Lords Sitting of 26 July 1974

Preamble
The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Leicester.

REHABILITATION OF OFFENDERS BILL
LORD GARDINER: My Lords, I beg to move that this Report be now received.
Moved, that the Report be now received.—(Lord Gardiner.)
On Question, Motion agreed to.
VISCOUNT DILHORNE moved Amendment No. 1:
Clause 1 [Rehabilitated Persons and spent convictions]:
Page 2, line 25, leave out from beginning to first (" in ") and insert
(" and
(b) to any finding (other than a finding linked with a finding of insanity)").
The noble and learned Viscount said: My Lords, those who were present during Committee stage will remember that we had a considerable debate as to whether a verdict of not guilty by reason of insanity should count as a conviction. I moved an Amendment to exclude that from operating as a conviction on a number of grounds which I need not repeat. One ground was—and this was supported by the noble Lord, Lord Foot—that if one had such a verdict from a jury it would enlarge the rehabilitation period in relation to an earlier conviction. As a result of discussions which have taken place since that debate, it has been agreed both by the Government and by the Promoters of the Bill that it would be right to exclude from the definition as a conviction a finding of not guilty by reason of insanity. This Amendment, which has been drafted by Parliamentary Counsel—and I should like to extend my gratitude to her for her efforts—gives effect to that. It is, I believe, accepted both by the Government and by the noble Lord, Lord Gardiner. I need not, therefore, say much more in relation to it
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except to commend it to your Lordships' House. When we come to the consequential Amendments—of which there arc quite a number—I propose to move them formally. I beg to move.
LORD HALE: My Lords, may I interrupt briefly to say that the reference should now be to page 3. The page numbers in the latest copy of the Bill—if I have the latest copy—have been altered and I have a note on my copy which, though it may be wrong (and we arc very grateful to those who are trying to keep these things right) says that the new pages are as indicated in ink at the top of the page.
LORD GARDINER: My Lords, this is a point on which the learned Viscount, Lord Dilhorne, and I have always felt the same. We have always taken the view that insanity ought to be outside the Bill. That was the view taken by the Living it Down committee, which dealt with it as if it was a sentence of more than two years in prison.
THE LORD CHANCELLOR (LORD ELWYN-JONES): My Lords, if the noble and learned Lord, Lord Gardiner, would pause for a moment, we should perhaps clarify the pagination. As I understand it, the numbers are as printed on the Marshalled List.
LORD HALE: My Lords, I apologise. Although new numbers were—
SEVERAL NOBLE LORDS: Order!
LORD HALE: My Lords, I am wrong for the second time. I have become in one moment a recividist, who sought to help but failed to do so, and also, apparently, one who failed to help for too long a moment at a time when he should have been seated. I apologise for both errors and I hope that the interruption has not delayed the proceedings as much as they were delayed on a previous occasion.
LORD GARDINER: My Lords, at some stage in the redrafting this was altered, but I agree with the noble and learned Viscount that insanity is very serious in crime and that it should be outside the Bill. Whether we deal with it by saying that it is the equivalent of more than two years in prison or, as here, that it is not a conviction, does not matter.

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The form having been agreed between the noble and learned Viscount and the Government, I advise the House to accept the Amendment.
On Question, Amendment agreed to.
VISCOUNT DILHORNE: My Lords, this is consequential. I beg to move.
Amendment moved—
Page 2, line 29, leave out from (" charged") to end of line 31.—(Viscount Dilhorne.)
On Question, Amendment agreed to.
11.12 a.m.
VISCOUNT DILHORNE moved Amendment No. 3:
Page 2, line 43, after Clause 2 insert the following new clause—
" Rehabilitation of persons dealt with in service disciplinary proceedings
—(1) Subject to the following provisions of this section, for the purposes of this Act 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 in respect of any such finding shall he treated as a sentence.
(2) Subsection (1) above applies only where either or both of the following conditions is satisfied, that is to say—

(a) the offence in question is an offence to which this subsection applies; or

(b) the punishment awarded is a punishment to which this subsection applies.

(3) Subsection (2) above applies to any offence consisting in the commission of a civil offence and to any offence under, and any offence of attempting to commit an offence under, any of the following enactments, or any corresponding enactment previously in force—

(a) sections 30, 45, 46, 61, 62, 64 and 66 of the Army Act 1955 and the Air Force Act 1955; and

(b) sections 5, 30, 31, 34A, 35, 36 and 37 of the Naval Discipline Act 1957.

(4) Subsection (2) above applies to the following punishments—

(a) imprisonment;

(b) cashiering, discharge with ignominy or dismissal with disgrace from Her Majesty's Service;

(c) dismissal from Her Majesty's Service; and

(d) detention for a term of three months or more.

(5) In this Act, "service disciplinary proceedings" means any of the following—

(a) any proceedings under the Army Act 1955, the Air Force Act 1955, or the Naval Discipline Act 1957 (whether before a court-martial or before any other court or
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person authorised thereunder to award a punishment in respect of any offence);

(b) any proceedings under any Act previously in force corresponding to any of the Acts mentioned in paragraph (a) above;

(c) any proceedings under any corresponding enactment or law applying to a force, other than a home force, to which section 4 of the Visiting Forces (British Commonwealth) Act 1933 applies or applied at the time of the proceedings, being proceedings in respect of a member of a home force who is or was at that time attached to the first-mentioned force under that section;

whether in any event those proceedings take place in Great Britain or elsewhere.")
The noble and learned Viscount said: My Lords, some of your Lordships may remember that a few days ago—it really seems a long time ago now—an Amendment was carried in Committee removing the provisions relating to Service offences. The main criticisms which I put forward of the provisions as they stood in the Bill were that in relation to Service offences the provisions were in some respects too wide and in other respects too narrow: too wide in that the Bill brought within its scope all military, naval and air force offences even though of a purely Service character and no matter how trivial; and too narrow as it excluded from any possibility of rehabilitation anyone who had been cashiered, dismissed with disgrace, or discharged with ignominy.
Since the Committee stage, I have had the advantage of meeting the officials of all the Service Departments. It was a meeting which lasted a fairly long time and I am glad to say that we agreed completely upon a new approach. I think myself that it is an entirely satisfactory one, and it is embodied in these Amendments which I now commend to the House. I am assured that it is one which is acceptable and agreeable to the Government, so I speak with some confidence that it will be welcomed by the noble and learned Lord, Lord Gardiner. Having regard to the fact that this is a substantial change from what the Bill originally proposed, I should try to explain the approach on this Amendment and then formally move the subsequent Amendments which implement it. That will save time, if the House will agree to that procedure, and will avoid a whole series of speeches.
In making this approach, we, that is to say, the Government officials and myself, had two things in mind: first, that it was

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unnecessary to bother about minor military offences—and when I say "military" I include of course air force and naval—the disclosure of which years later would not harm the reputation or affect the life of the offender. For instance, take the case of an other rank dealt with for swearing at a non-commissioned officer and found guilty by his commanding officer of using insubordinate language. If that came to light years later, no one would bother very much about it. At the same time, we thought it necessary and right to include all offences and sentences, the disclosure of which would do damage or might do damage to the offender. For instance, the disclosure that a man has been in prison—and it matters not whether that was for a purely Service offence or for something else—and the disclosure that a man has been convicted of an offence involving dishonesty, no matter what sentence was imposed, should be brought within the scope of this Bill.
That has been our approach and all these Amendments that I shall be moving are designed to secure—if I may just reiterate it--on the one hand, the exclusion from the Bill of those Service offences not so serious as to be incapable of rehabilitation but of so minor a character as not to require it; and to include in it all convictions and sentences the disclosure of which could be damaging. This means extending the Bill to make rehabilitation possible after cashiering, discharge with disgrace, et cetera. As to imprisonment, if these Amendments are accepted the same rules will apply to Service personnel as to civilians. Those sentenced to life imprisonment or imprisonment exceeding 30 months are excluded from the Bill.
Subsection (3) of this Amendment brings within the scope of the Bill all offences against the criminal law which are dealt with by the Service authorities. That brings in the men in the same way as if they were civilians; it brings in all drug offences and other offences of that kind, and also offences under a number of sections of the Army Act, the Air Force Act and the Naval Discipline Act which are specified in the Amendment, particularly in subsection (3) of the Amendment. I shall not take up time by reminding your Lordships of what some of you may be fully aware—
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the noble Lord, Lord Wigg, is here—that is, what Sections 30, 45, 46, 61, 62, 64 and 66 of the Army Act refer to. But I can summarise by telling the House that all the offences in the Army Act, the Air Force Act and the Naval Discipline Act, referred to in subsection (3), are offences which involve dishonesty or indecency, and they are all brought within the scope of this Bill.
Subsection (4) brings in all cases where the sentence has been one of imprisonment, cashiering and dismissal with disgrace, and also a sentence of detention for three months or more. We have drawn the line there because detention can be given, and sometimes is, for very minor military offences if a man has a bad record. But it is seldom that any such sentence of detention would approach three months. A sentence of detention of three months or more is a sentence which is passed for a rather serious military offence, and there is a possibility that if it became known that a man had spent a long time in detention, and that it was brought to light in later years it might do him damage. That is why we have drawn a line there. I do not think that I need say anything more about these Amendments.
I should like to conclude by expressing thanks for the co-operation and help of the officials who worked under extreme pressure because of the shortness of time available, and who have produced a remarkably clear and effective draft to give effect to these proposals. I beg to move.
11.20 a.m.
LORD FOOT: My Lords, may I say three or four sentences about this Amendment, because I was critical of the noble and learned Viscount's Amendment at an earlier stage? As a result of the conferences he has had with the Ministry of Defence and others this has now been put right. The noble and learned Viscount paid tribute to the Departments concerned and to the draftsmen for the great trouble they have gone to to assist in putting this right. It would be only proper that the House should pay its tribute to the noble and learned Viscount, Lord Dilhorne, because he has gone to great trouble and personal inconvenience to confer with the authorities in order to get this right.

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The House, and all who support this Bill, are greatly indebted to him for what he has done.
What the noble and learned Viscount has done on this occasion reminds me of the long debates which we had when I was a junior Member of this House and had just come here, when the Theft Bill was being considered. No one who took part in the discussions on that Bill will fail to remember the enormous trouble to which the noble and learned Viscount went at that time. He addressed the House in Committee for a total period of something like 40 hours, if I remember rightly, in order to try to cure what might have been thought to be the imperfections of the Bill and to get it right. Although I do not agree with the noble and learned Viscount upon the malice question in regard to this Bill—I am still at odds with him on that--it would be right that the House should pay its tribute to him for the contribtuion which he has made.
LORD WIGG: My Lords, I should like to add my praise to the noble and learned Viscount, Lord Dilhorne, for the initiative he took in this matter. It is an alarming situation that if the noble and learned Viscount had not spotted the original weaknesses the Bill as drafted would have gone through and might have created grave damage to the Armed Forces of the Crown. The noble and learned Viscount reminded the House in Committee about the procedures for keeping under review the Army Act. He said that every three years a Select Committee examined it in order to see that it did not get out of date, and before the other place or this House took decisions they would have an opportunity of understanding the implications of any changes that might be proposed from whatever quarter they came.
It seems to me the Government cannot escape their grave responsibilities in this matter. Apparently, the Bill as drafted was never looked at by the Law Officers of the Crown or by the Ministry of Defence. May I ask what they draw their salaries for, if it is not to examine these matters? The Ministry of Defence and the Law Officers should have looked at this and spotted what the noble and learned Viscount, Lord Dilhorne, and I, in my humble way, also spotted, which was that
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what was in the Bill was nonsense. The fact that it has now been recognised and put right is wholly due to the diligence of the noble and learned Viscount, Lord Dilhorne, and the co-operation he received from the Service Department. He should not have been put to that trouble; it should have been done by the Government, and they cannot escape from what I hope are words of censure, which certainly come from me, for having failed to do their duty.
THE MINISTER OF STATE, HOME OFFICE (LORD HARRIS OF GREENWICH): My Lords, in the unfortunate absence of my noble friend Lord Brayley, may I express the Government's support for the Amendment moved by the noble and learned Viscount, Lord Dilhorne? My noble friend Lord Wigg may not have liked the previous form of words, but it is wrong to suggest that the Ministry of Defence were not consulted and did not agree to them. Your Lordships took a different view of the matter, which is not to suggest that the matter was not carefully gone into at an early stage by the Ministry of Defence. Nevertheless, in view of the expressed views of the House, the Government are more than prepared to accept the form of words now before us.
LORD GARDINER: My Lords, my own courts-martial experience is very small, and I recognise the authority which the noble and learned Viscount has in this field. I can confirm what my noble friend Lord Harris has said. The Ministry of Defence did go through this Bill and approved the form in which it came to this House. I think they were wrong and the noble and learned Viscount was right to challenge it. I am very grateful to him and the Government for the pains that they have taken to make sure we have now got it right.
On Question, Amendment agreed to.
Clause 4 [Effect of rehabilitation]:
11.26 a.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved Amendment No. 4:
Page 3, line 35, leave out from (" to ") to (" sections ") in line 36.
The noble and learned Lord said: My Lords, with your permission, I will deal with Amendments Nos. 4 and 7 together.
The substantive Amendment is Amendment No. 7. It is intended to tidy up and improve the wording of subsection (2) in accordance with the Amendments which were made in Committee. I understand that the noble and learned Lords, Lord Diplock and Lord Dilhorne, have seen these Amendments in draft, and I am greatly reassured by the knowledge that they agree with them. I beg to move Amendment No. 4.
On Question, Amendment agreed to.
LORD DIPLOCK LORD DIPLOCK moved Amendment No. 5:
Page 3, line 45, leave out from (" evidence ") to (" be ") in line 50 and insert (" shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Great Britain to prove that any such person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction; and
(b) a person shall not, in any such proceedings ").
The noble and learned Lord said: My Lords, this is a drafting Amendment which arises from a suggestion made by me and very much improved upon in execution by Parliamentary Counsel to whom I wish to express my indebtedness. I beg to move.
On Question, Amendment agreed to.
11.29 a.m.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 6:
Page 3, line 52, leave out (" or any other person's ").
The noble and learned Viscount said: My Lords, this is a little more than a drafting Amendment. May I thank the noble Lord, Lord Foot, and the noble and learned Lord, Lord Gardiner, for the very kind observations they made. As the clause now stands, with the Amendment just made, paragraph (b) is unnecessary because it is covered by the provision inserted by the last Amendment. Nevertheless, it is desirable that paragraph (b) should remain in the Bill because this clause will be referred to not only by the courts but also by judicial authorities as defined. Paragraph (b) is intended to make the position clear beyond all doubt in relation to cross-examination as to credit. That being so, the reference in line 52, "or any other person's"
2004
is irrelevant. That is covered, if those words are deleted as this Amendment proposes, by what is now paragraph (a); and paragraph (b), which again as I say is strictly unnecessary but desirable, will then relate, and relate only, as I think it should, to cross-examination as to credit. It is really a little more than drafting but not much, and it is right because, if paragraph (b) extends beyond cross-examination as to credit, it may lead to argument and confusion. My Lords, I beg to move.
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, I beg to move Amendment No. 7. I dealt with this Amendment in speaking to Amendment No. 4.
Amendment moved—
Page 3, line 56, leave out subsection (2) and insert—
(" (2) Subject to the provisions of any order made under subsection (3A) below, where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority—

(a) the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and

(b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question.").—(The Lord Chancellor.)

LORD SIMON OF GLAISDALE: My Lords, this Amendment deals with a point I made on Second Reading indicating that one of the matters I found particularly objectionable in the Bill, although I supported its purpose, was the licensing of perjury. That is not dealt with in this Amendment, but this subsection is concerned with the commanding of an untruth. I should like to thank the noble and learned Lord on the Woolsack for adopting the suggestion I ventured to put forward as to how this matter could be dealt with, and for dealing with it so much more felicitously than I suggested.
On Question, Amendment agreed to.
THE LORD CHANCELLOR: Amendment No. 8. My Lords, this Amendment adds a new subsection—
VISCOUNT DILHORNE: My Lords, if I might remind the noble and learned Lord, I do not think he has yet called the Amendment from the Woolsack. I am sorry—I have done the same thing years before. The noble and learned Lord concluded by saying that Amendment No. 7 was agreed to, and then went straight to speak to the next Amendment without referring to it.
THE LORD CHANCELLOR: My Lords, did I fail to put the Question last time?
VISCOUNT DILHORNE: My Lords, the noble and learned Lord put the Question on the last Amendment, but did not call this Amendment.
LORD HARRIS OF GREENWICH: My Lords, my noble and learned friend in fact put the Question, to which the House agreed, but did not call this particular Amendment.
THE LORD CHANCELLOR: My Lords, I regret to say that I find myself in the department of utter confusion. Perhaps the noble and learned Viscount, Lord Dilhorne, will indicate the point. I thought it now fell to me to speak to Amendment No. 8.
LORD GARDINER: My Lords, the noble and learned Viscount is only saying that the noble and learned Lord the Lord Chancellor should say from the Woolsack: "Amendment No. 8".
THE LORD CHANCELLOR: My Lords, I found it a rather strange exercise to call upon myself but I will now do what is in Order, and am grateful for the guidance of my predecessors. Amendment No. 8. My Lords, I am most grateful. One learns from day to day, until no doubt the last syllable of recorded speech in your Lordships' Chamber.
11.34 a.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved Amendment No. 8:
Page 4, line 6, leave out subsection (3) and insert—
(" (3) Subject to the provisions of any order made under subsection (3A) below,—

(a) any obligation imposed on any person by any rule of law or by the provisions of any agreement or arrangement to disclose any matters to any other person shall not extend to requiring him to disclose a spent conviction or any circumstances ancillary to a
2006
spent conviction (whether the conviction is his own or another's); and

(b) a conviction which has become spent or any circumstances ancillary thereto, or any failure to disclose a spent conviction or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment.

(3A) The Secretary of State may by order—

(a) make such provision as seems to him appropriate for excluding or modifying the application of either or both of paragraphs (a) and (b) of subsection (2) above in relation to questions put in such circumstances as may be specified in the order;

(b) provide for such exceptions from the provisions of subsection (3) above as seems to him appropriate, in such cases or classes of case, and in relation to convictions of such a description, as may be specified in the order ").

The noble and learned Lord said: My Lords, this Amendment adds a new subsection (3) to Clause 4, renumbers the present subsection (3) as subsection (3A) (a), and makes certain consequential changes in subsection (3A); and with it arc indicated a number of consequential Amendments to Clauses 7 and 8. Subsections (4) and (5) of Clause 7 were considerably criticised in the debate on Second Reading. I thought there was merit in these criticisms, and an alternative way of achieving the same result has therefore been devised. In place of subsections (4) and (5) of Clause 7, I propose the insertion of this new subsection in Clause 4. The noble and learned Viscount, Lord Dilhorne, set down Amendments for the Committee stage which had the same basic purpose as this subsection, which is essentially to replace the procedural provisions in Clause 7 with substantive provisions. Before the Committee stage, those assisting me were able to show the noble and learned Viscount this Amendment and I recollect that, following that, he did not move his Amendments in Committee but, on the contrary, expressed in the most generous terms his approval of the Amendment which I now propose.
Perhaps I might explain it briefly. Subsections (4) and (5) of Clause 7 operated to restrict the evidence which might be called by, for example, an insurance company or by an employer in proceedings resulting from any action they might have taken upon the discovery of a spent conviction. The present provisions do not

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relate to proceedings; instead they provide in terms that no one by any rule of law or under any agreement shall be required to disclose a spent conviction, and that a spent conviction or a failure to disclose it is not a proper ground for dismissal or exclusion from employment. In my view, these provisions are more direct in their application and more helpful to the rehabilitated person and will be more straightforward in their operation. On that basis I commend them to the House. As I have said, by this Amendment the present subsection (3) would become (3A)(a) and the opportunity has been taken to clarify and improve the drafting of subsection (3A) which must now also relate to the classes of case dealt with in amended subsection (3). My Lords, I beg to move.
VISCOUNT DILHORNE: My Lords, I should like to say a word, if I might—
THE LORD CHANCELLOR: My Lords, I have the luxury of keeping my predecessor in Order. Amendment proposed: Page 4, line 6, leave out subsection (3) and insert the words on the Marshalled List.
VISCOUNT DILHORNE: My Lords, we have demonstrated to-day that it is very easy to make slips in procedure; and if it is of any comfort to the noble and learned Lord the Lord Chancellor, I am sure that his predecessors have on occasion forgotten to call an Amendment. I should not like to let this Amendment pass without expressing my thanks to the Government and the officials for formulating it. These are the Amendments to which I referred on the Committee stage. They make a tremendous improvement to the Bill. They put substantive teeth into it, and, as the noble and learned Lord the Lord Chancellor said, they replace procedural provisions with substantive, positive provisions.
As I understand it, paragraph (a) of subsection (3) means that a man is not obliged to disclose a spent conviction when he is making a proposal for insurance, and an insurance company would not be entitled to repudiate a policy of insurance on the ground of a spent conviction. I think that is a very important change. It reduces very considerably the importance of Clause 8. One is no longer relying just upon the law of
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defamation to provide any sanction for what this Bill proposes.
I had endeavoured to raise this point by the first of the new clauses which I put down, but it has been much better dealt with in this particular provision because this particular provision, if I understand it aright, will deal not only with things like proposals for insurance but also with proposals to obtain a licence to drive a heavy service goods vehicle and things of that kind. Subsection (3)(b) is also one which I strongly welcome. It completely replaces, in far better form and far better language (and is wider in scope than) the first of the two new clauses which I put down. It means that no longer, in the light of this provision, will it be "a proper ground for dismissing a man from his employment or excluding him from any office, profession, occupation or employment or for prejudicing him in any other way in any occupation or employment" that he has a spent conviction.
I think that this makes a major change in the Bill. I do not think one can disguise that, but I think it is a most important change and that it improves this Bill very much indeed, and I am grateful to the Government for what they have done. I understand that the Amendments are acceptable to the noble and learned Lord, Lord Gardiner, and I do not think that it is necessary for me to say any more about them at this stage.
LORD SIMON OF GLAISDALE: My Lords, as one of the critics of the provision that these new subsections supersede and having suggested personally the way that the matter might be dealt with, I, too, wish to express my gratitude for these Amendments and to concur, with my noble and learned friend that this is entirely the way the matter should be dealt with.
LORD GARDINER: My Lords, 1 agree entirely with what has been said. These provisions strengthen the Bill and I hope that they will prove acceptable to the Committee.
LORD DIPLOCK: My Lords, as one who objected at Committee stage to Clause 7(4) and (5), may I join with all those who have spoken in saying how much of an improvement I think it is to deal with the matter in this way. However, there is one matter to which I

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wish to draw attention. Subsection (3A) gives the Secretary of State power to exclude the provisions of subsections (2) and (3). At Committee stage I raised the question of positive vetting. That is merely one example of a case where those provisions ought to be excluded. One can think of many others—education authorities and the like. At an earlier stage it had been said that the proposed Orders to be made by the Secretary of State under this exempting power would he laid before the House before the Bill came into effect. I hope that that assurance will apply to these new clauses as they applied to the old.
LORD HARRIS OF GREENWICH: I suspect that the answer is yes, but in the course of the Third Reading I hope to be able to reassure the noble and learned Lord.
On Question, Amendment agreed to.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 9:
Page 4. line IS, leave out from (" offences ") to end of line 26 and insert—
(" and
(c) any process or proceedings preliminary to that conviction, any sentence imposed in respect of that conviction, any proceedings (whether by way of appeal or otherwise) tor reviewing that conviction or any such sentence, and anything done in pursuance of or undergone in compliance with any such sentence 7).
The noble and learned Viscount said: This Amendment is consequential upon the provisions about Service disciplinary offences, and it is acceptable to the Government. I beg to move.
On Question, Amendment agreed to.
11.45 a.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved Amendment No. 10:
Page 4, line 27, leave out from beginning to ("any") and insert ("(5) for the purposes of this section and section 7 below" proceedings before a judicial authority "includes, in addition to proceedings before any of the ordinary courts of law, proceedings before").
The noble and learned Lord said: My Lords, if I may deal also with Amendment No. 11 in addressing your Lordships, these Amendments are intended to tighten up the definition of "judicial authority" in subsection (5) of Clause 4, to extend it to cover courts and to ensure that the definition will cover only proceedings before a judicial authority. The
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noble and learned Lord, Lord Diplock, pointed out that for some purposes the Inns of Court were a judicial authority but did not always act in that capacity. That is, most happily, the case. It was necessary to ensure that the provisions, for example, of Clause 4(1)(a) should apply to a judicial authority only in proceedings. Amendment No. 11 achieves this result, among other consequences, and subsection (5) of Clause 4 is amended accordingly so as to define "proceedings before a judicial authority". The definition in this Amendment comprises also the ordinary courts of law which need not therefore be separately mentioned in this clause or in Clause 7 which is also covered. My Lords, I beg to move.
LORD LEATHERLAND: My Lords, I am not quite sure how far this clause and this Amendment go in widening the scope of this Bill. We see that in subsection (5) of this clause,
" judicial authority ' includes any tribunal, body or person having power … by custom "—
and it relates not only to the ordinary courts of law but to associations, occupations and employments. Does this mean that the executive committee of the Amalgamated Engineering Union, sitting, perhaps, under the presidency of Mr. Scanlon, is brought within the scope of this Bill and is given thereby "judicial authority"? It seems to me to he going very wide. I am not saying whether it is right or whether it is wrong. I am merely asking for clarification.
THE LORD CHANCELLOR: I think that it is going rather wider than the intention of the provision, but I shall receive in a moment perhaps more reassuring confirmation as to whether I am right or wrong in having given that indication. The answer, I understand, is that it will be effective in relation to a committee of a trade union only within the scope of the committee holding proceedings in a judicial capacity. I imagine that that will be conceivable and I say that, I hope without impertinence, in the case of the union to which the noble Lord referred. That seems to be the position. I see that the noble and learned Viscount, Lord Dilhorne, will come once more to the rescue on this interesting question.
VISCOUNT DILHORNE: I am not sure that I do. However, I should have thought that the answer to the question

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of the noble Lord, Lord Leatherland, is, yes. If a trade union committee or an official is charged with a responsibility for considering whether or not somebody should be expelled from the union on the ground of some conduct, if this Bill is to operate rightly then a spent conviction should not be used as material leading to such a conclusion. I think it would apply, and it is intended to apply to such circumstances, and speaking for myself I rather hope it does.
THE LORD CHANCELLOR: My Lords, so that this question may be put beyond a peradventure I think what I have said, having corrected myself to an initial reaction, and what has been said by the noble and learned Viscount, makes it clear that the application of the clause to trade union proceedings is confined to judicial—that is to say, disciplinary—proceedings taken by the appropriate committee of the union, and will not apply merely to administrative actions by officers of the union. I think the position is quite clear in that regard.
On Question, Amendment agreed to.
11.50 a.m.
THE LORD CHANCELLOR: My Lords, I have already addressed your Lordships on Amendment No. 11. I beg to move.
Amendment moved—
Page 4, line 33, leave out from (" any ") to end of line 34 and insert (" provision of an agreement providing for arbitration with respect to questions arising thereunder ").—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 5 [Rehabilitation periods tot particular sentences]:
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 12:
Page 5, line 22, at end insert—
(" A sentence of cashiering, discharge with ignominy or dismissal with disgrace from Her Majesty's Service. Ten Years").
The noble and learned Viscount said: My Lords, this Amendment is consequential on the proposals with regard to Service offences. As your Lordships will see, it is proposed that there should be a ten-year rehabilitation period for a sen-
2012
tence of cashiering, discharge with ignominy or dismissal with disgrace from Her Majesty's Service. I beg to move.
On Question, Amendment agreed to.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved Amendment No. 13:
Page 5, line 24, at end insert—
(" A sentence of dismissal from Her Majesty's Service. Seven years. Any sentence of detention in respect of a conviction in service disciplinary proceedings. Five year.").
The noble and learned Viscount said: My Lords, this again is a consequential Amendment. Your Lordships will see that it provides for a seven-year rehabilitation period for a sentence of dismissal from Her Majesty's Service, and for five years in respect of any sentence of detention in respect of a conviction in Service disciplinary proceedings. I beg to move.
On Question, Amendment agreed to.
VISCOUNT DILHORNE: My Lords, Amendments Nos. 14, 15 and 16 are all consequential on the removal of the insanity provisions from this Bill. I beg to move those Amendments en bloc.
Amendments moved—
Page 7, line 7, leave out from ("conviction") to ("a") in line 9.
Page 7, line 7, leave out lines 13 to 23 and insert (" was made ").
Page 7, line 7, line 27, leave out from first (" order ") to end of line 28.—(Viscount Dilhorne.)
On Question, Amendments agreed to.
LORD HARRIS OF GREENWICH LORD HARRIS OF GREENWICH moved Amendment No. 17:
Page 7, line 56, after ("Scotland ") insert ("and a sentence of penal servitude").
The noble Lord said: My Lords, this Amendment is a technical one designed to repair an omission in the definition of what counts as imprisonment. Penal servitude was abolished in 1948, but there will be people still living who served such a sentence for not more than 30 months and who ought to qualify for the benefit of the Bill. Penal servitude was not technically a sentence of imprisonment and this Amendment will provide that it is to be treated as if it had been.
On Question, Amendment agreed to.
Clause 6 [The rehabilitation period applicable to a conviction]:
LORD HARRIS OF GREENWICH LORD HARRIS OF GREENWICH moved Amendment No. 18:
Page 9, line 57, leave out from (" offence ") to end of line 5 on page 10 and insert (" in respect of conduct which, if it had taken place in any part of Great Britain, would not have constituted an offence under the law in force in that part of Great Britain.
(7) Notwithstanding subsection (6) above, a conviction in service disciplinary proceedings shall not he disregarded for the purposes of subsection (4)(a) above.").
The noble Lord said: My Lords, the purpose of this Amendment is two-fold. The first purpose is to correct an inconsistency between England and Scotland in the way in which overseas convictions may delay rehabilitation; the second is to make a consequential Amendment to the Amendments tabled by the noble and learned Viscount, Lord Dilhorne, on courts-martial to deal with the delaying effect of military convictions. As to the first, the Bill as it stands could produce the result that a conviction might be spent in England but not in Scotland, or vice versa. For example, an overseas conviction might be based on conduct which would constitute an indictable offence in England, such as drunken driving, but which would be capable of trial in an inferior Scottish Court. The conviction would delay rehabilitation for an earlier offence under English law, but not under Scottish law.
This Amendment, which I understand the sponsors of the Bill accept, would provide that a conviction based on conduct that was criminal in any part of Great Britain should have a delaying effect. The second aspect of the Amendment, which deals with the Amendments moved earlier by the noble and learned Viscount, Lord Dilhorne, which excluded trivial military convictions from the Bill altogether, provides that if the military conviction can benefit from the Bill it can also delay rehabilitation for another offence.
On Question, Amendment agreed to.
Clause 7 [Limitations on rehabilitation under this Act, etc.]:
11.58 a.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved Amendments Nos. 19 to 22 en bloc:
Page 10, line 6, leave out (" 4 ") and insert ("4(1)").
Page 10, line 25, leave out (" 4 ") and insert ("4(1)").
Page 10, line 55, leave out (" that section ") and insert ("section 4(1)").
Page 10(a), line 1, leave out from beginning to (" if ").
The noble and learned Lord said, My Lords, Amendment Nos. 19, 20, 21 and 22, and a list of further Amendments which I ask leave to deal with at the same time, are all drafting consequential Amendments, following either upon Amendment No. 5, by which references to a judicial authority were shortened, or Amendment No. 8, which inserted direct provisions into Clause 4 for insurance and employment. Perhaps I should identify the other Amendments; they are Nos. 24, 26, 28, 29, 30, 31, 32, 33, 35, 36 and 39A—and I pray that I shall remember them all when we reach them.
On Questions, Amendments agreed to.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved Amendment No. 23:
Page 10(a), line 2, leave out from second (" any") to (" proceedings") in line 4 and insert ("proceedings before a judicial authority in Great Britain (not being proceedings to which, by virtue of any of paragraphs (a) to (e) of subsection (2) above or of any order for the time being in force under subsection (6) beiow, section 4(0 above has no application, or ").
The noble and learned Lord said, My Lords, while subsection (5) of Clause 4 defines proceedings before a judicial authority, this clause as it stands refers to civil proceedings before a judicial authority. The intention is to cover all proceedings which are not criminal proceedings, Service disciplinary proceedings, et cetera, covered by subsection (2) paragraphs (a) to (e) and any proceedings which are excluded from Clause 4 by an order made under subsection (6) by the Secretary of State. I beg to move.
On Question, Amendment agreed to.
The LORD CHANCELLOR: My Lords, Amendment No. 24 is one of the consequential Amendments. I beg to move.
Amendment moved—
Page 10(a), line 5, leave out (" court or ").—(The Lord Chancellor.)
On Question, Amendment agreed to.
12.0 noon.
LORD DIPLOCK: My Lords, I beg to move Amendment No. 25, which is

2015
consequential on Amendment No. 5, as is Amendment No. 27.
Amendment moved—
Page 10(a), line 8, leave out from (" done") to (" or") in line 9 and insert (" in the case except by admitting ").—(Lord Diplock.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, I beg to move Amendment No. 26. which is one of the consequential Amendments that I mentioned earlier.
Amendment moved—
Page 10(a), line 10, leave out ("court or").—(The Lord Chancellor.)
On Question, Amendment agreed to.
LORD DIPLOCK: My Lords, I beg to move Amendment No. 27 which is consequential.
Amendment moved—
Page 10(a), line 11, leave out "receive") and insert ("admit ").—(Lord Diplock.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, I beg to move Amendment No. 28, which is consequential.
Amendment moved—
Page 10(a), line 12, after (" notwithstanding ") insert (" the provisions of subsection (1) of ").—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, I beg to move Amendment No. 29.
Amendment moved—
Page 10(a), line 14, leave out from second ("of ") to end of line and insert (' those provisions ").—(The Lord Chancellor.)
VISCOUNT DILHORNE: My Lords, if all these are consequential on Amendment No. 32, could they not be put together'?
LORD HARRIS OF GREENWICH: My Lords, at the last possible moment, the draftsman has noticed that the Amendment has a textual error in leaving out from the second "of" and not the first. If I may make that point to get it on the Record, I understand the matter can be put right.
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, I beg to move Amendment No. 30.
Amendment moved—
Page 10(a), line 15. leave out subsection (4).—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, I beg to move Amendment No. 31.
Amendment moved—
Page 10(a), line 23, leave out subsection (5).—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, I beg to move Amendment No. 32.
Amendment moved—
Page 10(a), line 37, leave out (" 4") and insert ("4(1)").—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 8 [Defamation actions]:
THE LORD CHANCELLOR: My Lords, I beg to move Amendment No. 33.
Amendment moved—
Page 11, line 8, leave out ("4") and insert ("4(1)").—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, I beg to move Amendments Nos. 34 to 41.
Amendments moved—
Page 11, line 14, leave out ("(6)").
Page 11, line 15, leave out (" 4") and insert ("4(1)").
Page 11, line 23, leave out ("4") and insert ("4(1)").
Page 11, line 40, leave out subsection (6).
Page 12, line 3, leave out rat liberty ") and insert (" entitled").
Page 12, line 7, leave out from (" proved") to C' contained") in line 10 and insert (" that the publication ").
Page 12, line 12, leave out ("4") and insert (" 4(1) ").
Page 12, leave out line 21.
Page 13, line I. leave out subsection (9).—(The Lord Chancellor.)
On Question, Amendment agreed to.
Then, Standing Order No. 44 having been suspended, pursuant to Resolution:
12.5 p.m.
LORD GARDINER: My Lords, I beg to move that this Bill be now read a third time. I am sure the House will forgive me if, in so doing, I record my deep thanks to the many who have helped

2017
me with this Bill and, first, to Mr. Paul Sieghart, a member of my Living It Down Committee, a member of the Bar and a member of the Council of Justice who was the draftsman of the Bill which I introduced eighteen months ago. I thought then, and I think now, that it was written in good, straight forward English which we all understood. He has been a tower of strength to me throughout, and it is no exaggeration to say that this Bill would never have reached Third Reading without him.
Secondly, may I thank the two sponsors, Mr. Kenneth Marks in the last Parliament, and Mr. Piers Dixon in this Parliament, who undertook the arduous task as Private Members of introducing and piloting the Bill through the other place. I should also like to thank supporters of all Parties and of none who have supported the Bill in principle throughout. I also thank the last Government, and Mr. Mark Carlisle who supported it in the other place in their day, and this Government here, for their kindness in providing the Parliamentary draftsman. She has worked extremely hard in not too much time, and I shall always be gratefully indebted to her for the work she has put into the drafting of the Bill.
I do not intend any derogation from that when I say that I agree with the noble and learned Lord, Lord Simon of Glaisdale, that one of the biggest difficulties to-day standing in the way of law reform is the style of Parliamentary draftsmanship. There is no other country which has Bills of this length and complexity dealing with relatively simple matters. I am profoundly convinced that this is an evil which must be tackled. I think we should pin our hopes on the Committee on the Preparation of Legislation, of which Sir David Renton is Chairman, which is at the moment engaged very much with this problem.
My Lords, I should like particularly to thank the officials of the Lord Chancellor's office and the Home Office, who have been of every possible assistance, and who have spent long hours in helping us with this Bill. Also, I should like to thank the officials of the Public Bill Office who have been working fin great difficulties, with no printing to help them. They have therefore had a very difficult task with this Bill, and they have been of splendid assistance
2018
to the House. It would be an impertinence on my part to congratulate the noble and learned Lord who sits on the Woolsack. I would only say that I always found that to have a long Report stage of a Bill when one has a number of Amendments to move oneself is procedurally the most difficult thing that the Lord Chancellor has to do. If I may say so, I thought the noble and learned Lord did it very much better than I used to do. May I also thank the noble and learned Viscount, Lord Dilhorne, and the noble and learned Lord, Lord Diplock, who I know are true supporters of the Bill, and who have been of great help in trying to improve its drafting. I am extremely grateful to them. I beg to move.
12.9 p.m.
THE LORD BISHOP OF LEICESTER:My Lords, I greatly hesitate to delay the House even for a very few moments, but do so for two reasons. First, this happens to be the first opportunity I have had on the Floor of the House to express my own support and that of the Church of England, in so far as it acts through the Board for Social Responsibility, for the principles, purposes and provisions of the Bill. This I now do on broadly Christian and humanitarian grounds. The other point is a much more technical one which, with respect, I should like to bring to the attention of Her Majesty's Government. It is that the discipline of clergymen in the Church of England is governed by the provisions of the Ecclesiastical Jurisdiction Act 1963, and in Section 55 of that Act it is provided that certain convictions in the secular courts carry with them an automatic deprivation from Holy Orders with all the consequences that flow from that deprivation. My own view, and the view of some of my advisers, is that as drawn Clause 7(d) covers this situation adequately. It says:
" … the operation of any enactment by virtue of which, in consequence of any conviction, a person is subject, otherwise than by way of sentence, to any disqualification, disability … ".
And it says at the beginning of Clause 7 that nothing shall affect that, so on an ordinary reading of that clause the provisions of the ecclesiastical jurisdiction measure remain in force. I ask the question, so that it may be noted and put on the Record, whether it is necessary

2019
for the Secretary of State to take this into account in making any exceptions under Clause 3(a) as passed this morning.
LORD DIPLOCK: My Lords, as one who has always been in favour of the principle of this Bill but has had occasion to be critical of some of the methods and details of it in the form in which it first came before this House, I should like to express my happiness that the Bill is now, I believe, in a very much better form than when it first came before this House. It is better in two ways: first and most important, it is more effective for the protection of those whom it is sought to protect; and, secondly, and perhaps equally important, that it does not cause harm, which it might have done in its original form, to those who do not fall into that limited category and yet who remain the rest of our citizens. May I express the hope that this Bill will, despite shortness of time available, be able to get successfully through on to the Statute Book. That is my hope, as it is the hope of the noble and learned Lord, Lord Gardiner.
12.2 p.m.
LORD HALE: My Lords, I waited for a second before I rose in the hope that the noble Lord, Lord Foot, would rise to say a few words on Third Reading, because he has made such a useful and sincere contribution to the debate while I have sat silent and trembling hoping to see the Bill go through but finding myself from time to time very hesitant. There is an old story told of a judge whose circuits had lain wholly in the King's Bench who was called upon to sit as a junior judge on an appeal on a Chancery matter and who sat throughout a very long appeal with polite interest, and through two long judgments with similar attention, and then finally delivered himself and said," MN; Lords, I have listened to the eloquent arguments of learned counsel on either side with great care and attention but without, I fear, understanding them in the least ". I have listened with even greater care and attention to your Lordships' learned, lucid and long judgments with, I fear, no better result. I therefore agree with your Lordships, and for the same reasons.
My Lords, there was a time when I felt that that was the rule of conduct I should have to pursue in view of
2020
plunging into this mass of verbiage. I think, as a virtual spectator, it might he appropriate for someone to say that this House has covered itself with great distinction in this debate. The noble Viscount, Lord Colville of Culross, was not only courteous enough to say that he might be in difficulty to-day, but has been good enough to shelve his difficulties and come here and made a very effective speech (which he remembered making from the Government Front Bench some time ago) at a moment when the Government Front Bench were looking through their papers to find what the answer was.
We have had expositions to-day from the noble and learned Lord the lord Chancellor and the noble and learned Viscount, Lord Dilhorne, which to a casual spectator might have appeared a little contradictory but which the noble and learned Lord the Lord Chancellor explained amalgamated into the truth to satisfy, or partially satisfy, the noble and learned Viscount, Lord Dilhorne. But most notable of all we have had a most luminous speech from the noble and learned Lord, Lord Diplock, which I think all of us listened to with attention and which I listened to with a certain sense of doubt—no doubt about the speech, but doubt whether my complete and continued silence following my deeply respected Leader on this occasion—as to whether the outcome will be wholly practical. However, other speeches were made and I recall the advice which Bernard Shaw put in the mouth of an Irish priest:
"Whenever you feel like speaking, take a sup of Holy Water, keep it in your mouth and, above all, do not drop a spot."
And I referred to the nearest quasi-ecclesiastical establishment, the Bishops, who carried out that advice, indeed not only in the letter but literally in the spirit.
I have myself abstained from any sound until a very unfortunate intervention today which I have already withdrawn and which still has a little foundation. I wanted to praise everyone. I think any spectator in the Gallery on Wednesday night would have gone away with two very clear impressions, both highly beneficial. The first would be to come to listen to a House of Lords debate again; and the second in no circumstances whatever to get themselves involved in litigation. Both those are beneficial to

2021
humanity. I think the Bill is a fine one. I think the noble and learned Lord, Lord Gardiner, excelled himself and the labours of the noble and learned Lord, Lord Diplock, in the last 24 hours and those of the noble and learned Lord the Lord Chancellor have been to our assistance. This is a demonstration of what a Second Chamber full of experts can do. It is as a wholly non-expert that I venture to intervene to express my thanks to those who know so much more about these things than I do.
VISCOUNT DILHORNE: My Lords, may I say a few words on Third Reading of this Bill and start by congratulating the noble and learned Lord, Lord Gardiner, on the success he has achieved and express my sincere hope that he will be equally successful, when this Bill goes back to another place, in getting it on to the Statute Book. It is due to him and his persistence that this problem has been tackled at all. As he knows, I have throughout accepted the object of the Bill and supported it. But throughout all our controversy has been in regard to machinery. It may be, indeed I am sure it is, that the Bill is not now in all respects in the form in which he would like it, and if it is any consolation to him I can say equally that it is not in all respects in the form in which I should like it. I should like it to have excluded foreign convictions of foreign nationals. But he that as it may, throughout, as he has said, I have tried, as has my noble and learned friend Lord Diplock, to improve the Bill. I think it has been greatly improved by the Amendments moved today by the noble and learned Lord the Lord Chancellor. As a result, I think it is a workable measure and one which will prove more effective now than it was before we entered on our deliberations.
That leads me to express the hope as strongly as I can that when this large number of Amendments—and it is a large number of Lords' Amendments—fall to be considered in another place that that consideration should not lead to controversy or delay the enactment of this measure. After the hard work and long hours that this House has spent in considering this Bill in all its details we have to-clay reached a stage where every single Amendment has been agreed to in all parts of this House. When the matter comes to be considered in another
2022
place, I hope it will be drawn to the attention of that place that so far as this House is concerned there is not a murmur of dissent about any of the provisions which will be embodied in what will be called there the Lords' Amendments. I can only say that I trust and hope that this measure will be enacted. No Act of Parliament is the last word, and should any defects appear in the future it is always possible to have amending legislation; the possibility or remote chance of some defect of a minor matter should not delay the passage of this Bill at all. I cannot see that there should be any controversy as to the merits of the Bill as it now stands, and I am sure no one wants to wreck it. That is why I have said that I hope and trust it will be enacted.
But, my Lords, there are two matters to which I do desire to draw the attention of your Lordships' House. The first is the matter of the drafting of the Bill. My noble and learned friend Lord Simon criticised it in Committee, and the noble and learned Lord, Lord Gardiner, made some observations about it today. The task of Parliamentary counsel is always an extremely difficult one, and I fancy here that the task has been particularly difficult, not through anyone's fault but for this reason. The Bill, as originally introduced by the noble and learned Lord, Lord Gardiner, was, as he said, clear and precise. But it left many matters not dealt with, and I think as time went on difficulty after difficulty and problem after problem arose—for instance, take the courts-martial procedure which had to be tackled and dealt with, and so you had put upon the framework of the original Bill patch after patch until it has now become its present maze.
For any lawyer to understand this Bill is like penetrating a maze, and what the task must be for a layman I cannot conceive. It is not, I think, the fault of the style of Parliamentary draftsmen. I doubt in this Bill whether it is the fault of anyone, but it is a sad thing that the Bill should be drafted as it is, although it deserves strictures. Perhaps it would have been better to have had a completely fresh draft. Then I think we should have had it clear. The noble and learned Lord, Lord Gardiner, has made many speeches on the desirability

2023
of amending the drafting of our enactments. I comfort myself with the thought that when he makes speeches about this in future he will now be able to hold up as an example of the worst kind of drafting, and one that should never be repeated, the Bill that he has succeeded in putting on the Statute Book.
The other matter is one which affects the procedure of the House. I have not raised this point before because I did not want to obstruct or stop the passage of the Bill. But I really do not think it is consistent with the dignity or with the efficiency of the House that we should again proceed as we have in relation to this Bill on a Private Member's Bill. It is important that there should be a decent interval between Second Reading and Committee. I say that for this reason: not only to give Members of this House time to consider the provisions and time to draft Amendments, but time to get reactions from persons outside. That is important. We have had an interval of four days between Second Reading and Committee. It is equally important to have a decent interval between the end of Committee and Report. That is really vital if a Bill is to be produced which really does us credit. Here we had one day, and we had to draft Amendments to a Bill which we had not seen as amended in Committee. We have got over all those difficulties this time, thanks to the very good work done by the officials of this House and Government officials, and hard work by many people. But it ought not really to happen again.
Now the noble Lord is asking this House to give a Third Reading to a Bill which no one has seen because we have not got a copy of the Bill as amended on Report. We are giving a Third Reading to a Bill which is in fact a nonexistent document. I am not objecting to that, but all I am saying is that I do not think it should happen again. It can only happen on this occasion because of the suspension of Standing Orders. As I have understood it, Standing Orders are suspended to assist the Government to get through urgent Government business. By making these observations I am not being critical of the noble and learned Lord; I hope he understands that. But I hope that the Procedure Committee will
2024
look at all this, because I am very doubtful whether as a matter of procedure it really is right that Standing Orders should be suspended in relation to Private Members' Bills. I am not going to argue the case one way or the other. I think that the noble and learned Lord, Lord Gardiner, and all those concerned have done wonders in the short time this has been operating, but the Members of the House who have not been actively engaged must have found it very difficult indeed to keep pace with events. That is all I have to say, except that I wish this Bill well and I hope it will prove as effective as we want it to be.
LORD GOODMAN: My Lords, I wonder whether I might detain the House for one moment to make an entirely non-controversial participation. I should not wish in any words spoken here to-day to detract in the slightest degree from the very massive nature of the noble Lord's achievement, because I think that whatever the nature of the Bill, whatever the turgidity of some of its phrases or complications of some of its clauses, that is immensely unimportant by the side of the fact that we have sent out a message from this House, and I hope shortly hereafter from Parliament, that there is such a thing as forgiveness; we have recognised as a Parliament that if a man commits an offence that should not be his ruin and the end of his career and the end of his life. I think that this is of such importance that the question of whether it should be by way of defamation or criminal offence or any other means to ensure performance of the Act is largely irrelevant by the side of this significant and important gesture which we make at this moment, which I think is an historic gesture. It would, I think, be quite wrong if someone did not say this, and offer profound thanks to the noble and learned Lord, Lord Gardiner.
THE EARL OF SELKIRK: My Lords, may I ask a question to which there may be a very simple answer? How do we know to whom this Bill applies? I do not know whether I should address this question to the noble Lord, Lord Gardiner, or to the Lord Chancellor or the Government, but it is of great importance to the individual concerned. It is of importance to other people. It is particularly important to know whether the

2025
spent period has been interrupted. I do not know whether there is any intention of keeping a list, but it seems to me that the great advantages which Lord Gardiner has brought should be known, particularly to those to whom it is of particular concern. I do not quite know how that is done. Maybe there is a simple answer, and if there is I think it should be known.
12.29 p.m.
LORD SIMON OF GLAISDALE: My Lords, as one who supported the Bill on Second Reading and applauded its objects, which have been so nobly stated just now by the noble Lord, Lord Goodman, but was very critical of some of the provisions, I should like to say how greatly improved the Bill now seems to be, and I have little hesitation in supporting its Third Reading. I had three main criticisms. The first was of the drafting. I do not desire to add to what the noble and learned Lord, Lord Gardiner, and my noble and learned friend Lord Dilhorne had to say, except that I certainly did not mean to criticise the original draftsman, who was a colleague of mine when we both practised at the Bar, still less the Parliamentary draftsmen, with whom I have worked closely over a number of years in a number of capacities on my !part, and whom r have learned very greatly to admire. The lesson of the drafting of this Bill is that it is essential throughout to have one hand, a draftsman, in control of a Bill.
The second matter which greatly disturbed me was the defamation clause, and that for two reasons. In the first place, it undermined and pre-empted a Committee which had been set up to elucidate, clarify and improve the law of defamation, the Faulks Committee. The second reason was that the clause had aroused widespread alarm in such bodies as the Society of Authors and the Publishers' Association and their members, and unless attention is paid to the views of those people, an important and influential sector of public opinion, which it is essential to carry with us if we wish to see reform of the law and penal reform, would be alienated. My own view is that the Amendment which your Lordships made to Clause 8 ought to meet both those points, and I very much hope it does.
2026
The other main criticism that I ventured to make was to Clause 4, with its licence to perjury and its command of untruth out of court. So far as I am concerned, I am entirely satisfied with the Amendments that have now been made. I ventured to make, in addition to those criticisms, what I hoped were four constructive suggestions as to how the solution to the problem with which your Lordships were all concerned, and all desired to further, might be achieved. Of those four, three have been accepted. That is a high proportion, particularly when they come from the Cross-Benches. I would be very ungrateful indeed if I were not now prepared to support this Bill through its last stages in your Lordships' House.
I should like to conclude by adding my congratulations and thanks to the noble and learned Lord, Lord Gardiner. I worked very closely with him at one time in the past when he was Lord Chancellor. I learned to know his firm resolution and his passion for justice; those are the qualities that have been behind the successful passage of this Bill.
12.34 p.m.
LORD FOOT: My Lords, the noble Lord, Lord Hale, was kind enough and, if I may say so, unwise enough to invite me to intervene in this debate on Third Reading. If Members of this House are going to invite other Members of the House quite gratuitously to speak, we should be setting a very dangerous precedent. However, I respond to the noble Lord's suggestion for three purposes only. One would be to join with all those who have conveyed their congratulations to the noble and learned Lord, Lord Gardiner, upon the passage of this Bill. I do not think that anybody realises fully the burden that he has carried. Indeed, this represents the final coping stone on the building which he set out to construct so long ago when he presided over the Committee which was the author of this Bill.
Even during the course of the discussions on this Bill in this House on this occasion, a very heavy burden has fallen upon him. This ties up with what the noble and learned Viscount, Lord Dilhorne, was saying about the procedures to which we have been subject. I know very well that between the Second

2027
Reading of this Bill in this House and the Committee stage, the noble and learned Lord. Lord Gardiner, was away, with the result that he did not have the opportunity of even seeing the Amendments which were put down in the meantime until midnight or so on Thursday night. I entirely agree with what the noble and learned Viscount, Lord Dilhorne, said about the procedures which we have followed on this occasion. Not only have they imposed a well nigh intolerable burden on those who have wanted to put down Amendments to the Bill, but they have imposed an equivalent burden on the supporters of the Bill who have not had any opportunity of giving proper consideration to the Amendments that have been put down.
For example, the Amendments that we have been considering to-day were not available in the Paper Office until this morning. One had to pick them up at 10 o'clock, and attend in this House and be prepared to pass a judgment upon them. To my mind, that is an intolerable way of conducting our affairs. I hope that this is not going to be repeated in the future. I realise that we are to-day faced with the possibility of an Election, and that we are in a special situation: nevertheless it is deplorable that what I have always regarded as the main function of this House—the revision of the legislation which either we initiate or which we receive from the other place—should be curtailed and restricted in the way it has been on this occasion. Therefore, I should like to add my congratulations to those that have been expressed to the noble and learned Lord, Lord Gardiner, and remind those of your Lordships who do not know it of the very great burden that he has carried.
At this late stage of the Bill I do not want to introduce any dissenting note but I think that it is right that I should put it on Record that I cannot agree with what the noble and learned Lord, Lord Diplock, said just now, that the Amendments that have been carried have, in fact, strengthened the protections which the Bill intends to provide for people who have been rehabilitated and who have spent convictions. I am still of the opinion that in one important respect the protection that the Bill seeks to provide for such persons has been dangerously
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weakened by one of the Amendments which the noble and learned Lord, Lord Diplock, and the noble and learned Viscount, Lord Dilhorne, succeeded in carrying in these discussions. When it comes to justifying the publication of a spent conviction, the test now is to be not whether it was in the public interest to do so, but whether it was published maliciously. We have discussed that, and we came to our conclusion but the way in which the substitution of the concept of malice for the concept of the public interest weakens the protections of this Bill is mainly because the burden of proving malice is now to be thrown upon the plaintiff, whereas originally under the Bill if somebody were to plead public interest then the burden of proof of that public interest fell on the defendant. That is a serious weakening of the Bill, and of the protection which this Bill affords.
It is particularly unhappy that, as things turned out—and this is one of the results of our procedures here—on the occasion when that matter was being discussed there was overwhelming support for the Amendment from the Law Lords. But I believe that if the noble and learned Lord. Lord Salmon, had been able to be here he would have expressed a contrary view. We should have greatly benefited if we had heard that contrary view expressed by someone of similar authority to the other noble and learned Law Lords in the House. The outcome of the debate might possibly have been different.
In conclusion, may I remind the noble and learned Lord, Lord Diplock, that at the end of our discussion upon this question of where the onus of proof should lie, where a person pleaded justification and denied acting maliciously, the noble and learned Lord said he thought that the question of the onus of proof was still a matter which might be considered. I am afraid that perhaps it is now too late. I fear that anybody who is—
LORD DIPLOCK: My Lords, I considered the matter of onus of proof carefully. I consulted with those representing the Promoters of the Bill. I came to the conclusion, with which I think those with whom I consulted agreed, that the onus of proof would have to stay where it was. The suggestion of an alternative that was made in our discussions was not changing the onus of proof but reintroducing in relation to newspapers the concept of

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public interest in the place of malice, the very matter on which this House divided at the Committee stage. The question of onus of proof was considered very carefully, for reasons which I certainly would not go into at this late stage. We concluded that it was not a solution which would work.
LORD FOOT: I will not raise the matter again at this late stage, because I do not think anything can be done about it now. We must let it rest there. To adopt the words uttered yesterday by the right reverend Prelate, when he said he was reluctant to prophesy, especially about the future, if I may venture a prophecy I believe we shall find that because the burden of truth of malice is now thrown upon the plaintiff—I deeply regret it—it will be extremely difficult, if not almost impossible, for a person who has the facts of a spent conviction published in a newspaper to prove in any case that that was done maliciously if the burden remains upon him. I leave it there. I will not pursue the matter any further, but I believe that some time in the future we shall have to return to the subject and consider two things: whether malice is the right test, or whether it should be public interest, and we shall have to reconsider the onus of proof. I will not add anything further to-day. With this mutual admiration society, into which we have turned ourselves for the purposes of this occasion, I thought it right to put it on Record that I am afraid some of us will feel in that respect that the Bill is not an improvement upon what the Committee of the noble and learned Lord, Lord Gardiner, originally produced.
LORD LEATHERLAND: My Lords, at this final stage of this fine Bill I think brevity is a virtue. In jealous defence of my virtue I shall be brief. I rise, as I have risen at various stages of the Bill, as one who for nearly a quarter of a century presided over a magistrates' court. I feel that there is some lack of understanding among members of the general public as to how far the Bill will reach. As I understand it, it will not deal with criminal cases in the magistrates' courts.
I should like a representative of the Government, or a sponsor of the Bill, to
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explain clearly exactly how cases in the magistrates' courts will be dealt with in the future. Personally, having arrived at the principle that spent convictions should be spent and should not be raked up against a man after he has lived an honest life for a long period of years, I feel that perhaps in magistrates' courts when a case has been proved against a man and his record is called for, his full record should not be orally recited in the court but that unspent convictions might be so recited. Spent ones should be in writing and handed to the Bench. In those circumstances, I think the Bill would operate much more satisfactorily than it will do if left in its present state with this big gap in its good intention.
We have been told that the Lord Chief Justice will issue practice notes. I hope that when he issues those notes he will give some guidance to magistrates so that they do not allow themselves to drag up long spent cases to the detriment of a person who has lived an honourable life in his community for 10 or 20 years, particularly as magistrates' courts cases are those which are reported in the local newspaper, which might have disastrous effects upon a man who has committed a minor offence and has to appear in court. Apart from what I have said, it is a good Bill. You do not spurn a beautiful lady because she happens to have a mole on the sole of her foot. I wish the Bill the best of luck. I sincerely hope it will not be delayed in the other place.
11.46 p.m.
VISCOUNT COLVILLE OF CULROSS:My Lords, the course of my professional endeavours this morning have been both quick and singularly unsuccessful. I am therefore relieved to think that in five years' time my clients may be able to forget all about it. I wish to say two things: first, to endorse from these Benches everything that has been said in praise of the noble and learned Lord. Lord Gardiner, and his supporting team; secondly, to congratulate the House upon having noble and learned Law Lords on the Cross-Benches and others to help us over this difficult legal matter. I do not think any more thanks and praise is necessary. It has already been done to a degree which has been fully deserved.

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I wish to make two points. First, the noble Lord, Lord Foot, is still complaining about the defamation clause. Personally, I think it is unlikely that anybody will sue in those circumstances. If they do, we shall see whether or not he is right. Secondly, the Report of the Committee presided over by Mr. Justice Faulks will soon be available to the public and to the Lord Chancellor's Department. No doubt it will be considered whether legislation is necessary. If, as a result of all the discussions on that Report, it appears that this Bill is out of line with what is in general intended, or indeed if anything has gone wrong with the machinery as a result of deciding cases, it can all be dealt with when the Faulks Committee's Report is legislated upon. We shall then have an opportunity to examine it again. I am not in the least worried, therefore, that we have a long-term situation of injustice in front of us. I do not think that there is anything wrong with it at all.
Thirdly, we have all said that it is a difficult Bill to read. The noble and learned Lord, Lord Gardiner, has been telling us that a million people are at risk and that there are not a million noble and learned Law Lords. There is one task left for somebody—it may be a combination of the Justice team and the Government Departments concerned—and that is that once the Orders under the Bill have been made and the Circulars issued from the Home Office to deal with magistrates' courts—that is the point of the noble Lord, Lord Leatherland—and the Lord Chief Justice's practice notes have been issued, somebody should produce a document drafted something after the style of Mr. Paul Sieghart's original Bill in English, so that it will be available to the ordinary members of the public who will know in simple terms in outline what the Bill does. As for the rest of us, I would suggest that we commit to heart the Table in Clause 5, and that, if we are going to refer to other people, we should try not to refer to their old convictions. I would think that five years is safe, but if the old conviction is more than five years ago one wants to be very careful indeed. That may be the only way in which my noble friend Lord Selkirk is going to get a satisfactory answer. With those words I, too,
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support the Bill; I very much hope there will not be undue controversy in another place and that it will get on to the Statute Book.
12.51 p.m.
THE LORD CHANCELLOR: My Lords, I should also like to join the chorus of congratulation to my noble and learned friend Lord Gardiner. I had the privilege of working with him as Attorney-General over the course of six years, and I can only echo the eloquent words about him of Lord Simon of Glaisdale, that he is always "actuated by a passion for justice, pushed through with determination and resolution ". I found this so frequently when, for instance, we had the original discussions about the Law Commission. Here, in this Bill, the noble and learned Lord and the various organisations which have been supporting him from outside have indeed struck a blow for the approach of understanding, compassion and forgiveness. That principle has been warmly accepted in the House, and, if I may say so, was movingly expressed by the noble Lord, Lord Goodman, in what he has said on Third Reading.
My Lords, I should like to echo what has just been said by the noble Viscount, Lord Colville, about the gratitude that the House owes to the noble and learned Lords who have so generously and wholeheartedly assisted the House in its labours. Night after night it has happened, and it really has been a remark, able contribution, even though I was not fully able to agree with them in some of their opinions—but that is not unknown among lawyers. I should also like to thank in particular the officials of the Departments who have really worked for hours and at weekends, as I know from the members of my own Department and the Criminal Department of the Home Office, to give their assistance in this matter.
The fact that the Bill has come before the House at this stage has imposed upon us an appalling pressure of time, and it may well be that some matters could have been more fully discussed. Perhaps at this stage I should mention that in the course of this morning's proceedings we agreed, without debate, on Report, to Amendments Nos 34 and 37. They in fact remove an Amendment that was agreed to in Committee following the

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Division on the defamation provisions. That Amendment was found to be unnecessary and the noble and learned Lords concerned concurred. I apologise that Amendments Nos. 34 and 37 slipped through without that having been disclosed, and I trust that I am not grievously in error in mentioning it for the Record at this point.
One or two practical matters have been raised by the noble Earl, Lord Selkirk. The intention is that the Home Office will publish a short and simple guide to the provisions of the Bill, which is also what the noble Viscount, Lord Colville, had in mind. I hope that that will introduce an element of clarity into what is clearly very obscure in parts. I confess that some of the problems that have had to be faced in the discussions on the Bill have presented us all with the kind of difficult situation that led to a desperate counsel opening a hopeless case before a High Court judge whom he knew to be a high churchman beginning his submissions by saying, "My Lord, in this case I appear for the plaintiff, a God-fearing limited liability company". We have not at any rate been reduced to such desperate straits as that in our discussions.
My Lords, clearly, as the noble Lord, Lord Foot, said, the Bill does not leave this place giving all of us full satisfaction, and I know that the noble and learned Lord, Lord Gardiner, is not fully satisfied. But the fact that it has left your Lordships' House to-day, with unanimous support this morning for all the complex Amendments, should indeed give it a fair wind in another place; and the message should go forth to that other place that we hope that this Bill will now receive a quick completion of its course there. I conclude by wishing the Bill now a fair wind.
12.55 p.m.
LORD GARDINER: My Lords, in replying shortly to this debate, first of all may I make it crystal clear, if I did not before (though I think I did), that I intended no disrespect in any form to the Parliamentary draftsman. As I said, I was grateful to her for all the work she did. She has exhibited all the skill of the Parliamentary draftsmen on this Bill in accordance with their usual style. It is really because I think that usual
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style needs changing that I was displeased. With regard to what the noble and learned Viscount, Lord Dilhorne, has said about procedure, I quite agree but I do not really know what the answer is. We are always in great difficulties at this time of the year. Of course, this was a very short Session. I think I am right in saying that this was either the first or, if not, the second Private Member's Bill in the other place to go to a Standing Committee. They dealt with it speedily there, and the only time left has been the time since it arrived here. But it is, I think, because of the shortness of the Session that it has been particularly difficult, and we all know that all Members of this House have had a very difficult week.
The noble and learned Lord the Lord Chancellor has already dealt, I think, with the paint raised by the noble Earl, Lord Selkirk. One of our great difficulties at the present time, chiefly through lack of means, is lack of legal advice. People do not know the law as we should like them to. But I hope that the noble Earl will approve the Government's proposal to publish a short booklet on this written in simple English. With regard to the point raised by the noble Lord, Lord Leatherland, the criminal courts have been taken out of the Bill. They are being dealt with by a Practice Direction to be issued by the noble and learned Lord the Lord Chief Justice, and the Home Office will be giving similar guidance to the magistrates. I, too, hope that it will be possible for the House to be able to see those documents before this Bill (or, as it will then be, this Act) starts operating.
With regard to what the noble Lord, Lord Foot, said, we have got as far as we can on this Bill. I do not pretend for a moment that I do not think that public interest is the right test and that malice is the wrong test; but that is for further discussion on this Bill. If and when we get the Report of the Faulks Committee, I can promise the noble Lord that I shall be the first to try to defeat any attempt to introduce into our law generally more than it is at present the test of malice, which has always proved so difficult in the past. I personally think that public interest or the public benefit, which has worked so well for years elsewhere, is the right test; but I hope that that will

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not be raised again before this Bill becomes law.
My Lords, we know now that there is a large number of men who, having committed offences, usually in adolescence, have never been able completely to live them down after doing everything that they could themselves. Both Houses have now taken the view that there must come a time when it would pay society itself to treat them for what they are—rehabilitated people. It is surprising, in a way, that England should be the last member of the Council of Europe, as a country, to have no rehabilitation law. I think the real reason is simply that here there are a lot of people who cannot organise demonstrations. They are people who cannot even write letters to The Times; and that is why it has taken so long. I am very grateful for all the expressions of good will in all parts of the House.
On Question, Bill read 3a, with the Amendments, and passed and returned to the Commons.