HL Deb 19 July 1974 vol 353 cc1330-408

11.55 a.m.

LORD GARDINER

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Gardiner.)

On Question, Motion agreed to.

House in Committee accordingly.

[The BARONESS EMMET OF AMBERLEY in the Chair.]

Clause 1 [Rehabilitated persons and spent convictions]:

VISCOUNT DILHORNE moved Amendment No. 1:

Page 2, line 23, leave out paragraph (a).

The noble and learned Viscount said: As I understand it, the purpose of the Bill is to prevent a person in this country suffering on account of a conviction many years ago being brought to light when he has really lived it down and most people are ignorant of it and have forgotten all about it, if they ever knew of it. In some respects, the Bill does not go far enough, but in others I suggest that it goes too far. It does not go far enough as it now stands, in that it makes no provision for preventing a refusal to employ a person on account of his spent conviction or dismissal by an employer when the employer becomes aware of the spent conviction. That, I hope, may be partly remedied by a new clause which I have tabled.

Of course, the Bill also makes no provision for the kind of case which was mentioned to me by a noble Lord only this morning—the refusal, for instance, of a licence to drive a public service vehicle because of a conviction many years ago. So, while the Bill does not cover all that I should have liked to have seen it cover, it does cover a certain field and, in that field, I think that its aims and objectives are too wide to make it really effective. I dare say that I shall be reproved by the noble and learned Lord, Lord Gardiner, for having tabled so many Amendments to the Bill which was before this House at about the same time last year and had some consideration then and which has passed through the Commons and had some consideration there.

I think that I shall be able to demonstrate, with my noble and learned friend Lord Diplock, that our Amendments are designed to improve the Bill and not to wreck it, and to make changes which I hope the Committee will think should be made. The real danger is that a conviction in this country may be brought to light and may affect someone living here. I cannot think that there is any great danger of a conviction in a foreign country being resuscitated and affecting someone living here.

This Bill as drafted applies to a conviction anywhere in the world—China, Russia, Ethiopia, the United States. In considering it one has to have regard to the other side of the coin, and look at the position of people who did not want to infringe its provisions, who are not muckraking or activated by malice, and who want to find out whether or not a question they wish to ask, or a statement they wish to make or publish, infringes its provisions. Under the provisions of this Bill it is difficult enough, in all conscience, in relation to a conviction in this country to find out whether the period of rehabilitation in respect of that conviction has expired or, perhaps, has been extended by reason of subsequent conduct on the part of the person convicted. But it becomes almost impossible, certainly increasingly difficult, if the conviction is in a foreign country, to find out whether the conviction and sentence be one which attracts a 10-year or a five-year rehabilitation period, or is a conviction of a character that does not come within the scope of this Bill at all.

In America, I believe it is not infrequent to pass indeterminate sentences of, say, five to 15 years' imprisonment. How does one relate such a sentence to the rehabilitation period under this Bill? I do not know. I suppose that at some time the Watergate proceedings will come to an end. In the United States, there is apparently a system of pre-bargaining whereby, in return for spilling the beans about other people, an accused person can obtain a lesser sentence than he would otherwise get. In the years to come, many people may want to write about Watergate. Books will be published, probably many years later when the dust has settled and the affair can be seen in better perspective. But if I understand this Bill correctly, if the rehabilitation period has expired following on the lesser sentence imposed as a result of pre-bargaining, it will not be possible to refer to the conviction of an American who has suffered such a conviction without serious risk of being sued in this country, whether the reference be in a book, a newspaper, a statement, a broadcast or on television.

Authors write books, serious books, for a variety of reasons, and we sometimes see serious plays televised. If someone is sued for referring to such a spent conviction in America, the author of what is published and the publishers will not, as the Bill now stands, be able to rely on the defence that all that they said was true, unless the publication or the book was written for bona fide educational, scientific or professional purposes. That is under Clause 8(8)(b). Those are rather restricting words, and so there will be great difficulty, I should have thought, in maintaining the right which now exists—I am not dealing here with muckraking or anything of that sort—for authors, historians and other such people to give a true and accurate account of what they think has happened.

I suggest to the Committee that in seeking to make this Bill apply in relation to convictions anywhere in the world, it is attempting too much. I suggest that it would be better, and make the Bill much more workable, if its limits were confined to convictions that took place in this country for offences contrary to British laws. When I say "British", I include the law of England, Scotland and Northern Ireland. So I have tabled this Amendment. The net which this Bill casts is far too wide. Is not the Bill as it stands getting a long way from the object of seeking to protect people living in this country for offences contrary to their reputations and damage in other ways by reason of a spent conviction? I beg to move.

12.6 p.m.

LORD GARDINER

I am certainly not blaming the noble and learned Viscount for putting down so many Amendments. Any Member of this House is entitled to put down as many Amendments as he thinks right to any Bill. The effect of this Amendment is, I regret, quite different from what the noble and learned Viscount thinks it is. Since the Bill has been redrafted by Parliamentary draftsmen, the draftsman first considers the question: what are convictions for the purposes of the Bill? Then he considers: what are sentences for the purposes of the Bill? Thus, we go on from there. The question of how a foreign conviction is to be regarded in the way mentioned by the noble and learned Viscount is not the subject matter of this clause. It is the subject matter of Clause 5(1)(d). The sole purpose of introducing overseas convictions here is that, under the Bill, if a man commits offences here and then goes straight for long enough then under the rehabilitation period he is protected so far as those convictions are concerned.

The point of the words raised by the Amendment is that if later on he commits here a further serious offence then he has queered his pitch, his earlier offence will never be rehabilitated; he may in due time be able to live down the second offence, but it will stop the rehabilitation period running in respect of the first offence. The sole effect of the words contained in the Amendment is that if a man commits some crimes—possibly fairly small crimes—here and then goes, perhaps, to Australia, and remains living a life of high crime for years in Australia, it is the object of the provision that he cannot then come back here and say, "Because this time has elapsed since I left the country, although I have been living on nothing but crime in the last 10 years, my earlier offences are now rehabilitated". That is all it does.

LORD DIPLOCK

With great respect to my noble and learned friend Lord Gardiner, I think that this clause has a different and greater effect from that which he suggested. First, in Clause 5(10)(d) there is defined how one ascertains the relevant sentence for rehabilitation; that is, it shall be— a sentence of … one of the descriptions mentioned in this section which most nearly corresponds to the sentence imposed ". That immediately puts one in difficulties with foreign systems of law under which, as for example in a number of States of the United States, a sentence is given either indeterminate or with a minimum of, say, one year and a maximum of 20 years. Is that a one-year sentence or is it a 20-year sentence?

As regard the help to the person accused, if I understand Clause 6(4) aright—and I cannot guarantee that I do—it would have this effect. Someone has committed an offence in England and during the rehabilitation period he is convicted of an offence anywhere in the world, including those countries—and there are many of them in Europe—where one can be convicted and sentenced in absentia without ever having appeared before the court at all. The effect of this clause in bringing foreign convictions, which includes convictions in absentia, into the Bill, and thus into Clause 5(10)(d) as well as into subsection (4)(a), would be that a person whom anyone else would regard as rehabilitated loses his right to rehabilitation because he has been convicted in absentia anywhere in the world.

12.3 p.m.

LORD FOOT

It surprises me a little that the noble and learned Lords who have spoken in support of this Amendment appear to be most concerned about the difficulty that anybody might have in ascertaining the facts and particulars of some conviction which somebody had been subjected to abroad; whereas, as it seems to me, the main concern we ought to have in considering this matter is as follows. Let us suppose that a youth in some foreign country commits some offence and is convicted for it. Then he makes his way to this country and builds up for himself by reputable living a position of some distinction and reputation. Is it more right that any muck-raker should be entitled to disclose that conviction to the world, than that he should be allowed, as this Bill prevents, to rake up some conviction which occurred in this country? I cannot see any difference in principle at all.

The whole object of this Bill is to allow people to be rehabilitated. I do not see why if a person has come to this country and has lived here for a long time, he should be denied the right which is available to people who have lived all their lives in this country. But that is the second arm, as it seems to me, of the argument against this Amendment, which is additional to the argument which was made by the noble and learned Lord, Lord Gardiner. If I understood the noble and learned Lord, Lord Diplock, aright, he was saying that a difficulty arises because in some foreign countries a person can be convicted of an offence in absentia. I am not quite sure that I understand the point of that. Let us suppose that a person is convicted as a young man in a foreign country in absentia, and he then comes to this country and lives a blameless life for the rehabilitation period. The conviction was defective because it was in absentia, and is that not an overwhelming reason why the rehabilitation process of this Bill should come into effect? I should have thought, if the conviction was suspect from the beginning through having been made in absentia, that that would be all the more reason for allowing that conviction of that man to be buried after the necessary rehabilitation period had gone by.

12.6 p.m.

VISCOUNT COLVILLE OF CULROSS

I wonder whether the noble and learned Lord, Lord Gardiner, could help us on this matter, because I genuinely do not understand the speech that he made. I think what he said was that the object of this paragraph, since it related to the definition of a conviction, was to stop somebody who had been convicted in Australia in the circumstances that he described, for a large number of crimes, coming back and saying, "I have been away. Please forget all about my previous very small criminal record in Britain. Now I am cleared and can sue anybody who says that I am a criminal." But, with respect, it cannot—and perhaps the noble and learned Lord will tell us—have only that effect, because it cannot do what the noble Lord, Lord Foot, has just suggested that it does do, or should do. Perhaps the noble and learned Lord will help me about this matter.

I understand that at this stage we are dealing in subsection (3) with what a "sentence" means and in subsection (4) with what a "conviction" means. We then get to the later provisions in the Bill, and to the Table on page 5 which sets out the rehabilitation period from the date of the conviction in respect of which the sentence was imposed. Therefore a conviction must relate to, or include, a foreign conviction because it is so defined under Clause 1(4)(a). Then we get to page 8 and deal with Clause 5(10)(d), whereby a sentence imposed by a foreign court shall be treated as a sentence of one of the descriptions in the Table on page 5.

Therefore, am I not right in saying—and will the noble and learned Lord confirm—that not only does the definition of a "conviction", which includes a foreign conviction, prevent somebody from going to Australia and doing what the noble and learned Lord said, but it also has the effect that after the proper period a foreign conviction—if it is of the sort that would be rehabilitated if it happened in Britain—would also be rehabilitated? I think that is what the noble and learned Lord, Lord Foot, wants to happen. If that is so, could the noble and learned Lord tell us how a member of the public who may have to deal with this matter, or indeed an official who may have to deal with it, is to work out—because there are at least two forms of sanction if he gets it wrong; one in tort and possibly another by way of prosecution—which is the nearest corresponding sentence under the tables in Clause 5?

The noble and learned Lord must appreciate that people are at peril of either fairly substantial damages in tort or, alternatively, a criminal conviction under Clause 9 if they get it wrong. Therefore, we ought to know a little more from the noble and learned Lord about how he thinks this will work. We want to know how we are to discover what happened in the foreign court; how long the sentence was; whether it was a sentence which is the equivalent of one or other of the categories in the Table in Clause 5; and, if so, when it is said to be subject to being spent. If the noble and learned Lord can tell us more about how this will work, the Committee can apply its mind to whether or not it ought to stay in the Bill.

LORD GARDINER

I will be very happy to discuss that point under Clause 5. The reason why I shall be happier to discuss it under Clause 5 instead of under this Amendment is that this Amendment relates to Clause 1. There is no Amendment down to Clause 5(10)(d). As I had to leave at crack of dawn for Belfast on Wednesday morning and returned only late last night, which was my first sight of the Amendments. I am concentrating on the Amendments which are here and dealing with them as they arise, rather than on the Bill as a whole. But I shall certainly deal with that when we come to Clause 5, which deals with what is the effect of a foreign sentence so far as rehabilitation for that sentence is concerned.

This Amendment has nothing to do with that at all. The sole effect of this subsection is simply to answer the question: "What is a conviction for the purposes of the Act?" The reason why it includes a foreign conviction—not sentence, you see, which is Clause 5—is because otherwise a man who had committed an offence here for which there was a rehabilitation period running, could go to Australia, lead a life of high crime and then come back and say: "You see, I am a rehabilitated person because the rehabilitation period has expired and you cannot count against me any overseas conviction." That cannot be right, and that is why this Amendment is wrong.

VISCOUNT COLVILLE OF CULROSS

That will not really do. With respect, it is no use telling the Committee that we have to wait until Clause 5, because in Clause 5 we have the word "conviction" immediately before the Table, as I pointed out. Now a conviction is defined, as the noble and learned Lord rightly says, at the beginning of the Bill and therefore a conviction, for the purposes of rehabilitation under Clause 5 provisions includes a foreign conviction.

VISCOUNT DILHORNE

Hear, hear!

VISCOUNT COLVILLE OF CULROSS

And you get rehabilitated after the rehabilitation period has gone by. It is no use saying that we must wait until Clause 5, because if we do that we shall then be told that it is no use attacking the principle of foreign convictions because that was brought in under Clause 1—and the Committee have already passed Clause 1 and it now stands part of the Bill. Therefore I am not prepared, for myself, to accept that the definition of "conviction" in Clause 1(4)(a) is as narrow as the noble and learned Lord has said, because if we accept that now, we cannot re-open the whole matter in principle later on. I do not see how we can possibly get round that argument.

VISCOUNT DILHORNE

I am sorry that the noble and learned Lord, Lord Gardiner, has not had much opportunity for considering the Amendments that have been tabled. We have all had difficulties, because of the short time between Second Reading and now, in preparing Amendments and it may be that we should have put down a consequential Amendment to Clause 5(10). But that is by the way, and this is a convenient point to raise this matter.

I am sorry, too, that the noble and learned Lord has completely failed to understand my observations when I moved this Amendment. That may be my fault. There are two things here one has to consider. First, what kind of conviction comes within the scope of the Bill initially? Then there is a second question—and it is the only one to which the noble and learned Lord, Lord Gardiner, directed his reply—namely, in what circumstances shall subsequent misconduct extend the rehabilitation period in respect of a prior conviction? It was to that, and that alone, that he addressed his observations. My observations were on a wider field. I may be corrected by the noble and learned Lord the Lord Chancellor, if I am wrong, but Clause 1(4) says—and I shall read only the material words: In this Act, references to a conviction … include references— (a) to a conviction by or before a court outside Great Britain; ". And in the preceding section you get these words: In this Act 'sentence 'includes any order made by a court in dealing with a person in respect of his conviction of any offence or offences, other than— (a) an order for committal … So reading those two together, I must say I came to the conclusion which I stated.

The noble and learned Lord may tell me that I am wrong, but I think the language is clear. This Act in scope is designed to apply to every foreign conviction, followed by any kind of sentence, except the sentences referred to in (a) and (b). That was the gravamen of my speech in moving this Amendment. I did not deal then with the question of rehabilitation. I am quite prepared to deal with that now or later and to discuss whether the period could be extended; but I am on the scope of the Bill and I have not been answered on that by the noble and learned Lord, Lord Gardiner, at all.

In dealing with this, the noble Lord, Lord Foot, made an impassioned plea about the youth who was convicted abroad and had some sentence imposed upon him, and he asked: Why should he not be rehabilitated, and why should he be at the mercy of the muck-raker? I should have thought the right way of dealing with "muck-raking" in these circumstances was perhaps by making some amendment to the law of libel, and to treat such muck-raking as something which could not be justified. But that is a separate question and I am here on the more limited question: is it right to bring in a conviction for any criminal offence anywhere in the world? Are we not setting our sights too high? I ask that for this reason: the noble Lord, Lord Foot, made no reference (as I did) to the people who will really be affected by this Bill, in other words, the people who really want to comply with its provisions. Surely in passing a Bill of this kind we must have some regard to that, and to the possibility that people who really have acted perfectly innocently and have done their best to comply with the requirements may find themselves in serious trouble because of the complexities of this measure and because they have ascribed the wrong rehabilitation period for a conviction and sentence which has been imposed abroad.

When one looks at Clause 5, which contains the Table, one sees a five-year rehabilitation period for any other sentence, and so in respect of each foreign offence there must be at least a five-year period. But when one comes on to deal with the question of whether or rot a rehabilitation period should be extended in respect of someone who has been convicted, and considers the case cited by the noble and learned Lord of the man who had gone to Australia and lived a life of crime there and who should not be able to come back here and say, "I am rehabilitated and am an honest person ", of course, one agrees with him. But that is a different issue from the one now before the Committee and, if I may say so with great respect to the noble and learned Lord, his observations on that are really unrelated to this Amendment.

I think, as a general observation, it is a criticism of this Bill—and I believe it was made by the noble Lord, Lord Goodman, earlier—that it tries to do too much and tries to be too technical. If we are to achieve a useful purpose, we must seek to clarify and define, and it may be to some extent limit, the scope of its provisions.

I feel quite unrepentant about this Amendment and unless the noble and learned Lord, Lord Gardiner, can give me further assurances I feel there is no o[...]her course open to me but to ask the Committee to divide on it.

12.19 p.m.

LORD BALLANTRAE

It takes some courage to stand up here in what I may call a "den of lawyers", but I speak as a member of the Faulks Committee on Defamation, which has paid a tremendous amount of attention to all the clauses of the Bill in its original form and also to the pamphlet Living it Down, which gave rise to it. I have permission to speak on behalf of that Committee, whose Report should be in the hands of the noble and learned Lord the Lord Chancellor and the Lord Advocate next week. We felt so strongly about the provisions of this Bill that our Committee put out an interim Report dealing with it, as your Lordships may be aware.

Its purpose may be summed up in paragraph 8, and I shall read from that: In principle we view with disfavour the creation by this Bill of a special class of person about whom the truth cannot safely be told after a specified period. We think it in the public interest that truth should at all times remain a defence for actions for defamation. It is in our view wrong in principle that a man about whom the truth is told should be entitled to damages on that account. Where it is unfair and not in the public interest to tell the truth about a person, the publisher, in its broadest sense, can be charged with criminal libel. Many objections have been raised in the Press lately, as noble Lords will have seen. Some came to light even after the debate in another place. We are not out to protect the muck raker, but we are concerned at some of the anomalies in the cases which the Bill does not cover. I will quote again one which I quoted to your Lordships in the last debate. A man convicted of indecency who was applying for a job in connection with a boys' club—

LORD GARDINER

I hesitate to interrupt the noble Lord, Lord Ballantrae, but I am not clear what relevance this has to the Amendment before the Committee. It seems to me to be more a Second Reading speech.

LORD BALLANTRAE

That is a fan-criticism and I accept it. It is very hard to know at what stage one can make these general observations which apply in some degree or another to all the clauses in the Bill. I stand corrected and am prepared to sit down.

LORD SALMON

May I return to the Amendment to omit paragraph (a)? I am in some difficulty, because if the object of that paragraph is to deal with the case that my noble and learned friend Lord Gardiner has mentioned, of a man who a long time ago committed a comparatively minor crime in this country being rehabilitated after subsequently leading a life of high crime, as he put it, in Australia, I should have thought it was immaterial and unnecessary. The crime he committed 15 years ago would be small compared with a life of high crime in Australia and hardly worth mentioning in any event. The crimes he committed in Australia could be mentioned. The clause as it stands means what I regard as a serious mischief, to which the noble Lord, Lord Foot, referred. If we cut this clause out of the Bill for the reasons which he gave there would be the chance of some young man who had committed a crime having it dragged up against him later in life. That would do him just as much harm as if a crime he committed in this country was dragged up against him. It is no good saying that this can be dealt with under the law of libel. It is dealt with in this paragraph and Clause 8 brings that into the law of libel. But it will not bring it into the law of libel if we knock out paragraph (a).

LORD KENNET

Before the Minister rises, may I ask a question of fact or interpretation which will affect the way I vote if this Amendment goes to a Division? What about a secret trial abroad? Let us imagine that a man has come to this country and he used to be a member of the Red Army of the Soviet Union or, indeed, of the Ugandan Army, and let us suppose that it is alleged that he was convicted and sentenced for a crime while he belonged to one of those armies. It is likely that the trial would have taken place in secret, the charge would have been secret and the sentence would have been secret. Nevertheless, it is alleged. I am thinking of the possible effect in this country both ways round—that is to say, should this alleged fact prolong the period of his rehabilitation or, the other way round, should the truth of the alleged fact come into question in a case where he is suing for defamation? Are there not plenty of cases not only in the armed forces of other countries, but also in some civil courts in other countries, where, either by design or intent of their legal system, it would be impossible to find out the truth of the matter? Therefore, my question to my noble and learned friend Lord Gardiner is: What is likely to happen in such an event?

THE EARL OF SELKIRK

There is a well-known book which has just been published called the Gulag Archipelago. That is absolutely full of this sort of thing. Would Mr. Solzhenitsyn be subject to libel if he came to this country?

LORD GARDINER

My difficulty is that to become a rehabilitated person you must first have been convicted. Secondly, you must have been sentenced. The effective rehabilitation period is dealt with in Clause 5. There is a subsection in Clause 5 which became known in the House of Commons as the "Solzhenitsyn clause" and it was put in for a very good reason. If there is no conviction within the meaning of the Bill, then that case is altogether outside the Bill. The effect on sentence comes later in the Bill and we can discuss that when we get to it. The sole effect of carrying this Amendment is to take any overseas conviction out of the Bill for any purposes and, for the reasons which I have ventured to give, that obviously cannot be right.

LORD GOODMAN

I am anxious to make an appeal, both to the noble and learned Viscount who is moving the Amendment and to the noble and learned Lord, Lord Gardiner. They deploy such remarkable powers of eloquence and dialectic that they could hold us fascinated in a discussion about how many holes there should be in a Gruyere cheese. I suggest that this Amendment is not important in relation to the Bill. There are some important points which arise later, due possibly to the draftsmanship of the Bill. There are certain misconceptions. If we argue a point of this sort in extenso we could be here for months. I do not think there will be many cases where we shall be involved in complicated arguments in the courts about a gentleman who has led a life of high crime in Australia, has come to England and is considering whether or not he should be rehabilitated. In such an eventuality I would recommend him to go to a third country. My firm conviction is that without an Amendment either of these gentlemen could withdraw their positions and no great harm would come to the common realm.

THE MINISTER OF STATE, HOME OFFICE (LORD HARRIS OF GREENWICH)

In the spirit of what the noble Lord, Lord Goodman, has said, may I say that this is a matter on which I hope the Committee may feel it possible to come to a conclusion fairly soon, given the amount of business we still have before us. This proposal was in Lord Gardiner's Bill when it previously came to your Lordships' House. The question is this. Why should an ex-offender run the risk of having his old convictions raked up against him, simply because they took place in another country? That is the point on which we shall have to make a determination.

VISCOUNT DILHORNE

I should like to say a few words in reply to the noble Lord, Lord Goodman, and to the Minister who has just spoken. I do not know whether the noble Lord, Lord Goodman, was present when I made my speech, but I did not raise this question about the Australian. I raised the question of Watergate and the convictions that took place there, and the effect on those who

want to publish books, plays or things of that kind. There has been no reply at all.

The instance given by my noble and learned friend Lord Salmon of the youth who had a conviction abroad, and who had been protected in later years, would be very unlikely to arise. The Minister is not right in saying that the earlier Bill in terms applied to convictions in courts throughout the world. I looked at the copy of it which last left this House in its final stage, and that certainly was not readily apparent, as this is. This sets the framework. I am not going to repeat anything that I said but it is an important provision because it affects the scope of people's liability under Clause 8.

One can give this exact example. A book is written about the conviction of one of those who have already been convicted over the Watergate affair. In wanting to write that book one might have great difficulty in finding out whether in that book one may make any reference at all to any of those convictions which have been part and parcel of that affair. If this was going to be an easy task for someone to determine I should not feel so concerned about it. But here, as the Bill is drawn, it is quite impossible. This provision would have an extremely far-reaching effect, and I myself do not think the risk of one young man's having a foreign conviction brought to light in years to come is such as to warrant extending the scope of this Bill not only in respect of the period of rehabilitation but regarding the scope of this Bill to cover all foreign convictions.

12.42 p.m.

On Question, Whether the said Amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents. 45; Not-Contents, 48.

CONTENTS
Alexander of Tunis, E. Eccles, V. Pearson, L.
Ballantrae, L. Effingham, E. Porritt, L.
Barnby, L. Elton, L. Reigate, L.
Belhaven and Stenton, L. Emmet of Amberley, B. St. Aldwyn, E.
Berkeley, B. Gainford, L. St. Just, L.
Bethell, L. Gowrie, E. Sandford, L.
Carrington, L. Hayter, L, Sandys, L.
Clwyd, L. Kennet, L. Selkirk, E.
Colville of Culross, V. Lincoln, Bp. Sempill, Lv.
Cowley, E. Lyell, L. Shannon, E.
de Clifford, L. Maybray-King, L. Strathspey, L.
Derwent, L. Merrivale, L. Terrington, L.
Dilhorne, V. [Teller.] Monck, V. Vivian, L.
Diplock, L. [Teller]. Mowbray and Stourton, L. Wilberforce, L.
Douglas of Barloch, L. Oakshott, L. Windlesham, L.
NOT-CONTENTS
Airedale, L. Hale, L. Samuel, V.
Amherst, L. Henley, L. Harris of Greenwich, L.
Archibald, L. Hertford, M. Seear, B.
Arwyn, L. Jacques, L. Segal, L.
Birk, B. Leatherland, L. Serota, B. ([Teller.]
Brockway, L. Lee of Asheridge, B. Shepherd, L. (Lord Privy Seal.).
Buckinghamshire, E. Llewelyn-Davies of Hastoe, B. Sinclair of Cleeve.
Burntwood, L. Lloyd of Kilgerran, L. Stow Hill, L.
Caradon, L. McLeavy, L. Strabolgi, L.
Castle, L. Melchett, L. Summerskill, B.
Champion, L. Norwich, V. Taylor of Mansfield, L.
Davies of Leek, L. Ogmore, L. Teviot, L.
Elwyn-Jones, L. [L. Chancellor.] Pargiter, L. Wigoder, L.
Foot, L. [Teller.] Platt, L. Wootton of Abinger, B.
Gaitskell, B. Rea, L. Wynne-Jones, L.
Gardiner, L. Ruthven of Freeland, Ly.

Resolved in the negative, and Amendment disagreed to accordingly.

12.50 p.m.

VISCOUNT DILHORNE moved Amendment No. 2:

Page 2, line 30, leave out paragraph (c).

The noble and learned Viscount said: Amendment No. 2 again is on the scope of the Bill. This is a probing Amendment. I do not myself understand—I am sure it is my fault—the reasons for a provision which strikes me as somewhat curious. The Committee will see that in this Bill references to convictions include references to a verdict that a person charged with an offence is not guilty by reason of insanity ".

It strikes me as odd that a person who is found not guilty by reason of insanity should be required to have a rehabilitation period at all. Such a finding by a court is usually followed by an order that the person should be detained during Her Majesty's pleasure. The Bill provides, if I see it aright, for a rehabilitation period of five years from the date of such a finding of not guilty by reason of insanity, or two years from his release from hospital, whichever is the longer. After that it is a spent conviction to which reference must not be made and which the convicted person need not disclose.

In criminal cases and in social inquiry reports in relation to criminal cases it may be of extreme value to know of any mental defect in the past. This particular provision, as I am sure the noble and learned Lord, Lord Gardiner, would say, does not affect criminal proceedings at all. The same information about mental breakdown seems to me to be something which may be of extreme value in other fields—in the individuals concerned perhaps as much as anything. And it is of value not only for the individual. Supposing that somebody has had the misfortune to have had such a finding against him—" not guilty by reason of insanity "—are we going to stop an employer inquiring about that and being told about that? It may be very relevant in finding a suitable type of employment for him. Again I doubt whether it is wise to make this Bill so extensive as to treat convictions for this purpose of persons who have been found "not guilty by reason of insanity ", and to attach to such persons a rehabilitation period of a somewhat varying length.

I feel doubt about the propriety of this and I shall be interested to hear what the reasons are that have led the noble Lord so to define the word "conviction". If you are dealing with what the noble Lord referred to last time when I moved an Amendment dealing only with the provisions of Clause 1 and if you go on to consider a finding of not guilty by reason of insanity after the man has previously been convicted, whether that should extend the rehabilitation period following upon the first conviction seems to me to be very doubtful.

As I understand the Bill, it would have this effect. A man is convicted for some offence which has, say, a five-year rehabilitation period, and during those five years he is charged with another offence in respect of which he is found not guilty by reason of insanity. As I understand the Bill, the effect would be that the rehabilitation period for the original offence would be extended. I am not at all sure whether that is right. I am not at all happy about this provision, but I move it in the hope that the noble Lord will be able to allay my anxiety.

LORD GARDINER

I suspect that my noble friend Lord Harris of the Home Office can deal with this better than me. All I would say is that we still have to draw a distinction in order to realise that this clause is dealing only with what is a conviction for the purpose of the Bill. A later clause deals with what is a sentence for the purposes of the Bill. What is the effect of all this? Up to about 1905 (I have not checked it, for the reasons which I mentioned previously) there was a verdict of not guilty on the ground of insanity because English law has always taken the view that you cannot have a guilty mind if you are insane; we do not punish people because they are ill. Then in about 1905 a man fired a revolver at Queen Victoria and when Queen Victoria asked the Prime Minister what the verdict was likely to be she was told: "Not guilty on the ground of insanity".

LORD HALE

It was earlier than 1905.

LORD GARDINER

Yes, it must have been earlier than that. She said that she was not having that and the verdict must start with the word "Guilty"; land nothing that the Prime Minister could say could persuade her to the contrary. Therefore the law had to be changed and a sentence introduced which was a nonsense to a lawyer—" Guilty but insane ". Then a Committee of Lord Atkins in the 1920s pointed out that it was some time since Queen Victoria had died and that this ought to be changed back. We owe it entirely to the noble and learned Viscount, Lord Dilhorne, that after about fifty years it was changed back again. In this Bill we have to deal with sentences which no longer exist, because we are dealing with past sentences. We have to provide for corrective training and various things which do not exist now.

What the draftsman has done here is to include "not guilty by reason of insanity" as a conviction. Then, when it comes to its effect, it is provided in Clause 5(1) that: (1) The sentences excluded from rehabilitation under this Act are—… (d) a sentence of detention during Her Majesty's pleasure or for life;…". Obviously it is because it is the equivalent of more than two and a half years. Therefore what the draftsman is doing—I believe that this is sometimes called "yoyo drafting"—is putting it in as a conviction and then making it plain that the sentence is not one which is capable of being rehabilitated.

If there were some other sentence—and here perhaps my noble friend Lord Harris can help us—nobody, in my experience, ever pleads insanity in a small crime because you do not want your client to go to Broadmoor. If somebody did, it may be that some order could be made. It may be that in some cases a hospital order could be made. However, provision is made in the Bill for what is to be the rehabilitation period if it is for life or for a sentence during Her Majesty's pleasure and there is no rehabilitation. If there is a hospital order, then, following advice given to us by the late Lord Chief Justice—

VISCOUNT DILHORNE

I think that the noble and learned Lord is inaccurate. If he would turn to page 7 of the Bill and subsection (7) he will see there: Where in respect of a conviction any of the following orders was made, that is to say—… (b) an order for detention during Her Majesty's pleasure under Section 88 of the Lunacy (Scotland) Act 1857, Section 2 of the Trial of Lunatics Act, 1883…". I think that law was altered to conform with the wishes of Queen Victoria. Then it goes on to say: … the rehabilitation period … shall be the period of five years from the date of conviction or a period beginning with that date and ending two years after the date on which the hospital order or the order for detention, or for detention in or admission to hospital, ceases or ceased to have effect, whichever is the longer ". In the light of those provisions, I cannot think that the noble and learned Lord is right when he says that there is no rehabilitation period following upon a verdict of not guilty by reason of insanity which is followed by an order for detention during Her Majesty's pleasure. That was the case to which I was referring.

LORD HARRIS OF GREENWICH

The view of the Government is that it is necessary to have a provision on these lines so as to enable a person in respect of whom such a finding is made, to be rehabilitated. These findings which we are now discussing that, in fact, quite serious. They involve the admission of the accused person by order of the court to a hospital specified by the Secretary of State under Section 5 of the Criminal Procedure (Insanity) Act 1964 and his detention there as if he were subject to a hospital order with restrictions on his discharge.

Clause 5(7)(c) of the Bill provides a rehabilitation period in respect of such a finding of five years, or two years after the order ceases to have effect, whichever is the longer. I am not sure why the noble and learned Viscount wishes to take these particular findings out of the scope of the Bill. I appreciate that they are not convictions in law, except, of course, for the purposes of this Bill, but the same is true of a number of other disposals which the court might make, such as absolute and conditional discharges, and indeed no Amendments have been tabled in respect of these. In order to assist the process of rehabilitation I think this process is the right one and I commend it to your Lordships.

LORD SALMON

I have never known of a plea of insanity except on a charge of murder. Insasmuch as life imprisonment is given for an offence outside the Act and rehabilitation cannot apply to it, if in lieu of life imprisonment a man is ordered to be detained during Her Majesty's pleasure because he is insane, then I am bound to say that it seems to me rather illogical to make that a conviction and sentence in respect of which you can rehabilitate. I cannot believe that this Amendment would cause any grave injustice if it were carried, much as I support the Bill in general.

LORD GOODMAN

Supporting the Bill in general, as the noble and learned Lord, Lord Salmon, says he does, I wonder whether the noble and learned Lord, Lord Gardiner, might consider whether in principle it is not entirely inappropriate to introduce considerations of insanity into the Bill. The whole principle of the Bill is that a man exercising normal powers of self-will, restraint and discipline, having gone straight for a number of years is then enabled to rehabilitate himself because he has shown that he has gone straight and has exercised those powers of self-will and restraint which have enabled him to do so. Here is a case where it is accepted that a man, when he committed his offence, had no degree of self-control that would enable those principles to be brought into consideration.

It seems to me quite wrong that even the most benevolent cloak of concealment should be brought around questions of insanity which may be germane to a number of considerations. For instance what does a man do (and I do not know what the Act says on this question) when he has to fill in the details of an insurance form? Perhaps he is a man who has committed arson, because we know that arson is an offence that is often committed by people who have mental disorders. What does he do in relation to filling in that form, and how do you see justice as between him and the insurance company?

It seems to me that this is a case where the principle of the Bill does not call for any benevolence of this kind. It calls for benevolence of quite a different character; it calls for a recognition that a man suffering from mental disorders should receive a very special kind of benevolent treatment but not this type of benevolent concealment.

LORD DOUGLAS OF BARLOCH

There is another case which, in my view, deserves consideration. It is not so long ago since there occurred an incident in which a man who was employed in a works poisoned some of his fellow workmen, and he had not intimated to the employer that he had been guilty of such conduct before. I do not know whether he had been convicted for it but he had committed a similar offence before.

VISCOUNT COLVILLE OF CULROSS

Yes, he had been convicted.

LORD DOUGLAS OF BARLOCH

He had been convicted, but the employer did not know anything about it, his workmen became ill, nobody suspected the reason for it, and it was a very serious matter. To rehabilitate somebody, in the sense of this Bill, so that no mention shall ever be made when it is found that he is mentally deranged, is extremely serious, because nobody can guarantee that such mental derangement does not still continue.

VISCOUNT DILHORNE

I regret that the noble and learned Lord, Lord Gardiner, and I should misread his Bill—or at least one of us should—but I suspect that on this occasion I am right. He said that, in respect of a sentence of detention during Her Majesty's pleasure, the Bill provided that there should be no rehabilitation period. He relied on Clause 5(1)(d), which says: The sentences excluded from rehabilitation under this Act are— (d) a sentence of detention during Her Majesty's pleasure or for life, or for a term exceeding thirty months, passed under specified Acts and it only applies to sentences passed under those Acts.

In subsection (7), it says, Where in respect of a conviction any of the following orders was made ". Then it says under: (b) an order for detention during Her Majesty's pleasure under … Section 2 of the Trial of Lunatics Act 1883 "— there shall be a period of rehabilitation. I think that when a person is found guilty but insane on, perhaps a charge of murder, the order for detention during Her Majesty's pleasure is made under Section 2 of the Trial of Lunatics Act 1883. Therefore, I feel confident (although I may be wrong) that in this respect I am right about this Bill and the noble and learned Lord happens to have erred, no doubt because he has been pressed and it is a very complicated Bill to find one's way about. I make no complaint about it, but I come back to the question which bothers me a great deal, and the noble Lord, Lord Douglas of Barloch, has referred to it.

The question is whether, where there is insanity, this Bill should apply at all. If a man is detained during Her Majesty's pleasure presumably he will not be released until he is fit to go about in society. At the same time, might it not be desirable that the medical profession, for instance, should be able to find out about his full background? We are not dealing here simply with criminal trials and what is brought to the notice of a criminal court. Am I not right in thinking that, if the Bill applies to him and he has gone through the rehabilitation period since the order was made for his detention during Her Majesty's pleasure, the medical profession and others who have a legitimate interest. in finding out about what would otherwise be a spent conviction will be inhibited in that respect and may under this Bill be misled by the person himself who will be able to answer a question about a spent conviction without disclosing it? May not that have rather serious consequences?

I am seriously worried about the Bill. Unless the Committee think it right, I do not wish to press this Amendment. I am inclined to think that the Bill would be better without it, and I am inclined, with the noble Lord, Lord Douglas of Bar-loch, to think that it should not touch upon insanity, but rather that we should leave the poor unfortunate people who have suffered from insanity outwith the scope of this Bill. I do not think one could possibly call this a wrecking Amendment. It may require a few consequential drafting alterations, but it is not designed to wreck; it is designed to try to secure an improvement in the Bill.

1.10 p.m.

LORD GARDINER

I am quite prepared to consider this before the next stage. I sympathise with those who feel there is some possible conflict between Clause 5(1)(d) and Clause 5(7)(a). I regret that the references to the Scottish Act I am not in a position to deal with. The Parliamentary draftsman has naturally taken no instructions on that from the Scottish Office, but I shall be quite prepared to consider it again before the next stage. The only reason why I think she appeared to have included insanity as a conviction and then, in effect, took it out was that if she had not done so in the days of "guilty but insane", if some of those were still alive, that would obviously be a conviction, so she probably had to deal with it somehow. That may not be right, but I am quite prepared to consider the matter again.

VISCOUNT DILHORNE

I welcome what the noble and learned Lord has said, but could he give an assurance that there will be a Report stage on this Bill? There will not be a Report stage. The noble and learned Lord said that he will consider it on the next stage, and I am very content with that if there is a next stage at which it can be adequately considered. That is what bothers me. This requires looking at in perhaps a little more depth. If the noble and learned Lord is right in saying that this does not come within the Bill at all, I am content. But if it does come within the Bill, then I am inclined to the view that it should come out. I am in a difficulty. I do not know whether the Government can help. I suppose this is the sort of Amendment one might move on Third Reading, but on Third Reading we do not usually deal with anything except pure technicalities. This is more than a pure technicality.

LORD FOOT

I am sorry, but I am very ignorant about these things. Why does the noble and learned Viscount suggest there may not be a Report stage?

VISCOUNT DILHORNE

I am judging largely by the result of the last Division. I cannot think it likely. I have known my old friend, if I may call him so, the noble and learned Lord, Lord Gardiner, for many years and he does not lightly accept Amendments. In the present state of this Bill and of Parliamentary Business, I assume, I hope incorrectly, that the noble and learned Lord will refuse to accept any Amendments. I may have done him an injustice, but that is very likely. That is the reason why I think it is unlikely there will be a Report stage.

LORD FOOT

In that event, although I am a wholehearted supporter of this Bill, may I say that I was impressed by one of the arguments addressed to us by the noble and learned Viscount, Lord Dilhorne, which was that if a person is convicted of an ordinary offence and then has an attached rehabilitation period, and if during the course of that rehabilitation period he is then found not guilty on account of insanity, it is a serious matter that that should result in an extension of the period of rehabilitation. The gain of this clause as it stands is that a stigma attaches to a finding of not guilty on account of insanity. All humane people would like that person to have the opportunity of getting rid of the stigma by a period of rehabilitation. But I take the point about the seriousness of a finding of not guilty extending the period of rehabilitation. Therefore, I would ask the noble and learned Lord, Lord Gardiner, whether he will give the most positive reassurance that he can to the noble and learned Viscount, Lord Dilhorne, on this matter, because as a result of what he said I, at any rate, am persuaded that this may be wrong.

VISCOUNT DILHORNE

A possible solution has occurred to me. The noble and learned Lord argued that under the Bill as it stands there is no rehabilitation period in respect of a finding of not guilty by reason of insanity, followed by an order for detention during Her Majesty's pleasure. If I have understood that correctly and if that is his intention, then if the noble and learned Lord will give an assurance that he will himself table an Amendment to make that clear beyond all shadow of doubt I shall be perfectly content to withdraw this Amendment because it may be, if that is his intention, that there is really nothing between us.

LORD GARDINER

I cannot do that. What I have said is that I think there is some apparent conflict here. I think it ought to be considered further. I would not object to the noble and learned Vis-count, Lord Dilhorne, putting down an Amendment for Third Reading if there is no Report stage. The reason I cannot give the undertaking asked for by the noble and learned Viscount is that it assumes that if there is a period of rehabilitation at all, it ought to be of the kind that he requires. If the hospital order section applies to these cases, I would think it appropriate that the hospital order rehabilitation period should apply; that is to say, on merits. Once we have sorted out what is the real effect of the Bill as it stands, there may well be arguments. But I would raise no objection to the noble and learned Viscount putting down an Amendment on Report stage, if there is one, or if not, on Third Reading, because it is a point which deserves further consideration. I am not certain whether I am right in saying that these are taken out of the Bill.

VISCOUNT COLVILLE OF CULROSS

If I may just make a point here, we have had a great deal of trouble with the drafting of this measure over a long period of time It is now of the greatest complexity. It has been done by the Parliamentary draftsmen, and if there is one thing that is absolutely certain it is that not even the noble and learned Viscount, Lord Dilhorne, in conjunction with all the other noble and learned Lords who sit on the Cross Benches, are absolutely certain to get an Amendment which will be right. There is only one person able to do that, and that is the Parliamentary draftsman who has completely taken over this matter.

Therefore, if we are to rely on the noble and learned Law Lords to put down an Amendment on Third Reading—and that will be the last chance—it is very probable, with the greatest respect to them, that we shall not get it right. This is highly unsatisfactory. So I hope that the noble and learned Lord, Lord Gardiner, himself, with the assitance he has now been given, will take this on board and not put the onus on someone else.

LORD DIPLOCK

The Amendment which the noble and learned Lord, Lord Gardiner, is prepared to consider just does not meet the point made by the noble Lord, Lord Foot, because if this is a conviction then, if you turn to Clause 6(4), you will find that it extends the period of rehabilitation for the previous offence. So we get to the position where someone has committed an offence for which there is a rehabilitation period of, say, seven years or five years; towards the end of that period, he commits an offence for which there is a hospital order, or a verdict of guilty but insane. That has the effect under the Bill as it stands of continuing the rehabilitation period, not for the insanity one but for the previous one, for another five years or, if this is an unrehabilitated one, it continues it for ever. No Amendment, deciding whether it goes into one or other of the categories—that is to say, Clause 5(1)(d) or 5(7)(b)—which I am myself quite clear it does, will affect that. More amendment is required to avoid the injustice to which the noble Lord. Lord Foot, referred.

LORD GARDINER

I have received a note from the Parliamentary draftsman who says that Clause 5(1)(d) was intended to apply only to children's cases, and that Clause 5(7)(a) would apply here.

VISCOUNT DILHORNE

I am glad to find I have on this occasion some support from the Parliamentary draftsman, and I am grateful for it. I am bothered about this. I have said before, and I do so again because I am sincere about it, that I support the objective of this Bill. The only way to get out of this real difficulty is by having this Bill amended now if we can, so as to ensure that there is a Report stage. If we amend the Bill now in this respect, it will be possible for the noble and learned Lord the Lord Chancellor, with the aid of Parliamentary counsel, to draft appropriate Amendments if he thinks any other change is required.

On a point about which I am glad for once Lord Foot agreed with me, I think it very desirable at the moment that we should take out all questions of insanity from the Bill. In order to let this matter be reconsidered, and properly considered, I think I must press this Amendment. If we have a Report stage, it might not take long to deal with this particular point, but I really think it is wrong, as the noble Viscount, Lord Colville, said, to leave me to put down Amendments at Third Reading, which I probably would not get right, and make it quite impossible to make any further adjustment. If the noble Lord put down Amendments at Third Reading, it would be very difficult for us to move Amendments to those Amendments or to make any change. Therefore, although I was not intending to ask the Committee to divide, in the light of the discussion I think I must press it.

LORD SHEPHERD

Before the noble and learned Viscount makes that decision, may I say this. I have been listening to part of the discussion, and heaven forbid! I do not intend to get among two Lord Chancellors and the other legal dignitaries we have here; looking around the House I wonder whether laymen fully appreciate the problem that is being debated. There is a considerable difficulty about time, not only in terms of to-day's Committee stage, but also the possible end of the Session. Since the noble and learned Viscount said that he supports the aims of the Bill, I will certainly undertake to see whether a Report stage could be provided, even if only a day before Third Reading. I, and I am sure, my noble friend from the Home Office, will certainly see whether we can arrange a meeting on this matter with Parliamentary draftsmen to see whether a solution can be hammered out to meet both sides. Perhaps by doing that we might save a Division, which I think would perhaps be undesirable. I will certainly see what we can do in terms of having a different stage, in order to have a look at it.

VISCOUNT DILHORNE

I would welcome that. It means, if the noble Lord would do that, accepting this Amendment as it stands; otherwise, there might not be a Report stage at all.

LORD SHEPHERD

We do not necessarily have to say that because there are no Amendments there will be no Report stage. I will look into the question of whether we can arrange a Report stage. If the noble Viscount can agree, I will give an undertaking that there will be a Report stage.

LORD HALE

Would the noble Lord permit me to ask one question? I ask it very innocently, because I do not claim to be an expert on the Rules of the House. In the Commons it was quite possible to recommit on a single limited point. If the contenders on this point—with whom I have a great deal of sympathy, because I do not understand the Bill very clearly either—can come to an agreed conclusion, and if the House could be presented with an agreed conclusion, could not that be done by a formal Motion for Recommittal on the simple Amendment. Certainly it used to be done in the Commons. Will they also consider the fact that a great many people who are detained in penal hospital institutions have been found guilty by a jury, who do not like pleas of insanity very much generally speaking, and have been found to be insane on medical examination within the prison. I frankly do not know whether this is not raising a conflict between two quite special cases, which rather excludes the question of principle that was put.

VISCOUNT DILHORNE

May I add one word following on what the noble Lord the Lord Privy Seal has said? If the noble Lord says, as I understand him to say, that there will be a Report stage or some other procedure, perhaps recommittal, to deal with this point, I am perfectly content. I think it has got to be dealt with and it is not satisfactory as it now stands in the Bill. The other suggestion I would make is that it might save considerable time if the noble and learned Lord, Lord Gardiner, would consult with those who have expressed concern about this matter, Lord Foot and myself. I would hope that we would be able to find an agreed solution on this particular issue and be able to bring it back to the House as something we could all jointly commend to the House, and take up no time at all.

LORD SHEPHERD

I will undertake to provide a Report stage for this Bill, but it must be on the understanding that it will provide an extra stage to the Bill. It may have to take place on the same day, if there is no other way. I will certainly do my best to see that there is a reasonable period between the two stages.

VISCOUNT DILHORNE

I know the noble Lord will give sufficient time for consultation to take place, because consultation is really an essential element if we are to short-circuit this. A Report stage may come in any event in view of what happens hereafter. In view of that assurance, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

1.28 p.m.

On Question, Whether Clause 1 shall stand part of the Bill?

VISCOUNT DILHORNE

I have not put down any Amendments with relation to the fines question. The noble and learned Lord touched on this in his Second Reading speech, but only very shortly. It strikes me as very odd that a person should be rehabilitated, and be allowed to be rehabilitated, even though he has not paid his fine. We are encouraging courts to impose fines rather than imprisonment, and I welcome that, but I think we should be very reluctant to do anything which might encourage people to think they can get away with impunity with the non-payment of fines.

The argument of the noble Lord, Lord Gardiner, in a letter he wrote to The Times—a very skilful and persuasive letter—was that this Bill was intended to help people who had paid their debt to society. Of course, those observations cannot apply to people who have been fined and have not paid their debts. I would ask the noble Lord to explain, if he could, a little more fully than he did on Second Reading, why he has changed his attitude with regard to this from the time when he spoke on the other Bill. Then he said you ought not to extend the merciful provisions of this Bill to those who have not done what the courts have ordered them to do; to those who have not paid their fines, who have not paid their debts. I thought the noble Lord was extremely persuasive and convincing in the speech he then made, as he always is. Now we find that position completely reversed in the present Bill.

I can quite see that there may be difficulty in finding out whether a fine was paid by the date it was ordered to be paid. I am not concerned about that; it may be paid late. But surely it should be possible to find out, without any more difficulty than finding out about other sentences and convictions, whether in fact the fine has been paid. I quite see that different considerations may apply, where you have a man put on probation subject to conditions, in establishing whether or not there has been a breach of those conditions. I have not tabled an Amendment about fines; I thought I had tabled sufficient Amendments. But I would still be very interested indeed if the noble Lord could explain, and if he could justify this complete reversal of the policy adumbrated in the Bill introduced into this House last session.

LORD GARDINER

Everything the noble and learned Viscount has said about what happened in this House is quite right. I always took the view that if there was a fine the rehabilitation period should not start to run until the line had been paid. I thought that that would have a good effect, apart from anything else—I remember saying this to the noble Viscount, Lord Colville of Culross—on giving people incentive to pay their fines. I cannot tell the noble Viscount very much about why this was taken out. It may be that my noble friend Lord Harris can say more about it. I understand that it was taken out simply on the strong advice of the Government, in particular the Home Office—and Private Members' Bills have to pay some attention to Government views—that the administrative work involved really would not make it worth while. All magistrates' courts records are not perfect. Finding out whether or not somebody has paid a fine or, if the order was one under which he had to pay by instalments, finding out whether he is in arrears of the instalments, and so on, they said, as I understand it, may be right in principle, but it is not worth it in practice. If my noble friend Lord Harris can add to that at all, no doubt he will.

VISCOUNT DILHORNE

I think that he is waiting for instructions. May I put this thought to him: I am not concerned about what I call magistrates' courts' fines, I am concerned about the substantial fines imposed at circuit courts, the Central Criminal Court, and in the superior criminal court. I should have thought that it was fairly easy to check from the records whether those fines have, or have not, been paid. I may be wrong.

VISCOUNT COLVILLE OF CULROSS

This may be an extra point for the Government. May I ask whether this is really right because, although I understand the administrative difficulty, I am at one with both noble and learned Lords who have spoken that we ought not to have rehabilitation unless the fine has been paid. In practice, in a defamation action, for instance, the case is started by the person who says he has been rehabilitated. If he starts an action for defamation on the grounds that he has been fined and the period of five years has expired, and it turns out after all that he has not paid the fine, under the Bill as it stands he is going to win. If we change this provision and make it a requirement that he shall have paid the fine, and that the five years can run from the date of its being imposed, then it will be impossible for him with any success to bring a defamation action unless he has actually paid the fine.

It would seem to be very worth while reconsidering whether we ought not to put this provision back in. It may not get over the whole of the difficulty under Clause 9, although, as a matter of fact, it probably would because the Director of Public Prosecutions, when considering whether to authorise a prosecution under Clause 9, would, in that one instance, be able to discover whether or not the fine had been paid. Therefore, in both cases the teeth of this Bill, either the civil action for defamation or the criminal prosecution under Clause 9, would never go ahead at all if the fine had not been paid. Therefore, we can, without any undue difficulty, restore the situation to that which both noble and learned Lords wish to see.

LORD HARRIS OF GREENWICH

The noble and learned Viscount correctly took the view that I required some instruction on this particular point. As I see it, under the Bill the fine can in fact still be collected even when the conviction has been spent. So there is no risk of this sort so far as this particular proposal is concerned. The point that my noble and learned friend raises has some validity. Quite a high proportion of fines are paid by instalments. Offhand I cannot give any proportion of fines treated in this way, but it would create very substantial administrative work for court staffs, and this is why the Government took the view they did in another place when this matter was discussed.

VISCOUNT DILHORNE

This is one of the matters upon which it would have been useful to have a discussion. I am not concerned with small fines, but the fines which are really in lieu of imprisonment, which I think ought to be paid before a man can be rehabilitated. Your chance of getting repayment after rehabilitation may be diminished. I do not know whether we could have a talk about this also before the third stage and come to a conclusion. The noble and learned Lord, Lord Gardiner, and I were initially in agreement about this. It may require some slight adjustment which should not take up much time, and I will not take any more time on this at the moment.

Clause 1 agreed to.

Clause 2 [Rehabilitation of persons dealt with in service disciplinary proceedings]:

1.36 p.m.

VISCOUNT DILHORNE moved Amendment No. 3:

Page 2, line 43, leave out subsection (1) and insert— (" (1) For the purposes of this Act a conviction by a court-martial of an offence which is also an offence under the criminal law shall, if a sentence of imprisonment was imposed in respect thereof, be treated as a conviction and the sentence so imposed as a sentence.")

The noble and learned Viscount said: I think that we can usefully discuss Amendments Nos. 3 and 4 together, and that very little need be said about Amendment No. 4 because that raises again the insanity question which we have already discussed. Whatever is done about that will depend upon the result of our discussions on what takes place on Report The Amendment to leave out Clause 2(1) raises a question of considerable import ance. I am sorry that the noble Lord, Lord Wigg, is not here when we are about to discuss certain provisions of the Army Act, in the formulation of which I think he had considerable responsibility.

Your Lordships will see in subsection (1)— any finding that a person is guilty of an offence in respect of any act or omission which was the subject of service disciplinary proceedings shall be treated as a conviction and any punishment awarded or order made in respect of any such finding shall be treated as a sentence.

At the end of the Table in the Bill it says that for a fine or any sentence subject to rehabilitation the period is five years. If a man is sentenced to detention, then, under the Bill, he has to have a seven year rehabilitation period; if he is sentenced to anything less than detention, a five years' rehabilitation period.

One thing about this Bill is clear, that any conviction of a service offence comes within the scope of this Bill, whether or not it is a summary conviction by his commanding officer, or the captain of a ship, or whether it is a conviction by court-martial. I am sorry that the Lord Chancellor is not here. He had at one time, with me, considerable experience in having to deal with military law. I would ask the Committee to consider for a moment the scope of this provision. If a man overstays his leave he could be charged with absence without leave; if he is convicted, the five year rehabilitation period, or seven years if sentenced to detention, and the detention may be imposed for a wide variety of military offences.

If I may, I will give a few examples. Section 28, a soldier found to have been captured by the enemy as a result of disobedience to orders or wilful neglect of duty. Section 29, while on guard duty, when not on duty at a post, is alseep at a time when he is not allowed to be asleep; if convicted for that, a five or seven years rehabilitation period. Section 33, using insubordinate language to a superior officer—a private soldier to an N.C.O. Section 36, disobedience to standing orders. Section 41, without reasonable excuse failing to attend a parade. Section 43. drunkenness. Those are instances of military offences.

I submit to the Committee that it is really wrong that this Bill should extend to purely military offences, unless the military offence charged is an offence against the ordinary criminal law of this country. If it is, and a sentence of imprisonment is imposed, then the Bill should bite. Under Section 70 of the Army Act people are charged with committing a civil offence which is a criminal offence under our ordinary law. I would make it possible to bring in those offences thereby drawing a line, which may not be a perfect line but which is clear, between military offences and offences of a criminal character. After all, any conviction for any military offence no matter by whom it is made, whether by court-martial or by a commanding officer, is at the moment within the Bill. I do not think it should be.

Looking at the matter in a little more detail, I suppose that in the absence of a sentence of imprisonment, which I agree might be damaging if brought out in later years, the one sentence which destroys a man's reputation, if brought to light again in later years, is the sentence of cashiering. Cashiering is excluded from the operation of the Bill. As I said on Second Reading, during wartime when one had to deal with cashiering cases it was nearly always a matter of passing dud cheques which, if tried by ordinary courts, would carry a period of rehabilitation.

I think it would be better to leave all Service offences outside the scope of the Bill, except those where a man is charged with committing an offence under the criminal law. Bring those in, but do not spread the net so wide as to bring in all courts-martial and things of that sort. I cannot see the case for it. I beg to move.

1.42 p.m.

LORD LEATHERLAND

If I say I have some sympathy with the noble and learned Viscount, Lord Dilhorne, he may on reflection think he has been wrong in everything he has said. I must candidly say that I see some force in his arguments. The effect of his three Amendments, as I interpret them, would be to substitute his own first Amendment for the whole of the clause, because he intends to delete the other subsections of the clause.

On Second Reading, we were told that the Lord Chief Justice would be issuing some practice notes for the guidance of the courts. Whether those practice notes would also cover courts-martial and military law, I do not know. But I think such practice notes should be issued for the guidance of the military by such an outsider as the Lord Chief Justice or some high authority in the Ministry of Defence, because Clause 2, as it now stands, says that a man's record shall contain details of any punishments awarded by court-martial or by any authorised person, and that these shall be shown as convictions. So far as court-martial sentences are concerned that is perfectly proper, because they will have been fairly serious offences, probably the kind that would go to a Crown Court, or a higher court, in civilian life. But the term "authorised persons" can include the company officer, who may on occasions be a junior subaltern, who will be dealing with minor and' technical military offences at every morning's "jankers" parade.

If I may cast my mind back more than half-a-century to the day when I was a young and modest company sergeant-major, I once put a man on the peg for being drunk. I acted similarly with a man who showed a light in his billet in a barn just behind the River Somme; another for flogging rations to a young French widow who lived on the outskirts of the town. I felt very mean when I fined one of my sergeants for being a day late returning from his leave in England. Those crimes—"crime" was the word we always used—used to follow a man on his conduct sheet all through his military career. But it seems unfair that those entries should follow him into civilian life as well. For that reason I have sympathy with the noble and learned Viscount's Amendment. Whether it is necessary to incorporate the Amendment into the Bill, or whether we can deal with it under the Lord Chief Justice's practice notes I do not know. I am prepared to listen to whatever course the noble and learned Viscount might suggest.

LORD FOOT

With the greatest possible deference and uncertainty might I say that in my view the noble and learned Viscount has misapprehended the effect of his Amendment. If I understand the clause right, what the Bill sets out to do, first, is to define what is a conviction before the ordinary courts. The reason why we want to define what amounts to a conviction before ordinary courts is that we want to identify those cases where a person will be capable of rehabilitating himself.

As I read Clause 2, what that is trying to do is to set out what amounts to a conviction for which a person can rehabilitate himself. It includes all proceedings before a court-martial, or indeed before some subordinate military tribunal, comparable to the proceedings before our courts either on judgment or summary. What would be the result—if I am right about it—of accepting the noble and learned Viscount's Amendment? Would it not make it impossible for a person who was convicted of not attending a parade, or a person who was convicted of some silly, trifling offence, ever to be rehabilitated from that offence? If I am right about that, and if Clause 2 means what I think it means, then surely if the noble and learned Viscount's Amendment is carried the following offences would never be rehabilitatable.

The first category would be military offences which were also civil offences, but which were not dealt with by court-martial. The second category would be military offences which were not civil offences and which were dealt with by court-martial. The third category would be military offences which were civil offences but which were dealt with by court-martial and did not lead to imprisonment—because the noble and learned Viscount's Amendment says, in effect, "Oh, no! The only thing that counts as a conviction is something that carries with it a sentence of imprisonment." I cannot believe that that is the noble and learned Viscount's intention: that where you are convicted of a serious offence you should then be capable of rehabilitating yourself from it. But where you are convicted before a military tribunal of some trifling offence you should never be able to be rehabilitated at all.

VISCOUNT DILHORNE

I can answer the noble Lord in one sentence. About 50 years ago I was convicted, I must confess it, of riding a motor-cycle without lights. I have never found any need to rehabilitate myself from that conviction. If you are going to bring into the net all these minor, purely military offences, and say that there must be a period of rehabilitation of five years from each, you are making a nonsense of the Bill.

LORD FOOT

What we are doing under the Bill rightly or wrongly, is providing that even in the case of a person being give an absolute discharge, or a conditional discharge, or being found guilty of any kind of summary offence and having a small fine imposed, he should be able to rehabilitate himself and have that wiped out after a period of six months. Why in the world should we not adopt exactly the same principle in the case of minor offences committed in the Army, Navy or Air Force so that a person has the opportunity of having his conviction wiped off the record after a period of six months? Why should we deny him that? I suggest that is what the Amendment of the noble Viscount clearly does. It surely creates the absurd situation that, if you commit a serious Offence under military or naval law then you can in the course of time have it wiped out, but if you commit a minor offence it is there on your record forever. I suggest that that is what the Amendment the noble Viscount will, in fact, do.

LORD WIGG

I am responding to temptation, but I must again be perfectly frank about this. The reason why I have not previously spoken on this Bill is because I regard it as the most unutterable nonsense. This is another case (and this, it seems to me, runs through the age in which we live) in which people's bleeding hearts have run away with their bloody heads and they do not stop to see what the consequences of their actions are going to be.

Let us just ponder for a moment this clause in relation to military law. Suppose two men desert together and are then apprehended, and suppose they belong to different units. In one unit, the CO. remands the man for a summary of evidence, he is subsequently tried by court-martial and, on conviction, he forfeits all his service. That is quite automatic. In the other unit the C.O. does not remand him for a summary of evidence. He thinks about it; and, the man having subsequently confessed to desertion, his trial is dispensed with. His service is forfeited as well. As I understand this—and I do not need to tell the Committee that I am not a lawyer—under the first set-up, after a period of years the conviction would be washed out and the service restored, and presumably that would be the end of it. On the other hand, the second man, who has not been convicted by court-martial or convicted by any other person, would still have his service forfeited.

This is the kind of nonsense that comes about and destroys the discipline of the Armed Forces in democratic countries, because people who know nothing about it at all sit down to write some words and then do not do their homework and see where it will end up. So I hope very much, not that the Amendment of the noble Viscount, Lord Dilhorne, will not be accepted: I hope that Lord Gardiner will agree to take Clause 2 away in its entirety and wring its neck, or at least have second thoughts.

LORD HARRIS OF GREENWICH

The noble Viscount, Lord Dilhorne, proposes in this and his other Amendments to Clause 2—and, if I may, I will deal with Amendments No. 3, 4 and 5 together here for the convenience of the Committee—that the benefits of the Bill should be extended to only a limited class of military cases: those where the conduct constituted an offence under the civilian law and where the sentence was one of imprisonment. I am not sure why the noble Viscount should think it necessary to deny the benefits of the Bill to the Serviceman who is dealt with in Service disciplinary proceedings for what in civilian life may be a minor criminal offence or no offence at all; or to the Serviceman who, rather than be imprisoned, is dismissed or otherwise dealt with. I understand, and indeed have some sympathy for, the view that it is unnecessary to cast the Bill's net so wide as to catch every minor disciplinary offence, but, in fact, we have to ask ourselves, I think: what on earth damage does this do?

Frankly, it is difficult to draw this provision more narrowly without leaving unprotected some deserving cases under the Amendment proposed by the noble Viscount. The man who is court-martialled and sent to prison for a serious offence of violence may be rehabilitated, while the man otherwise dealt with for a lesser offence of the same kind would not. I will certainly draw the attention of my right honourable friend the Secretary of State for Defence to what the noble Viscount has said this afternoon, but I could certainly hold out no hope to the noble Viscount that my right honourable friend would wish to take a different view at any later stage of the Bill.

LORD WIGG

I wonder whether—

LORD HARRIS OF GREENWICH

Perhaps I may just conclude this point. In addition to the exclusions which I have already mentioned, if this Amendment were carried, all offences tried summarily before a military tribunal would come out, and these would include such offences as the possession of drugs, minor theft, assault, drunkenness or fighting. In some cases, imprisonment might be awarded, but under this Amendment, the offence could still not be rehabilitated. I really do not know whether that is the wish of the noble and learned Viscount, but that is, in fact, what his Amendment states, and I very much hope that, with great respect, he will not press it.

LORD WIGG

Do I understand my noble friend to say that this Section of the Bill has not been considered by the Defence Department?

LORD HARRIS OF GREENWICH

No, I am sorry. I certainly did not say that. I think my noble friend misheard me. What I said was that I would draw the attention of my right honourable friend the Secretary of State for Defence to what the noble Viscount had said, but I could hold out no hope that he would change his view on the matter.

LORD WIGG

I should have thought that the points made by Lord Dilhorne would have been considered already by the Minister of Defence. May I also remind my noble friend, that under the procedure dealing with the Army Act, as to which Lord Dilhorne made kindly reference to myself, it was left that this was really a matter in which the Houses of Parliament as such were not particularly interested, and it was referred, I think every third year, to a Committee on Procedure for them to look at it. Heavens above!; here is a case where you are tampering with discipline—and for noble reasons. I am not suggesting for a moment that Lord Gardiner or anyone else who supports him wants to play around with the discipline in the Armed Forces, but I assure my noble friend that the effect of this clause will be just that. It will create absolute chaos in the odd case, not affected at the present moment, such as the instance I have mentioned where there is a forfeiture of service and the trial has been dispensed with. It will affect those cases where there is time promotion, when, so far as I can see, there must be no reference to a man's previous conviction and yet, in fact, his conviction will affect the whole of his military service. This is unutterable nonsense. It may be that we have entered a period in which our almost non-existent Armed Forces should operate in such a way, but if that is so there ought to be a declaration by the Government that that is their policy. In the meantime, I would have thought that the procedures that were enacted and were put into operation in 1952, and which have operated since, meant that one should not tamper with the Armed Forces of the Crown through the operations of the Army Act without being very careful about what one is doing.

VISCOUNT DILHORNE

I am sorry but, having listened with care to what the Minister has said about this, I am not in the least content. I have to say to the noble Lord, Lord Foot, that I am afraid I cannot have made myself clear to him. I do not myself take the view that it is necessary to provide a rehabilitation

Resolved in the affirmative, and Amendment agreed to accordingly.

period in this Bill for every single minor, trumpery offence. Although it may be that the Amendment that I have tabled is imperfect in some respects—I expected that to be said; it always is—I still think that at the root it is right. I say it is right for reasons which have not been considered at all so far in this debate; namely, those concerning the position of people who, by reason of these provisions, are being debarred from doing what they are now permitted to do. They are the people who would be exposed to actions for libel because, years after the event, in a book dealing with someone's past history, they referred to a conviction for absence without leave. I think I am right in saying that if the noble Lord, Lord Leatherland, had made his observations outside this Committee he might have exposed himself to considerable risk if this Bill had been the law. I am afraid I must press this Amendment.

2.3 p.m.

On Question, Whether the said Amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 44; Not-Contents, 39.

CONTENTS
Alexander of Tunis, E. Douglas of Barloch, L. Reigate, L.
Ballantrae, L. Elton, L. Ruthven of Freeland, Ly.
Berkeley, B. Emmet of Amberley, B. St. Aldwyn, E.
Boothby, L. Fraser of Lonsdale, L. St. Just, L.
Carrington, L. Gainford, L. Sandford, L
Cathcart, E. Gowrie, E. Sandys, L.
Colville of Culross, V. Grenfell, L. Selkirk, E.
Cowley, E. Hayter, L. Sempill, Ly.
Crawshaw, L. Kinnaird, L. Stow Hill, L.
Cullen of Ashbourne, L. Lauderdale, E. Strathspey, L.
de Clifford, L. Lyell, L. Teviot, L.
Denham, L. Maybray-King, L. Vivian, L.
Derwent, L. Merrivale, L. Wigg, L.
Dilhorne, V. [Teller.] Monck, V. Windlesham, L.
Diplock, L. [Teller.] Mowbray and Stourton, L.
NOT-CONTENTS
Airedale, L. Gardiner, L. McLeavy, L.
Archibald, L. Gordon-Walker, L. Melchett, L.
Ardwick, L. Goronwy-Roberts, L. Ogmore, L.
Birk, B. Hale, L. Pannell, L.
Brockway, L. Harris of Greenwich, L. Platt, L.
Burntwood, L. Henderson, L. Royle, L.
Caradon, L. Hertford, M. Seear, B.
Castle, L. Jacques. L. Segal, L.
Crook, L. Leatherland, L. Serota, B. [Teller.]
Effingham, E. Lee of Asheridge, B. Shepherd, L. (L. Privy Seal)
Elwyn-Jones, L. (L. Chancellor.) Llewelyn-Davies of Hastoe, B. Wigoder, L.
Foot, L. [Teller.] Lloyd of Kilgerran, L. Wootton of Abinger, B.
Gaitskell, B. Lovel-Davies, L. Wynne-Jones, L.

2.9 p.m.

VISCOUNT DILHORNE

I beg to move Amendment No. 4.

Amendment moved:

Page 2, line 49, leave out subsection (2).—(Viscount Dilhorne.)

On Question, Amendment agreed to.

VISCOUNT DILHORNE

I beg to move Amendment No. 5.

Amendment moved—

Page 3, line 1, leave out subsection (3).—(Viscount Dilhorne.)

LORD GARDINER

I do not wish to take up the Committee's time about this, but I think that I ought to explain that the expression "service disciplinary proceedings", which is defined by the part of the clause proposed to be left out, is used in Clause 5(2) Table A, Clause 5(8), Clause 6(7) and Clause 7(2)(b). Only the first two of these are sought to be omitted by the other Amendments and the expression would therefore not be defined for the purposes of the other two. I would have thought therefore that the definition ought to remain.

VISCOUNT DILHORNE

Further consequential Amendments may have to be made. I may well have missed some. But I think this should be deleted. I think my noble and learned friend Lord Gardiner is wrong. I have subsequent Amendments down to delete a lot of the court-martial provisions but we can always look at those on Report stage.

VISCOUNT COLVILLE OF CULROSS

When I was listening to the debate on the last Amendment I had a good deal of sympathy with what was said by the noble Lord, Lord Foot, about the very insignificant offences which. under the Amendment as it stands, would have to be considered. The noble Lord, Lord Harris of Greenwich, said that he was going to take this mater back to his right honourable friend the Minister of Defence. He could not promise any very great change; but in fact he has now got one and he is therefore going to have to take it back and ask the Minister of Defence or the expert advisers how this is to go ahead. I am quite sure that any of us on this side of the House will be prepared to listen to any constructive suggestions put forward by the Minister, and if in the process they happen to meet the point raised by the noble Lord, Lord Foot, it may be all to the good. There would be no harm in doing it that way; and now that we have an opportunity to do it I very much hope that if there was any reluctance on the part of the Ministry of Defence to consider this matter it will now be overcome and that the noble Lord will take the matter really seriously and give us the result of their fully considered opinion at the next stage of the Bill.

On Question, Amendment agreed to.

On Question, Whether Clause 2, as amended, shall stand part of the Bill?

LORD LEATHERLAND

In view of what has been said not only by the noble and learned Lord and by the noble Lord, Lord Foot, I hope that if a clause comes to be drafted or if some practice notes are issued by the Lord Chief Justice or the Minister of Defence, it is made perfectly clear that pettyfogging little offences of a military kind do not follow the soldier or Serviceman into civilian life.

Clause 2, as amended, agreed to.

Clause 3 agreed to.

Clause 4 [Effect of rehabilitation]:

2.13 p.m.

LORD DIPLOCK moved Amendment No. 6:

Page 3, line 45, leave out paragraph (a).

The noble Lord said: Clause 4 of the Bill is one of great importance and it is one which has the sympathy of all of us in that it is designed to prevent references to spent convictions taking place in courts or in other tribunals. The theory is splendid, but the practice of it, as suggested here, fills me with the greatest of foreboding when one is considering what would happen in court as a result. Clause 4(1) provides that: (a) no evidence tending to prove the contrary shall be received by any court or other judicial authority, … (b) a person shall not … be asked … any question.…

The first thing to notice is that this does not apply to criminal proceedings at all because those are excluded from the effect of this clause by subsection 2(a). So it applies only to civil proceedings.

May I concentrate for the moment on proceedings in a court of law, because there at least one has some control over the procedure; one knows what the Rules of Evidence are. In civil proceedings in a court, previous convictions, whether spent or not, would not be admissible except in two possible cases, the first being in cross-examination of a party or witness to credit; that is dealt with by (b). The only other circumstances in which convictions spent or not spent, would be relevant, would be if they were relevant to an issue in the case. If they are relevant to an issue in the case, then Clause 7(3) permits the evidence to be given.

Paragraph (a), so far as proceedings in a court of law are concerned, is unnecessary to protect rehabilitated persons against their convictions being referred to in court in civil proceedings, which is all that this applies to. Not only is it unnecessary, but it is, in my submission, positively harmful, because it is unworkable in the way cases are tried and come up in the court in civil proceedings. Remember that the reference to the conviction or the facts underlying it is admissible if it is relevant to an issue in the case; that is to say, that that evidence is necessary to do justice between the parties. So while the action is proceeding counsel has to submit to the judge that the evidence of a spent conviction is necessary to do justice to the party. The judge, until he has been told what the spent convictions are, and may be all the details about it, cannot decide whether or not it is admissible. If he rules that it is irrelevant, no doubt he will do his best to dismiss it from his mind. But he would have done that even if the evidence had been brought out.

This kind of provision about no evidence being tendered, or making evidence inadmissible, is based upon a jury trial. There it works, because the jury is the judge of facts and the judge makes rulings of law; he does not decide the facts. But, except in defamation actions, the jury has practically disappeared from civil litigation in this country. As I say, it works in jury trials because there is what is called a trial within a trial. It takes a lot of time; the jury is sent out; the matter is then argued before the judge and he rules whether or not it is admissible. If he rules it admissible the jury comes back and listens to it; if he rules it inadmissible the jury never hears it. That does not really make sense when it is a trial by judge alone.

I have spoken about courts, but if you look at subsection (5) you will see that "judicial authority"—and this applies to proceedings before judicial authority—is extremely widely defined, particularly in paragraphs (b) and (c). It includes any tribunal, body or person having power. Paragraph (b) deals with what are, in effect, statutory tribunals, which might include the Benches of the Inns of Court, and states: (b) under the rules governing any association, institution, profession, occupation or employment; or (c) under any agreement or arrangement (express or implied) ".

The definition of "judicial authority", so far as I can see, covers such bodies as committees of trade unions, committees of working men's clubs and even myself when, in this year of my Office as Treasurer of the Middle Temple, I sometimes have to deal with offences by students. How can this kind of tribunal, or committee of a club, be expected to operate a procedure as complex as this one? They will not know about it, anyway. It applies only if the conviction is spent. How are they to find out whether or not it is spent? How can you, before that kind of tribunal, expect them to give a ruling as to whether or not it is admissible, and having decided that it is not admissible expect them to dismiss it from their minds? With great respect to the draftsman of the Bill, that makes nonsense of this procedure.

It does not stop there, because one must consider what is the remedy if the committee of the working man's club, or whatever body it is, makes a mistake. It hears about a spent conviction without knowing in advance that that is what it was going to hear about. What is the remedy? So far as I can see, the only remedy is to apply to the divisional court for a writ of certiorari to bring the decision up to be quashed, because the procedure laid down about admitting evi-evidence before that kind of tribunal had not been followed.

I ask your Lordships to pause for a moment and think what is the effect of the only remedy? It is to give the widest possible publicity to the spent conviction which is the cause of the order having to be quashed. What happens on the quashing? It goes back to the same body to hear it again, without the spent conviction being mentioned the second time around. To put this kind of complicated provision into the Bill when there is the safety of paragraph (b), which provides protection without causing difficulties, is to make the matter so complicated for ordinary human beings that it cannot be observed. If one is passing a law to say that something is unlawful, it ought to be something which people can reasonably know about and observe. I beg to move.

2.25 p.m.

LORD GARDINER

Subsection (4)(a) is, of course, the guts of the whole Bill. As we all knew from the very start, somebody had to decide what was to be the principle of the Bill. If people were to be prevented from bringing up other people's old convictions, there had to be some kind of sanction. As I pointed out on the Second Reading of this Bill, there are very limited suggestions as to what this sanction should be. The only practical alternative to the fear that you might then be liable for damages in an action of defamation was to make such revelations a criminal offence.

It was that, primarily, that we considered on the Second Reading of the Bill 18 months ago, covering 84 columns of Hansard, and we decided that this is the right basis and the right sanction. Since then it has twice been considered in the elected Chamber, and each time they were told on Second Reading, first by Mr. Heath's Minister of State, and subsequently by the present Minister of State, that the defamation clause was the guts of the Bill and that they had to decide whether, in principle, this way of enforcing sanctions was right, and on both occasions they said, "Yes".

It is quite useless, of course, to leave out Clause 8 unless you leave out sub-section (4)(a), which is the whole basis of an action for defamation. An action for defamation as it now is would be absolutely unless to the rehabilitated person if it were not for the provision which forms the basis; that no evidence of his rehabilitated offence is to be admissible. It is as simple as that. To leave out the defamation clause will help nobody on either side of the controversy, unless those who are opposed to the Bill first delete subsection (4)(a). That has always been the guts of it and, obviously, I am unable to concur with it.

VISCOUNT COLVILLE OF CULROSS

This is the second time in this Committee stage that the noble and learned Lord has wholly failed to deal with the argument that was placed before the Committee. I entirely understand what he has just said. When it comes to an action for defamation—and the whole point of an action for defamation is that somebody mentioned when he should not have done, or published when he should not have done, the facts or surrounding circumstances of the spent conviction—it is perfectly plain that you have to keep those facts or those surrounding circumstances out of the defamation action. Otherwise, it does not make sense at all. I entirely agree with the noble and learned Lord on that point. If that is the case, and he has not already done it, then he ought to make a suitable provision for Clause 8 which governs defamation actions to make perfectly certain that this is so.

What he has failed to do is to answer the noble and learned Lord, Lord Diplock, on any points that he made as they related to any other action whatever, except a defamation action which would be protected by this Bill. The noble and learned Lord, Lord Diplock, has deployed a two-fold argument. He said that in any other such action where somebody's past record is being investigated or sought to be investigated, the way Clause 4(1)(a) is drafted is a total nonsense for the reasons he has given. The noble and learned Lord has not answered that in any particular whatever. The noble and learned Lord, Lord Diplock, went on to say that even if you did not have Clause 4(1)(a), the law as it stands, and the law of evidence as it stands, is perfectly adequate to deal with any such circumstances and it would, in practice, prevent the spent conviction being raised except in circumstances where under the Bill, by virtue of Clause 7(3), it can be raised anyway. That is the burden of the argument of the noble and learned Lord, Lord Diplock. The noble and learned Lord, Lord Gardiner, has not dealt with that either.

If he wants to have complete surety in the defamation cases, I am with him. The defamation clause makes no sense at all without it. If, however, he wishes to add an absolutely impossible situation, which is in any event unjustified because the law already covers it adequately, to every other trial where the issue may arise, then he has not sought to answer—and has made no impression on me, at any rate—the noble and learned Lord who moved this Amendment. Really, we are not going to get very far—and I say this with the greatest deference to the noble and learned Lord, Lord Gardiner—if he talks about something quite different from what was said by the person who moved the Amendment.

LORD DIPLOCK

May I make it quite clear to the noble Lord that I was not dealing with defamation actions at all. I was dealing with actions other than defamation actions, and I was doing so because Clause 4(1) is expressly subject to the following provision in Clauses 7 and 8—the latter being the defamation clause. When we come to the defamation clause I have in my name several Amendments which I hope will simplify that matter and provide a proper remedy for a rehabilitated person. I want to make it quite clear that I was talking about actions other than defamation actions.

LORD HARRIS OF GREENWICH

If I may speak briefly—because I am conscious of the fact that although this is a very important Amendment we still have a very substantial distance to go—I should just like to say that I, like my noble and learned friend Lord Gardiner, take the view that this Amendment represents a blow against the principle of the Bill, and that if this Amendment were to be carried it would have the most substantial consequences for the Bill. One of the main purposes of this measure is to free the ex-offender from the risk and hazard of disclosure of his criminal record, and the simple fact of the matter is that if this Amendment is carried he cannot be so freed. I think the Amendment represents a serious dilution of the effect of the Bill, not only in terms of the evidence it would allow the judicial authorities to receive, but also in so far as the proceedings were reportable by the Press and the media. Therefore I hope that the Committee will not accept the Amendment.

VISCOUNT DILHORNE

I am very disappointed in that reply: I really am. It is an endeavour to answer the speech of my noble and learned friend, and that we welcome; but as an answer it is really wholly inadequate. I am astonished that the noble and learned Lord, Lord Gardiner, should say: "This is the guts of the Bill" I think that is quite misconceived. The trouble we are getting into with regard to this particular provision is that, again, the net has been thrown so wide that the questions have tended to get blurred. But what we are dealing with here is not defamation: we shall come to that when we get to Clause 8. Nor are we dealing with the foundation of defamation or of the circumstances in which a man may be freed from the effect of a previous conviction. These are not the effects of this Amendment or of this clause. This clause deals with procedures in court, and the difficulty in its application comes about because of the width of the definition of a judicial authority.

I can only speak, with perhaps a little authority, with regard to court proceedings. That is why I am so surprised when, in relation to court proceedings, the noble and learned Lord, Lord Gardiner, says: "This is the guts of the Bill." I quote his phrase: it is his English, not mine. But I cannot see that it possibly is. In civil proceedings—and this is all that we are concerned with, because it would not affect criminal proceedings—I cannot myself ever recollect evidence tending to prove a spent conviction being brought before the court. I do not think it happens in civil proceedings. I do not know whether my noble and learned friend Lord Diplock, with his great experience, has any recollection of a case where that has happened—or indeed the noble and learned Lord, Lord Wigoder—but if it is an issue before the court then Clause 7(3) would apply and you would be allowed to have evidence in regard to those spent convictions in order that justice could be done. This is what the Bill provides, and if the spent conviction is not relevant to an issue before the court which requires to be determined for justice to be done, then it must be inadmissible—because you only have admissible evidence allowed in the courts in relation to issues to be determined, subject to the one exception that a witness can, always be cross-examined as to credit.

Paragraph (b) deals with that. If I may summarise, it provides that a person shall not be asked, and if asked shall not be required to answer, any question dealing with a spent conviction; and as long as you keep that provision in you have the real safeguard for bringing out spent convictions in civil proceedings in the courts. That is the essential part of this clause, I venture to say to the noble and learned Lord, Lord Gardiner—not this part, which is unnecessary and serves no useful purpose, though it may be a provision which can be called by those who misread it (as I think it has been misread) as being "the guts of the Bill". I do not believe for one moment it is that.

I would support the retention of Clause 4(1)(b). It may need slight amendment, but I would support the bar on persons being asked, and if asked being required to answer, questions relating to spent convictions, and I think that is all one needs for court proceedings.

THE LORD CHANCELLOR

Supposing the offending reference was to some documentary evidence, quite apart from the business of specific questions to witnesses?

VISCOUNT DILHORNE

I regret that I have not followed the gist of the noble and learned Lord's question. If the reference was contained in a document produced in court, either the document would be inadmissible or admissible. I cannot think that a list of spent convictions would be relevant to any issue in the ordinary civil case. I cannot see that as a reality. The noble and learned Lord, Lord Diplock, will be able to confirm whether his experience would support this, but I really do not see this difficulty.

The real difficulty is what are you going to do about other investigating bodies which are not courts of law? I think one of the difficulties about the Bill is that it treats courts of law and other investigating bodies as if they were entirely the same. That is what I think has given rise to problems in drafting. The observations I have made so far have been in regard to courts. When one turns to the other bodies, which are by definition judicial authorities, one asks how they are to function? They are usually lay bodies. Sometimes, like Treasurers of the Inns of Court, they are lawyers of distinction; but I do not know whether all the Church disciplinary bodies contain lawyers to advise them on these difficult matters—I am quite sure a great many other bodies do not.

In connection with those bodies it may be that there should be some clear guidance given on how to proceed. That, I can well see; but I do not think they get that under the Bill. I think we have a problem in relation to those bodies, which requires more thought. One does not want those kinds of bodies to be receiving much evidence about spent convictions, and I suspect that ordinarily they would not want it. Most of them would say: "This has nothing to do with it: we are not concerned with it." But there are cases where some of those spent convictions may be very relevant.

Let us take the case of a Bar student who comes before his Treasurer on an offence of dishonesty—shoplifting, perhaps. The first question the Treasurer may want to ask (with a view to finding out whether it is possible to overlook this offence before admission to the Bar) will be: "Was it your first offence?" If it was not and if there had been a spent conviction beforehand, under the Bill as it stands under a later provision, he can probably answer, "Yes"—when, in fact, it is not a first offence. However, in this kind of inquiry one may get into real difficulties by a provision about no evidence tending to prove the contrary. First, I doubt very much whether very often a lay body has any idea of what is or is not evidence.

When you get on to tending to prove the contrary they will say, "Contrary to what?" There will be difficulties in regard to a lay body. So far as the courts are concerned—and it is the courts with which this part of the Bill is primarily concerned—I take the view that far from being the guts of the Bill it is complete surplusage. I think it would be better to have that part excised, even though I recognise that you may have to make special provision in relation to other lay bodies who are exercising disciplinary powers. I therefore support the Amendment moved by my noble and learned friend.

LORD SALMON

I have the misfortune to disagree with my noble friends because Clause 4(1)(a) cannot do any harm in any conceivable view. If justice requires in civil proceedings—whether before a court or some other authority—that the evidence shall be given, there is the power in Clause 7(3)(a) for the authority to admit the evidence. If you leave out Clause 4(1)(a), there is the risk in a court that a document would be introduced which would be relevant to the proceedings and which would be read out in the court, but tucked away in it would be the fact that "X" was guilty of a criminal offence ten years earlier. If you leave out Clause 4(1)(a) you emasculate the Bill in so far as it is designed to protect "X" in circumstances such as those. I agree that it is unusual for that evidence to be tendered in any other way in a court of law. But I have known of many cases where documents are introduced in a court which contain such information. I am not talking about oral evidence. There are proceedings before authorities that are sometimes conducted in public. If you leave out Clause 4(1)(a), there is nothing to prevent evidence on the man's past convictions being given and publicised in such proceedings. For that reason, I consider that, rightly or wrongly, it is essential to retain Clause 4(1)(a), and I have not yet heard any reason advanced to show that it could conceivably do any harm to retain it.

VISCOUNT COLVILLE OF CULROSS

May I intervene once more to make two points. On many occasions I have had the misfortune to move an Amendment from the Back-Benches and have been told by a Government spokesman that, although it does not do any harm, it does not do any good either and, therefore, it would be better if it did not go in the Bill. The noble and learned Lord, the Lord Chancellor, referred to documentary evidence as has the noble and learned Lord, Lord Salmon. What is counsel to do if he has a complete document and he wishes to present it to the judge or any other tribunal? Is he to cut bits out of it, or read it out and, when he gets to the offending party say, "Now here is something to which we are not to pay any attention" and then to read on?

Throughout, my approach to the Bill is of a humble practitioner. The noble Lord, Lord Foot, and I are the only practitioners and all we want to know is what we are supposed to do in the courts on these matters. Since the point has been raised about a document and how it is to be dealt with, I believe we should like to know in what way some extra protection is to be given. If you introduce the document, even if you do not read it out, the judge will see it, but of course he will disregard it. Therefore, what is the point of this paragraph?

LORD SALMON

The short answer is that he will read out the parts in the document which are relevant and will not include the part which talks about a prior conviction. Unless Clause 4(1)(a) is retained, there is nothing to prevent him reading out the whole document. What is of account it what is read out in court. I do not mind the judge seeing the whole document at all, although it depends on the judge. If that part of the document is not relevant, there cannot be any possible objection to leaving it out. Why should it be read out?

2.45 p.m.

LORD HALE

I rose earlier to make an observation which would have been much less effective than that made by the noble and learned Lord, Lord Salmon. Surely it is common practice in agreeing correspondence for the solicitors to agree that some matter is prejudicial or irrelevant and, with the leave of the Master, one submits an agreed correspondence which is copied out. It is rarely submitted in the original to the judge, although the original has to be available in case a question arises. That is what my noble and learned friend the Lord Chancellor referred to in his intervention. Documentary evidence is essential in the proceedings, it cannot be excluded. Unless the Amendment is in, it can only be put into practice by agreement between the solicitors and by the litigants.

Many people say, "This clause does not add anything and, therefore, let us leave it out". I have spent half my life in Parliament saying that I cannot see any reason for leaving out a perfectly useful, clear and explanatory clause. On the first Amendment a noble Lord said that we must trust the Parliamentary draftsman. Being rude to the Parliamentary draftsman used to be said to be a rather unnecessary occupation of troublesome Left-Wing Members in the House of Commons. More recently it has been an occupation of the Court of Appeal and is quite common. In the course of this week—I may be quoting inaccurately—the Court of Appeal said, "We now have to look with much more care than we have ever done before because we realise that there are difficulties which we did not conceive might happen in the interpretation of a vital clause of the Act which deals with misrepresentations on sales." The question was whether a car was a new one if it had had minor repairs on its journey to the garage, and so on.

Much as we admire the Parliamentary draftsman, and much as we should abstain from criticism of his exercising his esoteric art, we should not assume his infallibility. Professor Einstein said that he never made notes and only had two ideas in his life—he had forgotten one, and the other was the General Theory of Relativity which was still the subject of argument. He almost added that, if he were to be proved right in the end, the Germans would say that he was a German and the French would say he was a Jew. If the theory was proved invalid the Germans would say he was a Jew and the French would say he was a German! Perhaps that is not terribly material to this clause.

The other point I should like to make in a single sentence is that surely the interconnected clause which introduces these tribunals—I would think without much hope of achieving very much—is a bona fide attempt to deal with the defence of quasi-judicial privilege. These courts are sitting in a quasi-judicial capacity, and I should have thought that that was so. I have dared to intervene at all to-day only because so many distinguished noble and learned Lords are disagreeing with one another that we lesser fry can come in and be fortified by the fact that whatever we say will be agreed to by one or other of them. On this occasion I seem to have missed my opportunity: I do not see any signs of assent at all.

2.50 p.m.

LORD DIPLOCK

I wonder whether I may deal with the question of documents which has obviously troubled a number of your Lordships. Of course I agree with my noble and learned friend Lord Salmon that if it happened to-day in a court of law, without any of this Bill applying at all, that one of the documents containing material relevant to the case contained a reference to a spent conviction which was not relevant, the way to deal with it is perfectly simple. As my noble and learned friend Lord Salmon says, the judge sees the document and takes care that the part about the conviction is not read out in court. That is something that happens to-day not infrequently without convictions being spent. One does not allow material which is not relevant but denigratory of someone to be read out in court. That lies within the judge's power.

The trouble with paragraph (a) is that it does too much. It provides: no evidence tending to prove the contrary shall be received by any court ". When there is a trial before a judge alone, if the judge sees the document then the evidence has been "received" by the court, whether or not he says, as of course he would: "Don't let it be read out in court". The trouble with paragraph (a) is not the motive that lies behind it—of that I wholeheartedly approve—but the practical difficulties which it is going to cause in the carrying out of litigation, the difficulty that my noble friend Lord Colville of Culross referred to: "What is counsel to do?" In this particular matter, at any rate in courts, I would confirm the experience of my noble and learned friend Lord Dilhorne. In the whole of my career at the Bar, which was concerned with civil actions and not with criminal actions—what we are talking about to-day—and in the whole of my time as a judge on the trial bench, I cannot recall one single occasion on which there has been brought out in court by counsel a reference to an old conviction. If counsel had ever tried to do that when I was presiding over the trial, he would have had very short shrift and would have been prevented.

This is the kind of problem which can be dealt with by the etiquette, the custom and the ethos of those who conduct cases in courts of law. Once one tries to lay down in black and white rules of this kind then one either goes too far, as in the instance concerning documentary evidence, or else fails to do anything to improve the present situation.

LORD HAYTER

It is quite clear to me from what has been said that among those judicial authorities to which reference is made are many other bodies than courts of law. We have agreed on that. One of them is the rules governing any association, institution, profession, occupation or employment. It may be helpful if I say that there is a body called The British Security Industry Association, and all the firms who are in that Association are agreed that one of the requirements laid down by their Standard Committee is that they are required to obtain favourable references from previous employers for all applicants for employment during a continuous period of twenty years. That is our standard as it is now. I can see the point of the noble and learned Lord, Lord Gardiner, that if we are going to deal with a situation of this kind, not in a court of law but in this particular situation—

VISCOUNT DILHORNE

May I interrupt the noble Lord for a moment? We are dealing here with what happens before judicial authorities as so defined;

CONTENTS
Alexander of Tunis, E. Emmet of Amberley, B. Sandford, L.
Ballantrae, L. Glasgow, E. Sandys, L.
Berkeley, B. Gowrie, E. Selkirk, E.
Cathcart, E. Grenfell, L. Sempill, Ly.
Colville of Culross, V. Jessel, L. Strathspey, L.
Cullen of Ashbourne, L. Kennet, L. Teviot, L.
de Clifford, L. Maybray-King, L. Trefgarne, L.
Denham, L. Merrivale, L. Vivian, L.
Dilhorne, V. [Teller.] Monck, V. Waldegrave, E.
Diplock, L. [Teler.] Mowbray and Stourton, L. Wilberforce, L.
Drumalbyn, L. Reigate, L. Windlesham, L.
Elton, L.
NOT-CONTENTS
Airedale, L. Garnsworthy, L. Ogmore, L.
Archibald, L. Gordon-Walker, L. Pannell, L.
Ardwick, L. Goronwy-Roberts, L. Platt, L.
Avebury, L. Hale, L. Rochester, Bp.
Bernstein, L. Marris of Greenwich, L. Royle, L.
Bessborough, E. Hayter, L. Ruthven of Freeland, L.
Birk, B. Henderson, L. St. Just, L.
Brockway, L. Hertford, M. Salmon, L.
Burntwood, L. Houghton of Sowerby, L. Seear, B.
Byers, L. Jacques, L. Serota, B. [Teller.]
Castle, L. Leatherland, L. Shepherd, L. (Lord Privy Seal.)
Crook, L. Llewelyn-Davies of Hastoe, B. Stedman, B.
Derwent, L. Stow Hill, L.
Elwyn-Jones, L. (Lord Chancellor.) Lloyd of Kilgerran, L. Strabolgi, L.
Lovell Davies, L. Wigoder, L.
Foot, L. [Teller.] McLeavy, L. Wootton of Abinger, B.
Gardiner, L. Melchett, L. Wynne-Jones, L.

we are not dealing here at the present moment in this Amendment with inquiries made in relation to references. I think that the observations which the noble Lord has made so far are perhaps more pertinent to Clause 4(2)(a), with great respect, which we shall be discussing later, than they are to the particular Amendment under consideration.

LORD HAYTER

Then of course we get into the situation, which has been noticed before, that the wording of this Bill is very obscure. I was taking the point that a "judicial authority" includes any tribunal, body or person having power under the rules governing that Association to deal with evidence. To my mind—and I think the noble and learned Lord, Lord Gardiner, has made the point—if it is clear to me and to my Association that there is no evidence to be admitted on this point, I know where I am; but if it is not there, then I do not know where I am at all.

2.57 p.m.

On Question. Whether the said Amendment (No. 6) shall be agreed to?

Their Lordships divided: Contents, 34; Not-Contents, 48.

3.0 p.m.

LORD DIPLOCK moved Amendment No. 7:

Page 3, line 61, leave out ("whether") and insert (" otherwise than ").

The noble and learned Lord said: Amendments Nos. 7 and 8 go together because they are consequential upon one another. The purpose of Amendment No. 7, which I concede may not be very happily drafted, is directed to this. Paragraphs (a) and (b) of subsection (2) are designed to entitle people, when being asked about spent convictions, to tell lies. I recognise that if one is to make this Bill effective in trying to prevent information about spent convictions coming out, then it is proper and necessary that one should authorise them to tell what I should describe as white lies. Despite the casuistry and ingenuity with which paragraph (a) is drafted, that is what it comes to, and it seems to me that one must draw the line somewhere.

Speaking as one who has been concerned with the administration of justice all his life, if you allow this to include lies upon oath and perjury you are making a mockery of the oath and cheapening the value of the oath in legal proceedings by saying that in this kind of case you may commit perjury to your heart's content. I know that the Amendment goes wider because of the wide definition of "judicial authority", but what this Amendment is intended to do is to draw the line at lies on oath—at licensed perjury. It is a matter which I suggest Parliament ought to consider very carefully before it gives legal sanction to lying upon oath. As regards the rest, I agree that that is a white lie, and I do not mind; I think that is acceptable.

That is the purpose of this Amendment. As I say, in the form it is in now it goes too wide, because it would include some of the heterogeneous tribunals where evidence is not given on oath. But that is the purpose of it.

LORD GARDINER

I hope I too may now speak, if the noble and learned Lord does not mind, to Amendment No. 8. I do not know that these Amendments would do great harm, provided that the provisions of paragraph (b) of Clause 4(1) are strictly observed in every case; but in practice it is bound to happen sooner or later, that despite those provisions a witness is asked whether he has been convicted, and answers "no" because he believes that he is entitled to treat his conviction as spent and he knows that he is a rehabilitated person. This could happen while the judge was reading a document, or more likely in a magistrates' court, where the prosecution is conducted by a junior police officer, the magistrates are all laymen and the clerk is looking up a point in Stone. Unless the Bill protects him in some other way the witness might well be held to be guilty of perjury in such a case. That would clearly be wrong. This is why paragraph (a) of Clause 4(2) extends to the question in court as well as to the question out of court. It appears to me that these Amendments seek to remove that safety net.

VISCOUNT DILHORNE

With great respect, I really do not think that is right. As our last discussion showed, the case one has to face up to is that of a witness being cross-examined as to credit in civil proceedings. We are not here concerned at all with criminal proceedings. Under Clause 4(1)(b) any person with a spent conviction must not be asked, and if he is asked he is not required to answer, any question about that conviction. So his position is perfectly clear. He is entitled to refuse to answer, and nothing can happen to him. It seems to me to be quite wrong to go on from that to provide that if certain things go wrong in court because someone is looking in a book or someone is not paying any attention, which is the case put by the noble and learned Lord, he can lie on oath.

The noble and learned Lord, Lord Gardiner, indicated that this provision about lying on oath was required only as an ultimate safeguard for the witness, the person who has had a spent conviction, because the clause will not apply to anyone else. I should have thought that the noble and learned Lord really could have accepted both these Amendments without doing any real injury to his Bill. I hope he will bear in mind that subsection (2)(a) does apply to the man who will be asked about his own conviction, and he is given the clearest possible right to refuse to answer that question if it is asked by inadvertence and without anyone realising its significance.

With great respect to the noble and learned Lord, I do not think I have ever heard a worse reason advanced for inserting a provision in a Bill sanctifying and making it legal for a person to tell lies on oath. I cannot think that is right; I cannot think it is necessary, and I hope the Committee will agree to make these minor changes in the Bill. I agree with my noble and learned friend in what he said about the rest of it. That I think is the very important part of the Bill, that if you are asked in other proceedings about these matters you can interpret the question a certain way and give a certain answer—a white lie, if you like, but you are not lying on oath. I think that particular provision was inserted into the Bill at the suggestion of the noble Lord, Lord Shepherd; I think it is right to have it there and I hope that we may reach a compromise about it.

LORD LEATHERLAND

The noble and learned Viscount, Lord Dilhorne, and I are devout persons with high moral standards. The suggestion in this Amendment is a criticism of the Bill for diluting the meaning of the word "truth"; that it turns lies into truth. But a man can say he has no previous convictions, when actually he has had some convictions which have been spent under the terms of this legislation. The Bill requires us to tell the truth according to the law. If this Bill is passed, a man will be quite entitled to answer that he has no previous convictions if those convictions, under this particular law, have been spent.

In the law of the land and the practice of the courts, we have many precedents for this kind of what I might call modified truth. Under motoring laws there are some offences that are conveniently "forgotten" after a period of years. We have many precedents under the law whereby one thing is deemed to be something else. For example, for capital gains tax purposes there are sometimes deemed prices at which transfers take place, although those may not be the exact prices and conditions under which the transfer takes place. Where property is bought and sold at what might be called an unrealistic price, the law sometimes deems that an "arms-length price" must be substituted for the price actually paid. The word "deemed" very frequently appears in the law regarding estate duty. So I do not think there is anything revolutionary about this proposal that what is truth in one case should be deemed not necessarily to be the truth in the other. I oppose the Amendment.

3.15 p.m.

LORD SALMON

I feel that here we have to balance what there is to be said on both sides. Clause 4(1)(b) protects a person in that it lays down he shall not be asked the question. There is the odd case in which by mistake he may be asked the question, and Clause 4(1)(a) if it were accepted, would entitle him to tell a lie. There is no question about that. To me it is shocking that by Act of Parliament a man should be entitled and, indeed, encouraged to tell a lie. However strong my sympathy is with this Bill—and it is very strong indeed—if I have to choose between passing a section which I think would deface the Statute Book and taking the risk of of a man being prejudiced by being asked a question by mistake, I should refuse to deface the Statute Book. I do not agree that it helps a man to say: "I won't answer ", because the true answer is then obvious. But in spite of that, I can see no reason for making it law that he can tell what is a lie by whatever method of legal casuistry one can say: "Well, what is not true is not really a lie". I am bound to say I support the Amendment.

May I just add that I am certain the professional disciplinary bodies, the Law Society, the Senate of the Bar, the Inns of Court and the Bar Council, would make it quite plain that it is a very, very serious breach of professional conduct which would be almost certainly visited by the offender being disbarred or struck off the roll if any such question were asked.

VISCOUNT COLVILLE OF CULROSS

May I just say that I have spent a good deal of time in the last two days talking on the telephone to various eminent people, among them practising lawyers, about what questions one can properly ask (because, after all, one has to assume the person being questioned is not one's own witness) which would not first of all assume that counsel has to go into a great deal of research as to the criminal antecedents of every witness who may be called by the other side (which frankly is not possible), and secondly, which will be put in such a way as to avoid putting a question which must automatically result in a person's previous spent conviction being given away out of his own mouth, to make it almost inevitable that the man, by complying with the provisions of the Bill which allow him to deny or to pretend that the question is something other than it was, will not give himself away. So far, and it may be that I am not very clever, I have not been able to devise a question which is foolproof.

I am exceptionally concerned at what the noble and learned Lord, Lord Salmon, has just said. Of course I must declare an interest if this dire fate were to overtake me and I got the question wrong, and therefore I am even more concerned. I am concerned for the way in which a case may properly be run. I have always said that I want this Bill, if it is humanly possible, to go through. But I have also always said that I want it to work.

If we really are in a dilemma about there being problems for counsel—and I think there are—as to how they are to put their questions so as to correspond with the spirit and practice of this Bill, then I think we need some guidance. This is relevant to the present Amendment, because the noble and learned Lord, Lord Salmon, has pointed out that the main protection is in Clause 4(1)(b). If we can devise questions and a procedure, which apply to all those who appear in front of tribunals and which abide by Clause 4(1)(b), and if we can produce a fair question incapable of giving the show away as well as of having the practitioner disbarred, then, very likely, we do not need the full rigours of Clause 4(2)(a), and we can accept the Amendment. Therefore, I seek guidance from those who are promoting this Bill, and this may have a direct bearing on what we do about this Amendment.

3.21 p.m.

LORD GOODMAN

I wonder whether I may ask the noble and learned Lord one question before he replies. In a later section of the Bill—and I have a rather deficient copy—there is provision for application to be made to a judge in civil proceedings, whereby he can agree that references may be made to a spent conviction. But, apparently, there is no similar provision in regard to criminal proceedings. If you have a situation, as often happens, where one convict makes a confession of a crime to another convict, and that becomes relevant in relation to proceedings in which some person is innocently accused, how can you deal with it under this Bill? It is quite clear that the person to whom the confession was made would not be permitted to say, and could not be asked, what he was doing in the gaol; it would clearly be an infraction of the whole spirit of the Bill. It seems to me that many such similar situations arise here.

If I may make one general observation, I think that what we are trying to do in this clause goes beyond what is reasonable. In court proceedings, very often, a person subpoenaed to give evidence is heavily embarrassed. For instance, there is the situation where a man and woman are living together as man and wife, and they have to disclose on oath for the first time to the world that they are not man and wife. This is a very serious embarrassment, more serious to many people than spent convictions; yet we accept for the integrity of justice that people are embarrassed. I cannot help thinking that seeking to give them protection in this single instance, and leaving the whole of the rest of the area of embarrassment untouched, is trying to make too perfect a job—something which I remember a German jurist called "completomania"—of this piece of legislation.

THE LORD CHANCELLOR

Perhaps my noble and learned friend will permit me, very briefly, to express the hope that in the light of the observations made he will find himself able to accept these Amendments.

LORD GARDINER

I was about to rise to say that I did not think it was an Amendment of great importance. In the hope of saving time, and in view of what the noble and learned Lord, Lord Salmon, has said, I do not propose to resist this Amendment, or I, think, even the next one or two.

3.24 p.m.

VISCOUNT DILHORNE

I beg to move Amendment No. 8.

Amendment moved—

Page 3, line 62, leave out (" or otherwise ").—(Viscount Dilhorne.)

LORD DIPLOCK moved Amendment No. 9:

Page 3, line 62, leave out (" deemed not to relate ") and insert (" treated as not relating ").

The noble and learned Lord said: Amendment No. 9 is really nothing more than a drafting Amendment. I hate the phrase "deemed not to relate". One has to use it in a Finance Act, but do not let us use it in something dealing with ordinary human beings. My Amendment is to substitute "treated as not relating". I beg to move.

VISCOUNT DILHORNE

I beg to move Amendment No. 10. This is consequential on the Amendments the noble and learned Lord, Lord Gardiner, accepted to Clause 4(2)(a).

Amendment moved—

Page 4, line 2, leave out (" or penalty ").—(Viscount Dilhorne.)

3.26 p.m.

VISCOUNT DILHORNE moved Amendment No. 12:

Page 4, line 18, leave out ("and any conduct relevant thereto ").

The noble and learned Viscount said: We are making progress, but I think that we have to look at this Amendment a little more fully in the light of the difficulties of the noble Viscount, Lord Colville of Culross, which are considerable. The Committee will see that Clause 4(1)(b) says that a person cannot be asked any question referring to a spent conviction or spent convictions or any circumstances ancillary thereto.

The words "any circumstances ancillary thereto" are defined in subsection (4) on page 4: That is to say— (a) the offence or offences which were the subject of that conviction;

That is hardly ancillary to the conviction; it is the conviction. Be that as it may, I do not think that that matters. But then you get (b): the conduct constituting that offence or those offences"—

which I think is clear enough, but then follow the words this Amendment seeks to take out— and any conduct relevant thereto;".

As a matter of construction and drafting I should have thought that the words "any conduct relevant thereto" must relate to conduct which does not constitute that offence or those offences, because if it did it would be covered by the preceding words. You are putting an impossible task on advocates and counsal if you are leaving it to them to have to interpret whether the question they are asking relates to any conduct which it-self does not constitute the offence or the offences but is relevant thereto.

Then you go on with (c) and (d), and perhaps we can discuss the next two Amendments at the same time. Paragraph (c) says: any process or proceedings relating to or arising from that conviction or the offence or offences which were the subject thereof or the conduct constituting that offence or those offences, and any sentence imposed in respect of that conviction; (d) any other circumstances connected with or arising from that conviction, those offences or that conduct.

I suspect that the object of the noble and learned Lord is to try to stop people evading the object of Clause 4(1)(b), and extending Clause 4(2)(a) so that the secret does not come out.

We ought to try to get a closer definition of the limits which are covered, because otherwise I can see it leading to a very great deal of argument and discussion, and possibly or probably an unfortunate result. It is a question of where you draw the line. It is going too far to include the words, "any conduct relevant to the offence". Any conduct which constitutes the offences, or forms part of the offence clearly, yes, but I think it is going too far to cover with that any process subsequent to those offences. I wait to hear what the noble and learned Lord has to say. I am not unsympathetic if his object is what I think it to be, but this is putting an impossible task on individuals. I beg to move.

VISCOUNT COLVILLE OF CULROSS

May I make one further point about my practical difficulties? It really arises out of one of the noble and learned Lord's speeches on Second Reading on this point. What one wishes to avoid—it is the whole point of the Bill—is having anything relating to a spent conviction brought up in front of the court. One wants to protect the person who is rehabilitated, so that a spent conviction is not mentioned at all.

What I am concerned about is where my witness, whom I as counsel know to have previous convictions some of which are spent—perhaps all are—is in the witness box and is being cross-examined by my opponent who does not know that. I have done my best to tell my own witness that there are certain things he need not answer. As my opponent does not know there is any question of spent convictions coming into this, he may stray on to forbidden territory. At what point, as I mull through subsection (4) of the clause, do I object to a question? The moment I object to a question I have to say why. The reason immediately emerges that I am objecting because it relates to a spent conviction. The gaff is blown and the whole protection of the Bill has disappeared. That is exactly what we want to avoid.

Therefore, I support the idea that we should aim for precision here; otherwise, counsel will be in an agony of dismay. He will either let the cross-examination go nearer and nearer the nub of the whole matter because he dare not object lest he give the whole thing away, with the possible result that he will allow the matter to go one stage too far and a question will be asked which plainly divulges a conviction, although it is now spent; or he will object too early and the matter will be given away in any event. Therefore, it is another practical dilemma on which I would seek the guidance of those who drafted the Bill as it now stands.

3.32 p.m.

LORD KENNET

Can the noble and learned Lord take on board one more question, which may be an objection? What would happen in the case of the following villainy? A man is charged and convicted of a relatively minor offence, knowing it will become spent within the minimum period. Nevertheless, during the conduct of that case it becomes evident to the police that he has committed a major offence for which he is subsequently tried and convicted. That offence is of such gravity that it is not rehabilitable or expendable later. Would he not be able to claim, for instance in a defamation case, that his major conviction was a proceeding relating to or arising from his minor conviction?

LORD GARDINER

I should have thought the answer to that was, "No". I do not know that these three Amendments matter enormously. It is a question of drawing a line. I am not saying it is necessarily an easy line. I do not think that it is. The effect of the Amendment would be to enable employers, insurers and others—including, possibly, cross-examining counsel—to avoid the provisions of the Bill by asking questions such as "Have you ever been in prison?" which is not related to any particular conviction: or: "Have you ever been fined?" "Have you ever been arrested?" "Have you ever been charged?" "Have you ever been prosecuted?" Any questions could be asked, bringing out an old conviction without directly relating to, "Have you had a conviction?"

Accordingly, what the present law is intended to do is to cover a wider area, and to prevent ancillary questions which would eventually lead anybody to draw the conclusion that a person must have been convicted. I agree it is not easy to know how far the line should be drawn. In the other House, I understand, the line is considered to be in about the right place. I agree it is not altogether easy. But it would allow both employers and insurers to put questions of this kind.

LORD DIPLOCK

I fully sympathise with the object of this extension. I agree that it is extremely difficult to know where to draw the line, though I should have thought that questions such as, "Have you ever been in prison?" were covered without the great extension that this involves. It seems to me that this draws the line so far that it is almost impossible to know where it is, and it is essential that counsel should know that in order to know how to conduct the case and how to conduct himself decently in court. May I look at paragraph (c) for a moment? That says: any process or proceedings relating to or arising from that conviction or the offence or offences … or the conduct…". If you take the case of a civil action which is brought subsequently against the swinder, that would inevitably be, I think, " proceedings arising out of the conduct constituting the offence ". It is generally not much good bringing such an action until he has acquired some money to make it worth while bringing those proceedings; but it seems to me that, if those proceedings are brought after the rehabilitation period, which may be short in a case of, perhaps, a probation order or a conditional discharge, you could not refer to it.

If one looks at paragraph (d)—and this is the sort of worry I have about a very wide definition like this—that says: any other circumstances connected with or arising from that conviction, those offences or that conduct ". Suppose the wife of a convicted person divorces him because of the conduct which was the subject of the conviction. Is one to be prohibited by this from asking any question about the divorce, or indeed about the fact of the divorce? I would venture to ask my noble and learned friend to see whether he could consider—and I will gladly consult with him about it—some definition which does not bring in these dangers, which he really certainly did not intend to cover.

VISCOUNT DILHORNE

I hope we need not spend any more time on these Amendments. I think enough has been said to indicate that in the view of some of us the line is drawn far too wide. I think we have made out a strong case for that. What I am going to suggest to the noble and learned Lord, Lord Gardiner, is that, if he is prepared to do it, those of us who are interested in this particular part of the Bill should try to meet with the Government and with him, of course, to see whether we can agree upon a line. I agree it will not be easy to define, but I think it must be drawn a little narrower than it is. If we can do that before the Report stage, then it may save a great deal of time. I do not propose to ask the Committee to look at this any more now. On that basis—and I understand the noble and learned Lord is agreeable—I ask leave to withdraw this Amendment, and I shall not move the next two.

Amendment, by leave, withdrawn.

Clause 4, as amended, agreed to.

Clause 5 [Rehabilitation periods for particular sentences]:

VISCOUNT DILHORNE moved Amendment No. 15:

Page 4, line 50, leave out paragraph (e).

The noble and learned Viscount said: This Amendment is consequential on the Amendment in relation to courts-martial—taking out the reference to cashiering, and so on. I beg to move.

VISCOUNT DILHORNE moved Amendment No. 16:

Page 5, leave out from beginning of line 25 to end of line 28.

The noble and learned Viscount said: This Amendment is again consequential for the same reason. I beg to move.

3.40 p.m.

VISCOUNT DILHORNE moved Amendment No. 17:

Page 5, leave out from beginning of line 30 to end of line 31.

The noble and learned Viscount said: This again is consequential on the court-martial Amendment being carried. I beg to move.

VISCOUNT DILHORNE moved Amendment No. 18:

Page 7, line 30, leave out subsection (8).

The noble and learned Viscount said: I hope that the noble and learned Lord, Lord Gardiner, will now concede that the necessary consequentials were put down in relation to courts-martial. This is also consequential. I beg to move.

Clause 5, as amended, agreed to.

Clause 6 [The rehabilitation period applicable to a conviction]:

VISCOUNT DILHORNE had given Notice of his intention to move Amendment No. 19:

Page 9, line 56, leave out paragraph (c).

The noble and learned Viscount said: This is the foreign conviction which shall be disregarded unless the offence is one triable on indictment or which would be so triable in this country. Having regard to the discussion which we had about foreign convictions it follows that I should not move this Amendment.

VISCOUNT DILHORNE moved Amendment No. 20: Page 10, line 5, at end insert (" and a sentence of imprisonment was passed in consequence of the conviction.").

The noble and learned Viscount said: This is really bringing into line—although the wording is a little different—something which is related to courts-martial and the Amendment is again consequential.

Clause 6, as amended, agreed to.

Clause 7 [Limitations on rehabilitation under this Act, et cetera]:

LORD DIPLOCK moved Amendment No. 21:

Page 10, line 24, at end insert— (" (e) any questions put, or inquiries made, by, or on behalf of any government department for the purposes of positive vetting.")

The noble and learned Lord said: This is an Amendment to which I feel it is my duty to draw the attention of the Committee in view of my position as Chairman of the Security Commission. As the Bill stands at present, it would apply to the positive vetting procedure and would entitle the person being interrogated to deny and to conceal spent convictions. There are some of these—for instance, drug taking—which it is quite essential should be disclosed and known when examining whether people are to have access to highly sensitive documents which, if disclosed, might have ruinous effects upon the country. The purpose of the Amendment is to exclude positive vetting from the provisions of the Bill. I beg to move.

LORD HARRIS OF GREENWICH

As the noble and learned Lord, Lord Diplock, has indicated, this is a fairly narrow point. We shall be having a number of matters looked at and I think that it might be a good idea to have a look at this particular issue. There are a number of other related matters, of which this is only one—there are inquiries on, for instance, firearm certificates and things of that sort—and I think that I should like to have a look at this before the next stage of the Bill.

LORD DIPLOCK

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

3.44 p.m.

VISCOUNT DILHORNE moved Amendment No. 22:

Page 10a, line 7, leave out (" between the parties ").

The noble and learned Viscount said: We have now reached that Part of the Bill which defines those proceedings and those circumstances under which the provisions of Clause 4, which we have been discussing, shall not apply. This Amendment provides that the evidence of spent convictions and conduct relating thereto may be admitted in civil proceedings if the court or authority is satisfied that justice cannot be done between the parties except by receiving or requiring evidence relating to a person's spent convictions. What appears to have been forgotten is that the civil proceedings, having that wide definition because of judicial authority, may well not be a matter of inter-Party litigation. It may be an inquiry where there is no other party to it. I would suggest to my noble and learned friend that that was probably an oversight by the draftsman of the Bill. As it stands at present it would mean that, except in adversary litigation where there are parties, this exception would not apply and accordingly, even though it was necessary for justice to be done that a conviction should be disclosed, it would not be permitted to be disclosed. I beg to move.

LORD GARDINER

I was not sure to what issue this point was directed. As the noble and learned Lord has explained it I now understand it, and I would certainly be happy to consider it with the draftsman before the next stage of the Bill.

VISCOUNT DILHORNE

In the circumstances I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD DIPLOCK moved Amendment No. 23:

Page 10a, line 14, leave out subsection (4).

The noble and learned Lord said: This Amendment and the next one are both directed to the same point. Your Lord-ships may by now be aware that this is a Bill of very complex structure. We are here dealing with exceptions to the general rule laid down in Section 4. This starts by making general exceptions. Sub-section (3) makes the exception, subject to the Amendment which I will be discussing with my noble and learned friend, that this evidence can be introduced if the justice of the case requires. Subsection (4) provides that in relation to a particular issue—that is to say compliance with an obligation to disclose—evidence cannot be admitted even though justice cannot be done except by admitting it. That is the consequence of excepting it from the operation of subsection (3).

Subsection (5) does the same thing. Read together with subsection (3) it provides that even though the court is satisfied that justice cannot be done except by receiving or requiring evidence relating to a person's spent conviction, nevertheless that cannot be allowed. Uphold the Bill though justice fall. I know perfectly well why these two exceptions are in—at least, I think I do. It is because the great handicaps which a rehabilitated person suffers are in the field of insurance and in the field of employment. Sub-section (4) is directed to the field of insurance and subsection (5) is directed to the field of employment. Subsection (5)—this is the one which worries me exceedingly—provides that even though justice requires it you cannot give evidence of a spent conviction if the issue is the propriety of the dismissal or exclusion of the rehabilitated person from any office, profession, occupation or employment ".

The example which disturbs me is this. An education authority may have employed as a schoolmaster a man who had a previous conviction for indecent assault upon children, not knowing of this fact. A very common sentence, if that was the first offence—and certainly one that I should myself have considered giving—is to put him on probation on condition that he does not take a job that involves associating with children. The two years' probation expires, he gets a job with the local education authority, or the governors of a school, or as a scout master, without disclosing that conviction. The employers then find out. It is certainly their moral duty, and indeed their legal duty, to terminate his employment. He then brings proceedings either for wrongful dismissal or for unfair dismissal before an industrial tribunal. The employers cannot give the reason why they terminated his employment and they are left wholly without defence, although no one could say otherwise than that the justice of the case required that reason to be disclosed.

The problem of insurance and the problem of discrimination in employment is, from the practical point of view, the most serious problem which a rehabilitated person faces. I would not suggest dealing with it by moving that these two clauses be left out of the Bill, but I have in mind some new clauses to be moved later by my noble and learned friend Lord Dilhorne to deal with the problem of insurance and employment at the place where it hits, and not to try to do it by excluding evidence of previous convictions in cases where justice cannot be done unless they are disclosed. Let us tackle this problem in a straightforward way instead of in this roundabout, devious way. I beg to move.

LORD GOODMAN

If I may, I should like to say a word on this matter. I hope your Lordships will notice that this exclusion applies to a situation where, otherwise, a judge, a highly responsible person much concerned with the issues of justice, would be able to admit the evidence. It seems to me quite unnecessary to exclude from the area of a judge's discretion any matters at all. I should have thought it could all be safely left to a judge's discretion as to what was appropriate in the interests of justice. I hope I shall not be regarded as too censorious if I say that provisions like this seem to show a rather fanatical concern for the interests of the convicted person as against the interests of the rest of the community. I think they might arouse a prejudice against the Bill which could well do damage to the very proper and laudable motives of its sponsors.

LORD GARDINER

The noble and learned Lord, Lord Diplock, is quite right in saying that subsection (4) deals with insurance, and not only with insurance but also with situations of a similar type to Hedley v. Byrne, where a banker may be asked for a reference, and so forth, and subsection (5) with employment. We have not yet had an opportunity of discussing the new clauses. The Bill was always drafted on the basis which now contains the exceptions set out in sub-section (3), and frankly I should like an opportunity of giving further consideration to what the noble and learned Lord has said before we come to deal with the new clauses.

The LORD CHANCELLOR

I wonder whether it would be permissible for the House to discuss Amendments 42 and 43 (the new clauses) in relation to Amendments 23 and 24? If I may say so, it would make a more rounded debate and would cover the kinds of difficulties mentioned by my noble and learned friend.

VISCOUNT DILHORNE

I appreciate the concern of the noble and learned Lord the Lord Chancellor. On the whole, while we could refer to a future Amendment, perhaps we ought to have a full discussion on those—though we may be told that they are not properly drafted. What is important is that they are attempts to face squarely the employment and insurance questions. These were both matters which featured largely in the Second Reading speech of the noble and learned Lord. He said that he would like to look at these Amendments again in the light of what had been said; and that means there cannot be any objection, even if there has been no satisfaction, in moving these Amendments again on Report, should there be no satisfaction before then. In that case I should have thought we might leave it here and when we come to Report perhaps we shall have considered the new clauses.

LORD GARDINER

May I refer to what I might call the "schoolmaster point", because this is an old one going back eighteen months. It may be this that was primarily to be dealt with by the exceptions which the Secretary of State can always make. I remember saying that though I had had no communication with the Secretary of State, I should think the very first exception he would make would be in respect of schoolmasters who interfered with small boys and similar offences. And Clause 7 (6) says that he: … may … exclude the application of section 4 above in relation to any proceedings specified in the order…".

VISCOUNT COLVILLE OF CULROSS

May I make one point? I remember very well the point about schoolmasters, because it was one of the things we were talking about in relation to the criminal offence of disclosure, and indeed was one of the first things that was going to be exempted under the order-making powers that existed even in the old Bill. But one has to bear in mind that unfortunately people who are this way inclined tend to be very persistent. They like, if they possibly can, to go back to situations where they are in some position of authority in relation to children, and they are very ingenious about it.

I do not think it is beyond the realms of possibility that, even if a person is on the list of the Department of Education and Science under a certain name, it may come about that he is not instantly identified. When it comes to light, no doubt the school will think it is probably a good thing that he should no longer teach there. By that time he has been employed and it is too late to rely on the disclosure under the D.E.S. list. That is why the point the noble and learned Lord, Lord Diplock, has made ought to be covered by justice or some alternative method rather than left simply to the powers under Clause 9.

VISCOUNT DILHORNE

The noble and learned Lord, Lord Gardiner, referred to subsection (6) which is the subject of a further Amendment. As he introduced it perhaps I could save time by speaking on that subsection now, and avoid moving that Amendment later. I am not at all happy about the constitutional propriety of leaving it to the Secretary of State to draft legislation affecting rights of private individuals, and with other bodies, by order of this kind. This certainly should be provided in the Bill. As the provision in the Bill dealing with this exempted case, and not leaving it to the Secretary of State by order to provide, may be considered between now and Report stage with all the other matters, I hope my noble and learned friend will think fit to withdraw the Amendment.

The LORD CHANCELLOR

Before the Committee parts with Amendment No. 23, it would seem that subsection (4) is intended to go wider than the mere insurance field. It covers all obligations imposed by law and not merely those relating to insurance. It covers obligations imposed by contract or tort. For Instance, the Bill denies the defence where a duty to disclose a spent conviction arises under the law of negligent mis-statement, the Hedley v. Byrne type of obligation of bankers and their references, and under other aspects of the law. I mention that so it can be borne in mind when we give further consideration to this subsection.

LORD DIPLOCK

I beg leave to withdraw this Amendment.

Clause 7 agreed to.

Clause 8 [Defamation actions]:

4.3 p.m.

LORD DIPLOCK moved Amendment No. 26:

Page 11, line 4, leave out ("words") and insert (" matter ").

The noble and learned Lord said: This is simply a drafting Amendment. In line 4, on page 11, there is a reference to "any words". That would exclude, for example, defamatory matter conveyed by pictures, cartoons or comic strips. I am sure that my noble and learned friend intended to cover them as well as mere "words". The proposal is that the word "matter" be substituted for that which would cover the various kinds of material in which defamatory meanings may be conveyed.

LORD DIPLOCK moved Amendment No. 27:

Page 11, line 4, leave out ("tending to show ") and insert (" imputing ").

The noble and learned Lord said: This is a drafting Amendment. At the moment the subsection reads … tending to show that the plaintiff has committed or been charged with … ".

The words "tending to show" are wide, and I am not sure what would be covered by them. The usual words used in the law of defamation are "imputing" and "imputation". I therefore move that we use the simple term "imputing", rather than "tending to show", because I am not sure how those words would be construed by the courts. I beg to move.

LORD GARDINER

I do not want to take up time on this Amendment. "Tending to show" is well-known. On the other hand, "impute", according to the Oxford Dictionary, is a transitive verb and accordingly it is grammatical to say that something imputes a conviction, but not that something imputes that someone has been convicted. I am not convinced that the Amendment is an improvement. However, I do not want to take up time opposing it.

4.5 p.m.

VISCOUNT DILHORNE moved Amendment No. 28:

Page 11, line 5, leave out from (" been ") to (" convicted ").

The noble and learned Viscount said: This is a drafting Amendment. What we are dealing with here is a spent conviction, and I think there is a great deal of unnecessary verbiage in this provision. The sentence reads now: tending to show that the plaintiff has committed "— and these are the words to note— or been charged with or prosecuted for or convicted of or sentenced for an offence which was the subject of a spent conviction ".

It seems to me quite unnecessary to refer to a person having been "charged with or prosecuted for" a spent conviction, because it will not be a spent conviction unless he has been prosecuted and charged. Those words are therefore, I suggest, quite unnecessary. This is a purely drafting Amendment, and I beg to move.

LORD GARDINER

The wording here precisely reproduces the wording of Clause 4(1) which is repeated in the definition of "specified information" in Clause 9(1). The Amendment would exclude the application of Clause 8 to defamation actions where the words complained of said or suggested that the plaintiff had been charged with an offence or prosecuted for an offence. Accordingly, either the present law would apply to the publication of such words, in which case the muck-raking newspaper would have an easy means of avoiding the provisions of the Bill, or the publisher would be deprived of all offences as if Clause 8 had been left out altogether. The latter seems the better view, and I should be grateful if the noble and learned Viscount would consider that.

VISCOUNT DILHORNE

Of course I will consider anything that is said, but this highlights an unusual position. You are going to prevent any reference to a charge where the man has been convicted, when what we are trying to keep secret is the fact he has been convicted; whereas if the charge is followed by prosecution and an acquittal you can refer to the charge and the prosecution until doomsday. I will look at what the noble and learned Lord has said and, in the light of that, I will not press this Amendment. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

VISCOUNT DILHORNE

I do not know whether one may raise the question about how far we are going to-night and the future proceedings on this Bill. It might be convenient to do so. One thing I hope is that we shall have sufficient time for some consultation.

EARL ST. ALDWYN

I think that the noble and learned Viscount is showing his usual wisdom, as one would expect. An adjournment now would obviously give time for consultation, and I believe the Government Chief Whip has a suggestion as to when we might continue.

BARONESS LLEWELYN-DAVIES OF HASTOE

I think it would be very much to the convenience of the Committee if we adjourned now, and if we changed Government Business yet again for next week and had a second Committee day on this Bill on Wednesday, and Report and Third Reading probably on Friday. All sorts of other adjustments would be entailed, but this is the main point for this Committee.

LORD GARDINER

I beg to move that the House now be resumed.

House resumed.