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Earl Russell: My Lords, has the Minister looked at the debates in the House on the Nationality, Immigration and Asylum Bill? If the Home Secretary had done so, he would not have been nearly as surprised as he was by Mr Justice Collins's judgment.

Baroness Scotland of Asthal: My Lords, I cannot speak for my right honourable friend, but I am relatively confident that the issue excited so much of his attention during that period that he could not have failed to look at much of it. Of course, I cannot comment directly, as I am not in a position to give your Lordships an answer on that.

My right honourable friend said that there was,

Those two formulations—that by the learned judge and that by the Home Secretary—are of the same principle. It is the role of Parliament to pass laws that set a framework for sentences and the role of the courts to operate within that framework in considering individual cases.

Lord Hunt of Wirral: My Lords, does the noble Baroness agree that,

    ""to put legislative straitjackets on the judges' discretion to sentence for serious crimes is almost always a mistake".—[Official Report, 5/6/96; col. 1256.]

Those are not my words; they are the words of the noble and learned Lord the Lord Chancellor in the debate seven years ago. Those words will come back to haunt him.

Baroness Scotland of Asthal: My Lords, I do not think that they will haunt him. Of course, we would assert that this is not what this Government are seeking to do. I say right away—

Lord Lester of Herne Hill: My Lords, I thank the Minister for giving way. Would the Minister agree with me that it is not desirable for a senior Minister to go on the radio on the same day as a judgment before it could possibly be interpreted to him and to make a powerful statement about it? That is not a wise exercise of public power, is it?

Baroness Scotland of Asthal: My Lords, I absolutely hear what the noble Lord says. It is not for me to comment on that. But it is right that the Home Secretary made his feelings felt. I think others have commented on it in this debate. I have not heard anyone, in this debate or outside, disagree with the statement of principle that my right honourable friend the Home Secretary made in response the next day—that is, the comment in the article. Neither have I heard anyone dispute what was said by the learned judge. Both were saying the same thing.

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My third general point concerns the relationship between the judiciary and the executive. A number of noble Lords, including the noble Lord, Lord Goodhart, and the noble and learned Lord, Lord Morris of Aberavon, made the point that, here again, self-restraint is the hallmark. One would expect no less of the noble and learned Lord, Lord Bingham of Cornhill, who I see in his place, than to be scrupulous, and so he was in opening his judgment in a recent case. He said:

    "The question arises, as one of law not policy, whether there is a power which, compatibly with the European Convention on Human Rights, the Secretary of State may properly exercise, and the answer must turn on how, on a proper legal analysis, exercise of that power is properly to be regarded".

This would seem to me, with respect, to be a model approach.

For a government, of course, those checks can be, from time to time, uncomfortable. But the press too often misunderstand that judicial review is not an appellate procedure. That point was made very strongly by the noble Lord, Lord Rodgers of Quarry Bank, in his opening address. The court does not substitute its opinion for that of the decision-maker on whom Parliament has conferred that power. The court rules only on the legality of a decision, not on its correctness.

The Government seek a partnership with the judiciary. I, too, welcome the contribution made by the noble and learned Lord, Lord Hope of Craighead, who outlined very clearly how that relationship has developed in consultation and how the debate has been better informed by the way in which that partnership has evolved. The Government welcome that partnership and rejoice in it. The separation of powers does not imply only that each should challenge the other. In relation to the way in which the proper interests are challenged, there should also be a working together; a working in harmony.

The criminal justice reforms are central to government policy and there can be no doubt that they are needed. Over 80 million a year is wasted through adjournments, delayed and cracked trials. Only 43 per cent of trials in magistrates' courts are effective. We are also concerned to achieve greater consistency in sentencing. Evidence from around the country suggests that there is some way to go in this area, especially in magistrates' courts. The Sentencing Guidelines Council, to be chaired by the noble and learned Lord the Lord Chief Justice and with a majority of judicial members, will have a crucial part to play in delivering these reforms.

I can reassure the noble Lord, Lord Rodgers of Quarry Bank, that this is not a cosmetic exercise and it is not intended to diminish the importance of the necessary exercise of judicial discretion. That work will be added to by the Criminal Procedure Rule Committee. The Government are accountable to communities, victims and witnesses for their delivery of these reforms. We have to challenge the status quo in order to deliver. But I reassure the noble Lord, Lord

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Dholakia, that we understand fully the importance of the role of the judge and the exercise of judicial discretion.

The Government have been in discussion with the noble and learned Lord the Lord Chief Justice and other members of the judiciary on the development of the policy relating to the criminal justice system, and we shall continue to do so. There have been a number of meetings with Home Office Ministers and officials since early last year on the Criminal Justice Bill and more recently on sentencing reform. My right honourable friend the Home Secretary has agreed to several changes to the legislation to meet concerns expressed by the senior judiciary.

Home Office officials are now working on a draft protocol on consultation with the judiciary about legislation. A senior judge sits on the National Criminal Justice Board—endorsed by my right honourable friend—which will be taking forward these and other criminal justice reforms. We are building a partnership, which is as it should be. Certainly, I can say—perhaps I may also say personally—we rejoice in that partnership and have reaped many benefits from it.

When your Lordships' House debated this issue in 1996, the noble and learned Lord, Lord Irvine of Lairg, affirmed that,

    "the role and independence of the judiciary would be vigorously upheld by the next Labour Government".—[Official Report, 5/6/96; col. 1313.]

It has been and it will continue to be.

8.20 p.m.

Lord Rodgers of Quarry Bank: My Lords, the debate has run its course. I wish that I had time to thank all the speakers, but I have no choice but to fall upon a period of calm and silence. I beg leave to withdraw the Motion for Papers.

Motion for Papers, by leave, withdrawn.

Clergy Discipline Measure

8.20 p.m.

The Lord Bishop of Winchester rose to move That, in accordance with the Church of England Assembly (Powers) Act 1919, the Clergy Discipline Measure be presented to Her Majesty for the Royal Assent.

The right reverend Prelate said: My Lords, the Clergy Discipline Measure before your Lordships' House this evening represents a major revision of the disciplinary procedures of the Church of England. It is the result of very long and careful consideration of the General Synod and comes to the House with the strong support of the General Synod and the Church of England, after having been found expedient by the Ecclesiastical Committee. It is with confidence that I commend it to this House for approval.

The current arrangements for clergy discipline are contained within the Ecclesiastical Jurisdiction Measure 1963. Its procedures, modelled in some ways

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on those of criminal courts, have been found to be inflexible, expensive and slow. The result has been that the 1963 Measure is rarely used, which has had serious consequences. A significant number of complaints have been left unresolved; discipline has tended to be exercised informally and on a voluntary basis; and a cleric's resignation has been a frequent outcome, not always appropriately.

That situation is unsatisfactory, not least from the point of view of the clergy themselves. If they are to be respected and trusted, a manifestly credible, fair and transparent system for administering discipline is essential on those rare occasions in which we fall short of the standards rightly expected of us.

Accordingly, in 1994 the General Synod established a working party to review clergy discipline and the working of the ecclesiastical courts. There followed an extensive consultation and an examination of good practice in other Anglican provinces, other Christian churches and the professions and employment in the United Kingdom, which led to the report Under Authority. Legislative proposals were then developed and taken through a long and careful process of revision in the Synod. The Measure that resulted from that lengthy process commanded the support, on its final approval in November 2000, of 100 per cent of those voting in the House of Bishops, 99 per cent in the House of Laity and 90 per cent in the House of Clergy, in which only 23 voted against final approval, with 200 voting for it.

In drawing up the Measure, the Church has sought to construct procedures which are fair to all parties; are capable of applying to all types of clergy, whatever their rank, experience or circumstances; are easily understood and flexible; and encourage as speedy a resolution as is consistent with the needs of justice. We firmly believe that the procedures in the Measure will meet all those requirements and enable genuine complaints to be dealt with effectively, while excluding those that are trivial, malicious or vexatious.

In detail, the disciplinary procedure under the Measure, which relates only to cases of misconduct and not to matters of worship or doctrine, will be activated by a written complaint to the bishop. Once received, the complaint will have to be examined by the diocesan registrar, a practising lawyer, who will decide whether the complainant has a right to complain under the Measure, whether it involves a disciplinary matter and whether the evidence supplied supports the complaint. On the basis of the registrar's assessment, the bishop will then decide whether the complaint should be dismissed. If he decides not to dismiss it a number of courses are open to him, including taking no further action, leaving the complaint on the record, seeking to promote conciliation, or imposing a penalty with the cleric's consent. The remaining option is to refer the complaint for investigation with a view to it being brought before a bishop's disciplinary tribunal if the President of Tribunals, again a lawyer, agrees that there is a case to answer.

In practice it should seldom be necessary to follow that last course of action. In those rare cases where a complaint does proceed to a tribunal, the case will be

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heard by a tribunal of five members—two clergy, two lay people and a legally qualified chairman—allocated from provincial panels. Their decision will be by a majority using the civil standard of proof. Appeals will continue to lie to provincial courts of appeal.

As regards penalties, the Clergy Discipline Measure will give more flexibility than does the 1963 Measure. The most severe, for use in the most serious cases, is prohibition for life, which involves a permanent ban on exercising any clerical function. Others include prohibition for a limited period, removal from office, revocation of a licence, requiring the cleric to refrain from some offending behaviour, and, lastly, giving a formal warning. The Measure also provides for the bishop to be able to impose some of those penalties after certain proceedings in the criminal or divorce courts—whose findings are treated as conclusive for the Church—and gives him a new power of suspension.

A closely similar process is made available for complaints about bishops and archbishops. Among its other provisions, the Measure also provides for the establishment of a new commission, the clergy discipline commission, to give general advice on the working of the Measure and to issue codes of practice and guidelines, and for the maintenance of an archbishops' list—a confidential record of penalties imposed under the Measure and other matters.

In drawing up these new procedures the Church recognises that disciplinary proceedings can have very serious implications for clergy even where the complaint is about a relatively minor matter. We have therefore been concerned to ensure that the rights of the clergy are properly protected. To that end the draft Measure was subject to a detailed scrutiny by leading counsel specialising in human rights law. Counsel was satisfied that the requirements of Article 6 of the European Convention on Human Rights, conferring the right to a fair trial, were met by virtue of the rights of appeal to the provincial courts. But he identified ways in which, had that not been the case, the Measure as originally drafted might not have been fully consistent with human rights requirements. A number of changes were made as a result; and we are therefore as satisfied as we reasonably can be that the Measure is fully compliant with the Human Rights Act.

The proper protection of the human rights of the clergy was of course a matter to which the Ecclesiastical Committee was entitled to give the fullest consideration, and it did so. One of the principal issues it addressed, at pages 55 and following of the committee's report, was that of the standard of proof where a complaint is heard by a tribunal. We explained to the committee that the choice of the civil standard, as opposed to the criminal standard which applies under the 1963 Measure, was arrived at after thorough consideration and much debate in the revision committee for the Measure and in the Synod as a whole.

The civil standard is increasingly used in the disciplinary procedures of other professional bodies. In our view it strikes an appropriate balance between

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the interests of the wider Church and the public in not allowing misconduct by clergy to go unchallenged and the right of clergy to a fair hearing and a safe decision. This is because the level of proof required will vary according to the seriousness of the allegation and the implications for the cleric. Thus in the most serious cases the standard of proof required will be indistinguishable from the criminal standard.

This understanding of the position was accepted by the Ecclesiastical Committee, which was accordingly content to accept that the adoption of the civil standard of proof was appropriate. In its examination of our representatives and in its report the committee addressed other matters but none was such, in its judgment, as to render the Measure inexpedient. In so far as the committee made recommendations for consideration by the Church, we are grateful for them and shall give them very careful consideration in the implementation of the Measure if it passes into law. The committee's decision, by a substantial majority, to find the Measure expedient reinforces my confidence that the Synod's proposals embodied in the Measure will commend themselves to this House.

In conclusion, the Measure is the fruit of very long and careful consideration by the Synod of the needs of all those who have an interest in this important area, not just clergy, their bishops and the lay people of the Church but also the wider public. We believe that it strikes a fair balance between their different interests and that in doing so it will give the Church a fair, credible and open system for dealing with disciplinary issues. I beg to move.

Moved, That, in accordance with the Church of England Assembly (Powers) Act 1919, the Clergy Discipline Measure be presented to Her Majesty for the Royal Assent.—(The Lord Bishop of Winchester.)

8.32 p.m.

Baroness Turner of Camden: My Lords, I thank the right reverend Prelate for introducing the Measure. I speak on this issue because, as some noble Lords will know, I have an interest as a former official for the union to which a number of clergy belong, Amicus, MSF Section.

The union has been concerned for some time to try to ensure that its members have the same employment rights as other employees. As is well known, that is not the case at the moment. I am not an expert in these matters; I speak from a briefing provided by the union. But one problem is lack of employment security, which, of course, extends to security of homes as well.

The clergy are in a unique and sometimes invidious position as public figures and by reason of their employment conditions. They are open to allegations which can easily be made without any supporting evidence and which are sometimes difficult to disprove. Because of the public nature and character of ordained ministry, it is often enough for allegations to be made for someone's life's work to be destroyed without the prospect of redress or reinstatement.

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Allegations repeated in a public hearing, in the solemnity of what appears to be a Crown Court, attended by the world's media, generally end the ministry of any cleric whether acquitted or found guilty. The 1963 system ensured the maximum interest by the media and gave what are in effect matters of Christian discipline the character of serious criminal misconduct. Enormous power rests in the hands of the bishop and his legal advisers which I am advised has sometimes been exercised oppressively and unjustly.

The new Measure attempts to regulate the involvement of the bishop with the administration of justice although it does not remove him from making decisions in a process in which he is involved in his own right. However, the prospect of a civil tribunal with officers not appointed by the bishop and out of the glare of the media is less of a threat to those who are determined to have their day in court and to vindicate themselves against allegations.

The second aspect of the clergy's position which needs consideration is that once removed from their employment in paid ministry they have no alternative employers to whom they can turn. They have lost their tied housing, their income, their ministry and all prospect of further service in what is, after all, very much a vocation.

I am advised by our members that there is a so-called caution list maintained by the archbishops, circulated regularly to their episcopal colleagues, on which names of clergy appear—not only those who have been formally disciplined under the 1963 Measure or have criminal convictions according to the law of the land, but those to whom their bishop has taken some exception. Clergy can be threatened with the list as a means of demanding conformity, whether legitimately or oppressively. Some modest regulation of the list is introduced in this Measure, although our members tell me that it does not go far enough.

I gather that the most important positive reform introduced by the Measure is a new section in which, for the first time, it becomes practical for anyone, clergy or lay, to initiate disciplinary proceedings against the bishops themselves. The threshold provided by the requirements of the 1963 Measure was set so high that it was practically impossible for a bishop to find himself on the receiving end of a complaint. In the new Measure it will be easier for proceedings to be commenced by a wide range of parties, including those who consider themselves to have suffered from the actions of a bishop. The briefing I received asks that attention be drawn to the new canon law, which the General Synod has also approved to accompany the new Measure.

The proposed amending canon 24 will have the effect, if approved, of imposing the provisions of the new Measure not only on serving clergy and bishops of the Church of England—that is an appropriate use of the powers of the Synod—but on all those who have ever been ordained, including those who have resigned or retired from active ministry, those who have been deposed, and even those who have repudiated the Church of England and been accepted into the

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ministry of another Church or even of another faith. Our members believe that that is not appropriate and possibly a breach of the human rights convention, despite what the right reverend Prelate said.

It is clear that the new Measure is not without shortcomings, and there will be reservations about it on points of detail by clergy. However, the prospect that bishops would deal with clergy with whom they were dissatisfied in a relatively open way, using a process more recognisably close to that which employees in ordinary walks of life might face, is a step in the right direction. The union believes that it goes some little way to meeting the kinds of arguments that it has been putting forward on behalf of its members.

The Measure still falls a long way short of full employment rights for clergy, however. Some clergy will be in a vulnerable situation, and the Measure may not improve matters for them. Clergy of the Church of England who lack the parson's freehold will still not be protected in the same way as those who have the freehold. There has been a lengthy consultation process in relation to the DTI's review of atypical workers' rights, but it has not so far resulted in a decision to grant clergy full employment rights in accordance with the campaign in which the union is still engaged. Meanwhile, as I said, I welcome the new Measure as a step in the right direction.

8.38 p.m.

Lord Brightman: My Lords, I have had the honour of being a member of the Ecclesiastical Committee for some years, and would like to take the opportunity to raise two points for consideration. The first arises from the fact that the committee has no power to amend a draft measure, even in the most obvious case. The function of the Ecclesiastical Committee is confined by statute to drafting a report to Parliament stating the nature and legal effect of a proposed measure and its views on the expediency of the measure. It then communicates the report in draft form to the legislative committee of the General Synod, and finally presents the report to both Houses, if the Legislative Committee wishes. The final step is for Parliament to submit the measure for Royal Assent, if so resolved on Motion. Nowhere along this long path is there any power for the Ecclesiastical Committee to amend a draft Measure, however obvious it may be that an amendment is needed.

This point arose in stark form in the present case. Archbishops were omitted by mistake from a certain section. There was no doubt whatever that this was an accident in drafting. It was clear from the Notes on Clauses; it was clear from the statements of the representatives of the General Synod who appeared before us. The mistake did not matter all that much in the present case, and the Ecclesiastical Committee did not reject the draft measure on that ground.

Had the mistake been more serious, I am advised that the draft Measure would have had to be returned to the General Synod for correction and that the delay might have been at least six months before the measure finally became law.

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I do not suggest that the Ecclesiastical Committee should have any general power to amend. I only suggest that there should be a limited power to correct an obvious and admitted mistake in wording, in order to avoid the laborious and time-consuming process otherwise involved.

Let us suppose that the word "not" were omitted by accident from an important clause. Supposing it were abundantly clear from the Notes on Clauses and from statements made by representatives of the General Synod appearing before the Ecclesiastical Committee that the word "not" should be there. It seems absurd that the draft Measure should have to go back to the Legislative Committee of the General Synod, and then to the General Synod, and back once more to the Ecclesiastical Committee in order to put matters right. What a palaver for just correcting an admitted mistake!

My second point relates to the size of the Ecclesiastical Committee. The committee is required by statute to consist of 30 members, subject to casual vacancies—that is to say, 15 from each House. I have examined the reports of nine meetings of the committee. It is usually not possible to tell from the reports how many members of the committee voted on the expediency of a draft Measure. But I can say that in one case only 12 members attended and voted—12 out of 30.

It is, I believe, obvious that if a committee has a very large membership, the sense of responsibility of members towards the work of that committee is in danger of being diluted. In the case of a small committee, individual members are likely to feel a greater responsibility to attend meetings. It may also be possible for the committee Clerk to arrange days that are convenient to most or all members. I therefore suggest that the members of the committee should be reduced from 30 to perhaps 14 members, drawn equally from each House.

My two suggestions—a very limited power of amendment and a reduction in the size of the committee—would require statutory authority. If those suggestions commended themselves to the Government and the General Synod, they might perhaps be the subject matter of a Private Member's Bill without upsetting the Government's legislative programme.

8.46 p.m.

Lord Lloyd of Berwick: My Lords, I agree with every word that the right reverend Prelate said and with his comments supporting the Measure that is before us.

This is an important Measure; there is no doubt about that. It was considered at very great length by the Synod. It was agreed unanimously—or by an overwhelming majority—in all three houses of the Synod. It is, on any view, a huge improvement on what was there previously. For the first time, for example, it deals separately with disciplinary offences and does so in a way that seems—to me, at any rate—to be fair to the clergyman and the complainant. It was considered

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at unusual length in the Ecclesiastical Committee, as one can see from the minutes of the two meetings that we held; the report extends to some 25 or 30 pages.

The main points for consideration arose under Clauses 1, 18 and 38. Those points were all discussed at great length in the Synod, and the Synod representatives, including the right reverend Prelate, appeared before the Ecclesiastical Committee to give us the benefit of its advice and help, and they answered questions at great length. I do not suggest that that was done at inordinate length; it was entirely appropriate that that was done. It was made clear at the outset of the hearing that the Synod wished the matter to be taken slowly because it was concerned about its importance. At the end, the Ecclesiastical Committee found, by a majority of 10 votes to two, that the measure was expedient. It was for the Ecclesiastical Committee to perform that task under the terms of the 1919 Act.

I am sure that the noble Baroness, Lady Turner, will remember that Amicus MSF applied at an early stage to be allowed to give evidence before the Ecclesiastical Committee. We considered whether we could do so consistently with the provisions of the 1919 Act. We were advised by our legal adviser that we could not.

The noble Baroness also raised the undoubtedly important point about whether the clergy should be entitled to the ordinary employment rights as between an employer and employee. That may fall outside the scope of our debate. That is not to say that it is not an important point that must be considered at some stage.

I wish that there was a way under the existing Act by which we could correct obviously accidental errors, especially when they are agreed to be errors, without what the noble and learned Lord, Lord Brightman, called the palaver of going back to the legislative committee, back to the Synod and then back again. It is obviously a cumbersome process, but we find that it is impossible to envisage that on the legislation as it stands. Section 3(5) specifically provides that the legislative committee—that is, the committee of the Synod—shall have no power to vary a Measure of the Church Assembly either before or after conference with the Ecclesiastical Committee. Therefore, there is no way in which that can be done without the primary legislation that my noble and learned friend Lord Brightman envisages.

The same applies to the size of the committee. I fully understand the reasons that the noble and learned Lord urges; in particular the obvious point that the larger the committee the more likely it is that people will think that others can do the work for them and they need not attend. But that is not always the reason: more recently, a reason has been that with the rearrangement of the timing in the House of Commons, Members who have been present at the beginning of discussions of the Ecclesiastical Committee find that they have others to attend. It is an interesting point, but one which cannot be dealt with by us without primary legislation.

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My noble and learned friend Lord Brightman, having been one of the two dissentients and the noble Lord, Lord Campbell of Alloway, was the other. I am sorry that he has decided to speak in the gap rather than put his name down in the usual way. But that was clearly his privilege. I give the Measure all the support I can.

8.54 p.m.

Lord Campbell of Alloway: My Lords, I thought that four minutes was all your Lordships could bear, so I shall speak for four minutes. I have the fairly recent honour to serve on the committee. I shall not speak to a Measure which I decline to support or oppose the Motion. I am content to rely on the assurance of the right reverend Prelate the Bishop of Winchester as to implementation. But, as in the case of the noble and learned Lord, Lord Brightman, I want to take some short points in proposals for improvement of the exercise of our statutory functions.

The first relates to attendance and the membership of 30. Everything the noble and learned Lord said was right. On our first meeting, 22 out of 30 members attended, but later it had to be adjourned because there was not a quorum of 10. At the second meeting 16 members out of 30 attended. At the end, a member who was leaving the room had to be recalled to establish a quorum for a vote.

That is not a satisfactory situation. My notes are curious. Without consultation with the noble and learned Lord, they say, "Six or eight aside; say 16", which is not far off the 14 of the noble and learned Lord. And there should be an obligation, an honour, to attend and to remain in attendance.

My second point is that the remit of the Act of 1919, as to the constitutional entitlement, must include the concepts of natural justice as judicially established, whether or not discussed at the Synod. Paragraph 63 shows that one matter of considerable importance to the noble and learned Lord and to myself was not discussed. There is no power to amend. I am not suggesting that there should be. I agree with everything that the noble and learned Lord said. I was going to propose a new procedure under which our clerk could send reasoned reservations with draft amendments to the appropriate authority for consideration before our first meeting in the interests of constructive and informed debate on due notice. That can be discussed at the first meeting.

It would be helpful if the relevant extracts from the minutes of the Synod could be produced. It would have saved about a quarter of an hour of my questioning at one stage of the proceedings. One could have seen the extract from the notes.

So I believe that there is a case for a new procedure and a case, without having any formal power to amend and if there is agreement in the Joint Committee, for embodying that agreement in codes of practice in implementation of the statute. True, it will require primary legislation, but I make that suggestion.

I also suggest that no snap vote should ever be taken without notice in the absence of members who have raised serious reservations. That would ensure that

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there is some representative decision. A representative decision of 30 is hardly ever achieved and it assuredly was not achieved on this Measure.

My last point is that I know that estate commissioners attend as members of our committee. But should they attend? Should an estate commissioner attend, to move a snap motion or to vote for approval? They are, unlike other members of the committee, not there without some preconception. I suggest that that should require some consideration on the Floor of the House. This is a procedural criticism which is in no way personal and in no way concerned with the right honourable gentleman Mr Stuart Bell. I hope that the ideas—we have not discussed them—of the noble and learned Lord, Lord Brightman, will take root.

8.58 p.m.

Lord Pilkington of Oxenford: My Lords, am I allowed to speak?

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