(HANSARD) HOUSE OF LORDS · Sarah McCarthy-Fry, MP Communities and Local Government— SECRETARY OF...

Vol. 708No. 34

Monday23 February 2009

P A R L I A M E N T A R Y D E B A T E S

(HANSARD)

HOUSE OF LORDSOFFICIAL REPORT

O R D E R O F BU S I N E S S

Death of a MemberAnnouncement

QuestionsElections: Members of the House of LordsEnergy: Nuclear IndustrySri LankaAirports: Canada Geese

Geneva Conventions and United Nations Personnel (Protocols) Bill [HL]Order of Commitment discharged

Marine and Coastal Access Bill [HL]Committee (Fifth Day)

Criminal Defence Service (Information Requests) Regulations 2009Motion to Approve

Marine and Coastal Access Bill [HL]Committee (Fifth Day) (continued)

Grand CommitteeHealth Bill [HL]

Committee (First Day)

Written StatementsWritten AnswersFor column numbers see back page

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HER MAJESTY’S GOVERNMENTPRINCIPAL OFFICERS OF STATE

THE CABINETPRIME MINISTER, FIRST LORD OF THE TREASURY AND MINISTER FOR THE CIVIL SERVICE—The Rt. Hon. Gordon Brown, MPCHANCELLOR OF THE EXCHEQUER—The Rt. Hon. Alistair Darling, MPSECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS—The Rt. Hon. David Miliband, MPSECRETARY OF STATE FOR JUSTICE AND LORD CHANCELLOR—The Rt. Hon. Jack Straw, MPSECRETARY OF STATE FOR THE HOME DEPARTMENT—The Rt. Hon. Jacqui Smith, MPSECRETARY OF STATE FOR HEALTH—The Rt. Hon. Alan Johnson, MPSECRETARY OF STATE FOR BUSINESS, ENTERPRISE AND REGULATORY REFORM—The Rt. Hon. Lord MandelsonSECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS—The Rt. Hon. Hilary Benn, MPSECRETARY OF STATE FOR INTERNATIONAL DEVELOPMENT—The Rt. Hon. Douglas Alexander, MPSECRETARY OF STATE FOR DEFENCE—The Rt. Hon. John Hutton, MPLEADER OF THE HOUSE OF COMMONS, LORD PRIVY SEAL AND MINISTER FOR WOMEN AND EQUALITY—The Rt. Hon. Harriet

Harman, QC, MPSECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT—The Rt. Hon. Hazel Blears, MPSECRETARY OF STATE FOR TRANSPORT—The Rt. Hon. Geoff Hoon, MPSECRETARY OF STATE FOR CHILDREN, SCHOOLS AND FAMILIES—The Rt. Hon. Ed Balls, MPSECRETARY OF STATE FOR ENERGY AND CLIMATE CHANGE—The Rt. Hon. Ed Miliband, MPSECRETARY OF STATE FOR WORK AND PENSIONS—The Rt. Hon. James Purnell, MPSECRETARY OF STATE FOR NORTHERN IRELAND—The Rt. Hon. Shaun Woodward, MPLEADER OF THE HOUSE OF LORDS AND LORD PRESIDENT OF THE COUNCIL—The Rt. Hon. Baroness Royall of BlaisdonSECRETARY OF STATE FOR CULTURE, MEDIA AND SPORT—The Rt. Hon. Andy Burnham, MPSECRETARY OF STATE FOR INNOVATION, UNIVERSITIES AND SKILLS—The Rt. Hon. John Denham, MPCHIEF SECRETARY TO THE TREASURY—The Rt. Hon. Yvette Cooper, MPSECRETARY OF STATE FOR WALES—The Rt. Hon. Paul Murphy, MPSECRETARY OF STATE FOR SCOTLAND—The Rt. Hon. Jim Murphy, MP

DEPARTMENTS OF STATE AND MINISTERS

Business, Enterprise and Regulatory Reform—SECRETARY OF STATE—The Rt. Hon. Lord MandelsonMINISTERS OF STATE—

The Rt. Hon. Pat McFadden, MPMr Gareth Thomas, Esq., MPThe Lord Davies of Abersoch, CBE

PARLIAMENTARY UNDER-SECRETARIES OF STATE—The Baroness VaderaThe Lord Carter of BarnesIan Pearson, Esq., MP

Cabinet Office—MINISTER FOR THE CABINET OFFICE AND CHANCELLOR OF THE DUCHY OF LANCASTER—The Rt. Hon. Liam Byrne, MPMINISTER FOR THE OLYMPICS AND PAYMASTER-GENERAL—The Rt. Hon. Tessa Jowell, MPPARLIAMENTARY SECRETARIES—

Kevin Brennan, Esq., MPTom Watson, Esq., MPThe Baroness Vadera

Children, Schools and Families—SECRETARY OF STATE—The Rt. Hon. Ed Balls, MPMINISTER OF STATE —The Rt. Hon. Jim Knight, MPMINISTER OF STATE AND MINISTER FOR THE NORTH-WEST—The Rt. Hon. Beverley Hughes, MPPARLIAMENTARY UNDER-SECRETARIES OF STATE—

The Baroness Morgan of DrefelinSarah McCarthy-Fry, MP

Communities and Local Government—SECRETARY OF STATE—The Rt. Hon. Hazel Blears, MPMINISTERS OF STATE—

The Rt. Hon. Margaret Beckett, MPThe Rt. Hon. John Healey, MP

PARLIAMENTARY UNDER-SECRETARIES OF STATE—The Baroness Andrews, OBESadiq Khan, Esq., MPIain Wright, Esq., MP

Culture, Media and Sport—

SECRETARY OF STATE—The Rt. Hon. Andy Burnham, MP

PARLIAMENTARY UNDER-SECRETARIES OF STATE—Gerry Sutcliffe, Esq., MPBarbara Follett, MPThe Lord Carter of Barnes

Defence—

SECRETARY OF STATE—The Rt. Hon. John Hutton, MP

MINISTER OF STATE—The Rt. Hon. Bob Ainsworth, MP

PARLIAMENTARY UNDER-SECRETARIES OF STATE—Quentin Davies, Esq., MPKevan Jones, Esq., MPThe Rt. Hon. Baroness Taylor of Bolton

Energy and Climate Change—

SECRETARY OF STATE—The Rt. Hon. Ed Miliband, MP

MINISTERS OF STATE—Mike O’Brien, Esq., MPThe Lord Hunt of Kings Heath

PARLIAMENTARY UNDER-SECRETARY OF STATE—Joan Ruddock, MP

Environment, Food and Rural Affairs—

SECRETARY OF STATE—The Rt. Hon. Hilary Benn, MP

MINISTERS OF STATE—The Rt. Hon. Jane Kennedy, MPThe Lord Hunt of Kings Heath

PARLIAMENTARY UNDER-SECRETARY OF STATE—Huw Irranca-Davies, Esq., MP

Foreign and Commonwealth Office—

SECRETARY OF STATE—The Rt. Hon. David Miliband, MP

MINISTERS OF STATE—The Rt. Hon. Caroline Flint, MPThe Rt. Hon. Lord Malloch-Brown, KCMGBill Rammell, Esq., MPThe Lord Davies of Abersoch, CBE

PARLIAMENTARY UNDER-SECRETARY OF STATE—Gillian Merron, MP

Government Equalities Office—

MINISTER FOR WOMEN AND EQUALITY—The Rt. Hon. Harriet Harman, QC, MP

PARLIAMENTARY UNDER-SECRETARY OF STATE—Maria Eagle, MP

Health—

SECRETARY OF STATE—The Rt. Hon. Alan Johnson, MP

MINISTERS OF STATE—The Rt. Hon. Dawn Primarolo, MPBen Bradshaw, Esq., MPPhil Hope, Esq., MP

PARLIAMENTARY UNDER-SECRETARIES OF STATE—The Lord Darzi of Denham, KBEAnn Keen, MP

Home Office—

SECRETARY OF STATE—The Rt. Hon. Jacqui Smith, MP

MINISTERS OF STATE—Phil Woolas, Esq., MPVernon Coaker, Esq., MP

PARLIAMENTARY UNDER-SECRETARIES OF STATE—The Lord West of Spithead, GCB, DSCMeg Hillier, MPAlan Campbell, Esq., MP

ii

Innovation, Universities and Skills—SECRETARY OF STATE—The Rt. Hon. John Denham, MPMINISTERS OF STATE—

The Rt. Hon. David Lammy, MPThe Lord Drayson

PARLIAMENTARY UNDER-SECRETARIES OF STATE—Siôn Simon, Esq., MPThe Lord Young of Norwood Green

International Development—SECRETARY OF STATE—The Rt. Hon. Douglas Alexander, MPMINISTER OF STATE—Gareth Thomas, Esq., MPPARLIAMENTARY UNDER-SECRETARIES OF STATE—

Ivan Lewis, Esq., MPMichael Foster, Esq., MP

Justice—SECRETARY OF STATE—The Rt. Hon. Jack Straw, MPMINISTERS OF STATE—

The Rt. Hon. David Hanson, MPThe Rt. Hon. Michael Wills, MP

PARLIAMENTARY UNDER-SECRETARIES OF STATE—Bridget Prentice, MPMaria Eagle, MPThe Lord BachShahid Malik, Esq., MP

Law Officers’ Department—ATTORNEY-GENERAL—The Rt. Hon. Baroness Scotland of Asthal, QCSOLICITOR-GENERAL—Vera Baird, QC, MPADVOCATE-GENERAL FOR SCOTLAND—The Lord Davidson of Glen Clova, QC

Leader of the House of Commons—LEADER OF THE HOUSE OF COMMONS, LORD PRIVY SEAL AND MINISTER FOR WOMEN AND EQUALITY—The Rt. Hon. HarrietHarman, QC, MPDEPUTY LEADER OF THE HOUSE OF COMMONS—Chris Bryant, Esq., MP

Northern Ireland—SECRETARY OF STATE—The Rt. Hon. Shaun Woodward, MPMINISTER OF STATE—Paul Goggins, Esq., MP

Privy Council Office—LORD PRESIDENT OF THE COUNCIL AND LEADER OF THE HOUSE OF LORDS—The Rt. Hon. Baroness Royall of Blaisdon

Scotland Office—SECRETARY OF STATE—The Rt. Hon. Jim Murphy, MPPARLIAMENTARY UNDER-SECRETARY OF STATE—Ann McKechin, MP

Transport—SECRETARY OF STATE—The Rt. Hon. Geoff Hoon, MPMINISTER OF STATE—The Lord AdonisPARLIAMENTARY UNDER-SECRETARIES OF STATE—

Jim Fitzpatrick, Esq., MPPaul Clark, Esq., MP

Treasury—PRIME MINISTER, FIRST LORD OF THE TREASURY AND MINISTER FOR THE CIVIL SERVICE—The Rt. Hon. Gordon Brown, MPCHANCELLOR OF THE EXCHEQUER—The Rt. Hon. Alistair Darling, MPCHIEF SECRETARY—The Rt. Hon. Yvette Cooper, MPFINANCIAL SECRETARY—The Rt. Hon. Stephen Timms, MPEXCHEQUER SECRETARY—Angela Eagle, MPECONOMIC SECRETARY—Ian Pearson, Esq., MPPARLIAMENTARY SECRETARY—The Rt. Hon. Nick Brown, MPMINISTER OF STATE—Phil Woolas, Esq., MPFINANCIAL SERVICES SECRETARY—The Lord Myners

iii

LORDS COMMISSIONERS—Frank Roy, Esq., MPSteve McCabe, Esq., MPDavid Watts, Esq., MPTony Cunningham, Esq., MPBob Blizzard, Esq., MP

ASSISTANT WHIPS—Ms Diana Johnson, MPMark Tami, Esq., MPMs Dawn Butler, MPHelen Goodman, MPHelen Jones, MPIan Lucas, Esq., MPIan Austin, Esq., MPBarbara Keeley, MPChris Mole, Esq., MP

Wales Office—SECRETARY OF STATE—The Rt. Hon. Paul Murphy, MPPARLIAMENTARY UNDER-SECRETARY OF STATE—Wayne David, Esq., MP

Work and Pensions—SECRETARY OF STATE—The Rt. Hon. James Purnell, MPMINISTERS OF STATE—

The Rt. Hon. Tony McNulty, MPThe Rt. Hon. Rosie Winterton, MP

PARLIAMENTARY UNDER-SECRETARIES OF STATE—Jonathan Shaw, Esq., MPKitty Ussher, MPThe Lord McKenzie of Luton

Her Majesty’s Household—LORD CHAMBERLAIN—The Rt. Hon. Earl Peel, GCVOLORD STEWARD—The Duke of Abercorn, KGMASTER OF THE HORSE—The Lord VesteyLORDS IN WAITING—

The Viscount BrookeboroughThe Lord Faringdon

TREASURER AND MINISTER FOR THE NORTH-EAST OF ENGLAND—The Rt. Hon. Thomas McAvoy, MPCOMPTROLLER—The Rt. Hon. John Spellar, MPVICE-CHAMBERLAIN—Claire Ward, MP

Government Whips, House of Lords—CAPTAIN OF THE GENTLEMEN-AT-ARMS (CHIEF WHIP)—The Lord Bassam of BrightonCAPTAIN OF THE YEOMEN OF THE GUARD (DEPUTY CHIEF WHIP)—The Rt. Hon. Lord Davies of OldhamLORDS IN WAITING—

The Lord BachThe Lord BrettThe Lord Patel of BradfordThe Lord TunnicliffeThe Lord Young of Norwood Green

BARONESSES IN WAITING—The Baroness Farrington of RibbletonThe Baroness Thornton

iv

HOUSE OF LORDSPRINCIPAL OFFICE HOLDERS AND STAFF

LORD SPEAKER—The Rt. Hon. The Baroness HaymanCHAIRMAN OF COMMITTEES—The Lord Brabazon of TaraPRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES—The Rt. Hon. Lord RoperCLERK OF THE PARLIAMENTS—M. G. PownallCLERK ASSISTANT AND CLERK OF LEGISLATION—D. R. Beamish, LL.MREADING CLERK AND CLERK OF THE OVERSEAS OFFICE—R. H. Walters, D.PhilGENTLEMAN USHER OF THE BLACK ROD AND SERJEANT-AT-ARMS—Lieutenant-General Sir Michael Willcocks, KCBCOUNSEL TO THE CHAIRMAN OF COMMITTEES—A. Roberts; M. Thomas; P. MilledgeCLERK OF THE JUDICIAL OFFICE AND REGISTRAR OF LORDS’ INTERESTS—B. P. KeithCLERK OF COMMITTEES —E. C. OllardLEGAL ADVISER TO THE HUMAN RIGHTS COMMITTEE—M. R. HuntDIRECTOR OF INFORMATION SERVICES AND LIBRARIAN—Dr E. Hallam SmithFINANCE DIRECTOR—Dr F. P. TudorDIRECTOR OF PARLIAMENTARY ICT SERVICE—Mrs J. MillerCLERK TO THE EU COMMITTEE—A. MakowerCLERK OF PUBLIC AND PRIVATE BILLS—T. V. MohanEXAMINERS OF PETITIONS FOR PRIVATE BILLS—T. V. Mohan; L.C. Laurence SmythDIRECTOR OF HUMAN RESOURCES—S. P. BurtonCHANGE MANAGER—Mrs M. E. OllardCLERK OF DELEGATED LEGISLATION—J. VaughanCLERK OF THE JOURNALS—C. S. Johnson, D.PhilCLERKS OF SELECT COMMITTEES—Ms C. Salmon Percival; Ms C. K. S. K. MawsonCLERK OF THE RECORDS—Dr C. ShentonEDITOR OF THE OFFICIAL REPORT—A. S. NichollsHEAD OF FINANCE—J. P. SmithSENIOR CLERKS—Miss A. E. Murphy; R. A. McLean, Ph.D; Miss A. L. Nelson; N. M. Besly; E. P. Lock; Miss S. E. Michell;

R. R. Neal, Ph.D; D. J. Sagar; T. W. G. Wilson; M. H. Collon; W. Sinton; Mrs K. Colvin; J. Johnston; R. PublicoverCLERKS—S. J. Blackburn; Miss S. L. Jones; Miss S. E. Street; Mrs E. Rubio; Ms J. Labeta; J. Whittle; Ms K. Meanwell;

R. Whiteway; A. Willott; J. TurnerDIRECTOR OF PUBLIC INFORMATION—Miss M. MorganHEAD OF CATERING SERVICES—T. D. LammingPRIVATE SECRETARY TO THE CLERK OF THE PARLIAMENTS—Ms E. Baldock, D.PhilPRIVATE SECRETARY TO THE LORD SPEAKER —Ms J. BrookeHEAD OF INTERNAL AUDIT—P. M. ThompsonCLERK OF THE PRINTED PAPER OFFICE—Miss K. P. S. KavanaghSTAFF ADVISER—R. G. DurrantINTERNAL COMMUNICATIONS MANAGER—Ms A. CouchHEAD OF OUTREACH—Ms L. CromptonFINANCE DEPARTMENT—DEPUTY HEADS OF FINANCE—R. Gee; Miss M. MarshallBLACK ROD’S OFFICE—YEOMAN USHER OF THE BLACK ROD AND DEPUTY SERJEANT-AT-ARMS—Brigadier H. D. C. Duncan, MBEADMINISTRATION OFFICER—Colonel E. Lloyd-JukesSTAFF SUPERINTENDENT—Major A. M. Charlesworth, BEMPRINCIPAL DOORKEEPER—K. C. PhippsSECOND PRINCIPAL DOORKEEPER—D. P. EvansCOMMITTEE OFFICE—DEPUTY LEGAL ADVISER, EUROPEAN UNION COMMITTEE—A. RidoutASSISTANT LEGAL ADVISER, EUROPEAN UNION COMMITTEE—T. MitchellCOMMITTEE SPECIALISTS—Miss A. Baldaccini; O. Fox; A. Dillon; B. Nathanson; S. Seawright; S. Stoner; Miss L. BonacorsiHUMAN RESOURCES OFFICE—DEPUTY DIRECTOR OF HUMAN RESOURCES—J. SellerHANSARD—DEPUTY EDITOR OF THE OFFICIAL REPORT—A. P. MarshASSISTANT AND MANAGING EDITORS OF THE OFFICIAL REPORT—J. C. Donoghue; Mrs G. Hoffmann; J. S. Vice; M. J. Lowes;

Ms E. Watterson; W. Humphreys-Jones; G. S. J. Wigmore

REPORTERS—Mrs J. K. Dixon; Mrs S. E. Hussey; L. P. Blud; Mrs G. J. Reding; Mrs H. M. Edwards; Mrs B. Franzmann;B. Tottle; J. O’Donoghue; Mrs C. A. Vivian; Ms L. Linchis; Mrs S. B. Delaney; S. Page; Ms S. M. White; J. R. W. Nesbitt;Miss Z. C. Robinson; B. J. R.Woodhams; H. F. Ellingsen; Mrs I. Stringer; Ms C. Treanor

JUDICIAL OFFICE —DEPUTY HEAD OF THE JUDICIAL OFFICE & ACTING REGISTRAR TO THE UK SUPREME COURT—Mrs L. Di MambroJUDICIAL TAXING CLERK—I. SewellLEGAL ASSISTANTS TO LAW LORDS—Dr J. Kinghan, Ms E. Prochaska; C. Stephen; J. TownsendLEGISLATION—COMMITTEE ADVISERS, SELECT COMMITTEE OF THE MERITS OF STATUTORY INSTRUMENTS—Mrs J. White; P. N. BristowLIBRARY—DEPUTY LIBRARIAN—Miss I. L. Victory, Ph.DHEAD OF RESEARCH SERVICES—A. Brocklehurst;SENIOR LIBRARY CLERKS—I. S. Cruse; P. M. Vollmer; C. J. Clarke; Ms E. ShepherdLIBRARY CLERK—Mrs H. EvennettRESOURCES AND SYSTEMS LIBRARIAN—C. RossREFERENCE SERVICES LIBRARIAN—Miss S. K. Fairweather;TECHNICAL SERVICES LIBRARIAN—Mrs R. S. KingRESEARCH SERVICES AND LEGAL INFORMATION LIBRARIAN—G. R. DymondSENIOR ASSISTANT LIBRARIANS— Miss P. Ward; R. L. Anthony; Ms A. M. Reilly; A. J. Zelinger; Ms T. Preece;

Miss R. A. Hardwick; Mrs R. E. Wright; Miss T. Boström; J. Greenhead; Ms J. DaviesASSISTANT LIBRARIAN—Miss L. BentleyPARLIAMENTARY ICT SERVICE—DIRECTOR OF OPERATIONS AND MEMBER SERVICES—M. TaylorDIRECTOR OF RESOURCES—Ms E. HonerDIRECTOR OF PROGRAMMES & PROJECT DEVELOPMENT—R. WareDIRECTOR OF TECHNOLOGY—I. MontgomeryCUSTOMER SERVICES MANAGER—S. JuddMEMBERS’ COMPUTING OFFICER (LORDS)—Mrs L. MiddaTELECOMMUNICATIONS MANAGER—Miss C. RobertsonPARLIAMENTARY ARCHIVES—ASSISTANT CLERKS OF THE RECORDS—D. L. Prior, Ms F. P. Grey; A. Brown

RECORDS MANAGER—Ms K. Barata

ARCHIVIST—Ms M. C. TakayanagiREFRESHMENT DEPARTMENT—CHEF—M. Thatcher

DEPUTY CHEF—M. P. Stevenson

CATERING MANAGERS—B. Lammoglia; Miss C. Sutton; A. S. Leaper; C. Hever; S. Taieb Ben Abbas

SENIOR EXECUTIVE OFFICERS—Miss C. A. Bolton; M. C. Cooper; Miss R. M. Best; Mrs C. Chipperfield; Miss S. Kunert

HIGHER EXECUTIVE OFFICERS—Miss M. P. Pieroni; N. I. Cross; G. M. Quin; C. J. Nicholls; O. Barreto; Mrs S. Libby;Miss E. M. Jones; M. Simpson; Mrs I. S. Bowles; M. A. Khan; Miss A. R. Stockwell; Mrs Ž. Paul; Ms R. E. Williams;N. A. Jackson; Ms M. Buck; Ms S. Whitley; Ms B. Shah; P. Langridge; P. Beresford; Ms A. Witcher; J. W. Bowyer;Miss A. Onatade

EXECUTIVE OFFICERS—S. J. Connor; Mrs S. K. Cooper; S. P. Jones; Ms A. Pickering; Miss S. W. Lee; R. S. Harrison;F. O. Johnson; S. Gough; M. Troke; Miss S. Conway; P. C. Goldstein; Miss A. Connelly; J. T. Rhodes; Miss J. Lynch;Mrs S. L. Kerr; B. K. Opuni; Miss O. J. Clear; Miss S. J. Lapidge; J. Wasley; C. Hofton; Mrs C. Hook;Miss S. Robertson; J. Breslin; Miss E. Judah; Mrs F. Parker; Mrs S. Rabadia; I. Hopkins; Miss F. Mahon; J. Topping;Miss K. Banerjee; P. Sargent; Miss L. Bourke

CLERK OF THE CROWN IN CHANCERY—S. Chakrabarti KCB

PARLIAMENTARY SECURITY CO-ORDINATOR—P. D. Mason

SHORTHAND WRITER TO THE HOUSE—Ms J. Littlewood

DEPUTY SHORTHAND WRITER TO THE HOUSE—Mrs R. Green

DIRECTOR OF PARLIAMENTARY BROADCASTING—T. Jeffes

PARLIAMENTARY DIRECTOR OF ESTATES —M. Barlex

HEAD OF OCCUPATIONAL HEALTH SAFETY AND WELFARE SERVICES—Dr Marianne McDougall

HEALTH AND SAFETY MANAGER—Ms E. Cameron

OCCUPATIONAL HEALTH AND WELFARE MANAGER—Mrs A. Mossop

OCCUPATIONAL HEALTH ADVISER—Miss C. Evans

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PRACTICE NURSES—Ms K. St Cyr; Mrs M. Mainland; Mrs L. WalshWELFARE OFFICER—Ms T. HarrisHEAD OF SECURITY—Chief Superintendent E. BatemanPOSTMASTER—M. PearceTRAVEL OFFICE MANAGER—Ms K. White

23 February 2009

vii

THE

PARLIAMENTARY DEBATES(HANSARD)

IN THE FOURTH SESSION OF THE FIFTY-FOURTH PARLIAMENT OF THEUNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

COMMENCING ON THE ELEVENTH DAY OF MAY IN THEFIFTY-FOURTH YEAR OF THE REIGN OF

HER MAJESTY QUEEN ELIZABETH II

FIFTH SERIES VOLUME DCCVIII

THIRD VOLUME OF SESSION 2008-9

House of LordsMonday, 23 February 2009.

2.30 pm

Prayers—read by the Lord Bishop of Chichester.

Death of a Member: Lord Dearing

Announcement

The Lord Speaker (Baroness Hayman): My Lords, itis with deep regret that I have to inform the House ofthe death of Lord Dearing on 19 February. On behalfof the whole House, I extend our sympathy to thenoble Lord’s family and friends.

Elections: Members of the House of Lords

Question

2.37 pm

Asked By Lord Dubs

To ask Her Majesty’s Government whether theywill extend the right to vote in general elections toMembers of the House of Lords.

The Parliamentary Under-Secretary of State, Ministryof Justice (Lord Bach): My Lords, the Government’sWhite Paper on House of Lords reform proposed thatMembers of a reformed second Chamber should beable to vote in elections to both the House of Commonsand to the reformed second Chamber. The proposalswould enable all members of the peerage and newMembers of the second Chamber to vote in all elections.

Lord Dubs: My Lords, I am grateful to my noblefriend for that Answer, although it suggests that nothingwill happen very soon. Can he confirm that, as the

result of a decision by the European Court of HumanRights, the Government are now working out how togive the right to vote to prisoners in our jails? If that isthe case, would it not be invidious if prisoners were tohave the vote—I welcome the fact that they are to haveit—but we were debarred from voting until some timein the distant future?

Lord Bach: My Lords, if it was the distant future itmight be invidious, but the White Paper makes it clearthat the proposal for constitutional change is thatafter the next election, each party having published itsown views on this matter in its manifesto, a Bill will bebrought before Parliament that will include in it theright of Members of this House to vote. That issomething that we would all like to see.

Lord Waddington: My Lords, does not the Questionrefer to the situation at the present time? Does theMinister agree that it would be quite extraordinary ifwe, who already have a vote in Parliament, were toclaim the right to have someone represent us here?

Lord Bach: My Lords, the position is as it is at thepresent time. In repeating myself for the third timealready, with a reformed House of Lords, which wehope to see quite early in a new Parliament, thatposition would then be altered. For my part, I have tosay that I very much welcome the prospect of voting ina general election.

Lord Elystan-Morgan: My Lords, can the nobleLord tell the horse—

Noble Lords: Oh!

Lord Elystan-Morgan: My Lords, shall I try again?Can the noble Lord tell the House what was the basicrationale that caused Peers to be disenfranchised sideby side with felons, enemy aliens and lunatics, anddoes that rationale still hold water?

Lord Bach: My Lords, I thought that that questionmight arise, and here is the answer. Parliament consistsof three estates: the Sovereign, the Lords and theCommons. The Lords sit in their own right whileMembers of the Commons are elected by the remainderof the estate of commoners to represent them inParliament. There was therefore no case for the Lordsto vote to elect representatives since they were able tosit in Parliament anyway. Further, even if they hadvoted, they did not belong to the estate from which theCommons was elected and which it represented. Ishould add that the great American president, ThomasJefferson, had another view on why the Commonspassed this declaration in 1699, but I shall not troublethe House with it today.

Lord Maclennan of Rogart: My Lords, the Minister’sexpression of hope for reform of our Chamber may beshared by many, but surely the Government are in aposition to assert their intention to rectify this individualwrong. Although Jefferson announced his views along time ago, Senators in the United States can votefor Congressmen today and have been able to do so forsome time. Surely we can take a leaf out of that book.

Lord Bach: My Lords, on the whole, we do notbelieve that bits of legislation around the House ofLords should be introduced in small packages. Theremay be an exception to be had given recent allegationsconcerning disciplinary matters but, on the whole, ourview remains the same. Comprehensive reform of thisHouse, including the subject of the Question today,would, without support from all parties, risk throwingaway what the parties have done so far to reachagreement. We intend to put a comprehensive packageof reform to the electorate as a manifesto commitmentat the next election. I think and hope that the House iswith us in believing that it is much better to do thisthan to rush through full-scale reform without agreementor time to develop well considered proposals.

Lord Howarth of Newport: My Lords, does mynoble friend accept that the rationale that he gave inresponse to the noble Lord, Lord Elystan-Morgan, onwhy Members of this House should not have a vote inelections to the House of Commons is entirelyunconvincing? Is not the question of whether thisHouse is to be appointed or elected irrelevant? If thereis no good reason why Members of this House shouldnot be able to vote, and if, as my noble friend suggested,there is to be early legislation on certain reforms of theHouse, will he ensure that this matter is dealt with inthat legislation?

Lord Bach: My Lords, I said that there might belegislation, not that there would be. We do not thinkthat this issue should be part of what will, if there islegislation, be around disciplinary matters alone.

Lord Tebbit: My Lords, is it not extraordinary thatthe Government should devote their time to this issuewhen there are so many others to be resolved? Theelectors outside this House will be amazed that theGovernment are devoting so much attention to it inthe midst of the financial incompetence and economicproblems that the Government have wished upon us.

Lord Bach: My Lords, I have been trying to say thatwe have not been devoting much time to the issueraised by my noble friend Lord Dubs.

Lord Elis-Thomas: My Lords, I ask the Minister foradvice on a personal dilemma. I am a former electedMember of the House of Commons, a Member ofthis House and, of course, an elected Member of theNational Assembly for Wales. I can vote in NationalAssembly elections and council elections and yet amstill debarred from influencing what goes on down theCorridor. How soon am I to be delivered from thisconundrum?

Lord Bach: My Lords, I come back to what I said atthe start: if, after the next election, a Bill to reform thisHouse can be passed through Parliament, the nobleLord can rest fairly assured that one of the provisionsof that Bill will be that he will be able to vote at thegeneral election after next.

Baroness Whitaker: My Lords, does my noble friendagree that the allegation of the noble Lord, LordTebbit, that the Government are financially incompetentand have wished our current economic woes upon us isspectacularly inaccurate?

Lord Bach: My Lords, I listened very carefully towhat the noble Lord, Lord Tebbit, said. I do not thinkthat, for once, he mentioned the Government. I wasgoing to congratulate him on his statesmanship in notdoing so, but if he did mean to have a go at theGovernment, he is quite wrong.

Energy: Nuclear Industry

Question

2.45 pmAsked By Lord Jenkin of Roding

To ask Her Majesty’s Government what assessmentthey have made of the level of recruitment into thenuclear industry and of progress in the provision oftraining of staff for work at all levels in the industry.

The Minister of State, Department of Energy andClimate Change & Department for Environment, Foodand Rural Affairs (Lord Hunt of Kings Heath): MyLords, Cogent, the sector skills council responsible fornuclear, is undertaking a large study to assess thenuclear skills requirements across all sectors over thenext few decades. This work will be complete aroundthe end of summer of this year.

Lord Jenkin of Roding: My Lords, that is all verywell, but is not the immediate problem much moreserious than that? Does the Minister realise that thegreatest problem that the industry now faces is theinability of the nuclear regulator to recruit and trainthe staff needed to perform its functions, particularlythe generic design assessment of new designs? Is it notalso the case that Dr Tim Stone, the Government’sadviser, specifically recommended to Ministers thatcertain rigid Civil Service rules about salaries in the

3 4[LORDS]Elections: House of Lords Energy: Nuclear Industry

first two years of employment should not apply to thenuclear regulator, given its staffing difficulties? Whyhave the Government refused to implement thatrecommendation?

Lord Hunt of Kings Heath: My Lords, the nobleLord is right to draw attention to some of the pressuresthat have faced the Nuclear Installations Inspectorate.Dr Tim Stone was commissioned to carry out a review,as a result of which a short-term pay deal is undernegotiation with the trade unions. That will introducea range of factors that we hope will address some ofthe short-term recruitment and retention problems. Asatellite office is being established in London and oneis to be established in Cheltenham, which are bothstrategic locations for recruitment. A restructuring ofthe nuclear inspectorate is proposed to deal with thevery issues that the noble Lord has rightly raised.

Lord O’Neill of Clackmannan: My Lords, does mynoble friend agree that the picture is not quite asgloomy as that painted by the noble Lord? Indeed,while the Nuclear Industry Association, which I chair,is in no way sanguine, it recognises that a lot is beingdone. However, it has to be said that, as with thereform of the NII, we get dribs and drabs of informationwhen the House requires a comprehensive statementof where we are. That would be helpful and wouldprobably be more useful than the kind of question andanswer session that we are having. Will the Ministertake that on board?

Lord Hunt of Kings Heath: My Lords, I will certainlysee whether I can produce a Written Statement orother information, which I am sure would benefit theHouse. As far as the nuclear regulator is concerned,one should also pay tribute to the tremendous workand skills of the people employed by the NuclearDirectorate. We hope that the measures that we arenow taking will ensure that it has the right numberand quality of people whom it needs for the future,particularly as we move into the new nuclear regime.

Baroness Wilcox: My Lords, I am sure that theGovernment will accept that we have a real problem.This is all taking too long. Tim Stone’s report came in,but it has taken the Government six months to answerit. Now the Minister tells us that they are going to takeon a large study. I cannot understand why they aretaking so long when this country is in such a desperatestate due to the lack of its own energy.

Lord Hunt of Kings Heath: My Lords, there are twopoints here. The study to which I referred in myAnswer to the noble Lord, Lord Jenkin, concerns therequirements of the nuclear industry generally. Thespecific question that he raised concerned the regulator.Frankly, it is unfair to say that the Government havenot responded. We commissioned the review. We arelooking at it seriously. We are negotiating with thetrade unions. We have established a satellite office inLondon because that is an important recruitmentcentre. We are taking a number of other actions. Weare not complacent but, equally, the nuclear industryis at an important stage; hence, we are asking thesector skills council to produce the review, which willbe published in the summer.

Lord Redesdale: My Lords, to follow the Minister’spoint, most of the new nuclear fleet will not be inoperation until the middle of the 2020s or the 2030s,so most of the people who will be working in thenuclear industry are currently still at school or even atuniversity. Is there not a lack of capacity within theschool and university system to train on these issues?If that is the case, are we not storing up problems forthe future?

Lord Hunt of Kings Heath: My Lords, the first newnuclear station, which EDF is proposing, will come onstream in 2018 or the end of 2017. There should thenbe a regular programme of new nuclear stations opening.The point that the noble Lord makes is relevant, whichis why the Government have taken action to enhancethe teaching of maths, physics, chemistry and technologyas key subjects in schools. We are also looking atgraduate programmes to encourage people to comeinto what should be an exciting industry in the future.

Lord Campbell-Savours: My Lords, should not thereduced employment prospects in conditions of increasingunemployment potentially increase recruitmentopportunities in the nuclear industry?

Lord Hunt of Kings Heath: My Lords, clearly thisshould be an extremely attractive industry for youngpeople to go into. We will do everything that we can toencourage them to do so. The prospect for the industryis brighter than ever. My noble friend is right to pointout its huge potential for young people in this country,not just in terms of nuclear stations but in the supplychain.

Sri Lanka

Question

2.51 pmAsked By Lord Naseby

To ask Her Majesty’s Government what is theirassessment of the political situation in Sri Lankaand the impact of the military campaign againstthe Tamil Tigers.

Lord Davies of Oldham: My Lords, the recent militaryadvances of the Sri Lankan Government and thesubsequent humanitarian crisis make a sustained drivefor a lasting political solution to the conflict all themore urgent. We have made clear to the Governmentof Sri Lanka that a political solution that addressesthe legitimate concerns of all communities in Sri Lankais the only way to bring a sustainable end to theconflict.

Lord Naseby: My Lords, why was a special envoyappointed with absolutely no consultation with theSri Lankan Government? Is that the way to treat afriendly country? Indeed, it is one of just a handful ofcountries that supported us at the time of the Falklandswar. In any case, do we not have a first-class highcommissioner already in Sri Lanka who, rather than afailed politician, can do any job that is necessary?

5 6[23 FEBRUARY 2009]Energy: Nuclear Industry Sri Lanka

Lord Davies of Oldham: My Lords, that is a littleunfair. If the Government had done nothing in theface of this developing crisis in Sri Lanka I have nodoubt that the noble Lord, who is always knowledgeableabout these issues, would have been very critical. TheGovernment sought after consultation to appoint DesBrowne, with his experience of military and defenceissues, as a special envoy. As the noble Lord willrecognise, this is all about a military conquest of thenorthern part of Sri Lanka. The Sri Lankans then saidthat they were not prepared to accept him as an envoy,and we are still discussing the issue with them. However,the position is rather different from that portrayed bythe noble Lord.

Baroness Northover: My Lords, is the noble Lordaware that Sri Lanka’s participation in the EU tradepreference scheme depends on it maintaining a goodhumanitarian record, and that an EU investigationmission has also been refused entry? What should wemake of this?

Lord Davies of Oldham: My Lords, the noble Baronessis right that Sri Lanka benefits from the generalisedsystem of preference. If it were withdrawn the Sri Lankaneconomy, which is already blighted by the presentworld problems, would be likely to lose 140,000 jobsand see its gross national product drop by 2 per cent.That is very serious. So we should be careful about theeconomic aspects of the position. However, theGovernment intend to bring pressure to bear in everyway they can on the Sri Lankan Government to observehuman rights. The noble Baroness is right that theiracceptance of the generalised system of preferencedepends on their observing human rights in theircountry.

Lord Hannay of Chiswick: My Lords, will the Ministersay whether the Government are satisfied that the SriLankan authorities are doing all in their power tobring to justice the killers of the journalist LasanthaWickramatunga? Have the Government made anyrepresentations to the Sri Lankan Government aboutthe threat to freedom of the press and free speech thatsuch murders of those who write critically about themnecessarily represent?

Lord Davies of Oldham: My Lords, I am grateful tothe noble Lord for raising that point. Press freedom inSri Lanka, to which the Sri Lankan Governmentcontend they are committed, is of the greatest importancein ensuring that the world fully understands the positionas it develops in these difficult times. The House willrecall that the editor presaged his murder in an articlethat he wrote before his death and which was widelycirculated, including in sections of the British press.He identified the threat to anyone who voiced criticismof the regime, even someone such as himself who hadbeen quite friendly with the President of Sri Lanka.That shows how parlous the situation is. I am gratefulto the noble Lord for drawing attention to it.

Lord Anderson of Swansea: My Lords, after theapparently decisive military victory, my noble friend isright to draw attention to the humanitarian crisis, andto the fact that the real challenge is now for the

Sri Lankan Government to respond in a way thatbuilds reconciliation and does not further deepen theinternal cleavages. Is there any evidence at all that theSri Lankan Government are rising to that challenge?

Lord Davies of Oldham: My Lords, the situation forcivilians who are trapped in the crossfire in the embattledpart of the island is very serious and I cannot give theHouse a great deal of comfort about it. The Governmentsof the United Kingdom, the United States and Indiahave sought to demonstrate that we are prepared tocarry out evacuation by sea if that proves possible, butit has not proven successful thus far. The narrowcorridor down which displaced civilians are expectedto escape the conflict is itself so fraught with problemsthat it is not proving an effective escape route for verymany. That is why the situation is so desperate forcivilians in the northern part of Sri Lanka.

Lord Howell of Guildford: My Lords, if the reportsmentioned by the noble Lord, Lord Anderson, areright and the final defeat of the Tamils is imminent—ifit has not happened already—does that mean that theTamil dream of a separate state of Eelam in north-eastSri Lanka is really dead and that the task will at last befor these two communities to learn to live together? Ifso, are there some special contributions that we canmake from our experience in other parts of the world,notably Northern Ireland, to ensure that this livingtogether really begins to take place and that Sri Lankadoes not go straight back to another horrific andbrutal civil war of the kind that we have seen over thepast 20 years?

Lord Davies of Oldham: My Lords, the House willappreciate that the country is still in the turmoil ofmilitary conflict that involves a great deal of violenceand is entrapping civilians as well. So, at this stage it isa step too far to talk optimistically about how thefuture of Sri Lanka will develop. However, the nobleLord is right that Sri Lanka can develop only if thetwo communities respect each other and if in duecourse there is within the provision of the constitutiona proper safeguard for minority rights.

Lord Avebury: My Lords, the Minister will haveseen the reports of the attempted suicide air attack onthe civilians of Colombo which fortunately was thwartedwhen the two aircraft were shot down. Does he agreethat for as long as the LTTE controls any territory atall, it will continue to stage terrorist attacks of thiskind; that he was wrong to speak about conquest,when what is happening is the reoccupation by thesovereign power of territory that it owns; and that theright solution is for that process to be completed, andthen for a federal or devolution solution to be negotiatedwith the true representatives of the Tamil people?

Lord Davies of Oldham: My Lords, the noble Lordwill be the first to appreciate that atrocities have beencommitted on both sides of this situation, and heindicated the most recent one as far as the Tamils areconcerned. As the noble Lord, Lord Howell, indicated,the Tamils have nurtured the hope of a separate,independent enclave in Sri Lanka, but that is clearlysomething that the majority Sinhalese and the Sri LankanGovernment are not prepared to tolerate. We must

7 8[LORDS]Sri Lanka Sri Lanka

build on the situation as it is. However, I do not thinkthat anyone in the House underestimates the challengesfacing Sri Lanka, or any help that the outside world canoffer. The challenge is very great for the foreseeablefuture.

Airports: Canada Geese

Question

3 pmAsked By Lord Clinton-Davis

To ask Her Majesty’s Government what stepsthey are taking to prevent an influx of Canadageese from causing damage to airlines, runways andother infrastructure at Heathrow and other UnitedKingdom airports.

Lord Clinton-Davis: My Lords, I beg leave to askthe Question standing in my name on the Order Paper.In doing so, I declare an interest as the president ofBALPA.

The Minister of State, Department for Transport(Lord Adonis): My Lords, I am glad to say that,contrary to some press reports, there is nothing unusualabout the number of Canada geese in the vicinity ofHeathrow at the moment. However, all airports arerequired to have effective bird control measures, andthis is monitored by the Civil Aviation Authority.Techniques exist in risk assessment, habitat managementand safeguarding to reduce the risk of a bird strike.Heathrow also has a full-time bird control team.

Lord Clinton-Davis: My Lords, I thank the nobleLord for that Answer. Is it not right that large flocks ofbirds, or large birds, constitute a special problem thatought to be avoided if possible? Does it not illustratethe dangers of the development of estuarial airports,such as Maplin, favoured by the Mayor of London? Itis one of the reasons, is it not, why the CAA turnedthat proposal down?

Lord Adonis: My Lords, before I respond to mynoble friend, perhaps the House will allow me, onbehalf of us all, to pay tribute to Lord Dearing, whosedeath was sadly announced earlier. I am one of manyMinisters over the years who owes Ron Dearing anenormous debt of gratitude for his wise advice andcounsel, which was always generously given. Few publicservants have made a greater contribution to the nationalwell-being over recent decades. For the past 10 years,he was a highly popular, effective and respected Memberof this House. He will be hugely missed.

In respect of estuarial airports, as part of theevaluation of the proposal for an airport at Cliffe inthe Thames estuary, in 2002 the Governmentcommissioned a study from the Central ScienceLaboratory and the British Trust for Ornithology. Thereport concluded:

“Without a comprehensive and aggressive bird managementprogramme in place, incorporating careful and considered airportdesign, appropriate habitat management and active bird control,an airport could not operate safely in this location … However, itis clear that the hazard posed by birds at this site, even with worldclass mitigation measures in place, is severe and would probablybe higher than at any other major UK airport”.

Lord Berkeley: My Lords—

Baroness Trumpington: My Lords—

The Minister of State, Department of Energy andClimate Change & Department for Environment, Foodand Rural Affairs (Lord Hunt of Kings Heath): MyLords, shall we hear from the noble Baroness first andthen from my noble friend?

Baroness Trumpington: My Lords, does the Ministeragree that Canada geese are without doubt the mostdisgusting birds that visit these shores? I used to beresponsible for Kew Gardens, where children and petslike to be allowed to sit and play on the grass. TheCanada geese absolutely ruin the grass in every publicpark, and they eat farmers’ young crops. Could theynot, by any means possible, be persuaded not to cometo these shores at all?

Lord Adonis: My Lords, I am told that we haveeffective bird-scaring policies in place. I imagine that ifthe views of the noble Baroness were made known tothe Canada geese, they would not dare come to theseshores. I stress that our concern about the Canadageese is based not on their appearance but on thedanger that they pose to planes. It is on that basis thatwe seek to ensure that they are kept well under controlin the vicinity of airports.

Lord Berkeley: My Lords, surely the answer is to eatthem. Does my noble friend not think that roastCanada goose sounds rather attractive? Surely theanswer is to cull them much more effectively and allowthem to be eaten and sold. Perhaps the whole processwould then be cost-effective.

Lord Adonis: My Lords, my noble friend clearly hasa virtuous circle in mind in terms of culling Canadageese, but our concern is simply to see that they keepwell clear of the vicinity of airports.

Earl Attlee: My Lords, do the authorities havesufficient powers to control the Canada geese populationoutside the immediate vicinity of the aerodrome?

Lord Adonis: My Lords, yes, we do believe that wehave sufficient powers to do so; the bird control teamsto which I have referred work in close partnership notonly with the airports concerned but also with locallandowners.

Lord Bradshaw: My Lords, the bird book in which Ilooked up Canada geese describes them as vagrant orferal. I think that that may also apply to muntjac deer,mink and the grey squirrel, to which my noble friendoften refers. Do the Government have any real coherentpolicy for dealing with these pests, which are beingimported into the country, of which wolves and beaversare apparently the latest examples?

Lord Adonis: My Lords, I think that that question isa bit wide of the original Question. In so far as theypose a threat to planes taking off or landing, we willkeep them all under control.

9 10[23 FEBRUARY 2009]Sri Lanka Airports: Canada Geese

Geneva Conventions and United NationsPersonnel (Protocols) Bill [HL]

Order of Commitment Discharged

3.06 pmMoved By Lord Davies of Oldham

That the order of commitment be discharged.

Lord Davies of Oldham: My Lords, on behalf of mynoble friend Lord Malloch-Brown, I understand thatno amendments have been set down for this Bill, andthat no noble Lord has indicated a wish to move amanuscript amendment or to speak in Committee.Unless, therefore, any noble Lord objects, I beg tomove that the order of commitment be discharged.

Motion agreed.

Marine and Coastal Access Bill [HL]

Committee (5th Day)

3.06 pm

Amendment 89BZAMoved by Lord Wallace of Tankerness

89BZA: After Clause 49, insert the following new Clause—“Marine plan for Scottish offshore region(1) Subject to subsection (2) below, Scottish Ministers may

incorporate in any marine plan for the Scottish offshore region aduty on every public body and office-holder, in exercising anyfunctions, to further the conservation of biodiversity so far as isconsistent with the proper exercise of those functions.

(2) The duty to further the conservation of biodiversity referredto in subsection (1) above shall only be incorporated in a marineplan for the Scottish offshore region in pursuance of legislationpassed by the Scottish Parliament empowering Scottish Ministersto do so.

(3) It shall be competent for the Scottish Parliament to passlegislation to further the conservation of biodiversity in theScottish offshore region.

(4) For the purposes of this section, “public body and office-holder”has the meaning given in the Nature Conservation (Scotland)Act 2004 (asp 6).”

Lord Wallace of Tankerness: The amendment picksup the devolutionary theme that runs through thisBill; it is designed to elicit clarification on where thedifferent boundaries fall. The Minister has told theHouse on a number of occasions that the schemeagreed among the devolved Administrations with theUnited Kingdom Government is, as far as Scotland isconcerned, to allow Scottish Ministers to devise a planfor the offshore area—subject to the express approvalof the Secretary of State and any required Executivedevolution.

The amendment has a number of purposes, but it isprimarily designed to clarify the extent to which theScottish Parliament has or has not competence to dealwith issues in respect of the offshore area. Prima facie,given the terms of the Scotland Act 1998, it certainlywould be my understanding that the offshore area isbeyond the territorial competence of the Scottish

Parliament except in relation to fisheries, where aspecific order has already been made confirming devolvedpowers.

The body which is likely to be created to deal withScottish waters for the purposes of the Scottish marineBill is Marine Scotland. Indeed, a press release fromthe Scottish Government on 9 February indicated thata new marine management body was being created tohelp Scotland make the most of its seas for futuregenerations and stated that Marine Scotland would beup and running by 1 April this year. It went on toindicate that it would play a key role in managingScotland’s seas with direct responsibility for marinescience, planning, policy development, managementand compliance monitoring measures. It also indicatesthat it will work with other partners with marineinterests to deliver both economic prosperity andenvironmental sustainability.

It is fair to say that it is a body which enjoyscross-party support. Indeed, I seem to recall that inCommittee on the first part of the Bill—on the MMO—there was an indication that Marine Scotland wouldplay a role comparable to the MMO so far as Scottishinshore and offshore waters were concerned.

I wish to raise some simple questions. Does theScottish Parliament have the legislative competence toendow Marine Scotland with a remit in respect of theoffshore area? Clearly, Marine Scotland will be able tobe established by the act of the Scottish Executive, butone presumes that it will have a role and responsibilitythat relates to the offshore area, where there will bedevolved responsibility to Scottish Ministers. Will theScottish Parliament have any role in establishing whatMarine Scotland can or cannot do? If the answer isthat it will, I would like to know the basis for suchlegislative competence. If not, should the Bill notconfer powers on the Scottish Parliament?

The amendment specifically relates to a duty onbiodiversity. Its wording is very similar to that inSection 1 of the Nature Conservation (Scotland) Act 2004.Section 2(1) of that Act refers to the Scottish biodiversitystrategy. The duty—it is for,

“every public body and office-holder, in exercising any functions,to further the conservation of biodiversity so far as is consistentwith the proper exercise of those functions”—

has been widely supported in Scotland. However, itcan apply only up to the 12-mile limit. The marineconservation group of the Advisory Group on Marineand Coastal Strategy, which was set up in 2005 by mycolleague Ross Finnie MSP, the then Minister forEnvironment and Rural Development, commendedthe above statutory definition of a biodiversity dutybut acknowledged that to extend it beyond the 12-milelimit would require legislation at Westminster.

Subsequently, the Scottish Government’s ownconsultation on the Scottish marine Bill—SustainableSeas for All, published last summer—states, atparagraph 117:

“The Biodiversity Duty in the Nature Conservation (Scotland)Act 2004 could also be considered as a wider measure in that it isnot limited in its application to protected sites or specific speciesprotection. Some potential improvements to this duty are describedbelow”.

11 12[LORDS]Geneva Conventions and UN Personnel Marine and Coastal Access Bill [HL]

Paragraph 120 states:“The Biodiversity Duty on all public bodies and office holders

contained in section 1 of the Nature Conservation (Scotland)Act 2004 currently only extends out to 12nm”—

nautical miles. It continues:“If Scottish Ministers achieve further devolution of nature

conservation in the offshore area beyond 12nm, the ScottishMinisters would propose extending the scope of the duty to applyto all public bodies exercising functions in the offshore area. Iffurther devolution cannot be agreed we would discuss with theUK Government how best to take forward this proposal”.

While I raise a general point about the competenceof the Scottish Parliament in respect of Marine Scotlandin the offshore area, the specific point is that it doesnot seem possible or competent for the Scottish Parliamentto impose a biodiversity duty on public bodies in theoffshore area, as the law stands. I see nothing in theBill that would allow the Scottish Parliament to do so.There is soon to be recognition that, if it could not bedone by the Scottish Parliament, it should be done byWestminster, and the amendment would undoubtedlyfacilitate that. That is the background to why I movethe amendment.

The Duke of Montrose: The amendment shows aninteresting approach by the noble Lord. While at firstsight the strict wording does not exactly fit the spirit ofco-operation with which the Government insist thatthe marine policy statement be approached, it servesas a useful amendment to probe the Government onwhat elements the marine policy statement will containand whether biodiversity will be one of them. TheScottish Administration, in their consultation paperto which the noble Lord referred, Sustainable Seas forAll, are a little more forthcoming than the Ministerhas found himself able to be with the Committee.They say:

“The United Kingdom Government and DevolvedAdministrations have worked together to set out a number ofhigh level marine objectives which articulate the outcomes theyare seeking”.

The objectives are set out in sections that reflect thefive principles of sustainable development. It would beimmensely helpful to the Committee if the Ministerwould make these available in their current form, evenif they are not fully developed. If he cannot do so, theCommittee would be helped by some explanation.

3.15 pmThe amendment raises the possible necessity of the

devolution of legislative powers, as the noble Lord,Lord Wallace, explained. We would be interested toknow how the Government expect such a thing couldbe achieved, if not by this amendment. I am sure thatScotland has all the powers that it needs over theScottish inshore region. Can the Minister explain tothe Committee whether the Food and EnvironmentProtection Act 1985 contains all the powers that theGovernment consider necessary for the protection ofbiodiversity, and whether that is the mechanism thatthey expect Scottish Ministers to use? If not, whatlegislation would be required to ensure that the powersof the Act would extend to the offshore regionadministered by Scottish Ministers? This does notappear to be contained in any legislation emanating

directly from the Scotland Act. It appears that allAdministrations taking up this process have adoptedthe general slogan that we aim for,“clean, healthy, safe, productive and biologically diverse”

oceans and seas. That is set out in the governmentpaper, Safeguarding our Seas. However, that is toogeneral an aim and one would like specific details.

3.15 pm

Lord Livsey of Talgarth: I fully support the amendmentproposed by the noble Lord, Lord Wallace of Tankerness.I would like some information from the Ministerabout Wales. We have heard about proposals for MarineScotland and in particular the whole question ofbiodiversity. If the Minister were of a mind to acceptthis amendment, one could make a strong case for thiskind of legislation to apply to Wales as well.

Biodiversity has been a hot topic, in particular inrelation to Cardigan Bay, where netsmen on trawlerswith heavy-duty equipment are ruining the seabed bydredging it for various shellfish. This is happeningbeyond the 12-mile limit of the inshore area containedin the Bill for Wales. To secure proper biodiversity inareas such as Cardigan Bay, we need the powers topolice beyond the 12-mile limit. If the Minister acceptsthis amendment, which I hope he does, will he considera similar amendment for Wales? I believe, from myknowledge of the Government of Wales Acts 1998and 2006, that the Welsh Assembly does not have thispower.

The Minister of State, Department of Energy andClimate Change & Department for Environment, Foodand Rural Affairs (Lord Hunt of Kings Heath): Thishas been a very interesting discussion. I will start withthe proposal from the noble Lord, Lord Wallace, for anew clause specifically on a marine plan for the Scottishoffshore region. This would enable Scottish Ministersto place a duty on every public body and officeholderto further the conservation of biodiversity. The intentof the amendment is to incorporate this duty in amarine plan for the Scottish offshore region, underlegislation to be passed following scrutiny by the ScottishParliament. The amendment would also pass competencefor this legislation to the Scottish Parliament. Theterms “public body”, “office-holder” and,“further the conservation of biodiversity”,

come from the Nature Conservation (Scotland) Act 2004.Before I respond, let me just say that I believe that

we have sent noble Lords the high-level objectives indraft. Given that we have sent a lot of paper to nobleLords, I am very happy to pick up the suggestion ofthe noble Duke that we do so again.

The first issue here is further devolution to theScottish Parliament, which is a significant matter ofprinciple. Noble Lords will know—this is also a responseto the noble Lord, Lord Livsey—that the Bill has beendrafted within the current devolution settlement. TheGovernment and the devolved Administrations haveagreed that new powers in the Marine and CoastalAccess Bill will be the subject not of legislative devolutionbut of a form of executive devolution, under whichthe Scottish Government will operate the legislation.

13 14[23 FEBRUARY 2009]Marine and Coastal Access Bill [HL] Marine and Coastal Access Bill [HL]

[LORD HUNT OF KINGS HEATH]What is the relationship between executive devolution

and the Scottish Parliament? As I understand it, theScottish Parliament will be able to hold Scottish Ministersto account. Under the Bill’s planning and natureconservation provisions, there will also be a role forthis Parliament—I suggest that there is a similarityhere—in that it will be able to hold UK Ministers toaccount for the way in which they exercise their rightto agree or disagree with Scottish Ministers’ proposals.Essentially, that recognises the reality of the currentcomplex mix of reserved and devolved matters in themarine environment.

We have all agreed that a new system of marineplanning is needed to enable us to manage our seasbetter. For it to deliver the benefits that we all want,the marine policy statement and the plans underneathit need to impact across the breadth of interest in ourseas. We must secure issues of national importance,such as defence, shipping, oil and gas. That is why theGovernment have to agree to marine plans drawn upby Scottish Ministers, which is a very important partof ensuring that such matters are protected.

Scottish Ministers may exercise in any manner theydeem appropriate the functions that they already have.That must include establishing Marine Scotland. Oncethe Bill has been enacted, Scottish Ministers will alsohave marine planning and the Bill’s nature conservationfunctions in the offshore area, with the UK Governmentretaining functions on defence, oil, gas and shipping.Scottish Ministers do not have the competence to givethose functions to Marine Scotland. As I understandit, Marine Scotland will, legally speaking, be a part ofthe Scottish Executive. Therefore, Scottish Ministersdo not need any powers to set it up as they wish or togive it the functions that they wish it to exercise.Legally speaking, the actions of Marine Scotland willbe those of the Scottish Ministers and, from myunderstanding of the Scottish Parliament, I believethat Scottish Ministers will of course be held accountableby the Scottish Parliament for the exercise of thosepowers.

The Duke of Montrose: When we talk about reservedmatters under the Scotland Act, coal always gets missedout. It is not entirely beyond imagination that there iscoal under the sea.

Lord Hunt of Kings Heath: Yes. Is the noble Dukeasking whether coal is covered?

The Duke of Montrose: Coal is reserved to Westminster,as are gas and oil.

Lord Hunt of Kings Heath: The noble Duke isberating me for missing out the importance of coal. Iapologise to him. I am well aware of its importance.

On biodiversity, the simple and straightforwardanswer is that, although we do not use the wordingused by the noble Lord, we believe that we havecovered the matter in the Bill. In Clause 121, there is aduty on public bodies, including those in the Scottishoffshore area, to further the conservation objectives ofdesignated sites. Moreover, public authorities must

have regard to advice from the statutory conservationbody, which, for the offshore region, is the Joint NatureConservation Committee.

Further than that, sustainable development and thevital place that conservation occupies in our suite ofmarine policies are captured in the marine policystatement under Clause 42 and in marine plans underClause 49. Those documents will clearly set out howour policies will contribute to achieving sustainabledevelopment and how we intend to treat fragile, rareand representative parts of our marine environmentand to further the conservation of biodiversity. Theywill also steer the marine licensing process that issubject to Part 4 of the Bill—we might get to it oneday—under which decisions must be made in accordancewith the marine policy statement and with marineplans. Through that mechanism, the Bill will ensurethat all decision-makers in the marine environmenthave to consider biodiversity in making their decisions.

I hope that I have, in general, reassured the nobleLord that it is quite within the competence of theScottish Parliament to hold Scottish Ministers to accountfor their actions under executive devolution.

Lord Wallace of Tankerness: I thank the Ministerfor his reply, as indeed I thank the noble Duke, theDuke of Montrose, and my noble friend Lord Livseyfor their contributions. I note that the Minister usedthe word “complex”about some of these arrangements;his reply underlined that. My concern, which theMinister has addressed to a considerable extent—although, given the complexity, it is something that wewould want to go away and consider—is that, for theoffshore region, the Scottish Parliament has no say indetermining what the powers might be in relation toScottish Ministers, albeit that it can call them toaccount.

Some of the paperwork that the Minister’s departmenthas sent us, to which he referred, is genuinely helpfuland some of the maps are particularly useful. The oneon who will issue marine licences, which I happen tobe looking at, has a map relating to constructionwork. The areas in which Scottish Ministers will issuea marine licence are striped and the areas where ScottishMinisters will issue a FEPA licence—the inshorewaters—is blue. The document says that the ScottishExecutive intend to replace the FEPA regime with anew licensing system under the Scottish Marine Bill. Itseems to me that we could, almost certainly, end upwith two separate regimes: one to be determined forinshore waters, under the Scottish Marine Bill, andone to be determined elsewhere, under FEPA, oneassumes, or under what this Bill puts in place.

If one object is to try to get some consistencybetween inshore and offshore, it does not necessarilyfollow that you will get that, even with the best will inthe world, if two separate Parliaments are legislatingfor it. I use that as an example because, while it is nowclear that Marine Scotland can be an arm of theScottish Government and therefore will not necessarilyrequire separate legislation to be established, its functionswill be determined in some respects by this Parliamentand in others by the Scottish Parliament. I am not surethat that is necessarily the best way to progress. Regarding

15 16[LORDS]Marine and Coastal Access Bill [HL] Marine and Coastal Access Bill [HL]

the duty to promote biodiversity, I certainly want toexamine carefully what the Minister has said. I notehis reference to Clause 121, which extends only tomarine conservation zones, although he also referredto Clauses 42 and 49, which might have a more generalapplication in the offshore area.

I know that there has been cross-party support toextend the biodiversity duty and a recognition inScotland that that is not possible under the presentpowers of the Scottish Parliament. Given that largemeasure of support, even were these powers not to begranted, perhaps Westminster might look sympatheticallyon this. I will want to go away and consider what theMinister has said on whether the bits that are in placein this legislation fully address this issue. In that spirit,I wish to withdraw the amendment.

Amendment 89BZA withdrawn.

3.30 pm

Schedule 6 : Marine plans: preparation and adoption

Amendment 89BZAA had been withdrawn from theMarshalled List.

Amendment 89BZAB not moved.

Amendment 89BZBMoved by Lord Hunt of Kings Heath

89BZB: Schedule 6, page 230, line 10, leave out from “region”to “the” in line 11 and insert “adjoins or is adjacent to”

Lord Hunt of Kings Heath: Paragraph 1 of Schedule6 sets out a clear intention to ensure that at the start ofpreparing a marine plan the relevant plan authoritymust notify the local and regional planning bodieswhose areas adjoin or are adjacent to the marine planarea. This includes terrestrial bodies and other marineplan authorities. This is so that each of these planningbodies has as much notice as possible about what ishappening and can prepare for their involvement inother plans or perhaps decide to plan at the same time.This will be most beneficial in areas that are particularlydifficult to manage, such as cross-border estuaries. Wewill discuss a number of amendments tabled by nobleLords on all sides of the House. Many of the principlesare accepted by the Government, and I have tabled aseries of amendments to achieve their effect. In movingmy amendment, I shall speak to them.

Amendments 89BG, 89BN, 89BJ, 89BL, 89BM and89BN insert a requirement to take all reasonable stepsto ensure compatibility with Scottish terrestrialdevelopment plans as well as with English plans andinsert the appropriate definition of the developmentplan for Scotland. Amendment 89BL corrects an omissionfrom the definition of the relevant Planning Act planfor Wales by inserting a reference to the developmentplan. Welsh development plans are included in thedefinition in sub-paragraph 5 and should also appearin sub-paragraph 4(b).

I am also tabling further minor and technicalamendments to paragraph 1 of Schedule 6. Amendments89BZB and 89BZC change the reference for a marineplan authority to notify its intention to plan to marineplan authorities of regions related to the area about to

be planned for. They substitute the term “adjoins or isadjacent to” because it is easier to identify at the startof the planning process what the adjoining or adjacentareas are. It may only be later, when planning starts inearnest, that it is clear that other planning authoritiesshould be consulted. Paragraph 3 of Schedule 6 coversthe situation if it becomes clear that another marineplan authority or local or regional planning body alsohas an interest, although it is not adjoining or adjacent.Under that paragraph, the marine plan authority musttake all reasonable steps to ensure compatibility betweenits plans and the marine plans. There is an extensiveconsultation process when producing plans, as set outin paragraphs 3 to 7 of this schedule. The statement ofpublic participation for each plan will ensure thatshould terrestrial or marine planning authorities, inaddition to those whose areas adjoin or are adjacentto the marine plan area, have an interest, they will beconsulted.

Amendment 89BZD is a consequential amendmentin that the provision related to Northern Ireland inparagraph 1(2)(d) will no longer be required since theNorthern Ireland inshore region adjoins the NorthernIreland offshore region and the Scottish inshore regiononly. As marine plan authority for the Northern Irelandoffshore region, the Department of Environment inNorthern Ireland would be notified in any event. Sincethe Bill does not provide for marine planning in theScottish inshore region, there is no marine plan authorityfor the Scottish inshore region under the Bill. Amendment89BD is a further consequential amendment followingfrom Amendments 89BZB and 89BZC because if theterm “related to” is no longer used in this paragraph,there is no need for the definition in paragraph 1(3),and the sub-paragraph can be deleted. However, theterm “related to” is used again in paragraph 3, soAmendment 89BK inserts the definition in that paragraphinstead.

I hope that is helpful by way of introduction. I amgrateful to noble Lords who have tabled relevantamendments. I hope that noble Lords feel that what Ihave said shows that the Government’s amendmentsmeet the situations that they seek to raise in yourLordships’ House today.

Baroness Hamwee: First, I apologise to the Committeeon behalf of my noble friend Lord Greaves, who isunwell. As other Ministers have discovered, even whenhe is not present for a stage of a Bill, he does not stopworking. My amendments in this group relate todefinitions. I will speak to some of my noble friend’samendments later, which are also on definitions. I havereceived definitions taken from five different sourcesof the term that he was unhappy with. The Ministerwill be pleased to know that my researches have notbeen nearly so extensive. Ministers are never sure ifthey are happier when my noble friend and his energyare present or absent. I hesitate to say “we” in theabsence of the Front Bench, but I am certainly happywith the amendments to which the Minister has spoken.There is an elusive quality to this Bill. One thinks onehas understood it and something pops up a bit later,just as one squeezes at the front.

My amendments all relate to the wording,“adjoins or is adjacent to”,


[BARONESS HAMWEE]which, if the Minister’s amendments are accepted, willbecome more prevalent in this schedule. I was puzzledas to what the distinction is between the terms “adjoins”and “adjacent to”. I used only one source, my ownShorter Oxford English Dictionary, which, to add tomy puzzlement, uses one of these terms to define theother. I would have said that “adjoins” means alongsidewithout a gap and that “adjacent” means very near,but I am not sure how far away you can be and still beadjacent. I suggest “contiguous” as an alternative, butonly because I was searching for another word in thesame category. I would be grateful if the Ministercould explain what is meant by “adjacent to” if itmeans something different from “adjoins”.

The Duke of Montrose: As we have heard, thisgroup contains many detailed amendments which raiseinteresting issues. We are entering an interesting partof the structure of what the Government are creating.They seem to expect all adjoining or adjacent areas tohave some say in what is happening in the next area.This process will obviously have to be handled withsome tact. By way of an example, if, as someonesuggested, Scotland decided to have only one or twooffshore regions, every plan contained in the wholeScottish offshore region would have an input from theSecretary of State, and probably will anyway. It mightbe worth the Minister putting on the record whichSecretary of State that would be. Perhaps that is a bitfacetious because it could be construed that more thanone has an interest in Scotland.

I was happy to listen to the detail of the amendmenttabled by the noble Baroness, Lady Hamwee. Changing“adjoins or is adjacent to” to “contiguous to” andrelated planning authorities being forewarned of planning,even if they are only partly joined to the marine planarea, are important factors for consideration.

The noble Lord, Lord Wallace of Tankerness, hasan amendment in this group which goes into the finerdetail of the real nub of the issue of trying to defineand manage a border area, in this case between existingScottish government control and Westminster.

On our previous day in Committee, we spent sometime in a similar discussion defining the interests andpowers in the Severn estuary, and it would be interestingto see whether the Minister wishes to vary his response.In this case, the options are rather more limited, asScottish Ministers’ authority would be required foranything that affected their interests. Will the Ministerelucidate for the Committee whether there is any placein the Bill in which we can require the ScottishAdministration in their control of the relevant parts ofthe Scottish inshore area to consult another UK areathat adjoins it or to which it is adjacent?

On the same subject, will the noble Lord, LordWallace, explain why he is so prescriptive about localauthorities that have to be consulted? Does he have astrong rationale about the role of local authorities?Perhaps he has more up-to-date information than Ido, but my impression is that the Scottish Administrationdo not yet have a settled view of which model they willuse for designating Scottish marine regions in theScottish inshore area. At least four possible administrativegroupings appear to affect the Scottish coastal area,

only one of which is the Scottish local authorities.This is the nub of the issue when trying to define theborder area between Scottish government control andWestminster. I hope that the Minister will be able toexpand a little.

Lord Wallace of Tankerness: I am happy to speakto my amendment and to try to answer the questionswhich the noble Duke, the Duke of Montrose, hasasked.

The origin of my amendments is that paragraph 1of Schedule 6 requires the marine plan authority thatis preparing a marine plan for a marine plan area togive notice of its intention to do so to related planningauthorities. Paragraph 1(2) of the schedule defines therelated planning authorities, and paragraph 1(4)subsequently defines a local planning authority asone,“to be read in accordance with section 37 of the Planning andCompulsory Purchase Act 2004”.

It struck me that any developments in the Englishinshore area in the Solway Firth could have implicationsfor Dumfries and Galloway and the area that is inshorebut immediately adjoining the estuary of the Tweedcould have implications for the Scottish Borders Council.

Amendment 89BG amends the definition of “localplanning authority” to include Scottish local planningauthorities. I may be wrong, but I believe that it meetsthe purpose of my amendments probably more felicitouslythan mine. There is nothing terribly magical about it;it simply recognises proximity, and I am grateful to theMinister for tabling it.

Lord Hunt of Kings Heath: I am very grateful tonoble Lords for their amendments. I am sorry to hearthat the noble Lord, Lord Greaves, is unwell. Wewould much prefer him to be present. We know thateven when he is not present, his ingenuity in bringingforward amendments means that he will raise issuesthat we have already discussed and that we will have tohave another go. We always welcome his interventions.

The noble Baroness, Lady Hamwee, rightly seeks toprobe these areas. My understanding is that the term,“whose area adjoins or is adjacent to”,

includes any area that partly adjoins or is adjacent tothe marine plan area. The planning provisions in theBill are written to ensure widespread consultation andliaison. Paragraph 1 of Schedule 6 continues thistheme with a duty to notify a related planning authority,so it would be out of keeping if planning authoritieswere not notified because their areas were only partiallyrelated to the marine plan area.

Amendments 89BZF, 89BC and 89BF come to thenub of the point that the noble Baroness made aboutthe requirement to notify other planning authoritiesfrom the ones that adjoin or are adjacent to the marineplan area. She wants to change this to those that are“contiguous with” the marine plan area. Myunderstanding is that an area that is contiguous is incontact with the marine plan area. We think that thatis covered by the term “adjoining”. My understandingis the word “adjacent” includes areas that may notexactly touch the marine plan area but are close to it.


It is a wider definition, which would include notifyingmore related planning authorities. But there must becircumstances where it is right so to do. I hope that Ihave reassured the noble Baroness on that wording.

3.45 pmThe noble Lord, Lord Wallace, is right with his

Amendment 89BA. He spotted defective drafting inthis area because, as drafted, the Bill does not makethe same provisions for notification of Scottish terrestrialplanning bodies. More importantly, paragraph 3 ofSchedule 6, which requires marine plan authorities to,“take all reasonable steps to secure”,

compatibility of their plans with these terrestrialdevelopment plans, also lacks a reference to Scottishdevelopment plans.

We agree that this needs to be rectified, which wehave done by reference to the relevant terrestrial planninglegislation, as we have done in relation to English andWelsh plans. This will ensure that the notification andcompatibility duties automatically adjust to any futurechanges to the Scottish terrestrial planning system orto local planning authority names or boundaries.

On a more general issue, the noble Duke askedwhether the Government’s thinking has moved onsince we debated the Severn and the relationship betweenEngland and Wales. The blunt answer is that ourthinking has not moved on, although I acknowledgethat we had an interesting debate when we exposedsome of the challenges of ensuring that, in what wehave all already agreed is a complex situation, ultimatelywe get an integrated approach. I am sure that is theaim of all Members of the Committee.

However, the issue is that we have to do this withinthe context of the devolution settlement. For instance,in our debate two weeks ago, we had an amendmentdesigned to enable joint planning and a joint plan tobe produced between two Administrations. Because ofthe different legal systems, particularly in relation toScotland and the devolution arrangements, it is verydifficult to have such a joint system. But of course wewould very much encourage neighbouring plan authoritiesto co-ordinate planning timetables and make arrangementsfor collaborative working. Obviously, that would clearlyhelp users of the sea, lovers of the sea and all thosewith an interest.

Ultimately, we are dependent on the Administrationsmaking this work together. We think that there areenough incentives to enable that to happen. I would goback to the discussions in the summer and autumn oflast year. Because of the intent expressed by all theAdministrations, I am optimistic that they can see it isin everyone’s best interest that we work together. Butwe have to work within the devolution settlement,which makes it difficult to accede to the intent behindthe amendment that we discussed two weeks ago abouthaving a joint plan between the two Administrations.

Baroness Hamwee: On my amendments, the Ministerseemed almost to be saying that one would recognisean area that is adjacent but not adjoining when onesees it. Would I be right in thinking that what isimportant is the context and the requirement forconsultation and working with the relevant authorities,

taking account of relevant plans and policies, ratherthan the detail of the definition? I am sorry to labourthe point but someone at some time will say, “WellParliament meant”, and it would be nice to know whatwe do mean.

Lord Hunt of Kings Heath: I think that the nobleBaroness is inviting me to say that this is a commonsense approach and I endorse that.

Amendment 89BZB agreed.

Amendments 89BZC and 89BZDMoved by Lord Hunt of Kings Heath

89BZC: Schedule 6, page 230, line 12, leave out from “region”to first “the” in line 13 and insert “adjoins or is adjacent to”

89BZD: Schedule 6, page 230, line 14, leave out paragraph (d)

Amendments 89BZC and 89BZD agreed.

Amendments 89BZE to 89BC not moved.

Amendments 89BB and 89BC not moved.

Amendment 89BDMoved by Lord Hunt of Kings Heath

89BD: Schedule 6, page 230, line 21, leave out sub-paragraph (3)

Amendment 89BD agreed.

Amendments 89BE and 89BF not moved.

Amendments 89BG to 89BNMoved by Lord Hunt of Kings Heath

89BG: Schedule 6, page 230, leave out lines 28 and 29 andinsert—

““local planning authority” means an authority which is—

(a) a local planning authority for the purposes of Part 2 ofthe Planning and Compulsory Purchase Act 2004 (c. 5)(see section 37 of that Act), or

(b) a planning authority for the purposes of the Town andCountry Planning (Scotland) Act 1997 (c. 8) (see section1 of that Act);”

89BH: Schedule 6, page 230, line 31, leave out “that Act” andinsert “the Planning and Compulsory Purchase Act 2004 (c. 5)”

89BJ: Schedule 6, page 231, line 11, leave out “or Wales” andinsert “, Wales or Scotland”

89BK: Schedule 6, page 231, line 13, leave out sub-paragraph(3) and insert—

“( ) For the purposes of this paragraph, one area is “relatedto” another if one or more of the following conditions is met—

(a) the one area adjoins or is adjacent to the other;

(b) the one area lies wholly or partly within the other;

(c) the whole or any part of the one area affects or isaffected by the whole or any part of the other.”

89BL: Schedule 6, page 231, line 15, leave out sub-paragraph(4) and insert—

“( ) In the case of an area in England or Scotland, the“relevant Planning Act plan” is the development plan.

( ) In the case of an area in Wales, each of the following is a“relevant Planning Act plan”—

(a) the development plan;

(b) the Wales Spatial Plan.”89BM: Schedule 6, page 231, leave out lines 19 and 20 and

insert—


[LORD HUNT OF KINGS HEATH]““development plan”—

(a) in the case of an area in England or Wales, is to be readin accordance with section 38(2) to (4) of the Planningand Compulsory Purchase Act 2004 (c. 5);

(b) in the case of an area in Scotland, is to be read inaccordance with section 24 of the Town and CountryPlanning (Scotland) Act 1997 (c. 8);”

89BN: Schedule 6, page 231, line 22, leave out “that Act” andinsert “the Planning and Compulsory Purchase Act 2004 (c. 5)”

Amendments 89BG to 89BN agreed.

Amendments 89C and 89CA not moved.

Amendments 89CB and 89CCMoved by Lord Hunt of Kings Heath

89CB: Schedule 6, page 232, line 4, leave out “by, or”89CC: Schedule 6, page 232, line 25, at beginning insert “the

consideration of representations under paragraph 12 and”

Amendments 89CB and 89CC agreed.

Amendments 89D to 89FZA not moved.

Amendment 89FZBMoved by Lord Hunt of Kings Heath

89FZB: Schedule 6, page 233, line 8, leave out “by, or”

Amendment 89FZB agreed.

Amendments 89FA to 89HA not moved.

Amendment 89HBMoved by Lord Hunt of Kings Heath

89HB: Schedule 6, page 234, line 25, leave out “by, or”

Amendment 89HB agreed.

Amendment 89HC not moved.

Amendment 89JMoved by Baroness Hamwee

89J: Schedule 6, page 235, line 3, leave out “consider appointing”and insert “appoint”

Baroness Hamwee: Amendment 89J deals with whetherthere should be a mandatory independent investigationof all marine plans. Like others before it, this amendmenthas been suggested to us by the Wildlife and CountrysideLink coalition. The Government’s response to thepre-legislative—

Lord Hunt of Kings Heath: I am sorry to intervenebut there is a group starting with Amendment 89HC,89JZAA and 90ZB. I want to clarify that we have notzoomed by that unintentionally.

The Deputy Chairman of Committees (BaronessHooper): No, my Lords.

Baroness Hamwee: The next amendment on thegroupings would have been under Amendment 89JZB,which is why I hesitated.

Lord Hunt of Kings Heath: So, we are now debatingAmendments 89J, 89JZA and 89JZC.

Baroness Hamwee: The information about amendmentswhich were not to be moved was, I hoped, circulatedearlier—otherwise the order of the groupings is a littleconfusing. Following the pre-legislative scrutiny of theBill, the Government have improved the paragraphregarding independent investigation, but it is stilldiscretionary and not mandatory, as is the case for theequivalent public examination of terrestrial planning.I understand that there is a concern that to have amandatory arrangement would be too heavy andbureaucratic, but experience suggests that EIPs neednot, and often do not, take long. My own experienceof the EIP process on the London Plan was that it wasa useful process. It took seven weeks, but given the sizeand complexity of London, that is not so very muchtime. Most importantly, it enabled all those with aninterest—interest groups, statutory bodies andlandholders—to become involved in an inclusive andparticipative but not overly bureaucratic process. Moreover,it was able to test the soundness of the plan’s evidencebase and policies.

Amendment 89JZA is consequential on Amendment89J, while Amendment 89JZC in the name of mynoble friend Lady Miller of Chilthorne Domer wouldrequire the authority to have regard to the representationsmade during the process. I beg to move.

Lord Taylor of Holbeach: The noble Baroness, LadyHamwee, raises interesting points in these amendments,for which I have much sympathy and cautiously extendmy support. As she acknowledged, they come fromthe Wildlife and Countryside Link, a consortium ofnature conservation groups.

As it stands, the Bill requires only that a marineplanning authority,“must consider appointing an independent person to investigateproposals contained in”,a consultation draft. Can the Minister expand onwhen he thinks it might be necessary to have anindependent body carry out an investigation? If theclause is flexible enough to allow the marine planauthority only to “consider” appointing, there mustbe a line between the times when this would be advisableand those when it would not. Who will be the adjudicatorof that arbitrary line? Will it be crossed if the proposalsin the draft are more controversial, politically sensitiveor hard-hitting than usual, or if they cost more money?I would appreciate some clarification.

We are also nervous of clogging up marine planningwith yet more bureaucracy and paper. Perhaps theMinister can also expand on how he sees the processworking. Will there be any guidelines on how aninvestigation should be structured, and how often willthis process be necessary?

Lord Hunt of Kings Heath: The noble Baronessraises the question of whether every marine planshould be subject to independent scrutiny before it isadopted and what regard the Secretary of State shouldhave to the recommendations arising from such scrutinyin deciding whether to give his agreement to the adoptionof a devolved marine plan.


I shall deal first with Amendments 89J and 89JZAto paragraph 13 of Schedule 6. As currently drafted,this paragraph requires a marine plan authority toconsider, after the public consultation and before adoptinga plan, whether there is a need to appoint an independentinvestigator to investigate the proposed plan and reporton it. In deciding whether to appoint an investigator,the marine plan authority must have regard to thevarious representations that people have made throughoutthe preparation of the plan and the public consultation.The noble Lord, Lord Taylor, invites me to be veryspecific about when such a power should be used.However, I am going to resist that and say to him thatthe guiding principle is that it is intended to be used toresolve any issues that remain outstanding after thepublic consultation. Our aim is to ensure that theplans prepared have the support of the local communityas well as the various industries, interest groups andregulators who, in one way or another, will be usingthe plan or subject to it. It is clearly in everyone’sinterest to ensure that issues are resolved and consensusreached wherever possible. It will inevitably not bepossible to please all of the interests all of the timeand that is where an independent viewpoint might behelpful.

4 pmWe have learned from the examination in public

process recently carried out in relation to regionalspatial strategies under the Planning and CompulsoryPurchase Act 2004. But there is a distinction, to whichthe noble Baroness fairly referred in her opening remarks,in that the marine environment is not the same as theland. A slightly different approach is justified, buildingon the best aspects of examination in public whilerecognising the different interests and issues that ariseat sea. We have therefore put in place a mechanism toallow independent scrutiny, but we do not think that itis appropriate to make it mandatory for every plan.

The reason we do not believe it should be mandatorycomes down to a point which the noble Lord, LordTaylor, raised in his interesting comments about avoidingbureaucratic processes, a point which I well understand.In the debate on the planning Act, which I joined at alate stage, one could see that part of the legislation’spurpose was to address the frustrations felt by manywith the past planning system. The point is that havingan automatic inquiry would mean that there would beless incentive to reach a common position throughoutthe development of the plan. Two key themes haveemerged from our debates on the Bill so far. First, lotsof different interests are concerned about the marineenvironment. Secondly, to make it work we need peopleto work together. We therefore want to provide incentivesthroughout the Bill to encourage people to work together.We want people to engage actively in the planningprocess and to consider and resolve issues not onlywith the planning authority but with each otherthroughout in reaching a common agreement.

The interests likely to be affected at sea are ratherdifferent from those found on land. There are fewerpersonal and private property rights and more potentialconflicts of principle about how best to manage, conserveor exploit our marine resources. We believe that thelower number of private property rights will reduce

the need for an automatic independent inquiry. Peoplewill also have the opportunity via participation in thepreparation of the marine policy statement to shapethe Government’s direction on these matters of principle,which will then be fed down into the marine plans.

We have also discussed why it may not be appropriateto plan in depth for all areas of the sea. Some areas arefar less busy than others. It would not seem the bestuse of public resources to require an independentscrutiny if in practice there was no need for one. Thisapproach also allows flexibility, so that the independentscrutiny process is proportionate to the issues raised.The noble Lord, Lord Taylor, raised a point on regulation.I say to him that we want a proportionate approach tohow we do it.

Of course people feel very strongly about the seaand the coast, particularly those for whom the seaprovides their livelihood. We want to hear what theyhave to say. A plan which does not have the support ofthe local community, industry and interest groups islikely to be challenged, and this will make it harder fordecision-makers and investors to rely on it. The shortanswer to the major questions raised is that we wouldcommission an independent investigation whereverthere are substantial unresolved issues, and where itcan add value. If that were the case with every plan,the Bill would enable us to appoint an independentperson.

Amendment 89JZC seeks to amend paragraph 15(2)of Schedule 6. This amendment could place the Secretaryof State in a rather difficult position. I should like toexplain a little more about why we have required theSecretary of State’s agreement to the adoption ofdevolved marine plans, although I realise that we shalldebate this in relation to later amendments.

The purpose of requiring the Secretary of State toagree to the adoption of devolved marine plans is toensure that non-devolved policies and functions areappropriately represented and protected in those plans.This final agreement should be a formality since weexpect and indeed have every confidence that thedevolved plan authorities will work closely with theSecretary of State and the UK Government throughoutthe planning process to ensure that we are contentwith their proposals. Following the agreement lastautumn under the auspices of the joint ministerialcommittee, there are also a number of other fixedpoints during the planning process at which the Secretaryof State must give his agreement, including before thepublication of the statement of public participationand before the publication of the draft plan for publicconsultation, to minimise the chance of the Secretaryof State being forced to veto a devolved plan becauseof its potential effect on “retained” functions. We havealso agreed between Administrations our wish to workconstructively together and to produce an agreed MPSand plans.

The purpose of the Secretary of State’s agreementis not to reopen the plan to further representationsonce the marine plan authority is ready to adopt it. AsI said, Amendment 89JZC could oblige the Secretaryof State to consider the representations made by anotherperson in addition to those made by the independentinspector—perhaps representations made by someone who


[LORD HUNT OF KINGS HEATH]did not agree with the inspector’s recommendations—leaving the Secretary of State to choose between theviews of that person or the independent investigatoreven if the inspector’s report recommended that thedraft plan was satisfactory. We do not think that thatamendment would make the process of developingand adopting a marine plan any more transparent orinclusive. Where an independent investigator has endorseda plan, or where his recommendations have been addressedby the plan authority, we would expect the Secretaryof State to give his agreement to that plan, as long ashe was content with its effect on matters which are notdevolved to the plan authority.

Paragraphs 12 and 14 of Schedule 6 require theplan authority to give careful consideration to anyrepresentations made about the plan during its preparationand the public consultation as well as those made byan independent investigation, where this has taken place.If it chooses not to implement those recommendations,it is also required by paragraph 15 to give its reasonsfor that decision. We should not ask the Secretary ofState to second-guess the investigator.

I hope that I have reassured noble Lords that thereare positive reasons for there not being an automaticinvestigation and that the whole effort is to try to reachconsensus. However, where it is not possible to reachconsensus on serious matters, it is entirely appropriatefor an investigation to be triggered at that stage.

Baroness Byford: In the earlier part of that very fullresponse, for which we are grateful, the Minister clearlystated that many people will have an interest in theseplans, which I accept, and that the ambition is to worktogether, which we all accept. However, I was slightlyworried by his mention of fewer people having personaland private property rights. I hope that he was in noway implying that because just a few people are involved,their case will not be heard fully. He is shaking hishead. I wanted to clarify that.

Lord Hunt of Kings Heath: The noble Baroness isright to raise the point. I was saying that because therewill be fewer people with property rights, the independentexamination process is less likely to come into play. Iwas drawing a comparison between the situation inthe marine area and that referred to by the nobleBaroness, Lady Hamwee, which is the examination inpublic process under the Planning and CompulsoryPurchase Act 2004. The noble Baroness, Lady Byford,is right to say that nothing that I have said shouldimply that persons with private property would nothave the right to be heard.

Baroness Byford: I have no difficulty with that.Clearly if there are fewer people involved, unlike onland, obviously one person will be speaking on hisown behalf rather than a group of people speaking fora local community. I am anxious that the Bill shouldclarify that that person’s views would be heard in thenormal way, and that his rights should be exactly thesame as if it were a multiple response to the plan.

Baroness Hamwee: I am grateful to the Minister forhis long response, and will leave it to my noble friendLady Miller to consider his comments on her Amendment89JZC.

With regard to my two amendments I am a littlepuzzled. The Minister started by explaining that therewere likely to be fewer outstanding issues when dealingwith marine plans, but one of the difficulties is knowingwhether there are outstanding issues. I take the pointthat allowing people to be involved in something thatis equivalent to an examination in public helps toreconcile those who may not be satisfied with thesubstance or at any rate the process, because they feelthat they have been given a fair hearing. One sees thatfrom planning development control applications upwards.There is value in thrashing out matters of principle aswell as private property rights in this sort of forum. Hetalked, too, about there being less incentive to reachconsensus if there is an independent investigation. Iconfess that I do not follow that. The only incentivewould be on the Government. I cannot see that therewould be an incentive on others.

Lord Hunt of Kings Heath: We all recognise that alot of different interests will come to the fore in thedevelopment of any marine plan. The intention is thatthe process will allow for widespread engagement ofthose with an interest as the plan is developed. Themarine plan authority has to have regard to variousrepresentations made throughout the preparation ofthe plan and the public consultation. That is all thereto be done. For that reason I should have thought it aperfectly sensible proposition that the aim all along isto reach a strong consensus.

If the participants know that whatever work isdone to achieve a consensus it then has to go throughanother process of an independent examination, itmight lead to their not working quite so hard toachieve consensus. As I said, the construct of the Billis an attempt to encourage consensus. If it turned out,alas, in the preparation of each plan, however manyare developed, that consensus had failed to be reachedon strong, substantial issues in each of them, the Billallows for an independent examination to take place.

4.15 pmBaroness Hamwee: I have long thought that those

of us involved in politics should have a better trainingin psychology. I apply that to myself. I understandwhat the Minister is saying, but the difficulty is thatthe final decision on whether there should be anindependent investigation lies with one side in thisargument. That is why I object to it being a discretionarymatter.

I make one final comment: EIPs do not need tolabour long and tediously over particular items. Thereis now a well worked-out process for sorting outprocedure for pre-hearing work to reduce the amountof time spent in public and sort things out beforehand.I see no reason why that could not also apply in thecase of a marine plan. I have spent long enough onthis. I will consider what the Minister has had to sayand beg leave to withdraw the amendment.

Amendment 89J withdrawn.

Amendment 89JZA not moved.

Amendment 89JZAA not moved.


Amendment 89JZBMoved by Baroness Hamwee

89JZB: Schedule 6, page 235, line 31, leave out sub-paragraph (2)

Baroness Hamwee: I will be brief. Amendment 89JZBwould leave out paragraph 15(2) in Schedule 6. I didnot move my other amendments that deal with therole of the Secretary of State. I realised when I re-readthem in preparation for today that I have been rathertoo affected—or possibly infected—by the LocalDemocracy, Economic Development and ConstructionBill, with which I am involved at the moment andwhere there is considerable temptation to react againstthe intervention of the Secretary of State. That is notquite the same here. However, I have retained Amendment89JZB because, as I read it, the Secretary of Statewould have a veto over all other marine plan authoritiesin the adoption of a marine plan. I may havemisunderstood some link in the process, which meansthat it is logical for the Secretary of State to have thisveto. However, if it is not a matter of logic but ofgiving the Secretary of State a power that he wouldnot otherwise have had during the process, I am concernedabout the paragraph. I beg to move.

The Duke of Montrose: I am interested to see thisamendment, moved by the noble Baroness, Lady Hamwee,but if I understand it rightly the Secretary of State’spowers would exist only in matters that relate toretained functions. He might not be able to veto thewhole Bill. I would be interested to hear what theMinister has to say. I am afraid that, speaking fromthis Dispatch Box, I cannot agree with the nobleBaroness that the Secretary of State does not need togive agreement to plans relating to retained functions.As we have spent some time discussing already, thisBill potentially devolves enormous powers. These aremainly executive powers, although there is still thequestion of whether some legislative power might beneeded. The consequences of establishing this complexnetwork of powers over the UK marine area are stilluncertain.

Of course, we hope that a sensible method ofconsultation will be established and maintained, as itis at the moment, and that progress will be maderelatively smoothly. However, removing the ability ofthe Secretary of State to check on decisions affectingretained functions does not seem to be the best way toensure this. Can the Minister explain to the Committeehow a marine plan authority could have any reasonfor making provisions relating to retained functions?Presumably this would not be to the extent of exercisingretained functions. That is surely beyond the powersthat even a Secretary of State enjoys under the currentlegislation. There are clauses in the Bill that perhapsrequire consideration.

Lord Davies of Oldham: I am grateful to the nobleBaroness for the amendment, in which she seeks toclarify certain aspects of the settlement and agreementthat we reached with the devolved Administrations.As she indicated, clarity on these matters is of help,and I am grateful to the noble Duke, the Duke ofMontrose, for identifying which areas need to be clarified.

The trouble with the amendment is that it strikes atthe heart of the settlement that we have reached withthe devolved Administrations for marine planning.We have made available a briefing note and a dedicatedsession on devolution in relation to this Bill. NobleLords have been seeking reassurance that new functionshave not been legislatively devolved under this Bill; Iassure the Committee that they have not. Rather, wehave between us agreed a form of executive devolution.This recognises that, while the real benefits of marineplanning are achieved only if authorities plan for allactivities in the marine environment, it is importantthat such plans are agreed between Administrations sothat we can feel comfortable that important matters,such as UK interests in oil and gas, shipping anddefence, are protected.

Under the Bill, the devolved Administrations becomethe planning authority for the relevant offshore region.They may prepare plans which affect both devolvedand non-devolved matters. We believe that it would bealmost impossible to plan in respect of devolved matters,predominantly fisheries, some nature conservationfunctions, renewable energy, and so on, without insome way also affecting retained matters, such as oiland gas exploration and exploitation, defence andshipping. It is because of the complex mix of devolvedand reserved or non-devolved matters in the offshoreareas that all plans for the offshore areas must beagreed by the Secretary of State before adoption bythe marine plan authority, which is exactly the pointmade so effectively by the noble Duke, the Duke ofMontrose.

Similarly, this must also apply to a Welsh plan forthe Welsh inshore region if it covers retained functions.This is to ensure appropriate protection for reservedor non-devolved functions, defined in the Bill as retainedfunctions, in the offshore area. This requirement forthe Secretary of State to agree all offshore plans andany Welsh inshore plans that relate to non-devolvedmatters is an important condition of the devolutionpackage for this Bill, which was agreed by the JointMinisterial Committee across all four Administrationslast summer and autumn. It is an approach supportedby the devolved Administrations as a way of agreeingto work together for the good of all of us across theUK seas.

I accept that the noble Baroness, Lady Hamwee,approached this position with some element of scepticism;she wanted to be absolutely sure that we are notproceeding with the Bill except on the basis of anagreed position with the devolved Administrations. Iassure her on that point, and I therefore hope that shewill feel some confidence in withdrawing the amendment.

The Duke of Montrose: There is one point aboutwhich I still feel a little uneasy. We have reservedmatters in the offshore area, particularly the NorthernIrish and Scottish offshore areas, over oil, gas and, as Imentioned, coal. If the United Kingdom Administrationwished to see some of these elements developed, weare saying that at the moment the devolvedAdministrations could put a stop to these things throughrefusing planning. Perhaps the fact that it is checkedby the Secretary of State might overcome that, but it is


[THE DUKE OF MONTROSE]an area that would have to be watched very carefully.It is very easy to say that planning is devolved totallyto the peripheral Administrations, and they couldprove to put a total stop to any exploitation of thematters that are retained.

Lord Davies of Oldham: We would be in a parlousstate indeed if we reached that position. That is whywe have built in, throughout the process set out inSchedule 6, specific points at which the Secretary ofState must sign off the devolved plan authority’s statementof public participation and the consultation draft ofthe plan to ensure that the Secretary of State is happywith the direction that the plan preparation is taking.This will avoid any misunderstandings or last-minutedisagreements that could jeopardise the adoption ofthe plan and lead to exactly the situation feared by thenoble Duke, the Duke of Montrose. We are proceedingthrough the development of the plan in terms of theSecretary of State’s necessary information andparticipation, so that we can create the frameworkwhich will obviate the noble Duke’s anxiety and will, Ihope, reassure the noble Baroness with regard to heramendment.

Baroness Hamwee: I am grateful for that explanation.I would like to make it clear that my aim is not todisturb the devolution settlement, but to supportdevolution as much as possible. That is why I approachedthis paragraph with what the noble Lord described asscepticism—that is not unfair, actually. As he hasconfirmed, agreement is required even though morethan the retained matters will be the subject of theplan. I am grateful for the material which the Governmenthave given as regards the patchwork quilt of powers,and I will further consider what the Minister has said.I beg leave to withdraw the amendment.

Amendment 89JZB withdrawn.

Amendment 89JZC not moved.

Amendment 89JZDMoved by Lord Hunt of Kings Heath

89JZD: Schedule 6, page 235, line 34, leave out “relate” andinsert “include provision relating”

Lord Hunt of Kings Heath: I also have three othergovernment amendments in this group—two to Schedule6 and two to Clause 57. They are all minor andtechnical in nature, but they are necessary to improvethe clarity of the drafting.

Amendment 89JZD provides clarification to paragraph15 of Schedule 6 that the agreement of the Secretaryof State is necessary only for a Welsh plan for theWelsh inshore region which makes provisions relatingto retained functions. We included this provision toensure that the existing devolution arrangements shouldnot be curtailed by this Bill by the need for theSecretary of State to agree plans which cover onlydevolved matters.

Amendment 89JB is a minor and technical amendmentthat corrects an incorrect reference we made in paragraph15(6) of Schedule 6. This deals with the adoption andpublication of a marine plan. The Bill refers to the

“policy authority” deciding what modifications to theproposals are needed before the final plan becomesadopted. This should read the “marine plan authority”instead.

Amendment 94ZA makes a small change toClause 57(3), to replace the use of a marine policydocument “in force” in the marine plan area with“which is in effect” instead. The reason simply is toensure consistency in terminology throughout thispart of the Bill.

Amendment 94ZB would remove from Clause 57(5)(e)the surplus words,“and has not withdrawn from it.”

This relates to the effect of the marine policy statementon decisions. These words are unnecessary because thedefinition of “adopted” in this clause already includesa reference to the effect of withdrawal from the MPS.

Amendment 89JZD agreed.

4.30 pm

Amendment 89JA

Moved by Lord Wallace of Tankerness

89JA: Schedule 6, page 235, line 34, at end insert “or a marineplan for the Scottish offshore region to the extent that it does notrelate to retained functions”

Lord Wallace of Tankerness: The amendments areessentially probing and follow on, in the first respect,from the recent debate about the power of the Secretaryof State to approve plans—or not—and that beingvery much part of the devolved settlement that hasbeen agreed.

Amendment 89JA relates to plans being adoptedonly with the agreement of the Secretary of State, butseeks to put on a par with the case of a marine plan forthe Welsh inshore region—Secretary of State approvaldoes not apply if the plan does not relate to retainedfunctions—“a marine plan for the Scottish offshore region to the extent thatit does not relate to retained functions”.

Fisheries were executively devolved to Scottish Ministerssubsequent to the Scotland Act. I would welcome theMinister’s clarification that there were no other non-devolved functions in respect of the Scottish offshoreregion; and that, if a plan under this part of theAct relates to fisheries, the approval of the Secretaryof State would still be required as regards any plan forthe Scottish offshore region. If that is the case, it isalmost re-reserving to a limited extent. The Ministermay argue that it is part of the settlement, but it isimportant that that be clarified.

Amendment 94A is to Clause 57—we are goingslightly ahead of ourselves, but the amendment is inthis group—where a marine plan for an area in adevolved marine planning region has to have a statementunder Clause 49(7) that it contains provisions relatingto a retained function. For the purposes of the part ofthe Act, subsection (7) states that,“as respects the Scottish inshore region or the Scottish offshoreregion, functions relating to reserved matters, within the meaningof the Scotland Act 1998”,


are to be defined as “retained functions”. Put simply,the amendment probes what functions relate to reservedmatters and are exercised within the Scottish inshoreregion. I am sure that the Minister will be able to giveus a list of those. If there are none the words willappear redundant but, if there are functions, who willbe responsible for dealing with them in the plan for theScottish inshore region? Will that matter, albeit itconcerns “retained functions”, be dealt with by ScottishMinisters subject to the approval of the Secretary ofState? Again, I seek clarification from the Minister asto what is covered by “retained functions” in theScottish inshore region.

The final three amendments, which relate to eachother, are about the documentation and possible challengesto it in the courts. As I read Clause 59, an applicationmay be made to the Court of Session or the HighCourt in respect of a document for a marine plan foran area outwith the English inshore region or theWelsh inshore region. If it is a matter relating to theScottish offshore region, it appears that it can beraised in the High Court. Vice versa, if it relates to theEnglish offshore region, it could be raised and litigatedon in the Court of Session. This amendment wouldgive the Court of Session exclusive jurisdiction overmatters arising out of a challenge to a relevant documentpertaining to the Scottish offshore region; in othercircumstances, it would be the High Court. Where youhave the geographical division, it seems natural tohave the appropriate division of court jurisdiction aswell. Maybe I have misread the Bill, but it did notseem that way. If it has to be the case that a matterrelating to the Scottish offshore region could be raisedin the High Court or vice versa, it would be interestingto know the ministerial justification.

The Duke of Montrose: I thank the noble Lord,Lord Wallace of Tankerness, for explaining hisamendments. I was waiting with interest to hear himexplain about the different courts and their jurisdictionsin different areas. Can the noble Lord explain howthere can be a difference in the treatment of reservedfunctions between inshore and offshore areas? Thissubject has interested me greatly since we starteddebating the Bill. The Minister will probably confirmthat there are already more devolved powers in theoffshore area than the noble Lord, Lord Wallace, hasspoken of, because powers were devolved under theElectricity Act. This means that all renewable energyin the offshore area, as well as all electricity generation,including all transmission lines and interconnectors,are devolved—so if the Scots wish to keep all theirelectricity to themselves, they could almost cut it off atthe border. We would like to hear the Minister’s replyon this matter.

Lord Livsey of Talgarth: I do not want to spoil theparty. This amendment refers directly to the Scottishsituation, but also to retained functions. The plan is toput the Scottish offshore region on a par with theWelsh inshore region. The Government of Wales Act2006 is unsatisfactory in many respects where it concernslegislative competence. I seek further clarification. TheMinister has already dealt with some points concerningthe powers of the Secretary of State. I agree with what

my noble friend is attempting to do with the amendmentas it relates to Scotland. With regard to the publicationof a marine plan, it does not relate to retained functionsas far as Wales is concerned. It is obvious that theWelsh offshore plan does not fall within the devolvedfunctions of the Welsh Assembly. Paragraph 15(2) ofSchedule 6, which has been discussed previously, relatesto the powers of the Secretary of State. Sub-paragraph(3) states:

“Sub-paragraph (2) does not apply in the case of a marineplan for the Welsh inshore region if the plan does not relate toretained functions”.

That solidifies the situation. However, the Welsh AssemblyGovernment are bound to be concerned about thesituation in the Welsh offshore region. Should theyproduce an offshore plan, which they may not have thecompetence to do—I would like the Minister to clarifythat—could the Secretary of State veto it?

There are many environmental problems in theIrish Sea. One principle of the Government of WalesAct 1998 was sustainable biodiversity. This is a majorstatement in the Act. However, what would happen ifa large infrastructure project was imminent, or seriousinroads were threatened into the viability and sustainabilityof offshore fisheries? Although the Welsh Assemblyhas considerable powers in that area, what wouldhappen if the environmental sustainability of the Welshoffshore region were put at risk? If the Welsh AssemblyGovernment attempted to put this right by means of amarine plan for the offshore region, could that bedone?

Lord Davies of Oldham: I am grateful to nobleLords who have spoken in this short debate. I havebeen handed a most useful summary of the variouspowers which are proposed in this legislation andwhich exist under other legislation. It is a graphic andvaluable illustration, which I shall make available tonoble Lords as soon as possible. Had I had the senseto show it to Members of the Committee earlier, Imight not have been involved in such intricacies onthese amendments. It will clarify the issues greatly. Icannot possibly read it out as it would take an inordinatelength of time and I am not sure I could make completesense of it as it is in columns. However, I shall ensurethat it is circulated to all noble Lords who are interestedin the Bill. It will be invaluable in understanding wherewe are now and will also help to clarify the situationfor a future discussion on these important and complexissues.

These amendments are interesting. We learnt fromour previous discussions that this is a complex area ofthe Bill and a complex area generally. That is reflectedin the drafting of this part of the Bill. It may behelpful if I set out how the devolution agreementworks for marine planning in the Scottish inshore andoffshore regions. There are two issues to be considered:first, the effect of the MPS on marine plans and,secondly, its effect on decisions. If Scottish Ministersadopt the marine policy statement, with the agreementof the Secretary of State—an issue which we discussedearlier—they will be able to prepare comprehensivemarine plans for the Scottish offshore region. Thoseplans must be in conformity with the marine policystatement, unless relevant considerations apply, and


[LORD DAVIES OF OLDHAM]will be able to address matters which are devolved toScotland, such as fisheries, renewable energy generationand some nature conservation functions, as well asmatters which are reserved by the UK Parliament.This is obviously our preferred option, towards whichboth Administrations are committed to working.

That is how the authorities should work together inthe future. However, if, for any reason, Scottish Ministersdo not adopt the marine policy statement, or if theydecide at some stage to withdraw from it, their decisionsand those of public authorities in Scotland whichrelate to devolved functions will not be bound by it. Ifthey do not adopt the marine policy statement orwithdraw from it, Scottish Ministers will be able toprepare marine plans only in respect of matters whichare devolved to Scotland. I am sure that the Committeerecognises the logic of that. Given the complex mix ofdevolved and reserved functions in the Scottish offshoreregion, the joint ministerial committee, to which Ihave made reference earlier, agrees that all plans forthe Scottish offshore region should be subject to agreementby the Secretary of State whether or not they expresslymake provision for functions which are not devolved.

I reiterate that even if the Scottish Ministers do notadopt the marine policy statement, it will still apply toboth the inshore and offshore regions in respect of alldecisions in relation to functions which are not devolved.In other words, in the Bill the retained functions aredefined in Clause 57.

Separately, Scottish Ministers are preparing a ScottishMarine Bill which will include provision for marineplanning in the Scottish inshore region. As their recentconsultation document on the proposals for a ScottishMarine Bill says,

“To apply marine planning provisions to reserved matters inthese waters, the agreement of the UK Government would beneeded”.We are already in discussion with our Scottish colleaguesto agree a mechanism that will enable the UK Governmentto signal our consent to these plans, so that bothAdministrations can enjoy the benefits of comprehensivemarine planning for the Scottish inshore region. As Isaid earlier, the marine policy statement will apply toreserved matters throughout the UK marine area,including the Scottish inshore region, and we wouldexpect any plan prepared under a Scottish Marine Billthat seeks to address reserved functions to conform tothat policy statement.

4.45 pmThe Duke of Montrose: I must thank the Minister

for the full and useful explanation he has been givingon some of the matters that have exercised us forsome time. I wonder whether that wonderful piece ofpaper that he has makes it clear that one devolvedmatter, the Food and Environment Protection Act, isstill a major part of the functions that will exist. TheScottish Executive currently use that—certainly inthe Scottish inshore area, and I think it applies in theScottish offshore area.

Lord Davies of Oldham: The answer is yes, and thatis without consulting my magic document. I believethat this will also help with such issues.

Amendment 89JA would allow Scottish Ministersto plan for the Scottish offshore region for devolvedfunctions without the need for the agreement of theSecretary of State. That would extend the provisionalready made in respect of plans prepared by WelshMinisters for devolved matters only in the Welsh inshoreregion. It may help if I explain why that provision forWelsh plans is there. Unlike in Scotland and NorthernIreland, the Welsh Assembly cannot legislate for marineplanning in the Welsh inshore region, so we have madeprovision for Welsh inshore planning in the Bill. However,under current devolution arrangements, Welsh Ministershave existing powers in the Welsh inshore region—particularly in relation to protecting the marineenvironment—which they currently exercise withoutthe agreement of the Secretary of State. We havetherefore included this provision to ensure that theexisting devolution arrangements should not be curtailedby this Bill by a need for the Secretary of State toagree plans which cover only devolved matters—toleave the status quo.

Regarding the noble Lord’s amendment, the positionof the Scottish offshore region is different. It is notpart of devolved Scotland, and although ScottishMinisters have significant functions in that region,they are by no means comprehensive. The Scottishoffshore region comprises a significant part of the UKmarine area and the UK, rather than the ScottishExecutive, retains many key functions in the area,including those relating to international relations withother countries that share borders with that region.

The second of these amendments, Amendment 94A,would remove the definition of “retained functions”as applied to “the Scottish inshore region”. We considerthat that could damage the effect of the marine policystatement in that region by creating uncertainty overthe decisions to which it should apply. As I explainedearlier, if the Scottish Ministers adopt the MPS, it willapply to all decisions relating to the Scottish inshoreregion. If they do not, it will still apply to retained orreserved functions, so removing that definition wouldmake it unclear which functions these are and threatenmost the functions that are reserved to this Parliament.I understood that the noble Lord prefaced his remarksby saying this was a probing amendment. I hope it hasprobed a satisfactory enough reply from me for him tofeel happy to withdraw it.

The remaining amendments, Amendments 97A, 97Band 97C, refer to Clause 59, which sets out how anyperson may challenge the content of the marine policystatement or marine plans in a court of law. Theyspecifically deal with which court should be appliedto. The noble Duke, the Duke of Montrose, expressedhis keen interest in this matter. It will be possible toappeal against a published marine policy statement oran adopted plan. Clause 59 provides that any personaggrieved by one of these documents or by a revisionor replacement will be able to apply to the relevantcourt on the grounds that the document is not withinthe appropriate power or that a procedural requirementhas not been complied with.

The amendments limit the courts to which applicantscould bring a case. For example, for matters relating toplans in inshore areas in England and Wales, the


appropriate court will be the High Court, but themarine policy statement and plans for the English,Welsh, Northern Irish and Scottish offshore areas mayaffect a wide range of interests in those areas. It isappropriate to allow for an application challenging themarine policy statement or a marine plan for part ofthe offshore region to be heard in the High Court orthe Court of Session. Applicants can also challengethe marine policy statement in any superior court, andwe are concerned that the effect of Amendment 97Bwould be to remove the provision relating to whereapplications challenging the marine policy statementshould be brought. That is why we cannot accept itbecause it puts at risk the protection of UK interestsin the Scottish offshore region, which are extensive,and the basis on which we have agreed the Bill in ourdiscussions with the devolved Administrations.

Lord Wallace of Tankerness: I am trying to findwhat part of the amendment the Minister findsobjectionable or would cut off the right of appeal. Ishe saying that the Scottish Government have assentedto a body, perhaps an oil company, wishing to challengea provision relating to the marine plan for the Scottishoffshore region doing so in the High Court in Londonas opposed to the Court of Session in Edinburgh?Does he not think that it is logical that if a matterrelates to an area in Scottish jurisdiction for otherpurposes, it should fall to a court of the Scottishjurisdiction, not the High Court, and vice versa?

Lord Davies of Oldham: I indicated that an applicationchallenging the MPS or the marine plan for the offshoreregion could be heard in the High Court or the Courtof Session. I hear what the noble Lord says about theother matters, but he will recognise the wider interestsinvolved in that issue. I assure him that we haveframed the Bill on the basis of discussions with thedevolved Administrations, and they have looked atthis matter with the greatest care, as he would expect.These clauses, which revolve around the powers andthe legal basis on which they can be challenged, arepart of the agreement that we have reached with theAdministrations.

The noble Lord, Lord Wallace, raised the complexmain issues in his speech and in his amendments. Thenoble Lord, Lord Livsey, asked me about the Welshoffshore position with regard to the environment. Wehave not agreed to devolve offshore nature conservationexecutively but Welsh Ministers will be able to influenceinshore conservation provisions through the marinepolicy statement and the marine plan, which can covernature conservation with our consent. Authoritiesexercising functions in their region must consult andapply the marine policy statement—the noble Lordwill recognise the overarching significance of that—butthe point he raised is that Welsh Ministers will be ableto influence provisions through that statement.

Lord Wallace of Tankerness: The Committee willbe grateful to the Minister for his reply and probablyeven more grateful when he circulates the paper withthe list, which will be very helpful, although I understandthat we might have been here for a long time had hetried to read it all on to the record. This debate has

given us greater clarity as to who can do what, subjectto what authority and subsequent approval, but I stillhave a concern about the offshore area for whichScottish Ministers currently have a responsibility. Imentioned fisheries and the noble Duke, the Duke ofMontrose, quite rightly reminded us that renewableenergy is a function as well. The Minister seemed to besaying that he did not want to upset the currentdevolutionary arrangements for the Welsh inshorearea but that there was to be some trade-off for theScottish offshore area. Given the totality of othermatters for which Scottish Ministers do not currentlyhave responsibility, the trade-off might be worth while.It would be useful to have that on the record so that wecan make a judgment. Likewise, with regard to theScottish inshore area, the Minister seemed to indicatethat important current functions would be reservedbut that they would have to be set out in any marineplan that was brought forward. I want to look at whatthe Minister said in detail, but it has been helpful ingiving us clarification.

Baroness Hamwee: Before my noble friend withdrawshis amendment, as I sense he is going to, I have a finalpoint to make. At the end of his comments on what hedescribed as his “magic” piece of paper, the Ministerused the words “in conformity with”. When that pieceof paper is circulated, it will be helpful if we knowwhether we are talking about general conformity orstrict conformity. I appreciate that this is not preciselyon the amendment that we are discussing, but if we areto understand—and we are groping our way towardsit—what the relationships are, that is an importantpiece of information.

Lord Davies of Oldham: Given what the nobleBaroness has said, I thank heaven that I did not readout the statement, but I will make sure that it iscirculated and I will include the proviso that she hasmade.

Lord Wallace of Tankerness: I am grateful to mynoble friend Lady Hamwee. I am sure that the distinctionbetween “general conformity” and “strict conformity”comes into the realms of “adjacent” and whatever theother phrase was. Some can read more into that than Ican, but I am sure that it is intended to be helpful.

My final point relates to the question of courtjurisdiction. I want to think about this, because Ibelieve that the pass is being sold here and may indeedhave been sold by Scottish Ministers. My colleagues inthe Scottish Parliament will be fascinated that Mr Salmondand others were quite happy to trade off the jurisdictionof the Court of Session, if that is indeed what hashappened; it is what I thought the Minister said. Ifmatters happen to fall territorially within Scotland,the application should be to the Court of Session; ifthey fall territorially within England’s offshore waters,they should fall to the High Court. Ultimately therewill be an appeal to what, in time, will be the SupremeCourt.

The Duke of Montrose: Is it clear in the nobleLord’s mind that the Scottish offshore area currentlyfalls within the jurisdiction of the Scottish courts? Isthis a change that is going to take place under this Bill?


Lord Wallace of Tankerness: Unless someone cantell me otherwise, the Scottish offshore area is, I think,within the jurisdiction of the Scottish courts. I recallfrom a previous existence that if, for example, a criminaloffence occurs in Scotland on one of the offshoreinstallations, it comes within the jurisdiction of theSheriffdom of Grampian, Highlands and Islands or ofthe Scottish High Court. Following the tragedy ofPiper Alpha, there was a fatal accident inquiry as wellas the inquiry of the noble and learned Lord, LordCullen. That seemed to indicate that it was within thejurisdiction of the Scottish courts. With those commentsand the possibility of revisiting the issue at a futuretime, I beg leave to withdraw the amendment.

Amendment 89JA withdrawn.

Amendment 89JBMoved by Lord Hunt of Kings Heath

89JB: Schedule 6, page 236, line 3, leave out “policy” andinsert “marine plan”

Amendment 89JB agreed.

Amendment 89K not moved.

Schedule 6, as amended, agreed.

Clause 50 agreed.

Clause 51 : Withdrawal of marine plan

Amendments 89KA and 89KB not moved.

Clause 51 agreed.

5 pm

Clause 52 : Duty to keep relevant matters under review

Amendment 89LMoved by Baroness Hooper

89L: Clause 52, page 26, line 41, after “cultural” insert “,historic, archaeological”

Baroness Hooper: In moving Amendment 89L, Ishall also speak to Amendments 101BZAA, 106CB,107A and 107D.

I have a general comment to make before I dealwith the detail of the amendments. In a Bill ascomprehensive and complex as this, it seems strangethat the opportunity to include clear measures toimprove the protection, management and enjoymentof our marine heritage has not been taken. I recognisefrom what the Minister has said on previous occasionsthat it may be argued that references to the marineheritage and the historic environment are implicit andthat it may be pointed out that Clause 112(2), forexample, refers to “historic or archaeological interest”in its definition of the environment, but there is insufficientclarity. I would have felt much happier if the amendmentthat my noble friend Lord Taylor proposed to Clause 2earlier in Committee had been given a warmer welcome,as it would have made it clear early in the Bill thatheritage and marine archaeology are within the scopeof the Bill. This group of amendments was therefore

tabled to ensure that our marine heritage is not overlookedin the delivery of the duties of marine management,whether we are talking about marine planning ormarine licensing, and in the designation of marineconservation zones.

Amendment 89L would add “historic” and“archaeological” to the list of matters to be kept underreview in Clause 52. As we already have a list, and asthe Minister has said that such features will be takeninto account in licensing, planning and so on, theamendment would ensure that equal weight was givento these features in considering policies on marineplan areas and would clearly distinguish them frommore general social or cultural aspects.

Amendments 101BZAA and 107D underline a similarpoint and would give recognition to the special statusof statutory consultees in determining licence applicationsand in the consultation prior to the designation of amarine conservation zone. When I refer to statutoryconsultees, I mean mainly English Heritage. There isconcern that English Heritage, as an adviser to theSecretary of State for Culture, Media and Sport on thedesignation of historic wrecks under the 1973 Act, isnot to be specifically consulted on proposals to designatean MCZ, which could have implications for its operationsin relation to a designated wreck under the Act. Therole of statutory consultees is very important in ensuringthat decision-making is informed by independent andknowledgeable advice and that complete attention isgiven to all aspects of any proposal, subject to thedecision of the Secretary of State. I believe that theBill should differentiate between those bodies with aspecific role and expertise and other generally interestedpersons to provide clarity and accountability in thedecision-making process. As I have said, those commentsapply equally to Amendments 101BZAA and 107D.

Amendment 106CB, which would insert the words“historic and cultural heritage” in Clause 114, wouldenable the designation of a marine conservation zoneon historic and cultural heritage grounds. It wouldhelp to ensure the integrated management of all featuressubject to conservation. Provisions for including thehistoric environment as supporting features of marineprotected areas were included in the marine Bill GreenPaper, which preceded this Bill. However, as it emerged,the Bill focuses on nature conservation as grounds fordesignating marine protected areas, as they were referredto in the Green Paper—they have now been renamed“marine conservation zones”—without any referenceto the historic environment. The Bill should ensurethat the historic environment is a factor in qualifyingthe interest of a location to be subject to marineprotected area status. Such status would broaden theapproach to management by ensuring that other activitiesthat have the potential to impact marine archaeologicalresources are first assessed against the natural andhistoric conservation interests of the marine protectedarea.

Amendment 107A would insert the words “historicor archaeological”. I believe that it is important thatthe grounds for designation of MCZs take full accountof all other features that are subject to statutoryprotection—again, the 1973 wrecks Act is an example—orthat could be subject to protection, including any


future legislation for historic and archaeological assets.If the MCZs do not do so, there could be conflictbetween their conservation objectives and the licensingof activities within them permitted by other legislation.In other words, there could be a recipe for confusion.As well as to protect our historic environment, we seekclarity and joined-up thinking.

At this stage, these are probing amendments. I hopethat the Minister will give us reassurance and a warmerwelcome to this aspect than he has previously. I alsohope that he will accept that there is considerableinterest among a wide range of individuals and relevantorganisations in getting this right. We want to behelpful and, as I have said, to ensure co-ordinatedmanagement between natural and historic features ofthe Bill to avoid potential conflict. I beg to move.

Lord Howarth of Newport: I am pleased to followthe noble Baroness, Lady Hooper, who has so cogentlyintroduced this group of amendments standing in hername as well as mine and other noble Lords in allparts of the House. Our purpose in tabling theseamendments is to tighten up the language of the Bill,removing ambiguities and making it clear that thelegislation is intended to protect the marine historicenvironment as well as the marine natural environment.I am grateful to the Minister, my noble friend LordHunt, for meeting the noble Baroness, Lady Hooper,and myself and for the helpful discussion we hadabout that general issue and about these amendmentsin particular.

Amendment 89L to Clause 52 clarifies that, indetermining what are relevant matters for a marineplan authority to keep under review, the term culturalincludes historic and archaeological. My noble friendmay say, as has been said before in proceedings on thisBill, that the Government eschew lists which can beinterpreted as excluding other matters that are notspecifically included in them. I understand the force ofthat point generally, but it is not the point here. Herewe are simply seeking elucidation of terms to clarifythat the legislation is intended to protect the marinehistoric environment. If you were Neptune or Venusarising from the waves and reading the Bill as draftedfor the first time, you would not be at all sure of that.The occasional references to cultural, historic andarchaeological interest seem like an afterthought andnot integral to the conception of the Bill.

Similarly Amendment 106CB amends Clause 114to state forthrightly that an authority may designate amarine conservation zone for the purpose of conservinghistoric and cultural heritage. Without this amendment,it is by no means clear in the Bill that an authoritycould do so. Amendment 107A clarifies that the authority,in considering whether it is desirable to designate anarea as a marine conservation zone, may have regardto the historic and archaeological consequences ofdoing so. Clause 114 as drafted as far as subsection (6)is exclusively concerned with the natural heritage. Theaddition in subsection (7) of permission to have regardto economic or social consequences of designationfails to indicate that the authority may also haveregard to the consequences for the marine historicenvironment. The Bill should explicitly require a balancedconcern for the various aspects of the environment,

historic as well as natural. The Bill should also pointthe way towards reconciling the tensions that therecould sometimes be between the needs of differentimportant aspects of the environment.

Amendment 101BZAA to Clause 66 and Amendment107D to Clause 116 are designed to make clear thatbodies charged with a duty to advise the Governmenton relevant matters and to undertake relevant executivefunctions on their behalf must be consulted duringthose processes of taking decisions that will haveimportant consequences for the marine historicenvironment. Amendment 101BZAA clarifies that indetermining an application for a marine licence thelicensing authority must have regard to representationsnot only from,“any person having an interest in the outcome of the application”,

but also specifically from statutory consultees. Consultingthe wider public of people who are interested is rightand proper, but we need to make a distinction betweenthat and consultation with organisations that haverelevant duties under statute. Amendment 107D similarlyclarifies that before designating a marine conservationzone an authority must consult statutory consultees aswell as any other persons likely to be interested. Persons“likely to be interested”, in the wording of the Bill, isan odd way to refer to statutory bodies which haveclear responsibilities in this area—as English Heritagehas in relation to the marine historical environment.

Politically it will be helpful to the Government tomake it an avowed principle to consult the relevantnon-departmental public bodies. They are differentfrom non-governmental organisations. They are set upby government as independent and expert bodies. Alegally binding and clear obligation to consult withthem will help to persuade the interested public thatthe Government genuinely wish to get their decisionsright. Such consultation provides a form of audit andaccountability.

My noble friend may say that there is no such thingas a statutory consultee and that it is not a termrecognised in government. While it may not be anelegant term, it precisely describes something thatmatters, so why do we not coin it as a useful legislativeterm? If he really does not like it, we could perhaps useinstead the terminology of “partner authorities” thatthe Government themselves are using in the LocalDemocracy, Economic Development and ConstructionBill. My noble friend may otherwise say that theamendments are unnecessary since by definition statutoryconsultees must be consulted. That is true in theory,but busy people do not always remember to consulteveryone they ought to consult, or appreciate thestatus of the responses they receive. Bureaucratic jealousiesdo occur and co-operation between departments canbe less than perfect.

5.15 pmI readily accept that Defra Ministers and officials

are working with DCMS and English Heritage atpresent. Defra is a signatory to English Heritage’sfunding agreement and has, I understand, commissionedEnglish Heritage to prepare a position statement onmarine development control. Defra, DCMS and EnglishHeritage work together very well on the Aggregates


[LORD HOWARTH OF NEWPORT]Levy Sustainability Fund. English Heritage is a fundholderunder this Defra scheme, which supports mucharchaeological work, including the examination of“Dogger Land” under the North Sea and the use ofnew survey technology to study shipwreck sites on theGoodwin Sands. I am not at all saying, therefore, thatthere is not at present good co-operation. Ministersare, however, birds of passage. I have watched withadmiration how my noble friend Lord Hunt has swoopedfrom one portfolio to another. Civil servants, despitethe mythology, are not permanent, and the institutionalmemory in Whitehall can be amnesiac. There arepressures on Defra to subordinate its concern for themarine historic environment arising, for example, fromthe international agreement to deliver an ecologicalnetwork of marine protected areas by, I think, 2012.Nature conservation NGOs are pushing hard forecological and biodiversity interests alone in this network,and that makes it hard for the archaeology NGOs toplay their part in achieving co-ordinated action for thebenefit of conservation overall.

The terms of this major legislation should make itunambiguously clear that duties to conserve are dutiesto conserve the historic as well as the natural environment.We understand why my noble friend Lord Hunt doesnot intend to attempt a definition of “sustainable” inthe Bill, but I do ask the Government to state, inlapidary terms, on the record in Hansard, that whenthey speak of sustainability and when they legislate onsustainability and conservation, they intend that theseterms and these duties embrace the historic as well asthe natural environment. Successor officials, and, indeed,the courts, must have no doubt of this.

I have noticed that Defra’s document, A Strategyfor Promoting an Integrated Approach to the Managementof Coastal Areas in England, while emphatic on theneed for a joined-up approach, and while acknowledgingthe historic environment in its vision, is, like this Bill,overwhelmingly focused on the natural environment.That is appropriate in a Bill originating from Defra.What causes me concern in that document, however, isthe account of what the Government intend in the UKmarine policy statement. It says:

“The statement will bring together social, economic andenvironmental policies”.

It makes no reference to policies for the cultural andhistoric heritage. Yet the national policy statementwill, on behalf of the Government as a whole, set theterms of reference for marine planning and conservation.I ask my noble friend to state that the MPS will set outthe policy of the Government to safeguard the marinehistoric environment. I also ask him to make clear onthe face of the Bill at the crucial points the Government’scommitment to the cultural and historic marine heritage.

We must not fluff this legislation, as has happenedtoo often in the past. The Protection of Wrecks Act 1973was, I have been told, a narrowly-intended emergencymeasure originating as a Private Member’s Bill. It isincapable of bearing the load that we may hope toplace upon it. It is doubtful, for example, whether itsprovisions will help us in relation to the discovery theother day by a commercial salvage firm of divers ofthe remains of the first HMS “Victory”, yet the extentof the media coverage and intensity of public interest

in that ship show that there is a demand that theGovernment and the public agencies should be competentand determined to act in the public interest in conservingthe marine historic environment. The 2002 legislation,also introduced as a Private Member’s Bill, though itdrew on a previous government Bill that had not beenenacted, was similarly insufficiently comprehensive.The Government’s heritage protection Bill, thoughnot a wreck, has not surfaced in this Session. I believethat the Secretary of State is trying to navigate it intoport, but he has not got there yet.

Meanwhile, we have this Bill. I do not suggest thatit should not primarily be about the marine naturalenvironment, or that it should be made to substitutefor the heritage protection Bill, but I would argue thatit should very clearly create a part of the legislativestructure that we need for the conservation of themarine historic environment.

Lord Judd: After that very erudite contribution bymy noble friend perhaps I may add just a generalword. I should say that I am honorary president of theFriends of the Royal Naval Museum. In that capacityI am very concerned by what my noble friend isputting forward. I think that he is right.

I want to emphasise a wider policy point. TheGovernment are taking exciting and commendablesteps in the direction of getting planning in so manyspheres into better shape, and I find myself with themnot only intellectually but enthusiastically. But if weare trying to get that right then, where we have othernational priorities concerning the quality and characterof our existence, it is not enough just to leave them tobe taken into consideration as a kind of appendix inwhich there are certain moral obligations, they have tobe central to the whole strategy. If we care aboutheritage then it is not something that just has to betaken into account, it is something that is central tothe whole design. The noble Baroness, Lady Hooper,and my noble friend have done a valiant job in bringingthis amendment before the Committee. I commend itand hope that the Government will feel able to give itserious consideration.

Lord Tyler: I sincerely apologise to the Committee,particularly the noble Baroness, Lady Hooper, formissing the first minute or so of her speech. I wasserving in another committee of the House which wasmeeting upstairs, and this Committee has moved ratherfaster this afternoon than I anticipated.

I and my noble friends Lady Miller of ChilthorneDomer and Lord Greaves have an amendment in thisgroup, which we are calling the “heritage group”.However, I also support the other amendments. Theymay offer different courses but they are all aimedtowards the same target. It is important that we discussthese issues in the round. I am grateful that I was inthe Chamber to hear the noble Lord, Lord Judd—whoI know spoke from the heart, because he has a longrecord of interests in these matters—and the nobleLord, Lord Howarth, who has taken such an activeinterest in these particular concerns.

We have all seen the briefing from English Heritage.It contains a powerful argument for proper designationand co-ordinated management between the different


agencies that may be involved in the natural andhistoric features around our coastline. I am particularlyinterested in the example of Lundy Island, where anature reserve contains two historic wrecks designatedunder the Protection of Wrecks Act 1973. The possibilityof confusion in a situation like that is great. It is alsotrue around the Isles of Scilly, in which I also have aclose interest, that if we are not careful and do not findways of making the various organisations—be theyless or more formal, quangos or, as they are moreproperly designated, NGOs—we will lose out substantiallyon important parts of our heritage. In that context, Ipay particular tribute to the Campaign for the Protectionof Rural England, which has also expressed anxietyabout this.

Amendment 106CA, in my name and the names ofmy noble friends, is an attempt to build in to therequirements of Clause 114 a specific reference to,“features or defined areas of sea or tidal waters, including thecoastline, of natural beauty or cultural significance or a combinationof any of these reasons”.

It therefore falls into the same category that othernoble Lords have already referred to. The amendmentattempts to define areas of sea and their contiguouscoastline where land or tidal features need to be designatedon grounds of natural beauty or cultural, archaeologicalor geological heritage.

The Bill should contain a presumption in favour ofdesignating areas of this sort, particularly when wealready have long established, well recognised and wellaccepted designations made under the national parkregime, for example, or as areas of outstanding naturalbeauty or as heritage coasts. It would be extraordinaryif all that legislation, which is so well supported and sowell bedded down in this country, was treated as lessimportant than this new legislation. It would also bewelcome if world heritage sites such as the Jurassiccoasts of Dorset and Devon were included in thecriteria for protection under the MCZs. The Governmenthave expressed interest in enhancing protection for theWHS designation; here is a useful opportunity to dojust that.

Views over the sea from land are an integral part ofthe coastal landscape. Coastal waters and the coastlineare indivisible in terms of the natural processes atwork which create the coastal morphology and thevisual integrity of land and sea when viewed fromland. Coastline viewed from the sea is similarly indivisiblefrom the marine setting. The CPRE is right to regardthe absence of landscape and visual criteria from thedesignation criteria for MCZs as a serious omission. Ihope that the Minister will find some way to remedythat in the Bill.

The Government have already shown the importancethey attach to the concept of landscape by ratifyingthe European landscape convention. English Heritagehas conducted a historic characterisation of seascapessimilar to its historic characterisation of landscapes.This analysis lends further weight to the case forincluding the protection and enhancement of coastaland sea landscapes in the Bill as it is intended todesignate the protection of the marine environment.

For many of our fellow citizens the clearest andmost relevant manifestation of the marine environmentis the view of it from the land or from the surface of

the sea. The CPRE is right to believe that understandingthe sea and its wildlife is largely achieved throughcherishing that view of the sea and its coastline. NaturalEngland has recognised the great importance of thisexperience in putting the enhancement of coastal accessat the heart of this marine Bill. Therefore, it is logicalthat we should bring landscapes including the seawithin the remit of the MCZs. That would completethis vital legislation, which otherwise will leave a majorelement of the marine environment unprotected. Ibelieve that the Minister recognises the significance ofthis whole group of amendments and I hope he will beable to respond very positively.

Lord Chorley: I intervene for the first time on theBill. I had intended to speak at Second Reading buthad to withdraw due to the timetabling of that debate.If I had spoken, I would have focused my remarksalmost entirely on the coastal aspect part of the Bill,which we have still to get to. Perhaps one day we willget there. Indeed, it was only when I read the notablecontribution of the noble Baroness, Lady Hooper,that I became aware of the issues we are discussingand their importance. That was rather myopic on mypart, perhaps inadequately excused by my pastchairmanship of the National Trust which, for themost part, is not terribly concerned with the marineenvironment.

We are quintessentially a marine nation with a hugemarine heritage, which is as important as our terrestrialheritage. The marine heritage must include, and beconcerned with, the issues covered by this group ofamendments. It is, indeed, curious that the Bill isvirtually silent in this area, perhaps because the issueswere expected to be dealt with in the heritage Bill,which has never seen the light of day.

Be that as it may, I congratulate the noble Baronesson seeking to remedy that deficiency with this groupof amendments, and I am thankful that they havebeen included in a single group, which makes it mucheasier and more logical. They hang together as theyare all of a kind, although they relate to various partsof the Bill.

5.30 pmI shall not go over the amendments in detail as this

has already been done, particularly in the notableintervention of the noble Lord, Lord Howarth. Asalways, he speaks with knowledge and great authority.For example, the word “cultural” which has been usedin Clause 52 is surely too imprecise. It is all very wellfor people to say, “Well, everybody knows it includesthe sort of things that we are talking about”, but asnoble Lords have said, civil servants and others can forgetat times. It is rather a vogue word today, which I alwaysfind rather disturbing. So in this important area ofmarine history and archaeology the wording needs tobe more specific and we need Amendment 89L.

Similarly, in Clause 114, which deals with the groundsfor MCZ designation, the word “social” needs to bebuttressed in the same way—hence Amendment 107A.In addition, it is surely important to refer at the tworelated points to the statutory consultees to ensure, ashas been said by previous speakers that we are remindedthat English Heritage, for example, has a statutory


[LORD CHORLEY]role, as it is very important that we give proper weightto its views and responsibilities—hence Amendments10BZAA and 107D.

The two remaining amendments refer to seascape.The point was well expressed by the noble Lord, LordTyler, so I need not go over it again. I hope that theGovernment can find a way to include these amendmentsin the Bill, or something like them, when we get to thenext stage.

Lord Taylor of Holbeach: I thank my noble friendfor tabling the amendments and those around theHouse who have spoken in her support and for raisingthe important issue of protection of our marine andmaritime heritage, in particular. My noble friend isright to draw attention to the fact that there is muchinterest in this subject and evidence of support forthese amendments.

The gracious Speech for this Session was extremelydisappointing for those interested in preserving ourmarine environment and adequately providing forarchaeological conservation. The much needed andeagerly anticipated heritage protection Bill has beenshelved, but just as with the Planning Act 2008, whichignored the Bill that we are now considering, this Billwas introduced without provisions necessary to ensurethat the new marine planning legislation includes andproperly safeguards our historic heritage which liesunder the sea. Our island history is largely maritime.The work on the wreck of the HMS “Victory” off theChannel Islands shows how important our maritimeheritage is to our understanding of the past.

The Minister will no doubt point to the draftheritage protection Bill to explain why these provisionsare missing. After all, that draft Bill went into greatdetail and it is no doubt the best vehicle for acomprehensive and consistent policy towards the UK’sheritage. But the Government have decided not tobring it forward. As much as we on these Benchessupport that Bill, it can do no good in draft. That maybe a shock for some in the Government, but statementsof intent and press releases are not as effective asenforceable legislation, and the Government shouldnot act as if they are.

Protecting historic and archaeological sites shouldnot be considered an optional extra to be added onwhen the Government find a convenient moment.They should be looking for ways of making sure thatprotection can be ensured now to prevent furtherdamage until the draft Bill can be introduced and toensure that these provisions will interact appropriatelyand efficiently with the heritage objective.

I also agree with the amendment of the noble Lord,Lord Tyler, which provides for—I paraphrase—anarea of outstanding natural beauty designation forcoastal aspects and seascapes. The interaction of seaand land is the source of some of the most beautifulaspects of our country. I feel strongly that the Governmentshould provide for marine heritage protection withthis Bill. Not to do so would represent a lost opportunity.

Baroness Byford: I wish to add a further word insupport of my noble friend Lady Hooper, and also toreflect on the comments of others. I understand that

originally there were plans in the green Bill that itshould be included. Will the Minister tell us why it wasthen dropped and whether that was due to the proposedheritage Bill that has not now happened? Even if theanswer is yes, should the Government not think againabout the opportunity provided by this Bill to ensurethat it is included? Having taken through the Housethe Countryside and Rights of Way Act and one ortwo others, I know that sometimes an opportunitymoves by too quickly. Unless there is a very goodreason why the provision was not included when it wasoriginally intended to be in the Bill, we should like topersuade the Minister to think again. I look forwardto his response.

Lord Davies of Oldham: I am grateful to all nobleLords who have spoken in this interesting debate, andof course to the noble Baroness, Lady Hooper, for theamendments which she tabled and to which she spokeso eloquently. She will have derived a great deal ofencouragement from the anticipated support she hashad from all sides of the House. I know that nobleLords take the issue of our heritage—our marineheritage in this context—very seriously.

The Bill spans a great deal of policy as well as a vastarea of sea. The Government intend the marine policystatement and marine plans to address the interestsand concerns of all those who are connected with thesea. Protecting our marine historic environment isimportant in our management of the marine environmentmore generally. We have ensured protection for theseaspects within our high level marine objectives, whichwe issued for consultation last summer. These objectiveswill underpin the development of the marine policystatement which will then be applied in more detail inspecific areas via marine plans. In response to thepoints put forward with his usual precision by mynoble friend Lord Howarth, while there will be anumber of national policy statements that we cannotpre-empt at this stage, I put it on the record that themarine policy statement will indeed set out theGovernment’s policy on safeguarding the marineenvironment, which will include cultural and historicmarine heritage. Those documents will then drivedecisions made in the marine area, so I hope that theCommittee will appreciate that heritage protection willin a very real sense feature in decisions that are made.

Of course, the Government are committed tosustainability. In response to my noble friend LordHowarth this embraces the concept of the historic aswell as the natural environment. The purpose of thenature conservation proposals in the Marine and CoastalAccess Bill is to protect the natural environment. Wehave concluded that history and archaeology are veryspecialised areas of policy requiring equally specialisedprovisions. That is why we have been drafting a newheritage protection Bill. I make this point in responseto a number of noble Lords who have spoken, themost recent of whom was the noble Baroness, LadyByford. We have been unable to give the heritageprotection Bill space in this Session’s legislative programme.The Government regret that, in the current economicclimate, there are other pressing priorities, but we willbring that Bill forward as soon as parliamentary timeallows. Defra has worked with the Department for


Culture, Media and Sport to ensure that the Bill weare now considering enables us to provide adequateprotection for the marine historic environment.

I am grateful that the noble Baroness, Lady Hooper,has introduced Amendment 89L. It gives us a chanceto air these important issues and for me to give somereassurance that they form part of the Government’smarine planning, which is the basis of this Bill.Amendment 89L relates to the matters that the marineplan authority must keep under review while exercisingits planning functions. As stated in the Bill, theyinclude physical, environmental, social, cultural andeconomic characteristics. I listened carefully to boththe noble Lady and my noble friend Lord Howarth,who said that this list was not precise enough, although“social, cultural and economic”seems sufficiently broadto encompass the issues that they address with theiramendments. The list of things that Clause 52 requiresthe planning authority to keep under review is indeedbroad. It is certainly broad enough to include mattersof historical and archaeological interest, without specificmention in the legislation. If it will help, I am happy toput it on record that we firmly intend that issues ofhistorical and archaeological interest should be consideredand addressed in marine plans.

As the noble Lord, Lord Chorley, asked in hiscontribution, why is the list of objectives not morespecific about cultural and—in particular—archaeologicalor historic matters? I think my noble friend Lord Juddalso reflected on this. We intend to address thoseissues in much greater detail in due course, and toanswer all noble Lords’ questions on these matters.However, I emphasise that this Bill does not excludethe important considerations that noble Lords havebrought to the attention of the House this afternoon.There will be very few cases where there will be a riskthat designating a marine conservation zone mighthave an adverse impact on marine heritage. We do notconsider, given the range of consultations that arenecessary and the objectives that the authorities mustfollow, that this Bill is anything except benign andconstructive with regard to these significant issues.

Amendments 106CA and 106CB seek to add theprotection of historic and cultural heritage, as well theconservation of cultural significance, to the reasonsfor marine conservation zone-designations, which areset out in Clause 114. I understand the pressure forthis from noble Lords and have some sympathy for thethrust of the amendment. I have already alluded to theneed for specialised provisions to protect adequatelyour marine heritage. The same is true of marine natureconservation. The Bill sets out a system of protectivemeasures specifically designed for natural environmentconservation purposes. I consider that the results thatwe want in these two areas of policy do not overlapsufficiently for us to be able to use exactly the sametools for both. That is why we intend to bring theheritage protection Bill before Parliament in due course.That does not alter the fact that the protection ofhistoric and cultural heritage is an important part ofthe work of this Bill.

5.45 pmThe noble Lord, Lord Tyler, spoke eloquently on

the issues of Amendment 106A, which seeks to include

natural beauty in the grounds for designating marineconservation zones. We will have a chance to debatethat later when we look at the conservation of visualbeauty in Part 5 of the Bill. I recognise that the nobleLord has located the amendment in this group for thepurpose of supporting the general issues of culturalheritage.

On the question of statutory consultees, who coulddisagree with the objective of this amendment? Itseeks to ensure that the relevant expert advice is takeninto account when making certain decisions. We agreewith that point and have drafted the Bill to ensure thatit happens. However, there is a problem with includinglists of statutory consultees in the Bill. Our approachis, rather, to require the bodies taking decisions toconsult all those people who are likely to take aninterest in, or be affected by, these decisions. Thatshould be clear. We expect to issue guidance, whereappropriate, to indicate whom bodies should normallyconsider consulting when taking decisions. Where themarine historic environment is relevant to a decision,that guidance will say that obvious experts in marineheritage, such as English Heritage, should be consulted.

I particularly appreciate the sharpness with whichmy noble friend Lord Howarth presented the pointthat unless people or organisations are listed, they canbe overlooked. He will forgive me if I say that, withinthe framework of the Bill, we are certainly makingsure that there is provision for our cultural and historicheritage. If we look in that framework at the marineenvironment and marine heritage, it is unthinkablethat consultation could take place without EnglishHeritage having its full opportunity for consultation.This approach will be quite as effective as lists ofconsultees. After all, the problem with lists of consultees—Iam not for a moment suggesting this in the context ofEnglish Heritage—is that they go out of date becausebodies change their names or designation. We aremaking provision in the Bill for the objectives that thenoble Baroness, Lady Hooper, brought to our attentionin her initial amendment. We will certainly ensure thatEnglish Heritage will be consulted wherever aspects ofthe marine conservation zones and marine plan aredeveloped that affect anything to do with our heritageat sea. I give way to my noble friend.

Lord Howarth of Newport: I am extremely gratefulto my noble friend for the reassurances that he isoffering the Committee. I assure him that I am alwaysdisposed to forgive him. I am still puzzled that theMinister is so reluctant even to specify statutory consultees,let alone itemise who they might be, in this clause ofthe Bill, whereas, on turning to page 179 of the Bill, wesee in proposed new Clause 55D—titled “Coastalmargin”—a whole litany of bodies with whom NaturalEngland is required to consult. It is required to consulteach London borough council, and the Historic Buildingsand Monuments Commission for England, alias EnglishHeritage; I am very pleased to see that there. It is alsorequired to consult the Environment Agency. Thereseems to be some inconsistency in the Government’sapproach to this matter.

Lord Davies of Oldham: I do not think that there isinconsistency, although I would be the first to emphasisethat I am no expert on the other legislation to which


[LORD DAVIES OF OLDHAM]my noble friend makes reference. He will recognise thegreat danger that we are in with regard to the Bill. Ifwe give a list of a small group of organisations thathave a broad interest in marine plans and marineconservation zones, the danger would be that theywould inevitably have a privileged status over thosewith local and regional interests and expertise.

My noble friend will recognise how important thelocal and regional aspects are with regard to the Bill,particularly as we spent a good part of this afternoondebating where the devolved authorities fit into this.Even less significant bodies than the devolved authoritieshave a part to play in the development of marine plansand marine conservation zones. Therefore, we arereluctant to put into the legislation—on which in somany of the local dimensions it is important thatbodies have their say—a national list which mightlook pre-emptive over them. That is why I am notpersuaded of the virtues of the amendment.

I would be failing in my duty to the Committee if Idid not indicate that the Government fully share concernson the question of our heritage with even the mostenthusiastic Members. That is why we are puttingforward two positions. This Bill necessarily is drawn infairly broad terms with regard to marine heritage,because of the other considerations that inevitably areof great significance within the framework of thelegislation. However, we will pursue the heritage protectionBill in due course. Noble Lords will accept that wehave that Bill in draft, and we merely await theparliamentary opportunity to introduce it. Therefore,I hope that noble Lords will feel that on an importantpart of this Bill they have pressed their case for concernfor the historic environment within British waters, andthat the Bill provides the opportunity for the Governmentto fulfil our obligations in this respect. I hope that thenoble Baroness will feel able to withdraw her amendment.

Baroness Hooper: I thank the Minister for hiscomments, and I thank all noble Lords who havesupported the amendment. It is very clear to me, as itis not at all clear in the Bill, that there is considerableinterest in getting the references correct and in makingit absolutely clear—in a way that the noble Lord hasmade in his statement just now—that these issues ofcultural heritage and the historic environment areincluded in the Bill.

Before I refer in detail to some of the other issuesthat have been raised, I must apologise to the nobleLord, Lord Tyler, because I had understood that hisAmendment 106CA might be grouped with ourAmendment 106C, which introduces the concept ofseascapes. Therefore, I did not make any comment onit. It must have been recently added to the group. Thatmeans that we will have another bite of the cherry andthat we will be able to return to this aspect at a laterstage.

I am grateful for all the support that has beenshown. The argument about the heritage protectionBill, which is over beyond the horizon somewhere, isnot satisfactory or sufficient to cover the importanceof the issues that we have been discussing. I havealways worked on the principle that a bird in the hand

has to be aimed for, and here we have a perfectlyappropriate Bill in which these provisions could perfectlyappropriately be included. As my noble friend LadyByford said earlier, people are now kicking themselvesthat, when the Countryside and Rights of Way Actwent through your Lordships’ House in 2000, themarine references were not included. Now, nine yearslater, in spite of assurances, they are still not apparentanywhere. It is not particularly helpful to put our faithin a Bill which may well be wonderful when it comesabout, but on which even the Minister was very clearthat it would come only “in due course”. That couldmean anything; not soon, not in the near future;nothing at all helpful or hopeful. I am glad to hearthat the marine policy statement will include explicitreferences to marine heritage and to the historicimportance of various sites and objects on our coastline,and I look forward to hearing a bit more about that.

The issue of statutory consultees was not adequatelycovered. The noble Lord, Lord Howarth, in speakingto the amendment, made the position perfectly clearand, in questioning the Minister, asked for furtherhelp, and did not get it. An organisation such asEnglish Heritage has a special status. It is not just aninterested person or body. It may well be that “statutoryconsultee” is not a felicitous term; perhaps we shouldfind some other way of describing them. There has tobe some way in which we can get this very importantrequirement in the Bill, to give comfort to those whoare interested in this issue and who wish to play theirpart fully, to ensure that their role is not overlooked.

I am not entirely happy with the Minister’s responseon this occasion. I said at the outset that these wereprobing amendments, so, although I am a bit tempted,I am not going to test the feeling of the Committee onthis occasion. I feel sure that, given the interest andwide support, we will return to these issues. I beg leaveto withdraw the amendment.

Amendment 89L withdrawn.

Amendments 89LA to 89LC not moved.

Clause 52 agreed.

Amendment 89M not moved.

6 pm

Clause 53: Delegation of functions relating to marineplans

Amendment 90

Moved by Lord Taylor of Holbeach

90: Clause 53, page 27, line 17, at end insert—“( ) Any direction under subsection (2) from a marine plan

authority other than the Scottish Ministers shall designate theMMO as the public body.”

Lord Taylor of Holbeach: This amendment willpresumably come as no surprise to your Lordships.Much as we support the overall provisions of this Bill,we are, as I and my noble friends have said before,


deeply concerned not only by what is definitely to becarved out of the Marine Management Organisationremit but also by what might potentially happen in thefuture. I hope that we have been consistent in ourargument. Certainly there is no ambiguity in thisamendment. It would ensure that, if there were to beany delegation of planning functions to a public bodyoutside the areas devolved to Scotland, that bodywould be the MMO. That is, I understand, theGovernment’s very sensible intention, so we wouldlike to see that intention set out on the face of the Bill.

The Minister will no doubt say that flexibility isneeded in the event that the MMO proves incapable ofexercising these functions effectively. Surely, however,if that were the case, the Secretary of State would,first, withdraw the functions back into the departmentand, secondly, reconsider the whole approach to marineplanning, with the appropriate legislation following.Watching the MMO fail and not taking the propersteps to dissolve it and to replace it with a moreeffective body would be the worst possible way toproceed.

Of course, this principle also applies to marinelicensing. Although I have not tabled an amendmentto that part of the Bill, I hope and trust that theGovernment’s intentions are to delegate the relevantlicensing powers to the MMO. However, this is nowhereindicated in the Bill. Perhaps the Minister might considerways in which this could be made more explicit in thewording of the Bill. I beg to move.

Baroness Hamwee: Can the Minister confirm myreading of the Bill that the direction could designate astatutory undertaker as a public body? Statutoryundertakers now are largely private sector. If I read itright, I have a question mark over that provision.

Lord Livsey of Talgarth: I am very unhappy withthis amendment. It says:

“Any direction under subsection (2) from a marine plan authorityother than the Scottish Ministers shall designate the MMO as thepublic body”.

Surely the Welsh Assembly is a public body. I knowthat the Minister has said that co-operation betweenWelsh Ministers and the MMO will be the procedure.I really find the exclusion of the Welsh Assembly inthis context unacceptable.

Lord Hunt of Kings Heath: This is an interestingquestion, on which I would like to allay the concernsof the noble Lord, Lord Taylor. I would also like tocomment on the wording of his amendment. It wouldhave the effect of limiting to the MMO the publicbody to which the Secretary of State, Welsh Ministersand the Department of the Environment in NorthernIreland could delegate their marine planning functions.It would be unusual to place a greater limit on thediscretion of the Secretary of State, Welsh Ministersand the Department of the Environment in NorthernIreland to choose their delegate than is placed onScottish Ministers. We certainly would start from thepremise that each marine plan authority should haveequal status, including in their ability to choose asuitable delegate to carry out their planning functions.

Let me make it clear that we intend to delegate ourplanning functions in the English inshore and offshoreregions to the MMO, but we disagree with the nobleLord, Lord Taylor, on the virtue of limiting ourselvesto doing so under this Bill. He has anticipated thereasons why we will resist his amendment. The systemis new. We are pretty convinced that we have got itright and that this is the best way to do it, but changesto the remit of the MMO might need to be made in thefuture, which might mean that it would no longer bethe best body to carry out marine planning. In thosecircumstances, we do not want to be tied by statute todelegating marine planning functions only to that body.

I know that the noble Lord, Lord Taylor, has said,“Well, if that were the case, it would show that thewhole system was not working, and the Governmentwould have to come back to your Lordships’ Houseand the other place with new legislation”. However,marine legislation does not come along very often. Weheard in the previous debate about legislation that waslong anticipated but, alas, had not quite reached yourLordships’ House. There is a genuine concern that, ifwe were to specify the MMO as he wants to, the resultcould be very inflexible if there were changes to bemade in the future in the light of experience.

Lord Wallace of Tankerness: The Minister’s casewould have more force if he could indicate whichother public bodies he thinks might be possible recipientsof delegated powers in the future.

Lord Hunt of Kings Heath: The noble Lord asks meto anticipate a circumstance that I hope will neverarise. He will know that I cannot do that; all I can sayto him is that it is best to leave some flexibility in thatregard.

The noble Baroness, Lady Hamwee, asked meto interpret “public body”. Clause 312—“Interpretation”—on page 206 makes it clear that apublic body includes a government department, aNorthern Ireland department, a local authority, alocal planning authority or a statutory undertaker,although there is a further definition in relation to thatin Clause 312(2).

We think that we should retain some flexibilityhere, to keep the option open of delegating specificfunctions within planning to specialist bodies. Thereare circumstances in which we might want some otherbody than the MMO to perform, for example, publicconsultation elements if there were a good reason forthat.

We have had debates on the Severn. I have explainedwhy there cannot be a joint plan, because of thedevolution settlement, but there can be a lot of workingwell together. It would be possible for UK and WelshMinisters to direct the same cross-border body toundertake public consultation in relation to both plans—both the Welsh plan and the plan covering the Englishpart of the Severn environment. We think that thereneeds to be a degree of flexibility. We certainly do notthink it appropriate to designate the MMO as themarine plan authority. We believe that the adoption ofplans is a policy decision that should remain at ministeriallevel. That is why we have provided a mechanism in


[LORD HUNT OF KINGS HEATH]Clause 53 by which any marine plan authority maydelegate the practical functions of preparing andmonitoring marine plans.

I know that, behind the amendment tabled by thenoble Lord, Lord Taylor, is a concern that theMMO will not have the degree of authority that hewishes it to have. I well understand that concern.However, we have deliberately set up the MMO as anindependent body—a non-departmental public body.That gives the organisation the independence andstatus that it needs to deliver on behalf of the Governmentas a whole.

The marine environment covers policy areas ofdirect interest to nearly every central governmentdepartment—defence, shipping, ports, renewable energy,fisheries, aggregates, the environment, recreation andmore. While the Secretary of State for Environment,Food and Rural Affairs will be the sponsor Minister,the organisation will deliver on behalf of all departments.It will be better able to deliver with the new marineplanning system, with objectivity and propriety onbehalf of the UK Government. It will have a crucialrole, building on the experience of fisheries andenvironmental licensing to deliver more joined-up decisionsand a much better and faster one-stop-shop service todevelopers. It will play a key role in integrated coastalzone management, in helping to deliver importantreforms and link conservation with fisheries management,and in managing and regulating a new and flexibletool to enable conservation benefits to be delivered,while encouraging important economic developmentssuch as marine renewable energy to proceed.

These are major policies that run through the Bill.They mostly arise because of the need to deal with theincreasing and conflicting pressures on the sea. We areequipping the MMO to deliver sustainable developmentin the marine environment. There should be no questionabout the importance of the Marine ManagementOrganisation, or that we wish to fetter it in any way,apart from in the terms in which it undertakes itsduties in accordance with the Bill. In the end, it oughtto be up to each marine plan authority whom todelegate their functions to. I have made it clear that, asthe UK Government, we will delegate those functionsto the Marine Management Organisation. However,we retain the right for some flexibility in future ifrequired. It would not be appropriate to limit WelshMinisters and the Department of the Environment inNorthern Ireland to using a UK government non-departmental public body. Those Administrations oughtto be allowed to make decisions on the arrangementsthat work best for them.

I reiterate to the noble Lord, Lord Taylor—I hopethat he will agree—that the Marine ManagementOrganisation will be extremely important and that ithas the powers to do the job that we have set out for it.

Lord Taylor of Holbeach: I am grateful to theMinister for that response and for the way in which headdressed the issues. One question that my amendmentraised but to which I did not speak was about thedevolved authorities in Northern Ireland and Wales. Ihave no wish to tangle with the noble Lord, Lord

Livsey, on that issue. As the Minister recognised, thepurpose of my amendment was to enhance the authorityof the MMO and to put it into the Bill in this area.

I suspect that this is likely to be a bit of a runningargument throughout the Bill. We know from the earlystages of our proceedings on the Bill that the Ministerwas keen to vest in the MMO the authority that hemanifested in the speech that he just gave. However,we are not entirely sure why there is a certain withdrawalat this point in the Bill. If it is the Government’sintention to vest the authority of the Secretary ofState and the planning authority for England in theMMO, why do they not say so in the Bill? Whatcircumstances could arise in which the MMO was notthe capable body? If the MMO performs badly as anexecutive function, that will need to be addressed bythe Government. The powers vested in the MMO willhave to be exercised in some way or another throughsome body or another, and that body needs to be theMMO, as the Government have clearly decided. I findit hard to understand why they draw back from puttingthat into the Bill at this stage. It would enhance theauthority that the Government are seeking to vest inthe MMO. From this Bench our view is that, if wewant adequate authority from that body, we shouldmake it clear that it has the full authority of legislation.

We may well return to the issue—I am sure that wewill find that it comes up at other points throughoutthe Bill—but I beg leave to withdraw the amendment.

Amendment 90 withdrawn.

Amendment 90ZA not moved.

Clause 53 agreed.

Clause 54 agreed.

6.15 pm

Clause 55: Directions to public bodies as regardsperformance of delegated functions

Amendment 90ZB not moved.

Clause 55 agreed.

Clause 56: Decisions affected by marine policydocuments

Amendments 90ZC and 90A not moved.

Amendment 91Moved by Baroness Hamwee

91: Clause 56, page 29, leave out lines 19 to 21

Baroness Hamwee: This amendment was tabled bymy noble friend Lord Greaves, who has attached thename of my noble friend Lord Tyler to it; I do notknow whether he was aware of that. The noble Baroness,Lady Young, has her name to it and to Amendment92, I am glad to see. Amendments 93 and 94 are also inthe group. The amendments are about a matter towhich we have alluded before—the relationship betweenthis legislation and the Planning Act 2008, particularlyapplications for development control for nationally


significant infrastructure projects to be determined bythe Infrastructure Planning Commission under theAct. The nub is to probe the relationship betweenapplications for development consent determined bythe IPC.

As the Bill stands, it seems to my noble friend thatthere is a lesser test relating to the marine policydocuments—the policy and the plan—when theapplication is to the Infrastructure Planning Commissionthan with an application for authorisation by theMarine Management Organisation. The IPC will besubject to a requirement to have regard to the appropriatemarine policy documents, but in other cases—wherewe are dealing with an authorisation or enforcementdecision by the Marine Management Organisation—thedecision must be in accordance with the appropriatemarine policy documents unless relevant considerationsindicate otherwise. Amendments 91 and 92 removethat exception.

Our other two amendments in the group are morespecific. Amendment 93 is about offshore energy andwould remove generation of more than 100 megawattsfrom the Infrastructure Planning Commission and putit into the marine regime. My noble friend describesthis as a bit of kite-flying; he might not thank me forrepeating that, of course. If there is to be a marineplanning regime, it should cover everything. We haddifficulty on the then Planning Bill in anticipating thislegislation but, now that we have this large and generallyadmirable Bill, we find that decisions of the InfrastructurePlanning Commission could ride roughshod over thenew marine regimes. We know that the Governmentwant to co-ordinate everything. Part of our task is tosee whether it is co-ordinated.

We accept the need for security of energy supply,but should it take precedence over other marineconsiderations and should it fall within this legislationand be dealt with in the way that this legislationcompares and balances the different matters that needto be taken into account? We find ourselves in theironic position where an application for a smallerdevelopment for generating less energy will be takeninto the balancing judgment of the Bill but, with asubstantial generation of more than 100 megawatts,you can somehow leave all that aside, at any rate so faras concerns this legislation.

Amendment 94 is about decisions taken by theInfrastructure Planning Commission. It states that themarine policy statement and marine plans are the policiesthat should be relevant, rather than national policystatements. I tabled amendments referring to the potentialconflict within the marine policy statement. This extendsto the national policy statement. Again, the Governmenttold us in effect not to worry because there will beproper co-ordination, but we are concerned aboutwhich should prevail if there is a conflict. I beg tomove.

Baroness Young of Old Scone: I rise to supportAmendments 91 and 92, to which I have put my name.The noble Baroness, Lady Hamwee, said it all: this isthe perennial argument that we had in debating thePlanning Bill, and will have here, about the relationshipbetween national infrastructure decisions and the marinepolicy statement and marine plans, and how much

influence the marine policy statement and marineplans should have on IPC decisions. My view is thatwhere a marine policy statement exists, all marineprojects should be made in accordance with it—otherwisewhat is the point of having it?—and in accordancewith the associated marine plans. The clauses thatexempt decisions on nationally significant infrastructureprojects at sea were late entries into the field and are adetrimental step, because the IPC is required only tohave regard to the marine policy statement and marineplans, rather than take decisions in line with them.Now that we have a Marine and Coastal Access Bill,marine projects should be considered within theframework that the marine planning process provides.

Earl Cathcart: We have already spent some timedwelling on the relationship between the MMO andthe IPC. It is clear that the issue of the relationshipbetween land and sea, development and conservation,planning and protection, and who should be in chargeof each of these sectors, is one of the major themes ofthe Bill. I declare my full support for all that has beensaid by the noble Baronesses, Lady Hamwee and LadyYoung.

We are to some extent going over old ground.During our second day in Committee, I said:

“There is no mention of this relationship”—

between the IPC and the MMO—“in the Planning Act, so these two pieces of legislation travel inparallel, yet never seem to join up”.—[Official Report, 21/1/09;col. 1709.]

As I have mentioned previously, in Committee on thePlanning Bill my noble friend Lord Taylor said that hewas unhappy about the fact that the IPC was consideredabove the MMO when it came to offshore developments,or those greater than 100 megawatts. We are stillconcerned. It is important to join up these two disparateand inextricably linked pieces of legislation and tomake sure that marine plans are given the authoritythat they deserve. We on these Benches want to achieveconsistency, clarity and effective marine managementwith the Bill. Therefore we agree that the IPC shouldhave to make decisions in accordance with,“the appropriate marine policy documents”.

We are also concerned that the relationship betweenthe MMO and the IPC should be properly scrutinisedand appropriately defined in the Bill. We have introducedour two amendments to the Planning Act 2008 withthe intention of delineating this relationship, not onlyto make it clearer but also to ensure that it suitablyreflects concerns about the marine area and the authorityof the MMO.

Amendment 95 ensures that there is a duty toconsult the MMO when making applications fordevelopment relating to coastal and offshore areas. Italso ensures that the IPC must give notice inviting alocal impact report to the MMO, even if only part ofthe application is considered coastal or offshore.

Our second amendment makes sure that the nationalpolicy statement created by the IPC can cover marineareas, but only if it is subject to approval by theMMO. In addition, when the Secretary of State isdeveloping the NPS, he must have regard both tomarine policy statements and marine plans.


[EARL CATHCART]These amendments are crucial to the working of

the Bill. If the MMO is to be a functional and effectivebody, it cannot be subject to, and subservient to, theIPC and NPS. This is a difficult area, because thecomplexities of the relationship between land and sea,and the various developments, mean that it is notpossible simply to divide one from the other. We needto employ subtleties to make sure that the MMO doesnot become just another quango that has to obeythe IPC.

Our amendments provide a solution to this thornyproblem by integrating the Planning Act with themarine Bill in a way that ensures that neither the IPCnor the MMO is rendered ineffectual. Instead, theyare encouraged to work together to make sure thatboth land and sea can be part of a broader plan ofsustainable development.

There is also the issue of who says no when thecumulative effect of human activities at sea is tooharmful to the marine environment. This ability andneed to say no is required by an EU directive. Who willsay no? It presumably will not be the Secretary ofState for the Department of Energy and ClimateChange, or indeed the Secretary of State in charge ofthe IPC. We believe that it should be the MMO. I willbe interested to hear the Minister’s answer to this. Ifthe final say lies not with the MMO but with theSecretary of State for Defra, will it be made on theadvice of the MMO? During the passage of the PlanningBill, the noble Lord, Lord Hunt, said that the relationshipbetween the IPC and the MMO would be made plainduring the course of this Bill. Perhaps the moment hasnow come and I look forward to his clarification.

6.30 pmLord Livsey of Talgarth: Some of the most important

amendments to the Bill are contained in this group. Iagree with the noble Earl, Lord Cathcart, that we havecome to the crunch point—in a different sense fromthe economic crunch. The relationship between theMMO and the IPC is absolutely crucial. Had we hadthe marine Bill before the Planning Bill, I believe thatmost of the contents of these amendments would havebeen contained within that marine Bill and that thePlanning Act would be a somewhat different Act ofParliament from what it is.

The wording of these amendments is very apposite.I can see that the will to drive through the targets forrenewable energy impact on both the Planning Actand this Bill. We have not got the balance right betweenconservation and the production of renewable energy.I believe that the Planning Act could have taken careof part of this without forgoing the importance ofconservation. If the MMO were the lead body, which Ibelieve it most definitely should be, there is nothingwrong in it having due regard to the importance ofclimate change. This is a very important debate and Ihope that the Minister will respond sympathetically tothe point, which I am sure will be made by othersshortly.

Lord Hunt of Kings Heath: Apparently not. I agreewith the noble Lord about the importance of thisgroup of amendments, although I disagree fundamentally

with all the comments made by noble Lords on it. Wedebated these issues on the Planning Bill, and we didso in anticipation of the marine Bill. It is somewhatpuzzling that 12, 13, 14 weeks after the House hasdisposed of an issue we are called on to amend thatlegislation. Of course, it is entirely within the provenanceof the House to do so—I do not argue with that—butat the very least it is puzzling that Members shouldseek so soon to change absolutely critical provisions inthe Planning Bill.

Baroness Young of Old Scone: I am puzzled by theMinister’s reply, bearing in mind the Government’sresponse to the pre-legislative scrutiny and publicconsultation. A paragraph on the relationship betweenthe marine policy statements and the national policystatements talks about a government commitment toensuring consistency between MPSs and NPSs andensuring that the MMO and the IPC can work effectively.It said:“because the Planning Bill has not yet completed its transitionthrough Parliament, we will need to keep these issues underreview”.

The Planning Bill has now completed its progressthrough Parliament and those issues were unresolvedduring that progress. I suggest that the Governmentnow need to continue to keep those issues underreview and consider seriously our amendments.

Lord Hunt of Kings Heath: That is an ingeniousintervention, but as the Minister responsible for debatingthese points at a late stage of the Planning Bill, I wasnot at all aware that these matters were unresolved. Ithought that there was great clarity about the thresholdin relation to offshore renewables, which essentially iswhat we are talking about, and the relationship andthe role of the IPC in relation to that.

Earl Cathcart: I do not buy that at all. It was notresolved in the Planning Bill. During proceedings onthe Planning Bill the Minister said that the MMOwould be able to say no to an application of the IPC.When we came to discuss it in this Bill, the Ministerslightly changed his attitude on how the MMO wouldbe able to say no to a planning application of the IPC.I agree with the noble Baroness: I do not believe thatthe issue was resolved under the Planning Bill, so wehave to bring it back now.

Lord Hunt of Kings Heath: Perhaps I may go onand then we can come back to the general point at theend. Clearly, it is an important one. I do not reallyagree with the noble Lord, Lord Livsey, when he saysthat we do not have the balance right between renewablesand conservation. I do not want to reopen our greatdebates on Clause 2 about contributing to sustainabledevelopment, but I believe that we have the balanceright. The intent of national policy statements is tobring together all relevant government policy, includingrelevant marine policy, and that is to be the primaryfactor for IPC decisions in the new, single consentregime. Of course, the national policy statement, whichwill cover the offshore renewables situation, will, likethe marine policy statement, be widely consulted onand scrutinised by Parliament. I also point out thatthe Planning Act provides that the national policy


statement will not be the only factor. The IPC will alsohave to have regard to other matters which may beprescribed in secondary legislation as well as any otherwhich the commission thinks are important and relevantto its decisions.

Clause 56 of this Bill amends Section 104(2) of thePlanning Act 2008 to add the marine policy statementand relevant marine plans to the list of matters towhich the infrastructure planning commission musthave regard. This is at the heart of my concern on thismatter. We have always been clear that we want acomprehensive and holistic marine policy statementand we are fully committed to ensuring that there isconsistency between the marine policy statement—

Lord Tyler: The Minister is claiming that there isbalance and equality and that there will be a levelplaying field, but he has not addressed the specificpoint made by my noble friend Lady Hamwee aboutthe difference between “having regard to” and “inaccordance with”. Clearly, the test for any applicationthat comes before the IPC is different from one thatwould have to come before the MMO. Therefore, thereis not equality; there is not a level playing field. At theheart of our concerns is the fact that there will be aneasier ride for an application to the IPC for developmentconsent, while a similar application to the MMO willhave to be dealt with in a different way. There will notbe equality of treatment.

Lord Hunt of Kings Heath: I just do not see it thatway. I was about to say that we are fully committed toensuring that there is consistency between the marinepolicy statements and the national policy statementsand that policies for the marine environment are includedin the national policy statements where that is relevant.The same administration will be concerned with producingmarine policy statements and national policy statements.There is absolutely no reason at all why there shouldbe any inconsistency between what is in the nationalpolicy statement and what is in the marine policystatement.

I turn to another point that is of concern to nobleLords. In a sense, there is a fear that somehow theMMO is being sidelined by the arrangements containedwithin the Planning Act. The IPC will license nationallysignificant projects, both on land and in the marinearea. However, let us be clear that we expect it tohandle around 45 applications each year, coveringenergy, transport and water and waste projects acrossboth the onshore and offshore regions, while the MMOwill be dealing with hundreds of other activities anddevelopments taking place each year at sea, the cumulativeimpact of which are extremely significant. The MMOwill also play a key role in advising the IPC on itsdecisions. We will take steps to ensure that the twobodies work well together.

The noble Baroness, Lady Hamwee, asked aboutthe threshold, which we also debated extensively duringthe passage of the Planning Bill. She will note that,being set at 100 megawatts, the threshold is in contrastto the 50 megawatts that applies on land, becauserenewable generating stations in the marine area arelarger than those on land. It seems sensible that thethreshold at which projects are treated differently, andbecome subject to the IPC regime, should be set

higher. For the near future, most wave and tidaldevelopments will be smaller than 100 megawatts.Those smaller projects are unlikely to be subject tomany of the challenges faced by their larger equivalents.So far, the Department of Energy and Climate Changeand its predecessor have licensed 23 offshore renewableenergy installations. If the MMO and IPC had beenoperational at the time, four wind farms and two waveand tidal installations—at a combined generating capacityof 356 megawatts—would have fallen to the MMO.

Amendments 95 and 99 would amend the PlanningAct in a slightly different way: first, by adding theMMO to those to be consulted before an applicantsubmits an application to the Infrastructure PlanningCommission and including it in the local impact reportprocedures set out in the Planning Act; secondly, bygiving the power to the MMO to decide whethernational policy statements should have effect in theUK marine area; and, lastly, by requiring the Secretaryof State to have regard to the MPS and any marineplans when preparing or amending national policystatements.

I know that in our debates on the Planning Bill itwas explained that certain persons who must be consultedon pre-application consultations will be prescribed insecondary legislation flowing from that Act. I amhappy to reiterate to the noble Earl, Lord Cathcart,my intent to include the Marine ManagementOrganisation within these regulations. That processhas already begun with the publication late last monthof the consultation on regulations under the PlanningAct to make the Marine and Fisheries Agency, andsubsequently the MMO, a consultee in relation tonational policy statements. The consultation on thesecond package of regulations, which will deal withthe pre-application consultation that is the subject ofAmendment 95, will be published fairly shortly—inthe spring, I am told, although I am not entirely surewhat a Defra or a DECC spring is. I can get somemore information about that. On that basis, I hopethat the noble Earl will agree that we do not need toamend the Planning Act to include this provision.

I know that the noble Earl also wished to includethe Marine Management Organisation in Section 60of the Planning Act 2008, which makes provisionregarding local impact reports. The amendments wouldrequire the IPC to give written notice to the MarineManagement Organisation that it has accepted anapplication for a nationally significant infrastructureproject that relates to coastal or offshore areas and toinvite the MMO to submit a local impact report onthat application. I ought to tell the Committee that wedebated this issue during the passage of the PlanningBill. The provision for the Infrastructure PlanningCommission to consider local impact reports is to givedue prominence to democratically elected local councillors,who represent the views of local people affected by theproposal. For that reason, the MMO should not betreated in the same way; it is clearly a different type oforganisation with a different remit.

6.45 pmThat does not mean to say that the MMO will not

be involved—far from it. We intend to prescribe theMMO as a statutory “interested party” under the


[LORD HUNT OF KINGS HEATH]examination process that we will consult on later thisyear. As I have said, the Infrastructure PlanningCommission will also draw on the Marine ManagementOrganisation’s expertise when assessing proposals fornationally significant infrastructure—for instance, whenit considers which conditions might be appropriate inorder to mitigate any negative impacts on the marineenvironment. Details of how the Infrastructure PlanningCommission will receive advice from the MarineManagement Organisation will be covered in guidanceunder the Planning Act and through a memorandumof understanding.

In addition, amendments made to the Planning Actby paragraph 3 of Schedule 8 to the Bill enable theInfrastructure Planning Commission to deem marinelicences to have been issued as part of developmentconsent under the Planning Act, if such a licencewould be required for that project. Those marinelicences will operate as if the Marine ManagementOrganisation had issued them. Importantly, the MMOwill then be responsible for monitoring and enforcingthem; it could also add conditions to deemed licencesas new information came to light.

The first proposal in Amendment 99 would preventa national policy statement from applying to the marinearea unless it had been approved by the MarineManagement Organisation. In relation to this amendment,the noble Earl, Lord Cathcart, asked who would sayno. Here, we come to an important point. I am stronglyresistant to this amendment, because we have to beclear that the national policy statements will stategovernment policy—setting out the national need forinfrastructure and providing a framework for decisionson nationally significant projects by the InfrastructurePlanning Commission—while the Marine ManagementOrganisation will be a delivery body and a non-departmental public body.

As we debated on the previous amendments, theMMO’s role and expertise in marine matters will, ofcourse, be hugely important. However, it will not setgovernment policy for the marine area. The developmentof that policy, including the marine policy statementand the adoption of marine plans, is the responsibilityof the policy authorities—the marine plan authorities—or,in other words, the Government, but not the MarineManagement Organisation. For that reason, I stronglyresist the idea that the MMO should be given thepower of veto over decisions of Ministers to apply anational policy statement to the marine environment.

The second proposal in Amendment 99 relates towhether the Secretary of State should have regard tothe marine policy statement and plans when developingnational policy statements. I am glad that the Billalready imposes such a duty: Clause 56(3) requiresthat public authorities, including government departmentsand Ministers, have regard to marine policy statementsand plans when taking any decisions that are,“capable of affecting … the UK marine area”.

That will include any decisions by Ministers to designateor amend a national policy statement that may applyto the marine area.

Finally, I return to the fascinating question fromthe noble Earl, Lord Cathcart: who, in government,will say no? In essence, preparing the national policy

statement and marine policy statement is a matter forthe Government as a whole. It will be a corporateexercise, which is why it will be essential to haveconsistency between those statements. This will notwork unless there is consistency. That is why I haveconfidence that the arrangements in the Bill and in thePlanning Act will work and be consistent with governmentpolicy on planning and our intent with regard to theenvironment. I know that noble Lords feel stronglyabout this matter, but so do I. We need to be verycautious before we move away from the carefularrangements in the Planning Act and the Bill.

Earl Cathcart: I would like some clarification onwho says no. I understand the Minister’s argument butwhat I do not understand—it may be me being naive—is,if the Department of Energy and Climate Change isdoing oil and gas installations at sea, the IPC is doingthe over-100 megawatt installations and the MMO isgranting other licences, who is saying, “Hang on aminute. There’s too much activity in that part of thesea. Stop! The cumulative effect is too much”? TheSecretaries of State in those three areas will not besaying that, but there is an EU directive that requiresus to have this sort of break in place. That can only bethe MMO, which would be looking at the overalleffect of all these planning decisions at sea and would,therefore, presumably have to advise the Secretary ofState at Defra that there is too much in an area, whichis damaging the environment because the cumulativeeffect is too much. There must be a role for thescientists within the MMO to say that we must stop.

Lord Hunt of Kings Heath: That is a fair question.We have already agreed that the MMO will have accessto expert advice, whether on its own books or through—but I do not want to go back to the debate that we hadfor what seemed an eternity. The MMO will have anextraordinary amount of expertise available to it andwill be in a position to give advice to my department,Defra, and to other government departments. Sincethe MMO will be the licensing authority for the greatmajority of licensing divisions, acting within the marineplan and the marine policy statement, it will have ahugely influential role.

The noble Earl asked what would happen if, in afew years’ time, a view is taken that activity in part ofthe marine area is doing damage. One would be extremelyconcerned, because Part 4, which we will come toshortly, lays down explicit circumstances in which theMarine Management Organisation will operate and inwhich licences will be granted. For example, Clause 66—“Determination of applications”—states that,“the appropriate licensing authority must have regard to … theneed to protect the environment … the need to protect humanhealth … the need to prevent interference with legitimate uses ofthe sea”.So one would be concerned if, notwithstanding theconstraints and protections in the legislation, thecumulative impact of licensing decisions, most of whichwould have been made by the MMO, was causing theconcern that the noble Earl suggests. In thosecircumstances, I would have thought that the MMOwould advise relevant government departments.

I have already said that, in relation to the work ofthe IPC, the MMO will make advice available. There


should be no doubt about that. If what had occurredsuggested that the NPS and the marine policy statementneeded adjustment, there are provisions in the PlanningAct and the Bill for them to be made. I have no doubtthat the advice of the MMO would be readily availableto those organisations. However, that point does notdetract from the overall architecture that we have putin place, which states that it is much better for onebody to make consents that are deemed to be ofnational significance than for people to be confusedabout who should make them and for us to go back topre-Planning Act problems in relation to planning.

Baroness Byford: This was one of the issues thatexercised the pre-legislative scrutiny committee. Therewas concern that these matters were not being dealtwith in the same way. I have no more to add, except tosay that it is crucial that this is got right. Although thesmaller installations that might seek approval from theMMO would be greater in number, the bigger installationscould clearly have greater impact on the marineenvironment. The committee considered this in greatdepth and my noble friend has a valid point. Thedifficulty is that the MMO has certain responsibilities,yet the Secretary of State or Minister in whicheverdevolved Administration will have the overallresponsibility. Those things do not sit very happilytogether. There was considerable discussion in thecommittee and unease that the two are being dealtwith differently. I did not have the advantage of sittingon the planning committee, so I cannot comment onwhat went on in it. However, the Minister should notbe unaware of the degree of concern on this issue.

Lord Hunt of Kings Heath: I am aware of the degreeof concern because we have debated it on a number ofoccasions. If one were to cut the cards in a differentway, there would still be inconsistencies, because if wewere to accept the thrust of the amendments, wewould be taking the marine area out of the planningregime that we have just enacted. There are a numberof ways in which one can approach this, but we getconsistency through the national policy statement andthe marine policy statement being entirely consistent.We think that the best way to get consistency is by theMMO being in a strong position to give advice to theIPC about the decisions that it is called on to make.

Baroness Young of Old Scone: There is a differencein relation to getting consistency between the marinepolicy statement and the national policy statement.My perception of the two statements is that they canprobably coexist at quite a high level of generality; thenub of the question comes when you start to makeindividual planning decisions. It is quite conceivablethat you could have two policy statements that seemedcompatible whereas at the same time there was arequirement, as the result of an individual planningapplication, to decide whether the economic significance,climate-change significance, or whatever other significanceof an offshore energy proposition, for example—andoffshore energy is not the only issue, there are manyother issues to do with marine resources in general—wasmore important than the impact on the marineenvironment which the MMO and the marine policystatement are aimed at protecting.

A distinction need to be made between the measureswhich the Minister has put forward to get compatibilitybetween these two policy statements and clarificationof who can call the shots in each individual application.You could do it either way. We could say that theInfrastructure Planning Commission should be thepower on land and at sea for the issues that it covers.Personally, having argued for the creation of marinepolicy and the MMO because successive planningdecisions and successive resource-extraction decisionsin the marine environment had over time depleted itsvalue, I think that we were at risk of dribbling awayone of our most precious resources as an island througha series of individual planning decisions. Giving theInfrastructure Planning Commission predominancein these decisions would continue to do that on apiecemeal basis. Unless we grip the issue and say thatthe marine policy statement and the decisions of theMMO at least have parity in terms of the importanceof the marine policy statement—and preferably theMMO is the boss in the marine setting—we are missingyet again the benefit that this Bill should be bringingto the marine environment.

7 pmLord Hunt of Kings Heath: There is little more I can

say on this matter. I understand what the noble Baronessis saying, but I hope that the MPS and the NPS are notgoing to be woolly and vague statements. I fully expectthem to be very clear statements, and I expect the IPCto come to a view that will be consistent with both.Equally, I would not ignore the benefit of the IPCcalling on the Marine Management Organisation’sexpertise when assessing proposals because I am surethat it will have an important contribution to make.Moving away from the clearly stated framework thatwe set in statute only four months ago would cause agreat deal of concern. Any uncertainty about whichbody was taking the decision would be the worst of allworlds and very confusing indeed.

Baroness Hamwee: There can be clarity but still theproblem to which the noble Baroness alluded, becausethe crunch is when an application is made. If therewere parallel approaches rather than slightly differentones, the IPC would have to take a decision in accordancewith, rather than having regard to, the marine policystatements, or the Marine Management Organisationwould have to have regard to the national policystatements, which is a lesser test than taking decisionsin accordance with them,“unless relevant considerations indicate otherwise”.That was a phrase that we debated on the last occasion.If I understand this correctly, it is not necessarily theMarine Management Organisation that will be takingthe decision. The noble Lord made much of the IPC—theInfrastructure Planning Commission, which was quiteoften referred to as the independent planning commissionin the debates on the Planning Act. It is intended to beindependent in its approach, though of course it willbe dealing with policy statements which come fromthe Government of the day or which a Governmenthave inherited from their predecessor. The noble Lordis quite right in that. But the public authority taking adecision under Clause 56 will not necessarily be of thesame political hue as the Government whose policies


[BARONESS HAMWEE]the Infrastructure Planning Commission is applying.If the public authority can be the Scottish Governmentor the Welsh Assembly, we are not necessarily talkingabout political allies joined at the hip.

Lord Hunt of Kings Heath: Surely it is right thatthese critical issues are decided by Ministers. If thereare changes in Administration, that is democracy.That does not mean to say that we should give it to aquango. Quangos should not decide these matters.

Baroness Hamwee: That is exactly my point. Insaying that, the Minister strengthens my argument onthe first two of these amendments. I wrote down “R”for Report fairly early on in this exchange, and I amsure we will come back to this issue, but for themoment I beg leave to withdraw Amendment 91.


Amendments 92 to 94ZZA not moved.

Clause 56 agreed.

Clause 57: The appropriate marine policy documents

Amendments 94ZA and 94ZBMoved by Lord Hunt of Kings Heath

94ZA: Clause 57, page 29, line 45, leave out “in force” andinsert “which is in effect”

94ZB: Clause 57, page 30, line 18, leave out “and has notwithdrawn from it”

Amendments 94ZA and 94ZB agreed.

Amendment 94A not moved.

Clause 57, as amended, agreed.

Clause 58: Monitoring of, and periodical reporting on,implementation

Amendment 94B not moved.

Clause 58 agreed.

Amendment 95 not moved.

Clause 59: Validity of marine policy statements andmarine plans

Amendment 96Moved by Lord Greenway

96: Clause 59, page 32, line 33, at end insert—

“( ) that the provisions are not in accordance with anyinternational agreement to which the United Kingdomor the European Union is for the time being a party.”

Lord Greenway: I will also speak to Amendments97 and 98. Clause 59 deals with the validity ofmarine policy statements and marine plans. Undersubsection (4),

“A person aggrieved by a relevant document may make anapplication to the appropriate court on any of the followinggrounds—

(a) that the document is not within the appropriate powers;(b) that a procedural requirement has not been complied

with”.

My Amendment 96 seeks to add another ground:“that the provisions are not in accordance with any internationalagreement to which the United Kingdom or the European Unionis for the time being a party”.

The reason for this is that the provisions in a marinepolicy statement or marine plan should not be inconflict with the UK’s treaty law obligations under theUN Convention on the Law of the Sea, covering, forexample, rights of innocent passage and freedom ofnavigation, or other conventions, such as MARPOL,dealing with marine pollution. Issues of conflict arematters of substance and should give rise to anautomatic right of referral to, and determination by,the courts. This amendment would provide such acourse of action.

Amendment 97 refers to subsection (5), which says:“Any such application must be made not later than 6 weeks afterthe publication of the relevant document”.

My amendment seeks to lengthen that period to nolater than 12 weeks, as the issues for a referral to acourt are likely to be complex, especially where mattersof international treaty law need to be considered. Aperiod of six weeks would be insufficient; 12 weeks ismuch more realistic.

Amendment 98 seeks to add a small new subsectionto Clause 60, which deals with the powers of a courtover an application under Section 59. My amendmentwould insert a new paragraph (c) into subsection (3),using the same wording as my Amendment 96, whichwould require a court to use its powers under subsection(4) to quash or remit a proposal when satisfied thatthere has been a breach of treaty law obligations. I begto move.

Earl Cathcart: The noble Lord, Lord Greenway,has tabled interesting amendments, which we support.It is important that it is made absolutely clear that it isan offence if international agreements are not compliedwith, and that this should mean referral to the courts.Will the Minister tell us whether this is the case?

We have already spoken in our debate on Amendment73 about the importance of guidance on theimplementation of, or compliance with, obligations ofthe UK under EU treaties and international agreements.We agreed, I think, that it was crucial both for the UKto abide by new and old agreements and for othercountries to do the same with regard to us. We cannotoperate in a vacuum, and the success of the Bill willdepend in large part on how well international agreementsare adhered to both by us and by them. I thereforeagree with the noble Lord, Lord Greenway, that it is ofthe utmost importance that we clarify whether non-compliance with international obligations means referralto the courts. Will the Minister clarify the position?Does he agree that it would be helpful to put this intothe Bill?

On Amendment 97, six weeks is too short. A personwho is aggrieved by a relevant document must have


time to acquire the document, to process it and towrite up an application. When dealing with the complexissues to which the noble Lord referred and which theBill is likely to raise, six weeks is a very short time. Ihope the Minister thinks that this issue deserves furtherthought.

Lord Davies of Oldham: I am grateful to bothnoble Lords who have spoken in this debate. Thenoble Lord, Lord Greenway, has presented the issueswith his usual clarity, and I recognise how importantthey are. The noble Earl, Lord Cathcart, has asked mea couple of quite specific questions, which I hope Iwill cover in my response to the amendments.

Amendments 96 and 98, which the noble Lord,Lord Greenway, has proposed, seek to create a newground on which legal challenges may be broughtagainst marine policy statements or plans; that is, ifthe MPS or the plans are not in accordance with EUor international obligations. I fully understand thenoble Lord’s concern that international shippingtreaty obligations might be breached. That is a prettyimportant matter. If the challenge were successful, thecourt would be able to quash the document or send itback to an earlier stage in the preparation process.

7.15 pmThe provisions in Clauses 59 and 60 enable anyone

who is aggrieved by an MPS or a plan to challenge it ifthe plan authority failed to comply with the processset out for the document’s preparation, including anyprocedural requirements contained in a directiondelegating the planning functions to another body, orif the plan authority or delegate acted outside theirlegal powers in preparing the document. This is thesame approach that is used in the Planning andCompulsory Purchase Act 2004. Those legal powersto prepare the MPS or the plan must be read inaccordance with any limitations imposed by the UK’sexisting European Union and international obligations.I assure the Committee, particularly the noble Earl,Lord Cathcart, who emphasised this point, that if themarine plan or the MPS is not in accordance with ourEU or international obligations, it has not been preparedwithin the appropriate powers and may therefore bechallenged in the courts. I will ask the noble Lord,Lord Greenway, to withdraw his amendment, becausein effect it reaffirms the legal position as it stands andis therefore not required.

Amendment 97 seeks to extend the time windowduring which legal challenges may be brought againstan adopted marine policy statement or plan from sixto 12 weeks. This very same issue was discussed in ourdebate on challenges to national policy statementsunder the Planning Act 2008, to which the noble Earl,Lord Cathcart, recently referred. The Committee willbe familiar with the points that I am about to make.Even if we left aside the Planning Act, which containsthis, this is not a new provision. A six-week period forcommencing proceedings applies at present to statutorychallenges to the development plan under the Townand Country Planning Act, which received Royal Assentin 1990, and the same approach was used again in thePlanning and Compulsory Purchase Act 2004.

The regime that we have set out in the Bill has beendesigned to provide a fair system that encouragesengagement and participation in the process of preparingmarine policy documents rather than a reliance onlegal challenge after those documents are adopted. Wewant to avoid the delays that are inevitably caused bysuch challenges, and the attendant uncertainty anddoubt that they cause in the minds of decision-makersand developers. We have prescribed processes for preparingmarine policy documents that are clear and open andare undertaken in full public view. The preparationprocess begins with the publication of a statement ofpublic participation, and sets out how the policy orplan authority intends to involve those who are interestedin, or affected by, the document. That statement willbe a living document, which is to be kept under reviewand updated throughout the process.

When the final marine policy statement or plan isadopted and published, it will make clear the date onwhich it comes into effect. We will ensure that wepublish it in ways that are considered to be the mostlikely to bring it to the attention of anyone who isinterested in or likely to be affected by it. We want toensure that anyone who wants to participate has theopportunity to do so. As I said in our debate on theprevious amendment, this is the time for concerns andissues to be raised: when the authority can do somethingabout them. By the time the documents are adoptedand published, any concerns should not be new issues.That is why it is reasonable to ask for challenges to bebrought within six weeks of the adoption and publicationof the document.

The Government are strongly of the view that thesix-week period is reasonable in the context of the wayin which the marine planning and policy statementsare developed. That is why we have tabled Amendment97ZA, which is grouped with these amendments. Wewant the six-week rule to be applied consistently acrossthe UK. This would therefore also include any challengewhich was brought before the Court of Session inScotland, which is a change in the Bill as currentlydrafted. This is a minor and technical amendmentwhich is necessitated by an earlier misunderstandingon our part that their judicial review process requiresthis. The Scottish Executive have since clarified thatthis is not the case and stated that they agree that thesix-week deadline for applications to challenge thevalidity of a marine policy statement and marine plandocuments should also apply in Scotland. They are atone with us on the six-week period.

In the light of this change and the explanations thatI have put forward, I hope the noble Lord, LordGreenway, will feel that we have taken into accountthe very important representation he has made andfeel able to withdraw the amendment. I also hope thatthe Committee will feel able in due course to supportthe government technical amendment.

Lord Greenway: I am grateful for the support of thenoble Earl, Lord Cathcart, and for the full responsefrom the Minister. I am gratified by the Minister’sassurance that what I seek to achieve in Amendments96 and 98 is already covered in law and that theamendments are therefore unnecessary. I am a little


[LORD GREENWAY]disappointed about the six weeks but I will not argueabout it at this stage. I beg leave to withdraw theamendment.


Amendments 96A and 97 not moved.

Amendment 97ZAMoved by Lord Hunt of Kings Heath

97ZA: Clause 59, page 32, leave out line 36

Amendment 97ZA agreed.

Amendments 97A to 97C not moved.


Clause 60: Powers of the court on an application undersection 59


Clause 60 agreed.

Clause 61 agreed.

Amendment 99 not moved


Clause 62: Requirement for licence

Amendment 100ZAMoved by Lord Hunt of Kings Heath

100ZA: Clause 62, page 34, line 33, at end insert “(exemptions)”

Lord Hunt of Kings Heath: The many governmentamendments in this group are of a technical nature,and Amendment 101 is in the name of the noble Lord,Lord Greenway. We have reached Part 4, a significantmilestone. This part essentially consolidates a numberof Acts into one and modernises marine licensing,bringing it up to modern standards of transparency,fairness and proportionality, as well as—importantly—reducing the number of processes that applications fordevelopments will have to go through.

Clause 63 lists the activities that will require amarine licence. The Bill also provides more effectiveenforcement of marine licensing legislation. In preparingthe Bill we have already made a number of responsesin relation to the pre-legislative scrutiny. In replying toa number of the responses we received to the consultationwe have tabled government amendments to amend thetest of the severity of harm or interference for theissue of remediation notices from “serious harm” or“serious interference”to simply “harm”or “interference”.We believe that harm caused by the commission of anoffence should not have to be serious before the personwho caused the harm should have to make amends.That is consistent with the “polluter pays” principle.

WehaveincludedClause70inresponsetorecommendation20 of the Joint Committee’s report which recommendsa clear mechanism for appealing licensing decisions ofthe appropriate licensing authority. We have agreedwith Delegated Powers Committee’s recommendationsand introduced government amendments, or added myname to opposition amendments, to change some ofthe procedures for orders made under this part of theBill from the negative procedure to the affirmative one.

Part 4 is technical and complex and this group ofamendments—as with group 20, which I hope we willdebate later—includes a number of governmentamendments. The amendments in group 20 relate tothe new enforcement tools being set up in this part.My minor and technical amendments were identifiedafter a careful run-through of the complex Part 4provisions to ensure that they work and are legallysound. I beg to move.

Lord Greenway: My Amendment 101 seeks to insertparagraph (c) into Clause 63(2), which deals withdescriptions of dredging and incineration. Amendment101 reads,“in items 11, 12 and 13 ‘incinerate’ and ‘incineration’ shall notinclude activities relating to the navigation, management or operationof a vessel”.

Shipboard incineration activities connected with therunning or onboard operations of a vessel are alreadyregulated under international agreement throughMARPOL, which lays down rules covering when, inwhich areas and under what conditions shipboardwaste may be incinerated. The amendment ensuresthat such operations are not brought within the scopeof licensable activities under the Bill. I hope that theMinister will confirm that that is so.

Lord Hunt of Kings Heath: I am grateful to thenoble Lord for tabling this amendment because itallows me to clarify this point in a way that I hope iscommendable to him. Let me be clear that it is not theGovernment’s intention to license those incinerationactivities that are part of the everyday running andoperation of a vessel. Current legislation exempts theincineration of victual or domestic waste originatingon vessels and we are not changing that. However, wedo not think that a carte blanche exemption in the Billis the way to do it.

Incineration is subject to a number of internationaland European rules. The London Protocol and OSPARgenerally prohibit incineration but have exceptions forthe normal operation of vessels. However, that is notthe full picture. Article 16 of MARPOL provides anumber of restrictions on the onboard incineration ofwaste and matter generated during the normal operationof a ship. Waste-management licensing regulationsalso provide additional conditions on the incinerationof waste on board vessels.

It is our intention to use the exemptions orderprovided by Clause 71 to exempt incineration activitiesthat are part of the everyday running and operation ofa vessel in a manner which is compatible with the myriadrules and legislation applied to it. That is the approachused in FEPA, and a quick look at the FEPA exemptionsorder will show that quite a complex clause would be


required to do this effectively in the Bill. Moreover,such an approach might be compatible with the currentinternational rules and obligations but fall foul of thislegislation in future if new rules come into force orexisting rules are amended.

We will cover exemptions in more detail when wecome to a later group of amendments. However, as afurther reassurance to the Committee, we will consultextensively with industry and other parties when puttingtogether the exemptions order to ensure that we captureall those activities with minimal or no impact in orderto get the sensible, fair and proportionate approach toregulation that we seek to achieve. I hope the nobleLord will be satisfied with the reassurance that weintend to deal as I suggested with the exemptionsorder provided in Clause 71. I therefore hope he willconsider not pressing his amendment.

Lord Greenway: I am most grateful for that clarification,which allays my concerns considerably.

Amendment 100ZA agreed.


Clause 63: Licensable marine activities

Amendment 100A

Moved by Lord Hunt of Kings Heath

100A: Clause 63, page 35, line 28, leave out paragraph (b) andinsert—

“(b) from the UK marine licensing area, unless the towingor propelling began outside that area.”

Amendment 100A agreed.



House resumed. Committee to begin again not before8.30 pm.

Criminal Defence Service (InformationRequests) Regulations 2009

Motion to Approve

7.30 pm

Moved By Lord Bach

That the draft Regulations laid before the Houseon 21 January be approved.

Relevant Document: 4th Report from the JointCommittee on Statutory Instruments.

The Parliamentary Under-Secretary of State, Ministryof Justice (Lord Bach): My Lords, a draft of thisstatutory instrument was laid before Parliament on12 January 2009 and was debated in the House ofCommons on 11 February. The draft Criminal Defence

Service (Information Requests) Regulations will supportthe application process for criminal legal aid in themagistrates’ courts so that information provided by adefendant about their financial status can be properlyverified. This follows implementation of Section 57 ofthe Criminal Justice and Immigration Act 2008 whichinserted paragraphs 6 to 8 into Schedule 3 to theAccess to Justice Act 1999. In practice, this means thatthe Legal Services Commission, as the authorityresponsible for granting publicly funded representationin criminal cases, may request specific informationfrom the Department for Work and Pensions or HerMajesty’s Revenue and Customs.

The Government have long considered that thosedefendants, in criminal cases, who can afford to payfor their defence in the magistrates’ courts, should beasked to do so. This was the principle that underpinnedthe Government’s decision to introduce means-testingin magistrates’ courts in October 2006. I should explainthat certain categories of applicant are automaticallypassported through the financial eligibility test. Theseare all defendants under 18 years of age and alldefendants in receipt of one of the four passportingbenefits, namely income support, income-based jobseeker’sallowance, the guarantee state pension credit and income-related employment and support allowance.

While the means-testing scheme is now workingwell in magistrates’ courts, we are continually lookingat ways of improving it—such as the new arrangementscovered by this statutory instrument. To date, therehas been a formal agreement between DWP and HerMajesty’s Court Service which allows HMCS to confirm,through an IT link that provides an immediate yes/noanswer, whether an applicant was in receipt of abenefit which rendered them eligible for legal aid.There has also been an informal agreement whichallows confirmation of other forms of benefit incomewith DWP and other forms of income with Her Majesty’sRevenue and Customs. The amendments to the Accessto Justice Act 1999, and this instrument, are puttingthese working practices on a much clearer statutoryfooting.

While such checks have been undertaken on thebasis of written consent provided by the applicant ontheir legal aid form, the Government believe that theseworking practices need to be established on a firmerbasis. The new arrangements will provide a moredetailed picture of the welfare benefits that the applicantmay be receiving, which will allow for a more accurateand speedy verification of their financial status. Thissupports initiatives such as Criminal Justice: Simple,Speedy, Summary which has successfully delivered amore effective and responsive justice system for victimsand the public.

It is not always the case that each and every applicationwill undergo verification. For example, there can becircumstances, such as when a defendant is remandedin custody, that applications may be accepted on thebasis of self-certification of income. In these cases, theLSC has, in agreement with the National Audit Office,adopted a system of proportionate post-event checksto ensure that any risk to public funds is kept withinan acceptable level.

73 74[23 FEBRUARY 2009]Marine and Coastal Access Bill [HL] Criminal Defence Service Regs 2009

[LORD BACH]One specific category of applicant where this would

prove of assistance is those individuals who declarezero income on their application form. Although theLSC would not be able to demonstrate conclusivelythat an applicant has no benefit, appropriate checkswith DWP would confirm whether a defendant isreceiving any benefits, while checks with HMRC wouldconfirm whether they have any legitimate income.This will prove invaluable in combating potential fraud.

The amendment to primary legislation, supportedby the new statutory instrument, will put thesearrangements on a much more formal footing andalso allow for the necessary robustness and scrutiny. Asecond related statutory instrument, the Criminal DefenceService (Information Requests) (Prescribed Benefits)Regulations 2009, was laid on 9 February. This detailsthe list of benefits to be considered when assessing anindividual’s benefit status.

While the amendments to Schedule 3 to the Accessto Justice Act 1999 table some of the informationwhich may be the subject of a request, such as name,address and national insurance number, regulationscan specify further information which may be sought.The statutory instrument before the House specifiesthat information may be requested about an individual’sincome, capital gains and benefits administered byHMRC. It also includes information about the applicant’sstatus as a company director or partner in a business.

Schedule 3 to the Access to Justice Act also allowsinformation to be requested about any benefits whichthe applicant is receiving from the DWP. The statutoryinstrument before the House also extends this to benefitsreceived over the two-year period which precedes thelegal aid application.

I stress that the new arrangements will not makeany substantial difference to defendants or solicitorsor courts in terms of forms or process. There is thereforeno risk of any delay to existing court proceedings orany additional burden on defendants or solicitors.Both this instrument and the other negative instrumentwere the subject of a 12-week-long consultation exerciselast autumn. We received three responses and all werebroadly supportive of the Government’s proposals.

Regarding data protection, nothing within the newlegislative framework dilutes the Government’s obligationto protect an individual’s personal information and tomaintain confidentiality. Indeed, the primary legislationexpressly forbids any disclosure of information whichcontravenes the Data Protection Act 1998. It alsospecifically makes it a criminal offence to disclose theinformation for any purpose other than that related tothe administration and operation of the means test.

Following the publication of Sir Gus O’Donnell’sdata handling report on 25 June 2008, I can furtherconfirm that officials in my department are undertakinga privacy impact assessment in relation to the data-sharingarrangements and their impact upon privacy. Thiswill be taken forward in liaison with the InformationCommissioner’s Office with the final document beingpublished on the Ministry of Justice website. Weare confident that the proposed arrangements forrequesting information set out in this instrument are

both necessary and proportionate, and that propermeasures are in place to afford sufficient protection toapplicants.

These new arrangements, supported by the newinstrument, support an effective criminal justice system.They will ensure greater accuracy in the informationprovided by defendants in magistrates’ courts as wellas delivering greater accountability for the taxpayer.This strikes a right and fair balance, and I commendthe instrument to the House.

7.37 pm

Lord Henley: My Lords, I thank the Minister forhis clear explanation of the regulations and of thosethat went through on other procedures. Ostensibly, theregulations are not controversial, but what is the needfor them? The Minister needs to give us furtherexplanation. The Government need to explain whythey need the power to allow yet more information tobe exchanged between government departments. As Iunderstand it, the Legal Services Commission, whichadministers legal aid applications, will ask the applicant,when they put in their application, whether they areprepared to allow the department or the Legal ServicesCommission to go to the DWP to find out whetherthey are in receipt of the appropriate benefits. Can theGovernment show whether there has been any abuseof this? The noble Lord explained—as did his honourablefriend in another place—that not every applicationundergoes verification. He then explained that, toavoid delays, verification sometimes took place afterthe occasion, in which case the individual was askedwhether they had been in receipt of benefits. Presumably,if the individual had initially given a dishonest answer,it might be that he was not prepared to give hisconsent; I do not know if that is the case. However,presumably if he felt that he was “clean”, to use thatexpression, he would have said, “Yes, go ahead andcheck”. I do not know whether the Government knowthat there is any abuse in this area.

The Government have also said that they want toreduce delays, and that that was one of the reasonswhy in the past they asked only a certain number ofpeople afterwards whether there had been abuse. Inthis new system, even with the checks being broughtin—the Minister has made it clear that they are notgoing to ask everyone because some people wouldautomatically be accepted as being in receipt of theappropriate benefits—there may be a danger of evenlonger delays because more people will have to beasked whether these applications were made. I wouldbe grateful if the noble Lord could address thosepoints.

I turn now to a point raised by my honourablefriend Mr Philip Davies in another place when hesought assurances from the Government about leaksoccurring when private information is exchanged betweentwo government departments. We were told firmlythat the Government are undertaking what was referredto as a “private impact assessment” of the data-sharingarrangements. What more can the Minister say aboutthe review into what has been going on, and has anydamage been caused to data protection? I welcome theMinister’s remarks on data protection in his opening

75 76[LORDS]Criminal Defence Service Regs 2009 Criminal Defence Service Regs 2009

speech; he certainly went further than his colleague inanother place. But we would all be grateful if he couldadd just a little more when he responds to the debate.

Having said that ostensibly the regulations are notcontroversial, I had better repeat that I still have somedoubts as to whether there is any particular need forthem because the system seems to be working tolerablywell at the moment. Again, however, I hope that theMinister will address that when he comes to respond.

Lord Thomas of Gresford: My Lords, in June 2007the Solicitor-General, Miss Vera Baird, addressed aninternational legal aid conference in Antwerp, shortlyafter the new scheme introduced by the CriminalDefence Service Act came into force. At the time shesaid that the rollout of this new financial meanstesting scheme in the magistrates’ courts would deliverannual savings of more than ¤50 million, which inthose days was around £30 million, but today is£50 million, due no doubt to the way this Governmenthave conducted their finances. I should be interestedto know whether her forecast of a ¤50 million savinghas been fulfilled. It may well have been, because in anarticle published in the Observer on 1 February, just afew weeks ago, the Legal Aid Practitioners Group saidthat it estimated that more than half of the 11,000lawyers’ offices willing to take on legal aid work lessthan a decade ago have either closed down or movedout of the field, leaving a shortage of help available forvulnerable people on modest incomes. Carol Storer, adirector of the group, said:

“We are hearing about firms struggling to keep legal aid workgoing; thousands have stopped their legal aid work altogether. It’sis a massive reduction. It is not just the money—although it isextremely hard to make a living out of this type of work now—butalso the bureaucracy involved. The paperwork is overwhelming,and that is a complaint we are hearing all the time. Some firms arejust gradually whittling down the numbers of legal aid casesthey’ll take on”.

I suppose that I had better declare an interest as apractitioner who does legal aid work in the criminalcourts, although not in the magistrates’ courts. I canconfirm from my own experience that firms are indeedcutting back on legal aid work because it is no longerprofitable.

The statutory instrument before noble Lords todayhas nothing to do with the actual quantum of legalaid. We understand that that has been fixed, and anyefforts to raise the ceiling are sternly resisted by theGovernment in whichever field they arise. This instrumentis about the sharing of information and is very much adata protection issue. What is the need for it? Whyshould one government department be able to go to awhole series of other government departments to findout information about an individual? Why is thisneeded? It is not going to cost any less to do that thanthe cost of the current system. In the debate on11 February to which the Minister referred in hisopening remarks, Mr Shahid Malik said that this newsystem will cost £140,000 or so more. It is a moreexpensive way of calculating the appropriate level atwhich legal aid will be granted.

Will time be saved and delays reduced by doingthis? No evidence has been produced to suggest thatthat is the case. No estimate is made in the impact

statement, but perhaps the Minister would like to tellus whether any time will be saved, or will the magistrates’courts become even more clogged up with applicationsbecause they have to means-test and seek informationabout every single applicant—not, as is the case at themoment, on simply a selection of applicants whovoluntarily agree to have their affairs investigated. Isthere fraud in the current system? Nothing has beendemonstrated by the Government to show that legalaid applicants in criminal cases are fraudulent whenthey make their applications. How many cases havebeen brought against applicants for legal aid sinceOctober 2006 where it was alleged that they hadmisrepresented their means in one way or the other?

These regulations appear to be what the Governmentcall the “transformation” approach—that is the wordused in the impact assessment. It talks abouttransformational government, which enables onedepartment of government to know everything aboutan individual if he makes an application. We on theseBenches are opposed in principle to that approach. Itis wrong in principle that any department ofgovernment—we do not know at what level the assessmentwill be made—should be able to gain information justat the drop of a hat. The data sharing culture that isnow a part of transformational government is a threatto privacy. It is a threat to the whole concept of dataprotection. It implies that the Government’s goal is totreat citizens as one individual file with a coherentsingle relationship with a centralised state, and thatthe Government should have the right to share thatindividual’s data among all their organs. We on theseBenches are opposed to the principle behind thisstatutory instrument, which does precisely that. I shouldlike some assurances from the Minister that the protectionsof the Data Protection Act will be retained, that thenecessary consents to the particular information-sharingorder will be obtained, and that the whole processshould be within the purview of the informationcommissioner.

What appears on the face of it to be a prettyanodyne statutory instrument in effect breaches anumber of principles. First, it confirms how legal aidis now being denied to a considerable section of thepublic because of the means testing and the limitsplaced upon it. Secondly, it pursues the Government’stransformational processes by making information aboutthe individual available to every single departmentthat has anything to do with that individual.

We do not propose to vote against this statutoryinstrument tonight, and we cannot amend it. However,we remain opposed to it in principle.

Lord Bach: My Lords, I thank both noble Lords fortheir comments on this statutory instrument. I willfirst try to explain the need for the power to exchangemore information in this way. It allows for a moredetailed verification of an applicant’s financial status,which in itself can help to tackle fraud. We are talkingabout a defendant in a case who is seeking taxpayers’money—legal aid—which is a limited resource. Thenoble Lord, Lord Thomas, talks about it as though ithas not increased hugely in the course of the past25 years and the past 10 years. In England and Wales

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[LORD BACH]we spend about £2 billion per year on legal aid,£1.2 billion of which goes towards the criminal courtsand the balance towards both family and civil courts.Many of us think that that is a serious imbalance,particularly against civil legal aid and those at thebottom of the pile who need more help than they get.

The argument is that, in criminal cases, the amountof legal aid spent is very large indeed. It is true that thelegal aid budget is not going up at the moment, nor isit likely to in the foreseeable future. That would currentlybe the case under any Government that was in charge.However, it is a generous system compared to that ofany other country in the world. I want to be carefulabout comparisons, because not all systems of law arethe same as that which we conduct here.

The reason for this statutory instrument is that itallows for more detailed verification. There will be nodelay—less delay, if anything—as a consequence.Although the previous system did not work badly,there was a feeling among government departmentsthat it was better to put this system on a clearer andmore systematic basis, so it was decided to go this way.

To answer the noble Lord, Lord Thomas, on savingsmade by the means-testing scheme in the magistrate’scourts, its reintroduction has delivered in excess of£65 million in net savings between October 1 2006 andthe end of August 2008. This has enabled the Governmentto maintain their commitment to make some effort torebalance legal aid funding in favour of the civilscheme. I hope that that will find general support inthis House and elsewhere.

Lord Thomas of Gresford: My Lords, is the Ministersaying that that money has remained within the legalaid budget but is used for other purposes?

Lord Bach: Yes, my Lords, that is exactly what I amsaying. Indeed, the money that this new scheme hascost, referred to by the noble Lord, comes not fromthe legal aid fund that the LSC is responsible for butfrom its own administrative fund. That is of course aseparate amount of money, which, in the final analysis,comes from the Exchequer. Those costs will obviouslygo to pay Her Majesty’s Court Service staff who dosome of this work on behalf of the LSC, and to theother two departments of state for their work.

Questions have been asked about data protection.We understand and respect that the House as a wholeis concerned about this. The noble Lord, Lord Henley,asked me about a privacy impact assessment, which Iwill describe a bit better. It is a process during whichthe potential privacy issues and risks of a proposal areidentified and examined from the perspectives of allthose involved—in other words, users and serviceproviders—and consideration given to how to avoidor minimise privacy concerns. These assessments shouldbe carried out on all policies that involve the processingof personal data.

Government departments are required to undertakeprivacy impact assessments because the data sharingreview, published in July last year, noted their benefits,stating:

“Privacy impact assessments are structured assessments of aproject’s potential impact on privacy, carried out at any earlystage. They enable organisations to anticipate and address thelikely impacts of new initiatives, foresee problems and negotiatesolutions”.

In addition, the data handling review mandated thatall departments will introduce privacy impact assessmentswhich ensure that privacy issues are factored intoplans from the start.

Of course, this is personal information given by onegovernment department to another for a purpose.However, we are satisfied that that information issecure, and is unable to get out into the hands of thosewho have absolutely no need to have it. I hope that,with those few words, I have to some extent comfortedboth noble Lords about these provisions.

Lord Thomas of Gresford: My Lords, will the Ministerrespond on the issue of fraud? Is there currently fraudin the system? How many cases have been brought?

Lord Bach: My Lords, I am afraid that I am not in aposition to say how many cases have been brought.The potential for fraud was undoubtedly somewhatgreater under the old system than the new. Of course,there will always be attempts at fraud in this field.However, I tell the noble Lord frankly that there hasnot been a huge amount of fraud that I could point tounder the old system, and I certainly do not anticipatemuch under this revised system. I have done my bestto answer the questions that have been asked.

Motion agreed.

7.58 pm

Sitting suspended.

Marine and Coastal Access Bill [HL]Committee (5th Day) (Continued)

8.30 pm

Clause 64: Applications

Amendment 101ZA

Moved by Lord Tyler

101ZA: Clause 64, page 36, line 36, leave out “or expedient”

Lord Tyler: It will surprise and delight the Committeeto hear that my noble friend Lord Greaves is notsufficiently indisposed to prevent him doing some veryimportant research on this issue, and so I am fullybriefed. He obviously has access to his copious libraryand to the internet, which is even more copious. However,there is a serious point here and I hope that, havinggiven the Minister due warning of this issue, his officialswill have found precedents for the use of this curiousphrase. If something is necessary, it surely is unnecessaryto add “or expedient”; either it is necessary or it is not.What is the point of adding “expedient” unless it isjust expediency?

79 80[LORDS]Criminal Defence Service Regs 2009 Marine and Coastal Access Bill [HL]

“Expedient” has two different meanings. One isfairly benign—in that circumstance perhaps there is acase for including it here—the other is loaded with adeprecatory meaning. I want to examine that brieflywith the benefit of my noble friend’s research. TheOxford English Dictionary defines “expedient” as,“conducive to advantage in general or to a definite purpose; fit,proper or suitable to the circumstances of the case”,

and,“in depreciative sense, ‘useful’ or ‘politic’ as opposed to ‘just’ or‘right’”.

I am sure that the Committee is in favour of thingsthat are just and right but is it also in favour of thingsthat are merely useful and politic? That is only onedefinition. The first definition in the Concise OxfordDictionary 1991 is,“advantageous, advisable on practical rather than moral grounds”.

At this time of night, I hope that we do not need toexplore whether we want to have something that willbe immoral; surely we are not in that business. Thesecond definition is, “suitable, appropriate”.

Collins Cobuild Essential English Dictionary 1998states:

“An expedient is an action or a plan that achieves a particularpurpose, but that may not be morally acceptable”.

The Committee is not full to the rafters with Members,but if it was I am sure they would not be terribly keenon something that was not morally acceptable. Mynoble friend discovered a further definition in Merriam-Webster’s Online Dictionary. It states:

“Expedient usually implies what is immediately advantageouswithout regard for ethics or consistent principles”.

I await with bated breath to hear what the Ministerwill say to justify something that has no regard forethics or consistent principles.

Finally, no Liberal or Liberal Democrat can go intothe business of definition without quoting John StuartMill. He said:

“The expedient, in the sense in which it is opposed to the right,generally means that which is expedient for the particular interestof the state itself”.

This is a very small amendment based on the conceptthat “necessary”is quite enough; nothing else is necessaryand it simply is not expedient. I speak also to AmendmentNo. 101ZB, which seeks to leave out “or expedient” atline 40 of page 36. I submit that “necessary” is quitesufficient, and that nothing else is expedient. I begto move.

Lord Hunt of Kings Heath: The noble Lord, LordGreaves, never ceases to amaze me. Even when ill he isstill assiduous in his activities and research. Howmuch we wish he were with us to expand on that mostimportant point. Before replying to the debate, I havejust been informed that there is an error in the list ofamendments. In the next group, we should be takingAmendment 101BZBC. Because of degrouping therehas been a slight error.

I shall try to set the noble Lord’s mind to rest on thematter. Clause 64(4) allows the licensing authority torequire the applicant to provide further informationor articles or to permit investigations, examinationsand tests that it considers,“necessary or expedient to enable it to determine the application”.

Subsection (5) allows the licensing authority to chargethe applicant a reasonable fee to carry out thoseinvestigations, examinations and tests.

I understand the point behind the amendment movedby the noble Lord, Lord Tyler. We want the licensingauthority to make its decisions as expediently as possiblebased on the best available information. Clearly,determining licences involves the exercise of judgment.The more information that the licensing authority hasabout any proposed development the better informedits decision can be. Making a determination is not justmaking a yes or no decision on whether to grant alicence. It is about attaching the right conditions thatwill best mitigate the adverse impact of any developmentor activity. Carrying out tests and investigations is anefficient way of allowing the licensing authority to useits judgment, which will be based on experience andexpertise of marine matters. It will gather informationthat it considers useful in making a well informed andreasonable decision.

An example of a common type of test conducted isone that requires an applicant to provide sedimentsamples for chemical or particle size analysis in orderto identify if it contains unacceptably high levels oforganic or inorganic contaminants and how or if thematerial can be predicted to disperse from a disposalsite. In some cases it will be obvious that informationis necessary before the licensing authority can beconfident of being able to make any sort of determination.An obvious example would be information pertainingto the location of the activity. However, in many casesit will not be so clear cut. Some tests and investigationswill be open to challenge on whether they were absolutelynecessary for a determination to be made, but whichwould undoubtedly contribute to a more effective andbetter determination. Also when a test has been carriedout that has confirmed that there is no adverseenvironmental risk, or even perhaps has failed toproduce any meaningful results, a case might be advancedthat the investigation was not shown to be necessary.

We are conscious not to overburden industry with arequirement to conduct test after test where the impactsof an activity are likely to be negligible. However, wethink this matter is more appropriately addressedoperationally as part of ensuring that licensing authoritiesmake effective and sensible decisions based on theparticular facts of the case in question. We do notwant to hamstring in any way the ability of the licensingauthority to be able to make the most effective decisionsthat it can. We feel that removing the word “expedient”from the legislation would do this. I was interested inthe tour de force dictionary definitions of “expedient”.Would it be helpful if I gave the Government’s view ofthe meaning of the word? It is the first definition givenby the noble Lord that it is,“conducive to advantage in general or to a definite purpose; fit,proper or suitable to the circumstances of the case”,

which I find entirely satisfactory and useful. The nobleLord then asked what precedents there were for usingthe word “expedient”. I am glad to say that we havefound two. One is from Section 112A(4) of the EnergyAct 2004:“if a notice under subsection (1) requires information in connectionwith a function of the Secretary of State under Section 107(1) or(4), the notice may require the provision of information or


[LORD HUNT OF KINGS HEATH]documents which the Secretary of State considers are necessaryor expedient for the purpose of exercising those functions”.

Section 43 of the Natural Environment and RuralCommunities Act 2006, under “Possession of pesticidesharmful to wildlife”, has two parts. The second partsays:

“The Secretary of State may not make an order undersubsection (1) unless he is satisfied that it is necessary or expedientto do so in the interests of protecting wild birds or wild animalsfrom harm”.

In essence, there is a precedent and it is sensible andproportionate to allow us to have “expedient” in theBill.

Lord Tyler: I do not know how the noble Lord,Lord Greaves, would respond to that, but I think thathe would express gratitude to the Minister for establishingthe precedents—this House likes its precedents. I stillthink that “expedient” in all other definitions, whichhave not been quoted by the Minister but which mynoble friend referred to, has a deprecatory sense; thatis even in the Oxford English Dictionary. “Necessary”,“desirable” or “appropriate” might be more suitablehere. The noble Lord is clearly trying to make thislegally watertight—to coin a phrase—so that it willnot be challenged. So be it; that is right. I suspect that“expedient” is just as likely to be challenged by someclever lawyer as the other words that we have referredto as possible alternatives. Nevertheless, this is, I amsure, not an issue on which we want to spend any moretime. I therefore beg leave to withdraw the amendment.

Amendment 101ZA withdrawn.

Amendment 101ZB not moved.

Clause 64 agreed.

8.45 pm

Clause 65: Notice of applications

Amendment 101ZCMoved by Baroness Hamwee

101ZC: Clause 65, page 37, line 10, at end insert—“(2A) Having received an application for a marine licence in

an inshore region, the appropriate licensing authority must notify—

(a) in the case of an application in England, the appropriatelocal authority or local authorities and the appropriateinshore fishing conservation authority,

(b) in the case of an application in Wales, the appropriatelocal authority or local authorities and any person orbody that the Welsh Ministers require to be notified.

(2B) In subsection (2A) “local authority” means—

(a) a county council in England,

(b) a district council in England,

(c) a London Borough,

(d) the Council of the Isles of Scilly and

(e) a Welsh county or district council.”

Baroness Hamwee: Amendment 101ZC is part of along group. I hope that I manage to pick up all theamendments; again, there are amendments tabled bymy noble friend Lord Greaves. Amendment 101ZC to

Clause 65, which is about publishing notification ofapplications, requires the MMO to notify the principallocal authorities and the inshore fisheries and conservationauthorities of applications for licences in their areas.Those who are familiar with my noble friend’samendments will not be surprised to see a provisionfor involving local authorities, and quite rightly so.

Councils, in my noble friend’s view and mine, shouldhave a statutory right to information about applicationsbeing made. The Bill at present says that the licensingauthority must publish notice of the application orrequire the applicant to do so,“in such manner as the authority thinks is best calculated to bringthe application to the attention of any persons likely to beinterested in it”.

No doubt local authorities and IFCs would fall withinthis on any common-sense point of view, but they areimportant statutory bodies and should not fall foul ofthe Government’s resistance to including statutoryconsultees and so on.

In these days of electronic communications, it isvery easy to send out e-mail lists—I am sure that nobleLords get far more notifications of all sorts of thingsby e-mail than they really want—and that would be auseful and easy thing to do. Indeed, local authoritiesoften send out lists of planning applications in thisway.

Amendment 101BZBC is a similar amendment torequire these bodies to be consulted on applications aspart of the process under Clause 66. It is about a rightof consultation, not just notification, so it is strongerthan the previous amendment, but the underlyingphilosophy—the importance of these bodies—is thesame.

Amendment 101BZBD is also about the consultationprocess. Clause 66(6) provides:

“A licensing authority may by regulations make further provisionas to the procedure to be followed in connection with”,

various things. The amendment would add “theconsultation process”. This really amounts to the licensingauthority publishing the system of consultation that itwill follow, because clearly those who learn of anapplication, by whatever means, need to know thatthey can make representations, how they can makerepresentations and so on.

Amendment 101BZZB is also an amendment toClause 66, which lists the things that the licensingauthority must have regard to—I think that the Ministerhas referred to this list already today—including theenvironment, human health, preventing interferencewith legitimate uses of the sea and,“such other matters as the authority thinks relevant”.

The amendment to delete those words is a probingamendment, and I invite the Government to give someexamples of what they think the authority might thinkrelevant in this context.

Clause 66(3) provides that the licensing authority,“must have regard to any representations which it receives fromany person having an interest in the outcome of the application”.

Those words after “person” would be deleted byAmendment 101BZAB. Again, the amendment is probing.What is meant by “an interest” in this context? Mostly,in documents that have a legal effect, “interest” is


understood to mean a financial interest, ownership, oran interest that might be affected by an application.However, does it mean having an interest in the senseof, “This is something that we are concerned about”?In other words, is it wider? If it is the latter, surely thepoint could be met by the deletion of the words. Isuspect that it is the former, though I hope that thelicensing authority will have regard to applicationswherever they come from.

We have many examples of applications fordevelopment where I would certainly say that thosewho have a concern about a projected developmenthave a right to be heard—I use that in the widestsense—as well as those who have a legal interest in thesubject matter. I suppose that the terrestrial examplein my mind is Heathrow Airport, although the Ministerwould counter this by saying that it should be a matterof policy. A lot of people have an interest in the landthat would be the subject of development at Heathrow,but many others have a concern about it.

I come to Amendment 101BZZA. When one becomesa Member of your Lordships’ House, one finds allsorts of strange customs. The lettering of amendmentsis among them. I could swear that it has changed sinceI joined this House, but maybe not.

Lord Hunt of Kings Heath: The problem is that farmore amendments are now put down, for some reason.

Baroness Hamwee: We become so involved in theBill as we read it that it is irresistible. But it is not that;I think that the order of the zeds and so on haschanged. I am getting support from behind me.

Amendment 101BZZA aims to strengthen the dutyto protect marine biodiversity when issuing a licence.There is a duty to have regard to the need to protectthe environment, but that is a broad term. Again, thisis an amendment that we tabled following an approachby the Wildlife and Countryside Link. We share itsconcern that a broad definition could result in everyproject trading off site-specific biodiversity againstsome more general, indeterminate global environmentalgain.

Amendments 101BZAC, 101BZBA, 101BZBB and101BZBD all deal with consultation on licences. Iapologise to your Lordships that I did not take theseat the same time as the other amendments to Clause 66.The first of these would impose a requirement for theauthority to consult all interested parties—and pleasedo not tease me about the use of the word “interested”.The authority would be required to seek and takeaccount of advice from the statutory conservationbodies and all who know about these things. Thedetail of mitigating impacts, of imposing conditionsand so on is so much within the expertise of a numberof organisations that the Government, I am sure,would want them to be consulted in the applicationprocedure.

The Government’s response to the Joint Committee’sreport focused on why a list of statutory consulteeswas not desirable, but we think that a simple requirementto consult without naming bodies or persons wouldmeet the point. As in the previous amendment, electroniccommunication could be a blessing, not just a curse.

There is also a proposal to change “may” to “must”—afamiliar amendment—and to strengthen the Bill byleaving out “from time to time”.

As for the other amendments in this group,Amendment 101BZAZA is consequential—or pre-sequential, if that is possible. The other one,Amendment 101BZZB, would take from Clause 66the words,“and such other matters as the authority thinks relevant”.

However, I have made a note to ask the Ministerwhether that in any way links to a provision in Clause 67that puzzled me, albeit too late to table an amendment.I am sorry not to have given notice of the question; hemay feel that he cannot deal with it this evening.Clause 67(8) allows the Secretary of State to certifythat it would be contrary to national security to holdan inquiry, or for the public or particular people to beadmitted to an inquiry. I thought that that was—letme use a neutral term—an interesting provision. Onthese Benches, we have an instinctive reaction againstholding an inquiry in private or excluding certainpeople from an inquiry. I find it particularly curiousthat an inquiry could be public but that certain peoplecould be kept out of it, unless of course they werecausing a disturbance and, after due warning or whatever,the chairman of the tribunal or whatever it might beordered them to be excluded. I do not know whetherthere is a link; I admit that this is a little tenuous, but Idid not want to let the Committee go by withoutraising the matter to see whether we could explore whyit is necessary.

I am grateful for your Lordships’ indulgence onthat long group of amendments.

Lord Taylor of Holbeach: We agree with the nobleBaroness that relevant authorities should naturally beinformed of applications for licences relevant to theirareas, and should be able to feed any views of thatapplication back to the licensing authority. I hope thatthe Minister will be able to reassure her that the Billallows for that, and that it is the Government’s intentionthat interested and expert representations will be giventhe attention that they deserve.

Again, I have some sympathy with the noble Baroness’sconcern that licences should be awarded only afterconsidering the effect on biodiversity, but I am lesssupportive of the amendment to remove the provisionallowing other matters to be considered. As our discussionson Clause 2 made clear, the list of matters that shouldbe considered relevant for a marine body to haveregard to when exercising functions is extensive, aswell as being a challenge to define. It would be moreappropriate to retain some flexibility in the area. Ourown amendment in the group—Amendment101BZBBA—makes it clear that appropriate publicauthorities, local authorities and IFCAs should beconsulted before any application is determined. I hopethat the Government will agree that that should bepart of the process.

Lord Hunt of Kings Heath: This is a long group ofamendments, and I congratulate the noble Baronesson a tour de force—on picking them all up andexplaining them as effectively as she did. I shall take


[LORD HUNT OF KINGS HEATH]them individually, perhaps in a slightly different orderfrom the one in which she and the noble Lord did.

I shall start with Amendments 101BZZA and101BZZB, which insert additional considerations thatthe licensing authority must take into account whendetermining the application for a marine licence.Amendment 101BZZA makes it explicit that the needto conserve biodiversity should be taken into account.Amendment 101BZZB does away with any considerationsnot listed. Already it is clear that a number of sometimescompeting interests would want to get a mention inthe clause.

9 pmBefore addressing specific amendments, it might be

helpful if I explain how licensing decisions will takeinto account sustainable development. As I have saidin earlier debates, the marine policy statement willarticulate our shared vision, and detailed policies andobjectives, for the sustainable development of themarine area. It will bring together all our marinepolicies, covering social, economic and environmentalconsiderations, to set a clear and consistent frameworkfor decision-makers. Marine licensing authorities willtake their decisions in accordance with policies set outin the marine planning statement and subsequent marineplans. In this way, marine licensing will give cleareffect to the policies set out in the MPS and the marineplans. Case by case, licensing authorities will obtainrelevant scientific input from expert bodies such asCEFAS, and information from other consultees, toallow evidence-based, holistic consideration of theoverall impacts and benefits of any particular activity,while having due regard to the need to protect theenvironment and human health, and prevent interferencewith other users of the sea. These might be describedas baseline considerations that have to be taken intoaccount.

Authorities will be able to add conditions to alicence that will help to mitigate any adverse impact ofa proposal. If an activity is to take place in a marineconservation zone, the licensing authority will havefurther regard to the impacts of the activity on theconservation objectives of that marine conservationzone. The general considerations that a licensing authoritycan take into account by virtue of Clause 66(1) aretherefore already broad.

Amendment 101BZZA would separate the need toconserve biodiversity from the need to protect theenvironment. Under the Food and EnvironmentProtection Act, the licensing authority must have regardto the marine environment and the living resourcesthat it supports. However, the distinction between themarine environment and living resources may no longerbe considered sound. International commitments onthe protection of the environment in general, and ofmarine biodiversity in particular, now emphasise theholistic nature of marine ecosystems. It is the health ofthe ecosystems in the sea that contributes in large partto determining whether the marine environment as awhole is healthy. The quality of the seawater, seabedand seashore are vital, but so too are the things livingin them, or affected by them.

We do not want to limit environmental considerationsto the marine environment alone. For example, it maybe necessary to consider the impact on the neighbouringterrestrial environment, to encourage coastal integration,and also to consider the need to protect the environmentfrom global damage. It may also be necessary for thedecision-maker to assess the relative significance ofthe effect of a proposed activity on the global andlocal environments.

Amendment 101BZZB would remove the licensingauthority’s ability to consider any factor not listed inthe Bill. We want the licensing authority to have thefreedom to make decisions based on the particulars ofany given case and on the evidence submitted to it.Given the sheer variety of activities that take place inthe marine environment, it is important that anythingof relevance to any single activity is considered. Indeed,it would be remiss not to do so. Examples of thingsthat might need considering are other people’s legalinterests in, or rights to, the land; international goodpractice guidelines on how certain activities should becarried out; broader social and economic factors; andgovernment policy as laid out in the relevant marineplan. This provision does not detract from the importanceof the need to protect the environment and humanhealth, or to prevent interference with other legitimateusers of the sea. However, it does help the licensingauthority to make holistic, sustainable decisions.

The noble Lord, Lord Taylor, spoke to Amendment101BZBBA. This would introduce a requirement onthe licensing authority to consult the relevant IFCAor public authority if the application could influence acoastal, estuarine or nearshore zone. Amendments101BZBA and 101BZBC would require the licensingauthority to consult local authorities in England andWales.

We covered the so-called question of statutoryconsultees in an earlier debate and I do not want to goover old ground but, for a number of reasons, we areworried about having a list. First, there is the risk ofthe perception of two levels of consultees, with thoselisted in the legislation being seen as more importantthan those not listed. Secondly, there is the question ofwho should be a statutory consultee. Clearly, a diverserange of activities will require a marine licence. Consulteesappropriate to an offshore wind farm could be verydifferent from those for a small jetty at the bottom ofsomeone’s garden.

Although consulting the appropriate bodies is essentialto effective decision-making, forcing a licensing authorityto consult every statutory consultee, regardless ofwhether it thinks that the application has any impacton its functions, might increase the time and cost ofdetermining small applications which have minimalimpacts. There is also the issue of proportionate regulationin this regard.

A list is also inflexible, as we would need to amendprimary legislation to take account of any changes tothe bodies listed. A prime example is in Part 2 of theFood and Environment Protection Act, which, despitebeing concerned with the environmental impacts ofdeposits in the marine environment, requires consultationwith the Food Standards Agency. Another example ofthe inflexibility of using primary legislation is the


National Parks and Access to the Countryside Act 1949;we are having to use this Bill to update the list to makeit more appropriate for reports on long-distance routes.

Baroness Miller of Chilthorne Domer: I have beenmulling over whether to ask the Minister about onematter. He has tempted me by quoting the example ofa small jetty at the bottom of someone’s garden. Thatbrings us firmly back to the issue of that shared zonebetween high water and low water where, absolutelyrightly, local authorities already have a power. Surely,for that reason alone, even if the Minister does notwant a long list, they have a particular reason to beconsulted because they already have planning powersover that area.

Lord Hunt of Kings Heath: I knew I should mentionthat small jetty at the bottom of someone’s garden,but I now very much regret it. In those circumstances,of course I would expect a local authority to beconsulted, but there is a general problem with lists.Perhaps I can turn to the issue when I come to theamendment on local authorities. My general point issimply about lists in primary legislation. This is anarea where legislation is pretty rare, so you have to bewary about what you put in the Bill for fear of seeminginflexible.

Lord Taylor of Holbeach: The Minister was addressingthe amendments I have tabled. I should remind himthat the wording is,“consult any relevant public authority or IFCA”.It is not a list. It is a matter of considering what isrelevant to the application and whether it should beconsidered. It is specific. If IFCA ceased to exist, nodoubt there would be legislation for a replacementbody, which would replace its functions in previouslegislation. It is nothing more than putting into theBill what the Minister is saying—that licensing authoritieswould be consulted, because that is what they areabout. They want to get it right. There is no list; it isjust a matter of procedure. I am surprised the Ministeris taking such a hostile view.

Lord Hunt of Kings Heath: I hope that the nobleLord does not think me hostile to his intent. I fullyaccept that the amendments in this group are partlyprobing and partly seeking to improve the consultativeprocess, so I am sorry if I give the impression ofhostility. I am rather trying to explain why there mightneed to be a more flexible approach. However, as I gothrough this, I also hope to reassure the Committeethat there will ultimately be an effective process ofconsultation. This is not a fierce argument between us;it is about the general approach.

If I might explain how we see the licensing authoritydoing this, we might perhaps reach a conclusion onwhether it is the right approach. We envisage thelicensing authority producing guidance on who shouldbe consulted for which types of application. That issimply good practice, enabling staff to take a consistentyet flexible approach to consulting those persons mostlikely to have an interest or expertise in any particularapplication while seeking to minimise the burden onboth consultees and the developer.

The Marine and Fisheries Agency has a list ofthose bodies that it regularly consults, depending onthe expertise needed. I gather that the list includesbodies such as the Centre for Environment, Fisheriesand Aquaculture Science; the Crown Estate and Duchyof Cornwall; English Heritage; the Environment Agency;the Joint Nature Conservation Committee; local harbourauthorities and planning authorities; the Maritimeand Coastguard Agency; Natural England and theCountryside Council for Wales; the National Federationof Fishermen’s Organisations; the sea fisheriescommittees—the precursor to IFCAs—and TrinityHouse. Those are some of the bodies consulted atpresent under FEPA and the Coast Protection Act,without any specific legislative requirement to do so asthe amendments propose.

That list is relevant to Amendment 101ZC, whichwould require the licensing authority to notify therelevant local authorities of any applications that itreceives for activities or developments in the inshoreregion. Clause 65(1) places the licensing authorityunder a duty to publish notice of any marine application.That goes beyond the Food and Environment ProtectionAct 1985, which makes no such provision. Clause 65,as drafted, is designed to force the licensing authorityto bring an application to the attention of personswho, in its opinion, are likely to be affected by orinterested in it. It must be the case that local authoritieswould be included when the marine development islikely to affect the inshore region or the owners oftransport infrastructure. Additionally, Clause 66(3)requires the licensing authority to have due regard toany representations that it receives from any personhaving an interest in the outcome of the application.That, too, must include local authorities. On top ofthat, Clause 66(4)(b) gives the licensing authority thepower to consult any person or body that it sees ashaving an expertise in any matter arising from anapplication, which would clearly include local authoritiesif the development was in their jurisdiction.

We see these provisions, then, as allowing interestedparties to have their say on licensing applications,while requiring the licensing authority to take into fullconsideration any points made by local authorities, orany other body, interested in or impacted by proposeddevelopment or activity. I feel that we have set out thebroad principles and powers in the Bill to allow thelicensing authority to use its professional discretionabout whom to consult on a case-by-case basis, but inall the circumstances that I mentioned I have made itclear that local authorities will be consulted.

On Amendment 101BZBB, I need to clarify theeffect of Clause 66(4)(b), which makes it clear that thelicensing authority can take into account the views ofother bodies on particular cases. Clause 66(4)(a)makes it clear that it can also consult about its generalapproach to exercising its functions, but it necessarilycannot do that continuously or every time it undertakesa function—hence the inclusion of the words “fromtime to time”. It is a point of administrative process ingiving people affected by those functions an opportunityto comment on and inform them.


9.15 pm

Amendments 101BZAZA and 101BZAB would placea requirement on the licensing authority to have regardto representations that it receives from any persons,not just those who have an interest in the outcome ofthe application. Amendment 101BZAC would havetwo effects: first, it would place a requirement on thelicensing authority to take account of representationsfrom people with particular expertise in any matterassociated with the development; and, secondly, itwould force the licensing authority to publish detailsof how it dealt with any representations and anyreasons for not following expert advice. Amendment101BZBD would provide a power for the licensingauthority to set out in regulations more detail on theconsultation process for applications. Amendment101BZBE would make it clear that any such regulationscould include provision for notifying any persons whomake representations during an application as a resultof that application and for the advertising of eachlicensing determination more broadly.

On the specific question raised by the noble Baroness,Lady Hamwee, by “an interest” in the outcome of anapplication, we mean not simply a legal interest, suchas right, title or legal share in the outcome, but peoplewho are directly affected by it in some way. Thelicensing authority must have regard to representationsfrom such people. I respond positively to the nobleBaroness’s supplementary question. There is nothingto prevent the licensing authority from paying regardto representations from people without the kind ofinterest that I have just described, including those whomay have expertise in any particular area. It is hard toimagine, for instance, that the licensing body wouldnot have regard to a representation from an expertbody that it had directly consulted. However, we donot think that there is a need for express provision inthe Bill. In some cases, a large number of sometimesfrivolous representations may be made by those withoutan interest, and there is an issue about having a legalobligation to have regard to all of them, which couldbe bothersome and time-consuming. We are trying toget the right balance between proper consultationtaking regard of views and proportionate regulation.

The licensing provisions laid out in this part establishthe overarching framework and principles for the newlicensing regime. Under Clause 66, each licensing authoritywill produce secondary legislation that lays out all theapplications and decision-making processes in moredetail. These details are something on which we wantto work closely with all interested parties, includingNGOs and industry. We are planning to launch a firstearly consultation on this legislation in the next fewmonths, followed, subject to the passage of the Bill, bya further consultation on the draft statutory instruments.We want to work closely with all relevant organisationson that. Consultations are a key part of the applicationsprocess, all aspects of which will be worked up inregulations under Clause 66(6), so we do not see aneed to make specific reference to the consultationsprocess in subsection (6). We plan to include in theseregulations the issue that noble Lords have raised intheir amendments.

Amendment 101BZBE is about when and how thelicensing authority should publish details of how itdealt with any representations received, whether andwhen it should notify any person or bodies that maderepresentations in relation to any application of thedetermination and whether to advertise it more generally.This is something that is done under regulations suchas for local planning applications and is something towhich we will give careful consideration. It is ourintention that these issues should be addressed insecondary legislation and we want to work with interestedbodies in putting forward sensible and efficient solutions.

On the question the noble Baroness, Lady Hamwee,raised, Clause 66(1) is about allowing the licensingauthority access to all the facts needed to make aholistic, evidence-based decision, and Clause 67(8) isabout national security as a clearly necessary provision,although we would expect the licensing authority toneed to use that very rarely. I will write to the nobleBaroness with more details about the circumstances inwhich we think that might arise.

I have responded at some length but these areimportant matters. As a general comment, we believethat the Bill is sufficient, that the necessary provisionsare there and that they allow the process to be carriedout in a proportionate way. We are wary about thelisting which a number of amendments propose.

Lord Tyler: I listened with great care to the Ministerbut I do not feel he has dealt adequately with Amendment101BZBA, which is the famous may/must dilemma.He needs to look carefully at Clause 66(4) because,frankly, it does not make good sense at the moment. Itstates:

“A licensing authority may from time to time consult anyperson or body it thinks fit”.There are two qualifications already. It is a very weakstatement. If, as the Minister was saying earlier, it is soobvious that the licensing authority has to do this, whyput the subsection in there at all? It is so permissiveand obviously not mandatory that the licensing authoritywill, in these terms, ignore it. If it is going to becovered by secondary legislation, which the Ministerimplied in a more general sense about this group ofamendments, why is it here as well? There may be abetter case for making subsection (4)(b) permissive,but these qualifications in subsection (4)(a) offer alet-out for the licensing authority if the wording is leftas vague as that. I do not think that is satisfactory. Iacknowledge that the Minister’s response to many ofthe other points raised by my noble friend Lady Hamweeand others has been substantial, but on this amendmentit has not been sufficient. Since it has the support,unusually, of both opposition Front Benches, I hopehe will be able to give us a better answer or at leastundertake to look at this again.

Lord Hunt of Kings Heath: The noble Lord acceptsthat there is a distinction between subsections (4)(a)and (4)(b). Subsection (4)(b) clearly relates to a case-by-case issue and subsection (4)(a) is rather moreabout the general approach. I think that that is a fairdistinction. He says that because of the word “may”,the licensing authority will not use it. I beg to disagree.The discretion contained and implied by the word“may” as opposed to “must” is perfectly appropriate.


It is entirely right to expect the licensing authority,where appropriate, to undertake the consultation containedin subsections (4)(a) and (4)(b) and “may” fits thecircumstance.

Baroness Hamwee: I, too, was going to point outthat a power is not the same as a duty. I will notattempt to run through all the points. Like my noblefriend, I acknowledge that there is a good deal inmuch of what the Minister says and I understand thepoints he makes. Local authorities are a special case,however. We are labouring on the Local Democracy,Economic Development and Construction Bill elsewhereand some of us keep arguing that representativedemocracy is what local authorities do, and they shouldbe recognised as having a particular status becausethey have a particular role. As for the definition ofpersons who are interested, the Minister’s definitionseems to be somewhere in between the two examplesthat I used.

I am grateful to the Minister for his offer to write tome about Clause 67(8). Having noticed this very late inthe day, we may well want to come back to it, if only toget his answer to me on to the record. One understandsthat there are matters of security that may need a veryparticular approach, but they are so particular that itis right that they should be on the record. I thank himfor his very detailed response to all my amendments,and I beg leave to withdraw the amendment.

Amendment 101ZC withdrawn.

Clause 65 agreed.

Clause 66: Determination of applications

Amendment 101AMoved by Lord Taylor of Holbeach

101A: Clause 66, page 37, line 30, after second “the” insert“local and global”

Lord Taylor of Holbeach: We are still on thedetermination of applications. In moving Amendment101A, I shall also speak to Amendment 101B.

As your Lordships will no doubt recall, I tabledsimilar amendments when we discussed marine policystatements. Those amendments were not accepted,primarily on the ground that including a list—we areback to the list again—that does not encompass allpermutations of sustainable development risksoveremphasising some at the expense of others. Tohead off that criticism of these amendments at thestart, I emphasise that they are not intended to ensurethat renewable energy should be given preferentialtreatment when applying for licences, although I shouldadd that they derive from a briefing from the BritishWind Energy Association; they are intended merely toallow for a debate on the meaning of paragraph (a),under which licensing authorities must have regard toprotecting the environment.

As my amendment makes clear, “environment” canmean very different things to different people. Protectingthe local environment would no doubt result in carebeing taken to ensure that the pollution or degradationof the surrounding area is kept to a minimum, andperhaps that the recreational needs of people living inthe immediate coastal area are met. When we look at

the global environment, however, the results are verydifferent. A wind farm might have a negative impacton the local environment in a small way but haveenormous benefits for the global environment.

I hope the Minister will accept—these matters areclose to his heart—that it is right and proper that thisreference to the global environment and to climatechange should be explicit in the Bill. I beg to move.

9.30 pm

Lord Hunt of Kings Heath: It is very tempting to doso. I fully accept the reasons why the noble Lord, LordTaylor, has proposed the amendments.

Amendment 101A seeks to test the meaning andconcept of “environment”, and introduces the conceptof the local and the global environment. He gave thevery good example of the tension between the localenvironment and renewable development, which wouldcontribute to the global environment but might havean adverse impact on the local environment. This wasdealt with in the Explanatory Notes to Clause 66,which say:

“The reference to the ‘environment’ should be given its ordinarymeaning”.

My understanding is that that means that it shouldinclude both the local and the global environment, thenatural environment and, indeed, any site of historicor archaeological interest. The natural environmentincludes the physical, chemical and biological state ofthe sea, the seabed and the seashore, and the ecosystemswithin it or those that are directly affected by anactivity, whether within the marine licensing area orotherwise.

The problem with defining the term “environment”more explicitly is that you might narrow the definitionrather than broaden it. We want the definition to be asbroad as possible to encompass all the possible impactsthat a development can have on the environment. Weclearly want the licensing authority to have the freedomto make decisions based on the particulars of anygiven case and the evidence submitted to it. It shouldnot be restricted by a narrower definition of what itcan and cannot consider, which would in turn reduceits ability to make sustainable, holistic decisions.

Amendment 101B would give the licensing authorityexplicit duties to consider the impacts of developmentson mitigating climate change and the need to maintainsecurity of energy supplies. We consider that the licensingauthority can already consider the impacts of mitigatingclimate change as part of its consideration of globalenvironment factors. Climate change is possibly thegreatest challenge facing humankind and its importancecannot be overstated. However, healthy local marineenvironments and marine biodiversity play an importantrole in absorbing carbon and therefore reducing climatechange.

The tension described by the noble Lord will needto be taken into account in the decisions made by theregulatory body, which will be informed by the marinepolicy statement and marine plans in guiding thedetermination of licensing decisions. The marine policystatement will draw on all the national policy statementsaffecting the marine area. It is in this part of the processthat considerations such as security of energy supplies


[LORD HUNT OF KINGS HEATH]will be factored in. Licensing decisions will be made inaccordance with those plans. Clearly, there will be abalance between developing wind farms or other formsof offshore renewable energy developments, and in thoseareas such considerations will filter down to case-by-caselicensing decisions. In other areas, the emphasis mightbe different. However, I hope that the noble Lord willbe reassured that we think that the regard the licensingauthority will have to pay in Clause 66(1) to protectingthe environment encompasses the very points to whichhe wishes to draw our attention. On that basis, I hopethat he will feel able to withdraw his amendment.

Baroness Byford: I appreciate what the Minister issaying and I understand his logic. However, it continuesto worry me that in recent years we have passed aboutfour Acts. If we are not careful they will become justone compartment. I reinforce what my noble friendhas said. The impact of climate change is very real andis here, and I think we all agree that it needs to beaddressed. It is the same with the security of energysupplies. Although the Minister has indicated thatClause 66(1)(a) and the need to protect the environmentwould be taken into consideration, I hope that hemight give the matter further thought. It really worriesme that to members of the public there is the ClimateChange Act, the marine Bill and the Energy Act. I donot think that it would be amiss to include the twospecific suggestions made by my noble friend. In thelight of my contribution, I hope that the Minister willreconsider this matter.

Lord Hunt of Kings Heath: I am very grateful to thenoble Baroness for her helpful suggestions. The problemwith accepting the amendment is that it almost qualifieswhat is meant by the term “environment”. In seeking,as the noble Baroness rightfully does, to give greaterclarity to the matters that will fall to be consideredunder this legislation, the problem is that, by definingit in the way proposed in the amendment, the definitionis narrowed. We are facing that problem in a numberof parts of the Bill.

Responding on the more general principle, the nobleBaroness is right to say that with this Bill, the EnergyAct, the Planning Act and the Climate Change Act, itis a challenge to find one’s way through and to understandhow they fit coherently together. However, theGovernment have deliberately brought these pieces oflegislation through Parliament in close proximity. Wesee them as being consistent. I know that we have hada lively debate about the interrelationship between theNPS and the MPS and that that raises some difficultissues for noble Lords. None the less, the intent isclear—that these pieces of legislation act consistentlytogether, albeit that the decisions that will have to bemade will be tough at times and challenging. Therewill be tensions between the desirable aims of eachpiece of legislation.

Lord Taylor of Holbeach: I thank the noble Lordfor that response. I cannot agree that including “local”and “global” limits the definition of the environment.Indeed it makes it clear that the environment is notjust something that happens in your own backyard butis the interaction between everyone’s environmentsthroughout the world. It is a global issue. The issues of

climate change and security of energy supplies, whichhave very much exercised the Government—the Ministeramong them—are key. The Government have made astrategic error in not seeking to insert cross referencesand make them part and parcel of a single project totackle these great issues of our time. I am disappointedwith what the Minister has had to say. I beg leave totest the opinion of the Committee.

9.37 pm

Division on Amendment 101A

Contents 16; Not-Contents 42.

Amendment 101A disagreed.

Division No. 1

CONTENTS

Alton of Liverpool, L.Anelay of St Johns, B. [Teller]Bates, L.Byford, B.Cathcart, E. [Teller]Cope of Berkeley, L.Forsyth of Drumlean, L.Glenarthur, L.

Lindsay, E.Maginnis of Drumglass, L.Marlesford, L.Montrose, D.Northbrook, L.Selborne, E.Taylor of Holbeach, L.Wakeham, L.

NOT CONTENTS

Andrews, B.Archer of Sandwell, L.Bach, L.Bassam of Brighton, L.

[Teller]Bilston, L.Bradley, L.Brett, L.Carter of Coles, L.Craigavon, V.Davidson of Glen Clova, L.Davies of Oldham, L. [Teller]Dean of Thornton-le-Fylde,

B.Elder, L.Evans of Parkside, L.Farrington of Ribbleton, B.Foulkes of Cumnock, L.Gale, B.Gilbert, L.Grocott, L.Hamwee, B.Hilton of Eggardon, B.

Hughes of Woodside, L.Hunt of Kings Heath, L.Lea of Crondall, L.Lester of Herne Hill, L.McIntosh of Hudnall, B.Miller of Chilthorne Domer,

B.Morgan of Drefelin, B.Neuberger, B.Patel, L.Patel of Bradford, L.Pendry, L.Royall of Blaisdon, B.Sewel, L.Shutt of Greetland, L.Soley, L.Thornton, B.Tyler, L.Warwick of Undercliffe, B.West of Spithead, L.Whitty, L.Young of Old Scone, B.

Amendments 101B to 101BZZB not moved.

House resumed.

London Local Authorities and Transportfor London (No. 2) Bill [HL]

Committee

The Chairman of Committees reported that, in accordancewith Private Business Standing Order 92 (UnopposedBill to be treated as opposed), any unopposed clauses ofthe Bill should be considered by the Select Committeeappointed on 15 January 2009 to consider the Bill.

House adjourned at 9.48 pm.

95 96[LORDS]Marine and Coastal Access Bill [HL] London Local Authorities and TfL Bill

Grand CommitteeMonday, 23 February 2009.

Health Bill [HL]Committee (1st Day)

3.30 pmThe Deputy Chairman of Committees (Lord Colwyn):

Good afternoon. I start with the usual announcementthat, if there is a Division in the Chamber while we aresitting, the Committee will adjourn as soon as theDivision Bells are rung and resume after 10 minutes.

Clause 1: NHS Constitution

Amendment 1

Moved by The Parliamentary Under-Secretary of State,Department of Health (Lord Darzi of Denham)

1: Clause 1, page 1, line 8, leave out from “State” to “, or” andinsert “on 21 January 2009”

The Parliamentary Under-Secretary of State,Department of Health (Lord Darzi of Denham): I shallspeak also to Amendment 2. Before I turn to thoseamendments—I do not intend to delay the Committeefor too long—I want to welcome noble Lords to theCommittee and say how much I am looking forwardto our debates on the Bill’s further stages, in particularthat in Grand Committee. My first experience ofGrand Committee was during the passage of theHealth and Social Care Act 2008. All of us felt thatthat Act was improved by the important contributionsof noble Lords, although I very much hope that wewill keep our debates shorter than those we had onthat Bill. I look forward to a similar quality of debateon this Bill; that has already been demonstrated by theinformed contributions made at Second Reading.

I turn to government Amendments 1 and 2, whichare minor, technical amendments. They make it clearthat the constitution and handbook referred to in theBill are the versions published on 21 January. I ampleased that the NHS Constitution was published veryshortly after First Reading; that meant that nobleLords have had the opportunity well in advance ofSecond Reading to consider its contents. Noble Lordswill be aware that the Bill was published on 15 January,which was, of course, prior to the publication of theconstitution, and therefore the specific dated constitutionand handbook could not be referred to when the Billhad its First Reading. As we are asking the NHS tohave regard to the constitution, it is important that thelegislation is crystal clear about the document we arereferring to, which is why the Government have tabledthe amendments. I hope that noble Lords are contentwith these minor amendments. I beg to move.

Lord Naseby: I seek clarification on the subsequentdate. I believe that the Bill states that there will be areview every three years. Is the operational date forthose reviews three years from 21 January 2009?

Lord Darzi of Denham: My understanding is thatthat is correct.

Amendment 1 agreed.

Amendment 2 agreed.


Amendment 3

Moved by Earl Howe

3: After Clause 1, insert the following new Clause—“Core principles(1) The NHS Constitution shall, in particular, include and be

consistent with the core principles of the National Health Service(“NHS”).

(2) The principles are that—

(a) the NHS will provide a universal service for all based onclinical need, not ability to pay,

(b) the NHS will provide a comprehensive range of services,

(c) the NHS will shape its services around the needs andpreferences of individual patients, their families andtheir carers,

(d) the NHS will respond to different needs of differentpopulations,

(e) the NHS will work continuously to improve qualityservices and to minimise errors,

(f) the NHS will support and value its staff,

(g) public funds for healthcare will be devoted solely toNHS patients,

(h) the NHS will work together with others to ensure aseamless service for patients,

(i) the NHS will help keep people healthy and work toreduce health inequalities,

(j) the NHS will respect the confidentiality of individualpatients and provide open access to information aboutservices, treatment and performance.”

Earl Howe: I hope that the amendment’s purposewill be immediately understood by the Committee. Itis to suggest to the Government that the question ofhow much or how little of the NHS Constitutionshould be reflected in the Bill can be settled in a moresatisfactory way than that which the Government havechosen.

On looking at the available possibilities, there aretwo extremes at either end of the spectrum. One wouldbe to place the entire NHS Constitution in the Bill.The Government have rejected that option for theperfectly understandable reason that it would ossifythe constitution in primary legislation. The other extremeis not to include any of the constitution in the Bill.Ministers have opted for that course, ostensibly becausethey wish to leave scope for the constitution to berevised and amended from time to time without havingto refer to Parliament. The problem with that option isthat it will leave the law saying nothing about whatkind of declaration the NHS Constitution should be.We are in a situation where Parliament is given no sayin fashioning or shaping the constitution, even in themost general terms. That, to say the least, seems oddwhen the separate statement of NHS accountability,which the Government have published, makes it clear

GC 1 GC 2[23 FEBRUARY 2009]Health Bill [HL] Health Bill [HL]

[EARL HOWE]that at the national level the Department of Health isaccountable to Parliament. Where is the accountabilityhere?

The NHS Constitution, as we heard in the precedingamendment, was written, signed off and published inan exercise that was completely detached from theparliamentary process. Given that we are dealing witha document of such apparent significance for thehealth service and for patients, I am disappointed anduncomfortable with that approach. The other problemwith the resounding silence in this part of the Bill isthat it carries with it the implicit assumption that thereis nothing in the nature of an enduring or universallyagreed statement of values that will serve to underpinthe NHS Constitution over the long term. If there isliterally nothing that we want Parliament to say aboutthe values and core principles of the NHS, whatmessage does that send out about the reliance thatpeople should place on that document? It is as thoughthe Government are saying that not even the principleson which the NHS is founded can be set in stone, lestthey might in the future have to be changed.

Hence, I have tabled the amendment. Its purpose isto suggest that there might be a sensible halfway housebetween the two extremes I have referred to. What weshould try to do, indeed what we owe it to the countryto do, is to encapsulate in the Bill those core principleswithout which the NHS would not be the NHS thatwe want it to be, and without which any constitution,to put it bluntly, would not be worth the paper it iswritten on.

The set of principles I have included in the amendmentare those that were articulated and agreed nine yearsago in the NHS Plan. They are not my words, althoughI think that they are very good words. As in 2000 whenthe great and the good of medicine appended theirnames to the preface of the NHS Plan, they areprinciples with which no one will take serious issue.Interestingly, the amendment contains two principlesthat are not explicitly included in the NHS Constitution:first, that the NHS will support and value its staff,and, secondly, that public funds for healthcare will bedevoted solely to NHS patients. Why does not theconstitution expressly repeat these two core undertakingsfrom the NHS Plan? We see in the constitution sevenprinciples that,“guide the NHS in all that it does”.

The third principle refers to the NHS aspiring,“to the highest standards of excellence and professionalism”,

and staff are mentioned in that context. However,ensuring that staff achieve high standards is not thesame as saying that those staff will be supported andvalued. You have to turn to section 3a of the constitutionto find anything resembling the words “support” and“value”, and what you do find is expressed only in theform of a pledge and not a core principle. Why is that?

As regards public funds for healthcare, we see aslightly weaselly version of the principle in the NHSPlan. Instead of an undertaking that public funds willbe devoted solely to NHS patients, we see that publicfunds for healthcare will be,“devoted solely to the benefit of the people that the NHS serves”.

What is the significance of this change of wording?What other groups of people are embraced by thephrase,“the people that the NHS serves”?

It seems to me a potentially much wider cohort thansimply NHS patients.

Therefore, my questions to the Minister aretwofold. First, do the Government still subscribe tothe core principles of the NHS Plan, and, if so, whyhave these not been transposed into the NHSConstitution? Secondly, if we agree that the coreprinciples of the NHS Plan are good and enduring,will he agree to consider including them in this Bill asa means whereby Parliament can both endorse theconstitution and warrant to the public that the valuesunderpinning it are not ones that Governments ofwhatever political persuasion will tinker with? I begto move.

Baroness Cumberlege: Those noble Lords who tookpart in the Queen’s Speech on the health debate willremember that I am not a fan of this constitution.However, I am told that no one is more welcomedthrough the gates of heaven than a sinner who repents.In this context, I am still a bit of a sinner. I am notwholly repentant but studying the Second Readingdebate and certainly taking into account the viewsthat I have heard throughout the country, I recognisethat on the whole people are very much in favour ofthe constitution. Therefore, I have come round tothinking that it is something that we need but I thinkthat it should be made as good as possible.

In that context, I very much share the views of mynoble friend in that I think that the Bill is wantingwhen it comes to the constitution in that it omits thefundamentals and, in particular, the influence thatParliament can have on the future NHS. An organisationthat is principled is one that is trusted. Principledpeople have clarity of thought and a philosophy thatguides them. There is widespread agreement that, withregard to the law, stated principles give confidence toservice users and their families, they support andguide professionals, they assist in tribunals and giveconsistency in casework, and they inform the exerciseof discretion under the law. I think it is essential thatthose who have to interpret the law should have thisknowledge.

I do not know the Minister’s views but, judging bysome of our past experience, I am sure that he will bethoughtful. He will consider the matter very carefullyand, I hope, return to this House with his own amendment.However, I suspect that his briefing will say, probablyin mandarin-speak, “Beware. Don’t touch it. This is atrap”. If we go by past experience, the Governmentwill be shy of putting the principles into the Bill, butthat is in contrast to our fellow legislators in Scotland,who are rather braver. When we debated the MentalHealth Bill, which became the Mental Health Act 2007and revised the 1983 Act, the then Minister, the nobleLord, Lord Hunt of Kings Heath, was sympatheticbut he thought that it was not practically possible toadd principles to an existing Act. It might have beenpossible if the Act had been replaced in its entirety, hetold us. He argued that the Act already contained

GC 3 GC 4[LORDS]Health Bill [HL] Health Bill [HL]

implicit principles and that it would not make forclarity to add explicit ones. He undertook to explorethe issue but made no promises about the outcome.

3.45 pmThe subject was further debated on Report, when

the Minister again expressed his sympathy but alsodoubts about causing confusion if principles wereinserted into an Act that already contained principles.However, he agreed to introduce on Third Reading anamendment about principles, although this would relateto the code of practice and not the Act. This Bill is noton all fours with the Mental Health Act because it isnot a revision of a previous Act but is new in itsentirety. I am optimistic that the Minister will haveinherited the sympathy shown by his predecessor, thenoble Lord, Lord Hunt, and adopt the Government’sapproach to two previous Bills, the Children Act 1989and, more recently, the Mental Capacity Act 2005.Despite the principles being on the face of these twoActs, I am not aware that there have been any problems,litigation and the like. Perhaps the Minister will enlightenthe Committee if that is so.

As my noble friend has explained, our suggestedcore principles are taken from the 2000 NHS Plan.That plan is nearly 10 years old and those principlesstill stand firm. I suggest that they are rather betterthan those contained in the constitution, but which, ofcourse, are not on the face of the Bill as it stands at themoment. There are only seven principles in the constitutionas opposed to 10 in our amendment, the first of whichis split into two. The third principle in the constitutionis “aspiration”, as my noble friend has said, and,although I rejoice in the focus on professionalism—Iam delighted about that—using the interpretation inthe handbook of “aspiration”, it could be seen moreas a pledge than a principle.

In contrast, all our amendments and those principlestaken from the 2000 health plan contain the verb“will”. This means business and is executive. Theprinciple contained in subsection 2(b) of our proposedamendment concerning the provision of comprehensiveservices is omitted from the Government’s principles.Are the Government running away from offering acomprehensive range of services or are they—this isnot a rhetorical question; I should really like to know—inthis difficult financial climate, saying, “Sorry, but wecan no longer afford to offer a comprehensive range ofservices”? That would worry me, but I could understandit because it could be a legitimate strategy. However, ifit is, it should be overt and not shielded simply byomission. Perhaps the Minister will explain the positionto the Committee.

In our proposed new clause, subsection 2(e) states:“the NHS will work continuously to improve quality services andto minimise errors”.With a Minister who has breathed, led and neverceased to impress the NHS with his championing ofquality, and a CMO who is recognised the world overfor his commitment to safety, I am amazed by theomission of this principle. Perhaps the Minister willtell the Committee why it is not included. Other voidsin the constitution’s principles are the supporting andvaluing staff, devoting public funds to NHS patients,keeping people healthy and a respect for confidentiality.

We could have pages of principles but there is meritin brevity. The Ten Commandments have stood thetest of time and if we had only kept to them perhapswe would have a healthier society. We have set out10 principles in our amendment which I hope theCommittee will consider helpful as an importantsuggestion to improve the Bill and, much more important,to provide an anchor for patients, public, carers andstaff when they consider the fundamentals that surroundthe NHS. I support my noble friend.

Lord Walton of Detchant: I have the greatest respectfor the noble Earl who proposed the amendment andthe noble Baroness who spoke to it but I have toexpress some personal concerns about its content.When we debated the Bill at Second Reading it wasstressed, rightly so, that the NHS Constitution is not acode or a statute but a set of guidelines. It is clear thatthe Bill makes it apparent that people working in theNHS and those who are subject to its rules andregulations must take account of or take note of orpay regard to the provisions of the constitution. Withthat I wholly agree.

It is clear that the principles set out in the amendmentare admirable and totally unexceptionable. My concernis that if, as is the purpose of the amendment, thisgroup of principles were embodied in the Bill, it wouldbecome part of a statute. I foresee the danger that iffor any reason individuals of litigious intent felt thatthese principles were not being fulfilled it could giverise to litigation.

At Second Reading, I said how crucial it was thatissues which are best dealt with by common law arehandled by common law and not by prescriptive statutes.There are so many other principles that are a part ofthe National Health Service which are not includedhere and might be regarded as being of considerableimportance. Nothing is said in these principles aboutthe responsibility of the NHS for the education ofhealthcare professionals, nurses, other healthcareprofessionals, doctors and others, which is a crucialpart of the responsibilities of the NHS. There isnothing said about the principles relating to theadvancement of knowledge by research, which cannourish patient care and produce new developmentswhich are vital to the future of medicine and patientcare in general. Nothing is said about the crucialimportance of the NHS nurturing advances in a vastrange of medical technologies, which might equallyhave been included. Therefore, while its intention isvery worthy, to embody the amendment in the Billwould be dangerous for some of the reasons that Ihave mentioned.

Baroness Finlay of Llandaff: I have great sympathywith the principle of the amendment, because it statesthat the core principles of the NHS should be stated.We already have effectively four different NHS systemsin the UK: devolution has meant that what is done inWales, Scotland, Northern Ireland and England is attimes very different. The experience of patients on oneside or other of the border changes quite dramaticallyif they are referred across it. We have a unified taxationsystem, so the funding of the NHS is on a UK-wide


[BARONESS FINLAY OF LLANDAFF]basis. We do not fund the health service within adevolved Administration locally. In other words, wehave a truly national, UK-wide health service, yet theconstitution will apply to England. As it would berevised every three years, I am concerned that we maysee some drift, that it may move with time away fromthe core principles of the NHS and that we will findthat we have different systems in different places. It istherefore very important to define it.

I am concerned that “evidence base”does not featurein the words within the principles. I would like to seethe evidence basis for what is done within the NHSflagged up as a core principle, because research andthe accumulation of evidence should inform what isdone. When there is no evidence, things should beabandoned and change thought about.

Baroness Barker: When I saw the amendment, itsparked the following questions in my mind: whathappened in 1948? What were the core principles ofthe NHS that its founders believed should be statedand should endure? Was there a document in 1948?As far as I have been able to research it, there neverwas, which seems very strange when one considers themagnitude of the task which those brilliant men andwomen set for themselves; namely, to institute acomprehensive health service the like of which hadnever been seen. I have not been able to verify it, but Iunderstand that the reason was that WinstonChurchill decreed that, were there to be a set ofprinciples for the NHS, they would be so general as tobe meaningless.

That thought led me to ask whether, 60 years on, weneed some principles. I rather think we do. I am notsure that these principles are even those that the nobleEarl, Lord Howe, if starting from scratch, would havearrived at. However, we need some principles, because,60 years on and in the light of our experience and thepolicy and legislative developments over that period,there is now a body of evidence about what bringsabout change and progress within a national healthservice.

I have spoken in the past three or four monthsabout what I see as the looming issue for all of us, onwhichever side of the House we sit, which is the grimprospect for public services expenditure over the nextfew years. I do not wish to be partisan in any way, butthe question of public service expenditure will be topof the agenda for any Government of any hue.

In light of that and what we have learnt in the past60 years, it may be time for us to go back to establishwhat should be some founding principles of the NHSand be safe in the knowledge that any list of principlesnow exists within a context of the development of abody of policy, a context of clinical practice andexpectation and a context of patient expectation. Iperhaps take a slightly different view from that of thenoble Baroness, Lady Finlay of Llandaff. Within thedevolved system of the UK it is legitimate that weshould begin to have different national health serviceswhich meet the needs of different populations. Thatsaid, I should be interested to know what should bethe enduring principles that go across all fourAdministrations.

For the future, there is a very interesting task to bedone, which is to have a full consultation about whatthe enduring principles of the NHS might be. I said atSecond Reading that the question of how patient datawas used had been overlooked in the Bill. That hasbeen an ongoing problem, probably since 1948, whichhas never properly been resolved: how do we deal withthe conflicts between the need for individual patientconfidentiality and the need to generate populationdata in order to facilitate research? That is a bigquestion that, 60 years on, we could and should lookat in an open way.

I have a great deal of sympathy with what the nobleEarl, Lord Howe, is trying to do. I am sorry that I haveto direct my questions to him as the author of theamendment, rather than to the Government, but hehas hit upon an issue—perhaps in not quite the rightway—which is the gap at the heart of the NHS aboutwhat its principles should be in this day and age, andfor the future. The idea should be taken forward in aslightly different way.

Lord Rea: Even before the noble Earl, Lord Howe,moved his amendment in his usual eloquent and persuasivemanner—it was elegant, too, actually—I felt that theBill should say more about the basic principles of theconstitution. I am sure that my noble friend wouldagree with the noble Lord, Lord Walton, that all 10principles are absolutely acceptable and completelyworthy, and that they are in line with the kind of NHSthat Aneurin Bevan envisaged. That is not to say thatthey are the last word; we can amend them or add tothem before the Bill leaves this House, and the otherHouse can do the same, and the point made by mynoble friend Lord Walton could be catered for. Ifthese principles are in the Bill, that will not stop anyfuture amendments to the detail of the NHS Constitution,provided that they fall in with these excellent principles.

4 pm

Lord Warner: I apologise to the Committee for notbeing at Second Reading but I was out of the country.

I apologise to the noble Earl, Lord Howe, formissing the beginning of his remarks but I got thethrust of his arguments when I came in. He will not besurprised to hear that I am opposed to putting principlesof this kind in a Bill unless it is absolutely necessary—Ihave made many speeches on that. There was more ofa case with regard to the Mental Health Act, as itbecame; we were trying to change, quite fundamentally,pretty ancient legislation 25 years after it had beenframed. There is not a strong case here. Not contentwith constructing a constitution, we have a handbookon it as well, both of which can be amended over timeas circumstances change.

The original authors of the NHS legislation—itsfounding fathers, if you like—were wise. They saidthat the Secretary of State would be under a duty toprovide a comprehensive health service in Englandand Wales, as I recall, with a stony silence on preciselywhat “comprehensive” meant. That turned out to bevery wise of the Labour Government of the timebecause three years later they had to introduceco-payments, which we call “prescription charges”.


That is what they had to do at the time of an economiccrisis. Circumstances change and Governments haveto respond to them. With the NHS now taking a verylarge chunk of the public finances, we have to be wiseabout not putting primary legislation on the booksthat unreasonably ties the hands of future Governmentswhen dealing with the economic circumstances thatthey face.

This set of principles has a lot of flaws, which wereelegantly and eloquently described by the noble Lord,Lord Walton of Detchant. A big part of the NHS’sjob is to provide the education and training of the nextgeneration of doctors, nurses, scientists and otherprofessions. Increasingly, its R&D role is incrediblyimportant. With all the advances that we see in medicaltechnology, it is important that the NHS plays its rolein that area.

I am all in favour of taking wonderful Labourdocuments and enshrining them in legislation. TheNHS Plan for 2000 was a wonderful document, but adocument of its time. It did not say much about choiceand competition. After that, choice and competitionwere introduced, and for a purpose; choice was certainlynow a major part of the agenda, not just in the NHSbut in the way that modern Governments respond totheir citizens’ needs in the way they provide publicservices. Choice is an important issue for the future ofthe NHS.

We have moved on in many public services toaccept a mixed economy of providers. Whether we likeit or not, that is the world we live in. You could arguethat we have always had mixed service providers inGPs, who are small business men and women from theprivate sector, so there is nothing very new about it.These are important issues, though, and the way thatthe amendment is framed, in terms of principles inprimary legislation, would make it difficult forGovernments to respond to changing circumstancesand changing needs of societies. Often Governmentsmake changes in something like the NHS becausesocieties need change and they want, rightly, to be ableto respond to that. These principles are too restrictive.I am afraid that while I understand the noble Earl’sthinking, and I have a high regard for him, thoseprinciples would tie us into a set of restrictions.

If I were being unkind politically, I would wonderwhether this was a picture of the NHS that a ConservativeGovernment would bring before us—basically, theNHS Plan circa 2000.

Lord Stoddart of Swindon: On Second Reading Isaid that I believed we should have had a RoyalCommission on the health service. I believe that weshould have had it a long time ago so we knew exactlywhat the health service was about, what it should do,what it should cost, who should pay for it and whathave you. But since we have not had a Royal Commissionwe now have the NHS Constitution and we have anamendment before us that we are now considering.

I am old enough, of course, to have known AneurinBevan. He was kind enough to come to the Newburyconstituency when I was fighting that hopeless seat tospeak for me in the Corn Exchange there. I wellremember that when he walked down the centre aisle,

as he always did, he was jeered—and I also rememberthat when he walked out he was cheered. He was agreat man and responsible for our present healthservice. I am not at all sure that he would have welcomedthis handbook.

Aneurin Bevan believed that the health service shouldbe run by local people for local people and should befinanced through taxation. I am not at all sure that hewould have welcomed the centralisation of decision-making that has taken place over the years. All theresearch for the health service, or a good part of it,done by Bevan himself and by Beveridge, was done inthe localities. The first thing that Harold Wilson saidto me when I arrived at the House of Commons in1970 was that he knew Swindon well; he had been theresearch assistant to Beveridge, who examined thesystem that the Great Western Railway put into positionfor its workers.

The whole concept of the health service was onewhich, although financed through national taxation,was in the hands of local people for local people. Butof course things have changed; one understands that.Because things are as they are, I said again at SecondReading that perhaps we have the second best withregard to rights and duties of people under the presentNational Health Service through this constitution.

I do not know whether the amendment before uswants to build on the constitution or whether it isnecessary. The constitution probably sets out whatpeople can expect and what duties they have, as well aswhat the staff should do, how they should be treatedand how they should treat others. I am not at all surethat we want another amendment to be added to theBill. However, if we are to add it, it needs to be lookedat again.

There are phrases in the amendment that need to betidied up. Proposed subsection (2)(a), for example,says that,“the NHS will provide a universal service for all based on clinicalneed, not ability to pay”.

The fact of the matter is that the NHS core principle isthat it should be free at the point of use. Again, atSecond Reading, I said that I believe that peopleshould know how much they are paying for it. Whenpeople know that, they will demand a better service.The noble Earl might consider taking out “not abilityto pay” and adding “paid for by taxation” so thatpeople understand exactly where the money is comingfrom.

When talking about the health service—which is agreat service; do not make any mistakes about that—Ioften say to people, “How much do you think you payfor it? How much do you think the National HealthService costs?”, and I am amazed at some of theanswers I get from people who should be up to datewith the costs of the health service. At a dinner—I donot often attend dinners but nevertheless I was atone—I was talking to someone about the health serviceand I asked him, “How much do you think it costs?”He said, “Oh, £4 billion a year”. I said, “Just go up abit”. He said, “Well, it must be £6 billion a year”. Isaid, “You are still not there”. He said, “Then it mustbe £10 billion a year”. I said, “Would it surprise you toknow that it is £100 billion a year?” That really put


[LORD STODDART OF SWINDON]him off his dinner. I said, “You are paying for it. Noone else is paying for it”. The other day I askedsomeone in the House of Commons how much theNational Health Service was costing. He is responsiblefor raising the money, but he did not know; he thoughtit was about £50 billion. There is a need for people tounderstand how much it costs because I am convincedthat if they know how much it is costing them individuallythey will press for a better service. It happens elsewhere;there is no reason why it should not happen in theNational Health Service.

I do not want to keep the Committee for too longbut there are one or two other things that I really donot like about the amendment. The principle in proposedsubsection (2)(d) states:“the NHS will respond to different needs of different populations”.

There is only one population in the United Kingdomand it is made up of British people. These people arenot “populations”, they are people. They may havedifferent needs but they are part of the population.The Government, correctly, want to see integrationand, if we are going to refer to “populations”, particularlyon the face of the Bill, we will be going against thepolicy of integration which the Government, as I havesaid, quite rightly want to pursue.

The principle in proposed subsection (2)(e) states:“the NHS will work continuously to improve quality services andto minimise errors”.

Of course it will; that is its duty. That principle issimply verbiage. You do not need something like thaton the face of the Bill.

The principle in subsection (2)(g) states:“public funds for healthcare will be devoted solely to NHSpatients”.

Who else will the funds be designated to? Nationalhealth funds are for national health patients whetherthe services are provided in national health hospitalsand other organisations or in private organisations,which seems to be an increasing possibility. I am notsure that the amendment is necessary.

Finally, the principle contained in proposed subsection(2)(j) states:“the NHS will respect the confidentiality of individual patientsand provide open access to information about services, treatmentand performance”.

I agree with that, but I am not at all sure that it can beachieved by the £12 billion which is being spent on thecentralised computer system, which seems to fall behindyear by year and seems difficult if not impossible toachieve. I am also very worried, bearing in mind theloss of people’s data in so many government departmentsand elsewhere, that patients’ confidential records willbe lost or leaked and seen by people who should notsee them. I read in the newspapers—perhaps the Ministerwill give us some assurance on this—that patients’records are to be seen by pharmacists, which would beoutrageous. I hope that the Minister can assure theCommittee and the country that pharmacists andpharmacies are not to have access to people’s medicalrecords through the computer system. I hope in relationto the present plans for centralised medical recordsthat people will be able to contract in and not contractout, because inertia often means that people suddenly

find that their medical records have been leaked tosomeone, having not understood that they could haverequested an exemption from having their medicalrecords shared throughout the country.

4.15 pmI appreciate that the noble Earl, Lord Howe, is

trying to be helpful, but I am not sure that his amendmentwould help in any way. Perhaps he could think about itand reword it following our discussion in this Committee.

Baroness Howarth of Breckland: I shall be brief, as Ihad not intended to speak at this point, but, havingheard the debate, I felt that I wanted to come somewherebetween the noble Earl, Lord Howe, and the nobleLord, Lord Stoddart. My first reaction is that I amvery keen on principles being explicit in a Bill. I wasanxious when I read this list and asked myself, “Whatif they change?”. I suppose that we are saying thatprinciples may not change. I think that principles inthe health service are changing. As the noble Baroness,Lady Barker, said, the health service has changedduring the past 60 years, and it will fundamentallychange again during the next few years. There may bethings that we hold dear and precious which throughthe next few years we want to hold on to and, for thatreason, people may want some principles in the Bill toprotect them. I agree absolutely with the noble Earlthat the difficulty is that Parliament has not been ableto debate the constitution, which is where the issuesshould be more clearly enunciated. Along with mynoble friend, I think that there are serious omissions inthe list.

However, what has convinced me most today thatthese principles should not be in the Bill is the speechof the noble Lord, Lord Stoddart, which showed that,if they were included, we should spend much longerdiscussing detailed semantics than in the previousdebate. For that reason, having principles on whichmany of us would disagree would lead to difficulty.

Tomorrow, the House of Lords Select Committeeof which I have been the chair will publish its reporton cross-border healthcare. Some very interesting andcontroversial issues relating to payment, equality,authorisation and accessibility are in that document,which discusses the commission’s latest notice on thissubject. However, it is important to recognise thatother issues will come through, not only regarding thedevolved nations—I agree absolutely with my noblefriend Lady Finlay that we will learn from each otherabout different ways of managing health services throughthe devolved nations—but we are fast becoming muchmore European. Some of us may not like that, but it isa harsh reality. As borders fall, health services willchange.

My final point is about specialist services. Thenoble Lord, Lord Stoddart, talked about populations;the populations that concern me most are the smallnumbers of people who consume huge amounts ofmoney, without which they would die. We have to holdon to that throughout our thinking. Equity and equaldistribution are difficult concepts; postcode lotteriesadd to those difficult concepts and make principlesdifficult, sad as I am to have to say that.


Lord Campbell-Savours: I will be very brief indeed.I have a single question for the opposition Front Bench.It arises from my conversation a couple of weeks agowith some colleagues at the other end and I can put itonthebackof thisamendment.AretheofficialOppositionsatisfiedwiththegeneralprinciplesintheNHSConstitution,or is it the case that at some stage in the near future, inthe event of a change of Government, they wouldwant to revisit the NHS Constitution and, indeed,rewrite it? Would it endure for, say, at least a Parliament?That is all I wanted to ask.

Earl Howe: Perhaps I may answer that questionnow and get it out of the way. The broad answer is:yes, we are very happy with the principles set out in theconstitution; they are worded well. The questions thatI posed earlier were really around what was missingfrom those principles, because they do not entirelyreflect those enunciated in 2000 when the NHS Planwas published. As I have said, those principles seemadmirable and have stood the test of time. There is nointent to change, and there has been no discussion onour part on changing, these principles. Indeed, thewhole point of my amendment is that Governments ofwhatever persuasion cannot tinker with the principlesthat underpin the NHS.

The Earl of Listowel: Before the Minister replies,perhaps I may briefly make one or two points relatingto subsection (2)(f) of the list in the amendment,which states:“the NHS will support and value its staff”.

Ten years ago when I first entered your Lordships’House, I visited housing in the East End of Londonwith a health visitor and was struck by her ability toaccess very vulnerable families. Over the years sincethen I have intermittently come across health visitorsand I am sad to say that each time I meet them theyhave expressed serious concerns about how they arebeing treated and about recruitment and retention ofhealth visitors.

I was very glad to learn of the success of family/nursepartnerships and I am pleased that the Governmentare planning to invest in recruiting more health visitors.However, I have been concerned about the treatmentof health visitors and I should be most grateful if theMinister wrote to me about what specifically wasbeing done to ensure a more secure future for thisimportant service.

The general principle which I see very much interms of the child and family workforce is that if oneinvests in the workforce and values it, one will delivera good quality of care and good outcomes for childrenand families, and in the health service. This is oneprinciple that is absolutely right and probably will notchange over time.

Furthermore, there has been a great deal of changein child and family services, made with the best ofintentions, and much of it has been welcome. However,the difficulty of constant change is that it can tend todemoralise the workforce. Therefore, supporting andvaluing staff may also make policy-makers alwaysthink before they make further changes that may bedetrimental to the morale of the workforce.

Baroness Masham of Ilton: The NHS is such a largeorganisation that some of the people working within itand the patients using it need reminding of what itdoes, so I see why the noble Earl, Lord Howe, wantsthe principles listed. I would like to see an additionalprinciple, “(k) the NHS will do its best to preventinfections”—something that worries many people whouse the NHS.

The problem when you have a list is that things getleft out. Lists therefore need to be flexible. As thehandbook is going to be reviewed every three years,principles could be changed or added.

Lord Darzi of Denham: Amendment 3 would placethe principles of the NHS Plan, published in 2000, inthe Bill. It would also mean that the principles publishedin the NHS Constitution on 21 January and all futureversions of the constitution should be adjusted toreflect this set of principles.

I appreciate that in tabling this amendment thenoble Earl wishes to ensure that we do not lose sight ofthe principles set out in the NHS Plan. I reassure himthat no principles from the NHS Plan have gonemissing from the constitution. Where they do notappear as a principle they are reflected elsewhere,either as a pledge or as a legal right. For example,there is a principle in the NHS Plan that the NHS willrespond to the different needs of different populations.That has been translated into a patient right in theconstitution: to expect your local NHS to assess thehealth requirements of local communities and to putin place the services considered necessary to meetthose needs.

The second principle that the noble Earl referred towas about valuing staff, which was also touched on bythe noble Earl, Lord Listowel. Obviously, staff are theNHS’s most important asset, and we are fortunate tohave 1.3 million staff working in it. The constitutionreflects that by making a number of pledges to thestaff, including pledges to provide staff with personaldevelopment, access to appropriate training and linemanagement support, and pledges to provide supportand opportunities for staff to maintain their healthand well-being. The constitution’s third principle alsoreflects the importance of education and training inthe development of staff.

The noble Earl also raised the issue of the differencein the wording between “patients” and “public” andwhy we have changed one to the other. “Patients”applies to people already accessing the health service,but the NHS is for everyone, even for the well, in orderto keep them well. The revised wording reflects that.

The noble Baroness, Lady Cumberlege raised theissue of whether the NHS will provide a comprehensiveservice. The first principle of the constitution confirmsthat. The NHS will provide a comprehensive service,and it is the Government and the constitution that aretrying to secure that, at least for the next 10 years.That is based on the Health Act 2006.

The noble Baroness referred to the issue of qualityand safety, and I am grateful to her for that. The thirdprinciple talks about how the NHS should aspire tothe highest standards of excellence andprofessionalism in the provision of high quality care


[LORD DARZI OF DENHAM]that is safe, effective and focused on the patient’sexperience. We have used these definitions, and I haveno doubt that we shall be debating them when wediscuss some of your Lordships’ amendments on thequality account.

4.30 pmThe constitution also sets out a patient’s right to

expect organisations to meet the required levels ofquality and to make every effort to improve the qualityof healthcare they provide. We hope that the Billmeets the aspirations of not just the high quality thatthe staff wish to provide, but also the high-quality carethat the patients expect from the NHS.

The noble Baroness, Lady Finlay, also referred tothe NHS Constitution and said that it applied only toEngland. The devolved Administrations are of coursefree to make their own decisions, but I should like toreassure her that although the constitution appliesonly to England, none of the other devolvedAdministrations have moved away from the core principleson which the NHS was founded in 1948. This is ourattempt to ensure that these are maintained. It hasbeen suggested that the constitution will change everythree years. That is incorrect. The constitution will notbe renewed for at least 10 years; it is the handbookthat will be reviewed every three years.

The noble Lord, Lord Walton, raised the issue ofeducation of healthcare professionals and the researchaspects of it. I think I have covered the educationalaspect of it. The third principle in the constitutionrecognises the importance of innovation and thepromotion of research, but not at the expense ofconfidentiality. I return to the point raised by thenoble Baroness, Lady Barker, and the noble Lord,Lord Stoddart. Only healthcare professionals and peoplewho owe the same duty of confidentiality as healthcareprofessionals are legally allowed to process sensitivepersonal information for medical and research purposes.Healthcare professionals are qualified and registeredstaff, such as doctors and nurses. Established NHSpractice uses patient information when necessary tosupport research. We have seen many fruits of thatresearch over the past 60 years, and we lead globally inmany areas of research because of the NHS and itsfunding principles.

The noble Lord, Lord Stoddart, asked whether wecould be clearer about funding the NHS. The documentpublished with the constitution, the Statement of NHSAccountability, states on its first page:

“The NHS in England currently spends around £100 billion ayear—equivalent to nearly £2,000 per person on average.”

That is in the constitution, and I have no doubt thatthat will help many who use the NHS to understandthe value of the care they receive.

I reassure the noble Baroness, Lady Barker, thatover the summer the constitution and the principleswere consulted on extensively, specifically looking atthe 10 NHS planned principles, which we have lookedat since 2000. This extensive engagement with keystakeholders, when drawing up the constitution, allowedus to refine the principles set out in the NHS Plan. We

now have a set of principles that has the support ofpatients, the public and the staff.

The large majority of respondents to the consultationsthought that the principles articulated were broadlyright; a small number of improvements were suggestedand the final published version of the constitutionreflected those comments.

It is important to remember why we have chosennot to include any part of the NHS Constitution inthe Bill. As the noble Lord, Lord Walton, eloquentlysaid, “We do not want to create a lawyers’ charterhere”. That is why this is a declaratory and not a legaldocument. I think we can all agree that we would notwish to see decision-making in the NHS become apreserve of the courts. Equally, enshrining the NHSprinciples in the Bill would set them in stone untilprimary legislation was changed. While it is certainlynot my intention that the principles of the NHSshould change in any significant way—indeed, I seethese principles as enduring—I also believe that it isimportant that there is a degree of flexibility, as highlightedby my noble friend Lord Warner, in relation to theNHS as it grows and evolves. So the proposals inClause 3 for the constitution to be reviewed at leastevery 10 years following full consultation with relevantgroups allow for this degree of flexibility while ensuringthat the principles endure.

Given my reassurance that the principles from theNHS plan have not been lost and that the principles inthe constitution have been subject to a full consultation,I hope that I have convinced the Committee and thatthe noble Earl, Lord Howe, feels able to withdraw hisamendment.

Lord Stoddart of Swindon: Before the noble Earldoes that, I wonder whether I could clarify a couple ofpoints. When I referred to pharmacists, I meant privatepharmacies. I perfectly understand that in hospitalpharmacies there is proper control. What one cannotbe sure about is that there would be proper controlwithin a private pharmacy. That is what I was talkingabout.

On the question of payment for the health service,not everybody reads the documents that the Ministerquoted. I shall not say that it is my plan, because it isnot, but consideration should be given by the Governmentto show perhaps on people’s wage slips how much theypersonally are paying towards the cost of the healthservice—like a health stamp, for example.

Lord Darzi of Denham: In relation to the privatepharmacists, I refer to any pharmacist providing NHSservices. If the general practitioner has been involvedin that prescription, it is the general practitioner’sright to share any information that he or she mayfind suitable with the pharmacist providing thosepharmaceutical drugs. As for patients reading documents,it will be a great pleasure for the Government to find away in which we can share this information about the£100 billion that the taxpayer is spending on healthcare.On the question of exactly how much each individualis contributing, we all know that we are paying asignificant amount of tax; we know exactly how muchtax we pay. On an individual basis, people should beaware of the contributions that they make in tax.


Baroness Cumberlege: I understand the argumentsthat have been put about flexibility and ensuring thatwe have enough room for manoeuvre in future. It isquite interesting that we have had the principles setout in the Children Act and in the Mental CapacityAct. That is not the Mental Health Act, which wentinto the code, but the Mental Capacity Act. Clearly itis unfair to ask the Minister if he has had any comebackfrom those principles set out in the Act, but I wonderif he could write to me. I would be interested to knowwhether putting principles into two of our Acts hasintroduced a lot of legal cases and disruption.

Earl Howe: I am grateful to all noble Lords whohave spoken. This has been a good debate. Of course, Iacknowledge the reservations that have been expressedabout the amendment. I recognise the danger of puttinglists in legislation. Everyone will have their views aboutthe content of such a list. The noble Lord, LordWalton, is right in saying that there is no mention ofresearch and education, and I would agree that thephrase “evidence based”might usefully sit in the wording.

The noble Lord, Lord Walton, said that the amendmentwould be likely to give rise to litigation. That is oneworry that I have had about promulgating an NHSConstitution in the first place. I sincerely hope that Iam wrong, but there is a risk in undertaking this veryworthy exercise, which the Government have embarkedon, that people will sit on their rights rather morefirmly than they have in the past. Let us hope that thatis not so.

I thought that the core principles contained in theNHS Plan were as good a collection of principles asany. So far as I know, no one has seriously argued withthem up till now. If we are not to have anything, I mustcome back to what the noble Baroness, Lady Barker,said. She was absolutely right: there is a gap to befilled here, and if we are not to have an amendment ofthis kind or something like it, we need to ask ourselveshow we are going to fill that gap.

I would of course be concerned if the inclusion inthe Bill of principles, however brief, gave rise to anincreased risk of litigation, as I mentioned. I thinkthat that point can be argued over in relation to theamendment as worded, and I say to the noble Lord,Lord Warner, that, in my own mind at least, principlesare not the same as rights or, indeed, pledges. They areseparately listed in the constitution for, I would say, avery good reason. The noble Lord said that Governmentsshould be free to change the principles in the future ifthey want to. However, I think that that is the veryargument that people out there will not want to hearand it is why I felt that Parliament and this Bill shouldbe allowed to say something about the content of theconstitution. I give way.

Lord Warner: For the sake of clarity, I did not saythat Governments should willy-nilly be able to changeprinciples; I said—I want to be very clear about this—thatthe circumstances in which Governments govern maychange, making it necessary for a Government torespond to those circumstances. I think that that wasin the thoughts of the people who wrote the foundinglegislation for the NHS. That does not mean that there

should not be some understanding of principles andthat they should be enshrined in the constitution, but Iam saying that enshrining them in primary legislationmay unreasonably restrict a Government of any politicalpersuasion in the economic circumstances that theyface, as happened in 1951 with the Labour Government.

Earl Howe: In that case, one could argue that it isgood for Governments to come to Parliament if theywant to change one of the founding principles of theNHS. That is a positive thing to allow for. I was a littlesurprised that there was not a greater degree of concernabout Parliament having been completely sidelined inthis context but I shall of course reflect on all thecontributions made. The Minister said that in practicethere was no difference between the principles in theNHS Plan and those in the constitution, and I shallreflect on that as well. I observe only that at least oneprinciple in the NHS Plan has become a pledge in theconstitution and is therefore not enforceable. Therefore,I think that there is a difference between the two andwe may be able to find other examples.

I believe this is a debate that we had to have. In thelight of comments that have been made, between nowand the next stage I shall consider carefully what to doabout this particular amendment but, in the meantime, I am happy to beg leave to withdraw it.


Clause 2 : Duty to have regard to NHS Constitution

Amendment 4

Moved by Baroness Barker

4: Clause 2, page 1, line 17, at end insert “and Handbook”

Baroness Barker: I shall speak also to Amendments5 and 6. What does this mean in practice? That is thekey question that everyone who has read what istermed “the NHS Constitution” has been trying tofigure out. Great supporters of it are adamant that itwill make a real difference to staff and patients withinthe NHS. They believe that it sets out a recognisedframework for the way in which the NHS deals withindividual patients and that it also sets out expectationswhich patients do, and should, have of how the NHSwill treat them. Even its most staunch supporters and,indeed, some of its authors, cannot yet answer thequestion: what will be different in practice? I thinkthat they would admit that, although they have highhopes and aspirations for it; however, they are unclearabout what it will mean in practice.

4.45 pmThe question of what the Bill is intended to do as a

document which enhances practice within the NHSkeeps recurring. It is answered to a limited degree bythe handbook to the constitution. The purpose ofthese amendments is to try to come at some of thesame issues that we discussed on the previous amendment,but from a different angle, and to try to incorporatewhat is in the handbook—not to incorporate its every


[BARONESS BARKER]word into the primary legislation, but to ensure thatpractitioners have regard for what is in the handbookand to increase its status.

The most important lines in the handbook arethose that ask what the principles mean in practice.The handbook endeavours to exemplify what the principleswill mean. Why go about it this way? In part, becauseI, like the noble Earl, Lord Howe, and other Membersof the Committee, am a veteran of the Mental HealthBill and the Mental Capacity Bill. I take this opportunityto challenge the version of history of the noble Lord,Lord Warner. The reason that there was a great deal ofargument about the inclusion of principles in theMental Health Act and the mental health code ofpractice was not because the Mental Health Act 1983was being updated; there was a great degree of consensuson that. There was intense argument because theGovernment were proceeding with a piece of legislationwhich they claimed rested on a set of principles—whichit did—but unfortunately only the Government and afew of their advisers thought that they were right andrelevant. Everyone else from mental health users tothe Opposition thought that the principles were whollywrong.

Regarding the Mental Capacity Act, the noble Lord,Lord Warner, was right to say that because the principleswere so novel in legislation it was important that theywere included in the Act and they have been reflectedin the many documents that have flowed from thatpiece of legislation.

It is important that we try to reach a middle waywhereby it is a legislative requirement that providers ofservices have regard to the handbook without puttingits detail into the legislation, because it is clear fromthe Government’s actions so far that the heart of howthe legislation will work will be embodied in the handbook,rather than in the constitution. I invite noble Lords tolook at the constitution and the relevant bits of thehandbook and draw the distinctions between them.

I pick one principle, which states:“You have the right, in certain circumstances, to go to other

European Economic Area countries or Switzerland for treatmentwhich would be available to you through your NHS commissioner”.

That is stated in the constitution. However, the handbookgoes on to state:

“What this right means for patients”,

and sets out the limits of what that means in practice.In the spirit of this legislation and of what the Ministeris trying to do, which is to be fair to be patients aboutwhat their expectations of the NHS should be, itwould be beneficial to the NHS and its users that theyare not misled by the simplicity of the NHS constitutionand are openly directed towards the practicality ofwhat that principle will mean for them. That applies asmuch to staff as it does to users.

Another example—a very topical matter this week—was the commitment on screening. If one were to readonly what the constitution says about screening, onewould not immediately understand that there are policiesaround screening programmes which have been workedout by the department on the grounds of their efficacyin certain groups. The more you can draw patients into

an understanding of how this document will work inpractice, the more you will minimise unnecessary litigationand disruption to services. The three amendments arenecessary because they place the duty of having regardto the handbook not only on providers of NHS servicesbut on those who provide NHS services under contractualarrangements and on subcontractors. That is a deliberatething on our part.

I continue to have an ongoing and interesting dialoguewith the department about its interpretation of the2010 competition for services regulations and the Part Bderogation for health. At this point I know that nobleLords’ eyes will start to glaze over, but it is extremelyimportant European legislation. I and many otherpeople take the interpretation that it means that manyareas of healthcare and social care are public serviceswhich have to be open to competitive tendering. Somepeople in government cling to a view that it does not.One day one of us will be proven right in a court oflaw but, whichever way one chooses to interpret it, it isan important matter, not least for the parts of the Billdealing with direct payment and beyond. We havetried to make sure that this obligation rests not onlywith direct providers because we believe that in futurea great many more healthcare services will be providedby subcontractors.

This is a slightly different way of making theseprinciples have a meaning in the NHS as it is now. It isa commendable way of doing so because it does not tiedown indefinitely in primary legislation the detail ofthe handbook, which remains capable of being changedand altered as it becomes relevant without amendmentsto primary legislation. This approach has worked, inslightly different ways, under the Mental Health Actand the Mental Capacity Act and I commend it as agood way forward. I beg to move.

Earl Howe: I agree with all that the noble Baronesssaid as regards incorporating a duty to have regard tothe handbook. My Amendment 8 is designed to meetthat purpose. If anything, it is more important thatpeople should be under an obligation to abide by thehandbook than by the constitution in isolation because,of its very nature, as the noble Baroness indicated, theconstitution is expressed only in headline terms ratherthan in terms of the explanatory substance in thehandbook.

We need to remember that the handbook not onlydefines but, in some cases, limits the rights and pledgesset out in the constitution. If the duty to have regardto the constitution is not accompanied by an equivalentduty in relation to the handbook, we are left wonderingwhat status the handbook has. At the moment, it doesnot appear to have any at all. In purely practical terms,we want to be certain that people employed by theNHS operate with a clear understanding of what theconstitution actually means rather than what theythink it means. That is the central point at issue here.

Baroness Cumberlege: I pay tribute to those whoput this handbook together. In the NHS, we bore forBritain when it comes to jargon—we are absolutelyappalling in that regard. However, this is written insuch clear language that I think a huge amount of


work must have gone into it. It is direct and simple tounderstand, and I think that it is a good document. Ijust wonder why Switzerland is included. Perhapssomeone can tell me. The document says that,“UK patients may be able to travel to another country in theEuropean Economic Area”.

It lists all those countries but it also says,“or to Switzerland to receive medical treatment”.

Lord Darzi of Denham: Amendments 4, 5 and 6tabled by the noble Baronesses, Lady Barker and LadyTonge, propose that all bodies and persons who musthave regard to the NHS Constitution must also haveregard to the handbook to the NHS Constitution.Amendment 8, tabled by the noble Earl, Lord Howe,has a similar effect but uses an alternative methodthrough a new clause.

I understand the intention behind these amendments,seeking as they do to strengthen the duty on bodiesand persons to have regard to the NHS Constitutionby extending this duty to the handbook. However, it isimportant to give some context to the Government’sexisting proposals.

We propose in Clause 2 that all providers of NHScare in England should have regard to the constitution.As noble Lords will know, the constitution is designedto be an enduring document that will, as I said previously,be updated infrequently and only after full consultationwith patients, the public and staff. By contrast, thehandbook is the explanatory guide to the NHSConstitution. It explains what the constitution meansin practice, by setting out the law and departmentalpolicy that underpin each right and pledge in theconstitution. There is no right or pledge in the handbookthat is not mentioned in the constitution, and thehandbook itself does not create policy or law.

Although, of course, we expect those having regardto the constitution to be familiar with the content ofthe handbook, it is not a document that we intendshould be legally taken account of by providers ofNHS care. If I use my earlier analogy of the Bill thatwe are currently debating and the Explanatory Notesthat go with it, I hope that that makes the case.Having regard to an explanatory guide isfundamentally different from having regard to theconstitution, and I believe that a requirement in thatregard may be unduly bureaucratic, given that NHSproviders will in any event be familiar with thecontent of the constitution.

In addition, if there were an obligation to haveregard to the handbook, there would also be a case fora more formal process for updating it—for example, arequirement to consult on any revisions to the handbook.

Furthermore, strengthening the legal status of thehandbook in the way that the amendments suggestcould, ironically, make it a less useful and accurateguide for patients, the public and staff, because imposinga requirement to consult on any changes to the handbookwould make it slow and cumbersome to update, eventhough most of the changes would be minor andtechnical. It would undermine our objective of ensuringthat the handbook was readily revised and kept up todate. That objective has widespread support. For example,the Constitutional Advisory Forum, which oversaw

the consultation, recommended that the handbookshould be updated regularly to keep pace with changesin legislation and policy.

Although I sympathise with the intention behindthe amendments, I believe that they would complicatewhat we are trying to provide as a simple guide to theconstitution for patients and staff in the NHS. I hopethat I have made my case and that the noble Baroness,Lady Barker, will feel able to withdraw the amendment.

Baroness Howarth of Breckland: May I ask a questionof clarification? Having been brought up in the field ofsocial care, where Bills and Acts sometimes contain asentence that says that guidance may be issued fromtime to time, I saw the handbook as the guidance tothe constitution. I would have found it helpful to havehad that in the Bill, and to have had some wordingfollowing from the handbook that could be revised bythe Secretary of State from time to time. That wouldgive the provision more formality but would enable itto be changed, as any guidance can be changed, withoutunduly cumbersome consultation. I hope the Ministerwill think again about this.

5 pm

Lord Stoddart of Swindon: The constitution is quitea thick document. In it there are some serious paragraphsabout patient and public responsibilities—and theyare very serious responsibilities indeed. Everyone inthe health service will have a copy of this in thehospital, or wherever they work, in whatever part ofthe health service they work. But what about thepatients? As I say, there are some strong words hereabout the responsibilities of the patients and the public.Is it planned to send this—not the small, annotatedversion but the document itself—to every householdin the country? After all, the French were able to dothat in relation to the European constitution; I do notsee why we should not be able to do something likethis as well. Is that the plan, or are patients and thepublic not to be considered?

Lord Darzi of Denham: To add a point of clarity,the handbook is primarily an explanatory guide forpatients, not guidance for the NHS. I hope I haveanswered that. On how we share that information withthe patients, I have no doubt that in debating amendmentslater today we will discuss how to make the constitutionand handbook available to those who use the healthservice.

Lord Stoddart of Swindon: But it refers to thepublic and patients.

Baroness Barker: That was a useful debate. I mustadmit, in answer to the noble Baroness, Lady Howarth,that I have enjoyed many a happy hour discussingwhat the word “guidance”means. That is why I deliberatelyshied away from any suggestion that we might betalking about something that had equivalence withstatutory guidance. The noble Baroness knows thestatus of that, as do many other noble Lords.


[BARONESS BARKER]There is something missing from this whole exercise

if the document that most clearly sets out for patientsand for staff what this is all meant to mean in practice—and we should bear in mind that there is a big sectionabout staff—is unconnected from a constitution thatthe Government have decided should be based in law,but can have some kind of legislative force without it. Iam not sure that I fully accept what the Minister saysabout the difficulty of updating it all, and so on; in sofar as it is a document that reflects existing law andpolicy elsewhere, it consists largely of things that theNHS ought to make clear to its users. There is anargument, at least in my mind, that to do all thatupdating in the form of one document might be amore efficient way in which to go about managingrelationships with staff and users.

I have listened to what the Minister said. I shalltake it away and reflect on it, but I may well come backto it if, on reflection, I think that this is the mostefficient way in which to keep this updated.

On the matter of Switzerland, I cannot answer thequestion with full certainty, but I shall have a guess. Iam sure that Switzerland is not there because ofDignitas; I am sure that it is listed because, for WHOpurposes, Switzerland, which is not part of the Europeaneconomic area is a health partner in many things. Imay be wrong, but I wanted to show that I have doingmy homework for tomorrow’s debate. I beg leave towithdraw the amendment.


Amendments 5 and 6 not moved.

Amendment 7Moved by Earl Howe

7: Clause 2, page 2, line 25, at end insert—“( ) The Secretary of State shall publish guidance on the

manner in which bodies and persons may demonstrate that theyhave had regard to the NHS Constitution.”

Earl Howe: Besides the matters that we have justdiscussed, another aspect of these provisions needs tobe looked at carefully. That is the issue covered by thisamendment. What in this context does the phrase“have regard to” actually mean in practice? TheGovernment have made it clear that the constitutionis not intended as a document that gives people legalrights over and above those that they have already. Itake it, therefore, that “have regard to” falls some wayshort of “slavishly adhere to”. If it meant “slavishlyadhere to”, it seems to me that new legal rights wouldindeed be created. If it does not mean that, it mustimply that there are some circumstances in which it isnot incumbent on health service bodies to abide bythe constitution.

If a body is allowed in certain circumstances not toabide by the constitution, yet must at the same time beable to demonstrate that it has had regard to it, whatdoes that obligation amount to in practice? What willdistinguish a situation in which an NHS trust feelsduty bound to follow the constitution and a situationin which it does not? That question is difficult to

answer, but we have to do so. If we do not, we are opento the charge that the constitution is a piece of tokenismthat can be followed or ignored more or less at will.

As we know, various rights are laid out in theconstitution, such as the right to receive NHS servicesfree of charge, which, if they are not honoured, areopen to legal action and redress. But when it comes tothe pledges, which are explicitly not legal rights, wehave to ask what force they actually carry if there areundefined circumstances in which health service bodiesdo not have to abide by them but must merely haveregard to them.

The other question that arises is how it will bepossible to verify or audit the extent to which a trusthas or has not had regard to the NHS Constitution.What happens if someone complains that the NHS,notwithstanding the pledge in the constitution, hasfailed to work in partnership with you, your family,carers and representatives? Let us suppose that thetrust or PCT on reflection agrees that the complainthas some validity in the light of the prevailing facts.What factors can be adduced to show that the trusthad had regard to the pledge despite not actuallyhaving adhered to it?

The constitution says that the NHS commits,“to ensure that services are provided in a clean and safe environmentthat is fit for purpose, based on national best practice”.

What is it sufficient for a trust to do to have regard tothis pledge? If it is found that a hospital environmentis not clean and safe, is it nevertheless possible for thathospital to be acquitted of the charge that it failed tohave regard to the constitution? What would havingregard to entail in this situation?

I think back to what the Minister said in his finalreport of last June, High Quality Care for All. Amongother things, he said:

“For the Constitution to be meaningful it must have bite, withmeans for enforcement and redress, not just warm words oraspirations”.

How precisely does the constitution have the bitethat the noble Lord referred to, and where are themeans for enforcement and redress? The answer surelyhas to be that the means of enforcement and redressagainst the NHS are unchanged from what they alwayshave been. If so, one is led to the rather sad conclusionthat, in this sense at least, the constitution takes oneno further forward. It does not deliver on what thenoble Lord explicitly demanded of it. One might say,“Oh constitution, where is thy bite? Oh handbook,where is thy victory?”. All this points to somethingthat has been highlighted by a number of commentators,which is that if we want the NHS Constitution to beeffective and a force for good, people in the healthservice need to know that they have to perform in linewith it as if their jobs depended upon doing so. It doesnot appear that anybody’s job will depend upon howwell or badly they do in this sense. There are nopenalties for failure. It is, I am afraid, more a case ofwarm words and aspirations than anything more biting.

We need to hear from the Minister why he believesthat “to have regard to” is a sufficiently robust form ofwords for the Bill and what, in practice, are the teststhat will determine whether the duty to have regard tohas been adhered to. I beg to move.


Lord Warner: I cannot resist rising on this issue.Having been on the receiving end of many lecturesover the years from the noble Earl, Lord Howe, abouthow the Government have created bureaucracy in theNHS, this looks like a crackingly good way of havingreturns from NHS authorities to show how they havehad regard to adherence to the constitution and thehandbook. I can now see the returns flooding into afuture Government.

The noble Earl has rather overlooked the fact thatwe now have a new regulatory system in place underthe leadership of the noble Baroness, Lady Young,which requires registration and a lot of informationon the performance of trusts. We have strategic healthauthorities monitoring the performance of trusts. Wehave a complaints procedure with ultimately anombudsman who is able to respond to those complaints,which will no doubt come in on failure to adhere tothe constitution and the handbook. Moreover, wehave a parliamentary system in which a Health SelectCommittee and others can hold to account both Ministersand civil servants on how the work is discharged. Howmany more systems do we need in this area? We havegone a long way to ensure that people are held toaccount. This looks to me like a bit of unnecessarybureaucracy.

Baroness Tonge: The spirit has moved me to respondafter that speech by the noble Lord, Lord Warner. Hehas enunciated in a couple of minutes precisely what iswrong with the National Health Service, if anything iswrong with it. People I meet and people I know whowork in the health service think that it is a very goodservice, but that it is overly bureaucratised. So manybodies, committees, oversights, reviews, reports, auditsand quangos—do not forget them—all chip in andinterfere with what people are doing. I welcome whatthe noble Lord has just said.

I declare an interest. I no longer work in the healthservice, but my husband, who I live with, still does,despite retiring 18 months ago at the age of 65. Asthere is a shortage in his specialty, he has gone back towork. If he were here he would say, “A plague on allyour bureaucracy, just let us get on with the job”.

5.15 pm

Lord Campbell-Savours: I shall be equally brief andsupport the contribution of the two previous speakers.Perhaps I may slightly rephrase the amendment sothat we can perhaps more easily understand what thenoble Earl is driving at. The amendment states:

“The Secretary of State shall publish guidance on the mannerin which bodies and persons”,

and so on. What the noble Earl is really saying is thatcentral government shall publish guidance on the mannerin which hospitals demonstrate that they have regardto the NHS Constitution. He is asking for a sort ofbureaucratic, centralist determination of the policiesto be pursued by hospital trusts to demonstrate theway that they apply the constitution. That is almostthe very reverse of the devolution that we are seekingto introduce in the National Health Service. I cannotbelieve that that is what the noble Earl really believes.

Lord Darzi of Denham: Amendment 7 would placea duty on the Secretary of State to publish guidanceon how bodies and persons covered by the duty tohave regard to the NHS Constitution in Clause 2 maydemonstrate that they have had regard to it. I understandthe intention behind the amendment, seeking as itdoes to ensure that providers, commissioners andregulators of NHS services are fully aware of the dutyon them and how they should fulfil it. However, it isimportant to give some context to the current intentionas it is set out in the Bill.

As my noble friend suggested, we do not intend theNHS Constitution to be a top-down initiative fromthe Department of Health, accompanied by a long listof requirements which have to be met in order tocomply with it. The constitution was not developed ina top-down fashion, nor should it be implemented inthat way. Indeed, the constitutional advisory forumsaid as much in its report to the Secretary of State. Inorder for the constitution to have the positive impactthat we wish to see, it needs to be owned by everyprovider of NHS services.

A “duty to have regard” is a recognised legal term—although I should point out that I am not a lawyer. Itwill ensure that the NHS gives the constitution properconsideration. Requiring compliance with the constitutionwould be inappropriate in two ways. First, it would belegalistic and potentially generate litigation, creatingexactly the kind of lawyers’ charter that we debatedearlier. Secondly, it would not be possible to requirecompliance in a legal sense with some parts of theconstitution. For example, one of the values in theconstitution is compassion. Compassion is clearly atthe heart of what the NHS means to people who useit, but how could you go around assessing compliancewith that value? Similarly, what would happen withpatients’ responsibilities, which we debated at SecondReading? We all want the NHS to inform peopleabout their responsibilities and help them to meetthem, but what would it mean if an organisation hadto comply with that?

Issuing guidance on the department’s interpretationof the duty to have regard to the constitution would beoverly prescriptive and would change the nature andthe spirit of the constitution. Equally, it would not bepossible for the Department of Health to list everypossible action that a provider, commissioner or regulatormight have to take in order to be in line with theconstitution. It would not be possible, or appropriate,to create a one-size-fits-all approach that applies asmuch to a district general hospital as to a dentist.Guidance could therefore bring with it the risk thatbodies providing NHS services rely solely on it andnot on their own assessment of what is needed to beable to demonstrate their having had regard to theconstitution.

That is not to say that the department will providethe NHS with no assistance whatever in meeting itsobligations. Indeed, some may know that David Nicholsonhas already written to all chairs and chief executives inthe NHS with examples of how they might fulfil theproposed duty on them—for instance, assessing existingpolicies and activities such as annual reports, staff orpatient surveys to make sure that they are in line with


[LORD DARZI OF DENHAM]the constitution, and checking against the constitutionbefore publishing new policies or documents. We alsohave an extensive communications plan in place andwe will use this to ensure that the NHS is aware of theduty on it and to help it think through how it willembed the constitution in its practices.

It is worth reminding the Committee that much ofthe constitution brings together policies which alreadyexist. Most of the legal rights to which the noble Earlreferred are already in existence and pledges are currentDepartment of Health policy. The vast majority of theNHS should therefore already operate in line with thecontent of the constitution. I hope the noble Earlagrees that the duty to have regard to the constitution,along with the department’s usual processes, are sufficientto ensure that the NHS pays appropriate attention tothe constitution without the need for guidance andmore bureaucracy from the centre and that he feelsable to withdraw his amendment.

Earl Howe: The amendment has nothing to do withreturns to Richmond House or additional bureaucracy.I was quite astonished to hear the contributions fromnoble Lords opposite that that is the effect they thoughtI was after. It is a way of addressing the cry that isbound to go up from NHS staff of, “What on earthare we supposed to do? How are we supposed to obeythe law that has been worded in this way? What dothese words mean in practice? What force do theyhave?”. I am none the wiser following the Minister’s reply.

For example, if I were in a charge of a trust or aPCT, I would worry what the phrase “a comprehensivehealth service” means. I could have regard to theconstitution in my own way but I might not be certainthat I was doing so properly. It is not a question oflisting every possible action that people need to take; itis a question of making clear what deliberative processesNHS staff should go through and the kinds ofconsiderations that need to be borne in mind. I am leftwondering whether the constitution has the kind ofbite the Minister hopes it will have or whether it is,when all is said and done, a set of warm words. That isthe point at issue.

I fear I shall have to look at the matter again andsee whether I can express my concern in a differentway prior to the next stage of the Bill. I beg leave towithdraw the amendment.


Clause 2 agreed.


Clause 3: Availability, review and revision of NHSConstitution

Amendment 9

Moved by Earl Howe

9: Clause 3, page 3, line 2, at end insert “readily”

Earl Howe: I shall speak also to Amendment 25.We read in Clauses 3 and 4 that the Secretary of Statehas to ensure that both the NHS Constitution and thehandbook,“continues to be available to patients, staff and members of thepublic”.

The amendments ask the basic question of whatexactly is meant by this. The people who are going toneed the NHS Constitution the most—that is, thepeople who are most going to need to rely on therights and pledges it contains—are those members ofsociety who are in some way disadvantaged and whosevoice is less loud: the elderly, the disabled and the verysick. If those groups are not aware of what the constitutionsays and how it can help them, then the benefits thatwe all hope will flow from the constitution will beconsiderably diluted.

Awareness here is surely key. If we agree about that,we must also agree that both the constitution and thehandbook have to be not just “available” but easilyaccessible to everyone who has a need or potentialneed to know and understand their contents, especiallyvulnerable groups. People have to know what theirrights are and how they can challenge poor treatmentif they receive it. They need to have things rapidly putright whenever mistakes are made. Therefore, it isessential that the availability of the constitution andthe handbook is not dependent on chance or onpeople scouring the NHS for it.

I think back to the Patient’s Charter, which in itstime was a good initiative. However, its effectivenessrather fizzled out because the incoming LabourGovernment did not put their weight behind it and, asa result, everyone forgot about it. Essentially, it disappearedoff people’s radar. The Minister will no doubt say thatthe Patient’s Charter cannot really be compared withthe NHS Constitution because, for one thing, it wasnot backed up in statute. I understand that distinctionbut my point is that, whether or not a constitution or acharter is backed up in statute, it is as good as uselessif it is not promulgated to those whom it is meant tohelp—that is, the people who deliver and are in receiptof services. That applies not just to a few but to everyhousehold in the land, and it is an ongoing process—something that has to be kept up year after year.

I should like to hear from the Minister how it isenvisaged that the constitution will be made available,to use the word in the Bill. I am not altogether happywith that word; I should have preferred “accessible”but I have gone for the phrase “readily available” togive a sense that the availability is not just dependenton consumer or user “pull” but also requires some“push” from the provider or commissioner end. I begto move.

Lord Walton of Detchant: I hope that the Ministerwill readily agree to this helpful amendment, whichstrikes me as being a valuable addition to this clause. Itis crucial that the constitution and handbook are verywidely available—in public libraries, GPs surgeries,hospital outpatient departments and so on—so that itis readily available to all members of the public whowish to consult it. Therefore, I strongly support theamendment.


Baroness Tonge: I speak to Amendment 10, whichfollows on from the amendment moved by the nobleEarl, Lord Howe, and is really a development of theword “readily”. We agree with the noble Lord, LordWalton, that the constitution should be readily available.If we are to have this constitution, it is important thatit is in a format that is accessible to all people, whicheverlanguage they speak and regardless of whether theyare physically challenged in any way. Presumably itwill have to be in Braille and in a format that is easilyread and understood by people with learning disabilitiestoo. If it is to be available, it must be readily availableto all those groups and must therefore be in everyhealth service premises.

I wondered, rather whimsically, whether, on qualifying,all NHS staff—doctors, in particular—should dropthe Hippocratic oath and learn to recite the NHSConstitution before being allowed to practise in theNHS. Alternatively, as used to be the case in somechurches in this country where the Ten Commandmentswere written on the walls, perhaps in each waitingroom of every health service establishment the constitutioncould be available in several languages. It would givepeople something to do other than look at the goldfish;it would be an interesting diversion.

I think that these amendments are very important ifthe constitution is to mean anything. We are notsuggesting that it should be chained to the wall—again,an ecclesiastical reference. It is not a chained Bible butit should be readily available in a form that is understoodby everyone and it should be in every NHS premise.

5.30 pm

Lord Darzi of Denham: Amendments 9 and 25propose that the NHS Constitution and the handbookto the NHS Constitution be “readily available” topatients, staff and members of the public rather than“available” as the clause currently reads. Amendment10 seeks to provide after Clause 3(1) that each of thebodies under a duty to have regard to the constitutionshould display the constitution, and that each of thosebodies must be able to provide a copy of the handbookfor reference.

It is important to reassure the Committee that theconstitution and the handbook will be readily available.As the Constitutional Advisory Forum pointed out inits role as the guardian of the constitution process, acritical success factor in ensuring that the constitutiontakes effect will be the approach taken to communicatingits content. I have no doubt that when we assess theimpact of the constitution we will know the impact ofour communication strategy.

Communication of the constitution will be a corepriority, both locally and nationally. The departmentis working closely with the NHS in developing variousmeans of communications to help the NHS to raiseawareness and promote understanding of the constitutionamong staff, patients and the public. I assure nobleLords that we intend access to the constitution to beas broad as possible. We are devising severalcommunication methods and producing the constitutionin many alternative formats to spread the message.The constitution and the handbook are, of course,available on the internet but, for those who do not

have access to computers, they will be available in hardcopy. NHS bodies will also have access to hard copiesof the constitution and will be supported by theDepartment of Health in promoting it locally.

I can reassure the noble Baroness, Lady Tonge, thatthe constitution will be translated into other languages.It will be available in Braille, in large print and inaudio, and the Government are finalising an easy-to-readguide which can be used by children and those withlearning difficulties. All these documents will be widelyavailable.

The communication of the constitution will not bea prescriptive, top-down approach, as we have debatedbefore; it will be for the local NHS organisations todetermine the best place to display the constitutionand the handbook. I have no doubt that PCTs, actingon behalf of their local populations, will find theconstitution an extremely useful tool to help in sharingwith the users of the service what their rights andresponsibilities are.

I hope that I have been able to clarify that it is notnecessary to extend the communication of the constitutionand the handbook from “available”to “readily available”,but if I have not convinced the Committee I shall behappy to look at the matter again and come back to iton Report.

Lord Stoddart of Swindon: I appreciate that thehandbook will be displayed in various places, includingpublic libraries, doctors’ surgeries, hospitals and soon, but the general public need to know that. Thedocument I have here is useful and it would not costtoo much to send it to every household in the country.There could be an edition which informs people wherethey can see the full handbook and directs them totheir nearest public library or wherever else it may be.That would be helpful in letting people know exactlywhat they can expect from the health service and whatduties they have to it. Perhaps the Government willconsider that.

Lord Naseby: I support the noble Lord, Lord Stoddart.I suspect that most of us carry the European healthinsurance card, which has a renewal date on it. Whynot make sure that every time the card is renewed—thisone is due in March 2010—a copy of the document iscommunicated to the individuals who receive the card?

Lord Darzi of Denham: Anything that we can do toenhance communication in this field will be veryimportant. I am not sure whether communication ofthe constitution will be fulfilled through the Europeanhealth card but I shall be more than happy to lookinto that. However, I take the point and could notagree more. We have a document which has been wellreceived by patients, by the public and by the staff whowork in the NHS. The more we communicate aroundthis the better it is for those who receive care from theNHS and those who work within the NHS.

Earl Howe: I am grateful to all noble Lords whohave taken part in the debate. I still have a feeling thatthe word “available” is slightly weak; it is not proactiveenough to convey the full sense of what we all, including


[EARL HOWE]the Minister, would like to see. I was reassured by theintentions that he outlined as regards publicising theconstitution. It is a question of carrying on as we havestarted in that, if the Government do everything theysay they are going to do, that will be great, but wewant to make sure that this effort is maintained overthe years into the indefinite future. Unless that happens,this document, like the late, lamented Patient’s Charter,will disappear off everyone’s radar.

I shall think carefully about what the Minister hassaid between now and Report and decide how best totake the matter forward. In the mean time, I beg leaveto withdraw the amendment.



5.35 pm

Sitting suspended.

5.45 pm

Amendment 11


11: Clause 3, page 3, line 5, at end insert—“( ) The Secretary of State must ensure each of the bodies

listed in section 2(2) reviews and consults with their local authority,on an annual basis, regarding the adequacy of local arrangementsfor ensuring their accountability to the local community throughdemocratically elected councillors.”

Baroness Barker: Amendment 11 brings to the attentionof the Committee a substantial omission within theconstitution, the handbook and the statement ofaccountability, which is the requirement of NHS bodiesto review and consult with local government on theirlocal accountability arrangements.

Despite the long list of bodies referred to by thenoble Lord, Lord Warner, in a previous group ofamendments, the NHS remains largely unaccountableto local people, not least because strategic healthauthorities bear no relation to any other tier ofgovernment. Pretty well the only means of accountabilitylies within local health overview and scrutiny committees.They have the power to scrutinise the operation andplanning of local health services, and they can makereports and recommendations on the adequacy ofcurrent planning and provision.

Strategic health authorities struggle to achieve thelevel of interaction and joint agreement with the NHSthat perhaps was envisaged for them when they werecreated. It is relevant to point out that in the researchdone in 2007 fewer than 10 per cent of non-executivedirectors of health trusts were local councillors. Thatis not in itself a bad thing, and we have no desire toreturn to the old days when local health boards hadlarge numbers of political appointees placed on them.However, it points to a degree of separation betweenlocal authority planning and local NHS planning,

which I think will become more noticeable over thecoming years. It is something that comes to the forewhen resources are scarce.

Why is this important? Not for the first time, politiciansof all parties have been coming to a realisation thatnot just the use of public funds but the way in whichpublic services are designed and implemented locallyhave an impact on the health of an area, and we arebeginning to understand in ever greater detail theeffect that environmental decisions can have on thehealth of a population. The planning of roads andsocial facilities, the location of schools and access tohealthy food within communities are becoming morerelevant and important. There should be a greaterdegree of sharing between the NHS and local authoritiesif there are to be improved health outcomes for localpopulations and if health inequalities are to be reduced.

It is perhaps in the realisation that the currentsystem of health overview and scrutiny committees,notwithstanding the time and effort that local authoritiesput into it, does not work to the satisfaction of everyoneand could be a great deal better. At this moment whenthe Minister has put forward this document, which is Isuppose a statement in time with aspirations for thefuture about how we are to improve the value of theNHS to health within local communities, this requirementto share on a more equal basis with local authoritiesthe mechanisms for accountability should not be overlybureaucratic. People in the NHS should not be fearfulof it, it is just one way of being more effective stewardsof resources that may not diminish, but will be inincreasing demand.

That is why we have tabled this amendment in thisway and I hope that the Minister will find it acceptable.I beg to move.

Lord Walton of Detchant: Perhaps I may raise anote of caution in relation to this amendment, basedupon historical experiences. One or two minor politicalpoints have been raised from both sides of the Committeeand, as a Cross-Bencher, I do not take any politicalstance, as I am sure the Minister will appreciate.

However, I hark back to when I was a member ofthe Newcastle Regional Hospital Board in the late1960s. In 1970 in Newcastle-upon-Tyne the board ofgovernors of the Royal Victoria Infirmary, which haddirect access to the Ministry of Health, as it then was,gave up its governors’ status and a new hospitalmanagement committee was created to embrace allthe hospitals in Newcastle-upon-Tyne. It was a universityhospital management committee made up of one-thirduniversity members, one-third health service staff ofall grades and one-third from the local community.For three years, from 1971 to 1974, it functionedsuperbly.

Along came the Conservative Government, withSir Keith Joseph—later Lord Joseph—as the Secretaryof State for Health. On the basis of a report from themanagement consultancy firm McKinsey, he introduceda system of what he called “consensus management”in the National Health Service. That produced a systemof district, area and regional health authorities. Consensusmanagement resulted in a process whereby the decision-making machinery absolutely and totally congealed.


There was no way of reaching a decision. You had togo through 14 committees if you wished to appoint anew registrar, for example. The system was an unmitigateddisaster. We struggled along for a few years—I wasdean of a medical school at the time—before, a fewyears later, the Labour Government came in. MrsBarbara Castle, later Baroness Castle, was then theSecretary of State for Health. She published a WhitePaper entitled Democracy in the National Health Service,which doubled the number of local authority memberson the health authorities, the result of which—let usnot be pejorative about it—was that the local authoritiestended to appoint to the health service bodies not themost able and outstanding of local councillors butthose for whom they could not find any other job. Theresult of that was that the decision-making machinerybecame worse, in that many of the members of thelocal authorities appointed to those bodies spent mostof the time arguing for the health services in their localconstituencies and the situation became disastrous.

The noble Lord, Lord Stoddart, who is not here,called for a Royal Commission on the NationalHealth Service. In fact, a Royal Commission wasestablished under the late Sir Alec Merrison andreported in 1980. It at last did something to sort outthe appalling administrative mess resulting from thosevarious actions. Since then, the reorganisation of thehealth service has been so much better, but I merelywish to strike a note of caution. There are now manymembers of local authorities who are non-executivedirectors of health bodies of various kinds and makean outstanding contribution, but I want to make itclear that that experience did not enamour me of theidea of major involvement of local authorities in theorganisation of the NHS. It is right that they shouldbe involved, but they should not dominate the bodiesconcerned with NHS delivery.

Baroness Cumberlege: I am in serious danger becauseI forgot to declare my interests—I may feature in theGuardian tomorrow. I should declare that I am anexecutive director of Cumberlege Connections Limited,which is an organisation that concentrates on training.

The noble Lord, Lord Walton, was talking abouthistory. I remember chairing social services for a countycouncil; I then became a district and regional healthauthority chair. In those days, I knew where the overlapslay. I also knew where the voids between health andsocial services existed. I liked local government becauseit had a rigour about it. Knocking on 1,000 doorsevery four years is very salutary, especially when theresident goes in, reaches behind their clock, takes outyour previous election manifesto and quizzes you onthe promises that you made and broke.

The NHS lacks that rigour, that local democracy,and so it has to seek other mechanisms. It compensatesfor it with a whole cat’s cradle of different regulationsof targets, accountabilities, standards, carrots and sticks.It needs that to ensure that it performs and that theGovernment can see where their public money is beingspent.

My experience was a long time ago, but at themoment I am dealing weekly with local governmentand the NHS. I am not sure that an awful lot of

progress has been made in knitting the two organisationstogether in the intervening time. Thirty years ago, Iremember, we coined a phrase “a network of care”and professed our intention that needy people becaught by that net so that they would not fall betweenthe two services. I am not sure quite what happened tothe net, but I do not think that it really worked. Lateron, we talked about a “seamless service”, and we stilldo. We are anxious that people do not fall between theseams, but I am not sure where that has got us either.

As the noble Baroness, Lady Barker, said, we needto strengthen the accountability in the NHS; we needto strengthen joint working with social and social careservices. The overview and scrutiny committees havebeen a brave attempt to do that. From talking to thepeople who have been before them and who have runthem from local government, I believe that in someplaces they are really working very well. The localauthority is thoughtful, knowledgeable and constructivein its criticism of the NHS. In other places, the localauthorities have proved to be ill informed, overlypolitical and destructive, and have jeopardised anysort of joint working. But this is early days. We have alot to learn from each other, to spread good practice.

On commissioning, I think that the NHS has a lotto learn from local government, which embracedcommissioning 25 years or so ago. I know that somejoint commissioning is being trialled and I hope thatwill prove to be fruitful. However, I have a bit of aproblem with the amendment. Although I absolutelysupport the intentions behind it, I am not sure aboutthe last part of the amendment where it refers to,“accountability to the local community through democraticallyelected councillors”.

It is the word “through” that could raise a lot ofproblems. I should be interested to hear the Minister’reply to the amendment. I share the sentiment behindit, but it may not be quite the way forward.

6 pm

Baroness Young of Old Scone: Like the noble Baroness,Lady Cumberlege, I declare an interest as chair of theCare Quality Commission, which in 36 days will becomethe only regulator in the world covering both healthand social care. I hope that it will be able to play a rolein some of the issues that the noble Baroness raised.

On a technical point on the amendment proposedby the noble Baroness, Lady Barker, the list in Clause 2(2)contains two different sorts of organisations—first,providers of care on either a regional or a local basisand then, at the end, the two regulators, Monitor andthe Care Quality Commission. It would be slightlystrange if this requirement, which is really about localaccountability and the local joining up of services,also caught up the two regulators in the process. Thatwould probably need amendment. The regulatory bodiesare established on a national basis to do their task—andit would probably be at odds with the Care QualityCommission’s role in particular in assessing theperformance of local authorities on their adult andsocial care responsibilities.

I would not contest the principles that the nobleBaroness, Lady Barker, is espousing of the need fordrawing up close working arrangements at a local


[BARONESS YOUNG OF OLD SCONE]level. I hope that the new comprehensive area assessmentprocess will play a role in ensuring that that happens.But on the technical point, I do not think that the tworegulators should be caught up with this.

Lord Darzi of Denham: Amendment 11 wouldrequire all NHS bodies, including foundation trustsand special health authorities, Monitor and the CareQuality Commission to consult their local authorityevery year on the adequacy of their localaccountability through their local councillors. I agreewith the sentiment that it is vital for the NHS toengage with its local populations and with its keypartners, such as local authorities. However, I donot believe that it is necessary to place such arequirement on the NHS. We have already introduceda comprehensive framework of policies, which I shallgo through, to strengthen the accountability of theNHS. This includes giving councils the power toreview and scrutinise local health services;introducing foundation trusts, with their membershipsystems; putting a legal duty on the NHS to involvelocal people in its decisions about services; andintroducing local involvement networks. Thesereforms are backed up by the world-classcommissioning programme, which holds primary caretrusts to account for their performance, includinghow well they engage with their local population.

I distinctly remember the debate on this over theyear when we put the constitution together. It is interestingto see my noble friend Lady Jay here, as she was also amember of a think tank as part of the King’s Fund,which was looking at the accountability of the NHS.It debated in significant breadth what the bestmodel was.

The statement on NHS accountability, which waspublished alongside the NHS Constitution, showsthat there are a number of ways in which PCTs arefree to adopt local views, and I shall go through themagain. They include: inviting local councillors ormayors on to their boards; increasing the integrationof commissioned services through joint planningarrangements—there are numerous examples of jointcommissioning; it is working well and we have seenthe fruits of it; creating a local membership system;joint appointments of senior executives; formalpartnership arrangements; and pooled budgets, whichwe will talk about in due course.

As the noble Baroness, Lady Barker, said, it is alsocritical that the public know how the NHS is accountableat a local level and how they can get involved in theaccountability structure. That is why we set out veryclearly some of the mechanisms that I described in thestatement of NHS accountability, which, as I said, waspublished alongside the constitution. This is a public-facingdocument which explains roles, responsibilities andaccountability in the NHS.

I think I have demonstrated that there is already anextensive system of local accountability in the NHS,and the NHS is of course always working to improvethe way in which it involves local populations andworks with local authorities. It is also not the case thatthe only mechanism for local accountability is through

local councillors. I hope that I have reassured thenoble Baroness that over the past year we have workedto improve the framework of accountability and thatshe is able to withdraw her amendment.

Baroness Barker: I thank noble Lords for theircontributions to this debate. I start by assuring thenoble Lord, Lord Walton, that it was not my intentionin any way to reinvent the horrors of the 1970s,reconstituting effective bodies and replacing them withwholly ineffective ones. I had hoped that we weretalking about something that reflected more the lessonsof the past 30 years.

I absolutely do not underestimate how difficult it isto get the NHS and social care to work togethereffectively. Some people in both areas have spent theirentire professional lives trying to make that happenwith varying degrees of success, and some of thembear the scars. I certainly was not trying to advocateany kind of situation in which local councillors wouldbe allowed to dominate health decisions. That wouldnot be right. However, over the past 30 years wehave come to recognise that for effective planning ofhealth and social care services all sorts of peoplewith professional knowledge—and, thinking abouthousing, in some cases technical knowledge—need tobe involved on an equal basis in discussions with thepolicymakers.

I should like to ask the noble Lord, Lord Darzi, onequestion, although I do not expect him to come upwith an answer instantly. How many PCTs invitecouncillors to be on their boards? I understand thatthere are examples of good practice but I should liketo know how prevalent it is and how it works to goodeffect.

I accept some of the criticisms about some of thewording in the amendment. It was not an attempt onour part to say that local councillors are the onlymechanism for local accountability; none the less, theyare a pretty important one. I say to the noble Baroness,Lady Young of Old Scone, that we have hadcomprehensive area assessments for a long time andthey have included health. These have recognised thatwe have had a health oversight and scrutiny committeebut that it has not worked, so we need to move a bitfurther. I have long thought that one of the big problemsin the NHS is that strategic health authorities do notrelate to any other part of Government. Nevertheless,they exist and I accept that there is no appetite whateveranywhere in the NHS for a restructuring; you have togo with the structure as it is.

For all the flaws in the amendment’s wording, I wastrying to dig out the fact that where health oversightand scrutiny committees see things going wrong andthat the NHS is not having the impact that it should,they do not have a mechanism at the moment toinfluence strategic health authorities. That is a majorgap. If strategic health authorities are to continue tohave responsibility for the performance of PCTs, therehas to be an alignment with social care.

I take entirely the point of the noble Baroness,Lady Cumberlege, that in social services people workto structures and that in the NHS they work torelationships. Happily, sometimes they come together—it


is purely chance if they do—and when they do it isspectacularly creative. However, for quite a lot of thetime it is not.

There is a reason for introducing this provisionnow. I can remember that slightly more than 10 yearsago, when resources were tight, social care and healthservices used to bat patients back and forward in ordernot to pick up responsibility for equipment, drugs orcare. That kind of thing happens when money is tight.It is not yet tight, but it might be. If we can see adeficit—not in places for people to go and play atbeing local politicians—in the understanding of usersof health and social care services of how the resourcesare being used in their area, addressing that situationnow would be very wise.

I have listened to the Minister and to the commentsmade by other noble Lords about the deficiency of thewording. I shall take the amendment away but I maywish to return to the issue in some respects. I beg leaveto withdraw the amendment.



Amendment 13


13: Clause 3, page 3, line 6, at end insert “, local authorities”

Baroness Barker: I shall speak also to Amendments16, 21 and 31. This group of amendments is on asimilar tack. It concerns the list of bodies that are tobe consulted when the NHS constitution is revised10 years hence. There is a presumption that the bodieslisted will still be around and functioning, but thatmay be dreadfully optimistic given the lifespan ofsome NHS bodies over the past few years. None theless, the amendments in the group highlight the concernshared by noble Lords around the Committee that ifthe document is to work in the way envisaged by theMinister, it needs to be, if nothing else, a focal pointfor discussion about how the NHS is working andshould work in the future, and a number of peopleought to be involved as of right, separately and distinctly,in any revision of it. Carers, for example, should notbe swept up in a general category of “the public”because they have a distinct input.

I cannot stress enough that local authorities andrepresentative bodies of local authorities should beinvolved. We will move to a time when responsibilityfor health will go well beyond the National HealthService and on to what remains of the public serviceinfrastructure. If this document takes off and becomesthe progressive tool that the Minister envisages, thenhe has nothing to fear in stating publicly now thatthese groups of people will be involved in its revisionas it goes on with its life. I beg to move.

6.15 pm

Earl Howe: I shall speak to the amendments in thisgroup that are tabled in my name, Amendments 14,15, 17, 19 and 20. One of the surprising features of an

NHS Constitution that is meant to be all about deliveringpatient-centred services to high standards of quality isthat the process involved in the review and revision ofthe constitution is to be anything but inclusive ortransparent. I hope that the Government do not mean this.

We see in Clause 3 that provision is made for theSecretary of State to undertake a consultation beforerevising the constitution. That is fine until we look alittle further on and see how limited is the nature ofthat consultation. Nowhere is there a mention ofcarers; patients are mentioned but not bodies representingpatients or particular groups of patients; and there isno mention of local involvement networks, the bodiescreated by the Government only last year to act aslocal patient watchdogs. I would like to see mentionmade of bodies that represent staff, such as the BMA,the RCN and the other unions—not just, say, a handfulof random NHS employees.

At the end of the consultation exercise, what doesthe Secretary of State have to do by way of publishingthe results of the consultation? Absolutely nothing.He can review and revise the constitution withouthaving to disclose to anyone what feedback he hasreceived, so that it will be impossible for any of us toknow to what extent he has taken account of thecomments made to him. It is a closed process, and thatsurely cannot be right.

There are two reasons why that is not satisfactory.The first relates to specialised services, which got a rawdeal in the NHS Constitution; they are not evenmentioned. There is a paragraph on page 15 of thehandbook about the existence of specialised services,but couched in terms that grossly belittle their importance:

“The NHS also provides access to ‘specialised services’ for thesmall number of people”—

the small number of people—

“who suffer from rare conditions. These specialised services arecommissioned either regionally or nationally from a few specialistcentres, depending on the rarity of the condition or treatment”.

Given that specialised services account for no less than10 per cent of the NHS budget and many hundreds ofthousands of NHS patients, often in the most extremeneed, this seems to be—to put it mildly—inadequaterecognition. The constitution itself, not just the handbook,should enshrine the importance of regional and supra-regional services alongside local planning and provision.It is, after all, this combination of local, regional andsupra-regional that makes the NHS a truly nationalservice.

The second reason why this part of the Bill isunsatisfactory is the absence of any acknowledgmentof patient and public involvement in decision-making.A number of organisations have pointed that out,including the BMA, RADAR and the RCN. Patientand public involvement is mentioned in the constitution,which is well and good, but there is no provision in thisclause for involvement by LINks or bodies like thePatients Association in providing feedback on thedrafting of what is intended to be a key point ofreference for the delivery of health services. It is difficultto involve everyone in a dialogue, but if the Secretaryof State were to have an explicit obligation to publisha report setting out the results of the consultation, it


[EARL HOWE]would at least add a welcome measure of transparencyand make consultees feel that their representationshad been factored in.

One group that feels short-changed is the disabled.RADAR has made clear its disappointment that theopportunity was not seized during the drafting of theconstitution to highlight the full nature of existingrights under the Disability Discrimination Act in relationto equality of access to health services and to treatment.Neither the constitution nor the handbook refers explicitlyto the right to reasonable adjustments for disabledpeople, which is a key provision of the DDA. All thatthe documents mention is the right not to be treatedless favourably on various grounds, which is not at allthe same thing. It would have been very helpful if, atthe very least, the handbook could have given clearinformation about the statutory duties that exist topromote disability, race and gender equality. We knowthat there are large inequalities in access to primarycare on the part of people with mental health problemsand people with learning disabilities. A reminder toPCTs about the need to tackle those would not havegone amiss.

I shall say a brief word about carers. Carers engagewith the NHS in a completely different way fromeither patients or ordinary members of the public.Very often, it is carers who facilitate access to serviceson behalf of the patients they look after, and theirown lives are almost as much affected by the quality ofthose services as those who are in receipt of them. As aresult, they bring a different perspective on how wellor how badly the NHS is meeting patients’ needs. Asthe Minister will know, that valuable difference isrecognised in other contexts, where health bodies arerequired to consult and involve carers. The NHS operatingframework for 2009-10 says that PCTs must devisejoint plans with local authorities to provide carerswith breaks. The Putting People First concordat betweenthe NHS and local government recognises that familymembers and carers are to be treated as experts andpartners in the delivery of care. There is a strong casefor seeking the views of carers whenever the NHSconstitution is being reviewed or revised. I should addthat I am very much in support of Amendment 31 ofthe noble Baroness, Lady Tonge, which says that thethree-yearly report on the practical effect of theconstitution should include a report on how it hasaffected carers.

Baroness Pitkeathley: Your Lordships will not besurprised that I rise to speak in support of the amendmentsabout carers—that is, Amendments 16, 20 and 31. Notincluding carers in this matter is a missed opportunity.That is strange for this Government, who have anexemplary record as far as carers are concerned, whichI acknowledge. I declare an interest as vice-presidentof Carers UK and president of Eurocarers. In thoseroles, I am well aware that what this Government havedone for carers is the envy of the world. We have onlyto look at the national strategy, the Standing Commissionon Carers, Acts of Parliament and the kind of regulationsand encouragements which the noble Earl, Lord Howe,has already mentioned to us. It is a missed opportunityif we do not mention them specifically in this regard.

One of the problems with which the Minister maybe wrestling is the dual role that carers play, becausethey first of all are patients of the NHS in their ownright and have rights in that respect. We should rememberthat three-quarters of all carers—there are 6 million ofthem, as I do not need to remind your Lordships—reportthat their own health, physical, emotional or mental,is adversely affected by the caring role. So they havegreat needs as patients. However, they then have asecond role as suppliers of care. Healthcare does nottake place in a vacuum; nor does it take place inhospitals or surgeries, as we might be forgiven forthinking if we listen to some of the debates in yourLordships’ House. Healthcare takes place largely inyour own home, provided by yourself and your familyand to the value of £87 billion, which is very nearly thecost of another health service.

So carers play sometimes confusing roles which areoften even in conflict. I make no apology for remindingMembers of the Committee of the case that I quotedat Second Reading of the woman who had bowelcancer several years ago. The NHS provides her withexcellent follow-up care, which requires her to have acolonoscopy every year. As someone who has thattreatment, I know that it lays you out for a couple ofdays. This woman cannot take that opportunity becauseshe cannot find anyone to care for her husband whileshe has the treatment.

We need to take very careful account of thosekinds of conflicts when we consider carers. Notincluding them in consultation denies them anopportunity to consider their role, not only aspatients in terms of what they need but in terms ofwhat they can contribute. I hope that the Minister willacknowledge that they cannot just be regarded asbeing in that catch-all term, “the public”. It is logical,consistent and desirable to include carers and I hopethat the Minister will do so.

I support what the noble Earl, Lord Howe, saidabout specialist services. I speak in my role as chair ofthe Specialised Healthcare Alliance. These servicesmay not be known to many people in healthcare butthey constitute 10 per cent of what the health serviceprovides and, as the noble Earl reminded us, oftenserve people in very great need. We have to thinkabout specialised services as well in this context.

Lord Campbell-Savours: I am, as ever, somewhatconfused and find it difficult to understand why aLabour Government have trouble on occasions inusing the words “trade unions” in legislation. A numberof pieces of legislation have gone through Parliamentin recent years which refer to “staff”, but we are neverabsolutely specific. I am not saying that we shouldidentify any particular trade union, but we should be alittle more adventurous in the language we use. Thereis a generic heading, “staff”, in Clause 3(5)(b), whereasin Clause 2(2), paragraphs (a) to (g), there are listed,

“Strategic Health Authorities … Primary Care Trusts … NationalHealth Service trusts … Special Health Authorities … NHSfoundation trusts … the Independent Regulator … the CareQuality Commission”.

Those are specific areas of managerial operation andadministration, but trade unions are not included.


My Amendment 18 would include in this process ofconsultation trade unions and professional organisationsrepresenting staff. I propose the amendment followingmy usual discussions on this Bill and similar Bills withUNISON, a trade union with which I have quite a lotof contact but no pecuniary or financial relationshipwhatever. I should make that absolutely clear.

UNISON, which was formed from three trade unions,NALGO, NUPE and the Confederation of HealthService Employees, will be in the front line in implementingmany areas of this legislation. I should have thoughtthat Ministers would have had immediately in mindthe need to consult trade unions, particularly in thisarea of the Bill which deals with the review of theconstitution.

UNISON supports the introduction of theconstitution and believes that it will help enshrine andprotect the NHS’s vital core principles andresponsibilities. The union welcomes measures in theBill that ensure that every organisation and staffmember working within or on behalf of the NHS willhave to adhere to the constitution and itsaccompanying handbook. Ideally, UNISON wouldwant implementation of the constitution to becovered in the contractual relationships that theprivate sector has with the National Health Service. Itis vital, in the union’s view, that the Bill covers allmodels of provision. It emphasises that a two-tieradherence to the NHS Constitution and handbookmust not be possible, now or in the future inparticular.

The union agrees that the constitution must remaina relevant document but that it is right that the mainreviews take place only once every 10 years. It believesthat this will help to focus the constitution on long-termpriorities and ensure that it remains above shorterterm political debates. The union welcomes the specificnaming of staff as a statutory consultee for any changes.However, it would like assurances that employeerepresentative organisations, such as itself and includingtrade unions, will be specifically consulted as part ofany review process.

6.30 pmThe union believes that revisions to the handbook

should focus only on the technical detail necessary tomake sure that the rights outlined in the constitutionreflect the most recent legislative terminology andorganisational forms and not other matters. The moreaspirational pledges within the constitution should berevisited only in the 10-year review envisaged for theactual constitution. While not wanting to make thehandbook review process too cumbersome, it wouldlike assurances that key stakeholders, including staffand patients—I do not like the word “stakeholders”but I am using it today—are involved with proposedrevisions to the NHS handbook if they go any furtherthan technical amendments.

On Second Reading, my noble friend gave someassurances that such organisations would be consultedwith. However, the union would be keen to see theseassurances in the Bill. They should be, and we shouldnot duck what I believe is a Labour Governmentresponsibility.

Baroness Cumberlege: I have put my name to one ofthese amendments concerning carers. Critical to thesuccess of the NHS Constitution is to recognise howpeople perceive it, use it and, indeed, how the staffwish to work in it. After 10 years we really should havesome sort of an indication about how effective it is.Therefore, I am very pleased that the Government willconsult when undertaking this 10-year review.

I want to say a few words about consultation. Yearsago it was highly valued, but it has always been used asa proxy for giving people some influence over policy ina huge and centralised monopoly-run service. That isone of the ways that we can try to get people to havesome influence. Over the years, we have consulted onso much that it is losing some of its force. Indeed,some people today tell me that they have consultationfatigue as they are consulted on nearly everything thatcomes out. Certainly, it is often thought that it is apiece of bureaucracy that the NHS has to go through.Local organisations perceive that the decisions havealready been taken and that this is just some exercisethat takes three months and has to be gone through.

In the commercial world, as a customer you canusually walk away and find another provider, be it asupermarket or a private healthcare provider if youcan afford it. The business soon knows whether itsproduct is valued. It has to balance the books. If itdoes not, the business simply goes out of business.

The user has little influence in the current NHS.Consultation seems to be the only tool to involvepeople in policy decisions. In time, perhaps directpayments, which we shall discuss later, will make adifference. Until direct payments are established andwe see the result of them, we have to fall back on thisrather barren process of consultation.

I am sure that the noble Lord, Lord Darzi, will sayto me, “Hang on a minute”; when he was drawing uphis document High Quality Care for All, he tookenormous trouble to consult widely. Moreover, he setup structures across every NHS region in the countryto get the views that were incorporated into the overallpolicy. I read in the Second Reading debate that thenoble Baroness, Lady Emerton, said how much pleasureworking with some of these groups gave her. I haveheard other staff say that they felt it was a valuableexercise. It was a massive exercise. It was very wellthought out and structured, and it was expensive intime and money, but it was effective because the nobleLord listened and acted on the views expressed. Ofcourse, the views were not unanimous, but they neverare when you go out to consultation.

I am saying not that consultation never works butthat it does not work very often, and that is particularlytrue when it comes to fraught issues such as closinglocal services. I think that the time has come when wehave to seek some alternative methods of empoweringpatients and the public, but at the moment we have togo with what is on offer.

Although I have enormous sympathy with a numberof the bodies suggested in the amendments, I attachmy name particularly to carers, principally because Iam working with carers and because I am one myself.


[BARONESS CUMBERLEGE]Caring for an elderly, dementing close relative is miserableand life-restricting. However, I know that other carershave a much more difficult life than I do and that theyaddress their difficulties very bravely.

The noble Baroness, Lady Pitkeathley, mentionedthe 6 million or so who literally give their lives foryears on end to care for someone else, and often it isnot a choice but a duty. They are the heroes of oursociety and we should give them all the help that wecan. Knowing their rights as set out in the constitutionwill, I think, help. In 10 years’ time the world will bedifferent and their input in revising the constitutionwill be of considerable value. They have first-handknowledge of the strengths and weaknesses of theNHS and they should be listened to.

In recent years, we have included the word “public”when talking about patients—patient and publicinvolvement, or PPI. It may have been the nobleBaroness, Lady Pitkeathley, who said that when this ismentioned it is usually followed by the plaintive littlecry, “How about the carers?”. Could we adopt thephrase “patient, public and carer involvement”, orPPCI, as part of our regular terminology? That seemsto me to be very simple. Words are important. Theyframe a mindset, and PPCI would become as naturalto us as PPI. It would ensure that carers were alwaysincluded, as they are not patients. Some are patientsin their own right but, in this context, they are peoplewho care for others and are not mere members of thepublic. I think they should have a distinct status inour society and in the legislation that we draw up.

Lord Walton of Detchant: This is an exceptionallydifficult and complex issue. It is clear that in relationto any review of the NHS Constitution local authoritiesmust be consulted. All noble Lords who have contributedto the debate on this group of amendments havespoken very persuasively and with expertise based ontheir personal experience. Plainly, it is important thatcarers should be consulted as well as trade unions andprofessional organisations representing staff, as thenoble Lord, Lord Campbell-Savours, said. Clearly, allthese individuals have an abiding interest in the NationalHealth Service, in the constitution and in any revisionthat may be developed in future.

Incidentally, the noble Earl referred to the BMA. Itis not widely known that the BMA is a registered tradeunion, although it is not affiliated to the Trades UnionCongress. The BMA and the Royal College of Nursingmight be included but what about physiotherapists,occupational therapists, medical technologists and clinicalpsychologists? In the light of what we said about thecrucial importance of the NHS in relation to educationalissues and research, what about the Association ofMedical Research Charities, the Medical ResearchCouncil, the General Medical Council, the bodiesconcerned with the education of nurses and the HealthProfessions Council? One could go on and on. We arein serious danger of going back to the question ofdeveloping a list.

I sympathise with the Minister about the challengewith which he is faced. These are very important issuesand the organisations referred to are vital to the future

of the National Health Service, but how can theGovernment find inclusive terms which embrace thenecessity to consult all these bodies? It is a verydifficult issue. These are all very worthy amendmentsbut, as they stand, they would exclude the possibilityof consulting a large number of other organisationswhich also need to be consulted. Happily, there is aphrase about other organisations that the Secretary ofState may prescribe. That is a very important part ofthis exercise. But I believe that the Minister has a verydifficult task in making these amendments inclusivebut not at the same time too prescriptive in excludingmany other bodies which are vital to the future of theNHS and require to be consulted.

Baroness Howarth of Breckland: My friend thenoble Lord, Lord Walton, is as usual highly eloquentbut, as it is, we already have a list. The list is here.Many of us would make a particular plea for onespecific set of amendments—Amendments 16, 20 and31—about carers. We make that plea partly becausethis Government have done so much to ensure thatcarers are now seen but also because of the particularrole that carers play in supporting the health service. Ispeak as someone who previously might have thoughtthat I know what other members of the public mighthave done, despite having had elderly parents and allthe care that goes on through life. However, recently Ibecame the carer of a cousin with Alzheimer’s inSheffield, and am trying to find my way through anextraordinary maze of health and social care, by whicheven my expertise is totally defeated.

Carers carrying out those sorts of tasks, with thatsort of experience, should be consulted because theyhave a relevant, direct insight into what works andwhat does not work. That is particularly the case withsome of the things that the noble Baroness, LadyBarker, was saying earlier—how social care andhealth care fit together. Unless we have carers in thislist, they may well be seen as ordinary members of thepublic. I feel very different as an ordinary member ofthe public who happens to be linked to St Thomas’Hospital through the LINks programme, because Iam a user of St Thomas’ Hospital, from how I feel asa carer trying to find my way through the maze of theservices 200 miles away from someone over whom Inow have lasting power of attorney, his wife havingdied and since he has no other immediate relative.

I support what the noble Earl, Lord Howe, saidabout specialist services. I alluded to that briefly earlyon in these debates, because those services often getforgotten. I declare an interest as the patron andtrustee of an organisation called Little Hearts Matter,which deals with children with hypoplastic left heartsyndrome and other “half a heart”- type difficulties.Those specialist services are utterly crucial, not only tothe well-being of those children but to their very lives,with the oldest being only 18 and all children beforethat having died. Unless those specialist services areproperly consulted and properly represented, thosefamilies will find that they do not have the kind ofservices in which they can have confidence. They donot want it next door; they want the kind of servicethat will meet their needs.


With all the understanding about lists—and I haveviews about that—I think that carers are an exception.Somehow we must ensure that specialist services areproperly consulted.

Baroness Masham of Ilton: I very much support thenoble Earl, Lord Howe, on specialised services. I declarean interest as someone with a spinal injury. I haveAmendment 126, which relates to services for spinalinjury patients, which are in an absolute crisis situationat the moment because there are not enough beds. Thespecialised services include those with rare conditions,and there are many of them. There are rare cancers,rare neurological conditions, rare heart conditions,rare muscular conditions and rare conditions inchildren—and there are many others. They sometimeshave to travel for miles to get the services they need.Many of them are on orphan drugs.

All this can deal with the commissioning of services,which is becoming exceedingly difficult. For example,some of these patients have a problem with borders. Apatient who lived in Wales, one mile from the orthopaedichospital in Oswestry, was not allowed to be sent there;he had to go to Cardiff. Think of the effect of that onhis family, travelling down to Cardiff. That is anexample of the unnecessary difficulties they face.

I hope that the Minister, with all his experience, willlook at this. It entails NICE, orphan drugs and specialisedservices. It is very important. And, of course, I supportour carers; as has been said, they are vital.

6.45 pm

Baroness Wilkins: I join the noble Baroness, LadyMasham, in strongly supporting the points made bythe noble Earl, Lord Howe, especially in relation tospecialised services and to disabled people who, as wehave heard, have not been well served by the healthservices,. I declare an interest as someone with aspecialist condition.

I also support the points made about carers by mynoble friend Lady Pitkeathley. I know that when I havecomplications due to my spinal cord injury, it is mypartner who then becomes my carer and is even moredependent on the quality of the health services than Iam at that point. I hope my noble friend the Ministerwill be able to respond encouragingly to the pointsthat have been made.

Lord Darzi of Denham: Amendment 13 proposesthat the Secretary of State consult local authorities onany revision of the constitution where they are affected.Amendments 15 to 21 all propose that particulargroups must be consulted during each 10-year reviewof the constitution. Amendment 31 proposes that theSecretary of State’s three-yearly report on the effect ofthe constitution considers the effect on carers in additionto patients, staff and members of the public. Amendment14 would place a duty on the Secretary of State topublish a report on the results of future consultationson any revision of the NHS Constitution. I understandthe intention behind these amendments but it is importantto give some context for the current intention as it isset out in the Bill, and to explain that each of thesegroups is captured in the current drafting of Clause 3.

Amendment 13, tabled by the noble Baronesses,Lady Barker and Lady Tonge, proposes that localauthorities be specifically consulted on any revision ofthe constitution. I shall clarify the purpose of theinterim revisions to the constitution to reassure thenoble Baronesses that those who are affected by anyrevision will indeed be consulted.

The constitution is intended to be an enduringdocument, and any substantial changes should bemade as part of the 10-year review. However, it ispossible that changes in law or departmental policywill cause parts of the constitution to become out ofdate. We do not believe that it would be right to waituntil the next 10-year review before making such relativelyminor revisions, which is why we have made provisionin the legislation for the Secretary of State to revise theconstitution.

Clause 3(3) ensures that the Secretary of State willbe under an obligation to consult those who would beaffected by any revision. He must consult,“other persons as appear to the Secretary of State to be affectedby the proposed revision”.

That would include local authorities, where they areaffected. We have deliberately chosen not to specifywhich bodies must be consulted on revisions to theconstitution, as there may be some revisions that arenot relevant to them. We do not believe that it wouldbe logical to impose a legal obligation on the Secretaryof State to consult specific bodies if the proposedrevision did not affect them in any way. However, Ireassure the Committee again that where a revisionaffects certain bodies, it is fully our intent to consultthem.

Lord Campbell-Savours: My noble friend says thatit is not specific in the sense of identifying individualbodies. However, Clause 3(5)(d) states,“the bodies and persons listed in section 2(2)”.

Seven of them are then laid out. So it is specific andidentifies individual organisations, some of which maynot be affected by any particular proposed amendmentor revision.

Lord Darzi of Denham: I am grateful for thatintervention. I am referring to revision of the constitution,which could happen much sooner than in 10 years,rather than the constitution itself. I am talking aboutminor revisions and changes in policy that may benecessary and about how we consult in relation tothem. I will come back to the issue of the 10-yearreview of the constitution. I agree, though, that localauthorities have been, and will remain, a vital group inshaping the constitution or any future changes.

Amendments 15 and 17, tabled by the noble Earl,Lord Howe, would add to the subsection that requirespatients to be consulted on the 10-year review of theconstitution the words,“including such bodies representing patients as the Secretary ofState considers appropriate”,

and, to the subsection requiring staff to be consulted,the words,“including such bodies representing staff as the Secretary of Stateconsiders appropriate”.


[LORD DARZI OF DENHAM]Similarly, Amendment 18, tabled by my noble friendLord Campbell-Savours, proposes that trade unionsand professional organisations representing staff areconsulted. This makes a reference to the 10-year review.I reassure the Committee that bodies representingpatients and staff, including trade unions and professionalbodies, have been throughout the past 18 months, andwill remain, a vital group in shaping the constitutionand any future changes.

Many patient groups, including the Patients Forum,contributed to the production of the final NHSConstitution, as did many bodies representing staff,such as the NHS Confederation and Unison, as mynoble friend pointed out. I am pleased that the chairof the Patients Forum, Sally Brearley, believes that,

“The NHS Constitution is a very valuable re-affirmation ofthe principles and values of the NHS … It demonstrates thecommitment of Government to the NHS, and of the NHS to itspatients”.

Similarly, the Head of Health at UNISON, KarenJennings, has declared that the constitution,“is a vision of which Nye Bevan could be proud”.

Our intention is to continue to work with as manybodies representing patients and staff as possible inthe 10-yearly review of the constitution in any moreminor revisions where they are affected and, morebroadly, in ensuring that the constitution has a realimpact. However, we believe that the legislation alreadycaptures these bodies in the 10-year review: Clause 3(5)sets out the duty to consult, among others, patients,staff and,“such other persons as the Secretary of State considers appropriate”.

That could include the bodies representing patientsand staff; indeed, I can put on the record our intentionthat such bodies will be consulted on any 10-yearreview of the constitution.

I turn to carers. Amendments 16 and 20, tabled bythe noble Baronesses, Lady Barker and Lady Tonge,the noble Earl, Lord Howe, and the noble Baroness,Lady Cumberlege, propose that carers must be specificallyconsulted on the 10-year review of the constitution, apoint made strongly by the noble Baroness, LadyPitkeathley. Again, I reassure the Committee that werecognise the importance of the role of carers in theNHS and the importance of carers being an integralpart of the constitution.

Indeed, noble Lords will be aware that one of thecore principles of the constitution states that NHSservices must reflect the needs and preferences ofpatients, their families and their carers. I am pleasedthat Carers UK, which we have already mentioned,was able to support the introduction of the constitution,saying that the new NHS Constitution gives carers,“prominence as partners in care. We welcome this as the beginningof a culture change in the NHS towards valuing the extraordinarycaring contribution of ordinary people.”

The Government’s intention is that when the constitutionis reviewed in 10 years, carers will be included in theconsultations. It is also the Government’s intentionthat carers should be consulted on those affected bymore minor revisions of the NHS constitution. Asdrafted, Clause 3(3) and 3(5) refers to the need toconsult members of the public and it was our intention

that carers would be part of that. But I have listened; Iwill take into account what has been said and comeback at a later stage having looked at the issue morespecifically.

Amendment 19 proposes that local involvementnetworks, or LINks, be consulted on the 10-year reviewof the constitution. Again, the Government recognisethe valuable part that LINks played in shaping theconstitution that is now before the Committee. ManyLINks across England contributed to the consultationprocess, including those at Gateshead, Hull,Gloucestershire and Sandwell. Again, it is our intentionto continue consulting local involvement networks onrelevant matters when reviewing the constitution orwhen the constitution is reviewed in 10 years’ time.

In Amendment 21, the noble Baronesses, LadyBarker and Lady Tonge, propose that local authoritiesbe consulted on the 10-yearly review of the NHSConstitution. Again we understand the importance ofjoined-up care and we believe that local authoritieshave already been captured. I am sorry this goes on;this involves each contributor based on the long listeloquently put by the noble Lord, Lord Walton.

I can reassure the noble Earl, Lord Howe, thatproducing a report on the result of the constitution, asproposed in Amendment 14, is a standard governmentpractice. For this reason, the amendment is unnecessary.I return to the Government’s code of practice onconsultation which sets out that, following a consultationexercise, a summary of any significant comment shouldbe provided. This feedback should normally set outwhat decisions have been taken in the light of whatwas learnt from the consultation exercise. This informationshould normally be published before or alongside anyfurther action. I can put on record that the Departmentof Health has every intention of complying with thiscode of practice when it consults on revisions of theNHS Constitution. Indeed, it has produced a writtenresponse to last year’s consultation on the draftconstitution.

The noble Baroness, Lady Cumberlege, was verykind in relation to the consultation exercise that thenext stage review went through. I agree that some havea cynical view about consultations, mostly clinicalconsultations, which they say bring groups of clinicianstogether to come up with the answer that we want. Farfrom it. The next stage review engaged more than2,000 clinicians, most of whom felt empowered by theconsultation, and what is in front of the Committee inHigh Quality Care for All is, more or less, the policiesthat we captured through consulting with clinicians.What we have done in the constitution is based verymuch on similar principles.

I hope that I have been able to clarify why it will notbe necessary to extend the list of persons or bodies tobe consulted every 10 years. However, I have somesympathy with the persuasive arguments that nobleLords have put forward for recognising certain personsor bodies explicitly. I am more than happy to discussthese in greater detail—carers specifically—and someother groups that have been pointed out in this importantdebate. I shall look again at the drafting of the clauseto ensure that the balance is right in relation to the10-year review and the report, keeping in mind the


advice that I have received from the noble Lord, LordWalton. In giving these commitments to look at theissue again and at the relevant parts of subsections (3)and (5), I hope that the noble Baroness will feel able towithdraw her amendment.

Baroness Masham of Ilton: How important doesthe Minister feel the specialised services are? He didnot mention them.

Lord Darzi of Denham: The noble Baroness will befully aware—and I should probably declare an interesthere—that I work in a specialist hospital. I have a veryhigh regard for specialist services. We have debatedmany times the role of specialist providers. High QualityCare for All and the 10 regional reports show a highregard for specialist services. That is one area in whichI have tremendous confidence, as have, historically,most of those who commission specialist services. Ihope that they will look at their consultative processesin greater detail in future because they are importantservices and are the jewels in the crown of NHSprovision.

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Baroness Barker: On behalf of all noble Lords, Ithank the Minister for the very detailed and consideredresponse that he gave to the debate. It was characteristicallygenerous and assiduous of him. I sincerely thank himfor that.

I thank noble Lords for their contributions. Thisgroup of amendments has answered for me what Imight call Lord Walton’s question: if there is to be alist, who should be on it? I come back to what I thinkis the answer to that. It was enormously helpful tohave explained the distinction between small revisionsto be carried out periodically and the process of the10-year review. The Minister’s general commitment tothe inclusion of a wide range of stakeholders, to usethe jargon, was welcome. The success of this document,once it is launched, does not rest solely with the NHS.It cannot; the NHS cannot implement it all—it has tobe done in conjunction with others. There was recognitionof that in what the Minister said.

To the noble Lord, Lord Campbell-Savours, I say,“Hold on”. At the rate they are nationalising banks,the noble Lord may yet see a piece of legislationcontaining the words “trade unions”, so he should notgive up. Just persist.

It was important to have the discussion aboutspecialised services. There is always a legitimate concernthat those who have specialised conditions tend to bepushed out of the picture by those who have conditionsthat are more prevalent and therefore tend to be farhigher up the political list.

We may have teased out one thing in the discussion.There is a case for putting carers into this. That pointwas made principally by the noble Baroness, LadyWilkins, who talked about the fact that her partnerbecame her carer at a particular point. The question ofwho is a carer and who is not changes over time. Thatis one thing. The second thing is that in the NHS, andincreasingly in social care, there is a more coherent

and consistent view of users and the rights of users.The distinction is that in the NHS it is more likely thatpractitioners will see users without their carers beingpresent and will therefore be less likely to feel comfortablewith breaking clinical confidentiality. Therefore, withall the best will in the world, carers in the NHS are in aslightly different position from those in social care.That is not to say that there is bad practice in socialcare—there is not—but there is a recognition in socialcare that the majority of the work is done by informalcarers and that they have to be involved in their ownright much more so than in the NHS.

For those two reasons, it was very good that wedrew out why carers have to be mentioned distinctly.Nobody wants the review of the constitution to becomea cumbersome exercise, but we want it to be valid andto throw out valid results and challenges to the NHSevery 10 years. That would be a very useful thing todo. With those caveats, I welcome the Minister’s agreementthat he will take away part of our discussion andperhaps refer to it at a later stage. I beg leave towithdraw the amendment.


Amendments 14 to 21 not moved.

Amendment 22


22: Clause 3, page 3, line 17, at end insert—“( ) The review will take into account the role the NHS

Constitution has played in bringing together health and socialcare.”

Baroness Barker: As noble Lords will recognise bythe drafting, this is a probing amendment. I apologisefor the deficiencies in the drafting. The amendmentgoes in part to the ground that the noble Earl, LordHowe, opened up for us in a previous debate. Thereview of the constitution is laid out before us as aprocess or mechanism. There is not a great deal aboutthe substance and objective of such a review. It isself-evident that it will be a process that is gonethrough to try to determine the extent to which thoseprinciples have been upheld. As somebody who, atleast in part, makes their living from helping organisationsto do evaluation processes, I could go on for someconsiderable time about how you evaluate principles. Iam afraid that these days I charge a fee for that, so Iwill not.

It is right for us to probe what the outcome of thereview is meant to be. It is also right that we shouldidentify this one particular area—that is, the reviewtaking into account the extent to which the NHSConstitution has played a role in bringing togetherhealth and social care. I have a particular reason forsaying that. It is possible that the NHS could achievethe aspirations, aims and goals that are set out in theconstitution and handbook. It could do so at theexpense of social care and it could do so at the expenseof the resources that are devoted to social care. Onefundamentally important part of this will be to evaluatethe NHS on the extent to which it, in conjunction with


[BARONESS BARKER]others, achieves the aims and objectives set out beforeit in the constitution. Therefore, it is worth probing inthe amendment—we know a bit about the process—whatthe intended outcome is going to be, and the extent towhich this constitution and its implementation mightact as a magnet for resources drawn from other areasof public services. I beg to move.

Lord Darzi of Denham: Amendment 22 would placea duty on the Secretary of State to take into accountany impact on bringing together health and social carewhen conducting any review of the NHS Constitution.

I think that it would be helpful if I first give somecontext around the proposals for the review of theconstitution. As we have said previously, the intentionbehind the 10-year review is to keep it up to date andto ensure that it remains fit for purpose. It is a way ofensuring that, while remaining an enduring document,the constitution can keep up with changes in policyand the law and with people’s changing expectationsof the NHS.

We have not sought to specify in the Bill particularareas that the review should take into account overand above others, nor do I think that it would beappropriate to do so. I appreciate, however, that thenoble Baronesses, Lady Tonge and Lady Barker, wereconcerned at Second Reading that the NHS Constitutiondid not give enough attention to the interface betweenthe NHS and social care. I should like to reassure heron two counts. First, of course it remains theGovernment’s priority that the NHS and social caresystems should work together as seamlessly as possible.For example, following High Quality Care for All, weare piloting new models of integrated care provisionand looking at innovative ways of improving the interfacebetween health and social care systems. Secondly,although the NHS Constitution is a constitution forthe NHS and not for social care, it highlights throughoutthe importance of joined-up services. For example,one of the seven principles is:

“The NHS works across organisational boundaries and inpartnership with other organisations in the interest of patients,local communities and the wider population”.

The principle goes on to say:“The NHS is committed to working jointly with local authorities

and a wide range of other private, public and third sector organisationsat national and local level to provide and deliver improvements inhealth and well-being”.

The NHS Constitution also contains a pledge on thepart of the NHS to make the transition as smooth aspossible when patients are referred between services.This is particularly relevant to transitions betweenhealth and social care services.

Noble Lords will be aware that Clause 5 wouldrequire the Secretary of State to report on the effect ofthe constitution every three years. Such a report wouldof course look at partnerships and at working acrossorganisational boundaries, given that these are suchimportant themes in the NHS Constitution. The otherissue is whether there should be a social care constitution.One is not planned but we are about to launch a GreenPaper on social care and I have no doubt that that willbe debated in due course.

I hope that I have reassured the noble Baronesssufficiently on this matter for her to withdraw theamendment.

Baroness Barker: I thank the Minister very muchfor that reply. It is worth bringing to mind that a yearago noble Lords—many of whom are here today—queuedup in this Room to take part in the Government’splans for the CQC. It was debated in great detailbecause there was concern that there would be animbalance in the regulatory body as between healthand social care. We may have been paranoid then andwe may be now because we continue to be concernedabout the extent to which health and social care arenot equal partners on the ground. However, I do notthink that we are paranoid. The Wanless report set outhow important it is for the NHS to be fully engagedwith social care planning systems so that the preventiveagenda can be built up and the NHS does not becomea body which stacks up acute needs for the future.That is the important point.

I am intrigued by the idea of a social care constitution.I shall save my detailed views for when we come todebate the Green Paper but I think that it would bemiraculous to draw up a constitution when there is nopolitical or social agreement about what social carelevels of entitlement are or how they should be funded.However, one should never rule out what one does notknow.

For the moment, I shall withdraw the amendment.However, if only one thing were to be prescribed as anoutput for this review process, it should be the NHSConstitution because it is of such fundamental importanceto health, health promotion and the prevention of illhealth. However, due to the lateness of the hour, I begleave to withdraw the amendment.


7.15 pm

Amendment 23

Moved by Earl Howe

23: Clause 3, page 3, line 19, at end insert “and lay a copybefore Parliament”

Earl Howe: This amendment is designed to highlightan anomalous fact as regards this part of the Bill, afact to which I referred earlier, which is that Parliamentis being asked to enshrine “regard to the NHSConstitution” in primary legislation, but at the sametime has no present or prospective opportunity toconsider the contents of that constitution.

This is not just an academic objection. In the end,what it means is that the rights of patients and staff inthe NHS are whatever the Secretary of State says theyare, not what Parliament says they should be. In thissense, Parliament is being asked to sign a blank chequeto Ministers, whether of this Government or of afuture Government. Bearing in mind how seminal adocument and how far reaching in its effects theconstitution is meant to be, I find that troubling anddifficult to accept. The Minister may reply that the


Secretary of State is accountable to Parliament in allthat he does, which is certainly true. I accept—howcould I not?—that it would be completely impossiblefor a Secretary of State to refer to Parliament beforeimplementing each and every executive decision thathe takes. He has to be allowed to get on with his job.

However, the constitution is different from an ordinaryexecutive ministerial decision. It is meant to underpinfor the long term everything that the NHS does and agreat deal of what Ministers are able to do or not todo. With each right that the constitution defines orcreates, it shapes ipso facto future health policy. Arethese not matters which Parliament should be given anautomatic opportunity to scrutinise? One has only tothink of the right to choice that the constitutionenshrines for the very first time to appreciate thatthese are in no sense trivial matters for health policy.However, according to the Bill, Parliament is out ofthe frame as regards approving the document.

The Government have published a separate statementof NHS accountability which makes considerable playof the fact that Ministers are accountable to Parliament.The NHS Constitution itself states, near the beginning,as part of the seventh key principle that,“it is the Government which sets the framework for the NHS andwhich is accountable to Parliament for its operation”.

That is true up to a point, yes, but surely not totally.We do not say that it is up to the Government to setthe framework for the NHS in any way that they want.They cannot, for example, invent foundation trusts orabolish a health regulator without first obtaining theapproval of Parliament. Parliament has a role in definingthe framework for the NHS. Equally, some ministerialdecisions have to come before Parliament in the formof a statutory instrument and cannot become lawunless and until Parliament has signified its approvalor absence of disapproval.

The question for us is whether the NHS Constitutionis of a kind which merits some form of nod to thesovereignty Parliament or whether it is not. I have tosay that I think it is. The Minister has previouslyargued that he does not believe it is appropriate toinclude any element of the NHS Constitution in theBill. We can continue to discuss that. However, theamendment proposes something much more modest.It is merely saying that once the constitution has beenrevised, a copy of it should be placed before Parliament.That duty of placing it before Parliament ties in thelegislature, even if only in a loose way, to the contentof the constitution. I do not think that this is a greatdeal to ask. I beg to move.

Baroness Howarth of Breckland: I support theamendment of the noble Earl, Lord Howe, havingsaid during the debate on the principles that the key tothis issue was the problem of not having the constitutionplaced before Parliament.

Lord Darzi of Denham: The purpose of the amendmentis to place a duty on the Secretary of State to lay acopy of any revised version of the NHS Constitutionbefore Parliament as an Act paper. First, I assure the

noble Earl that I agree with his assessment of theimportance of Parliamentary accountability, but withinthe context of the constitution. I should remind Membersof the Committee that most of the rights in theconstitution are already enshrined in law, with theexception of the three new rights that we debated atSecond Reading.

The Government would always expect to makea document of such importance available toparliamentarians, usually by placing a copy in theLibrary and issuing a Written Ministerial Statement.Indeed, Ministers are bound by the Ministerial Codeto make important announcements such as this toParliament.

The noble Earl will of course be aware that whenthe constitution was published on 21 January it wasaccompanied by a Written Ministerial Statement andcopies were placed in the Library. I do not considerthat it is necessary to lay before Parliament futureversions of the Act paper rather than place them in theLibrary.

Furthermore, the constitution is intended to be apublic-facing document, unlike annual reports or accountsof non-departmental public bodies, which are oftenlaid as Act papers. Indeed, the constitution is a living,although enduring, document, which will be updatedover time. We need the flexibility to alter it, and thecurrent arrangements allow us that flexibility whilegiving Parliament proper sight of the document. Thereis no question of the constitution being changed bythe back door, given our commitment to consult onany revisions, as we debated earlier.

Given my reassurances that we have every intentionto follow parliamentary procedures, I hope that thenoble Earl feels able to withdraw his amendment.

Earl Howe: Those are important reassurances, whichI take on board fully. I was reassured in particular bythe Minister’s mention of the Ministerial Code, whichI hope and believe will pertain throughout futureGovernments. I acknowledge of course that a WrittenStatement was made to Parliament when the presentconstitution was signed. I shall consider carefully whathe said and whether it is sufficient for the purposes ofthis Committee. I was grateful for the support of thenoble Baroness, Lady Howarth, for the amendment.The amendment may be unnecessary in the light ofwhat the Minister said. I shall take advice on thatpoint. In the mean time, I beg leave to withdraw it.


Lord Darzi of Denham: This may be a convenientmoment for the Committee to adjourn until Thursdayat 2 pm.

The Deputy Chairman of Committees (Lord Colwyn):The Committee stands adjourned until Thursday26 February at 2 pm.

Committee adjourned at 7.21 pm.


Written StatementsMonday 23 February 2009

Department of Health: DELStatement

The Parliamentary Under-Secretary of State,Department of Health (Lord Darzi of Denham): Myhonourable friend the Minister of State, Departmentof Health (Ben Bradshaw) has made the followingWritten Ministerial Statement.

Subject to the necessary supplementary estimate,the Department of Health’s element of the departmentalexpenditure limit (DEL) will increase by £26,403,000from £98,565,431,000 to £98,591,834,000 and theadministration cost limit will be increased by £3,280,000from £219,163,000 to £222,443,000. The Food StandardsAgency DEL increases by £700,000 from £137,720,000to £138,420,000. The overall DEL including the FoodStandards Agency will increase by £27,103,000 from£98,703,151,000 to £98,730,254,000. The impact onresource and capital are set out in the following table:

Change New DEL

Voted £mNon-voted £m Voted £m

Non-voted £m Total £m

Departmentof Health

ResourceDEL, ofwhich

98.020 -271.417 94,542.385 -860.463 93,681.922

AdministrationBudget *

3.280 222.443 222.443

Near-cashin ResourceDEL

-119.972 -56.425 89,910.900 588.653 90,499.553

CapitalDEL

101.029 98.771 2,033.840 2,876.072 4,909.912

TotalDepartmentof HealthDEL

199.049 -172.646 96,576.225 2,015.609 98,591.834

Depreciation**

41.592 -16.336 -744.002 -75.736 -819.738

TotalDepartmentof Healthspending(afteradjustment)

240.641 -188.982 95,832.223 1,939.873 97,772.096

FoodStandardsAgency

ResourceDEL, ofwhich

0.250 0.000 136.939 136.939

AdministrationBudget *

0.700 51.140 51.140

Near-cashin ResourceDEL

-0.450 133.800 0.700 134.500

CapitalDEL

0.450 1.481 1.481

Total FoodStandardsAgencyDEL

0.700 0.000 138.420 0.000 138.420

Depreciation**

-1.955 -1.955

Change New DEL

Voted £mNon-voted £m Voted £m

Non-voted £m Total £m

Total FoodStandardsAgencyspending (after adjustment)

0.700 0.000 136.465 0.000 136.465

* The total of administration budget and near-cash in resourceDEL figures may well be greater that the total resource DEL, dueto definitions overlapping.** Depreciation, which forms part of resource DEL, is excludedfrom the total DEL since the capital DEL includes capitalspending and to include depreciation of those assets would leadto double counting.

The Department of Health DEL has increased by£26,403,000 made up of:

the take-up of £3,000,000 (administration costs)end-year flexibility as announced in the provisionaloutturn White Paper (Cm 7419);£30,000 (£-200,000 capital) for adjustments toInvest to Save budget awards;a net transfer of £296,000 (administration costs)from the Cabinet Office for services of theParliamentary Counsel, offset by funding for thecentre of expertise for sustainable procurement(administration cost limit);a transfer of £-16,000 (administration costs) to theDepartment for Innovation, Universities and Skillsfor the skills training strategy (administration costlimit);a net transfer of £-5,025,000 to the Departmentfor Children, Schools and Families mainly forsubstance misuse funding offset by a grant for thechild migrant trusts;a net transfer of £28,318,000 with the Ministry ofJustice mainly for adjustments to prison healthcarebudgets offset by funding for mental health reviewtribunals; anda transfer of £-200,000 to the Statistics Board forinformation on migration statistics.In addition, there is movement from the revenue to

capital DEL of £200,000,000 to allow for increasedcapital investment in the NHS.

The Department of Health’s administration costlimit has increased by £3,280,000 as described above.

The change to the Food Standards Agency elementof the DEL is due to:

a transfer of £450,000 from programme intocapital; andreinstatement of £700,000 non-cash budget to theComprehensive Spending Review settlement position.

ECOFINStatement

The Financial Services Secretary to the Treasury(Lord Myners): My right honourable friend the Chancellorof the Exchequer (Alistair Darling) has today madethe following Written Ministerial Statement.

WS 1 WS 2[23 FEBRUARY 2009]Written Statements Written Statements

The Economic and Financial Affairs Council washeld in Brussels on 10 February 2009. The followingitems were discussed:

Preparation of the meeting of the European CouncilEuropean economic recovery planMinisters held a debate on the current state of

implementation of the European economic recoveryplan (EERP), including a first horizontal evaluationreport from the European Commission. The Governmentare firm supporters of the timely, targeted and temporarymeasures taken at national level under the frameworkof the EERP to stimulate growth in the EU.

ECOFIN exchanged views on the financial aspectsof the Commission’s proposals for energy and broadbandprojects to be funded through the EU budget. TheGovernment will continue to scrutinise the Commission’sproposals in detail.

Key issues paperECOFIN held an orientation debate on the key

issues paper on economic and financial issues for thespring 2009 European Council. The full version of thepaper will be agreed before the European Councilbased on the outline proposed by the presidency. TheGovernment supported the outline, which emphasisesthe serious challenges in 2009 and the remaining needfor action to stabilise financial markets and facilitate aspeedy economic recovery.

Reduced rates of VATFollowing a political discussion by Ministers, the

presidency indicated that it would reflect on how totake the dossier forward in response to the EuropeanCouncil’s request to settle the issue by March. Afurther discussion is expected at the ECOFIN meetingon 10 March, in the run-up to the next EuropeanCouncil, on 19 and 20 March. The Government continueto believe that member states should be allowed theflexibility to apply reduced rates of VAT where theydo not materially affect the functioning of the singlemarket.

General budget of the EU: discharge procedure inrespect of the implementation of the budget for 2007

ECOFIN adopted a recommendation to the EuropeanParliament on the discharge to be given to the Commissionfor implementation of the EU general budget for2007. The UK welcomes the references within therecommendation relating to the key role of memberstates in improving financial management andaccountability of EU funds under shared management.

Other businessShort sellingThe council took note of an intervention by the

Dutch Minister calling for work to enhance greaterco-ordination between member states and at internationallevel on temporary measures aimed at short selling.The Commission and the Committee of EuropeanSecurities Regulators (CESR) will look further intothese issues, which the UK welcomes in the widercontext of effort to improve corporate governance.

Breakfast meeting on the economic situationMinisters discussed the implementation of financial

rescue packages. They agreed that the priority is tofully restore the functioning of credit channels and on

that basis agreed to a set of lines of communication.ECOFIN agreed that, to safeguard banking sectorstability, measures to deal with impaired assets couldusefully complement agreed instruments, consistentwith principles set in October 2008. ECOFIN willcontinue to monitor this issue closely. The UK fullysupports these measures and the ECOFIN lines ofcommunication as the basis of a flexible, co-ordinatedEuropean response to the financial situation.

NATO Parliamentary AssemblyStatement

The Minister of State, Foreign and CommonwealthOffice (Lord Malloch-Brown): My right honourablefriend the Secretary of State for Foreign andCommonwealth Affairs (David Miliband) has madethe following Written Ministerial Statement.

My honourable friend the Member for Wakefield(Mary Creagh) has replaced my honourable friend theMember for Glasgow North (Ann McKechin) as amember of the United Kingdom delegation to theNATO Parliamentary Assembly.

Northern Ireland: Policing and JusticeStatement

Baroness Royall of Blaisdon: My right honourablefriend the Secretary of State for Northern Ireland(Shaun Woodward) has made the following MinisterialStatement.

On 18 November, an historic agreement was announcedby the First Minister and Deputy First Minister settingout a process which would pave the way to the devolutionof policing and justice powers to the Northern IrelandAssembly.

The agreement and the subsequent report of theAssembly and Executive Review Committee on themodalities of devolution contained a number of significantdecisions on the shape of the post-devolution frameworkfor the administration of policing and justice in NorthernIreland.

The Government are committed to helping to movethe process forward in whatever way they can.

I am therefore today introducing a Bill to Parliamentto give effect to those elements of the Novemberstatement and the AERC report that require primarylegislation.

The Bill does not provide for when devolution willhappen, nor does it provide for what is to devolve—bothof these still require further consideration by the partiesand ultimately by Parliament.

It does, however, provide a framework for the post-devolution administration of justice by providing for anew ministerial model which the Assembly can use toset up a new department of justice.

It also provides for certain functions in relation tojudicial appointments and removals to rest with theJudicial Appointments Commission rather than theFirst and Deputy First Ministers.

WS 3 WS 4[LORDS]Written Statements Written Statements

In addition, later this week I will be laying an orderunder Section 17(4) of the Northern Ireland Act 1998to increase the maximum number of ministerial officesto 11. This will enable the Assembly to give effect tothe recommendation of the AERC report that adepartment with policing and justice functions shouldbe established as an additional department to theexisting departments which make up the NorthernIreland Executive. The Assembly is currently preventedfrom establishing an additional department bySection 17 of the Northern Ireland Act, which limitsthe number of ministerial offices to 10.

Separately, I will also commence a number of provisionsunder the Northern Ireland (Miscellaneous Provisions)Act 2006 and the Justice and Security (Northern Ireland)Act 2007. This will ensure that when the NorthernIreland Assembly makes a decision to legislate to setup the new department of justice it has a full range ofoptions to choose from.

There are still important decisions to be taken bythe Northern Ireland Assembly on the timing ofdevolution and on what functions they wish to seedevolve. However, these measures provide the frameworkfor those decisions to be taken and represent anothersignificant step for Northern Ireland on the path tothe completion of devolution.

PoliceStatement

The Parliamentary Under-Secretary of State, HomeOffice (Lord West of Spithead): My honourable friendthe Minister of State for Policing, Crime and Security(Vernon Coaker) has made the following WrittenMinisterial Statement.

I am today placing in the House Library two reports,published on Monday 16 February 2009, which forman important part of our overall approach to removingunnecessary bureaucracy in policing. These are Reducingthe Data Burden on Police Forces in England and Walesby Sir David Normington, the Permanent Secretary atthe Home Office, and the interim report by Jan Berry,the new independent Reducing Bureaucracy Advocate,entitled Reducing Bureaucracy in Policing.

On the same day, the Home Secretary announcedthe next step in common-sense policing by scrapping apolice timesheet, freeing up an estimated 260,000 policehours to focus on cutting crime and driving up publicconfidence. Police officers will no longer have to completean annual analysis form accounting for their activity—astep which alone frees up approximately 150 extraofficers and staff.

Both these documents form part of our overallapproach to reducing the burdens placed on policeforces and reforming processes to free up officers todeal with the issues that matter to people. The Governmenthave rightly committed themselves to freeing up policetime to work with communities to tackle the issuesthat matter to local people. This involves cutting redtape and dramatically reducing administrative taskswhich can take up so much time, including the collectionof data by the Home Office and others. This agenda

was at the heart of the policing Green Paper, From theNeighbourhood to the National: Policing our CommunitiesTogether, published in July last year.

The Green Paper set out a clear commitment toreduce the data collection burden placed on policeforces in England and Wales and Sir David Normington’sreview sets out how the Green Paper’s commitment toreduce by up to 50 per cent the amount of datacollected by the Home Office is to be achieved.

His review contains a number of important proposals,most of which can be implemented in the short term,for:

cutting out altogether or significantly reducing36 data streams;

ending activity based costing, which alone will freeup an estimated 260,000 police hours;

a reduction in ad hoc data requests from the HomeOffice;

a two-year moratorium on requests for new datacollection; and

a “gateway” process to limit requests which falloutside the annual data requirement.

A new data hub will further reduce the burden onpolice forces, dispensing with 40 per cent of datarequests from the Home Office. Taken together thesemeasures will significantly reduce the central databurden imposed by the Home Office and its agencies.

The Home Office is also streamlining the performancemanagement arrangements for police forces by removingpolice targets and replacing them with a new singletop-down target on confidence. We are also continuingto invest in technology to allow officers to spend moretime on patrol. We have now committed £80 millionto delivering an ambitious target to put in place30,000 mobile data devices by March 2010, and thesecond round of funding awards were announced on29 December 2008. The delivery of these mobile devicesto the front line will save an individual police officerup to 30 minutes per shift.

We also used last year’s Green Paper to respond tothe recommendations made by Sir Ronnie Flanaganin his hugely important Review of Policing. It is nowalmost one year on from the publication of Sir RonnieFlanagan’s recommendations and we have madeconsiderable progress in implementing them. Nineteenof his 59 recommendations have already been implementedand the remaining are well on track to be delivered.

One of the most significant changes we have madeis allowing forces to scrap the stop and account form,which if implemented by all forces could save theservice up to 690,000 hours each year.

To build on the progress we have made, we havenow appointed Jan Berry as the new independentReducing Bureaucracy Advocate to provide a nationallead across all the work under way to reduce bureaucracy.

In her report, Jan Berry recognises the amount ofwork being undertaken across government and thepolice service to reduce unnecessary bureaucracy andthe benefits that are already being delivered. Examplesinclude the streamlined processes project in the fourforce pilot areas (Leicestershire, Staffordshire, Surrey


and the West Midlands), the digital recording of interviewsin Lancashire and the use of electronic file building inthe West Midlands.

Jan Berry’s full report will be published later in theyear but her initial findings and recommendations arenow being considered by the Government and include:

support for scrapping time-sheets for police officers;reviewing working practices within forces tosimplify processes;making more use of technology to free up officertime and maximising the use of existing airwaveequipment; andreviewing charging practices to reduce unnecessaryburdens on officers and help them to use theirdiscretion more.Supported by a practitioner group made up of

police officers and staff, Jan Berry is also looking indetail at the bureaucracy involved in 10 time-consumingpolicing processes in order to identify where furthersavings can be made.

There is more to be done, within both the policeservice and the Home Office, and we all must activelyencourage police forces to share good practice andwork collaboratively to adopt measures to reducebureaucracy.

The Home Office will continue to play its part todrive this important reform and I am encouraged bythe progress that we have made since the publicationof the Green Paper last July.

Prisoners: ParoleStatement

The Parliamentary Under-Secretary of State, Ministryof Justice (Lord Bach): My right honourable friend theLord Chancellor and Secretary of State for Justice hasmade the following Written Ministerial Statement.

I have appointed Sir David Latham to be chairmanof the Parole Board from 25 February 2009 for aperiod of 12 months. He succeeds Sir Duncan Nicholin this role.

Roads: CongestionStatement

The Minister of State, Department for Transport(Lord Adonis): My honourable friend the ParliamentaryUnder-Secretary of State for Transport (Paul Clark)has made the following Ministerial Statement.

I am today announcing the second payment tranchefor the urban congestion performance fund that willsee the 10 largest urban areas in England receive afurther £10.7 million to study and address the causesof urban congestion.

My department has a public service agreementindicator regarding journey time on main roads intourban areas. The indicator states that by 2010-11 the10 largest urban areas in England will meet the congestiontargets set in their local transport plan relating tomovement on main roads into city centres. The indicator

will be deemed to have been met if, on target routes inthese areas, an average increase in travel of 4.4 per centis accommodated with an average increase of 3.6 percent in person journey time per mile.

In February the department and National Statisticspublished the Transport Statistics Bulletin for the periodup to quarter 4 2008. This included performance datafor the urban congestion indicator up to the end ofAugust 2008. These data showed that the averageperson journey time across all the target routes hasimproved by 3 per cent between the baseline (using2004-05 and 2005-06 date) and 2007-08. At the sametime the average level of travel fell by 3.3 per centacross all the target routes.

Based on this performance, the £10.7 million paymentwill now be shared between the participating areas asbelow:

Urban Area Tranche 2 Payments

London £3,900,000Greater Manchester £978,356West Midlands £1,064,645West Yorkshire £663,174South Yorkshire £1,042,607Tyne and Wear £873,772Merseyside £889,940Bristol £536,879Nottingham £432,334Leicester £361,226Total £10,742,933

The performance fund is worth a total of £60 millionover four years, and today’s announcement will haveseen a total of £22.7 million paid to the 10 areas. Afurther £35 million is available over the next twofinancial years and will be awarded on a performancebasis.

Shipping: Light DuesStatement

The Minister of State, Department for Transport(Lord Adonis): My honourable friend the ParliamentaryUnder-Secretary of State for Transport (Jim Fitzpatrick)has made the following Ministerial Statement.

I wish to announce that we will be consulting onproposed amendments to the Merchant Shipping (LightDues) Regulations 1997.

On current projections, the General LighthouseFund will incur an estimated funding shortfall nextyear of around £21 million. Recent falls in the investmentportfolio of the General Lighthouse Fund have reducedthe capacity of the fund to defer or spread theseincreases in dues, which are being kept to the minimumnecessary to deliver next year’s funding requirement.The Government have a statutory responsibility toensure that the fund is maintained at an appropriatelevel to meet the operating requirements of the GeneralLighthouse Authorities. Failure to deliver safe maritimeconditions would adversely affect the business interestsof commercial enterprises and the safety of vesselsand their crews.


We are proposing that light dues rates for merchantvessels calling at UK ports will be adjusted from 1 Julythis year by 6p from 35p to 41p per net registered ton(NRT); that the tonnage cap will rise from 35,000 to50,000 NRT, so that the maximum charge per call willbecome £20,500; and that the voyage cap will be raisedfrom seven voyages to nine voyages, so that a vesselwill not be required to pay light dues after nine paymentsare made in the year. A payment is valid for a rollingmonth from the day of payment. Through thisconsultation we are seeking views on a range of optionsfor raising the necessary money.

We have worked with the shipping industry overmany years to reduce the costs of providing generalaids to navigation and the General Lighthouse Authoritiesare rightly proud of their operational and financialperformance where light dues rates have not had torise since 1993 and have actually fallen by over 40 percent against RPI over that period. This has beenachieved through major efficiency gains made by theGeneral Lighthouse Authorities resulting in loweroperational costs of over 20 per cent in the last decade.We will continue to work with the industry and theGeneral Lighthouse Authorities further to improvethe efficiency and effectiveness of the service.

In 2006, when rates were cut by 10 per cent, we hadthe industry’s assurance that as a result of this significantreduction, if the General Lighthouse Fund were toface greater financial demands than it could meet, theindustry recognised that rates would have to rise. Thattime has now come and that is why we are proposingto make these changes to the regulations.

We will continue our negotiations with the IrishGovernment aimed at reaching a new lasting agreementfor funding the work of the Commissioners of IrishLights in providing a whole-of-Ireland aids-to-navigationservice.

Copies of the consultation paper have been depositedin the House Libraries and are available on the DfTwebsite at www.dft.gov.uk/consultations. Responsesshould reach DfT by 18 May 2009.

Taxation: FraudStatement

The Financial Services Secretary to the Treasury(Lord Myners): My right honourable friend the FinancialSecretary to the Treasury (Stephen Timms) has todaymade the following Written Ministerial Statement.

This is to announce a new procedure where HMRCsuspects that there are serious indirect tax irregularities,knowing involvement in transactions that form part ofa missing trader intra-Community (MTIC) fraud andhave reason to believe dishonest conduct has occurred,where neither criminal investigation nor the civilinvestigation of fraud procedure outlined in Code ofPractice 9 (2005) is appropriate.

Code of Practice 9 (2005) covers HMRC investigationsof suspected serious fraud against the Exchequer where,for policy or operational reasons, it is consideredinappropriate to launch a criminal investigation. Wherecases are not suitable for Code of Practice 9 (2005) orcriminal investigation, for indirect taxes, there is already

a procedure for penalties to be imposed for dishonestconduct in cases involving lower level fraud set out inNotice 160 (Inquiries into Indirect Tax Matters (2007)).

This Statement introduces a new notice, Notice 161,which explains how inquiries into serious indirect taxirregularities will be handled in cases involving transactionsthat form part of an MTIC fraud and where HMRChas reason to believe dishonest conduct has occurred.

The procedure complements HMRC’s policy ofproviding a level playing field for all businesses bysupporting those who wish to comply but dealingseverely with those who seek an unfair advantagethrough non-compliance. It will be used in cases whereHMRC suspects knowing involvement in transactionsthat form part of a (MTIC) fraud.

A copy of the new Notice 161 is being placed in theHouse of Commons Library.

Terrorism: FinanceStatement

The Financial Services Secretary to the Treasury(Lord Myners): My honourable friend the EconomicSecretary to the Treasury (Ian Pearson) has todaymade the following Written Ministerial Statement.

In a Written Ministerial Statement on 10 October2006, the then Economic Secretary undertook to reportto Parliament on a quarterly basis on the operation ofthe UK’s counterterrorism asset freezing regime. Thisis the ninth of these reports and covers the periodOctober to December 2008.1

Asset-freezing designationsIn the quarter October to December 2008, the

Treasury made one domestic designation under theAl-Qaida and Taliban (United Nations Measures)Order 2006.

There were three financial sanctions listings at theUN, and none at the EU, in relation to terrorism, oral-Qaeda and the Taliban, of persons with links tothe UK.

As of 31 December 2008, a total of 253 separateaccounts containing just over £632,5002 of suspectedterrorist funds were frozen in the UK.

ReviewsThe Treasury keeps domestic asset-freezing cases

under review. Ten formal reviews have been completedin this quarter; five persons or entities were de-listed,with the remaining five continuing to be listed.

LicensingIn accordance with UN Security Council Resolution

1452 (2002), the Treasury operates a licensing systemwhereby designated persons and others are able toapply to make or receive payments under specific and,if necessary, monitored conditions. In this quarter, thefollowing licences were issued to listed persons:

nine listed persons were granted legal expenseslicences;15 listed persons were granted a basic expenses(including licences for benefits payments); and


one listed person was granted a licence forextraordinary expenses.In this quarter no household of listed persons was

granted benefits licences.LitigationJudgment on the Treasury’s appeal against the High

Court ruling in the case of A, K, M, Q & G v HMTreasury, in which the judge ordered that the relevantlegislation be quashed, was handed down by the Courtof Appeal on 30 October 2008. The Court of Appealoverturned the High Court’s decision. The Court ofAppeal upheld the terrorism order (although it severedthat part of the order that it concluded was ultra vires)and the al-Qaeda and Taliban order, confirming thatthe Government acted lawfully in making these orders.This judgment ensures that the UK is able to maintainan effective terrorist asset-freezing regime in accordancewith our UN obligations.1 The detail that can be provided to the House on a quarterlybasis is subject to the need to avoid the identification, directly orindirectly, of personal or operationally sensitive information.2 This figure reflects account balances at time of freezing andincludes approximately $58,000 of suspected terrorist fundsfrozen in the UK. This has been converted using exchange ratesas of 31.12.08. Future fluctuations in the exchange rate mayimpact on the contribution this sum makes to future totals ofsuspected terrorist funds frozen.

ZimbabweStatement

The Parliamentary Under-Secretary of State,Department for Communities and Local Government(Baroness Andrews): My right honourable friend theMinister for Local Government (John Healey MP)has made the following Written Ministerial Statement.

There are an estimated 3,000 British citizens andBritish nationals in Zimbabwe with the right of abodein the UK who are 70 or over or who are vulnerablebecause of their care needs or medical conditions.

The Government’s advice to vulnerable British peopleand their families has been that if they are concerned

about the situation in Zimbabwe they should considertheir need to remain. This advice has been unchangedsince 2007 and still stands.

But the Government are concerned about older andvulnerable British people who may be increasinglyunable to support themselves in Zimbabwe and whoare unable to return to the UK without assistance. Werecognise that a power-sharing accord has now beenagreed and that Morgan Tsvangirai was sworn in asPrime Minister on 11 February. However, some Britishpeople have been badly affected by the collapse ofZimbabwean infrastructure and we cannot expect thisto be put right overnight. They are facing severedifficulties getting access to the food, medicines andcare that they need.

The Government are therefore ready to offer assistancein resettling in the UK to those older and vulnerableBritish people who are unable to make their ownarrangements to leave and unable to support themselvesfinancially in Britain. The Government are makingarrangements to receive, assess needs and supportthose eligible British citizens and British nationalswith the right of abode who wish to resettle in the UK,including early access to benefits.

We are putting in place reception arrangements andprovision for appropriate accommodation and support.The Local Government Association, ADSS housingassociations, local authorities and charities are involvedin discussions on practical support and funding. Thecosts of this programme will be met by Government.

This is a cross-government programme, involving anumber of departments, which the Prime Minister hasasked me to co-ordinate.

We are informing older and vulnerable British peoplein Zimbabwe of the assistance available through theBritish embassy in Harare. It is difficult to anticipatethe extent of interest in this offer, but we estimate thatup to 750 people may wish to come to the UK over18 months.

The British embassy is not advising British peopleto leave Zimbabwe and continues to provide a fullrange of consular services to those who remain.


Written AnswersMonday 23 February 2009

Armed Forces: AircraftQuestions

Asked by Lord Moonie

To ask Her Majesty’s Government when theKing Air 350 aircraft undergoing conversion will beavailable for operational deployment. [HL517]

To ask Her Majesty’s Government what is thecost of the King Air 350 conversion programme;and whether it is being procured as an urgentoperational requirement. [HL518]

To ask Her Majesty’s Government what alternativeswere considered for the requirement for which KingAir 350 aircraft are being converted; and whichcompanies were issued with requests for proposals.

[HL519]

The Parliamentary Under-Secretary of State, Ministryof Defence (Baroness Taylor of Bolton): Four King Air350 aircraft have been procured at a cost in the regionof £70 million, as an urgent operational requirementto support enduring operations this year. Although arange of aircraft were considered, only the King Air350 met our key user requirements.

Armed Forces: Civilian LifeQuestion

Asked by Lord Dubs

To ask Her Majesty’s Government whatarrangements are currently made to assist servicepersonnel returning from active service in Iraq andAfghanistan to adjust to civilian life. [HL1256]

The Parliamentary Under-Secretary of State, Ministryof Defence (Baroness Taylor of Bolton): The Questionbridges two related areas; first, enabling personnel toadjust to life back at the home base and secondly,arrangements for resettlement to assist personnel makingthe transition to civilian life.

The services aim to manage in an appropriate mannerthe return from the rigours of active service to the verydifferent conditions pertaining at home, acknowledgingthe stresses to which personnel have been subjected.The three services accord this normalisation process ahigh priority; although their procedures, which meettheir particular needs, differ. All personnel are given aseries of briefings covering a wide number of relevantissues such as driving safety, relationship expectationmanagement and coping with stress. They are alsogiven relevant points of contact to whom they canturn should they find themselves in need of help.Where a whole unit has been on active service, itspersonnel go together through a 36-48 hour decompressionpackage in Cyprus. Bespoke arrangements are madefor reservists which include interviews and specificaftercare briefs to ensure that they aware of the supportavailable to them.

The MoD has resettlement arrangements in placefor all service leavers. Those who have served six yearsor more are entitled to the full resettlement programmewhich includes; a three-day career transition workshop,use of a career consultant, -a job finding service,re-training time and a re-training grant. Those whohave served between four and five years are assistedwith job search using career consultants while thosewith less than four years service are advised duringinternal unit resettlement interviews. The standard ofMoD’s resettlement provision was praised in the NationalAudit Office’s July 2007 report Leaving the Services.

Armed Forces: CompensationQuestion

Asked by Lord Morris of Manchester

To ask Her Majesty’s Government what legaland other costs the Ministry of Defence has alreadyincurred and is prepared to incur in contesting theclaim to the High Court for compensation of Britishservicemen who have suffered illnesses (includingcancers, skin defects and fertility problems) due toexposure to radiation from the testing of atomicand thermo-nuclear weapons on the Australianmainland, on Christmas Island and elsewhere inthe South Pacific. [HL1029]

The Parliamentary Under-Secretary of State, Ministryof Defence (Baroness Taylor of Bolton): Legal andother costs incurred up to 16 January 2009 (the latestavailable) were £1,599,640.43. Additional costs will bebilled following the conclusion of the High Court trialon 6 February 2009. Costs thereafter will depend onthe outcome of the trial.

Armed Forces: HelicoptersQuestion

Asked by Lord Astor of Hever

To ask Her Majesty’s Government what are thetypes and models of helicopter in the inventory ofthe Armed Forces and elsewhere in the Ministry ofDefence; how many there are of each; and how theyare allocated. [HL891]

The Parliamentary Under-Secretary of State, Ministryof Defence (Baroness Taylor of Bolton): Details of thetypes and models of helicopters in the MoD departmentalfleet, their numbers and role are shown in the tablebelow:

MoD-Owned

Aircraft type/mark

MoDDepartmental

Fleet (as at31/12/2008) Primary role Remarks

Apache 67 Find/Attack

Chinook Mk 2 34 BattlefieldSupportHelicopter

Chinook Mk 2a 6 BattlefieldSupportHelicopter

WA 1 WA 2[23 FEBRUARY 2009]Written Answers Written Answers

Aircraft type/mark

MoDDepartmental

Fleet (as at31/12/2008) Primary role Remarks

Chinook Mk3 8 BattlefieldSupportHelicopter

Expected toenter servicefrom late2009

Lynx Mk 7 84 Utility/BattlefieldHelicopter

The roles ofMk 7/9 are inthe maininterchangeable

Lynx Mk 9 24 Utility/BattlefieldHelicopter


Lynx Mk 3 34 Utility/ ASW/ASuW


Lynx Mk 8 34 Utility/ ASW/ASuW


Merlin Mk 1 42 Anti-SubmarineWarfare

Merlin Mk 3 22 BattlefieldSupportHelicopter

Merlin Mk 3a 6 BattlefieldSupportHelicopter

Puma Mk HC1 43 BattlefieldSupportHelicopter

Tacticalmovement oftroops,weapons,ammunitionand stores

Gazelle AH 1 96 Commandand Control

Sea King Mk3/3A

25 Search &Rescue

Sea King Mk 4 37 BattlefieldSupportHelicopter

Sea King Mk 5 15 Search &Rescue

Sea King Mk6CR

5 BattlefieldSupportHelicopter

Sea King Mk 7ASaC

13 AirborneSurveillance

Agusta A 109Mk 1/1a

4 Utility

Dauphin (N3)AH Mkl

4 Utility Expected toenter serviceduring 2009

Leased aircraftie Commercially owned military registered (COMR)

or commercially owned commercially operated (COCO)

AgustaA109E Power

3 V/VIP COMR lease

AS365N2(Dauphin)(RN)

2 TrainingSupport

COMR lease

Griffin Mk l/2(Bell 412)

15 Training/Search &Rescue

COMR lease

Bell 212 AHMk 1

7 TrainingSupport

COMR lease

Squirrel HTMk 1/2(AS350BB)

34 Training COMR lease

SikorskyS61N

2 Logistics lift COCO lease

Armed Forces: MinesweepersQuestion

Asked by Lord Moonie

To ask Her Majesty’s Government what are thescheduled decommissioning dates for each of theHunt class minesweepers currently in service.

[HL1317]

The Parliamentary Under-Secretary of State, Ministryof Defence (Baroness Taylor of Bolton): I refer mynoble friend to the Answer given by the Minister ofState for the Armed Forces on 3 September 2007(Official Report, col. 1632W) in another place to thehonourable Member for Woodspring (Dr Fox).

Armed Forces: PersonnelQuestion

Asked by Lord Wallace of Saltaire

To ask Her Majesty’s Government what is therank of the senior British officer in post at (a) RAFMenwith Hill, (b) Diego Garcia, and (c) RAFMildenhall. [HL1543]

The Parliamentary Under-Secretary of State, Ministryof Defence (Baroness Taylor of Bolton): The rank ofthe senior British officer in post at RAF Menwith Hillis a squadron leader, in the British Indian OceanTerritory (including Diego Garcia) a commander (RN),and at RAF Mildenhall a wing commander.

Armed Forces: Post-Traumatic StressDisorderQuestions

Asked by Lord Dubs

To ask Her Majesty’s Government how manyplaces they provide in medical facilities for servicepersonnel suffering from post-traumatic stress disorder.

[HL1257]

To ask Her Majesty’s Government whether thereis a waiting list for places in medical facilities forservice personnel suffering from post-traumatic stressdisorder. [HL1258]

The Parliamentary Under-Secretary of State, Ministryof Defence (Baroness Taylor of Bolton): The provisionof mental health services for service personnel is theresponsibility of the Defence Medical Services (DMS).For personnel suffering from post-traumatic stressdisorder (PTSD) treatment is provided on a case-by-casebasis and tailored to the specific symptoms and needsof the patient. All assessments and treatments provided

WA 3 WA 4[LORDS]Written Answers Written Answers

by the DMS are carried out in accordance with NationalInstitute for Health and Clinical Excellence guidelines.

Guidance issued by the surgeon general states thaturgent mental health referrals are to be seen within24 hours by a member of the local military Departmentof Community Mental Health (DCMH) team. Routinereferrals are to be offered an appointment at a localDCMH within 20 working days. There are no indicationsthat these timeframes are being exceeded. Under theMoD’s in-patient contract there are no waiting listsfor admission.

Information on the number of new attendances atDCMHs in 2007 for which an initial diagnosis ofPTSD was given is contained within the UK ArmedForces Psychiatric Morbidity Report which is producedby Defence Analysis and Statistical Advice and isavailable to view on its website at www.dasa.mod.uk/.The report shows that in 2007, out of a total of 5,647patients referred to a DCMH for initial assessment,180 were assessed to be suffering from PTSD.

Asked by Lord Dubs

To ask Her Majesty’s Government whether theyhave conducted any research into the effects ofpost-traumatic stress disorder on propensity to engagein violence. [HL1259]

The Minister of State, Department for Innovation,Universities and Skills (Lord Drayson): The MedicalResearch Council (MRC) is one of the main agenciesthough which the Government support medical andclinical research. The MRC is currently not fundingany research directly related to post traumatic stressdisorder and the propensity to engage in violence.

The MRC is however funding a programme ofresearch relating to the regulation of emotion andemotional information. The programme aims to address:how healthy people regulate and control their emotions;how these regulation processes might break down invarious mental health problems such as depression,post-traumatic stress disorder (PTSD), eating disordersand anger disorders; the ways in which people mightlearn to regulate their emotions better; and the brainregions involved in emotion regulation.

Armed Forces: Religions and FaithsQuestion

Asked by Baroness Warsi

To ask Her Majesty’s Government what religionsand faiths are recognised by the British ArmedForces. [HL1352]

The Parliamentary Under-Secretary of State, Ministryof Defence (Baroness Taylor of Bolton): The ArmedForces encourage people from all faiths to practisetheir religious observances as far as operational andhealth and safety considerations allow. While religionand belief is treated as a private matter, the servicesplace a great deal of importance on the spiritualdevelopment of their personnel. Commissioned ArmedForces chaplains are drawn from the main Christiandenominations practised in the UK. The first MoD

civilian chaplains to the Armed Forces from the Buddhist,Hindu, Muslim and Sikh faith communities wereappointed in October 2005. The services have had anhonorary officiating chaplain from the Jewish faithunder long-standing arrangements, and action is underwayto recruit a Jewish civilian chaplain.

Armed Forces: RetirementQuestion

Asked by Lord Laird

To ask Her Majesty’s Government whether everyformer member of the Army who retired due todisability as a result of service and who did notreceive their related allowances tax-free has nowhad the tax-free element refunded with interest; ifso, at what interest rate; if not, whether all applicablerefunds will be paid; and how many cases therehave been. [HL1063]

The Parliamentary Under-Secretary of State, Ministryof Defence (Baroness Taylor of Bolton): In 1998, it wasdiscovered that a number of service invaliding pensions,paid to Army veterans, that should have been tax-freebecause they were attributable to service, had beentaxed in error. All the identified errors have now beenrectified.

Her Majesty’s Revenue and Customs has paid backtax to all 1,320 pensioners affected by the incorrecttaxing of invaliding pensions together with simpleinterest at the repayment supplement rate. It is notpossible to provide a definitive reply of the interestrates used as a different repayment supplement rate orrates will have been paid to each individual accordingto when the overpayment occurred.

It was also agreed that compensation outside thenormal six-year repayment period was to be paid byapplying compound interest rates, using retail priceindex rates plus 2 per cent, to the tax wrongly deducted,net of the estimated repayment by the Inland Revenue.

Asylum SeekersQuestions

Asked by Baroness Miller of Chilthorne Domer

To ask Her Majesty’s Government in respect ofwhich countries, or regions of countries, they donot carry out forced removals of refused asylumseekers, because of conflict or violence which makesit unsafe for them to be returned at the current time.

[HL1363]

The Parliamentary Under-Secretary of State, HomeOffice (Lord West of Spithead): We do not accept thatthere is currently any country in the world where it isunsafe for returns to take place on a blanket basisbecause of conflict or generalised violence. Instead, allcases are considered on their individual merits inaccordance with our obligations under the refugeeconvention and the European Convention on HumanRights. Those identified by the decision-making processand the independent appeals process not to be in need


of international protection are expected to leave theUK voluntarily. Failed asylum seekers can and dovoluntarily return to all countries of the world. Thosewho do not leave voluntarily may have their returnenforced.

We announced in September 2006 that we would behalting enforced returns to Zimbabwe and we are notcurrently enforcing the return of Zimbabwean nationals.

The Asylum and Immigration Tribunal recentlyfound that there is no barrier to us re-starting enforcedreturns for failed asylum seekers to Zimbabwe. Since2006 hundreds of Zimbabweans have voluntarily returnedhome. Those found not to be in need of protectionand who have not left the UK voluntarily can expectto be returned.

Enforced returns of non-Arab Darfuris to Khartoumare currently suspended pending the outcome of anupcoming country guidance case expected to be heardin the summer.


To ask Her Majesty’s Government what is thecost of running the voucher scheme including (a) theadministrative cost of appraising entitlement toSection 4 support; (b) the administrative cost ofrunning an appeals system for those refused supportunder Section 4; and (c) the cost of printing, distributingand facilitating the use of vouchers around thecountry. [HL1366]

Lord West of Spithead: The way that data on thecosts of providing section four support are recordeddoes not enable the separate collation of the administrativecosts of appraising entitlement to Section 4 support,as distinct from other costs such as consultancy, travel,office services and training.

Responsibility for running and funding the AsylumSupport Tribunal which hears appeals by those refusedasylum support or for whom asylum support isdiscontinued rests with the Ministry of Justice, not theHome Office. Appeals may relate to support underSections 4 or 95 of the Immigration and Asylum Act1999.

The costs of printing Section 4 vouchers andadministering and distributing those vouchers is includedwithin the unit costs paid to accommodation providersunder the UK Border Agency’s target contracts. It isnot an additional cost.

BeesQuestion

Asked by Lord Moynihan

To ask Her Majesty’s Government what actionhas been taken under the Government’s BiodiversityAction Plan to protect those species of bee threatenedwith extinction. [HL1338]

The Minister of State, Department of Energy andClimate Change & Department for Environment, Foodand Rural Affairs (Lord Hunt of Kings Heath): ThisUK Biodiversity Action Plan priority list includes

15 species of bee, of which eight species currentlyoccur in England. Work is under way to promote therecovery of these species and their habitats throughenvironmental stewardship and Woodland Grant Schemes.In addition, a project has just begun which aims toreintroduce Bombus subterraneus, which is currentlyextinct in the UK.

Belfast AgreementQuestion

Asked by Lord Laird

To ask Her Majesty’s Government whether, inthe Belfast agreement of 1998, they agreed with theGovernment of the Republic of Ireland the conceptof equality and parity of esteem for all the peopleon the island of Ireland. [HL1185]

Baroness Royall of Blaisdon: The Belfast agreementaddressed the concept of parity of esteem primarilywithin the context of Northern Ireland—in particularthe references to the Equality Commission for NorthernIreland (paragraph 5(e) of the strand one chapter) andthe consideration by the Northern Ireland HumanRights Commission of the scope for a Bill of Rightsfor Northern Ireland (paragraph 4 of the chapter onrights, safeguards and equality of opportunity).

In addition, paragraph 1(v) of the chapter onconstitutional issues of the Belfast agreement (whichis reproduced at Article 1(v) of the agreement betweenthe Government of the United Kingdom and theGovernment of Ireland) committed the two Governmentsto ensuring that:“whatever choice [between remaining part of the United Kingdomor becoming part of a united Ireland] is freely exercised by thepeople of Northern Ireland, the power of the sovereign governmentwith jurisdiction [in Northern Ireland] shall be exercised withrigorous impartiality on behalf of all the people in the diversity oftheir identities and traditions and shall be founded on the principlesof full respect for, and equality of, civil, political, social andcultural rights, of freedom from discrimination for all citizens,and of parity of esteem and of just and equal treatment for theidentity, ethos, and aspirations of both communities”.

Benefits: Disability Living AllowanceQuestion

Asked by Lord Laird

To ask Her Majesty’s Government further to theWritten Answer by Lord McKenzie of Luton on26 November 2008 (WA 296), whether they willconsider non-housing benefits for single peoplecurrently dependent on alcohol or drugs if there ismedical evidence that it would be in the interest oftheir health; and what are the health risks of payingsuch dependent people benefits beyond the basiclevel. [HL1220]

The Parliamentary Under-Secretary of State,Department for Work and Pensions (Lord McKenzie ofLuton): Benefits are awarded to people on the basis ofthem meeting the conditions of entitlement. People


who are dependent on alcohol or drugs have to meetthe same conditions of entitlement as any other claimant.

We have not conducted any research into the healthconsequences of awarding benefits to people who aredependent on alcohol or drugs. However, the measuresincluded in the Welfare Reform Bill currently beforeParliament are intended to support problem drugusers to address their problems and to help them toreturn to work.

Bloody Sunday: InquiryQuestion

Asked by Baroness Wilcox

To ask Her Majesty’s Government what is theirlatest estimate of (a) the current cost per month;and (b) the total cost to the taxpayer of the BloodySunday inquiry. [HL637]

Baroness Royall of Blaisdon: The average cost permonth of the inquiry between April 2008 and December2009 is approximately £373,000.

The total cost of the Bloody Sunday inquiry toDecember 2009 is £186 million. The inquiry’s mostrecent estimate of the final cost is £190 million. Thisincorporates a reduction of approximately 20 per centof the inquiry’s remaining budget, due to a number ofadditional measures which have been agreed with theinquiry to minimise the remaining costs.

Business: SupportQuestion

Asked by Lord Chadlington

To ask Her Majesty’s Government what helpthey are offering in the current economic climate tobusiness owners who have used their house as aloan guarantee. [HL987]

The Parliamentary Under-Secretary of State,Department for Business, Enterprise and RegulatoryReform & Cabinet Office (Baroness Vadera): In January2009 we announced a wide range of measures tosupport individuals and businesses in the current economicclimate. Details can be found in the Real help nowbooklet, available at www.direct.gov.uk/en/campaigns/RealHelpNow/index.htm.

Business owners can additionally find informationand support at www.businesslink.gov.uk/realhelp orby contacting the Business Link Helpline on 08456009006.

Businesses: LiquidationQuestion

Asked by Lord Chadlington

To ask Her Majesty’s Government how manysmall and medium-sized businesses went intoliquidation in 2008. [HL988]

The Parliamentary Under-Secretary of State,Department for Business, Enterprise and RegulatoryReform & Cabinet Office (Baroness Vadera): TheInsolvency Service does not hold information on businesssize and, therefore, cannot provide an estimate of the

numbers of small and medium-sized businesses thatwent into liquidation in 2008.

The total numbers of companies entering liquidationin 2008 have been published and are available on theInsolvency Service website at www.insolvency.gov.uk/otherinformation/statistics/insolv.htm.

Child Protection: WitchcraftQuestion


To ask Her Majesty’s Government how manypeople were (a) cautioned and (b) prosecuted forabuse of a minor related to accusations of possessionor witchcraft in each of the past 10 years. [HL1350]

The Parliamentary Under-Secretary of State, Ministryof Justice (Lord Bach): Information held by the Ministryof Justice cannot separately identify those cautions orprosecutions where the abuse of a minor was relatedto accusations of possession or witchcraft.

Children: RefugesQuestion


To ask Her Majesty’s Government how manyrefuge places were available for children in Englandand Wales, in the years (a) 2005–06, (b) 2006–07,and (c) 2007–08. [HL1423]

The Parliamentary Under-Secretary of State,Department for Communities and Local Government(Baroness Andrews): Communities and Local Government(CLG) does not record these figures for England.Housing is a devolved matter and as such this departmentdoes not hold information pertaining to Wales.

In 2003 the Government announced major investmentin refuge provision in England in 2003-06. A total of£34 million capital was allocated and 511 units ofaccommodation were refurbished or newly built. Morerecently the Hostels Capital Improvement Programme(2005-07) funded six new and refurbished refuges at acost of £4 million.

CLG has also recently commissioned new researchthat will identify the current housing options availableto households at risk of domestic violence, and toassess whether this provision meets current need. Itwill involve establishing the extent and type of temporaryand settled accommodation available for householdsat risk of domestic violence in England, including theprovision of housing related support services deliveredto both temporary and settled accommodation, and tohouseholds’ own homes.

CLG provides essential revenue support forvictims of domestic violence through the SupportingPeople programme—£64.5 million in 2007-08 up from£6l.6 million in 2006-07.


Co-operation IrelandQuestions

Asked by Lord Laird

To ask Her Majesty’s Government further to theWritten Answer by Baroness Royall of Blaisdonon 27 January (WA 34) concerning funding ofCo-operation Ireland, why the Answer referred onlyto the Northern Ireland Office when the Questionwas asked of the Government. [HL1283]

To ask Her Majesty’s Government what financialsupport they have given to Co-operation Irelandsince 1997; for what reason; and whether they willplace the relevant business cases in the Library ofthe House. [HL1286]

Baroness Royall of Blaisdon: Liaison with the charitableand voluntary sectors in Northern Ireland is theresponsibility of the Northern Ireland Administration,as is the funding of any such organisation.

As the Northern Ireland Office manages the interfacebetween the UK Government and the Northern IrelandAdministration, it was therefore the department bestplaced to provide an Answer to the earlier Question.

Correction to Commons Written AnswerQuestion

Asked by Lord Taylor of Holbeach

To ask Her Majesty’s Government further to theWritten Answer by the Parliamentary Under-Secretaryof State for Communities and Local Government,Sadiq Khan, on 14 January (Official Report, Houseof Commons, 772W), why the figure for fires startedby electrical appliances or wiring in 2003 isapproximately one fifth of those in the succeedingfour years. [HL1472]

The Parliamentary Under-Secretary of State,Department for Communities and Local Government(Baroness Andrews): The table provided in the replygiven to the honourable Member for Eastleigh on14 January (Official Report, col. 772W) contained anerror. For the years 2004 onwards, the row containingthe total number of fires in England incorrectly includednon-electrical sources of ignition. Figures relating tothe individual causes of fire were correct however. Acorrect version of the table is provided below. We havearranged for the Official Report to be corrected andhave issued a revised Answer to the honourable Memberfor Eastleigh.

Table 1: Fires in buildings by source of ignition, England, 2003-2007P

Countryandsource ofignition 2003 2004 2005 2006 2007

England 84,802 79,500 75,983 72,451 67,882

Nonelectrical

69,576 63,454 60,221 56,671 52,637

Electrical 15,226 16,046 15,762 15,780 15,245

Cookingappliances

1,386 1,441 1,485 1,502 1,419

Table 1: Fires in buildings by source of ignition, England, 2003-2007P

Countryandsource ofignition 2003 2004 2005 2006 2007

Electricspaceheater

140 136 126 155 190

Plugs 56 55 76 96 81

Socketsandswitches

308 316 362 371 387

Leads toappliances

495 523 434 429 380

Wire andcable

3,276 3,761 3,729 3,914 3,713

Washingmachine

1,075 1,028 992 910 815

Dishwasher 443 427 370 351 381

Refrigerator 628 687 633 559 565

Tumbleand spindriers

853 1,021 999 886 1,005

Lighting 2,417 2,788 2,784 2,780 2,655

Blanketorbedwarmer

252 181 165 133 111

Television 425 524 455 419 438

Iron 60 39 77 85 100

AV, VDUorcomputer

246 271 243 247 232

Otherelectrical

3,166 2,848 2,832 2,943 2,773

P=Provisional—Data for 2007 are provisional and subject tochange

Elections: County CouncilsQuestion

Asked by Baroness Scott of Needham Market

To ask Her Majesty’s Government whether countycouncil elections in Suffolk, Norfolk and Devonwill be taking place in June on current boundaries.

[HL1417]

The Parliamentary Under-Secretary of State,Department for Communities and Local Government(Baroness Andrews): Elections to the county councilsin Devon, Norfolk and Suffolk will go ahead on 4 June2009 as planned on existing boundaries.

Employment LawQuestion

Asked by Lord Dykes

To ask Her Majesty’s Government what changesin employment law they will propose for the EuropeanUnion single market following their discussionswith British trade union representatives. [HL1230]

The Parliamentary Under-Secretary of State,Department for Business, Enterprise and RegulatoryReform & Cabinet Office (Baroness Vadera): The UKhas benefited from the open European single market,including free movement of workers. In responding toproposals in the area of employment law, the UK


seeks to strike the right balance between necessaryprotection for workers and elimination of barriers totrade.

Energy: Fuel PovertyQuestion

Asked by Lord Patten

To ask Her Majesty’s Government what actionthey are taking to support those who live in fuelpoverty in rural communities and are dependent onoil and liquefied petroleum gas for heating, havingno access to the gas network. [HL1200]

The Minister of State, Department of Energy andClimate Change & Department for Environment, Foodand Rural Affairs (Lord Hunt of Kings Heath): WarmFront is the Government’s flagship scheme for tacklingfuel poverty in the private sector in England for vulnerablehouseholders. The scheme currently provides grantsfor specified insulation and heating measures up to thevalue of £2,700 or £4,000 for oil central heating (includingproperties with no access to the gas network).

The Government recognise the specific challenge ofassisting hard to treat properties in rural communities.The Warm Front Scheme Management Board considerson a regular basis whether to approve appropriatealternative technologies for the scheme, where theymight prove cost-effective. The board will considerwhether the technology is readily available and reliable,as well as whether there are sufficiently skilled peopleto install and repair the proposed measure and alsohow easy it is to use. One example is through WarmFront and National Energy Action and we are currentlycarrying out a pilot using solar thermal technologytogether with electric heating.

In addition, Warm Front has a networking teamwhich operates in rural areas to help bring assistanceto vulnerable households in rural communities. Pro-actively engaging with local organisations and area-basedschemes, it helps to increase the take-up of grants andenergy efficiency advice in rural areas.

The Carbon Emissions Reduction Target (CERT)is the Government’s principal policy for driving uphousehold energy efficiency in Britain out to 2011.Under CERT the major energy suppliers have anobligation to direct at least 40 per cent of carbonsavings at priority group households. This includesimportant measures for hard-to-treat homes such assolid wall insulation and central heating. Suppliersinstalled around 80,000 heating measures through fuelswitching in the previous three-year obligation periodto March 2008 (Energy Efficiency Commitment Two).The Government recognised there is a high up-frontcost for these measures and therefore under CERT wehave introduced specific incentives to help improve thefinancial viability of fuel switching, with a particularfocus on homes which are off the gas grid.

The principal barrier to providing new connectionsto communities and households beyond the mains gasnetwork is the cost to the customer. Ofgem recognisesthe benefits that access to gas offers low incomehouseholds and has incentivised the large gas networks

to connect deprived communities under the 2008-2013Gas Distribution Price Control. This packages a rangeof existing funding sources and uses independent gastransporters with an aim of ensuring the maximumnumber of vulnerable and fuel poor households shouldbe connected to the gas network at least cost. Thosehouseholds assisted under the scheme qualify becausethey either reside within the 20 per cent most deprivedareas according to the index of multiple deprivation,qualify for assistance under Warm Front (or similarschemes in the Devolved Nations) or fall within thepriority group under CERT.

Energy: Supply CompaniesQuestion


To ask Her Majesty’s Government further to theWritten Answer by Lord Hunt of Kings Heath on29 October (Official Report, 29/10/08; col. WA176),what steps they will take to encourage energy suppliersto promote the use of electrical appliances at timesof low demand. [HL229]

The Minister of State, Department of Energy andClimate Change & Department for Environment, Foodand Rural Affairs (Lord Hunt of Kings Heath): TheGovernment announced on 28 October their intentionto roll out smart meters to all domestic customers(Official Report, 28/10/08; col. 1515) along with anindicative timetable to complete this by the end of2020. The Government will take further decisions onthe detail of a smart metering mandate in due course,including whether all smart meters should have thefunctionality to support the introduction of time-of-usetariffs.

FluoridationQuestion

Asked by Earl Baldwin of Bewdley

To ask Her Majesty’s Government whether aprimary care trust which has joined the campaignof the National Alliance for Equity in Dental Healthto extend water fluoridation will have a conflict ofinterest if it promotes a local fluoridation schemeunder the Water Act 2003. [HL1281]

The Parliamentary Under-Secretary of State,Department of Health (Lord Darzi of Denham): No,we do not see any conflict. As the chief dental officer’sletter of February 2008 indicates, primary care trusts(PCTs) are responsible for assessing the oral healthneeds of their populations and, where they judge thefluoridation of water to be the best option for meetingthese needs, they may request their strategic healthauthorities to conduct consultations. A copy of theletter has been placed in the Library. In this context,we would expect the PCTs to promote fluoridationduring consultations with, where they judge it appropriate,the support of organisations knowledgeable about thearrangement of fluoridation schemes and their effects.


Gulf War IllnessesQuestions

Asked by Lord Morris of ManchesterTo ask Her Majesty’s Government further to the

work and findings of the Medical Research Council(MRC) on Gulf War illnesses, published in 2003,whether they have asked the MRC for its commentson the report and findings of the Congressionallymandated United States Research Advisory Committeeon Gulf War illnesses, published on 17 November2008; and whether and by whom the MRC’s workand findings have been peer-reviewed. [HL1381]

The Minister of State, Department for Innovation,Universities and Skills (Lord Drayson): The Ministryof Defence have noted that the report published by theUS Research Advisory Committee on Gulf War Veterans’Illnesses has been referred by the Department of VeteransAffairs to the Institute of Medicine for review. TheMinistry of Defence is awaiting the outcome of thisprocess before making any comments on the report(or inviting the MRC to make any comments) anddeciding on any action it may wish to take relating tothe report.

The 2003 MRC review of research into UK Gulfveterans’ illnesses was carried out by the MilitaryHealth Research Advisory Group, an independentgroup of experts in the area. In carrying out its work,the MHRAG conducted a series of workshops toconsult directly with the wider scientific communityand parties interested in the field.

Asked by Lord BramallTo ask Her Majesty’s Government whether they

will ask the Congressionally-mandated United StatesResearch Advisory Committee on Gulf War Veterans’Illnesses to peer review the work and findings of theMedical Research Council on Gulf War illnesses.

[HL1499]

The Parliamentary Under-Secretary of State, Ministryof Defence (Baroness Taylor of Bolton): The 2003Medical Research Council (MRC) review of researchinto UK Gulf veterans’ illnesses was carried out bythe Military Health Research Advisory Group(MHRAG), an independent group of experts in thearea. Its aim was to review the published and emergingscientific findings and to advise on areas for futureresearch. In carrying out its work, the MHRAG conducteda series of workshops to consult directly with thewider scientific community and parties interested inthe field.

The primary research assessed by the MRC in its2003 review of UK Gulf veterans’ illnesses has alreadybeen peer reviewed. No further peer review of theMRC review itself is required.

Gulf War: NAPS TabletsQuestion

Asked by Lord Morris of ManchesterTo ask Her Majesty’s Government further to the

Written Answer by Baroness Taylor of Bolton on22 January (WA 221–22), whether they will ask the

Commission on Human Medicine to review thedecision not to include any restriction onco-administration in the instructions for the use ofthe nerve agent pre-treatment sets (NAPS) tablets,each containing pyridostigmine bromide, used forthe troops deployed to the 1990–91 Gulf conflict inthe light of the findings of the Congressionally-mandated United States Research Advisory Committeeon Gulf War Veterans’ Illnesses published on17 November 2008; and whether they will arrangefor a copy of the letter to be sent by BaronessTaylor of Bolton to be published in the OfficialReport. [HL995]

The Parliamentary Under-Secretary of State, Ministryof Defence (Baroness Taylor of Bolton): As set out inthe Written Answer of 22 January 2009 (WA 221-222),it is necessary to research our records on the issueprior to providing my noble friend with a substantivereply. We will arrange for the letter to be published inthe Official Report, or deposited in the Library of theHouse as appropriate.

House of Lords: Travel InsuranceQuestions

Asked by Lord Dubs

To ask the Chairman of Committees what travelinsurance, including personal medical insurance, isprovided for Members of the House travelling onSelect Committee or other parliamentary business;and how that compares to the insurance arrangementsprovided for Members of the House of Commons.

[HL1378]

The Chairman of Committees (Lord Brabazon ofTara): The House of Lords maintains an insurancepolicy to cover Members for accidents while on theParliamentary Estate, while travelling between homeand the House and while travelling on officialparliamentary business, including Select Committeevisits and parliamentary delegations. Cover is providedfor Members until they have attained their 85th birthday,although medical cover does not apply from the age of75 if the journey is in excess of 30 days. Cover is notavailable for Members’ spouses, civil partners, or childrenand cover is not automatic in respect of travel tocertain countries. The full policy is set out on theparliamentary intranet. Details of the travel insurancearrangements provided for Members of the House ofCommons are also available on the parliamentaryintranet. The most significant difference is that thearrangements for Members of the House of Commonscover spouses.

Asked by Lord Dubs

To ask the Chairman of Committees what travelinsurance, including personal medical insurance, isprovided for staff of the House travelling on SelectCommittee or other parliamentary business; andhow that compares to the insurance arrangementsprovided for staff of the House of Commons.

[HL1379]


The Chairman of Committees: For staff travellingwith Select Committees, the House reimburses thecosts of any reasonable insurance required, and wouldalso reimburse reasonable losses if not covered by aninsurance policy. Staff travelling outside the EU areadvised to take out insurance; staff travelling withinthe EU are advised to carry the European HealthInsurance Card (EHIC).

The House of Lords Staff Handbook makes provisionfor staff travelling on official business other than withSelect Committees as follows:

“30. Staff travelling overseas (and in the UK) are covered fordeath and injury benefits under the House of Lords Staff Pensionscheme.

31. Illness not arising from an accident is not covered by thesearrangements. Staff are expected to pay their own medical ordental charges which will be reimbursed by the House on productionof receipted bills.

32. It is sometimes difficult to obtain medical treatment overseaswithout evidence of private health insurance. Staff travellingoverseas are therefore advised to take out comprehensive travelinsurance to cover health and other insurable losses - money,baggage etc. The cost of the premiums is deemed to be covered bythe elements within the subsistence allowances”.

The House of Commons offers personal accidentand travel insurance cover to staff travelling onparliamentary business outside Great Britain. TheHouse of Commons Staff Handbook provides that“Staff who travel overseas on official business will becovered by the House’s personal accident insurancepolicy”.

Housing North WestQuestion

Asked by Lord Greaves

To ask Her Majesty’s Government what is theconstitution and purpose of Housing North West;how often it meets; who its members are and howthey were appointed; what is its budget; and how itis serviced and funded. [HL1392]

The Parliamentary Under-Secretary of State,Department for Communities and Local Government(Baroness Andrews): Housing North West is a voluntarypartnership between major housing organisations inthe region. Its aim is to provide professional trainingfor housing practitioners in the north-west. It usuallyorganises four or five conferences a year, plus a similarnumber of technical seminars. These events are almostall free of charge to enable all local authorities andhousing providers, regardless of size, to access goodpractice in the region. The membership currently consistsof the Government Office for the North West, theNorth West Leaders Forum, the North West HousingForum, the National Housing Federation and theChartered Institute of Housing. It is funded by voluntarycontributions by member organisations. In the currentyear the organisation received £20,000. Memberorganisations also provide staff time and good will tohelp run the events at minimum cost.

Housing: Energy Performance CertificatesQuestion


To ask Her Majesty’s Government what evidencethey have received on the influence of the introductionof energy performance certificates on the behaviourof buyers when choosing homes. [HL1419]

The Parliamentary Under-Secretary of State,Department for Communities and Local Government(Baroness Andrews): We have commissioned researchto evaluate the implementation of the Energy Performanceof Buildings Directive. As part of this work, the extentto which energy performance certificates have influencedthe behaviour of buyers when choosing homes will beconsidered. The research is due to be completed inSeptember 2009.

Housing: Home Information PacksQuestion


To ask Her Majesty’s Government what assessmentthey have made of the impact of the introductionof Home Information Packs on the housing market.

[HL1418]

The Parliamentary Under-Secretary of State,Department for Communities and Local Government(Baroness Andrews): I refer the noble Baroness to theAnswer given by the Parliamentary Under-Secretaryof State for Housing on 14 October 2008 (OfficialReport, col. 1089W).

Immigration: Detention and RemovalCentresQuestion

Asked by Baroness Hanham

To ask Her Majesty’s Government for how longeach illegal immigrant detainee who has expresseda wish to return home has been held in detentioncentres. [HL648]

The Parliamentary Under-Secretary of State, HomeOffice (Lord West of Spithead): The assisted voluntaryreturn of irregular migrants (AVRIM) programmeintroduced in November 2004 is available to thosewho have entered the UK unlawfully or those whohave breached their conditions of leave to enter orleave to remain. AVRIM is operated on behalf of theHome Office by the International Organisation forMigration (IOM), an independent intergovernmentalorganisation.

We expedite as quickly as possible the removal ofthose who are held in detention and who then apply toreturn under the AVRIM programme. However,individuals may have been detained for some length oftime before making an application under AVRIM and


are subject to the normal requirement to be in possessionof a valid passport or travel document before they cantravel.

Currently, seven individuals who have applied underthe programme are detained in the agency detentionestate while approval for their return is pending. Thetable below gives details of the first date of detentionand the length of detention since the application underAVRIM was received.

Date detainedDate of application

under AVRIM

Number of daysdetained since the

date of application

31 August 2008 29 September 2008 11311 October 2008 20 October 2008 9219 August 2008 26 November 2008 5511 September 2008 1 December 2008 505 December 2008 6 January 2009 1425 November 2008 8 January 2009 1228 November 2005 9 January 2009 11

Immigration: FranceQuestion


To ask Her Majesty’s Government what discussionsthey had with the Government of France regardingthe establishment of the immigration centre in northernFrance, particularly about expectations of the illegalimmigrants who would be housed in it. [HL846]

The Parliamentary Under-Secretary of State, HomeOffice (Lord West of Spithead): The situation in Calaishas been the subject of discussion between Ministersat several bilateral meetings. There is also regularcontact between officials on the provision of servicesto illegal migrants in northern France. The openingand administration of shelters remains a matter forthe French authorities. Alongside the French authorities,we remain firmly opposed to any accommodationcentre that would attract illegal immigrants and thetraffickers who prey on them.

Immigration: Heathrow AirportQuestion


To ask Her Majesty’s Government whether allissues raised in the first annual report of theindependent monitoring board on the short-termholding facilities at Heathrow Airport in April 2008have been addressed. [HL649]

The Parliamentary Under-Secretary of State, HomeOffice (Lord West of Spithead): The IMB annualreport highlighted 11 main issues of concern about themanagement and operation of the short-term holdingfacilities at Heathrow Airport. All of these issues havebeen addressed or are in the process of being so by theUK Border Agency or Group Four Securicor (G4S),who manage the facilities under contract to the agency.

Outstanding issues will be addressed by the opening inspring 2009 of the new facility at Heathrow Airport toreplace Queen’s Building.

The IMB is kept informed of actions taken throughregular meetings with the agency’s detention servicesdirectorate.

Joint Economic CommissionQuestion


To ask Her Majesty’s Government what is theconstitution and purpose of the Joint EconomicCommission for the North West; how often it meets;who its members are and how they were appointed;what is its budget; and how it is serviced andfunded. [HL1391]

The Parliamentary Under-Secretary of State,Department for Communities and Local Government(Baroness Andrews): The Joint Economic Commission(JEC) is set up on a time limited basis to meet as oftenas required to:

assess and monitor the performance of the NWeconomy;agree actions to address the challenges facing theregion and to ensure that the north-west economyemerges from the current downturn stronger thanbefore; andenable the regional Minister to ensure thatdecisions of the National Economic Council(NEC) can be implemented and that informationon impacts in the NW can be fed back to the NEC.It is jointly chaired by the regional Minister, the

right honourable Beverley Hughes MP and the chairof the NWDA, Bryan Gray. Membership comprisesrepresentation from:

Government Office for the North West;4NW;Voluntary Sector North West;NW Learning and Skills Council;Homes and Communities Agency;NHS NW;Job Centre Plus NW;Highways Agency;NW TUC;North West Business Leadership Team;NW Confederation of British Industry;Private Sector Partners;Greater Manchester Chamber of Commerce;Federation of Small Businesses;Environment Agency; andNWUA.Members were appointed from key regional

stakeholders to ensure that public, private and thirdsectors were all represented.

The secretariat is provided jointly by GovernmentOffice North West and the North West Development


Agency. There is no budget attached to the commission.Member organisations cover the costs of agreed actionsand the Government Office for the North West coverscosts attached to the meetings.

Local Authorities: London SnowfallQuestion

Asked by Lord Smith of Leigh

To ask Her Majesty’s Government whether theywill hold an inquiry into the response of localauthorities in London to snowfall on 1 February.

[HL1278]

The Minister of State, Department for Transport(Lord Adonis): It is for the Mayor of London to reviewthe performance of Transport for London during therecent snowfall and to look at its relationship withLondon’s boroughs over their response to clearing theroad network of snow. Beyond this the London RegionalResilience Forum, on which the Mayor is the deputychair, will be considering the extent to which lessonscan be learnt from the response to the recent snow inLondon.

Local Democracy, Economic Developmentand Construction Bill [HL]

Question

Asked by Baroness Hamwee

To ask Her Majesty’s Government how manyofficials have been involved in the preparation ofthe Local Democracy, Economic Development andConstruction Bill; and what they estimate to be thecost of preparing the Bill up to the date of its FirstReading in the House. [HL1420]

The Parliamentary Under-Secretary of State,Department for Communities and Local Government(Baroness Andrews): A team of four policy officialsand two lawyers worked full-time preparing the Billfrom July 2008 until introduction in December. Thecost of this team for this period is estimated at £108,000. Inaddition, a significant number of officials have beeninvolved on a range of policy issues, including specialistsas part of their regular job functions. Cost estimatesfor their time are not estimated or collected.

Local Involvement NetworksQuestion

Asked by Baroness Gould of Potternewton

To ask Her Majesty’s Government how childrenand young people, as citizens, are expected to beinvolved in local involvement networks. [HL1407]

The Parliamentary Under-Secretary of State,Department of Health (Lord Darzi of Denham): Localinvolvement networks (LINks) have been establishedto seek and capture the views and experiences of all

members of the community about their local healthand social care services. There is no single way inwhich LINks go about this; they need to employ avariety of methods to allow as many different peopleas possible to get involved and have their say in waysthat suit them. The Government have, however,emphasised to LINks the importance of actively engagingwith people who have traditionally felt excluded and/orhave found it difficult to make their voice heard.

Ministry of Defence: Sale ofAccommodation

Question

Asked by Lord Wallace of Saltaire

To ask Her Majesty’s Government what plansthey have for the future of the Old War OfficeBuilding; and whether they are considering (a) disposalto the private sector, or (b) conversion for privateuse. [HL1544]

The Parliamentary Under-Secretary of State, Ministryof Defence (Baroness Taylor of Bolton): The Ministryof Defence plans to vacate the old War Office buildingby the end of 2010, and for it to become fully surplusto requirements by 2013. Options for the building’sfuture are currently being developed, and will includepotential commercial sale and public sector re-use.

NHS: Patient RecordsQuestion

Asked by Lord Steinberg

To ask Her Majesty’s Government why the updatingof NHS patients records increased in cost from£2.3 billion to £12.7 billion, as a result of informationtechnology cost over-runs. [HL1375]

The Parliamentary Under-Secretary of State,Department of Health (Lord Darzi of Denham): £2.3 billionwas the budget agreed under the Comprehensive SpendingReview for the first three years of a programme thatwas always expected to take at least 10 years to deliverin full. In its latest report on the programme, publishedon 16 May 2008, the National Audit Office made itclear that there have been no cost increases on theoriginal contracts and that the increase in the eventualtotal cost from an estimated £12.4 billion in 2006 to£12.7 billions in 2008 was attributable to the procurementof additional systems and services. Of this total, some£3.5 billion has been spent to date, as suppliers arepaid only when systems have been successfully deployedand are working satisfactorily.

NHS: Revenue AllocationsQuestions


To ask Her Majesty’s Government further to theWritten Statement by Lord Darzi of Denham on26 January (WS 2–5), whether the revised “weighted


capitation target per weighted head” was the resultof an error or the completion of the review by theAdvisory Committee on Resource Allocation whosefigures for 2009–10 were published on 12 January.

[HL1347]

To ask Her Majesty’s Government further to theWritten Statement by Lord Darzi of Denham on26 January (WS 2–5), why the revised “weightedcapitation target per weighted head”reflects a changefrom a range of £1,402 to £1,896 per head to arange of £1,535 to £1,595; and why 64 out of153 primary care trusts have a revised capitationtarget of £1,535. [HL1348]

The Parliamentary Under-Secretary of State,Department of Health (Lord Darzi of Denham): TheWritten Statement on 26 January (WS 2-5) includedrevised weighted capitation target figures per weightedhead for primary care trusts (PCTs). The revision wasrequired because of an administrative error in thepreparation of the Answer to a Parliamentary Questionon 12 January (Official Report, col. 178W). It was notdue to the completion of the review of the AdvisoryCommittee on Resource Allocation. PCT allocationsfor 2009 to 2010 and 2010 to 2011 based on the newweighted capitation formula recommended by theAdvisory Committee on Resource Allocation wereannounced on 8 December (WS 34-44).

The weighted capitation formula determines PCTs’target allocations based on the weighted needs of eachPCT’S population. Weighted needs reflect the need forhealthcare due to age and additional need over andabove that due to age. The measure weighted capitationtarget per weighted head gives a very similar figure foreach PCT to the average for England. This is becauseeach PCT’s weighted need is included in both theirweighted target and weighted population. The alternativemeasure of weighted capitation target per unweightedhead gives a wider range across PCTs, reflecting PCTs’populations’ relative needs for healthcare services.

North West Regional StrategyQuestion


To ask Her Majesty’s Government from whichbudget the North West Regional Strategy brandingwork RS2010 and brand guidelines were produced;who was commissioned to produce it; and what itcost. [HL1390]

The Parliamentary Under-Secretary of State,Department for Communities and Local Government(Baroness Andrews): The Regional Strategy (RS2010)branding, RS 2010 logo and RS2010 guidelines wereproduced in-house by NWDA marketing staff. Allcosts for producing this piece of work came fromwithin existing staff budgets (no additional staff wereemployed for this work).

No part of this work was commissioned elsewhereand therefore no extra costs were incurred internallyor externally to produce the 2010 logo, branding orguidance.

Northern Ireland Office: EventsQuestion

Asked by Lord Laird

To ask Her Majesty’s Government what eventsthe Secretary of State for Northern Ireland attendedin Northern Ireland during the month of January2009. [HL1287]

Baroness Royall of Blaisdon: My right honourablefriend the Secretary of State for Northern Ireland(Shaun Woodward) regularly attends a wide range ofprivate and public events and meetings in NorthernIreland consistent with the role of Secretary of Statefollowing devolution.

Northern Ireland Parades CommissionQuestion

Asked by Lord Laird

To ask Her Majesty’s Government further to theWritten Answer Baroness Royall of Blaisdon on3 February (WA 111) concerning the NorthernIreland Parades Commission, why a request forinformation was not passed to the commission forreply. [HL1369]

Baroness Royall of Blaisdon: I refer the noble Lordto the Answer I gave on 29 January 2009 (OfficialReport, col. WA 78), which makes clear that, wherequestions are of an operational nature, noble Lordswill be referred to the public body concerned.

Palace of Westminster: PostQuestion

Asked by Lord Norton of Louth

To ask the Chairman of Committees how manyitems of post were received in the Palace of Westminsterin 2008; and what proportion of the total wasreceived in the House of Lords. [HL1458]

The Chairman of Committees (Lord Brabazon ofTara): In total, 4,135,144 items of post were receivedby the Houses of Parliament in 2008. The House ofLords received an estimated 15 per cent of this number,or approximately 620,271 items. These figures do notinclude parcels, courier items or internal mail.

Places of Religious WorshipQuestions


To ask Her Majesty’s Government how manyplaces of religious worship are registered for marriagesunder the Marriage Act 1949, broken down by faithand denomination. [HL1356]


The Parliamentary Under-Secretary of State, HomeOffice (Lord West of Spithead): There are currently24,883 places of meeting for religious worship whichhave been registered by the Registrar General for thesolemnisation of marriages under Section 41 of theMarriage Act 1949. This number is broken down bydenomination as follows:

Roman Catholic 3291Methodist 6265Congregationalist 1240Baptist 3060United Reformed Church 1566Calvinistic Methodist 1052Brethren 737Salvation Army 721Unitarian 159Jehovah’s Witnesses 832Other Christian bodies 4348Muslim 186Sikh 163Other 1263

“Other Christian bodies” includes those who describethemselves as Christian but do not designate themselvesfurther. Examples of “Other” include Assemblies ofGod, Latter Day Saints, Seventh Day Adventist, GreekOrthodox and Pentecostal.

The Registrar General has also registered 123 naval,military or air force chapels for the solemnisation ofmarriages, otherwise than according to the rites of theChurch of England, under Section 70 of the MarriageAct 1949. No denomination is stated with theseregistrations.

Asked by The Lord Bishop of Southwell and Nottingham

To ask Her Majesty’s Government how manyplaces of worship are registered in England andWales pursuant to the Places of Worship RegistrationAct 1855. [HL1380]

Lord West of Spithead: There are currently 29,774certified places of meeting for religious worship registeredby the Registrar General under the Places of WorshipRegistration Act 1855.

RAF NortholtQuestion

Asked by Lord Ashcroft

To ask Her Majesty’s Government further to theWritten Answer by Baroness Taylor of Bolton on11 December 2008 (WA 10), whether they will placein the Library of the House a copy of the agreementwith a commercial operator which guarantees landingslots at RAF Northolt. [HL1177]

The Parliamentary Under-Secretary of State, Ministryof Defence (Baroness Taylor of Bolton): Yes, I willplace a copy of the lease in the Library of the House.The rental level will be redacted from the lease documentas its release would, or would be likely to, prejudicecommercial interests.

Railways: Rolling StockQuestion

Asked by Lord Bradshaw

To ask Her Majesty’s Government whether theyhave undertaken any research into the potential fora further extension of the life of the present fleet ofhigh-speed diesel passenger trains, including improvingthe doors and toilets. [HL1490]

The Minister of State, Department for Transport(Lord Adonis): Prior to issuing the Intercity Expressspecification, the Department for Transport assessedthe costs and technical feasibility of extending the lifeof the existing high-speed diesel train fleet.

Given the age of the vehicles, and the need formajor structural modifications to meet accessibilitylegislation and the provision of modern safety featuresfor staff and retention toilets, it was not consideredcost-effective to extend their lives compared with procuringa new train.

SmokingQuestions

Asked by Lord Cope of Berkeley

To ask Her Majesty’s Government how manyrepresentations from organisations funded in wholeor in part by the Government they have received infavour of a ban on the open display of tobaccoproducts in shops, and how many individuals arerepresented by those organisations. [HL1292]

To ask Her Majesty’s Government how manyrepresentations from organisations they have receivedagainst a ban on the open display of tobacco productsin shops; and how many individuals are representedby those organisations. [HL1293]

The Parliamentary Under-Secretary of State,Department of Health (Lord Darzi of Denham): TheConsultation on the Future of Tobacco Control, publishedJuly 2008, is available in the Library.

The department received around 10,000 responsesfrom small retailers, including pre-prepared postcardsand emails made available to respondents by thirdparties, 11 responses from individual larger retailersand 21 responses from retail industry representativeorganisations, including trade associations.

The department received seven responses fromorganisations that receive funding directly from thedepartment for programmes of work related to smoking.Identification of respondents that receive funding fromthe department for other purposes could not be providedwithout incurring disproportionate cost.

The department received over 85,000 responses frommembers of the public, including pre-prepared postcardsand e-mails made available to respondents by thirdparties.

Various organisations which responded to theconsultation claim to represent certain numbers ofmembers and/or supporters. The department has noway of verifying the accuracy of such claims.


Smoking: CanadaQuestion

Asked by Lord Cope of Berkeley

To ask Her Majesty’s Government what evidencethey have received on the effect on smoking byyoung people of the ban on the open display oftobacco products in shops in Saskatchewan andManitoba, Canada. [HL1291]

The Parliamentary Under-Secretary of State,Department of Health (Lord Darzi of Denham): Thereis evidence from jurisdictions that have removed tobaccodisplays at the point of sale that such measures canmake an important contribution to reducing smokingprevalence among children and younger adults.

Data on smoking prevalence among young peoplein each Canadian province over the period 1999 to2007 are available in the Canadian Tobacco UseMonitoring Survey (CTUMS). The CTUMS has beenplaced in the Library.

In 2008, the department received information fromthe Government of Saskatchewan about smoking ratesamong young people since legislation removing tobaccodisplay at the point of sale came into force in thatprovince. Tobacco display legislation came into forcein Saskatchewan in 2002, and apart from a 15 monthbreak as a result of legal challenge, has been in forceever since. At the point that legislation came intoforce, smoking prevalence among 15-19 year-olds inSaskatchewan was 29 per cent. The latest smoking ratefor 15-19 year-olds in Saskatchewan is 22 per cent,2007 data. The Saskatchewan Government advisedthat the removal of tobacco displays has made animportant contribution to this reduction in smokingprevalence among young people.

The department has not received any specificinformation from the Government of Manitoba.

Social Workers: ChildrenQuestions

Asked by Lord Hanningfield

To ask Her Majesty’s Government what is theaverage length of service for children’s social workers;and what was that average in each of the past12 years. [HL1267]

To ask Her Majesty’s Government what assessmentthey have made of the rate of retention for children’ssocial workers; and how this compares with otherpublic bodies including (a) the police, (b) adultsocial carers, and (c) civil servants in governmentdepartments. [HL1268]

To ask Her Majesty’s Government what are thefigures for absenteeism for children’s social workers(a) nationally, (b) for each region and (c) for eachlocal authority. [HL1269]

To ask Her Majesty’s Government how manychildren’s social worker places are currently vacant;how many have remained vacant for a period of(a) three months, (b) six months, and (c) longer;and how this breaks down on a regional basis.

[HL1271]

The Parliamentary Under-Secretary of State,Department for Children, Schools and Families (BaronessMorgan of Drefelin): Social workers are directly employedby local authorities and other organisations. TheDepartment for Children, Schools and Families doesnot centrally collect information on social workerlength of service, retention rate, absenteeism or vacancyrate.

In the Children’s, Young People’s and Families’Social Care Workforce Survey 2006, a survey of 88 localauthorities, the Local Authority Workforce IntelligenceGroup (LAWIG), estimated that the turnover rate forchildren’s and families’ social workers was 9.6 per centdown from 11 per cent the previous year. LAWIGestimated that 2 per cent of the overall workforce leftsocial work all together, either to retire or move on toanother destination.

LAWIG also estimated vacancy rates for children’ssocial workers to be 9.5 per cent, down from 11.8 percent the previous year.

The regional breakdown was as follows:

Region

VacancyRates for

Children’sField SocialWorkers in

2005

VacancyRates for

Children’sField SocialWorkers in

2006

East Midlands 6.9% 4.9%Eastern 10.2% 11.7%London 17.5% 11.4%North East 7.8% 4.8%North West 12.0% 7.2%South East 7.5% 11.6%South West 5.4% 4.8%West Midlands 17.6% 12.8%Yorkshire and Humberside 13.2% 10.4%England 11.8% 9.5%

The Children’s, Young People’s and Families’ SocialCare Workforce Survey 2006 can be found atwww.lga.gov.uk/lga/aio/1098172.

Southern African Development CommunityQuestion

Asked by Lord Jones of Cheltenham

To ask Her Majesty’s Government what plansthey have to increase trade with the Southern AfricanDevelopment Community Free Trade Area.

[HL1237]

The Minister of State, Department for Business,Enterprise and Regulatory Reform & Foreign andCommonwealth Office (Lord Davies of Abersoch): HerMajesty’s Government’s vehicle for increasing trade isUK Trade & Investment (UKTI), which currently hasteams based in the SADC FTA countries of SouthAfrica, Tanzania, Angola and Mozambique. Theseteams assist UK companies to do business in thesemarkets, and also encourage potential investors intothe UK. The amount of trade fluctuates with the levelof interest shown by British companies in the area


and, more usually, with specific opportunities in individualcountries. UKTI keeps the deployment of its teamsthroughout the world under regular review to ensurethey offer government support to trading relationshipswhere it is most effective.

Information is provided on all markets via theUKTI portal www.uktradeinvest.gov.uk.

Sport: AcademiesQuestion


To ask Her Majesty’s Government what sportsfacilities are provided at the current and proposedacademies in London. [HL1335]

The Parliamentary Under-Secretary of State,Department for Children, Schools and Families (BaronessMorgan of Drefelin): There are 42 open academies inLondon, seven with a sports specialism. Of these,24 are already in their new or refurbished buildings,and our current target is that all academies will havetheir capital work completed within three years ofopening.

The 24 academies with completed capital workhave new or refurbished sports halls and new sportingequipment. Where space is available they have all-weatherpitches or enhanced outdoor sporting areas too. Thisis the case for all of the seven academies with a sportsspecialism.

All academies delivered through Building Schoolsfor the Future (BSF) have a standard provision forsports facilities which meet the Building Bulletin 98building guidelines for new schools. Partnerships forSchools, which manages all BSF projects, also liaiseswith Sport England through the statutory consultationprocess in order to ensure that all playing field provisionis maintained or improved in any new development.

In 2007, the Government removed the VATrequirement on the use of academy facilities. This hasopened up new academy sports facilities for muchwider use by their local communities.

Sport: Swimming PoolsQuestion


To ask Her Majesty’s Government how manyswimming pools have been constructed under theBuilding Schools for the Future policy. [HL1336]

The Parliamentary Under-Secretary of State,Department for Children, Schools and Families (BaronessMorgan of Drefelin): The department does not collectinformation about which sports facilities have beenprovided through Building Schools for the Future(BSF). It is for each local authority to decide how tomake the best use of its overall BSF funding allocationacross the schools in a particular project and the scopeof works at each school. An authority can choose touse some of its BSF allocation to refurbish an existing

pool where it considers this to be the best use of theavailable funding. There is also the option of exploringother sources of funding (eg DCMS/Sport England)to supplement that from BSF.

Sustainable Communities PlanQuestion

Asked by Lord Dykes

To ask Her Majesty’s Government whether theconstruction methods for new homes in the UnitedKingdom comply with the 2003 SustainableCommunities Plan; and, if not, what plans theyhave to ensure compliance. [HL1527]

The Parliamentary Under-Secretary of State,Department for Communities and Local Government(Baroness Andrews): The Sustainable Communities Plan,published in 2003, set out a long-term vision andprogramme of action to create decent homes in goodquality local environments across England. As part ofthis plan, the Government set out actions related toconstruction methods. This included actions to promotemodern methods of construction (MMC). MMC canbe defined as construction that uses modern processesto provide more, better quality houses in less time. Itcan apply to homes built on and off-site.

The Sustainable Communities Plan set out thatsome 25 per cent of the homes funded by the (then)Housing Corporation in the south-east would be builtusing MMC. In the two years following publication ofthe Sustainable Communities Plan (2004-05 and 2005-06)the Housing Corporation approved investment in Londonand the south-east which is resulting in the constructionand delivery of 13,297 MMC units. This representssome 40 per cent of the total number of homes deliveredin both regions.

The vision set out in the Sustainable CommunitiesPlan was for new housing to be more sustainable. Itproposed that building regulations would be kept underreview with this in mind, and set a new requirementthat, as a condition of grant, all new homes funded bythe public sector should achieve the Eco-Homes passstandard. This was put in place. However, since 2003,the Government have taken more steps to improvefurther the sustainability of new homes. The Code forSustainable Homes (the code) became operational in2007 and replaced Eco-Homes as the sustainable standardin house building. All homes supported by fundingfrom the Homes and Communities Agency must nowbe built to code level 3. The code, like building regulations,is outcome based and does not require a particularconstruction method. However, using MMC may beuseful to achieve code levels.

Steps have also been taken to strengthen buildingregulations. In 2006, the Government published revisionsto part L of the building regulations which set higherstandards for energy performance. A policy commitmentwas published in July 2007 to control the water efficiencyof new dwellings through changes to the buildingregulations. And in 2008 a consultation was launchedon proposed changes that would add to part G ofthese regulations a requirement for new homes to be


built to a water efficiency standard of 1251itres/person/day.We plan to publish a final revised version of part Gand the accompanying guidance later in 2009 with theintention of it coming into force before the end of thiscalendar year.

In July 2007, the Government confirmed their objectivefor all new homes to be zero carbon from 2016, to beachieved through a progressive tightening of the buildingregulations from the 2006 standard. And in their 2008Budget, the Government set out an ambition for allnew non-domestic buildings to be zero carbon from2019, with an earlier target (2018) for new publicsector buildings. The Definition of Zero Carbon Homesand Non-Domestic Buildings consultation, publishedon 17 December 2008, sets out the Government’scurrent thinking in this area and calls for furtherevidence in anticipation of an in-depth consultationon new non-domestic buildings in 2009. This documentis accessible on the department’s website at www.communities.gov.uk/publications/planningandbuilding/zerocarbondefinition.

Town and Country Planning (GeneralPermitted Development) (Amendment)

(No. 2) (England) Order 2008Question


To ask Her Majesty’s Government why theTown and Country Planning (General PermittedDevelopment) (Amendment) (No. 2) (England) Order2008 (SI 2008/2362) was accompanied by anexplanatory memorandum running to 39 pages whenthe order appears to be solely a correction of typingerrors. [HL1470]

The Parliamentary Under-Secretary of State,Department for Communities and Local Government(Baroness Andrews): The schedule to Statutory Instrument2008/2362 comprises substantive legislative amendmentsto the order which introduces significant changes tohouseholder permitted development rights. The orderis accompanied by an Explanatory Memorandum andthree impact assessments which cover the changes tohouseholder permitted development rights, the restrictionon front garden paving and making World HeritageSites article 1(5) land.

Widows and WidowersQuestion

Asked by Baroness Gould of Potternewton

To ask Her Majesty’s Government in each of thepast 10 years, how many women became widows;how many men became widowers; how many requeststo Government were made by widows and widowersfor financial support; how much was spent byGovernment on support to widows and widowers;and what were the ages at which the women werewidowed. [HL1110]

The Parliamentary Under-Secretary of State,Department for Work and Pensions (Lord McKenzie ofLuton): The information requested is not available.

However, data are available on the number ofbereavement benefit claims from May 2002 to May2008, broken down by gender and age group.Bereavement Benefit claims from May 2002 to May 2008, by gender

Gender ofclaimant

Total Female Male

May-02 41,490 25,840 15,660May-03 47,680 30,750 16,930May-04 51,180 34,330 16,840May-05 55,240 37,640 17,600May-06 57,660 39,690 17,970May-07 58,540 40,770 17,770May-08 59,850 42,040 17,820

Source: DWP Information Directorate: Work and PensionsLongitudinal Study.

Notes:1. Caseload figures are rounded to the nearest 10; some

additional disclosure control has also been applied.2. Average amounts are shown as pounds per week and

rounded to the nearest penny. Totals may not sum due torounding.

3. Time Series: bereavement benefit was introduced in April2001. Figures are available from May 2002 onwards.

Bereavement benefit claims from May 2002 to May2008 by age

Age of Claimant

Unknownage 18-24 25-29 30-34 35-39

May-00 170 110 910 3,550 8,220May-01 150 110 800 3,170 7,790May-02 160 60 520 2,330 6,420May-03 90 30 340 1,670 5,070May-04 20 20 190 1,150 3,910May-05 10 - 110 780 2,910May-06 10 - 60 520 2,120May-07 20 - 40 320 1,530May-08 - - 20 200 1,080

Age of Claimant

Total 40-44 45-49 50-54 55-59 60-64

May-00 265,110 13,400 26,020 65,210 117,160 30,370May-01 254,970 12,690 24,610 62,620 113,680 29,340May-02 223,410 10,790 20,050 50,220 103,370 29,470May-03 191,500 9,060 16,300 40,640 90,860 27,440May-04 163,430 7,500 13,220 33,330 77,650 26,430May-05 138,960 6,090 10,950 26,920 66,850 24,340May-06 117,650 4,910 9,060 21,830 57,330 21,800May-07 96,890 3,930 7,580 17,690 45,780 20,010May-08 77,900 3,040 6,260 14,420 36,860 16,010

ZimbabweQuestions

Asked by Lord Jones of CheltenhamTo ask Her Majesty’s Government what is their

advice to United Kingdom school fundraisers whowish to send donations to help schools in Zimbabwe.

[HL1233]


To ask Her Majesty’s Government what is theiradvice to United Kingdom schools which wish toarrange twinnings with schools in Zimbabwe.

[HL1234]

The Parliamentary Under-Secretary of State,Department for Children, Schools and Families (BaronessMorgan of Drefelin): The department does not givespecific advice on fundraising related to any particularcountry. General advice to schools on fundraising forschools abroad is made available on the Global Gateway,the department’s website for international links andpartnerships for schools (see www.globalgateway.org/default.aspx?page=2798). The Government recommendthat any assistance from the UK to Zimbabweanschools should be channelled through registered non-governmental organisations working in the educationsector in Zimbabwe.

UK schools seeking to establish a partnership witha school abroad can do so through the Global Gateway(www.globalgateway.org), which includes a database

of all schools that have registered an interest in establishinginternational school partnerships. The Global Gatewayis available to all schools throughout the world whereverthere is an internet connection and includes generaladvice on creating and maintaining sustainable schoolpartnerships. More detailed advice to schools may begiven on a case-by-case basis.

Schools can also form partnerships through DfID’sGlobal School Partnerships programme. This promotespartnerships between schools in the UK and schoolsin Africa, Asia, Latin America and the Caribbean (seewww.globalgateway.org/default.aspx?page=3124). Thereare currently no active Global School Partnershipswith Zimbabwe.

Teachers arranging study visits as part of theirpartnership are advised to check Foreign Office traveladvice before they travel. Current travel advice forZimbabwe is against all travel to high density, low-incomesuburban areas at any time; and all but essentialtravel to Harare city centre, rural Manicaland andfarming areas.


Monday 23 February 2009

ALPHABETICAL INDEX TOWRITTEN STATEMENTS

Col. No.Department of Health: DEL ............................................... 1

ECOFIN ............................................................................. 2

NATO Parliamentary Assembly .......................................... 4

Northern Ireland: Policing and Justice ................................ 4

Police................................................................................... 5

Col. No.Prisoners: Parole.................................................................. 7

Roads: Congestion .............................................................. 7

Shipping: Light Dues........................................................... 8

Taxation: Fraud................................................................... 9

Terrorism: Finance ............................................................ 10

Zimbabwe .......................................................................... 11


ALPHABETICAL INDEX TO WRITTEN ANSWERSCol. No.

Armed Forces: Aircraft ....................................................... 1

Armed Forces: Civilian Life................................................. 1

Armed Forces: Compensation ............................................. 2

Armed Forces: Helicopters .................................................. 2

Armed Forces: Minesweepers .............................................. 4

Armed Forces: Personnel..................................................... 4

Armed Forces: Post-Traumatic Stress Disorder ................... 4

Armed Forces: Religions and Faiths .................................... 5

Armed Forces: Retirement................................................... 6

Asylum Seekers ................................................................... 6

Bees ..................................................................................... 7

Belfast Agreement ............................................................... 8

Benefits: Disability Living Allowance .................................. 8

Bloody Sunday: Inquiry....................................................... 9

Business: Support ................................................................ 9

Businesses: Liquidation ....................................................... 9

Child Protection: Witchcraft.............................................. 10

Children: Refuges .............................................................. 10

Co-operation Ireland ......................................................... 11

Correction to Commons Written Answer .......................... 11

Elections: County Councils ............................................... 12

Employment Law .............................................................. 12

Energy: Fuel Poverty ......................................................... 13

Col. No.Energy: Supply Companies................................................ 14

Fluoridation ...................................................................... 14

Gulf War Illnesses ............................................................. 15

Gulf War: NAPS Tablets ................................................... 15

House of Lords: Travel Insurance...................................... 16

Housing: Energy Performance Certificates ........................ 18

Housing: Home Information Packs ................................... 18

Housing North West.......................................................... 17

Immigration: Detention and Removal Centres .................. 18

Immigration: France.......................................................... 19

Immigration: Heathrow Airport ........................................ 19

Joint Economic Commission ............................................. 20

Local Authorities: London Snowfall.................................. 21

Local Democracy, Economic Development andConstruction Bill [HL]................................................... 21

Local Involvement Networks............................................. 21

Ministry of Defence: Sale of Accommodation .................. 22

NHS: Patient Records........................................................ 22

NHS: Revenue Allocations ................................................ 22

North West Regional Strategy ........................................... 23

Northern Ireland Office: Events ........................................ 24

Northern Ireland Parades Commission ............................. 24

Palace of Westminster: Post............................................... 24

Col. No.Places of Religious Worship .............................................. 24

RAF Northolt ................................................................... 25

Railways: Rolling Stock ..................................................... 26

Smoking ............................................................................ 26

Smoking: Canada .............................................................. 27

Social Workers: Children ................................................... 27

Southern African Development Community ..................... 28

Col. No.Sport: Academies............................................................... 29

Sport: Swimming Pools...................................................... 29

Sustainable Communities Plan .......................................... 30

Town and Country Planning (General PermittedDevelopment) (Amendment) (No. 2) (England) Order2008............................................................................... 31

Widows and Widowers ...................................................... 31

Zimbabwe .......................................................................... 32

NUMERICAL INDEX TO WRITTEN ANSWERSCol. No.

[HL229] ............................................................................. 14

[HL517] ............................................................................... 1

[HL518] ............................................................................... 1

[HL519] ............................................................................... 1

[HL637] ............................................................................... 9

[HL648] ............................................................................. 18

[HL649] ............................................................................. 19

[HL846] ............................................................................. 19

[HL891] ............................................................................... 2

[HL987] ............................................................................... 9

[HL988] ............................................................................... 9

[HL995] ............................................................................. 16

[HL1029] ............................................................................. 2

[HL1063] ............................................................................. 6

[HL1110] ........................................................................... 31

[HL1177] ........................................................................... 25

[HL1185] ............................................................................. 8

[HL1200] ........................................................................... 13

[HL1220] ............................................................................. 8

[HL1230] ........................................................................... 12

[HL1233] ........................................................................... 32

[HL1234] ........................................................................... 33

[HL1237] ........................................................................... 28

[HL1256] ............................................................................. 1

[HL1257] ............................................................................. 4

[HL1258] ............................................................................. 4

[HL1259] ............................................................................. 5

[HL1267] ........................................................................... 27

Col. No.[HL1268] ........................................................................... 27

[HL1269] ........................................................................... 27

[HL1271] ........................................................................... 27

[HL1278] ........................................................................... 21

[HL1281] ........................................................................... 14

[HL1283] ........................................................................... 11

[HL1286] ........................................................................... 11

[HL1287] ........................................................................... 24

[HL1291] ........................................................................... 27

[HL1292] ........................................................................... 26

[HL1293] ........................................................................... 26

[HL1317] ............................................................................. 4

[HL1335] ........................................................................... 29

[HL1336] ........................................................................... 29

[HL1338] ............................................................................. 7

[HL1347] ........................................................................... 23

[HL1348] ........................................................................... 23

[HL1350] ........................................................................... 10

[HL1352] ............................................................................. 5

[HL1356] ........................................................................... 24

[HL1363] ............................................................................. 6

[HL1366] ............................................................................. 7

[HL1369] ........................................................................... 24

[HL1375] ........................................................................... 22

[HL1378] ........................................................................... 16

[HL1379] ........................................................................... 16

[HL1380] ........................................................................... 25

[HL1381] ........................................................................... 15

Col. No.[HL1390] ........................................................................... 23

[HL1391] ........................................................................... 20

[HL1392] ........................................................................... 17

[HL1407] ........................................................................... 21

[HL1417] ........................................................................... 12

[HL1418] ........................................................................... 18

[HL1419] ........................................................................... 18

[HL1420] ........................................................................... 21

Col. No.[HL1423] ........................................................................... 10

[HL1458] ........................................................................... 24

[HL1470] ........................................................................... 31

[HL1472] ........................................................................... 11

[HL1490] ........................................................................... 26

[HL1499] ........................................................................... 15

[HL1527] ........................................................................... 30

[HL1543] ............................................................................. 4

[HL1544] ........................................................................... 22

Volume 708 MondayNo. 34 23 February 2009

CONTENTS


Death of a MemberAnnouncement..................................................................................................................................................................... 1

QuestionsElections: Members of the House of Lords...................................................................................................................... 1Energy: Nuclear Industry................................................................................................................................................... 4Sri Lanka............................................................................................................................................................................. 6Airports: Canada Geese ..................................................................................................................................................... 9

Geneva Conventions and United Nations Personnel (Protocols) Bill [HL]Order of Commitment discharged ................................................................................................................................... 11

Marine and Coastal Access Bill [HL]Committee (Fifth Day).................................................................................................................................................... 11

Criminal Defence Service (Information Requests) Regulations 2009Motion to Approve ............................................................................................................................................................ 73

Marine and Coastal Access Bill [HL]Committee (Fifth Day) (continued) .............................................................................................................................. 80

Grand Committee

Health Bill [HL]Committee (First Day)............................................................................................................................................... GC 1

Written Statements .......................................................................................................................................................... WS 1

Written Answers ............................................................................................................................................................... WA 1

(HANSARD) HOUSE OF LORDS · Sarah McCarthy-Fry, MP Communities and Local Government— SECRETARY OF...

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Transcript of (HANSARD) HOUSE OF LORDS · Sarah McCarthy-Fry, MP Communities and Local Government— SECRETARY OF...