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Baroness Masham of Ilton: I have been longing to ask who will carry out the inspection. How many people will it take? Perhaps we should have a national body to set the standards, but surely the people going

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into the homes must be local. I give an example of what can happen. I received a letter from a lady in a home in Leeds saying that as her letters were read, a friend had to take them out and send them to me and I had to send mine back through the friend. On paper there were qualified staff; in practice there were 16 and 17 year-olds at night. What was going on was appalling. At that time a friend of mine served on Leeds health authority. I asked him to visit the place and he made inquiries. To cut a long story short, that lady was transferred to a home in Harrogate. Afterwards she wrote to me saying, "It was like leaving hell and going into heaven". She arrived on her birthday and they made her a birthday cake.

Some people live in frightening situations. Therefore, there must be people attached to and visiting homes, so that residents have a contact. Someone had said, "Write to Lady Masham", as people have done over the years. That was one of my success stories, although there have probably been many that were not successes. There must be a proper establishment which must be local, even though it could be a national body also.

Lord Jenkin of Roding: I find myself more in agreement with the noble Baroness, Lady Pitkeathley, than with the noble Lord, Lord Laming. I draw my reasoning from my experience of the Mental Health Act Commission. It is a national body which has been in existence for a good many years and which manages to carry out its inspections using people who are familiar with the particular hospital or institution but whose standards are entirely derived from a national standard-setting process. They command great respect; there is no question about that.

As chairman of the trust, I always made it a point to attend the final day when the MHAC was carrying out its inspection at Claybury Hospital. I was hugely impressed by the authority of the inspectors and the awe and respect which they commanded from the hospital staff. Almost everyone concerned made a point of turning up--and that is not always what happens in the National Health Service. They paid the utmost attention to the recommendations after the team had spent two or three days inspecting the hospital, talking to patients and so on.

I believe that one must have a national standard-setting body and on the whole, therefore, I am inclined to agree with the Government's change of heart. But I equally agree that it is essential that such people should be seen to command support, understanding and respect locally. That is a task which the Mental Health Act Commission has succeeded in performing over the years under a succession of able leaders. This commission is starting the task from scratch. Its members will need to apply some of the same skills, but they should start as a national standard-setting body. I agree with that, I apologise to the noble Lord, Lord Laming, if I cannot follow him on this occasion, but it is a case where second thoughts are best.

Baroness David: I support the noble Baroness, Lady Pitkeathley, about the national care standards

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commission setting the rules for the whole country. However, I am curious to know why the Government changed their mind about the eight regional officers. One needs local information and local people to go round ascertaining what is going on. I shall be interested to hear what the noble Lord has to say.

Baroness Emerton: My experience with nursing is that the central body is the standard-setting body. It then devolves its functions to eight regional offices to ensure that the standards are carried out. I regret that I cannot support the noble Lord, Lord Laming, who sits in front of me. I support the noble Baroness, Lady Pitkeathley. There must be a central standard-setting body, but the process of enacting those standards must be devolved.

Lord Hunt of Kings Heath: I shall deal first with why the Government changed their mind about the original intention to establish eight regional commissions as contained in the White Paper, Modernising Social Services, of November 1998. It was felt at the time that that would address the problems of a lack of independence and coherence in the current system. However, with eight care commissions there would still be problems of inconsistency between those eight. Although, probably, within each of the eight regional commissions, we would have had a more professional inspectorate and greater internal consistency, it was felt that there would none the less be inconsistency between the eight different commissions. In view of that and the many comments that the Government received, we felt in the end that it would be better to have one single national commission.

However, I very much recognise the concerns of the Committee that it would not work effectively if it were an organisation remote from the practice and experience of people working in the field at local level.

A number of factors should address the Committee's concerns in the area. First, we envisage that the commission will discharge many of its functions through a regional structure. Schedule 1 to the Bill gives the Secretary of State the power to direct the commission to appoint regional directors. But in association with that we would also expect the commission to have local offices because the people who will carry out the inspections will be locally based. Many of those who are currently employed within health and local authorities as inspection officers will transfer to the employment of the care standards commission. I take the point of the noble Lord, Lord Jenkin, about the calibre of the inspection officers. I argue that it is essential that we build on the foundation of the experience of those people.

I hope that in that way the commission will be informed by the experience and professionalism of its local inspecting officers and that, through their knowledge and the information they provide, the commission's work at national level will be undertaken with sufficient knowledge and

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understanding of the inspection process at local level. On those grounds, I hope that the noble Lord will withdraw his objection to the clause.

Lord Laming: I am grateful to the Minister for that helpful reply. This has been a useful discussion because it has revealed that in all this there must be not only balance but an understanding of different levels of organisational accountability. The centre has a responsibility to set the standards, many of which will be accommodated in secondary legislation. The centre has the responsibility for promoting good practice, but, as the noble Baroness, Lady Young, rightly said, local authorities and those even more local than some local authorities, gain a great deal of knowledge about people working in their area and issues of local concern, such as the example given by the noble Baroness, Lady Masham. Therefore, there has to be a proper organisational arrangement which will accommodate both direction from the centre and local availability, access and sensitivity.

None of that is accommodated in the way the Bill is framed at this stage. I am grateful to the Minister for his comments. I hope that as the Bill progresses we shall be able to establish a greater understanding of how these different levels of responsibility will find an accommodation within legislation to make sure that we do not, as it were, throw the baby out with the bath water and move from the present arrangement with local authorities to a central commission without having the machinery in the middle which will secure the best of both of those worlds. However, in the light of what the Minister has said, I withdraw my opposition to Clause 6.

Clause 6 agreed to.

Lord Burlison: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begins again not before 8.30.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Statutory Instruments and Human Rights

7.31 p.m.

Viscount Colville of Culross rose to ask Her Majesty's Government whether they have checked all statutory instruments issued since May 1997 for compliance with the European Convention on Human Rights (and especially with Article 8, right to respect for private and family life); and whether they will in future attach to every such instrument a statement of compliance.

The noble Viscount said: My Lords, the House will know that in order to bring into force in October the Human Rights Act a great deal of energy is being spent on looking at primary legislation to see whether it complies with the provisions of the European Convention on Human Rights, and indeed a great deal of training in all sorts of public sectors is currently

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taking place. My concern is that this may not have reached the departmental lawyers who draft statutory instruments.

I have given a copy of the notes I propose to use to all those who are to speak in this short debate, except, I am afraid, to the noble Lord, Lord Marlesford, as I did not know that he was to participate. That at least enables me to avoid quoting vast quantities of statutory instruments. I should tell the noble Lord, Lord Bassam--as I think that I have already done in writing--that I do not quarrel with the merits of any statutory instruments; it is a point of procedure and compliance with the European convention that concerns me. I also take this opportunity to thank in advance all those who propose to take part in this debate as I cannot do so at the end.

I have chosen Article 8 of the convention which deals with privacy. I hope that other noble Lords may wish to discuss other articles as all of them are important. Article 8 deals with the privacy that a person is entitled to enjoy in relation to his home. There are limitations which allow interference with this privacy by a public authority in accordance with law and for certain purposes such as the prevention of disorder or crime or the protection of health, but always--this governs the whole of the article, and indeed many others--only so far as is necessary in a democratic society. That is an important proviso to the limitations that can be imposed on this, as on many other rights.

Under the jurisprudence of the Strasbourg court, when one talks about home the concept is not confined simply to the place where a person and his family live. It is wider than that. The German case of Niemietz dealt with a solicitor and his office. It occurs to me that there must be many similar examples in everyday life, for example, small farmers who keep their records at home and the owners of foodshops who live over the premises. In relation to a Starred Question asked before Christmas, the noble Lord, Lord Borrie, pointed to the increased commercial use of computers by people who carry out business interests from home. Therefore the dilemma is ever increasing.

Your Lordships will be aware that the classic method of preventing crime--whether it is being committed or has already been committed--by way of entry has been in the hands of the police. The police--this was encapsulated in the Police and Criminal Evidence Act--are allowed entry to a person's house, and indeed other premises, only if they have reasonable cause to suspect that a crime is being or has been committed and they obtain a warrant from the magistrate. The same applies under other legislation, for instance when they are looking for stolen goods, drugs, other illegal imports, obscene publications and so on. Woe betide the organisation that does not go through the proper processes. There was a case where police were persuaded to apply for a warrant of entry into the premises of a firm called South West Meat early in the past decade. It was simply an exercise

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whereby the meat intervention board wanted to snoop. The matter came before the courts which described the whole operation as a,


    "deplorable abuse of power by public officials and police".

They awarded £25,000 exemplary damages. Therefore this is not a matter to be undertaken lightly. Warrants are not lightly granted.

There are now vast quantities of other officials who are entitled, particularly under statutory instruments, to enter into one's home. The power depends primarily on the main legislation under which the statutory instruments are given. I looked at the Banking Act 1987 and the Police Act 1997, both of which produced statutory instruments which allow entry but only after a period of notice has been given. That is probably suitable for that kind of subject matter. I refer also to the Agriculture Act 1970 and the Animal Health Act 1981 which require the same test of "reasonable cause to believe". This carries through into the statutory instruments made under those pieces of legislation.

Even under the European Communities Act--Section 2(2) is the prime source of subordinate legislation in this respect--there can be "reasonable grounds for suspecting" incorporated in the subordinate instrument. For instance, if I have potatoes originating in Egypt, under the potatoes originating in Egypt regulations of 1998 an inspector authorised by the Ministry of Agriculture can enter my house to look for them only if he has reasonable grounds for suspecting that I have them in the larder. I have no objection to that because I think that reasonable grounds for suspecting, or possibly notice, are exactly the kind of threshold which demonstrates that we are operating what is necessary in a democratic society. Therefore much of this is probably all right. I had a great deal of sympathy with the noble Lord, Lord Bassam, when he was unable to say how many statutory instruments gave powers of entry. The recent statutory instruments are not bound in the Library and a great deal of what I say is based upon inspired guesswork as to where I might look.

What I am really concerned with are the statutory instruments which grant a right of entry, usually to unspecified officials, simply on a speculative basis. I cannot believe that that is within the powers and the remit of the European convention. I suggest that it goes too far. It is frequently contained in statutory instruments. There is possibly trouble in the primary legislation. I looked at the Food Safety Act 1990. There is perhaps room there for a revision if the Government are anxious to make sure that all their legislation lives up to the requirements of the European convention.

The real trouble arises under the European Communities Act. There is no limitation in Section 2(2) on what kinds of powers of entry may be given; it is not mentioned at all. The power is absolutely general. It is there to give effect to directives and it frequently does so.

I have looked at a number of statutory instruments in the past two or three years which have been made in the realm of animal health for food safety, where the

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primary legislation--the British legislation--contains reasonable safeguards but where legislation made under the European Communities Act allows entry on a purely speculative basis.

I am sure that all noble Lords will agree that spongiform encephalopathy must be dealt with very firmly and radically, even where it occurs in sheep and goats. I may happen to be keeping a goat or a sheep in my outhouse. I am surprised, however, to find that a veterinary inspector or officer of the appropriate Minister has a right at all reasonable hours to come in to see whether that is so. He does not have to have any reasonable suspicion. All he has to do is to show some authenticating document. I shall not go through all the statutory instruments that I have found, but this is a pattern which occurs time and again, particularly when implementing directives under the European Communities Act 1972.

There is also a tendency, I fear, to stray in the direction of speculative entry. Not long ago there was a Prayer about the use of lead shot when shooting various wildfowl. The Prayer was not successful but the subordinate instrument was looked at. I see that it had been made under certain powers in the Environmental Protection Act. Those powers--I have looked at them--appear to include very reasonable restrictions on the rights of entry, but the subordinate instrument does not. The authorised person--heaven knows who is the authorised person--can enter at any reasonable time any premises, including my house, which he has reason to believe it is necessary for him to enter. So he can come in to see if I am shooting moorhens from my bedroom window with cartridges containing lead pellets. He does not need to suspect that I am doing so; he simply comes in if he thinks it would be a good idea to do so. That is not in accordance even with the primary legislation.

My purpose in asking the Question is to see how far the Government are making progress in this matter. A useful development has recently taken place. After your Lordships rose for the Christmas Recess, a Statement was made in another place by the Home Secretary in which he said that he would introduce statements of compliance--which now apply to all Acts of Parliament--in relation to subordinate legislation which requires the affirmative resolution or which amends primary legislation. But it would not apply to negative instruments. I have been talking about negative instruments.

Let me make a final point. If it is the intention of negative instruments passed under Section 2(2) of the European Communities Act to implement European law, I would suggest to the House that the implementation should comply with the Luxembourg codes--not the Strasbourg codes alone--which have a good deal to say about this. I have looked up some of the case law and I have given the noble Lord, Lord Bassam, some examples of it--Nold and Hoechst. There was a very interesting Greek case about television monopolies called ERT, which deals with Article 10 of the convention.

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The way in which the Luxembourg court approaches this matter is that fundamental rights are part of the law of all the participating states in the European Union and should not be overridden in the course of pursuing European Union objectives. Therefore, if we are trying to implement directives under our own European Communities Act, I would suggest that we ought not do so in such a way as to violate Article 8, or indeed any of the other articles.

I leave this matter with your Lordships. I hope that others will develop it. I believe that the principle and the problem are much more general than has been recognised. I hope that the Government will take forward the very encouraging steps announced before Christmas and will guarantee to the House that all departmental draftsmen who draw up the statutory instruments are trained to comply with what everyone else will have to comply with, the Human Rights Act. Otherwise, it will all end up in the courts and prove extremely expensive.

7.46 p.m.

Lord Marlesford: My Lords, we all owe a debt of gratitude to the noble Viscount, Lord Colville of Culross, for introducing this subject. Because of the very wide range of public service he has given to these matters, I suspect that there is no one in your Lordships' House who is better qualified to raise such a very important subject as the granting of powers of entry into private premises by secondary legislation, in particular, and also by primary legislation.

There is nothing new in such powers; they have always been needed and always will be needed. But, as they are very strong powers, in each and every case where either primary legislation or statutory instrument grants them, they should be subject to public and parliamentary scrutiny to ensure that they are justified in overriding what should be the normal presumption against them.

My own interest in this was stimulated by a Parliamentary Answer from the Minister in which he was unable to give me a list of the occasions since the last election when such powers have been granted. I note that the noble Viscount, Lord Colville, had sympathy with him for not being able to answer that question. I have rather less sympathy. I should have hoped that a new and radical Government, who are aiming both to show a libertarian streak and to have a sound law and order policy--I have the highest esteem for the present Home Secretary, whom I regard as a personal friend of many years' standing--would at the very least have kept a careful record of the occasions on which they introduced such legislation (my question was about the period since they came into power) in order to ensure that they were not in any way overdoing it. I do not blame the Minister personally but I felt that the answer indicated a somewhat cavalier--maybe he would prefer the word "casual"-- attitude to the whole question.

We then had the Prayer of the noble Earl, Lord Lytton, against the use of lead shot regulations (Statutory Instrument 1999/2170), to which the noble

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Viscount, Lord Colville, has referred, in which the justification for the draconian powers was questioned. In her reply, the noble Baroness, Lady Farrington, said that these powers would be mainly exercised by the police but that they also might be exercised by the Environment Agency or English Nature.

I have one question to put to the noble Lord, Lord Bassam, of which I gave his department notice this afternoon in order that he should be able to answer it. Have such powers been granted, or are there plans for them to be granted, either to the Environment Agency or to English Nature? I believe that it is dangerous to give such bodies powers of this kind unless it is absolutely essential. Furthermore, I believe that on occasions when any official other than the police or, by long-standing convention of powers held for centuries, officials of Customs and Excise, who has been given powers by a Secretary of State needs to gain access, he should always be accompanied by a police officer. At the very least, that will make the occasion more formal. Even to contemplate that an odd official from English Nature should enter people's private premises without a warrant is, I believe, unacceptable.

This matter emphasises once again the generally unsatisfactory use of Henry VIII legislation; that is, primary legislation that gives powers to the Secretary of State by order. However, what I believe is much worse is that all too often, such statutory instruments are in effect themselves Henry VIII clauses. That is because they allow the Secretary of State to authorise anyone he wishes to exercise powers of entry without specifying who that person may be. That is a legitimate ground for complaint.

I hope therefore that in future any use of statutory instruments in this way will be much more carefully considered as regards powers of entry and that arrangements will be made for appropriate parliamentary scrutiny. Those arrangements are not available at present. Furthermore, I hope that, under its new and more legitimate form, your Lordships' House may feel that it should have the power to pray against, with a vote, certain statutory instruments. Previously that was something that the House has not felt able to do.

While I yield to no one in my support for the forces of law and order to use all appropriate means to fight serious wrongdoing, the trivialisation of such grave powers, as I believe the lead shot example to be, erodes freedom in a way that reduces rather than enhances public support for the forces of law and order on which we all depend. Finally, I hope very much that the Minister will give a positive and detailed reply to the points raised so sensibly and necessarily by the noble Viscount.

7.53 p.m.

Lord Lester of Herne Hill: My Lords, I am most grateful to the noble Viscount for initiating this debate on the important subject of effective parliamentary scrutiny of delegated legislation and in particular in the context of the right to personal privacy. In my

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remarks I shall not focus on the right to personal privacy, for reasons that I can briefly explain. Obviously it is vital that powers of search, entry and seizure should comply with the fundamental right to respect for private life anchored in Article 8 of the European Convention on Human Rights. One of the reasons Sir Stafford Cripps gave in 1949 for opposing the European human rights convention, when he was Chancellor of the Exchequer in the Attlee government, was that he wanted his inspectors to be free to search our homes without any safeguards being introduced. Half a century later, we have moved well beyond that point.

The reason why, with respect, I do not believe that the noble Viscount is correct in identifying a significant particular problem in the context which he has raised is because effective legal remedies are in place to deal with delegated legislation if it flouts the right to respect for personal privacy. First, if statutory instruments are made under Section 2(2) of the European Communities Act 1972, then they must be made with limits to their powers in accordance with European Community law. As the noble Viscount indicated, European law must be read subject to respect for human rights as laid down in the European Convention on Human Rights. It is beyond the power of Ministers or of this Parliament to produce statutory legislation which is not authorised by the 1972 Act and by the paramount law of the European Community. For that reason, if any subordinate instrument were made that violated the right to personal privacy, it could be challenged by way of judicial review and quashed. That will become even more the case when the Human Rights Act comes into force on 2nd October 2000. So the particular problem raised by the noble Viscount, although it is important that there should be safeguards of personal privacy, is dealt with through the legal process.

However, that does not answer the wider question raised by the noble Viscount, which does not concern legal remedies, but is about the effective parliamentary scrutiny of delegated legislation. That problem goes far wider than the particular question on the Order Paper. It has been addressed most helpfully by the Delegated Powers and Deregulation Committee of 10 Members of your Lordships' House, chaired by the noble Lord, Lord Alexander of Weedon. In evidence given to the Royal Commission on Lords Reform on 21st April 1999, it made a number of important recommendations with which I agree in their totality. The first matter that the Delegated Powers and Deregulation Committee supported was the establishment of a human rights committee, or a joint committee with the other place, and they referred to the commitment made by the Government to support the creation of such a committee. However, the Delegated Powers Committee pointed out that the terms of reference being proposed for the new committee had three particular gaps. First, there would be no proposed scrutiny of the compatibility of secondary legislation--a point raised by the noble Viscount--where much potential incompatibility may lie and which could be a very considerable task.

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Secondly, the Delegated Powers Committee pointed out that there was no mention of second-guessing ministerial statements on compatibility as laid out in Section 19 of the Human Rights Act, only,


    "the examination of draft legislation".

Thirdly, it pointed out that the new committee would need the power and resources to consider whether amendments tabled to a Bill would render it incompatible with the convention.

Finally, pointing out that we do not yet have a sensible structure, it recommended that we should set up a coherent committee structure in this House involving the creation of the following new committees in addition to ad hoc committees for the pre-legislative scrutiny of draft Bills: a human rights committee; a legal and constitutional committee--an important committee, given the special role of many second Chambers worldwide in relation to the constitution; and special scrutiny committees for detailed inquiry into selected statutory instruments.

I very much hope that the noble Lord, Lord Wakeham of the Royal Commission will find it easy to recommend those proposals to the House. If it does not, I hope that the House will itself seize the initiative. However, since that evidence was given on 21st April, it is my sad task to inform the House that was has happened since then has been a most lamentable dragging of feet by the Government in failing to set up a Select Committee on human rights, as had been promised a long time ago, or to indicate whether its terms of reference would include the scrutiny of delegated legislation.

I shall not weary the House with a detailed recitation of all the occasions on which questions have been asked, not least by me, on this issue and answers not given, but it has gone on for month after month. As long ago as 20th May 1999, the Lord Privy Seal, the noble Baroness, Lady Jay of Paddington, indicated in a Written Answer that it was the Government's intention to set up a Joint Committee on Human Rights before the Human Rights Act 1998 came fully into force but that no decision had been taken on when exactly both Houses would be asked to approve Motions to appoint such a Joint Committee. Again and again the Government have been pressed and again and again they have refused to give an answer. There are some Questions down in my name for Written Answer at this very moment.

The reason why that matters is that until such a committee is set up we shall not have any scrutiny machinery to deal with the kind of problems raised by the noble Viscount. Until we have a Select Committee, whether joint or separate, we will not have the expertise or the information to be able to scrutinise measures, whether primary or subordinate, for their compatibility with convention rights.

It goes further than that. The Government put on the face of every Bill, as they must under Section 19 of the Human Rights Act, a statement of compatibility. It expresses the view that the Minister believes the Bill--I am referring to primary legislation--to be compatible. Indeed, as the noble Viscount indicated, the

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Government have agreed to do the same under the affirmative resolution procedure for delegated legislation. But that is of no value unless the Government also give their reasons for considering that a measure, primary or delegated, is compatible. Again and again the Government have been pressed as to whether they will make it standard practice to give their reasons in order that we in this House and Members of another place are able to test those reasons.

The issue arises again and again. Tomorrow the same Minister will be dealing with the Committee stage of the Race Relations (Amendment) Bill. I wrote to the Government and put down Questions to the Government so that we could be properly informed before the debate tomorrow--I said preferably by 4th January so that we could have plenty of time--as to the Government's reasons for believing that measure to be compatible with convention rights. I received a courteous reply from the Home Office indicating that those involved were on holiday and too busy and could not reply in time. We have not yet had a reply and the Committee stage is tomorrow. It is quite wrong that we should be scrutinising an important Bill in Committee tomorrow when we do not have a clue as to the Government's reasons for considering that the Bill is consistent with Articles 14, 6 and 13 of the European Convention on Human Rights in relation to access to justice, Ministers' liability and equality of treatment without discrimination. We do not have a clue. As a lawyer, I do not have a clue as to the Government's case on that; still less on compliance with the International Covenant on Civil and Political Rights, which, as a member of the Human Rights Committee, the noble Viscount knows so well; still less on the Convention on the Elimination of Racial Discrimination.

We are in a pathetically ignorant state. We simply do not have the material. Lawyer Members of the House like myself have to do our best to help other Members who are not lawyers to address some of these questions as unpaid professionals doing our best in the way that we can. It is not good enough. We need to have a proper committee structure to deal with the kind of questions raised by the noble Viscount and we need the information so that we can know what the Government's case is, we can test it and we can call the Government to account.

I hope that the Minister will provide that information in the debate tomorrow on the Race Relations (Amendment) Bill. But I am addressing, as is the noble Viscount, systemic failures. We talk again and again about parliamentary sovereignty but the reality is that Parliament, or at least the other place, is controlled by the executive for most of the time between elections. The only way in which we can call the Government to account is by having effective powers and effective information. That is now what we must press for. For that reason, and for many others, I am most grateful to the noble Viscount for initiating

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the debate. I very much hope that it will be considered at the highest level of government as a matter of priority.


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