Previous Section Back to Table of Contents Lords Hansard Home Page

Noble Lords: Hear, hear!

The Earl of Listowel: My Lords, may I say that I hope those who have a different experience from those who have traditionally worked here will be able to respect the different but equally important experience of their peers. Those of your Lordships who dislike our system might care to reflect upon the United States upper house, in which a principal requirement for entry is wealth. Sadly, there are not many teachers or social workers or those with direct experience of working with the socially excluded there.

I hope the noble Lord the Minister will forgive my asking a question for which I have not prepared him and I would be pleased to have a written reply from him, if that is more convenient. Is there an audit kept of voluntary work experience with the socially excluded among those in the Civil Service and in government who are responsible for developing and implementing policy for the socially excluded? Is such experience recognised as an important factor in deciding on promotion within the Government and the Civil Service? I have learned much by spending a few hours a week in a hostel for the homeless and I now have a deeper understanding of the issues behind homelessness. Is it too much to ask of someone already loaded with responsibilities to spend two hours a week for six months or more teaching a prison inmate to read, working with the homeless or assisting in our schools? Nothing can replace personal experience.

4.51 p.m.

Lord Grabiner: My Lords, this is my maiden speech, but it is not the first time I have had the opportunity of speaking in this magnificent Chamber. As some of your Lordships may know, on those occasions during the

23 Nov 1999 : Column 353

legal term when this House is not sitting, appeal cases may be argued at the Bar of the House, which is at the opposite end to the Throne and the Woolsack. For the advocate, especially if he or she is a Queen's Counsel, it is a daunting and extremely uncomfortable experience.

There are at least three reasons. First, your view of the House from the Bar is like stepping on to the set of "Iolanthe". It is quite a shock first time round, and you never really get used to it.

Secondly, you have to wear a full-bottomed wig, which also doubles up as a set of earmuffs. As a result, you cannot hear any of what would otherwise be the devastating questions fired at you by one or other of the five Law Lords seated at small coffee tables on one side of the Bar. Thus the advocate has a plausible excuse for dodging the difficulties in the case. That is, I suppose, a justification for retaining this particular form of headgear. I must not be controversial, but some would say that it is the only justification for the advocate's full-bottomed wig.

The third reason is that you make your oral arguments from a narrow raised plinth, which inhibits the wandering advocate from marching about as he warms to his task for fear of falling and breaking his neck.

As to the substance of today's debate, I wish to say a brief word about one or two aspects of regulation. For many people, a mortgage and a pension are the most important and complex financial transactions they will ever undertake. The combination of consumer need on the one hand and the financial rewards for the seller on the other creates significant opportunities for abuse. This manifested itself in pensions mis-selling scandals, of which we are all aware. In the mortgage context, the Council of Mortgage Lenders is calling for statutory regulation, which would represent a significant move away from the voluntary mortgage code.

Until now, the approach to regulation in the United Kingdom has been to legislate by statute and subordinate instruments and to appoint a director with an agency to police the relevant legislation. It is usually the case that the emphasis of the work of the agency is post facto--after the event--when the damage has been done.

Perhaps we should now be looking more critically at the position of the lender or broker at the point of sale. Why should he not have a positive duty to advise the consumer? Why should he not have a positive duty of good faith to provide the consumer with all relevant information which would enable the consumer to make a balanced and informed judgment about the proposed transaction? It may come as a surprise to members of the public, or even to some of your Lordships, to learn that the common law has always set its face against the imposition of such duties. If the seller makes no statement which is factually misleading, he is not guilty of any misrepresentation. If the buyer fails to ask the right questions, the response of the common law is fierce: "Let the buyer beware".

23 Nov 1999 : Column 354

The classic common law position was succinctly and memorably summarised by the noble and learned Lord, Lord Templeman, in a slightly different context, in 1990 in a case called Banque Financiere v. Westgate Insurance Company. What he said, characteristically cogently and concisely, was:

    "A professional should wear a halo but need not wear a hair shirt".

The point I make is that in the context of home mortgages and when it comes to making provision for old age, the time has perhaps come to consider the imposition of more stringent, non-excludable duties on providers who are always more sophisticated and knowledgeable than their customers. As expert professionals, they either know, or ought to know, the pitfalls which may present themselves to the unwary. Perhaps the time has come to oblige the professionals positively to speak up about those pitfalls at the point of sale.

Still in the context of regulation, there is another distinct point I would like to mention. It relates to the position of small to medium-sized businesses which find themselves bound to comply with the minutiae of very complex rules. The burden of compliance can be extremely onerous and is becoming increasingly expensive.

The Financial Times of 17th November published the results of a survey conducted by the Institute of Chartered Accountants. It was mentioned, I believe, by the noble Lord, Lord Saatchi. The survey revealed significant increases in the cost to small businesses of complying with regulations. If you take account of the costs and the benefits, it is not always clear that the extra burdens can be justified. Indeed, on seeing the occasional 50-page closely typed foolscap memorandum addressed to a provider client, I have wondered whether the purpose of the document was in large part for the protection of the regulator's office rather than the customers of the relevant business. There is a very strong case in favour of the Government's proposal in the gracious Speech to provide machinery which in appropriate cases will have the effect of removing, or at least significantly reducing, some of this unnecessary paperwork.

In conclusion, may I say that making a speech within the Chamber is a much more comfortable experience than doing it from the other side of the Bar, and it is a very great privilege to have had both opportunities.

5 p.m.

Lord Boardman: My Lords, on behalf of the whole House it is my pleasant responsibility to congratulate the noble Lord, Lord Grabiner, on his maiden speech. He has a distinguished legal record. I was particularly interested in his comment that when the Law Lords are sitting they face the wrong way, as it were. That may explain some of the less understandable judgments! However, that may be speculation. I am sure that we look forward to hearing the noble Lord speak on many occasions in the future. With his great knowledge and experience, he will make a tremendous contribution to this House.

23 Nov 1999 : Column 355

Some 28 new Bills are proposed in the gracious Speech. A substantial programme of work is mentioned that will--it is claimed--help the country,

    "to meet the challenges of the new millennium".

I regret that despite the number of Bills hardly any of them seem to be directed at the objective which the gracious Speech appears to claim for them. There were some references to past achievements, which could be queried. For example, although I welcome the claim that 700,000 more people are in employment, it might have been fairer to acknowledge that that was due to the growing prosperity in this country, and hence the fall in unemployment, which the Government inherited.

I am delighted to note that 145,000 young people have been helped to enter employment. However, again, it would have been somewhat more modest--although that is not a feature of this Government--to have acknowledged the major contribution of many voluntary organisations in getting young people into work. I am particularly sad that the noble Lord, Lord Sainsbury of Turville, is not present because I am sure that he would endorse my remarks on this matter. I refer in this connection to the Prince's Youth Business Trust, as it was--it is now the Prince's Trust--and many other voluntary organisations which have contributed to the reduction in unemployment, particularly of the young.

The gracious Speech praises the,

    "new system of monetary policy-making".

That refers, presumably, to the Monetary Policy Committee. I pay tribute to that committee, but at the same time I retain the reservations that I have always held with regard to it. I believe that it is the responsibility of government, through the Chancellor of the Exchequer, to control interest rates, just as it is to control tax rates. They are part of an economic package and, like Darby and Joan, you cannot have one without the other. Those who belong to the eurozone are fast beginning to learn that lesson.

By all means, let the Chancellor of the Exchequer have all the advice that the Bank of England and the experts can give him, but the ultimate sanction and control must lie with the Chancellor. The Chief of the Defence Staff who is responsible for all our Armed Forces would not take a decision as to whether or not we should declare war. Therefore, I fail to see why the Governor of the Bank of England and his committee should have power over our economic future without the sanction or blessing of the Chancellor of the Exchequer, any more than the Chief of the Defence Staff should be able to declare war without the acceptance of government. I know that not everyone on both sides of the House agrees with my views, but I deprecate leaving the MPC to decide this important aspect of our national economy. Perhaps the economic "weather" has made the decisions of the MPC somewhat easier of late, but when the financial storms come--as they will--we shall hear a rather different story.

23 Nov 1999 : Column 356

I read that there is a rather strange problem now as regards the MPC. I thought that it was intended that the independent members of the MPC should have some experience of economics and a wide knowledge of external affairs to enable a balanced view to be provided. However, apparently, the independent members want economists and researchers attached to their own staffs. I believe that at present the Bank of England has 180 economists who advise the Governor and the members of the MPC on all these matters. The prospect of the independent members having staffs of economists and researchers fills me with horror. Whatever is decided on that matter, I remain of the opinion that responsibility for these matters must rest with the Chancellor of the Exchequer who is accountable to the Government, to Parliament and, ultimately, to the electorate.

I turn to the Financial Services and Markets Bill which is now in the other place. This Bill fills me with some horror if it is to come to us in anything like the form in which it was presented in the other place. It has produced a mass of regulations and bureaucracy. It seems inconsistent to refer to this in the same context as the deregulation legislation which is also mentioned in the gracious Speech. Why should a financial services authority have statutory immunity from negligence and recklessness? Why should firms that are dealt with incompetently by a financial services authority not be able to get compensation? The damage that a firm may suffer through a ruling given by such an authority in a reckless, incompetent or negligent manner could be vast. I hope that when the Bill reaches this House, those matters will have been put right.

The Government have said in the gracious Speech that they are determined to maintain and advance the UK's position in financial services. I wonder how they reconcile that attitude with their attitude as regards a withholding tax. As we have debated this matter before, I shall not speak at length on it. The Government have, rightly, rejected the European Union's policy on this, but they have now attempted to reach a compromise. Whatever compromise is reached will be bound to result in the loss of thousands of jobs and will cost this country millions of pounds. Business will move outside the European Union and will go to Switzerland, America or a convenient island which does not treat it in this way. As regards this matter, I urge the Government to tell the European Union "to get lost". The problem is that the Germans are unable to collect their own taxes. They are not prepared to reject banking secrecy to control their taxes. Therefore, they try to impose on others the duty of collecting their taxes and handing them over. That is not our game. They should put their own affairs in order.

My noble friend Lord Saatchi has dealt with the main points as regards taxation. There are many points to raise. He outlined the tax punishments which are being imposed on the people of this country. Contrary to all the promises which have been made, the tax burden is growing more quickly here than anywhere else in Europe. The Government have tried to deny that. The House of Commons Library, the

23 Nov 1999 : Column 357

CBI, the Institute for Fiscal Studies--my noble friend mentioned many other such bodies--confirm that the present taxation burden is correct. They also confirm that the Government are likely to take 39.6 per cent of GDP in taxation. That is a rising trend. My noble friend mentioned something which has just been disclosed; namely, that taxes have risen three times as fast as prices during this Government's administration. I believe that that is a scandal. The Minister may find a way in which he can explain it. I wait with interest for him to do so.

The increase in taxes has not yet been widely recognised. There have not been increases in taxes such as income tax and so on--which would be seen straightaway--but there have been discrete stealth taxes, as they are called. For example, if pensioners have their money invested in companies, they do not realise that dividends are paid less tax and that they cannot now recover the taxation. Pension companies have to reduce the amount of pension they are able to provide, and so on.

A retired pensioner, with modest savings and an annual pension of £5,750, will now pay an additional £1,300 per annum in taxation under this Government. People have not fully recognised this yet, but, my goodness, they will shortly. It is no consolation to turn round to pensioners and say, "You will get your £100 winter heating allowance", or whatever it is. Compared to the £1,300 in the case I quoted, that will not go very far.

There are many other examples of stealth taxes. The tax on insurance premiums has gone up from 2.5 per cent to 5 per cent. When people read that, they may not think too much about it; they may think that it is not very much. But when one thinks of the insurance premiums they pay on their house, their car, their life, their health and all the rest of it, it amounts to a considerable sum. All this has been slipped in as one of the stealth taxes.

I wonder with some concern what is being planned by the Paymaster General in her Code of Conduct Committee. She has committed the Government unanimously to agree whatever is decided in that committee, but no one has told us what it is deciding or what it has decided. I find that rather disturbing.

The gracious Speech contains a depressing message. The burden of tax is rising; more bureaucracy and regulation is being introduced despite the Bill which is expected to abolish it. It contains a mixed bag of measures which do not give encouragement,

    "to meet the challenges of the new millennium",

as is stated at the beginning of the gracious Speech.

5.12 p.m.

Baroness Whitaker: My Lords, I rise with diffidence as a new Member of your Lordships' House, although I am much encouraged by the warm welcome from all sides and by the helpfulness of staff and colleagues, to which many others in my position have testified. I am particularly impressed by the mentoring system adopted by my noble friends, whereby an experienced Member takes a new Member personally under his or

23 Nov 1999 : Column 358

her wing--an example, perhaps, of how your Lordships' House can develop a modern system, if I may use the adjective again, under a very old name like mentor. I take this as a symbol of the way the new House, which I am privileged to join, adapts to the modern world.

In this spirit I should like to devote my maiden speech--I hope in the tradition of being non-controversial--to those parts of the gracious Speech which relate the development of a modern economy to a more inclusive social order, particularly in respect of race.

I begin with the proposals aimed at making the Race Relations Act apply to public authorities in all their functions. I am reminded of a work of history which I fear lingers with me more than some more serious ones but which, nevertheless, contains some good reforming sentiments. I refer to 1066 and All That by Sellar and Yeatman, in which they reported that one of Magna Carta's key principles was that,

    "everything should be of the same weight and measure (except the Common People)"--

who, of course, being the great majority outside the predecessors of your Lordships' House, remained serfs, villeins and so on.

We could say that the new race provisions will be an advance on Magna Carta because police enforcements and other actions by public authorities will then give an equal weight and value to all our systems in a way in which it did not before. I hope, though, that these provisions will apply not only to public authorities but to all those who carry out a public function, so that privatised services under contract to public authorities are also made fully accountable.

I hope, too, for an apparently small change to be made in the powers of employment tribunals in race discrimination cases, obliging them to draw an inference from an employer's refusal to fill in the questionnaire prescribed by the Race Relations Act--known to those who sit through such cases, as I have, as the RR65, a term which I am sure will be widely familiar to your Lordships. This modest questionnaire has a fundamental importance. Race discrimination is hard to prove in law. Employers who do not act in good faith--there are, regrettably, still some--or those who do not realise what the culture of their company amounts to, can conceal what has come to be called "institutional racism" in their own internal processes which it is almost impossible for the applicant--particularly the applicant without professional representation--to bring to light. Refusing to respond to the questionnaire often means that there is something to hide. So it is surely right that tribunals should have the backing of the statute in drawing their own conclusions from that refusal. I hope very much that all your Lordships, of all party backgrounds or none, would support this view.

I should like briefly to welcome another future development. Later this week the European Commission will be in a position to adopt a draft directive aimed at outlawing race discrimination in

23 Nov 1999 : Column 359

employment and in goods and services-- including such important ones as education and social security--throughout the European Union.

A fair chance in education and in earning a living are central to full participation in our society, as our law in the United Kingdom recognises. It is because our law in this area is developed that the United Kingdom has an opportunity to take a lead within the European Union; to use its immense diplomatic capability, which I know well from previous work, and its rather more newly found prestige in Europe to help ensure acceptance of the draft directive by the Council of Ministers; and to negotiate the text thereafter--to the benefit not only of our fellow Europeans with their many minorities such as the persecuted Roma people, but also to help our citizens who go to the European mainland to train or to work and who in many, if not most, states of the Union, have no redress against the discrimination they meet on the grounds of race, ethnicity or religion.

Race discrimination also constitutes a barrier to free movement, as in the case of which I heard of a black architect who refused an important post in a European member state because of the difficulties he knew he would encounter.

Perhaps I may be permitted a brief snapshot from the past. When my grandfather arrived in this country from Poland--I think as an economic migrant, although his family had also suffered persecution; anyway, I am glad he was let in--Nottingham, the city where he made his home and where I went to school, offered opportunities, acceptance and diversity such that he was able to bring up his new English family in peace and make a full contribution to society.

In later decades Nottingham was not always so kind to people of all races. Indeed, it was one of the first--if not the first--city to endure and perpetrate race riots. At that time, from where I was at university in the United States, it looked as if this country was poised to become polarised on racial difference.

But the risk was eventually halted, I believe, by a counter-movement--a determination on the part of some energetic people. Here I pay tribute to the late Jim Rose, one of the founders of the Runnymede Trust, of which I am a trustee. With Members of your Lordships' House past and present, and others, Jim helped the government of the day--and there was not just one government involved--to create a momentum for change and set up those legal frameworks and institutions which now go some way (not yet all the way) to safeguard human rights in respect of race discrimination.

That is the national scene as it appears to me. However, on our continent there is now just such a need to halt destructive and life-threatening attitudes to the diverse background of the people who live and work there. There is a new power in the European Union, derived from the Treaty of Amsterdam, to deal with racism. Hence the planned directive. It offers an opportunity to create conditions of acceptance and encouragement for a multicultural society of

23 Nov 1999 : Column 360

enormous talent and potential. Those opportunities are becoming more available in this country. They have an economic as well as a social importance. We now have a chance to foster them in Europe as a whole. Our Government, who are respected for their support for the rule of international law and human rights, will be well placed for this task.

But enough of the future. I now look forward to the rest of the debate and, eventually, bearing in mind what the noble Lord, Lord Marlesford, said to me was important to remember about your Lordships' friendly reception of newcomers: "It's not what they say, it's what they think", I look forward to learning more of what is in your Lordships' minds.

5.22 p.m.

Lord Jacobs: My Lords, on behalf of the whole House I am delighted to congratulate the noble Baroness, Lady Whitaker, on a very fine maiden speech. Her expertise is already self-evident. She has experience, so I understand, as a consultant to the United Kingdom on racial equality. As we all know, this House thrives on expertise and there is always room for at least one more expert, if not many more. On behalf of the House, I thank her very much and offer our congratulations.

It is just under two years ago this week that I made my maiden speech. That is why I was a little over-awed by this occasion. Then, I said:

    "The Labour Government have come to power at a time when Britain is economically the strongest country in Europe: low inflation, falling unemployment, steady growth in the economy, a rapidly diminishing PSBR, altogether a veritable honeypot of a situation".--[Official Report, 3/12/97; col. 1383.]

When Labour came to power there was a justified fear, based upon its previous performance in government, that it would rapidly increase public expenditure and that very quickly the economy would go out of control. Five years ago we were facing a fiscal deficit of £46 billion. Today, we have a fiscal surplus of £2 billion, probably rising to £10 billion within three years. Unemployment is low and falling, inflation is under control and, although the strength of sterling has caused severe problems to exporting manufacturers, nevertheless there is evidence that by rigorous cost control manufacturers are managing to increase exports, although no doubt at very low profit margins. Of course, if we had joined the euro from the start then sterling would effectively have been 10 per cent lower than it is today. That perhaps explains why most of manufacturing industry strongly supports joining the single currency.

It is disappointing that the gracious Speech made no mention of the single currency, for joining will raise the standard of living of everyone in this country. Low euro interest rates mean low borrowing costs for industry. Low rates make marginal new investment projects profitable. Low rates reduce the cost of mortgages. Finally, price transparency between Europe and Britain will bring down the price of consumer goods in the UK.

23 Nov 1999 : Column 361

The Chancellor's GDP forecast last year was derided by every economist in the UK. I say nothing of political parties which may have done so. They derided it for being politically self-serving and grossly exaggerated. With few apologies, most economists accept that they were wrong and are now showing a new respect for Treasury forecasts. In fact, the belief now is that the forecast growth of GDP of 2¼ per cent is probably on the low side, which means that fiscal surpluses will be even greater.

The Government have a programme to improve both education and the National Health Service, which is why my party strongly endorses it. But it has a further objective, which is to improve the lot of the least well off in the community. One way of doing that has been to bring in a minimum wage, which was my own party's policy for many, many years. Great fears were expressed by the Conservative Party that that would increase unemployment, increase industrial costs and, generally speaking, reduce the growth in the British economy. That has not happened. The most successful economy in the world--that of the United States--has for many years had a minimum wage, yet this fact in no way influenced the Opposition in their fight against the minimum wage. From their Benches there comes no expression of surprise that they were mistaken in their views.

Everyone accepts that those on the minimum wage are among the least well off in the community. In reality, the minimum wage is not much above subsistence level. Its introduction is nevertheless very welcome. However, one would expect that on a minimum wage one would be allowed to keep one's weekly wage. Perhaps it would surprise your Lordships to learn that on a minimum wage, working a 40-hour week, one would be taxed on about 40 per cent of one's income. The tax rate would not just be the lower rate of 10 pence; a substantial element would also be taxed at 23 pence in the pound. As if that was not enough, there is also a charge to bear of employee national insurance contributions so that the marginal rate is 33 pence in the pound.

If we believe in a fairer society, surely we can ensure that those with the very lowest wages in Britain can be allowed to keep 100 per cent of what they earn. Is there any wonder that so many hesitate before moving from unemployment into full-time work? This issue is particularly relevant at a time when the Government are set on reducing the standard rate of tax from 23 pence in the pound. I venture to suggest that by the general election it will be headed for 20 pence. Surely the Government have at this moment got their priorities wrong. Those on minimum wage deserve to have no deductions for income tax or national insurance.

The Government's decision to bring in last year a new system of capital gains tax was applauded by us. When CGT was first introduced in the 1970s, my own submission to the Inland Revenue on behalf of the Liberal Party was against indexation and in favour of something called "taper relief". Now at last we have such a system, and for relief of business assets the five-year taper, which gives an effective rate of 10 per cent,

23 Nov 1999 : Column 362

is a great incentive to entrepreneurs. For non-business assets, a taper over 10 years would be reasonable if the starting rate were 30 per cent and not 40 cent. In the United States the rate of capital gains tax without any reliefs is 20 per cent. I believe that 40 per cent is the highest capital gains tax rate anywhere in the western world.

Finally, I should like to address another issue which would improve the standard of living of everybody in this country. The issue should be well known to your Lordships, although it did not feature at all in the gracious Speech. Yet it is promoted strongly by the Chancellor of the Exchequer, the Secretary of State for Trade and Industry and the Minister with responsibility for consumer affairs. The subject is consumer prices in the UK.

Credit here must be given to the Sunday Times for having carried out numerous investigations over the years to demonstrate beyond any possible doubt that in Britain we pay higher prices for practically everything compared with our neighbours across the Channel and even our neighbours across the Atlantic. The colloquial term given to this phenomenon is "Rip-Off Britain". Certainly the issue is gathering strength because leading manufacturers and retailers in their private meetings with Ministers are saying how unjust they think this attack is. They claim that the facts are wrong or, alternatively, that the reasons for higher prices are exclusive to the UK. As a former industrialist, I would have argued the same thing, but the explanations for the most part are grossly exaggerated.

Many surveys have proved incontrovertibly that we are paying excessive prices for cars, pharmaceuticals, electrical goods and food. The prize of lower prices and a higher standard of living for everyone is surely worth some adverse criticism from large manufacturers and retailers. Lower prices would certainly not be welcomed by Ford, Glaxo Wellcome, Sony or Tesco. The public are just beginning to be aware that they are being overcharged for almost everything, but they do not have the power or the organisation to put their views strongly to the Government, notwithstanding the good work done by some consumer organisations.

What is argued is that the cost of production in retailing is higher in the UK. Retailers claim that rents in London are higher than elsewhere, yet in reality they are no higher than in New York. They claim that transport costs are higher due to the heavy taxation of petrol, particularly as compared with the United States. But what they omit to mention is that in the United States the distances between cities are tremendous while here in Britain they are very small indeed. We are a compact and densely populated island which is ideal for distribution. They say also that sterling is very strong which distorts prices. That is hardly a persuasive argument, because a strong sterling means low import prices which should, if anything, mean lower prices in the UK.

Now I have no difficulty in supporting the Government in their campaign to deal with these issues. They rightly claim that they have referred many

23 Nov 1999 : Column 363

of these areas to the Office of Fair Trading and the Competition Commission. These references include electrical goods, supermarkets, cars and now even soft drinks sold by pubs. They clearly are pro-active about this matter. Where I remain concerned is that the Government appear to be advised that these references will in the main be successful and that nothing more need be done. For the references to be successful, those being investigated must have done something illegal or severely against the public interest. High gross margins of themselves are not an offence unless, of course, they were illegally agreed between competitors.

Many of the high retail prices are not necessarily the fault of retailers. Very often it is the international manufacturers which charge the retailers very much higher prices in the UK than elsewhere. We are not known as Treasure Island for nothing. I think it will be difficult to find fault with the supermarkets and I am not confident that the Competition Commission's investigation of car prices will come up with a good result because it is faced with a very unusual situation where 50 per cent of the cars are sold at prices that are lower than anywhere else in Europe, to fleet buyers, and consequently manufacturers cannot afford to reduce retail prices unless they illegally agree to raise fleet prices first. I mention that to show that the issues are much more complex than the media would have you believe.

Yet again I urge the Government to talk directly to manufacturers because it may be possible to obtain lower retail prices in many areas by agreement. Of course competition is the main weapon to achieve lower prices and I believe that the arrival of Wal-Mart may achieve lower prices in supermarkets even if the Competition Commission fails.

5.33 p.m.

Lord Millett: My Lords, it is a great privilege to contribute to this debate. Like the noble Lord, Lord Grabiner, I have an advantage which is not given to most maiden speakers. As a member of the House's Appellate Committee, I have also addressed your Lordships' House before, though I was able to do so from the Front Bench. So, while the noble Lord has gone up in the world, I suppose I have gone down.

My purpose today is to give a cautious welcome to the statement in the gracious Speech that legislation will be introduced,

    "to assist the rescue of viable businesses in short term difficulties".

No one will quarrel with that objective, least of all myself. Twenty years ago I was a member of the Cork Committee on whose report our present Insolvency Act is based. That Act was responsible for introducing the rescue culture into our insolvency law. The Act has worked well, but it has some defects. One became apparent almost at once. The company voluntary arrangement, which should provide a simple and inexpensive procedure for companies to co-operate with their creditors, has proved virtually a dead letter. That is because we failed to provide for a short

23 Nov 1999 : Column 364

moratorium in order to allow the company to reach agreement with its creditors. I understand that the Bill will remedy this. If so, it will be very welcome.

The Bill is to be introduced against the background of a continuing review of our insolvency law. There is an unfortunate tendency in this country to look across the Atlantic and to consider that Americans do everything rather better than we do. Thus it is that our insolvency procedures are often compared unfavourably with Chapter 11. The Cork Committee examined Chapter 11 with great care. We did not like what we saw. We preferred to devise our own procedure, the administration order. Later, the Australians were able to compare both systems in practice. They chose to adopt ours.

Chapter 11 is usually thought to have the great advantage of what is called "the debtor in possession". It is generally assumed that this means that the directors stay in office and that they are therefore encouraged to file for insolvency at an earlier stage than happens here. That is a misconception. The debtor in Chapter 11 does not mean the directors; it means the company. In well over 80 per cent of all Chapter 11 proceedings, senior management is replaced almost immediately.

The real difference between the American system and ours is that they use lawyers and we use accountants. Now, I am the last person to be against lawyers being gainfully employed. But the result is that Chapter 11 is hugely confrontational. Each interest is separately represented--secured creditors, unsecured creditors, shareholders, directors and employees. An expensive bun fight follows in which each party fights its own corner and the court presides over a series of plea-bargaining sessions. Chapter 11 is very expensive--far more expensive than our administration order procedure--and in practice is really available only for very large companies. We do not need to go down that route because we enjoy the great advantage, which the Americans lack, of a highly professional body of insolvency practitioners drawn from the accountancy profession who are experienced in managing and rescuing businesses in trouble. They bring a commercial rather than a legal approach to what is after all a commercial problem.

When I saw press reports of the Government's consultative document, I was astonished to read that we have the most creditor-friendly insolvency system in the world. I was astonished because that is quite untrue. The ordinary trade creditors get a very raw deal in this country. On reading the actual document, I saw that it said something rather different. It said that we have the most secured creditor-friendly system in the world. That is true. It is true because of the floating charge. In an English insolvency, the Inland Revenue comes first, the lending institutions with their floating charge come next, and the ordinary unsecured trade creditors take whatever is left, which is very often nothing. Trade creditors have learnt from bitter experience not to expect anything out of the insolvency process. They simply write off the debt as a bad debt.

23 Nov 1999 : Column 365

It also increases the domino effect of insolvency. Apart from incompetence, more businesses fail because of bad debts than from any other single cause.

The Cork Committee was determined to do something for the unsecured creditors. We recommended a reduction in the Revenue's preferential debts, but we did not want the money released by that to go to the lending institutions. We wanted it to bypass the floating charge and go straight to the trade creditors. We put forward a package. To our surprise the Government accepted a reduction in the preferential status of the Revenue but rejected the rest of the package. The result was very beneficial to the banks, but in most cases it did nothing for the trade creditors.

I understand that the Government are now considering a further reduction in the Revenue's preferential status. If so, that will be very welcome. However, I hope that we do not make the same mistake again.

5.40 p.m.

Lord Fraser of Carmyllie: My Lords, the noble and learned Lord, Lord Millett, is the second distinguished lawyer to make a maiden speech today. As a fellow bencher at Lincoln's Inn, it is a particular privilege to have the opportunity to follow the noble and learned Lord and to congratulate him on his speech. After a very distinguished career at the Bar, he is now a Lord of Appeal in Ordinary. The noble Lord, Lord Grabiner, pointed out some of the absurdities of an appearance before your Lordships' House in a legal capacity. However, I wonder whether to the layman there is anything more absurd than when someone of the calibre of the noble and learned Lord, Lord Millett, who has reached the pinnacle of judicial office, then comes to be described as "in Ordinary".

For me, a particular pleasure of the noble and learned Lord's speech was when he clearly indicated that he will contribute when we come to deal with matters of insolvency. There have been occasions when some noble and learned Lords holding his office have been somewhat circumspect in their contributions to our debates. However, I hope that the noble and learned Lord will not feel in any way restrained about contributing.

I also extend my congratulations to my noble friend Lord Bagri. I confess that I provoked him to make his maiden speech during this debate and I make no apology for that. Unfortunately, during the election of hereditary Peers to this side of the House, neither of my noble friends Lord Poole and Lord Trenchard was elected. That is particularly unfortunate. They served with me on the Financial Services and Markets Joint Committee chaired by the noble Lord, Lord Burns, and their contributions were significant and worth while. I hope that in some measure my noble friend Lord Bagri, having been persuaded to contribute to this debate, will participate on the Financial Services and Markets Bill to make up for the deficit that we have regrettably suffered.

23 Nov 1999 : Column 366

The gracious Speech contained some interesting paradoxes. We have been told repeatedly that the core of government policy is, "Education, education, education". However, for the first time in history, into the mouth of the Sovereign was put a split infinitive. Knowing the effort that goes into the preparation of the Queen's Speech, I do not believe that this was a flaw on the part of the Civil Service and it must have been intended by Ministers. I suppose that in a modernised Britain, what is good enough for "Star Trek" is good enough for the Sovereign.

Next Section Back to Table of Contents Lords Hansard Home Page