammelled power to override this House.

Let me come directly to Clause 1 of the Bill. I am sure that the noble and learned Lord, Lord Donaldson, is right to wish to clarify the position on the authority of the 1949 Act. During the passage of the House of Lords Act 1999 I was approached by a number of people, including some Members of this House. They referred me to the constitutional guidance of a number of authorities, including Sir William Wade, Professor Zellick and others. As I understood it, they said that law made by using the Parliament Act 1949 was unsafe law. They suggested—and the noble and learned Lord suggested it again—that specifically to use the 1949 Act to enable another place to impose radical change on this House unilaterally was invalid. They asked me to urge your Lordships to take the House of Lords Bill (as it then was) through a two-year battle and force use of the Parliament Act so that its validity could be tested in the courts.

I am no lawyer and I recognise that there are conflicting opinions on this point. But I felt that there was some merit in those arguments. I saw a case for testing that opinion in the courts. But, as is now widely known, I decided not to pursue that option, and to recommend to my colleagues that we did not do so. And why? At what cost would that have been to the standing of this House? We would have had years of conflict in Parliament—years in which the motives of your Lordships' House for resisting change would have been traduced by the Government and their spin doctors.

That was not the right route then, but it does not mean that the law does not need clarification. And it does not mean that if the Government continue to use these Acts—as twice they have; as they plan to do on jury trial, and threaten to do on hunting—that someone else may not challenge the validity of the law in the courts. That would cause constitutional confusion. If that were to happen, it is a problem the Government would have brought on their own head by using what was intended as a constitutional nuclear weapon as a new Labour convenience. Distasteful though some measures that would be confirmed by this Bill are, I therefore urge the Government to support the line that the noble and learned Lord suggests.

I turn now to Clause 2 which clarifies and toughens restrictions on the use of the Parliament Acts. At the very least, this is an issue which merits urgent discussion. First, it entrenches what has been understood to be the position: that the Parliament Acts could not be used to pass a Bill to extend the life of a Parliament beyond five years. Can there be anyone in your Lordships' House who would not agree that that is a thoroughly sensible and prudent provision?

Secondly, it would provide that the Parliament Acts could not be used to amend the Parliament Acts, or, indeed, this Bill. As the noble and learned Lord explained, the 1911 Act was used to carry the 1949 Act, which is the origin of the doubt that the noble and learned Lord identified. Given that it is unlikely that any executive would want to impose additional powers on an unwilling House of Lords, that the Wakeham Commission was against any change to the Parliament Acts to weaken the powers of this House, and that we on the Conservative Benches want a stronger, not a weaker, Parliament, I support the proposals of the noble and learned Lord on this point.

Thirdly, the Bill provides that the Parliament Acts could not be used to carry a Bill to,
"vary the constitution or powers of the House of Lords",
or a Bill,
"not all of whose provisions have been fully discussed and considered by the House of Commons in the last Session … before being presented to Her Majesty".
I agree with the noble and learned Lord that constitutional change affecting this House should not be imposed unilaterally by a single party. Arrogant exertion of executive will is no basis for lasting constitutional change. I also agree that we have seen some deplorable examples of a willingness to override your Lordships' House in the past three years. One has only to remember the discredited system for choosing MEPs, or the important amendments which were carried in this House at the end of the last Session on the sexual offences Bill and which the House of Commons was denied the opportunity to debate: the action of the Home Secretary in laying a No. 2 Bill in the other place in order to be able to use the Parliament Acts to by-pass the principled objections of your Lordships to the restriction of jury trial; and now the threats this week to use the Parliament Acts to the unprecedented level of applying them from one Parliament into the next in order to impose a total ban on foxhunting. To do that would be to defy a settled constitutional convention of almost a century: that notwithstanding the provisions of the Parliament Act each Parliament would begin anew and what was not passed at the end of a Parliament would be lost.

None of those issues to which the Government have applied, or have threatened to apply, the Parliament Act was in the Labour Party's manifesto. None of them is central to the Government's programme. None of them is essential to the safety and well-being of the realm. This Government have moved use of the Parliament Act on to a new plane. That is why the noble and learned Lord is so right to lay these issues before us.

I look forward to debating the specific details of Clause 2 in Committee, if we reach that stage. There are issues to tease out. What, for example, comprises full discussion of a Bill? Should that have included discussion of this House's amendments to the sexual offences Bill, for example? I think that it probably should, but that needs to be clarified. But there is no doubt that the noble and learned Lord has accurately identified a danger, a creeping and worrying presidentialism in the making in which Parliament is expected to acquiesce, not in the small print of the manifesto but in the mood and convenience of the hour, or else be rolled over. I believe that we must find a way to deal with this.

My party in government would not be afraid to accept the consequences of a stronger Parliament. I trust that the noble and learned Lord the Attorney-General will agree with me. I suspect that he will be tempted to tell the House that all this must wait until a stage two reform of this House is in place. We have not heard that argument from the Government in the case of the Neill inquiry, procedural change, or as regards the new arrangements for appointing Cross-Benchers.

I hope that the noble and learned Lord the Attorney-General will not put forward that argument. If he does, we should reject it. The case for safeguarding Parliament against the abuse of power is made not on what might happen in the future but on what the Government have done and are threatening to do. The danger is clear and it is present. We should act now. I hope that the Government will support the motives and principles underlying the Bill. I congratulate the noble and learned Lord on bringing forward the Bill and very much look forward to debating it in detail.

11.38 a.m.

My Lords, I am sure that the House and the country will be grateful to the noble and learned Lord for giving us an opportunity to discuss a matter of fundamental importance.

Basically, the issue is not simply the relationship between the two Houses of Parliament, to which the noble Lord the Leader of the Opposition referred, but the proper constraints which can be imposed in the 21st century upon the unbridled will of the House of Commons—what is appropriate and what is not. That is a bigger issue even than the scope of the Bill.

Having listened to the noble and learned Lord, I find no difficulty in following his guidance and advice on Clause 1 of the Bill. If there is doubt, anxiety and uncertainty, if we do not want to be faced with unnecessary challenges to future legislation under the 1949 Parliament Act, let us clarify. I believe that that is virtually uncontroversial. However, in Clause 2 we are on to the big stuff: we are at the very heart and nature of the distribution of powers between the two Chambers, and more widely. That is the issue on which I wish to comment. The Bill reaffirms the constraints that we are accustomed to, including the provision that this House has only one month to deal with money Bills, as certified by the Speaker. We do not seek to challenge that provision and nearly everyone accepts it. As the House changes in composition and the constitution changes, it is always possible for such matters to be reopened, but for the moment I take that provision more or less for granted.

There is also one clear limitation on the elected Chamber—it cannot, on its own, extend the life of a Parliament. That is crucial to our democracy, because even the elected Chamber has to have constraints imposed on it. That is the great precedent. I think that I am right in recalling that, during the war, the elected Parliament was renewed with the consent of the Lords, for perfectly sensible reasons, given the great crisis that our nation then faced.

Those two items are not currently under challenge. However, the three additional items that the noble and learned Lord wishes to bring into the special category are more difficult. In Clause 2(1)(b), he wants to exempt further legislation affecting the powers and constitution of this House from the normal procedures of the Parliament Act 1949. That implies an unacceptable rigidity about the role of the second Chamber. Nevertheless, there are reasons why unusual procedures should be resorted to when we are dealing with further changes to the constitution. I shall come back to that in a moment.

Paragraph (c) refers to Bills that have not been considered properly by the House of Commons. We can all recall a large number of candidates for that description in recent years. I am not terribly opposed to that proposal. The Speaker must be the only person who has the right to make such a declaration, acting impartially and doing his or her best in the interests of the House and the country.

Paragraph (d) would entrench the present situation too much, preventing the use of the normal provisions of the Parliament Act to amend or repeal this Bill or the 1911 and 1949 Acts. The only Bill that I am conscious of having been slightly involved in personally was the 1949 Act. We thought that it was right to reduce the delaying power of this House from two years to one. I can envisage circumstances in which further adjustment might be needed. I should not like those Acts to be wholly exempted from the procedures of change, which ultimately assert the authority of the elected Chamber.

The essence is to have a safeguard against the misuse or abuse of power in the House of Commons. In the famous agreement not to extend its life over more than five years, we have accepted that that is a danger. We are entitled to give that serious consideration. I am not sure the Bill's proposals are best devised for achieving the noble and learned Lord's aim. Our constitutional defences lack a way of differentiating the procedures that we have adopted under the 1911 and 1949 Acts from what might be called ordinary legislation—I think that the noble and learned Lord called it "substantive" legislation. I have no objection to that, because, however distasteful the use of the 1949 Act may be—I have voted against one or two of the more recent uses of that power—it is possible for ordinary legislation to be repealed. A subsequent government who do not like what has gone through can remove it, but they have to be patient, because governments do not always change frequently.

However, surely there must be a distinction between Acts that can be repealed and other major decisions by the House of Commons that could affect the structure of our Parliament and our constitution or—noble Lords may be expecting me to make this point—the rights of our people in the transfer of their powers from Parliament to foreign institutions. That is the greatest challenge that we face today. How can we go on being a sovereign Parliament in either House when we are constantly bombarded with legislation devised by officials in a foreign country and approved generally by the majority votes of a group of foreign Ministers? That is very serious. We have to find new constitutional protections.

Referendums have been developed gradually as a protection over the past few years, but they have not been brought to centre stage. That is the third element of democracy: we have the Commons and the Lords, but the ultimate authority and sovereignty must rest with the people. Society today is very different from that at the beginning of our democracy, or even a century ago. With the availability of mass communications, television, radio and the Internet, we have a much more educated population than we had before, despite certain failings. If we believe in democracy, more basic decisions must be endorsed by the people.

I disagree with the thrust of the Bill on that. The noble and learned Lord thinks that big issues—although he did not touch on the last one that I mentioned—should be dealt with by writing exemptions or restrictions on the Commons in a revised Parliament Act. That may be so. I am not happy that constitutional Bills should go through in the same way as some of the ordinary, substantive legislation to which the noble and learned Lord referred. There is a lacuna here. The House of Commons ought not to be easily able to make constitutional changes, as distinct from other changes, which, although we may find them disagreeable, we know that we can repeal.

We need to find a defence against those constitutional changes which alter the whole structure of the game—the practice of parliamentary democracy. It is not good enough that that should still be part of run-of-the-mill legislation. Therefore, I urge that further consideration be given to the matter. It will not be easy to rectify it.

Further, we should think seriously about the use of the referendum in particular and about the transfer of power from our Parliament and our people to international and European bodies.

11.50 a.m.

My Lords, it is a privilege to follow the noble Lord. I do not believe that I am competent to follow his thoughts about parliamentary democracy.

The House will be grateful to the noble and learned Lord, Lord Donaldson of Lymington, for his masterly exposition. Having appeared before him in all his judicial capacities at the Bar, fortunately I agree with his erudite construction in relation to very difficult matters. If I did not, I would not presume to say so.

One purpose of the Bill, in Clause 2, is to amend the Parliament Acts and to seek to restore a delay of three Sessions and two years under the 1911 Act before another place—

My Lords, if the effect of Clause 1 is to retain the existing timetable, so be it. I apologise to the noble and learned Lord for having thought otherwise. However, the debate raises the question of the difficulties of securing Royal Assent to government Bills, whether or not mandated, and the application of the Salisbury Doctrine. In a sense, this debate raises the curtain on the debate which is to take place next Wednesday on the Motion of the noble and learned Lord, Lord Simon of Glaisdale, and on the Parliamentary Referendum Bill, which has its Second Reading on the 31st of this month. Therefore, one must assume a consistency.

I am unable to support a proposal to amend the Parliament Acts. Indeed, I should prefer that resolution of these difficulties is not dealt with by legislation but, in a manner devised by Lord Salisbury, by new practical ad hoc arrangements which would include some self-denying ordinance as to insistence.

The other purpose of the Bill in Clause 1 raises matters which are of serious importance. The House is very much indebted to the noble and learned Lord for providing an occasion on which these matters can be discussed. It is true that the preamble to the 1911 Act envisaged amendment. However, I wholly agree with the noble and learned Lord that it did not envisage unicameral amendment, such as that introduced by the 1949 Act, no doubt to secure immediate enactment of nationalisation of the steel industry.

There was no express provision to confer unicameral amendment to the 1911 Act as distinct from any other enactment. It is not proposed to consider whether a provision could have arisen by a surrender of sovereignty or by usage. This Bill has the great merit of laying the ghosts of the Grove Academe which have haunted the validity of the 1949 Act. The ghosts will now be exorcised and laid to rest. That, on any showing, is the great merit of this Bill and it is a matter worthy of consideration not only of your Lordships' House but of another place.

With regard to Clause 2(b), I wonder whether the noble and learned Lord, Lord Donaldson of Lymington, would consider an extension beyond "powers" to include the "functions and composition" of this House. Only the other day in The Times one read of a proposal for a 70-year mandatory retirement age for Members of this House. That would be a form of retrospective legislation with which I would not suppose for one moment the noble and learned Lord, Lord Williams of Mostyn, would be happy, although he might be constrained to support it. However, the presumption that we all go "gaga" at 70 and are troublesome at that age could not arise for many years in the case of the noble and learned Lord.

One difficulty which has arisen is a point which I made on the fifth day of the Address on the gracious Speech. I said that I believed that routine resort to the Parliament Acts to achieve the passage of Bills to be an abuse of that procedure. In a way, that has started to engender a form of routine insistence which is not at all desirable.

I would not have considered that this Bill as such would have pre-empted stage two substantive reform. However, there is a case for suggesting that perhaps it should not take effect before it. Generally, the merits of this Bill are such that they fully justify that it should be read a second time.

11.59 a.m.

My Lords, I believe that our watchword in considering this Bill should be "respect". We should have respect for the constitutional position and democratic origins of the House of Commons. In some aspects, I do not believe that this Bill pays sufficient respect to the House of Commons. The House of Commons should have respect for our constitutional role. I believe that in their treatment of the Sexual Offences (Amendment) Act last year they showed insufficient respect for our role. They should have allowed the Bill to complete its passage in this House and dealt with it having had the benefit of our consideration. I hope that that precedent will not be repeated. We should all respect the constitution.

We should not let the Bill leave the House if it contains clauses that propose changes to our constitution. Those changes should come principally from the House of Commons. If they are to originate in this House, they should at least have the Government's agreement. I do not at all mind suggesting changes to the constitution. Potentially, many improvements could be made to the Parliament Acts. We might update the concept that lies behind Clause 2(b) of the 1911 Act, which was born out of conflict. We might examine the way in which conflict is resolved, with a fresh and more co-operative approach. That would ensure that, rather than the will of the Commons prevailing in a rather crude way, the best would be done for the Bill and the country, without incurring any extra delay. One could go on about possible improvements; we may have an opportunity to do so in Committee. We in this House should not pass Bills that change the constitution in such a manner if we cannot obtain the Government's agreement.

At its heart, the Bill does not do that. It starts by trying to avoid a conflict that the Government have set themselves on a course to meet. By applying the Parliament Act 1949 to the right to trial by jury, and, potentially, to the Hunting Bill, the Government will create for many people the right to judicial review of the 1949 Act. People will effectively be denied the right to trial by jury under the provisions of that Act. That appears to involve sufficient damage to apply for judicial review. Those who are deprived of the right to go fox-hunting will certainly feel the same.

Under those circumstances, it is highly undesirable for us to be riding into this enormous fence on a horse that does not have the ability to jump it. We should certainly take Clause 1 of the Bill extremely seriously and ensure that the 1949 Act remains a viable piece of legislation and that laws that are enacted under it cannot be questioned.

Some of the consequential rewriting in Clause 2 is also desirable. New paragraphs (a) and (e) merely repeat what was in previous legislation. New paragraph (d) should perhaps make it clear that the process for amending the 1911 Act must, in future, be a matter of consent. The provisions in Clause 1 and new paragraphs (a), (d) and (e) in Clause 2 would not in any way affect the constitution; they merely restate the constitution and underpin a piece of the foundations of our constitution that is beginning to feel shaky and which is likely to have a bulldozer run at it if we do not do something to reinforce it.

I have considerable concerns about new paragraphs (b) and (c) in Clause 2. The noble and learned Lord argued that Clause 2(b) is implicit in legislation that already exists. Yes, I share that argument, but it is extremely difficult to express it in the way in which the noble and learned Lord did. What is a,
"provision to vary the constitution or powers of the House of Lords"?
Who is to make the judgment on what that is? With the Government's help, we might well devise something to clarify the situation. A procedure might be agreed with the Government that would make that possible. It would in effect make open what is implicit, as the noble and learned Lord said, in the 1911 Act. However, that needs to be agreed with the Government. We are also considering a position that was agreed in 1911, but which is really not acceptable now. It is not acceptable now for the House of Lords to have an absolute right to refuse to reform itself or for the House of Commons to have the absolute right to change anything about this country's constitution under the Parliament Acts.

I very much support the comments of the noble Lord, Lord Shore, on referendums. As the Commons slides more and more towards being an assembly rather than a parliament, it is important to get people's opinions on constitutional change through referendums. That might be an appropriate way to go. I am happy to discuss that with the Government, but I do not think that the Bill should contain a clause that would impose it on them.

I am very unhappy about Clause 2(c), which is an entirely new provision. Yes, I agree about the iniquity of what was done during the last Session. The House of Commons should show us the respect that we think is our due, and properly listen to the arguments we have made and the amendments we have agreed to. However, we in this House should not be trying to pass legislation regulating the way in which the House of Commons behaves. We can try to persuade, but we should not be trying to legislate.

The Bill has my support, if we can remove a couple of its provisions. I hope that it will enjoy the Government's support on the same basis. It would be extremely undesirable to allow the workings of Parliament to be questioned in the courts in the way that will inevitably happen if we do not pass a Bill such as this one.

12.6 p.m.

My Lords, the noble and learned Lord, Lord Donaldson of Lymington, raised an interesting and important issue for debate, although it is possibly an issue that is more suitable, at this stage, for an academic seminar than a debate in your Lordships' House.

An issue of fundamental importance is involved. If the argument advanced by the noble and learned Lord is correct, four Acts would be invalid, or were not validly enacted. Among other consequences, that could have the result that Members of the European Parliament elected from the United Kingdom in 1999 were not validly elected and, at least theoretically, were not entitled to sit in the European Parliament. However, I accept, as the noble and learned Lord said, that there is a question about whether that issue is now capable of judicial review, because of the time that has passed.

I also recognise that in order to justify the Bill the noble and learned Lord does not have to show that his argument is correct; he has to show only that there is a significant chance that the Parliament Act 1949 and the legislation enacted under it were invalidly passed. If that chance exists, it is obviously common sense to take corrective action now.

The argument for the invalidity of the 1949 Act has strong academic support. Professor Sir William Wade, Professor Hood Phillips and Professor Zellick are all academic lawyers of the highest distinction. Indeed, Professor Wade was my director of studies for two years when I was an undergraduate at Trinity College, Cambridge. He is undoubtedly a brilliant lawyer and teacher. It is true that ultimately the decision will have to be taken by judges. not academics. The Bill, and the argument in favour of it, were moved by one of the United Kingdom's most distinguished judges in recent decades.

Why is it, then, that I remain unconvinced of the need for and desirability of the Bill? The real reason is that I believe that the whole of the argument rests on a narrow and untenable base; that is, the argument that Parliament does not have unfettered power to change the procedures by which it enacts statutes. Plainly, Parliament has the power to change its own composition and to exclude Members. It did so most recently in the House of Lords Act 1999, which excluded most hereditary Peers. It did so in 1917 by excluding a number of Peers who were found to have been fighting on the German side in the First World War. It did so by the Welsh Church Act 1914 which excluded from your Lordships' House bishops holding sees in Wales. That part is particularly significant because Sir William Wade suggests that a change in the composition of your Lordships' House cannot be brought about by a Bill passed under the Parliament Acts. The Welsh Church Act was passed under the Parliament Act 1911 and, if that argument is correct, then Welsh bishops are still entitled to sit in your Lordships' House.

More important, of course, even than the composition of your Lordships' House is the identity of the sovereign. By the Act of Settlement of 1700 Parliament conferred the Crown, in succession. on to Queen Anne when she succeeded King William III, on the Electress Sophia of Hanover and her heirs.

The identity of the sovereign plainly goes to the bedrock of the constitution. It is as significant, if not more significant, than any restriction of the powers of your Lordships' House. But there is no suggestion that the assent to legislation of a monarch who owes his or her Crown to the Act of Settlement is in any sense delegated legislation or that the Act of Settlement itself could not be changed by an Act of Parliament assented to by a sovereign who owes his or her Crown to the Act of Settlement itself.

The Parliament Act 1911 was passed by the full constitutional process of Lords, Commons and Royal Assent. The argument that this is delegated legislation depends on the conclusion that Parliament, despite its theoretically absolute sovereignty, cannot formally exclude a requirement for the consent of your Lordships to the legislation and that therefore the Parliament Act 1911 can be supported only by a constitutional fiction—it is plainly a fiction—that it was delegating its powers to the Crown and the House of Commons to the exclusion of the House of Lords.

Any conclusion that the legislation passed under the Parliament Act 1911 is in any sense delegated legislation is simply fanciful. If Parliament can change the descent of the Crown, why cannot it enable the Crown and the Commons to enact legislation having fully equal validity to legislation enacted by the normal processes? I am afraid that I see no room for the argument that Parliament cannot create an alternative process to the enactment of legislation in a way which gives legislation enacted under the new process equal validity with legislation passed under the old process, including power to amend the Act which created the new process.

It is true that the exclusion from the Parliament Act process of power to extend the life of Parliament was not entrenched in the sense that that power can itself be removed by legislation passed under the Parliament Act. Perhaps it should have been entrenched; there is a strong argument for that. I confess that I have not read the debates in 1910 and 1911 to see whether that issue was raised and, if so, why this particular power was not entrenched. I suspect that the probable reason is that, as the preamble makes clear, the Parliament Act was seen as an interim step leading shortly to a full revision of the composition and powers of your Lordships' House. I do not believe for one moment that those involved in the Parliament Act 1911 thought that Acts passed under it were in any sense second-class legislation.

Unlike the noble and learned Lord, Lord Donaldson, I believe that nothing in the Parliament Act 1911 suggests that it could not be used for a Bill to alter the composition and powers of the House of Lords. As I indicated, that was done once in the Welsh Church Act. I believe therefore that the Act is unnecessary because the argument that legislation passed under the Parliament Act is delegated legislation is simply not tenable.

My Lords, I am grateful to the noble Lord for giving way; I have been listening with care to his argument. But did he not begin by saying that he accepted that the noble and learned Lord, Lord Donaldson, had only to show that there was a reasonable doubt? The noble Lord has been helpfully explaining his view that there is no doubt. But having regard to the weight, calibre and character of the authorities that take a different view—they are helpfully set out in the Lords' Library research paper—surely the noble Lord must accept that there may be a doubt here and that the purpose of avoiding doubt is very valuable when it is expressed either by the parliamentary draftsman or by the author of a Bill itself.

My Lords, I am grateful to the noble and learned Lord, Lord Mayhew—he is learned and I am not in your Lordships' House—for his intervention. But I am reminded of something that the courts have said on a number of occasions; that is, the fact that a point has been argued at great length in the courts does not mean that it is an arguable point.

The fact that this particular argument has been put forward by three distinguished academics—though in the case of Sir William Wade only to a qualified extent—does not mean that, if it is exposed to the full light of day in argument, it shows there is sufficient force behind it to justify the introduction of anything in the nature of this Bill.

I also take the view that the Bill is not desirable. The passage of the Bill would throw doubt on the legitimacy of a Bill passed under the 1949 Act. It would be thought that there was enough doubt about that to justify an Act of Parliament. One wonders whether, for example, Parliament could retrospectively validate the election of members to the European Parliament, a body formed under the treaties of the European Union and not under domestic legislation.

The noble and learned Lord, Lord Donaldson, says that the courts will not judicially review an Act which has already been passed after the elapse of a certain amount of time. But I have to ask the noble and learned Lord: does he agree that, if there was a new prosecution, for example under the War Crimes Act, the person who was charged with the offence would clearly not be out of time in applying for a stay of prosecution on the grounds that that Act had not been properly passed? The noble and learned Lord indicates his assent.

Let me turn briefly to the technical provisions of the Bill. We object strongly to subsection (b) of Clause 2. In the present unreformed or only partially reformed state of your Lordships' House it would be inappropriate to give your Lordships' House a veto over any variation in its composition or powers. That is true even in view of the slightly more legitimate present status of your Lordships' House.

New paragraph (c) of Clause 2 is perhaps of minor importance but it seems to me to be totally unworkable. How would it be possible to decide what constituted full discussion and consultation on the Bill? I also have a feeling that it is inappropriate for a Bill introduced in your Lordships' House to tell the other place how to handle its own proceedings.

I turn briefly to the wider issues which appear to lie behind the Bill. The underlying issue is the powers of your Lordships' House. It can be regarded as an attempt to claw back some of the powers that have been taken away by the Parliament Acts. The Bill seeks to raise doubts about the validity of the Parliament Act 1949. It proposes to recognise the validity of that Act and of Acts subsequently passed under it in exchange for the surrender of powers under both the 1911 and 1949 Acts for the House of Commons to override the veto of your Lordships House on the constitution and powers of the House. As I have indicated, that is an objective which we would not support.

My Lords, I am obliged to the noble Lord for giving way. This is the second time that the noble Lord has referred to the veto of this House. To what exactly does the noble Lord refer?

My Lords, I refer to the fact that apart from the Parliament Act, this House has a veto on any legislation because it cannot be passed without the consent of this House in the same form as the Bill which has been passed in the House of Commons. That seems to me to be plainly a veto.

In accordance with the customs of your Lordships' House it is not our intention to oppose Second Reading of the Bill, but we are unable to support it.

12.22 p.m.

My Lords, unlike the noble Lord, Lord Goodhart, I find the arguments for Clause 1 of the Bill, as set out to your Lordships by the noble and learned Lord, Lord Donaldson, compelling.

At common law, from which statute derives its authority, the participation of your Lordships' House is essential to make valid legislation. The 1911 and 1949 Acts, by contrast, introduced a special procedure with a differently defined legislative body to achieve certain objectives which are set out in the two Acts. The contents of the 1911 Bill are wholly valid because it was an Act passed by the other place, your Lordships' House and, at that time, the King. That was not the case for the 1949 Act. Is there some other basis upon which the 1949 Act can find its validity? The noble and learned Lord, Lord Donaldson, gave the answer to that in his speech. He said that the answer is no, because the 1911 Act does not contain its own amending power. There is no way in which the Commons and the Monarch can amend the contents of the 1911 Act because there is no express power, in the Act, for them to do so.

If that chain of argument is accepted, it must follow that the contents of the 1949 Act are invalid, both for that reason and because the 1949 Act seeks to go beyond the procedures laid down in the 1911 Act. I suspect that if the noble and learned Lord the Attorney-General was faced with just Clause 1 of the Bill, he might be tempted by it. It would provide certainty in a world where there is clear serious doubt about what has become a fundamental instrument in the hands of the present Government. These days, the 1949 Act is almost constantly on their lips.

I turn to Clause 2. Once again, I agree, in large measure, with the various proposals put forward by the noble and learned Lord, Lord Donaldson. As regards Clause 2(1) I think I might be inclined to go a little further than the noble and learned Lord. I entirely accept that the rate and incidence of taxation is a proper and exclusive matter for another place. However, I wonder if that should be any longer the case as regards the remainder of tax legislation. My noble friend Lord Saatchi has been giving that issue a great deal of thought recently. As finance Bills become more complex and more difficult to decipher for those who have to suffer from their contents, it seems to me to be clear that they deserve better scrutiny than they receive in another place. Why should not money Bills, apart from those parts concerned with the rates and incidence of taxation, receive the same treatment as any other Bill in Parliament? I would, in short, be bolder than the noble and learned Lord, Lord Donaldson, about Clause 2(a).

As far as Clause 2(b) is concerned, I agree with the noble and learned Lord but wonder whether the paragraph is really necessary. As he said when reading out the preamble of the 1911 Bill to your Lordships, it clearly states the intention that any change in the composition of a new House of Lords would be a change determined by Parliament, by which we mean another place. your Lordships' House and the Queen—not just another place and the Monarch.

I regard Clause 2(c) as an admirable provision. It may be that on only one of the two occasions on which the Bill in question is being considered it would be necessary to require a full, unguillotined debate in another place. The noble and learned Lord, Lord Donaldson, has allowed for two occasions. I might be prepared to accept that. Perhaps I have misunderstood the noble and learned Lord.

My Lords, I believe that the noble Lord is looking at the Bill that I introduced last Session.

My Lords, I am grateful to the noble and learned Lord. I turn to Clause 2(e). The noble and learned Lord expressed his view that the 1949 Act effectively amends the term in the 1911 Act concerning the attempt to extend the maximum duration of Parliament beyond five years. He also, very generously, as I would expect of him, informed your Lordships that Professor Wade disagrees with him on that point. From the quick look that I have had at the Bill on this point I am not sure that I am clear about whether the noble and learned Lord is right or whether Professor Wade is right. Given that there is doubt, I believe, for the sake of clarity, that the noble and learned Lord is right to include Clause 2(e).

The noble Lord, Lord Shore of Stepney, made a number of interesting remarks about constitutional Bills and the desirability of entrenching Bills of importance in our political system. In the course of doing so, he also gave your Lordships the benefit of his reflections on the constitutional relationship between the United Kingdom and the European Community. The answer to his latter problem is perhaps easier than that to the former problem on entrenchment. There is a simple answer to the problems he outlined about the European Community; that is, to repeal the European Communities Act 1972. If Parliament repealed that Act, all the adverse effects of our membership of the European Community, which he outlined to your Lordships, would disappear at a stroke.

In a sense, the European Communities Act 1972 gave the institutions of the Community delegated powers in the United Kingdom, which will be removed from them once that Bill is repealed. I suggest to the noble Lord, Lord Shore, that the problem is not constitutional but political; and as yet Parliament has not been inclined to produce a majority to repeal that Act.]

My Lords, it is both; it is partly political and it has a constitutional element. The original treaties went so far in the transfer of sovereignty that every new treaty enables us to draw a line if only we have the will and sense to do so.

My Lords, I accept that that is the noble Lord's view but I do not believe that it alters the simplicity of the constitutional solution. However much power the institutions of the Community accumulate, at the end of the day its effect will be removed from the United Kingdom by the repeal of the European Communities Act 1972.

The issue of entrenchment is more challenging and intractable. Our constitution says that Parliament is supreme—except that it cannot bind its successors. Therefore, however one seeks to entrench an Act—for instance, by special majority provisions—a subsequent Act, even passed by a simple majority, would repeal it. That applies even to the European Human Rights Act which was passed by the Parliament two years ago. The passage of a future Act of Parliament by a simple majority would remove its effect entirely from the United Kingdom law.

One way of achieving that end might be to devise an Act which dealt with an important constitutional issue; entrench that Act by, say, a two-thirds majority in both Houses; and then stipulate that if, despite the requirement of a two-thirds majority, a subsequent Act of Parliament sought to repeal that Act by a simple majority, then before the Monarch gave assent an individual could seek an injunction in the courts in order to prevent the Bill receiving Royal Assent. That course raises questions about another part of our constitution—the separation of powers. However, such a way forward might he a way of providing real entrenchment.

Without the doctrine that no Parliament can bind its successor, Parliament could reshape the constitution of this country and could require all Bills to be passed only by the Commons and Royal Assent. Let us hope that that never happens.

12.33 p.m.

My Lords, when I was in gainful employment as a member of the Bar I had the pleasure of appearing before the noble and learned Lord, Lord Donaldson, when he presided with such distinction as Master of the Rolls in the Court of Appeal. On none of those occasions was I able to say that I respectfully disagreed with his Lordship's view of the law. But times have changed.

The Bill deals with two issues relating to alleged doubts about the validity of the Parliament Act 1949 and the scope of the 1911 Act. First, as has been rightly said, the 1949 Act and its validity are reaffirmed, together with specific Acts passed by the Parliament Act procedure. Secondly—this aspect was fully and carefully developed by the noble Lord, Lord Lucas—it deals with the scope of any further changes using the Parliament Act procedure.

Perhaps I may set out our position; it is coincident with that of the noble Lord, Lord Goodhart. There is no ambiguity in the Parliament Acts which needs to be corrected. The Parliament Act is a valid Act of Parliament and has been for the past 51 years. It is not, I suppose, coincidence that doubts are presently raised after 51 years—that would be an extremely unworthy thought which I hasten to put out of my mind.

I turn briefly to the 1911 Act. These issues were discussed in the House of Commons and in your Lordships' House when the Parliament Act went through both Houses. In relation to an amendment which had an effect similar to Clause 2(d) of the Bill, the then Prime Minister, Mr Asquith, said that the Government did not wish to see,
"the liberty of a future House of Commons in any way impaired or restricted by the means of an exception proscribing any Amendments which experience may show to be necessary".
He added that it would be reasonable not to submit the Government to,
"the possibility of our not being able, whatever experience we may show, to amend in particular this measure".—[Officiai Report, Commons, 24/4/11; cols. 1473 and 1494.]
In other words, at that time he had the foresight to think 36 years ahead to 1949. The issue was perfectly well ventilated then and perfectly well understood.

Indeed, in your Lordships' House a similar amendment was proposed and then withdrawn. The mover plainly said that the amendment, if carried,
"would have the effect of keeping out any amending Bill to lessen the suspensory period of two years".—[Official Report, 29/6/11: col. 1184.]
Again, it was perfectly well understood and I submit that there is no doubt about the validity of the 1949 Act.

My Lords, I am grateful to the noble and learned Lord for giving way. I was a little ruffled by his amusing assertion that there might have been an ulterior political motive in the bringing forward of these matters now. I notice in the Explanatory Notes that the argument was first adduced by Professor Wade in 1955 in the Cambridge Law Journal and was adverted to subsequently in other publications. Therefore, the matter has been on the chitty, as it were, for at least the past 45 years.

My Lords, of course it has in academic circles, but I do not remember it being introduced as a Bill in your Lordships' House. With great respect, that is the point I am making. I ought also to have mentioned that I had the infinite pleasure of being taught by Professor Wade and similarly on those occasions was not able to say, "I think you have got it wrong, professor", but I am saying it now.

My Lords, as my noble and learned friend is on the point of scholarship in this area, perhaps he will agree that on the question of delegated legislation, this small group of eminent but tightly-knit scholars is in a small minority among a large amount of equally eminent scholarship of recent times.

My Lords, my noble friend is right and a number of those eminent authorities are cited in the paper to which the noble and learned Lord, Lord Mayhew, referred.

I hope that I have dealt with the issue of the validity of the 1949 Act. We come to the issue of exceptions. The noble Lord, Lord Kingsland, said that he was questioning the supremacy of the Commons in respect of some money Bills.

My Lords, I am grateful to the noble and learned Lord for giving way. Perhaps I may say that I did not question the supremacy of the Commons in relation to the incidence or rates of taxation. Indeed, I did not question the supremacy of the Commons in any way. I simply said that matters involving taxation which did not fall into those two categories ought to be dealt with in the normal way.

And, my Lords, they would therefore not be susceptible to any limitation presently existing in our constitutional arrangements.

My Lords, that is not so. The 1911 and 1949 Acts would in the normal way apply to tax matters other than those dealing with the rate and incidence of taxation.

My Lords, I hear what the noble Lord now says. I shall check his earlier remarks. If I have misunderstood the position, so be it. I do not believe that I did misunderstand his earlier proposition.

We turn next to Clause 2. As the noble and learned Lord, Lord Donaldson, pointed out, paragraphs (a) and (e) simply recite the present constitutional position. However, I believe that paragraph (b) is entirely objectionable. That provision is related to the constitution or powers of this House, for example numbers and the manner in which Members get here. That means that if the Salisbury convention were not abided by—to paraphrase, I hope fairly, the observations of the noble Lord, Lord Strathclyde, sometimes there are whispers that it may not be regarded as intact for all purposes—an elected government, even with a manifesto commitment to reform, could be endlessly defied by your Lordships' House on any of their proposals, however often endorsed by the electorate at however many successive general elections. I am aware that many believe that your Lordships' House in its present form is as perfect as man's intellect can devise, but I am not sure that that basis of perceived perfection is a useful constitutional guide. That would be the consequence of paragraph (b). I readily recognise that some noble Lords may applaud it, but I respectfully disagree.

I do not believe that paragraph (c) is workable. There is nothing in the Bill to require a Speaker's certificate. I understand that the proposal of the noble and learned Lord, Lord Donaldson, is that perhaps in due time there should be such a certificate.

My Lords, Section 2(3) of the 1911 Act contains in terms the requirement for a Speaker's certificate. It requires him to certify that the whole process is in accordance with the 1911 Act. If one amended paragraph (c) to include an additional requirement, the Speaker's certificate would have to cover that as well.

My Lords, I am grateful to the noble and learned Lord. I do not believe that that deals with the point raised by the noble Lord, Lord Lucas, that this House should have full regard and respect for the mechanisms by which the Commons conducts itself. It may well be that in circumstances of urgency, with which we are already familiar, Bills would not be susceptible to the Speaker's certificate. There might well be an argument between both Houses as to the validity of the Speaker's certificate, if it had been given. Therefore, I do not believe that the "Lord Lucas" point has been dealt with.

When one considers paragraph (d) one returns to absolute veto by this House if it wishes to be stubborn and/or mulish. I do not believe that that would be acceptable either to the country at large or to most people who vote in elections.

This has been an interesting debate, not least in the wider context of whether our constitutional arrangements should be looked at again. Some of the speeches tended, perhaps to the surprise of those who uttered them, to support a written constitution. It may well be that that argument will develop, although recognise that today is not the occasion to try to do that.

The noble Lord, Lord Goodhart, is quite right that by convention we do not refuse a Second Reading to a Private Member's Bill. If it were not for that, I would advise the House not to agree to a Second Reading. While I do not take that course, if the Bill reached another place we would invite our colleagues there to vote against it. I repeat our gratitude to the noble and learned Lord, Lord Donaldson, for providing this stimulating debate.

12.44 p.m.

My Lords, I express gratitude to those who have attended on an extremely chilly Friday morning to debate this matter and my sympathy for those who did not come to hear me, particularly my noble and learned friend Lord Lloyd, who is to contribute to the Psychotherapy Bill, which has been postponed.

I am not wholly surprised, but very disappointed, that the Attorney-General should express such opposition to my modest Bill. I am amazed to hear the noble and learned Lord say that there is no doubt about the validity of the 1949 Act. I know that there are people who have no such doubts, of whom he is one. In order to make clear that others are wrong, including myself, I have suggested in this Bill that it be confirmed. I am surprised by the suggestion that the fact that the Prime Minister in 1911 decided not to put in a Henry VIII clause means that it is implicit in the 1911 Act. That is an astonishing constitutional innovation. As to paragraph (c), I do not know that the noble and learned Lord has entirely understood it, but it does not matter. I shall happily remove it if it causes the slightest hiccup in any quarter.

One matter that troubles me slightly—it is a criticism of me arid no one else—is that one or two parts of the speeches suggest that the speakers do not understand what I am at. All I am at is the removal of doubt about the law as it exists. I have expressed the view that there are doubts about the 1949 Act and the scope of the 1911 Act which I want to remove.

When I considered this Bill I was approached by the noble Lord, Lord Kingsland, who said that he would like to put—

My Lords, I am most grateful to the noble and learned Lord for giving way. Does not this Bill go well beyond merely settling doubts? I have in mind particularly Clause 2(b) which would exclude any Bill,

"to vary the constitution or powers of the House of Lords",
not only from the 1949 Act but also the 1911 Act.

My Lords, no. There are doubts, which are not shared by the Attorney-General, as to whether the 1911 Act authorises the other place to make changes to the constitution of this House. I propose to remove those doubts by simply saying that the other place cannot do it. But it is clearly recognised that in the longer term one cannot have a situation in which this House can sit on its hands and prevent any reform of its constitution or powers. That is why I stress the limited scope of the Bill which merely seeks to produce certainty until we move on to the next stage.

It was suggested by the noble Lord, Lord Shore of Stepney, that there should be provision for a referendum. So be it. However, that is not the intention behind this Bill. Overnight I pondered what could be done about this. One obvious possibility is that this House and the Commons should pass a sovereign parliamentary Act to provide that the other place can amend the powers and constitution of this House provided that, say, a Bill to that effect is passed in two Parliaments and x years have elapsed at the moment the powers of the other place come into existence. That is a very interesting field to be debated, which may happen soon. However, this Bill is of limited scope.

I raise only one other matter, because time marches on and many noble Lords will also want to march. The noble Lord, Lord Goodhart, said that I cast doubt on whether Welsh Bishops might still be Members of this House. I cast doubt on the validity of MEPs' membership of the European Parliament. Not so. I tried to stress—obviously inadequately—that it is a fundamental part of administrative law that subordinate legislation is good until challenged and set aside. That applies not only to subordinate legislation, it applies to judges' orders.

It was said on behalf of the noble Lord, Lord Baker of Dorking, when Home Secretary, that it was all right for him to ignore an injunction because it was wrongly made. I sat in the Court of Appeal which heard the appeal from that. We did not say that we entirely agreed with him that it was wrongly made, but we pointed out that it was a perfectly good order until it was set aside on appeal of the whole right. Otherwise there would be chaos, because whenever a judge made an order which people did not like, they would say, "Well, it was made without jurisdiction and therefore we are entitled to ignore it". It does not work that way. Therefore, I regret to say that Welsh Bishops will not be able to come to this House and MEPs will continue to be Members of that parliament.

I repeat my thanks to all noble Lords who have taken part in this debate. I give particular thanks to those who have been nice to me and modified thanks to those who have not.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Psychotherapy Bill Hi

12.52 p.m.

My Lords, I beg to move that this Bill be now read a second time.

I should explain at the outset that I am speaking from the Liberal Democrat Front Benches not because there has been any change in my status. Nor is there any suggestion that this is a Liberal Democrat Bill, except in a very general and small way. However, my noble friend Lord Clement-Jones requested, since he is unavoidably absent from your Lordships' House today, that I speak from the Front Bench in order to indicate his support and that of my colleagues for what is avowedly a personal initiative.

Perhaps I should start by declaring an interest, or more correctly, explaining why I should have an interest in the registration of psychotherapy. Since 1988 I have been a consultant psychiatrist and psychotherapist in the NHS in Northern Ireland. I was appointed to develop psychotherapy services and training in the Province since at that time there were no psychotherapy clinics and the only accredited training was a Masters degree course at The Queen's University of Belfast which had recently been started by my colleague Dr Clare Adams and myself. As I immersed myself in this work I became increasingly concerned about what I might describe as "wild psychotherapy"; that is, psychotherapeutic work carried on by people of variable quality, not only in terms of their training and practice but even, on occasion, of their ethical standards. That was not good for the profession, but was extremely dangerous for the vulnerable people who sought help.

My concerns were shared by the DHSS in Northern Ireland and funding was made available for a short study to be undertaken by a member of staff in our psychotherapy department. The report by Ms Gillian Rodgers was completed in May 1995 and confirmed that while some patients were receiving help from good high-quality practitioners, there was every reason to be concerned about the standards and practices of others of the rapidly increasing number of practitioners in this broad field.

Of course we were in no way the first to make such observations. In 1971 Sir John Foster published his report into scientology; and in 1978 Mr Paul Sieghart published the outcome of a working party of senior professional psychological and healthcare organisations which recommended statutory registration. The parliamentary result of this work was that in April 1981 Mr Graham Bright brought a Psychotherapy (Registration) Bill to the other place. I am particularly delighted to see that the noble Lord, Lord Clinton-Davis, is in his place since he was one of the supporters of that Bill when it come forward in the other place 20 years ago this year. He has continued to maintain a substantial interest in the matter ever since.

In retrospect that Bill had a number of serious problems. First, it focused on specific organisations, which, while important, were not the only ones in the field. There are many more now than there were then. Secondly, while Sieghart had pointed towards a descriptive registration—that is the protection of the term "psychotherapist"—the Bright Bill tended towards a proscription of the ill-defined practice of psychotherapy, thus raising serious dilemmas for the work of psychologists doctors and others. I believe that despite the work of the working party, the Sieghart committee, the profession had not yet explored the territory sufficiently to move to registration at that point.

The 1980s saw a series of regular conferences to address the issue of statutory registration, culminating in the formation of the United Kingdom Council for Psychotherapy. That was a large body with many organisations involved and members. However, at the start there were deep concerns about it. I remember that well because at the time I was a member of the psychotherapy executive of the Royal College of Psychiatrists. I recall the discussions and the high level of anxiety about the range of therapists involved and the variable standards which applied. The result was that many of the most eminent psychoanalytically-orientated organisations split away and formed the British Confederation of Psychotherapists.

Since that time the UKCP and the BCP have made enormous progress in establishing and raising agreed codes of ethics and practice and the quality of education and training. I pay tribute to the excellent work done particularly by these umbrella organisations over the past years. However, succeeding governments have been understandably reticent to tackle what was clearly a divided profession.

Recent years have, however, seen a substantial increase in public concern about the practices of healthcare professionals of all kinds. Indeed one author has described this as an "age of ethical crises" particularly in healthcare. Even in professions such as my own medical profession which has a long-standing statutory instrument for dealing with such things—the General Medical Council—recent days have shown that the public and, indeed, the profession wants something more robust. How much more is this the case in the complete absence of any statutory registration for the thousands of psychotherapists throughout the country? I believe it will be difficult for the Government to dispute my contention that the protection of the public in these matters is a major responsibility of Parliament and government. To fail to provide sufficient protection must mean shouldering some of the responsibility for the adverse results of its absence. The Government must surely recognise that they could become increasingly vulnerable to such criticism.

Recognising this situation I drafted a Bill modelled on the Osteopaths Act 1993. Knowing many of those in positions of leadership in the profession, I invited most of the major stakeholders to send nominees to an advisory group to assist me in the process of the Bill. I was most gratified when they all agreed so to do. We have met regularly since the summer of 1999. The organisations concerned were the United Kingdom Council for Psychotherapy; the British Confederation of Psychotherapists; the Royal College of Psychiatrists; the British Psychological Society; the British Psycho-Analytical Society; the Association for Psychoanalytic Psychotherapy in the NHS; the Tavistock Clinic; the Association of Child Psychotherapists; and, more recently, the Association for Family Therapy and the British Association for Behavioural & Cognitive Psychotherapies.

The various component sections of the BCP and UKCP, particularly the analytical psychology section and that of the humanistic and integrative psychotherapists, the experiential constructive psychotherapists and the hypno-psychotherapists, have had extremely helpful meetings with me on a bilateral basis. I pay tribute to the British Association for Counselling—now the British Association for Counselling and Psychotherapy—with which I have also had some useful and fruitful meetings. I shall discuss those later. I mention those organisations and groups because this has not just been a question of producing provisions for a Bill. It has been the development of a process in which an agreed structure could be formed to provide protection for the public and a focus for the proper development of the profession.

Perhaps I may refer again to the meetings with the British Association for Counselling and Psychotherapy. From the start, a major question was whether or not to have counselling and psychotherapy together as part of the Bill. In some ways, there could be a persuasive argument for that. However, as I began to look at the question and to know something of the feeling from my own professional background, I became persuaded that to widen the net too far would, if I may stretch the fishing analogy further, overburden the net to breaking point and we would find that in the end we had nothing at all. The Bill is also based on the protection of the term "psychotherapist", which is becoming increasingly understood and clear as a result of the work of the UKCP and the BCP. The term "counsellor" is much less clearly defined in the public mind at this point and more work will need to be done. I have no doubt that the same issues apply to counselling in general and that they will have to be addressed. But I was persuaded at an early stage that the Bill and this process were not the way to do it.

I turn to the Bill. The early clauses, Clauses 1 to 10, set out the arrangements for the general psychotherapy council, the registrar and registration itself. It seemed important to me to keep common to all the strands of a rather diverse profession as much of the regulatory system as possible. At this stage the Bill does not define separate modalities or psychotherapies; nor does it mention particular organisations. I hope that it will be possible to maintain a good deal of the unitary structure as already set out in the Bill. However, there has been a great deal of discussion on the issue of how to accommodate the different modalities of psychotherapy and the psychotherapies. As the Bill progresses, it is my intention to introduce, probably under Clauses 11 to 18 on professional education, an amendment or amendments to recognise that the differing modalities of the psychotherapies have differing requirements for education and training. Those amendments will probably involve the recognition of separate sub-committees whose role will be to give advice and guidance to the education committee and so to the general psychotherapy council. But that is a matter to be returned to at the Committee stage.

Clauses 19 to 28 deal with the establishment of a code of practice and the mechanics for tribunal and sanction. Clauses 29 to 31 deal with the process of appeals. Clause 32 is in a sense the heart of the Bill as it defines the offence of the unregistered use of the term "psychotherapist". It should be noted that no offence is committed if a person is already registered with the General Medical Council. There is no bar under the Bill to doctors registering as psychotherapists and I believe that many will. But there is no requirement, to avoid a criminal offence, that a registrant with the GMC would also register with the GPC. If there was subsequently a statutory registration scheme for psychologists, a similar provision might readily be applied to them too. I am not seeking to multiply the number of registers to which therapists have to sign.

Clauses 33 to 43 deal with monopolies and competition, the important role of the Privy Council and a number of other miscellaneous provisions, including the power to modify the Act by order. The schedule then sets out the proposed structure, powers and personnel of the council and of its committees.

I do not wish to detain your Lordships further at this point since the change in the order of business for today already leaves a number of noble Lords here much later than was expected. However, I believe that the profession of psychotherapy is now a corpus of responsible therapists who wish to develop and improve the standards and practices of themselves and their colleagues because they care about their patients and their work. I believe that the patients and their carers require the reassurance and protection that the Bill would provide. I appeal for your Lordships support for the Bill. Its subject matter is of genuine importance and what it seeks to do has been urgent but absent from the statute book for much too long already. I beg to move.

Moved, That the Bill be now read a second time.— (Lord Alderdice.)

1.15 p.m.

My Lords, it falls to me to congratulate the noble Lord, Lord Alderdice, on introducing the Bill. Together with the noble and learned Lord, Lord Steyn, I tried to introduce a separate Bill in 1997. In 1998 I tried again because the noble and learned Lord was not able to pursue the matter. I was then advised that the Government did not have time for the Bill. Moreover, I thought that it was necessary for there to be adequate consultation about the Bill, more than had occurred beforehand.

I congratulate the noble Lord, Lord Alderdice, on what he has achieved so far. I know that he will be the first to acknowledge that the Bill can slightly be improved. I shall return to that point subsequently in my remarks. The noble Lord was very kind to me in what he had to say. He did not know that my wife was a psychotherapist at that time and had a lot to do with what I was seeking to achieve.

It is more than 30 years since the Foster report concluded that psychotherapy should become a regulated, registrable profession and seven years since the United Kingdom Council for Psychotherapy was launched here, in the Moses Room of this House. It now has more than 5,000 individual members and embraces nearly all the modalities of therapy which the public are receiving through its eight constituent sections. It now compromises institutions of the highest calibre, such as the Tavistock Clinic, which is not far from where I live—it has overcome that difficulty already—the Royal College of Psychiatrists and the British Psychological Society.

The founders of the UKCP and, it must be said, others have had a long and hard struggle to reach this point today in their attempt to ensure through statute that the public will be protected from rogue practitioners who have as much capacity to harm their vulnerable patients as have some incompetent or exploitative doctors to harm their patients physically.

It is imperative that every one of the recognised specialties that are already on the registers of both the UKCP and the BCP—the British Confederation of Psychotherapists—should be represented in the regulatory process and the Bill, when it comes to Committee, must include that safeguard. I am glad that the noble Lord, Lord Alderdice, has paid tribute to the work which has been done by both of those institutions.

Without the Bill, I understand that there will he no control whatever over any individual or maverick grouping. They may present themselves as bona fide practitioners. That is something which the Bill will attack. With the Bill, obligations will be set down for at least minimal standards of training. Organisations, as well as their individual members, will be subject to responsible and independent inspection. There will also be a system for complaints and disciplinary procedures. That is particularly important and I congratulate the noble Lord, Lord Alderdice, on that. The entire Bill must not fail to be passed into law so that ethical responsibility to the public is finally upheld.

If I make one or two criticisms of the Bill as it stands, I know that the noble Lord, Lord Alderdice, will give those points his fair consideration before we reach Committee stage. At the present time, the whole question of analytical psychology, or Jungian psychology, must be recognised as one of the well-regarded, longstanding, worldwide modalities with high training standards, research methods and its own international organisation. So far, it has not been mentioned. I do not know whether the noble Lord, Lord Alderdice, has that idea within his sights for the amendment he proposes to table. I hope that he has. It is certainly something which ought properly to be considered.

It would be confusing to members of the public if, in the event of restructuring by modality under the Bill, analytical psychology were to be muddled up with another modality altogether. As the noble Lord said, it is right that he should give this matter increased emphasis. The prime aim of the Bill is the protection and education of the public, but it is also important for psychotherapists themselves.

Another vital point to be considered is that registration under the Bill is indicative and not functional; that is to say, you are registered according to what you call yourself, not what you do. At present, any analytical psychologist who registers under the terms of the Bill would, I believe, have to be regarded as a psychoanalyst/psychotherapist. I may be wrong about that, but no doubt the noble Lord, Lord Alderdice, will refer to that when he comes to consider the matter. I am concerned that analytical psychology is accorded proper legal status in this country.

Having said that, I approve of the Bill almost wholeheartedly and I congratulate the noble Lord, Lord Alderdice, on what he has said and what he has done.

1.15 p.m.

My Lords, I, too, am grateful to the noble Lord, Lord Alderdice, for instituting the Psychotherapy Bill, which has a thoroughly sound basis with the support of the Royal College of Psychiatrists and in consultation with many other organisations already outlined by the noble Lord. The proposed new general council will be good for patients or clients, as it will set standards for the competent, safe and ethical practice of psychotherapy, and the education committee will promote high standards in education and training.

The problem at the moment, as has already been pointed out, is that the entire field of counselling and psychotherapy remains unregulated so that anyone can set themselves up in this field with virtually no training at all. The problem with the Bill is that it does not include the practitioners who call themselves counsellors. Furthermore, we do not know how many of them there are. The Sunday Times of 6th July 1993 stated that some 30,000 paid counsellors or therapists and 140,000 volunteer counsellors practise in this country. Other "guestimates" suggest that up to a quarter of a million people may be using the skills of counselling in the UK and the professional bodies regret that no accurate count has been made so far.

A number of professional bodies offer registration of counsellors, the largest being the British Association for Counselling and Psychotherapy, which recently changed its name from having been known as the British Association of Counselling. The organisation has 18,000 individual and 1,000 organisational members. Those it accredits have, I believe, undergone a minimum of 450 hours training, plus 450 hours of supervised practice.

Some controls are in place within the National Health Service. The noble Baroness, Lady Jay, speaking for the Government in a debate the House of Lords in November 1999 pointed out that in the NHS employers and those medical or other practitioners who refer people to counsellors, clinical psychologists or psychotherapists must ensure that the person to whom they refer them is qualified. Individuals may approach one of the professional bodies that regulate in this field but, as was noted in the Guardian, there is no procedure which obliges the NHS to consult with organisations that have registered, such as the British Psychological Society, because it is not a statutory body.

This week, one of our splendid researchers tried to establish how easy it is to find a registered counsellor or psychologist by accessing all the appropriate websites of registers. Thirteen out of the 19 institutes, councils, trusts, services, networks and associations studied either had no list or the website failed. The British Association for Behavioural and Cognitive Psychotherapies had an easy link called "Find a Therapist" which stated that an online database of accredited psychotherapists would become available soon. The website of the British Confederation of Psychotherapists also had an easy link, "Finding a Therapist", but warned that,
"finding a therapist is not an easy undertaking".
It went on to state that the Register of Psychotherapists may be consulted at many public libraries or may be purchased from booksellers or direct from the BCP at a cost of £30. The British Psycho-Analytical Society website had an easy-to-understand list of all the qualified UK psychoanalysts, which was updated this month. The British Psychology Society website provided access to the Register of Chartered Psychologists.

As has been pointed out, the professions have wanted to be regulated for a long time. The Royal College of Psychotherapy has for many years been concerned about the difficulty which members of the public have in assessing the competence of those who use the term "psychotherapist" to describe themselves, particularly when they work outside the National Health Service.

Philip Hodson, a Fellow of the British Association for Counselling and Psychotherapy, in a letter to the Guardian in October last year, wrote:
"The government must regulate the entire field, mainstream counselling, psychology, psychotherapy, and psycho-analysis for public protection. We have been asking for this for a long time".
The House of Commons Library has explained that the Health Act 1999 has made provision to enable the Secretary of State to bring in the statutory regulation of professions allied to medicine, including counselling, if this is considered appropriate. This can be done by statutory instrument, but there would have to be a period of consultation and the approval of both Houses of Parliament would be needed. There are no plans at present for such a statutory regulation to be put in place for counselling. Priority is expected to be given to the more invasive areas of medicine, such as acupuncture.

During the Committee stage of the Health Bill in the House of Lords, the noble Baroness, Lady Hayman, said:
"The Government intend in time that the power can be used to introduce new regulatory schemes for such professional groups as psychologists or counsellors".—[Official Report, 4/3/99; col. 1802.]
An alternative route provided by the Health Act allows professions to establish a statutory self-regulatory framework by joining the new Health Professions Council, which will replace the Council for Professions Supplementary to Medicine. Before joining, the profession would have to be represented by a single professional body.

Some believe that this Bill would have only one concrete effect: it would prevent counsellors from calling themselves psychotherapists. They point out that the Bill would not protect the public against a certain infamous psychotherapist, and I quote the Guardian as follows:
"We are all disturbed by the shocking case of this shamed psychologist who will be free to work again, even though found guilty of sexual misconduct against a client".
A moment's thought, however, shows that it is futile to regulate just one section of the talking therapies. What would otherwise stop a miscreant psychologist from turning up again as a psychotherapist or a counsellor?

The noble Lord, Lord Alderdice, has said that he is planning to introduce an amendment at Committee stage bringing in an element of structuring by modality. But the only major modality in the UK not to be represented in its own right, as the noble Lord, Lord Clinton-Davis, said, is that of analytical psychology, the practitioners of which are known as "Jungians". It will possibly be put in together with psycho-analytical psychotherapy. It has been argued that as analytical psychology is of long-standing repute, it should be represented in its own right.

As the noble Lord, Lord Clinton-Davis, said, registration under the Bill is indicative, not functional; that is, practitioners are registered according to what they call themselves, not to what they do. As the amendment currently stands, this would mean that, if the Bill became an Act, any analytical psychologist registering under it would have to be registered as a psycho-analytical psychotherapist. This would further mean that analytical psychology would have no legal status in the United Kingdom. Perhaps this could be clarified when the Minister replies.

Finally, perhaps I may draw your Lordships' attention to the King's Fund study published in the British Medical Journal in December last year. It concluded, first, that the most effective help for the treatment of depression lasting less than a year is counselling; secondly, that counselling is more effective over four months than obtaining anti-depressants; thirdly, while long-term drug treatment is effective, counselling helped patients more quickly and was of most benefit to those whose depression was of less than 12 months' duration.

I again congratulate the noble Lord, Lord Alderdice, on bringing forward this important piece of legislation.

1.25 p.m.

My Lords, I support the aims of the Bill and I, too, congratulate the noble Lord on introducing the Bill.

I have learnt something about psychotherapy over the years, mainly because my wife was trained as a psychiatric social worker at the LSE many years ago. Thereafter she practised as a family therapist at the Westminster Pastoral Foundation and subsequently in private practice as a family therapist. Our house is littered with books on the subject. After 40 years of happy marriage one finds that one learns something about one's wife's profession by a kind of osmosis.

In addition, I have sat for more than five years in the Judicial Committee of the Privy Council. I still sit there from time to time. Noble Lords in the House today will realise—but not everyone outside—that when a doctor or a dentist is struck off by the GMC or the General Dental Council he has an absolute right of appeal to the Queen in Council. We have about five or 10 such appeals every year. During the past year we had six appeals from doctors, one from a dentist and one from a vet.

So, sitting there, one becomes familiar with the general structure of the regulations governing doctors and dentists and with some of the detail. In the case of doctors, the structure goes back to the Medical Act 1956, which was itself a consolidating Act. It consolidated legislation which goes back far, far longer than that. I do not know how far it goes back. In the case of dentists, the consolidating Act was the Dentists Act 1957. Again, before that there was an Act of 1878 and so on. I am very glad to see that the noble Lord has incorporated the same process and procedure in Clause 31 of his Bill, whereby there would be an ultimate appeal to the Judicial Committee of the Privy Council.

If one asks what is the justification for regulation at all in the cases of doctors and dentists—about which I know most—the answer must surely be twofold. First, the need to maintain professional standards; and, secondly, and equally important, the need to protect and reassure members of the public. It seems to me that exactly the same considerations must apply to psychotherapists.

Doctors and dentists are not the only professionals concerned with our health who are subject to regulation. In addition there are nurses, midwives, pharmacists, opticians, osteopaths, who were mentioned earlier, and, indeed, vets. All are required to register. Therefore, if we take such care—as we rightly do—to protect patients who seek treatment for their bodily ailments, including the bodily ailments of their cats and dogs, should we not also provide an equal measure of protection for those who seek treatment for their minds?

Indeed, in the case of the mind, the need is surely all the greater. For those who need treatment for their minds are surely the most vulnerable members of all in our society. Someone once said—I think it was a judge in the last century in a case of undue influence—that all forms of domination by one human being over another are, to some extent, sinister and certainly dangerous; but of all forms of domination, none is more dangerous than domination over the mind.

A patient who is possibly seeing his psychotherapist two or three times a week is likely to form a strong attachment to, or a dependency on—I do not use the word in any technical sense—his psychotherapist, especially, one might think, although I have no knowledge of this subject, a female patient who is seeking help from a male psychotherapist. That is quite proper and normal. But the corollary must surely be the importance of ensuring that that relationship is not abused. In the case of psychiatrists, protection is currently afforded by the strict discipline enforced by the General Medical Council. Surely, psychotherapists, who often use a similar technique, should be subject to the same strict discipline.

My only doubt about the Bill is whether it goes far enough. Should it be extended to cover the other counselling agencies that have been mentioned? I think that that should not happen for the moment. Psychotherapy, although not defined in the Bill, is well recognised in practice. Although the boundaries may be somewhat imprecise, it is well established as a separate profession. If one were to go wider than psychotherapy, it would be difficult to know where to draw the line. It is best to start with this Bill regulating the practice of psychotherapy on a similar basis to that which applies to psychiatrists and possibly extend it later on a wider basis. For the moment, let us give all our support to the Bill that is before us. I hope that it will be given a fair wind by the Government.

1.32 p.m.

My Lords, I welcome the thrust of the Bill. I, too, congratulate the noble Lord, Lord Alderdice, on bringing it forward.

My wife is not a psychotherapist, I am not a psychotherapist, and I have no specialist knowledge about this subject, except in so far as I have come across it in my personal and professional life. Therefore, I speak as the "man on the Clapham omnibus". If I am wrong and ignorant about the profession, I hope that the noble Lord, Lord Alderdice, will forgive me and put me right in due course. I have no doubt that this is an important area, and that it is gaining in importance. It is also gaining in public recognition, therefore giving rise to the growth in public concern.

The noble Lord, Lord Clinton-Davis, was right to draw our attention to the importance of education. This is an area that people tend to shy away from. Individuals are often embarrassed to acknowledge that they have found psychotherapeutic treatment to be of value. To paraphrase, in many circles "psychotherapy is for wimps". Recommendation M in the government's response to the Health Select Committee's report into mental health services—not exactly the matter under discussion today but very close to it—states:
"We agree that, the more mental health services are able to 'get the basics right', the easier it will be to challenge the fears surrounding mental ill health. We would encourage the inclusion of discussions of mental illness in the school curriculum. But we also call upon the Government to take a more proactive approach in challenging the perceived link between mental disorder and dangerousness".
If passed, the Bill will mean that the psychotherapeutic profession will become better regarded and better organised; therefore, it will grow in public esteem. Some of the darker aspersions and concerns will be dispelled.

My professional life has been spent in the City. It is seen as a place where young men in striped braces earn million-pound bonuses. Some do—but the million-pound bonuses do not come without strings attached. Pressure of work, long hours, alienation from family and friends and hobbies are the price that people pay. For every person who is reported in the Evening Standard as earning a million-pound bonus, plenty of others have suffered those same conditions of long hours and hard work but have not earned a bonus. In many cases that has resulted in physical and mental illness. The problem often begins with nicotine and alcohol and moves to drugs. Such people have benefited from psychotherapeutic treatment to enable them to consider their lives.

Here we come to the problem posed by my noble friend Lord McColl. One begins to move from psychotherapy to counselling. As a mere layman, I find it hard to understand where the line should be drawn in terms of the practical implications that I have seen in the City of London. But if the problem exists in the City, I am sure the same is true of other walks of life with which I am not familiar.

I have no doubt about the enormous value of well-provided psychotherapeutic services. However, as was pointed out by several speakers, although there is the capacity to do enormous good, there is also the capacity for enormous harm. That is why I welcome the strategy behind the Bill. One of the issues that we shall have to consider will be the measurement of clinical effectiveness. Speaking again from a layman's point of view, I can understand how clinical effectiveness is measured in conventional physical medicine. The measurement of clinical effectiveness in psychotherapeutic medicine seems harder to judge. It will, therefore, place a higher burden—a very heavy burden indeed—on the general council to set and uphold proper standards.

Having given my unguarded support to the Bill, perhaps I may raise two or three points about which I have concerns. If I have misunderstood what is planned, I am sure that the noble Lord will put me right in due course.

My first point concerns the "grandfathering" provisions in Clause 3, described as "transitional" provisions. Perhaps I may refer again briefly to my experience in the City. I was involved with the implementation of the first financial services Act in 1987, the Act that will be replaced by the legislation passed by your Lordships last summer. This brought to the financial services profession for the first time a cohesive structure of regulation. All of us recognised that it was a unique opportunity to impose some standards. By means of "grandfathering"—by setting the sieve by which people were permitted to enter the City or the professions—one was able to raise standards once and for all. It became clear to us early on that it was much easier to keep the rotten apples out of the barrel right from the beginning, rather than let them into the barrel and have to remove them afterwards.

It seems to me that there is a similar unique opportunity for the profession to which this Bill relates. I was, however, concerned to see in Clause 3(5) relating to grandfathering rules the reference "(if any)" in relation to the general council making rules. This should not be an option for the council. We need a clear definition from the beginning of who is and who is not to be allowed into the profession. The weasel words "if any" leave me with some concern that when push comes to shove, the council may pull away from difficult issues. It is the action of the council in early days—being prepared to set and uphold high standards—that will lead to the building of a proper reputation.

I turn, secondly, to the question of education and training. I was pleased to see the words "education and training" linked in Clause 11. The education and training aspects of all professions are of enormous importance, given the speed at which the professions are developing and the rate at which change is taking place.

However, I see that Clause 12(2)(b), referring to the position of registered psychotherapists a fter registration, does not include a reference to education but merely to "training". I believe that to be a mistake. Registered psychotherapists, along with chartered accountants and other professions, need continuing professional education. It might be worth while considering some possible change in the Long Title of the Bill; for example, where it talks about "professional education", we could have reference to "continuing professional education".

I accept that education shades into training and that training shades into education, but from my point of view as a layman there is a difference. Perhaps I may give your Lordships a specific example: training is about the carrying out of an exact, precise procedure. A doctor may take out my appendix, but it is how he does so that matters. The education relates to the way that he treats me as a patient. He cannot be trained in that respect; he has to be educated. It is a much more holistic sort of experience.

I am a director of a listed company which owns/ operates a number of acute private hospitals. We have about 1,000 beds in 25 hospitals around the country. The complaints that we receive are as much about the education of doctors as about the training of doctors. For example, patients arrive for an operation or to undergo "procedure", as the doctors rather euphemistically call it, in a nervous state. They are clearly going through an experience that they have not had for some time; indeed, they may never have done so or it may be years since they have been under, say, a general anaesthetic. They are, therefore, in a highly anxious condition. But for the doctors it is, inevitably, just another "day at the office", so to speak. The doctor, quite rightly, is focused on obtaining the best possible clinical outcome. That is where the mismatch occurs. Patients want the right clinical outcome but, at the same time, they wish to have the educated, holistic care of doctors.

I am afraid to say that this mismatch often occurs where doctors who have been in practice for some years have become very "routinised" in their approach to treatments. When we consider this issue in Committee, I hope that we shall be able to find ways to encourage, empower and require the council to do more to ensure that that mismatch is avoided. It must recognise that there is a need for continuing professional education as people progress through their careers.

I turn now to a point relating to the burden placed on the members of the council. As I read the schedule, it appears that there will be 20 on the council. I see that 13 of them will serve on the education committee, eight will serve on the investigating committee, six will serve on the professional conduct committee and six further persons will serve on the health committee. However, will psychotherapists wish to undertake this burden of work? High quality psychotherapist input will be of critical importance in the early years of this council's existence. There is a hearts and minds job to be accomplished. We have to ensure not only that the council wins over public confidence but also that it wins the confidence of members of the profession.

Members of the profession will be guided by people who serve on that council and who are of the very highest calibre. I am concerned that the provision in Part I of the schedule may so overload members of the council that good quality psychotherapists may prefer to continue with their clinical practice and not be prepared to give the proper time and effort to the deliberations of the council and its committees. As a consequence, I fear that some of the less- well regarded members of the profession may take on this particular role.

I turn now to what is possibly my most serious concern; namely, the level of lay involvement in the council and its committees. There is no doubt that a proper level of lay involvement will be critical in building public confidence in this new profession. There will, inevitably, be problems and difficulties. The way to resolve them must be faced openly; those concerned must not appear secretive. Lay involvement is the key to that aim. Of course, achieving the right balance is always difficult.

As for the general council, I see from the Bill that six out of the 20 members are to be appointed by the Privy Council and, therefore, appear to be lay persons on first reading. I then observe that one of those six members will be a registered doctor, while the other five are not required to be registered psychotherapists. The provision does not actually state that they could not be doctors. It only says that they must not be registered psychotherapists at the time of their appointment. Therefore, someone could be appointed by the Privy Council as one of the representatives on the general council and subsequently become a psychotherapist. He or she would not then be disbarred from remaining in that position. It is clear to me that we ought to have a division as regards those persons appointed by the Privy Council who remain members of the laity: they should not be either registered psychotherapists or, indeed, registered medical practitioners.

That brings me to the question of the balance on the committees, especially the investigating committee, and the use of the chairman's casting vote. I very much welcome the proposal for establishing an investigating committee, although it will require enormous self-discipline by the proposed professional conduct committee and the health committee to avoid re-tilling the ground that has already been covered by the investigating committee. Inter-committee confidence will be absolutely critical.

However, as regards the make-up of the committee, there are to be two Privy Council members out of eight, according to the schedule; that is, 25 per cent. If one of those two members were a doctor, that would be one lay member out of eight, which would represent 12.5 per cent. The committee can co-opt eight more to the committee. If it chose to co-opt eight more psychotherapists, that would mean a 6 per cent lay representation; in other words, only one person out of 16 would be from the lay side of the profession.

The Minister may say that I am pushing the envelope too far and that I may be wrong in the way that I have read the provisions of the schedule. Circumstances could arise whereby there would only be one lay member on the investigating committee out of a total of 16. That sort of balance is not likely to carry public confidence with it. Indeed, that situation, allied to the provisions in paragraph 32(4) of the schedule—where the chairman has an additional casting vote that he must use in favour of a psychotherapist—gives me the most concern. I say that because it is to be used in connection with the investigation of offences under Clause 20(9)(c), which relates to whether or not there is a case to answer in the opinion of the investigating committee. Moreover, Clause 21(2) refers to an emergency power which may be necessary to protect members of the public.

Is it really suggested that, in a committee of eight, where four members believe that there is a case to answer or that emergency action is required to protect the public, the chairman should pass a further vote and should do so in favour of the registered psychotherapist? I cannot believe that that is the right way to proceed. If half the committee members believe that there is a case to answer and that there is a need for emergency powers, surely the chairman of the committee should permit that investigation to go forward or permit that registration to be suspended pending further investigations.

I can foresee circumstances where the investigating committee looks at a case and there is a tie. The chairman would then have to cast his vote in favour of the psychotherapist. Subsequently one of the patients may take violent action or perhaps commit suicide—or do something terrible to himself or herself—which would mean that all the facts would ultimately become public. If that is the position, I believe that public confidence will be gravely undermined. I hope, therefore, that those balances can be examined when we reach the Committee stage.

I conclude as I began, by welcoming the Bill. It will provide a vital framework in an increasingly important area for modern society. I am sorry if I have appeared to be carping, but my only wish is to ensure that this important Bill is in the best possible shape so that it can raise standards, provide protection for psychotherapists in the proper execution of their duties and, last but not least, encourage and enhance public confidence in the system.

1.50 p.m.

My Lords, like all other speakers, I congratulate the noble Lord, Lord Alderdice, on producing this most important Bill. During recent months when I have taken a proper interest in the Bill, I have discovered the work that he has done outside the terms of the Bill. I refer to his ability to bring together persons in the profession who frequently criticise one another and to persuade them to express a willingness to work together. The Bill cannot succeed except on the basis of some element of professional consensus. In that regard I leave aside many of the points that I intended to make, including the size of committees.

After I summarise my comments on the Bill I shall refer to a bombshell from the Government which exploded on my fax last night. I suspect that all of us agree that there is a case for regulation, but that there is no point in regulating for the sake of regulation, nor indeed in choosing a form of regulation which loses something which has been built up in the recent past. I speak as a layman. However, the noble Lord, Lord McColl, has encouraged me by saying that he is one too, although he is well informed for a layman. I cannot escape the fact that I am a lawyer, but I would not dream of adding to the comments of the noble and learned Lord, Lord Lloyd, with whom I broadly agree.

The regulation of the profession, or rather professions, that we are discussing should surely be undertaken in the manner which will most increase public confidence in the profession and its confidence in itself. It should be done in the public interest and for the good of ordinary men and women who are, or may be, patients. In that regard I have some sympathy with the concept that some element of patient or lay representation or, at any rate, a patient's voice, should be added to the Bill by means of amendments.

Over the past few weeks I have received a large number of documents and pieces of advice. They included, of course, advice from the BPC and the UKPC which have been mentioned but also advice from those at the other coalface, as it were. The Mental After Care Association stated that,
"we need a statutory framework within which services can be regulated. Lord Alderdice's Bill marks a significant step towards minimising the risk of 'cowboy' practitioners".
There are many different schools not only of analysts but also of psychotherapists who do not address themselves primarily to the "talking" cure. To persuade them to co-operate with one another has been a "jewel in the crown"—to use a wretched phrase—in the work of the noble Lord, Lord Alderdice. In some countries there are different statutes which deal with different parts of the profession. In Vermont, psychotherapists and psychoanalysts are regulated under quite different laws. However, it seems to me to be worth trying to get agreement among a broad spectrum of serious practitioners and their organisations to produce a Bill of this kind. I stress once more the work that the noble Lord, Lord Alderdice, has undertaken outside the mere drafting of the Bill.

I must admit that I was rather surprised to see that he had taken on the template of the Osteopaths Act 1993 and, to some extent, that of the Chiropractors Act 1994. In places he has adopted them word for word and clause for clause. I shall question some of that wording in Committee. Although it was not possible in 1993 to enact a strict definition of "osteopath", nevertheless it is a profession—as the noble Lord, Lord Walton, said during the passage of the 1993 Act—known to use "gentle manual methods"—I hope that those words will be brought to the attention of my osteopath—by,
"manipulation of the musculo-skeletal system".
Although no definition of "osteopath" was slated in the Act, I say, with no disrespect to osteopaths, that they were recognised by the "elephant test"; namely, one may not be able to define the term "osteopath", but one knows it when one sees it. However, that is not wholly true of the word "psychotherapist". Therefore, I commend the decision of the noble Lord, Lord Alderdice, not to attempt to reach an overall definition, albeit that that has the weakness of resting the Bill on what one describes oneself to be.

The 1993 and the 1994 Acts were in a sense the product of influential reports supported by the King's Fund after His Royal Highness the Prince of Wales had lent his support to the project. It is not quite the case that this Bill is supported by a similar report. I know that the King's Fund undertook work on this subject last year, but, historically, problems which range across the field of psychotherapy have arisen because of various orientations or modalities, as they have come to be called, which find their inspiration either in different analytical fields, or fields that now are called psychological psychology—as we heard today—or in more recent analysts than the masters such as Freud, Klein, Lacan or Winnicott.

There are other modalities of treatment which now have serious support. The noble Lord mentioned the National Health Service in respect of the minor regulation which it has managed to bring in. But, of course, even there questions arise as to the boundaries of regulation. Those who practise in group therapy, family therapy, behavioural therapy or cognitive therapy would not necessarily think that those were absolutely right. We must be careful not to lose what is a precious historical oddity; namely, the freedom of groups to find new ways to practise and to introduce new concepts to the field. The history of psychiatry in Britain this century has been one of remarkable free scholarship and freedom in serious methods of treatment, despite mistakes and disagreements among those who adopt or do not adopt new methods. In that respect I have always thought that when Sigmund Freud was convinced that he had to leave Vienna, he came to the right place where freedom of inquiry is something which regulation must respect.

Of course, as far as the Bill itself is concerned, I was alerted to the fact that people at the Maudsley Hospital take the view that their doctors are not covered by it. That is correct in so far as every doctor who is subject to the General Medical Council could claim, under Clause 32, to be immune from the Bill's regulation even if they describe themselves, as the Bill states nicely, "expressly or by implication" to partake of psychotherapeutic practice. To that extent the register will be defective in the sense that the man in the street does not think that there is a rigid line between doctors and therapists, or, indeed, between the Maudsley Hospital and the Tavistock Clinic, whatever their agreements or disagreements on methods of treatment. That is a difficult area of the Bill. At Second Reading I merely repeat that it is the work of the noble Lord, Lord Alderdice, with all these groups, that has made it possible to think not merely of regulation by another statute, as in the case of dentists, for example, but of co-operation which members of the profession may extend to one another.

That does not imply that there has to be a core of agreement about training and treatment common to all practitioners but it means that the Bill and those who implement its provisions must largely seek out different aspects of the profession, as he has done.

I could comment on many other aspects of the Bill. However, as a lawyer perhaps my only footnote is that in Committee one must keep an eye on the extent to which undue control might not be compatible with the European Convention on Human Rights. We laymen have to learn a great deal about what matters to the people who work in this field. I did not know until recently that the Guild of Psychotherapists insists that there is a difference between "psychoanalist" and "psycho-Analist". That may seem odd, but it matters to that body. I appreciate its reasons for that distinction.

My experience has been that, in the past, doctors in general practice have not always been exposed in training even to the vocabulary of one or other type of analysis or psychotherapy. They are busy people but they often wish that they could know more clearly about this hinterland. The Bill would help them. One excellent and hard-working general practitioner said to me, "Oh yes, Freud, Jung, Klein: I really would like to read about them—when I retire".

I do not make legalistic or academic points. Under the provisions of the Bill, there are criminal sanctions. I leave aside the details at present. However, in Committee we should debate not merely the Education Committee, the Investigating Committee, and so on, as the noble Lord, Lord Alderdice, suggested, but also define more sharply criminal liability which the Bill encapsulates.

The noble Lord, Lord Hodgson, made this clear. All serious orientations must have some kind of voice in the transitional period. The Bill will be made or broken by what is done by the Privy Council in the transitional period. That view was echoed among the many analysts and others with whom I consulted and at the coalface of treatment by others. From the Tavistock Clinic to what is now the Foundation for Psychology and Counselling, all are aware of the issue. I accept that there is a problem about counselling. We should not seek to include that in the transitional period.

I have omitted many points that I wished to address. However, none of them affects my warm support for the Bill. What was the bombshell for me last night? It was this. On an open fax I received a communication from my noble friend Lord Hunt, the Parliamentary Under-Secretary of State at the department. It is an issue on which we have had several general discussions. The Minister said:
"The Government is currently considering proposals for consultation on an Order under Section 60 of the Health Act 1999 … This would create a new federal and multi-disciplinary Health Professions Council with the power to extend its remit to other groups not currently registered".
He continued that,
"that statutory registration using the powers of the Health Act is the most appropriate way to deal with the regulation of psychotherapists, counsellors and other related groups. We will also assess other important factors such as their readiness for registration and the availability of Parliamentary time with a view to positive and early moves to secure their regulation".
I believe—my belief is shared by others—that an Order in Council under the Health Act 1999, which the Government have lawful authority to produce, would wreck the progress with the Bill that the noble Lord, Lord Alderdice, has made. It is not right for Whitehall simply to grab a convenient area to apply to psychotherapists, counsellors and goodness knows who else. It needs patient work, not an Order in Council, with those who treat patients and want to know—I named earlier such a foundation—where to send their patients and what advice they can obtain. There are two informal registers. Is there a register where they can look up the training of different modalities with regard to particular people?

I do not believe that that objective can be best achieved by an Order in Council. I am sorry to throw in this dissenting note but we would fail the objectives of the Bill and fail the person who drew up the Bill with such hard and patient work if we accepted that the right way forward is by regulation by Order in Council. I am sorry to end on a note of asperity. However, I can avoid that by repeating my congratulations to the noble Lord, Lord Alderdice, on the Bill to which we shall now give a Second Reading.

2.6 p.m.

My Lords, I join in the universal welcome of the principle of this timely legislation. I congratulate the noble Lord, Lord Alderdice, on the Bill, and on the hard work he has put into it.

Through my work at Centrepoint I am aware of increasing numbers of deeply troubled young people in our society. Your Lordships' concern over their predicament was well reflected in the recent debate on marriage and traditional family values and, I have no doubt, will also be reflected in the forthcoming debate on support for boys growing up without the care of a father.

I have witnessed the immense benefit that confused young people can gain from consultation with a well qualified and highly trained psychotherapist. If, in Committee, it becomes clear that the Bill will ensure the highest standards of the profession, if it will enhance the reputation of psychotherapists and thereby encourage many more individuals—sadly, we need many more—to pursue this calling, I hope your Lordships will give it the undivided support it deserves.

2.7 p.m.

My Lords, I join other noble Lords in thanking the noble Lord, Lord Alderdice, for bringing this issue forward. He has given us an opportunity to hear some professional people express their views on a very important subject. I also join the noble Lord, Lord Wedderburn of Charlton, in congratulating the noble Lord, Lord Alderdice, on bringing together so many groups in what he described as a divided profession, which the health service has found very difficult.

I have no difficulty with the principle behind the Bill. I know that there are concerns about psychotherapy practice. Anyone may offer services as a psychotherapist in the private sector without appropriate education or training. A number of high-profile cases of poor practice and abuse of patients leave me in little doubt that action is needed to strengthen regulation.

The public are rightly concerned that when such incidents happen—I am glad to say that they are rare—prompt action should be taken to put them right and to stop them happening again. I am also aware that there are difficulties in assessing appropriate psychological therapies and psychotherapy, not least because the public and employers are uncertain about who is qualified and who is not. That is a particular concern in the private sector, but it is not without difficulty in the National Health Service and the social care services.

However, we cannot accept that the Bill, well intentioned though it is, is the right approach at this time. There are two main reasons. First, as your Lordships are aware, the Government have given a high priority to improving service quality in general in the National Health Service and social care services, as well as in the private sector. A number of initiatives testify to that, including the development of a national service framework, the establishment of the National Institute for Clinical Excellence, the new framework of clinical governance and the proposals set out in the National Health Service Plan.

The noble Lord, Lord Hodgson of Astley Abbots, made an important point about the clinical effectiveness of psychotherapy. The Government are taking action to ensure that practice is evidence-based. We have established a national workforce action team to help us to ensure that the workforce is equipped to deal with mental health problems. It will focus on all members of the workforce in health and social care, including paying some attention to those delivering psychotherapy. We have also commissioned guidelines on treatment choice decisions in psychological therapies and counselling, which will help commissioners, employers and the public to know more about what works for whom in this complex field.

As your Lordships know, the Government believe that a requirement in law to register practitioners is among the strongest protections available to the public. That is why we have made it clear that we wish to work with the health professions to strengthen the system of professional self-regulation, using the order-making power in the Health Act. That is the approach that we propose for the introduction of statutory protection of title for professions, such as psychotherapists, that are not already regulated.

Our proposals for the new health professions council are eminently suitable for the group of psychotherapy professions that we are considering today. Our purpose is to establish universal independent standards of training, conduct and discipline for the protection of the public and to guide employers. Those standards are underpinned by the personal accountability of practitioners and by systems to deal with individuals whose continuing practice represents an unacceptable risk.

In designing the proposals, we have had to find a balance between three interests: the public—the patients and service users—who need effective, evidence-based treatments delivered by trained staff; the professional staff and therapists who provide care and treatment for those in need; and the health service, where the majority of the care and treatment is given.

We want to ensure that regulatory bodies are small enough and sufficiently fast-moving to be able to agree on necessary action and act quickly to respond to patients' needs. That means getting away from the long, tortuous legal procedures which currently are necessary in order to bring about rule changes to address issues in individual professional conduct cases.

We want to ensure that consumer organisations and patients' representative groups are present in force in the new regulatory bodies. We propose a membership ratio of approximately 50:50, with either a lay or professional president. We plan to continue with an approach based on professional self-regulation because the professions support us in upholding professional practice standards. They provide far cases of misconduct or deficient competence to be dealt with speedily. We need to be confident, as do the professionals, that there is sufficient involvement of those who alone have the knowledge to ensure that standards of training and conduct reflect the best professional practice and that those are being upheld.

I have referred to the important needs of the public and the patients. I have also spoken about the interests of the professionals who deliver treatment and care. All those matters must be addressed in a robust system for regulating professional practice. Some of them are addressed in the proposals put forward by the noble Lord, Lord Alderdice. However, what about the interests of the National Health Service and of the professionals and staff, including commissioners and the employers of those who deliver treatment and care? Concern for those interests brings me to the second reason why we do not support the proposals for a stand-alone psychotherapy council.

Psychotherapists are among a number of key professionals who provide psychotherapy services in the National Health Service and social care services, as well as in the private sector. Together with psychiatrists, psychologists, counsellors and others, they play an important part in the delivery of effective "talking treatment".

However, psychotherapists are not the only providers of psychotherapy in the NHS, where the main responsibility for the provision of treatment and care for the public lies. Most talking treatments in the NHS are provided by nurses, social workers, psychiatrists, psychologists and counsellors, some of whom deliver psychotherapy as the main component of their work within the NHS. What impact would the proposals, which concern psychotherapists alone, have upon them?

I cannot agree that an approach which addresses the needs of one group to the exclusion of the others is responsible, even though I readily acknowledge the importance of public protection in the private sector. Although protections are in place for members of the public who seek help through the use of psychological therapies in the National Health Service—for example, employers must be assured that practitioners are qualified for the tasks which they undertake and referrers must be confident that the treatment is right for the condition—we would not be reforming the legislation concerning regulation if we believed that those protections were sufficient.

We must also consider the issues which arise from the delivery of treatments by unregistered practitioners in a number of professional groups; for example, unregistered counsellors deliver treatments in perhaps as many as half our general medical practices, and psychologists are not registered either.

This is an important issue. I cannot accept that where counselling is offered by a trained practitioner to the high standards set by the leading professional bodies it is distinguishable from psychotherapy in anything but name. I cannot accept that the practice of clinical psychologists trained to deliver cognitive behaviour therapy or family therapy, known as psychotherapy, should be outlawed. Therefore, we should not, in all conscience, exclude those providers from our regulatory framework.

Therefore, if we pursue this route to registration, our proposals for the new health professions council will contain significant advantages for those who deliver psychotherapy. First, the proposals contain scope to accommodate the range of modalities for psychotherapy. Secondly, they accommodate the different approaches to psychotherapy and contain scope to accommodate the range of different professionals and responsibilities in this area. Thirdly, they give psychotherapists the benefit of consistency with a much larger group of health professionals, with all that that means in terms of access to good regulatory practice developed over time.

My noble friend Lord Clinton-Davis made a point about analytical psychology. That is a branch of psychotherapy with a distinct and different training. We know that different training standards matter. We can accommodate that. However, what matters about different approaches when it comes to regulation is that they can join others in a common approach in the action to take when a member of the public seeks redress because of poor, unprofessional practice.

We propose to bring together a large number of diverse professions and provide consistent policy and handling of education, training and professional conduct standards by means of statutory joint committees. Those committees will be able to draw on advice from uni-professional advisory panels which will cover the specific concerns and requirements of each profession or each different modality. The council itself will be required to take account of the different needs of each profession or group of professions

That will, we hope, satisfy the need for consistency across the board where it is necessary, and will also provide the need for sensitivity to professional differences. It will give psychotherapists themselves the reassurance that their own specific clinical training, practice and standards will be based on what only they themselves can know. It will also provide reassurance for the public that any problems which might arise from poor practice or conduct by a psychotherapist will be dealt with according to the same rules applying to any other health profession regulated by the new council.

The noble Lord, Lord Alderdice, proposes to protect the title of the psychotherapist so that only those registered as such may use that title. He recognises that members of other professions already regulated elsewhere, for instance by the GMC, practise psychotherapy. The proposals for the health professions council will provide for protection of title and will recognise the need to safeguard members of other professions so that they can continue to practice psychotherapy.

The noble Lord, Lord Hodgson of Astley Abbotts, mentioned "grandfathering"—the process by which existing practitioners might seek registration by virtue of length of practice rather than by meeting professional standards. I hope that that will be covered under our proposals for the health professions council. Our approach will enable professional staff to take pride in ownership of their professional standards and to work with lay people to ensure that those standards are consistently applied.

My noble friend Lord Wedderburn made a point in respect of the view suggesting that the Government's approach would not have the support of the relevant professions and other stakeholders. It is an approach based on the proposals contained in the Bill on professional self-regulation but it offers significant additional benefits.

I know that psychotherapy has much to offer modern mental health and social care. However, we know also that it is a field beset by divisions and differences in training, practice, organisation, commissioning and self-delivery. I want to say therefore how impressed I am with the work of the noble Lord, Lord Alderdice, in bringing together so many different psychotherapy practitioners to discuss those issues. He progressed the debate in a significant way.

I have listened carefully to the case the noble Lord made and to the points made by other noble Lords in the course of the debate. I have no doubt that the case for registration of psychotherapists is a strong one. But while I want to reassure your Lordships about that, I must emphasise that we are convinced that using the powers of the health Acts is the most appropriate way to proceed. It cannot be appropriate to address but one section of the field in a manner which separates it from the approach we propose for the rest.

We believe that the Health Act is the right vehicle for the registration of psychotherapists, counsellors, psychologists and other related groups. We intend to scope the requirements, building on the excellent work started by the noble Lord, and assess the other important factors such as the professionals' readiness for registration and the availability of parliamentary time with a view to positive and early action.

My Lords, before my noble friend sits down—our friendship will long outlast his brief—in view of the novelty of the proposals and the detailed work which has plainly been done in the department, I wonder whether he will undertake to try to send copies of the draft order to those who have spoken in the debate and to place a copy in the Library?

My Lords, I thank the noble Lord for that point. I shall certainly do my best immediately.

2.26 p.m.

My Lords, I am deeply appreciative of the time that noble Lords have given, particularly at this late hour on this day of the week. I deeply appreciate the kind words which have been said and the appropriate tributes which have been paid to the psychotherapy organisations which have been working long and hard on this matter. I value the thoughtful and thorough way in which Members of your Lordships' House have given the Bill their attention at Second Reading.

Perhaps I may briefly respond to a number of the points made. I ask for the indulgence of your Lordships, as I shall want carefully to study Hansard. Some of the speeches have been remarkably detailed and I shall want to study them thoroughly before proceeding to the next stage. I also expect to be in correspondence with a number of Members of your Lordships' House.

I turn to the remarks of the noble Lord, Lord Clinton-Davis, and his kind response, made from a fund of knowledge and long experience in this matter. He mentioned in particular the question of analytical psychology. He will know, as will other noble Lords who have read the Bill, that no modalities are currently mentioned in it. A great deal of discussion has been going on, particularly recently, about precisely how we should deal with the diverse modalities which exist.

I am happy to reassure the noble Lord that when I table an amendment, as I have undertaken to do, analytical psychology will certainly receive a reference. It would be foolish of me to respond immediately about the precise form of such an amendment. However, there is no intention to do other than to value the contribution of analytical psychology and appreciate that it would not help matters for it to be "muddled in" with other things, as the noble Lord put it. A degree of clarity is necessary, although a degree of co-operation is also appropriate between the analytical psychologists and their colleagues. There has been a great deal of such co-operation over the years.

The noble Lord, Lord McColl of Dulwich, also kindly welcomed the Bill. He, too, referred to analytical psychologists and to the fact that the Bill does not address counsellors. That is a difficult issue. It has to be a judgment as to how much can be achieved. However, I gave some thought to the fact that over the past 30 years it has not been possible to achieve success. I shall return to that in my response to the Minister. Given that difficulty, I was perhaps a little more modest in the intention of achieving something, rather than grandiose, with the likely outcome of achieving nothing at all.

The issue of counsellors and counselling needs to be addressed. It may be that that can be done in this way at a subsequent stage or time or that another arrangement is appropriate. However, one should not underestimate the difficulties of addressing the issue.

The noble and learned Lord, Lord Lloyd of Berwick, was most supportive and I appreciate that. He has great experience of professional discipline, particularly with doctors and dentists. His explanations and reference to the role of the Privy Council in this regard is extremely helpful. It will be helpful to many members of the psychotherapy profession who in reading the account of your Lordships' debate will be enlightened in an area which many of them have described to me as somewhat obscure.

I value the noble and learned Lord's appreciation of the reasons for not including counselling at this stage. In the past few years, with my various experiences, I have tended not to set the ideal as an enemy of the good. Sometimes I fear that that can be the case.

The noble Lord, Lord Hodgson, has given considerable thought to the Bill. I deeply appreciate the time and attention he has given to it. I am cautions about trying to refer to all the detailed points he made. They are important and I shall give due consideration to them. In some areas, we may be less at odds than appears to be the case and I believe that that will be evident during our discussions.

In some areas, practical implications are a problem. Perhaps I may give as an example the suspension of a practitioner; for example, a GP or a specialist in a medical area. If he is immediately suspended, some other doctor will immediately be able to undertake the treatment of all his patients. In a context particularly of intensive psychotherapy, where the patients see the same therapist frequently and for long periods of time, simply and immediately to suspend the psychotherapist may help to protect against any violence or harm which might be done to the emotions of a particular complainant but it will almost inevitably also do emotional harm to the other patients who the therapist is managing at the time. Therefore, it cannot be done without due consideration. That was a dilemma which we discussed when exploring the content of the Bill.

However, what the noble Lord said about that and other issues, particularly the involvement of the lay public, is important. Indeed, it has been my lot frequently to explain to my professional colleagues how such regulation will not be acceptable unless there is greater lay participation than would have been the position in the past and may be the case in the Bill. I do not have a closed mind with regard to that.

The noble Lord, Lord Hodgson, mentioned the burden of work which will fall on the members of the council. I readily appreciate that and his comments are worthy of consideration. However, I am given a further opportunity to pay tribute to the enormous amount of work done during the past 20 years by psychotherapists without the benefit of being part of a statutory body but determined to try to produce something good for the profession and protective of the public.

The noble Lord, Lord Wedderburn, has considerable knowledge, particularly as he has worked for some time on the Bill. I greatly value and appreciate his comments. We have discussed the absence of doctors on the register and the possible difficulty with that. Perhaps I may take that matter away and consider it. However, I am cautious about requiring professionals—not only doctors but others—to submit themselves to a whole series of registers and the potential multiple jeopardy of a series of tribunals in the case of a complaint. We must consider that matter.

However, as I turn to what the Minister said, I have ringing in my ears, and with profound sorrow on my part, the warnings which the noble Lord, Lord Wedderburn, gave about the procedure of an order. I am encouraged that the Minister was positive in his general tone. I value and appreciate his comments. Like the noble Lord, Lord Wedderburn, I am now most curious to know the details of the proposals which exist and I am perhaps sufficiently opinionated to have the notion that if they have appeared only now, after some 30 years, the process of the Bill might have a connection. That encourages me not to be wholly negative about the procedure. I do not regard any particular legislative procedure which produces an outcome as sacrosanct. It is the outcome that is important.

I have some questions about the procedure which the Minister said it was important to follow. The noble Lord referred to clinical effectiveness. However, the Minister is aware that this Bill is not about clinical effectiveness, any more than the GMC is the prime body to address the question of medical effectiveness, which is another matter. I readily accept that, as the noble Lord suggests, the NHS is not well dealt with here because doctors, nurses and psychologists do the main work of psychotherapy in the health service. However, the reason for that is that the NHS does not have confidence in employing those who declare themselves to be psychotherapists precisely because there is no agreed statutory registration. Therefore, work in psychotherapy must be carried on by those who may be described as the core professions. In my own psychotherapy department there are doctors, social workers and nurses, all of whom have trained and describe themselves as psychotherapists but can be employed within the health service only because they have also trained and are employed as nurses, doctors, psychologists or whatever. I am not persuaded that without registration in psychotherapy we are protecting the NHS or psychotherapy within it; quite the contrary.

I am puzzled by the question of whether there should be a separate council of the kind that I describe in the Bill or a more amalgamated version, as the Minister appeared to imply. Are we talking about a health services council which truly brings together all the different professions? Can such a council devise appropriate and relevant ethical, training and educational criteria to meet the needs of chiropodists at one end and psychoanalysts at the other? Chiropodists might see someone on one occasion briefly to carry out a minor physical procedure, whereas a psychoanalyst might see a patient five times a week, perhaps for many years, and the vulnerabilities and relationship as between patient and therapist might be wholly different.

There may be a danger that the Government try a one-size-fits-all approach. The dilemma which that creates is that either the one-size stockings (or whatever they be) simply burst, with unhelpful consequences for all, or nothing happens at all. The noble Lord indicated that the Government regretted that such a long time had elapsed without the registration of psychotherapists. I ask the Minister and his colleagues to consider why that is so. Was the approach misguided because it attempted to include everything and ended up by including nothing, while the rather more modest approach that we have adopted has at least achieved some progress in addressing an important matter? Is it better that nothing is done because everything cannot be achieved or that something is achieved and can be built upon?

As we have said recently in Northern Ireland, 30 years is too long a period. We have tried to do something about it. The Minister's colleague spent some time in the Province recently to try to achieve something; and the same may well be said of psychotherapy registration. Thirty years is more than long enough. I commend the Bill to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Terrorism Act 2000 (Code Of Practice On Audio Recording Of Interviews) Order 2001

2.39 p.m.

rose to move, That the draft order laid before the House on 18th December be approved [2nd Report from the Joint Committee].

The noble Lord said: My Lords, I beg to move that the draft Terrorism Act 2000 (Code of Practice on Audio Recording of Interviews) Order 2001 be approved. The purpose of this order is to bring into force the UK-wide code of practice under the Terrorism Act 2000 for the audio recording of terrorist interviews which was laid before this House on 14th December. Under paragraph 3 of Schedule 8 to the Act there is a requirement for the Secretary of State to issue a code of practice about the audio recording of interviews to which that paragraph refers; that is, any interview by a constable of a person detained under Schedule 7 ports powers or Section 41 of the Act, if the interview takes place in a police station.

There is a requirement also for an order to be made under paragraph 3 of Schedule 8 requiring the audio recording of interviews, to which the paragraph refers, in accordance with the code of practice. We propose to make that order in due course, which will ensure that all interviews in a police station by a constable of those detained under Section 41 or Schedule 7 to the Act are carried out in accordance with the code of practice before us.

However, today we are required to deal with the code of practice itself. Your Lordships will be aware that audio recording in respect of non-terrorist interviews has been a welcome protection for police and suspect alike for some time. Indeed, it is already a requirement in terrorism cases in Northern Ireland under the Emergency Provisions Act. Furthermore, police in England and Wales have been audio-recording interviews with terrorist suspects for a while on an administrative basis, aware of the advantages attached. I understand that this is also the practice in Scotland. Consequently, many forces are already persuaded of the benefits of taping such interviews. But, for the first time, this code will set procedures that will apply across the whole of the United Kingdom, introducing common standards and harmonising the audio recording process. Noble Lords may recall that audio recording is a measure commended by the noble and learned Lord, Lord Lloyd of Berwick, in his 1996 review of counter-terrorism legislation. I am happy today to confirm that we believe it will be a welcome step forward.

As your Lordships might expect, the code is based very much on existing audio recording provisions and practice in non-terrorist cases; that is, PACE Code E in England and Wales and its equivalent in Northern Ireland. It is right to look at those procedures for guidance. While the need for separate counterterrorism legislation suggests that there will be occasions when the nature of the offence is such that powers additional to those available to the police to fight crime generally are needed, we see no reason why procedures for audio recording cannot follow closely the PACE model.

Like that model, the audio code under the Terrorism Act covers key aspects of interviewing procedures, including the recording and sealing of master tapes; interviews with the deaf or with those who do not understand English; objections and complaints procedures; tape security and tape destruction; and procedures that cover from beginning to end the interview process. The code has at its annex a notice for those whose interview is audio-recorded under the Act, setting out important information such as the use to which the audio recording will be made; arrangements to access the tape; and the supplying of copies and advice on retention and destruction, which is the sort of information we believe will be of particular interest to suspects.

Your Lordships will be aware that this code has been the subject of consultation with the police a nd others—public consultation is indeed a requirement under the Act—resulting in a number of helpful a nd valuable contributions and suggestions. Inevitably, perhaps, given that the code of practice has as its basis procedures under PACE, a number of those contributions raised issues essentially about PACE. Two examples were highlighted during the debate on this order in another place last week—using interpreters as police officers, and ensuring that the examinee had the opportunity to read any written record of interview. As noble Lords will be aware, the codes of practice under the Police and Criminal Evidence Act 1984 are under review as we speak. That review will not be completed until later this year. Comments and representations on the audio code under the Terrorism Act, such as those to which I have just referred, have therefore been fed into the PACE exercise for careful consideration. We would look to carry across, as appropriate, to an updated audio code of practice any changes to the PACE codes made as a consequence of that exercise.

In conclusion, I repeat our belief that this code introduces welcome safeguards in the procedures for interviewing those detained under the Terrorism Act and, therefore, in the fight against terrorism across the United Kingdom. For those and many other reasons, I commend the order to the House. I beg to move.

Moved, that the draft order laid before the House on 18th December be approved [2nd Report from the Joint Committee].—(Lord Bassam of Brighton.)

2.45 p.m.

My Lords, I thank the noble Lord for his presentation of the order. I am advised by my honourable friends in another place that when the matter was discussed there they were satisfied by the answers given by the Minister of State in response to a number of points that they raised. I therefore have pleasure in supporting the order.

My Lords, I echo the noble Lord's support for the order, although I may take a little longer in doing so. As the Minister indicated, audio recording is now an accepted part of police procedures throughout the United Kingdom and is now a standard part of almost every police television programme. Most of us are familiar with the interruption of the audio recording by someone coming in and Inspector Frost having to say that the recording was interrupted at such and such a time. People understand audio recording and welcome it.

In terms of terrorism legislation and legislation more widely, fears were expressed that there would be tampering, doctoring or misuse. Fears were also expressed that in terrorist investigations audio recording might make police or witnesses vulnerable to later pressures because evidence was on tape. But it seems that fears that were dealt with in consultation have been allayed. The police remain supportive of the legislation and it is also important that the code is now in line with legislation applying in other parts of the United Kingdom.

When we write into our legislation protections which seem to be there for the benefit of the accused, there are those who suggest that we are going soft on terrorism. On the contrary, it is our concern for preserving a common system of justice which is our defiance of terrorists. The more that we can make practices in Northern Ireland compatible with and parallel to those in the rest of the United Kingdom, the more we are showing our defiance of terrorism.

I wish to ask two questions which are genuinely in search of elucidation. Are there plans to bring in at some stage the video recording of evidence? Will that need a separate order or is it already covered?

I have taken a little longer in probing because of what I read in an article on secondary legislation in the Guardian today. The article showed that 2,000 statutory instruments were passed in 1980 and that nearly 3,500 were passed last year. Secondary legislation is important. Often it gives significant powers to authorities in terms of the rights and liberties of the citizen. Therefore, it is incumbent on both Houses to ensure that secondary legislation does not go through simply on the nod. However, as the noble Lord indicated, our colleagues in another place went into the specifics in some detail. The Minister's honourable friend, Mr Charles Clarke, gave what I thought were clear explanations on most of the concerns expressed, although, as he indicated, we on these Benches will be looking to the PACE review to examine the implications for this and other orders.

With those comments, like the noble Lord, Lord Burnham, I support the order.

My Lords, I am most grateful to the noble Lord, Lord Burnham, for expressing his satisfaction with and support for this order. I welcome that support. We try to achieve a consensus across the parties on these matters. Once again, he has demonstrated his support in the way I would have expected of him.

Perhaps I may turn to the comments of the noble Lord, Lord McNally. I tread with a little trepidation here. Whenever the noble Lord and I hold a debate on orders, those debates tend to end up discussed either in the Evening Argus or on the front page of The Times, although I doubt whether this exchange will achieve those great heights.

My Lords, perhaps the Belfast Telegraph would be more relevant in some respects.

The noble Lord made a number of helpful comments. I shall pick out two of those. He is absolutely right to say that fears about audio recordings expressed in the early 1980s by what might be called liberals with a small "1", who were extremely concerned about the impact on the relationship between the police, suspects and the criminal justice process, have now melted away. The police on one side and solicitors and suspects on the other have, over time, recognised the long-term benefits of making an accurate audio recording.

The noble Lord made a second helpful point when he said that what we are trying to achieve in counterterrorism legislation is to keep the procedures very much within the criminal orbit. The closer we can maintain that orbit is all only to the good. The noble Lord made that point very well indeed.

The noble Lord asked a question about video recording. He will be aware that this order does not authorise or introduce video recording, but the Act does enable the video recording of terrorist suspects to take place, with or without sound. It is worth putting on the record that the RUC will move from silent to sound and vision recording in Northern Ireland on the implementation of the Act on 19th February, when it is scheduled to come into force. The police generally in Great Britain are not opposed in principle to the video recording of terrorist interviews, but a number of practical and technical issues will need to be resolved before that can be taken forward here.

The noble Lord asked precisely whether that development would require another order. The answer to that question is yes. That will provide us with a valuable opportunity to conduct an important scrutiny of the issue when it is brought forward. All noble Lords have agreed on many occasions in the past that such scrutiny is extremely important. We try to give these matters very careful consideration.

Having made those comments, I hope that noble Lords will feel able to approve the order. This marks an important step forward in ensuring that we achieve fair play and a sense of balance in the way in which suspects are interviewed. A record will be kept which will be of benefit both to the suspect and to the police and prosecuting authorities.

On Question, Motion agreed to.

House adjourned at six minutes before three o'clock.