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Lord Lucas: My Lords, what the noble Lord's colleague on the Back-Benches has said illustrates

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exactly the difference. It is an issue in which consumers and the public have a direct interest and for which Ministers should be directly accountable to Parliament.

Lord Mackie of Benshie: My Lords, if the Government are so pleased with the Ministry why was it necessary to appoint a special troubleshooter, Mr. Freeman, to correct the mistakes of the Ministers concerned?

Lord Lucas: My Lords, I am entirely at sea as to what the noble Lord is referring. I am not aware that that has anything to do with the Question on the Order Paper.

Lord Annan: My Lords, is not one of the problems that the newspapers run columns by doctors and others always stressing the dangers of one particular food or another so that if we really followed that advice, we should be on a starvation diet? Has the Minister read a book--and here I declare an interest at once--written by my son-in-law, Dr. Le Fanu, who entitled his book Eat Your Heart Out?

Lord Lucas: My Lords, I am very sorry to say that I have not read the book by the noble Lord's son-in-law. I shall try to obtain a copy from the Library, if it is classified as non-fiction of course. The position taken by the media is rather extraordinary. If one were to believe what they said on food safety, we should all be adopting policies from which the Germans currently suffer and which the newspapers now say we should shrink from.

Disaster Relief

3 p.m.

The Earl of Sandwich asked Her Majesty's Government:

    Whether, in view of the unexpected increase in disaster relief and food aid in the 1990s, they consider that this scale of assistance can be adequately monitored and carry public support.

Lord Chesham: My Lords, we have increased our capacity to assess, co-ordinate and monitor the increased level of disaster relief, including food aid, in recent years. I am confident that this capacity meets the current need and that we have public support for an effective British response to overseas emergencies.

The Earl of Sandwich: My Lords, I thank the Minister for his reply. Does he not agree that the exceptional level of emergency aid over the past three or four years has distorted the image of aid giving and could diminish public support for it? On a day when 10 leading development agencies have issued a common manifesto on this subject, will the Minister at least accept that the war against poverty and attempts at long-term development are not receiving the public attention that they deserve?

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Lord Chesham: My Lords, we continue to provide both a substantial aid programme and timely and adequate responses to the world's emergencies, whether natural disasters or conflict. We manage to make adequate provision each year for foreseeable relief aid without detrimental effect on the sustainable aspects of the aid programme. I believe that we retain public support for both.

The UK aid programme is firmly poverty-focused. About two-thirds of the bilateral aid programme went to the poorest countries in 1994-95 and aid to those countries is on grant terms. While the amount of emergency aid has increased, it is interesting that as a percentage of the total ODA programme the amount of overseas aid for 1991-92 was £271 million. In 1994-95, it was £334 million, but that was also 14 per cent. of the total ODA programme. Therefore, while the amount is increasing, the percentage is not.

Viscount Waverley: My Lords, what are the Government doing to help those countries most prone to disasters?

Lord Chesham: My Lords, in 1994-95, which is the latest year for which figures are available, the UK spent nearly £3.7 million in support of programmes aimed at preventing and mitigating the effects of disasters. Particular attention was paid to those countries in Africa, Asia, Latin America and the Caribbean which are particularly susceptible to disasters. Many of the projects were implemented by UK NGOs working with the local authorities in the countries concerned. We also support a number of initiatives managed by international agencies such as the UN Department of Humanitarian Affairs.

Lord Rea: My Lords, is the noble Lord aware that in the document published today by the leading aid NGOs which was mentioned by the noble Earl, A Case for Aid, under the heading "Spend Now and Save Later" it is stated:

    "Aid can promote long-term development and growth, and by spending now we can save lives and resources and protect the environment"?
Does the Minister agree with that?

Lord Chesham: My Lords, I totally agree with that. That has been the Government's policy for many years.

Lord Judd: My Lords, does the Minister agree that the very large amounts of money which have been spent on emergency aid programmes are necessitated frequently by the failure of the international community to act in time to prevent disaster? Does he not agree that the solution to that problem lies in the political sphere rather than in the aid sphere? As we come up to the time for the election or re-election of the Secretary General of the United Nations, will the Minister tell us what consultations the Government are having with other governments, not least in Europe, to decide the criteria by which that election or re-election should take place in terms of the role which the United Nations should be constructively playing in preventing disasters?

Lord Chesham: My Lords, I do not think that it is appropriate for me to talk about the Secretary General

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of the United Nations at the moment. There is a Question on that matter next week, and that is when I should like to deal with it.

The noble Lord knows our attitude to aid. We are trying to encourage everyone to produce aid as effectively as we do on a bilateral basis. We shall certainly continue to do that.

Lord Hylton: My Lords, as long as there are surplus foods and foods in intervention, is it not right that they should be used for emergency relief?

Lord Chesham: My Lords, we provide a substantial amount of food, and cereals in particular, for emergency relief. Our allocation through the EU this year is 110,770 tonnes of cereals. In fact, last year we provided 205,000 tonnes of cereals. One of the great difficulties with food relief is that the food which is given must be compatible with the diets of the people for whom it is intended. It is no good providing them with food which may have disastrous consequences for them if they are not used to eating those foods.

Baroness Gardner of Parkes: My Lords, will my noble friend comment on the monitoring element of the Question? Does he consider that, for example, the distribution of the food is carried out properly?

Lord Chesham: My Lords, we have been increasing the monitoring which has been done. It would not be accurate for me to say that all distribution is carried out perfectly because we are not living in a perfect world. However, we have increased the amount of monitoring, and we are increasing the number of UK-trained, aid-educated people who are now working together with the EU in Europe.

Earl Grey: My Lords, does the Minister recognise also the other NGOs which play such an important part in disaster relief?

Lord Chesham: My Lords, I am delighted to pay tribute to the efforts of British NGOs in disaster relief. They are often among the first to bring life-saving relief to those affected by conflicts and natural disasters. British Government support for the excellent specialist NGOs is an important element of our response to emergencies.

Business of the House: Summer Recess

3.8 p.m.

Lord Strathclyde: My Lords, it may be for the convenience of the House to know--and it certainly gives me great pleasure to announce--that, subject to the progress of business, the House will rise for the Summer Recess on Thursday, 25th July and will return on Tuesday, 15th October. It may be equally convenient to know that the House will sit at 11 a.m. on Thursday, 25th July.

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While I am on my feet, perhaps I may take this opportunity to draw to your Lordships' attention the very great length of the speakers' list for today's debate. While we have taken the decision that the debate should not be time limited, it would obviously be desirable if all noble Lords were to exercise some self-restraint over the length of their speeches. As indicated on the speakers' list, if all speakers were to limit themselves to a maximum of 10 minutes, the debate would still continue until about 10.20 p.m. Although I have no desire to prevent your Lordships debating this issue in full--in fact I welcome it--I have no doubt that noble Lords towards the end of the list would particularly appreciate brevity on the part of noble Lords speaking earlier.

Trading Schemes Bill

Read a third time, and passed.

Noise Bill

Read a third time, and passed, and returned to the Commons with amendments.

The Constitution

3.11 p.m.

The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That this House take note of the United Kingdom's existing constitutional settlement, and of the implications of proposals for change.

The noble and learned Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper, which deals with a topic of fundamental importance to this country. As is well known, we are unusual in not having a written document referred to as our constitution. That does not mean that we have no constitution. We certainly do. But it is found in the body of convention, common law, case law and statute making up the law of the United Kingdom. Many provisions are statutory: the Bill of Rights and the Act of Union, among many others. Ours is a flexible constitution, in the sense that conventions and rules, evolved over long periods, adapt to a multitude of situations which a written document, reflecting attitudes and circumstances of a particular period or time, could not. That is a strength of our system, which the Prime Minister last week quite rightly described as "robust".

Historically, all power in this country ultimately derives from the Crown: the Government consisting of the Queen's ministers; the Queen in Parliament as the legislature; and Her Majesty's judges and magistrates exercising the judicial power of the state. There is separation of those powers--the legislature, the Executive and the judiciary--but they are not contained in water-tight compartments. We have Cabinet government in which members of the Executive branch are drawn from the two Houses of Parliament

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and are both individually and collectively responsible to Parliament. Parliament, however, delegates legislative powers to members of the Executive, and certain powers of adjudication are conferred on Ministers and other non-judicial agencies. Judicial Members of the House of Lords serve as both judges and legislators; and the office of Lord Chancellor adds to these a ministerial role.

I believe that this arrangement of functions has considerable advantages. For example, the presence of the most senior members of the judiciary in this House enables the legislative process to draw on a tremendous concentration of legal expertise and judicial experience, with benefits going far beyond consideration of what is usually called "lawyers law". I am sure that all of us are very much looking forward to the maiden speech of my noble and learned friend the Lord Chief Justice of England in today's debate.

In the absence of a written constitution in the conventional sense, we place considerable weight on practice and convention. The judgment, discretion and good faith of those operating our constitutional arrangements are of the greatest importance. It is a strength rather than a weakness. It inculcates mutual recognition and understanding of the respective roles, and permits flexibility and adaptation to developing circumstances. As long as we have people in public life with the necessary qualities--and I believe that we are very fortunate in that respect--I think our arrangements work at least as well as, perhaps better than, many others.

While the functions of government are not compartmentalised, the basic principles and divisions are clear. The primary function of law making rests with Parliament, the supreme law-making body. The Government, the Executive branch, must act within the law and the courts must apply and give effect to it. The role of the courts in developing the common law should not be underestimated; but that role is developing principle, not creating wholly new law. Statute is the supreme source of law, and in any conflict between the common law and the clearly expressed will of the legislature in an Act of Parliament, the Act must prevail. But even here the function of the courts is by no means purely mechanical: they must construe and apply these Acts and, in doing so, they may rely on historical common law principles of interpretation and application.

What they cannot do, and show no sign of attempting to do, is refuse to give effect to an Act of Parliament or to question its validity. It is sometimes said that your Lordships' House has already, in the Factortame case, struck down an Act of Parliament by reference to a higher order which dilutes or reduces the sovereignty of Parliament; namely, the law and institutions of the European Community or the European Union. I think that that is an incorrect analysis of the Factortame decision.

It is important to be clear that Community law, including decisions of the European Court of Justice, has authority here by virtue of an Act of Parliament--namely, the European Communities Act 1972, with subsequent amendments to it. The Factortame decision rests on the basis that the Merchant

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Shipping Act had to be read in the context of the European Communities Act, which expressly provided that all other statutes should be construed and have effect subject to the provisions giving Community law primacy in our legal system. That was enough, in the absence of a clear provision in the 1988 Act overriding the 1972 Act, to reverse the rule that, in a conflict between two Acts of Parliament, the later takes precedence. Accordingly the English court correctly proceeded on the basis that Parliament did not intend to override Community law in passing the Merchant Shipping Act. It is open to Parliament expressly to override the 1972 Act and, if it did so, the courts would be bound to give effect to this, even though that might be a breach of obligations under the Community treatise. But that would be a problem for the Government and Parliament to deal with, rather than the courts.

Similar considerations apply to our membership of other international organisations, such as the United Nations. Resolutions of the Security Council bind us in international law but, where they need to have legal force in this country, they can be implemented under the United Nations Act 1946 by an Order in Council.

It may also be argued that Parliament's sovereignty is limited by various other legal conventions and treaties. Again, as a matter of legal theory, I believe that that is not correct. Conventions operate by agreement of the parties. The process of entering into them is not irreversible: however, it is open to a party to withdraw under conditions that may be specified. If the power of Parliament in that respect is subject to any limits, those limits are due to political considerations--and considerations of international comity--rather than purely legal considerations.

I have already referred to the process of evolution by which the constitutional principles of this country have been built up. The result is a network of arrangements ensuring good government and fairness to individuals. Essential to it is the interplay between historical common law principles and the application of statutes. I take the view that common law principles have embedded in them certain settled concepts which provide broad and flexible protection of individuals' rights. One of the principles of interpretation to which I have referred is that the courts will have regard to these basic tenets when interpreting statutes, resolving ambiguities so as to minimise the effect on essential and particularly important elements of the common law. I personally consider this approach more satisfactory and better for the individual than one based on written and therefore less flexible principles. That is one reason why the Government do not favour the elaboration of a Bill of Rights or the incorporation of the European Convention on Human Rights into domestic law.

Your Lordships have debated the question of a Bill of Rights, whether in the form of the European Convention or in some other form, on several occasions. I will today merely state what I believe to be a few of the salient points. The question of whether the European Convention is incorporated or not is, in my view, of little relevance to the real standard of legal protection afforded by the state to individuals in this country. Nor is there any evidence, in my view, that it would reduce

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the number of cases going from this country to the human rights court in Strasbourg. Our record at Strasbourg has been questioned; but if account is taken of relative population sizes and the length of time the right of individual petition and jurisdiction of the court has been accepted here, we are about in the middle of the field.

Legal traditions, legislative and judicial approaches lead in practice to the same or a higher level of protection of human rights provided in a number of other ways. Unwritten principles, for example, of rationality and legality can be greatly superior to the list of rights set out in the convention. There is also a presumption applied by the courts in cases of ambiguity that Parliament does not intend to legislate inconsistently with the United Kingdom's international obligations.

Enacting a Bill of Rights in terms similar to the convention, or incorporating the convention itself would give courts wide discretion over matters which in my view are properly the preserve of Parliament. It is for Parliament to legislate so that our legal arrangements comply with convention principles, taking account, for example, of the margin of appreciation allowed to member states under Strasbourg case law. The extent to which that margin of appreciation is used is clearly, in my judgment, a matter for political balance but would have to be decided by our courts on the basis of a generally worded provision if the convention were incorporated in our law in terms such as I have mentioned. This contrasts strongly with our own legislative drafting tradition and would leave much scope for judicial interpretation and of course litigation. I think it would also have the effect of creating the impression that the Strasbourg court was in the nature of a court of appeal from the House of Lords.

Moreover, the scope for judicial interpretation would inevitably draw judges into making decisions which are essentially political rather than legal in nature. For example, the courts might be asked to decide sensitive matters such as the conditions under which abortions should be allowed. That has been put forward as a constitutional question in some other jurisdictions which will occur quite readily to your Lordships. In my view our tradition is clearly that such matters should be decided by Parliament. Against such a background a strong demand would emerge for judges to be chosen for their social or political views rather than their legal qualities and impartiality. It would be a short step to the kind of senatorial hearings on the appointment of judges which we see in the United States. In my view that would be a fundamental change in the nature of our judiciary, and an unwelcome one.

I regard the appointment of judges as a most important feature of our constitutional arrangements and among the most important of my duties as Lord Chancellor in so far as I am concerned with those matters. The judges collectively form the cornerstone of our system of justice. It is imperative that they are of the highest quality. My aim is to ensure that we have the best judges available and that selection is efficient, fair and open. I therefore very much welcome the endorsement given by the Home Affairs Select

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Committee of the other place in its recent report to the existing judicial appointments system and to the developments of it which I have introduced.

I now turn to another cornerstone of the United Kingdom's constitution; namely, the Union of England, Wales, Scotland and Northern Ireland. The Government believe there is no greater priority than the preservation of that Union. Following the historic settlement that created our United Kingdom we have all benefited from centuries of united history and common endeavour. In my opinion the Union guarantees stability and enhances the status of each of its member nations. We would each be hugely diminished by the break-up of the United Kingdom.

The proposals for devolution, supported by some of your Lordships and by some of their colleagues in another place, do not appear to me adequately to meet that test. In my view these proposals contain serious flaws which I do not believe can be resolved and which would lead to a real risk of breaking up the United Kingdom. The fundamental problem to my mind is that the nations making up the United Kingdom are of such different size that no balanced devolution is possible.

One particular matter that I wish to raise at the outset is that proposals relating to your Lordships' House, for example, do not appear to take sufficiently into account the long enshrined principle of bicameral government. In Scotland a single chamber parliament has been proposed with powers over some areas of government. Some 5 million of the Queen's subjects, in substantial aspects of their lives, would fall under provisions enacted by a unicameral legislature. I believe this would be counter to the evolution of our constitution that has taken place over the past millennium.

As we are considering a referendum on this matter, why, for example, should there not be a question in the proposed referendum on the removal of Scottish legislation from scrutiny by your Lordships' House? There are certainly risks to the Scottish economy in these proposals. Devolution would threaten the livelihood of those who live and work in Scotland, and I believe would deter at least some of those contemplating investing there. At the heart of this is the proposal for tax varying powers of the new assembly. Especially against a backdrop of the gradual evolution of our constitution which I have described, this proposal highlights the central issue of the relationship between an Edinburgh parliament and the Westminster Parliament. This relationship is fundamental, surely, to any proposal for tax raising powers, or tax lowering powers. Tax varying powers is the expression which has been more commonly used recently.

If a new Scottish parliament is created, it is obvious that the major issues affecting the United Kingdom will continue to be discussed and resolved at Westminster. It is there that those who wish to have an important say in our affairs will want to be, as opposed to a parliament in Scotland. If one wants illustration of that, one has only to ask whether the three prominent Scottish politicians who were recently made Members of the Privy Council will wish to be in a Scottish parliament or the Parliament at Westminster. The Scottish parliament once created will be longing to obtain more of such power. This is the

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tension that will provide a powerful force tending to prize apart the United Kingdom. Further, it is difficult to see how it is fair that Scottish Members will continue to legislate on important matters for England when their English colleagues would have no say on such issues in Scotland.

It is crucial that the risks of devolution are recognised. I do not believe it is satisfactory to pledge a referendum to be held before a devolution Bill is proposed. A referendum would require legislation but a referendum before legislation about devolution would do nothing to resolve these difficulties. Surely people need to know precisely what they would be voting for. For example, what is to be the financial relationship between Scotland and Westminster? I sought to emphasise a few moments ago how crucial that must be to the question of tax-varying powers. How can you sensibly raise a question about tax-varying proposals for a Scottish Assembly until you know the legislated answer to that? Some say that you can put it all in a White Paper.

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