THEFT BILL [H.L.]

HL Deb 23 February 1978 vol 389 cc234-79

3.18 p.m.

Report received.

Lord WIGODER moved Amendment No. 1: Leave out clause 1, and insert the following new clause:

Obtaining services by deception

("1.—(1) A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, by any deception obtains any services from another shall be guilty of an offence. (2) For purposes of this section—

1. (a)"services" means services which are provided in return for payment or the promise of payment and includes the hire of any property;
2. (b)"obtains" includes obtaining for another or enabling another to obtain.")

The noble Lord said: My Lords, may I begin by making two general observations that cover both the first and second Amendments. The first of those observations is this. This is the third time that I have made this speech to your Lordships' House; I made it on the Second Reading and I made it at the Committee stage. I now have, somehow, to attempt to draw a line between wearying to distraction those of your Lordships who are familiar with the argument or, alternatively, being so brief as to bewilder those who are coming afresh to it. I shall take an intermediate course.

I am aware of the fact that the debate on this stage of the Bill is, in fact, delaying many of your Lordships who have come here today primarily to debate another very important and interesting matter with perhaps wider implications—although, if I may say so, the Theft Bill with which we are now concerned is a measure under which hundreds of people are prosecuted every day. It is therefore a matter that it is incumbent upon your Lordships' House to get right at this stage. That is the first observation.

The second observation is that your Lordships will see that Amendments No. 1 and No. 2 are attempts to remove the Government's clauses and substitute different ones. I am very much aware of the danger of any Member of your Lordships' House setting himself up as a one-man criminal law revision committee. I want to assure your Lordships that the Amendments that have been drafted are not those that I have jotted down on the back of an envelope when riding on the top of a Clapham omnibus. They are those which have emerged as the result of careful deliberation among a number of members of the Criminal Bar Association, and they are put forward with great care with the genuine belief that they are a substantial improvement on the Government's proposals to achieve the clarity which is necessary in the criminal law.

From the fact that I am repeating this exercise for a third time, your Lordships will appreciate that it must inevitably follow that so far the answers given to the points raised by the noble Lord, Lord Harris of Greenwich, have not seemed to some of us to be entirely convincing. I am particularly happy in those circumstances to see in his place this afternoon the noble and learned Lord, Lord Edmund-Davies, who was the very distinguished chairman of the very distinguished committee which produced the draft upon which the Government's proposals are based. I know that he shares with me the desire that our legislation—and, particularly, our criminal legislation—should be clear, simple, straightforward and unambiguous. I know, too, that at the Bar the noble and learned Lord's persuasive powers are legendary. I look forward to his intervening in this debate, and seeking to persuade your Lordships that the Government's proposals are simpler and more effective than the alternative ones put forward.

Amendment No. 1 attempts to replace Clause 1. This clause has as its side the words, Deception as to prospect of payment". It is therefore necessary, in order to see which is the better method of dealing with this problem—the Government's proposals or the alternative—to consider the evil which is aimed at by the clause. That is set out in simple words in the Criminal Law Revision Committee Thirteenth Report. At page 10 it says: The offence of deception as to prospect of payment"— the offence we are dealing with— is essentially an offence of dishonestly obtaining by deception services on which a monetary value is placed".

The Committee gives various examples. It says: The typical offence … involves obtaining services by deception. In R. v. Page the accused gave worthless cheques when asked to pay in advance the hire charge for a car and to provide a deposit against possible damage. Such conduct would amount to an offence under the proposed Clause 1. Other examples are then given: … obtaining by deception the use of a chauffeur-driven car or a journey in a taxi. Provided there is an underlying promise of payment and a deception going to the prospect of payment being duly made, the clause would cover deceptions obtaining any of the following services". The Committee goes on to give various examples: The use of a computer … the repair of a motor-car or television set … and so forth. To deal with what one would have thought was a simple problem, at least to draft, it is unfortunate that the solution proposed in Clause 1 of the Bill is one which is open to objection on many grounds, all of which are avoided by the alternative clause suggested in this Amendment.

There are three particular grounds of objection to the Government's proposals that I wish to raise. First, it is quite inordinately complicated. If one looks at the Government's Clause 1—which runs to 30 lines as against the 10 in the Amendment—it would require a judge to direct the jury on eight different matters of law in order to decide whether or not a person was guilty of obtaining the hire of a car by means of a dud cheque. First, it would require a direction to be given that there has to be a deception. Secondly, it has to be a deception about an existing fact; and there would have to be a comment added that an intention to pay in the future is of course an existing fact. Thirdly, they would have to be told the deception must be relevant to the prospect of payment. Fourthly, a cheque is not in itself a payment. Fifthly, inducing somebody to act includes inducing somebody to refrain from acting. Sixthly, the deception must be one which induces the act for the refraining from action. Seventhly, an agreement to act does not amount to an act. Eighthly, inducing someone to refrain from taking steps to enforce a liability is not an offence under the clause. All that where a person has obtained the hire of a car by a dud cheque. My first ground of objection to the Government's draft is that it is far too complex and an effort must be made to see whether this can be simplified in the interests of the working of the criminal law.

My second objection to the clause as drafted is that it involves certain artificial concepts which a jury no doubt are going to be able to understand but which, nevertheless, are undesirable when the criminal law is being administered. It involves three in particular. The first is the concept that, if one pays by cheque, that, according to the clause, is not to be regarded as a payment. It is only to be regarded as the promise of a payment. Secondly, it begins by saying in Clause 1, line 2, that there must be a relevant deception which dishonestly induces another to act on any person's promise of payment. It then goes straight on under subsection (2) to say: It is immaterial that the act induced is not itself that in respect of which payment is promised…". Thirdly, it involves the extraordinary conception that by persuading someone to act there must be included the concept of persuading someone to refrain from acting. Line 14 of Clause 1 says: (3) For purposes of this section— (a) 'act' includes refraining from action;

On the other hand, when one turns over the page, at the top of page 2 one sees: A person does not for the purposes of this section act on a promise if he only agrees to act". One reaches the situation, under this draft, that a jury will have to be told that it is an offence to induce someone to act; it is not an offence to induce someone to agree to act; but it is an offence to induce someone to refrain from acting. That appears to be a complexity that, if possible, ought to be avoided.

The third ground of objection to the clause as it stands is that it appears to be a remarkable example in the criminal law—the only one I can think of off-hand—in which whether or not an offence is committed does not depend upon what the villain does but upon what the victim does. Under the clause, as it stands, if a person by deception induces somebody to agree to act to his detriment, that is no offence; although the villain has done everything he can, it becomes an offence only if the victim happens to act upon it.

In any other section of the criminal law if the villain completes his side of the villainy, and the victim happens not to act upon it, there is at least the offence of attempting to commit the crime of which there is complaint. Here, so far as one can see, that cannot arise. One cannot commit an offence of attempting to commit an offence which does not exist in law. So far as one can see from the present drafting, if a person does not for the purposes of this section act on a promise or if he only agrees to act, it would rule out many cases where the attempt to commit an offence ought properly to be regarded as an offence.

As against those objections to the draft produced by the Criminal Law Revision Committee and adopted by the Government, we venture to put forward the alternative draft in Amendment No. 1. It is extremely short and deals with the offence as it is so described in the report of the Criminal Law Revision Committee; namely, the offence of obtaining services by deception. It makes it quite clear that they are to be financial services, that there has to be dishonesty and that a person has to act with a view to gain for himself or another or with intent to cause loss to another—and that must mean financial gain by the terms of Section 34 of the Theft Act, because it says that any person who does that by any deception and obtains any services is guilty of an offence. There is then a definition of "services" which are said to include, in Clause 2(a): services which are provided in return for payment or the promise of payment and [it] includes the hire of any property". There is then the same observation about "obtains" as there is in the existing clause.

It is my respectful submission to your Lordships that that clause is very much superior in its drafting and comprehensibility to the clause contained in the existing Bill. I know that the noble Baroness, Lady Elles, has queried whether the draft in the Amendment in some way extends the scope of the provisions in the present Clause 1 of the Bill. So far as I can see, it does not. It is quite clear that under Clause 1 in the amended form there would have to be dishonesty and financial gain—and it is limited to services which are provided for payment or the promise of payment. Therefore, so far as I can see, for all practical purposes it covers exactly the same ground as the Government's proposals and, I venture respectfully to suggest, in a very much simpler form. I beg to move.

3.33 p.m.

Baroness ELLES

My Lords, I think nobody could be in any doubt as to why the noble Lord has had such a successful legal career because, apart from spokesmen on the Government Front Bench, I am sure we have all been persuaded that his Amendment should be adopted today. I say that subject, of course, to the fact that there may be many other speakers today with considerably greater knowledge and experience than I have. I should like to draw attention to the intervention of my noble and learned friend Lord Hailsham on 31st January 1978, in column 688, when he said: The only thing about which we are all certain is that we do not know what the new provisions mean as they stand at present". I must confess that having read through the Bill several times, I feel very much the same way as he does.

Also, I think that the Criminal Law Revision Committee themselves seem to have been in some doubt even as to the defence they should be trying to define. That comes out very clearly in paragraph 7 at the bottom of page 9 of the report; so I wonder whether the Committee members were entirely convinced that not only had they drafted a Bill which would be viable and comprehensible but they had even chosen the right way to deal with the kind of offences they had in mind. I must say that the arguments put forward today by the noble Lord, Lord Wigoder, are very convincing.

Also, I think it must be said—and this is not meant in any way to be an offensive remark to the noble Lord the Minister—that during the Committee stage I felt that his reply to the noble Lord, Lord Wigoder, lacked some of the panache with which he usually deals with these very difficult questions. For someone with his originality of mind to rely heavily on the fact that there was a precedent and that it was something produced by another committee, I found a rather unconvincing argument.

Putting myself in the position of a member of the jury, the noble Lord, Lord Wigoder, has clearly pointed out the difficulties that any judge would have in trying to explain the provisions of Clause 1 to a jury. I think this is a very convincing argument. As the noble Lord the Minister will remember, only two days ago we were debating the Suppression of Terrorism Bill, which meant referring back to a considerable number of Statutes of the 1860s and 1970s. I think nobody could deny that one is always struck by the clarity and comprehension of the drafting of that particular era. The Bill we are looking at today has departed very considerably from the standards of clarity displayed in those old Statutes: in fact they are still viable today, totally comprehensible and still applicable. My own inclination, subject to what the Minister says or to what is said by any other speaker during the course of this Report stage, is very much to support the Amendment put forward by the noble Lord, Lord Wigoder.

3.37 p.m.

Lord EDMUND-DAVIES

My Lords, my experience of debating in your Lordships' House is regrettably very short, but even were I a seasoned debater I should still feel diffidence in participating in this particular debate this afternoon, for the obvious reason that, as the noble Lord, Lord Wigoder, has pointed out, I had the honour at the material time to be the chairman of the Criminal Law Revision Committee, whose clauses were the basis of the Government's clauses which we now have to consider. Because I am no longer one of their number, I make free to describe them as a distinguished body of able lawyers who have devoted many scores of hours to thinking about the matters that we are concerned with this afternoon. They are able people, devoting wholly unpaid hours for a long period of time in order to assist this House.

So persuasive and so scathing has been the attack of my noble friend upon their product that perhaps it may be timely to remind this House of those who constitute the Criminal Law Revision Committee. I say that that is necessary because even the noble Lord appears not to know the facts. I say that because this is what he said during the Committee stage: he spoke of the Committee as comprising—I refer to column 670, 31st January, 1978— a number of extremely distinguished judges, academic lawyers"— and then he added, I fear a little sardonically although I hope I do him no injustice— and indeed even one practitioner". That is not right. The make-up of the Committee embraces people who are engaged in the administration of the criminal law at all stages in this country. It is true there are judges on it: I myself was there representing this House until I was succeeded by the deputy chairman, Lord Justice Lawton, who is, I venture to say, peerless in his knowledge, experience and ability in relation to matters pertaining to the criminal law. The Common Serjeant is a member and there are Crown Court judges there. So far from there being only one practitioner, there are three Queen's Counsel, with between them an enormous experience of criminal matters mainly, I should have thought, on the defence side, which is no bad thing. Then again, there is Sir David Napley, who was last year's President of the Law Society. He is well known to be a most gifted criminal advocate and a very sound lawyer.

We had the assistance of a most able clerk to the justices who, I can assure your Lordships, was always alert to the need to have Acts of Parliament expressed in a way which a magistrates' clerk would find easy to explain to his justices. So the Bill was drafted not as a result of clauses concocted by justices, judges and academics living in a rarefied world, but by people who have hard practical experience of the job in hand. I want to pay warm tribute to the three academic lawyers of international stature who assisted us in our deliberations, and to Parliamentary Counsel. So much for the make-up of the Committee.

I should now like to say a word or two about the way in which we set to work. We did not just consult among ourselves. We consulted widely at the beginning of our labours—labours which were charged to us by the Home Secretary, who found that Section 16(2)(a) of the Theft Act simply would not work; and the Appeal Committee of this House said so on more than one occasion—and halfway through we issued a working paper indicating our provisional conclusions, and inviting the views of informed bodies and people. We received many comments, which were all considered carefully before we issued our final report.

Of course, I do not make these remarks in order to urge infallibility. I make them merely to assure your Lordships that our conclusions have not been hastily arrived at and have not been arrived at on a lack of information, but out of a desire to do that which this House and any Legislature would obviously want to achieve. I make them because, having regard to the status of the Committee and the sincerity and indefatigability of their labours, they are entitled to receive from your Lordships a most careful and respectful scrutiny of their work. It follows without saying that I am convinced that it will receive just that, and nothing less than that.

May I now pay tribute to the noble Lord, Lord Wigoder, in his efforts to produce draft clauses amending those of the Government's Bill, though in due course I shall invite your Lordships to reject both of them. He has commendably sought to make the Bill simpler but, as I think the noble Baroness, Lady Elles, said last time, apparent simplicity can be bought at too great a price and brevity is not synonymous with clarity. Nothing could be shorter, for example, than Section 16(2)(a) of the Theft Act. That is the reason why we are here today. It is an extremely short provision. When the case of Turner was before this House in 1974, the noble and learned Lord, Lord Reid, concluded his striking opinion with words which I can quote verbatim should your Lordships desire me so to do. He said that he had no doubt that clarification of the subsection would require and demand considerable expansion, but expansion was desirable in order that clarification could be achieved. If this clause is complicated in some measure, it is because it has to be if its objects are to be attained. But that it lacks intelligibility, I strongly deny.

What are the objects that it is seeking to attain? On the one hand, it is to render criminal that behaviour which all sensible people think should come within the criminal law; and, on the other hand, to avoid making criminal those minor peccadilloes which, while they may be regrettable, do not really harm the public weal substantially. In other words, what we are after is to establish a clear frontier between conduct which ought to be made criminal and conduct which ought not. The frontier which the noble Lord, Lord Wigoder, has drawn—I say this most respectfully, such is my regard for him—would leave wide areas of disputed territory. In my submission, the Bill as it stands, and this clause as it stands, would make disputes far less likely.

As regards the clauses, it is right that sensible people should expect to be protected against three kinds of dishonesty. The first is getting something for nothing by lying, knowing that what has been obtained ought to be paid for. That is what Clause 1 is about. The second type of dishonest conduct is, having incurred a debt, getting rid of it by lying. That is Clause 2. The third is bilking; that is to say, dishonestly making off without paying. That is dealt with in Clause 3 which, fortunately, need not detain the House this afternoon. I can assure your Lordships that in dealing with those three matters, our constant aim has been to produce something which is intelligible to those who have to apply the law, and if, unhappily, the Committee have failed it can certainly not be for want of trying. My strong suspicion is that they have achieved what they set out to do.

As regards Clause 1, the attack by the noble Lord is of two types; first, on the negative side and, secondly, on the positive side. The negative side is this. He says that the clause really will not do; it is much too complicated. He does not say that it makes criminal that which ought not to be made criminal, nor does he complain that we have failed to have criminal that which ought to be made criminal. As I understand it, his attack is devoted solely to the drafting of the clause and, persuasive as the noble Lord always is, he has urged that judges, and particularly inexperienced judges and recorders, would have difficulty in directing a jury on a charge laid under the clause. He did it today and he has to my edification—and I hope he will allow me to say, my amusement—done it before.

The exercise is this. He looks at every ingredient in the clause as drafted and says, "This has to be explained to the jury, that has to be explained", and so on. I hope he will allow me to say that I feel he has been a little naughty, and I say that for this reason. No summing-up is, or ought to be, a survey of the whole of the criminal law. It is a survey of so much of the criminal law as is pertinent to the facts of the case being tried. For example, on a charge under Clause 1, not all of the clause has to be explained in every case, as the noble Lord would have your Lordships believe. Parts of it may be wholly irrelevant to the facts, and accordingly need not be referred to. But that does not mean that Clause 1 could be shortened, because what is not relevant in one case may be vital in another.

I know that we are pressed for time, but I attach so much importance to this that I ask your Lordships to bear with me while I examine some of the ingredients of the clause. The first is that there has to be a "relevant deception". That is defined as one going to the prospect of payment being made. That is surely not likely to baffle any jury. The only question is: was the nature of the lie such that the victim was thereby encouraged to think that he would be paid? The second requirement is that the deception has to induce the victim "to act on any person's promise of payment". In the ordinary case, the accused has asked for something to be done on a commercial basis and will therefore be treated as having promised to pay. So there is a provision in subsection (3)(b) of the clause that a promise to pay may be implied from conduct. Of course it may; we all know that. We act upon it in our daily lives.

For example, let us take the deception involved in giving a worthless cheque. It might be argued by some clever lawyers that giving a cheque is not a mere promise of payment but is a payment in fact, although by means of a worthless cheque. In order to stop that nonsense there is the provision in subsection (3)(c) that it is to be regarded as a promise of payment. However, we do not need to speak about the law relating to cheques in a case under Clause 1 which does not involve cheques. We deal with the particular facts and refer to as much of Clause 1 as has a bearing on those facts.

Subsection (2) of the clause may look complicated, but in many cases it will have no bearing on the particular facts. It is there only to avoid an argument about the boundary between a Clause 1 offence and the common law offence of making an attempt. Subsection (4) makes it clear that, if all that has happened is that the victim has entered into an agreement to pay, the only charge possible against him would be that of an attempt to commit a Clause 1 offence. Subsection (5) is unlikely to trouble a jury: it simply marks the boundary between Clause 1 and Clause 2 offences.

The only other matter that I ought to deal with on Clause 1 relates to the noble Lord's negative attack upon the Government clause. It arises from the use in subsection (3)(a) of the words that an 'act' includes refraining from action". The noble Lord has found that to be a particular source of amusement. I do not. He made great play with it. It is perfectly simple. It is there to meet the case where the victim of deception has simply allowed the accused to do something which he would not have been permitted to do but for the deception he had perpetrated. However, in the general run of cases—that is, where the victim has been induced by deception to do something—the judge or the recorder has to make no reference at all to that provision. So much for the negative side of the noble Lord's attack.

Very briefly, may I come to what I call the positive side, which is that the noble Lord's clause can do the job better than Clause 1 of the Bill. The noble Lord calls his approach "obtaining services by deception". Let me make a confession. Some time ago I was seriously flirting with the idea of adopting that concept, and so were several other members of the Committee. We debated it vigorously and at length, so there is nothing novel about the approach adopted by the noble Lord.

Indeed, so anxious were we to get the right solution to this matter that in our working paper, issued in 1974, we raised expressly the question: whether it is possible to devise an offence dealing directly with obtaining services in the same way as Section 15 of the Theft Act deals with obtaining property". As I told your Lordships, some of us then thought that that approach was at least promising. However, we found—and we were helped in our findings by the reports we received—that the approach presented very great difficulties. "Services" seems to be a useful word, but it has no precise meaning. The noble Lord understandably has found it necessary to add two qualifications. In his draft he defines "services" as including the hire of property, but that is only one solution to the many problems that are inherent in the use of the word "services". The noble Lord also agrees with the Criminal Law Revision Committee that we are concerned with pecuniary loss, so the noble Lord has limited his clause to "services provided in return for payment". But there are very many other possible cases.

Time is so short that I propose to cite only one case as an illustration. If a man cheats his way into an international match by the lie that he has lost his ticket when he has never possessed one, has he obtained a service? I do not know. There is room for conjecture. He is certainly within Clause 1, on the other hand, as he ought to be. I very much doubt whether he is within the clause that the noble Lord has put forward.

Therefore the conclusion arrived at by the Committee is that the charge in all such cheating cases should be that the victim was induced to act on the promise of the accused that payment would be made, whereas the noble Lord's clause requires it to be shown that the accused, acting with a view to gain for himself or another or with intent to cause loss to another [dishonestly] obtains any services". I am bound to say, and the noble Lord must bear with me when I say it, that I find that provision to be very confusing. Does it mean, for example, that the gain must be some gain other than the gain of the services? I do not know. All I submit is that surely the clause drafted by the Criminal Law Revision Committee is superior.

The remaining subsections were evolved during detailed discussion of the basic provision contained in subsection (1). They constitute attempts, after considerable thought, to provide answers to such questions as may well arise when Clause 1 is applied in practice. I submit to your Lordships that, despite the persuasive argument of the noble Lord, the Committee which I had the honour to chair arrived at a useful and workmanlike draft and it should receive the approval of this House.

3.57 p.m.

Viscount DILHORNE

My Lords, I have listened with the greatest interest to the speech of my noble and learned friend Lord Edmund-Davies. It was indeed a powerful defence of the clause as it stands. I should like to congratulate the noble Lord, Lord Wigoder, on a valiant attempt to make the language of this clause simpler and more easily understood—one is often tempted to do that when one sees the efforts of Parliamentary draftsmen—but I agree with my noble and learned friend that the drafting is not satisfactory.

The noble Lord, Lord Wigoder, said that his intention was to cover the same field as Clause 1 has as its objective. I believe that on previous occasions the noble Lord made reference to the "grey area" and to the difficulty of drawing the line or showing where the frontier should be. I suppose that I must admit some responsibility for this House being troubled with the Bill today. In 1968—or was it 1967?—when a Theft Bill came before the House I made a speech inviting the House to reject the predecessor of the contents of the present Bill.

My noble and learned friend Lord Edmund-Davies says that there is nothing shorter than Section 16(2)(a) of the present Theft Act, but in its original form it was, I think, shorter still. One of the main reasons for my criticism of the former Bill as it stood was that it was far too wide in scope: it brought within its ambit acts which people would not ordinarily regard as criminal and made them criminal. I had powerful support from my noble and learned friend Lord Wilberforce, who with great earnestness invited the Committee to reject that provision. I also had support in a powerful speech from the late Lord Chorley—with whom I must admit I did not always agree—with the result that, on a Division, that particular provision was taken out of the Bill. Section 16(2)(a) was the then Government's replacement for it. But that 16(2)(a) has not worked satisfactorily. I think it was my noble and learned friend Lord Edmund-Davies who called it a judicial nightmare. In place of those four lines we have a long, or longish, Bill. I make no criticism of that.

However, as I see it, the real difficulty which lies behind all this legislation is the drawing of a clear frontier between the limits of the criminal law and the operation of the civil law. That is where I parted company with the original draft and that is where I part company with the noble Lord, Lord Wigoder, because I do not think that his clause produces a clear frontier. Therefore, should it be put to a vote, I would not find it possible to support his clause. But I am in difficulty about supporting Clause 1 in the form in which it now stands.

I fully appreciate the hard work done by the members of the very distinguished Committee. I have no doubt that they worked very hard and, as the 8th Report of that Committee shows, they had the same difficulty in deciding where the frontier should be drawn between what should be criminal and what should be civil. It is very difficult indeed to draw a clear frontier in that regard and I am not happy about the wording of Clause 1. Although my noble and learned friend Lord Edmund-Davies has said that the clause has eliminated wide areas of disputed territory, and that it renders criminal what people think should be criminal and excludes minor peccadilloes, I am inclined to doubt whether that is the case. If I were satisfied that it was, I should be much happier about Clause 1.

Let me take the case of someone who wants the milkman to deliver a bottle of milk and promises to pay for it, having at the time no money and knowing full well his inability to pay. That will be inducing a course of action on the part of the milkman if he acts on it. It will be dishonest and it will be deception, will it not? It will be telling lies, and it seems to me that the essence of the offence created by Clause 1 is inducing another person to act for money by telling him lies. I do not know what the answer is, but I would have thought that, if the milkman was induced by a promise of payment which was false, was made dishonestly and was a lying promise, the offence under Clause 1 was committed. If anything was a minor peccadillo I should have thought that that would have been. But, as I can see, it is not a minor peccadillo which is excluded from the operation of Clause 1. That is why I am worried about the scope of that clause.

It is obvious that on this eminent Committee on which my noble and learned friend sat one had a distinguished array of criminal lawyers and criminal experts. With the greatest respect to them, I am not sure that a body so constituted is the best sort of body to determine where criminal law should end and civil responsibility begin. It is because I feel very grave doubts as to whether this provision goes too far and draws the frontier too wide that, if the matter conies to a Division, I should not feel disposed to support the Government.

So, at this very late hour, I would ask the Government—after all, there cannot be much urgency about this, for we have had this position since 1968—to have a further look at it to see if a clearer delineation of the frontier can be made and to see if it can be so drawn that there is no possibility of including those minor peccadilloes which none of us would wish to have regarded as criminal. As it stands, I think that a prosecution could be brought for such a peccadillo and that persons whom we should not want to see subjected to the sanctions of the criminal law would be exposed to it. That is all I have to say on this difficult matter. I agree with a great deal of what my noble and learned friend Lord Edmund-Davies has said, but I still have great fears about the scope of this particular clause.

4.7 p.m.

Lord MORRIS of BORTH-Y-GEST

My Lords, on more than one occasion in your Lordships' House I have ventured to express the hope that in any legislation, but more particularly in any enactment relating to the criminal law and defining criminal offences, we should attain both clarity and brevity to the greatest extent possible. Therefore when I have listened, as I have with pleasure, to the powerful plea of the noble Lord, Lord Wigoder, at once I find a response in my heart. But I think on this occasion it is really important that we should have in mind all that the noble and learned Lord, Lord Edmund-Davies, has so eloquently and clearly told us about the deliberations of this Committee. We remember that there were three lines of Section 16(2)(a) which gave rise to a great deal of difficulty in the courts. I think everyone has agreed that the noble Lord, Lord Carr of Hadley, then Home Secretary, acted very wisely when he suggested that this problem should be looked into. I think he could not have chosen better than to refer the problem to the expert Home Office Committee. That was as far back as 1972.

It is true that since then there have been one or two cases in your Lordships' House, particularly the case of Turner, which perhaps clarified the law considerably; but the Committee continued with their patient work, in 1974 issued a working paper and finally came to their conclusions. I do not think the general policy decided upon by the Committee is being dissented from. Then they not only drafted their report but they had Parliamentary Counsel draft a Bill which could be attached to their report.

That was 1977, a year ago; and now this Bill comes before your Lordships. With that history I think one must be a little predisposed to feel, "The experts have looked into this and they have done their best; we had better accept what they have decided". I do not suggest for one moment, despite all these considerations, that we are absolved from our duty only to pass this Bill if we approve of it and our duty to improve the wording if we can. But I do suggest that it is right to have regard to the deliberations of the Committee before we can feel confident that any improvements are being made.

So, I have every general sympathy with the noble Lord, Lord Wigoder. Indeed, last year, when the Criminal Law Bill was before your Lordships' House, he and I saw eye-to-eye on one or two points when we were urging greater clarity and simplicity. That was a very long Bill. I remember there was one subsection which bewildered some of us very much. I moved an Amendment to delete that subsection, and after we had deployed our arguments I think it was the Lord Chancellor himself who said in effect that the Government saw the force of our criticism and agreed to the deletion of that subsection.

But, are we at all satisfied that the drafting suggested by the noble Lord, Lord Wigoder, would be an improvement upon the drafting suggested by Parliamentary Counsel, the drafting thereafter approved by the Committee? I think it is a pity to upset the symmetry of the present Bill with its splendid division into deception as to prospect of payment, obtaining relief from liability by deception, and making off without payment. No question arises today in regard to that third division.

The noble Lord's Amendment speaks about "obtaining services". Quite what does that mean? Are we sure that if we adopted the thought of obtaining services we would be enacting something readily understood and abundantly clear? Supposing one pays a subscription to belong to a library and supposing it is some time before one uses the library. Have you obtained a service? You may have obtained a right to a service, but have you obtained a service? I do not know; it might have to be decided.

Supposing you pay a subscription to belong to a club, say, a well-known cricket club, and you pay a cheque in January. You do not intend to make any use of the club until perhaps a day in May at the earliest. Have you, when you paid your cheque, obtained a service? You may have obtained a right to a service. Supposing you go to a railway station and pay £6—if you are entitled to the concession—to obtain a senior citizen's rail card, and it is some weeks before you wish to travel. What have you got? You have got a right to go later to the booking office, present the card and get a ticket on concessionary terms. You do not oblige yourself to take a ticket, but when you pay your £6—if I am right in thinking the sum is £6—have you obtained a service? You may have obtained a right to a service. These perplexities could be multiplied. I do not think we would be wise to accept this Amendment.

4.15 p.m.

Lord HALE

My Lords, I am naturally reluctant to intervene after three such distinguished Law Lords have spoken, with great clarity and at great length, but by no means with unanimity. I raised this matter in Committee and I said that I would refer to it again; I did indeed withhold some points at that time. The House seems to have taken the view that one really has to make some reference to both of the Amendments of the noble Lord, Lord Wigoder, in order to get a comprehensive picture, and the discussion has proceeded with the tacit acquiesence of the House on that.

I think one should say—the noble Baroness, Lady Elles, has already mentioned it—that the noble and learned Lord, Lord Hailsham, a former Lord Chancellor and a lawyer of great distinction, said that he found the clauses incomprehensible. I have therefore tried to find out what has happened since. I think it is rather a pity that we are considering the Bill on Report stage before most of the law papers have come out with any comments upon the Bill as drafted and the Amendments, with the exception of The Criminal Law, in which there is a comment by the editor and an article by Professor Glanville Williams. The noble and learned Lord, Lord Edmund-Davies, made a special reference to Professor Glanville Williams, who indeed did dissent. Reading his dissent, he uses three lines to pay tribute, to say: "This is a good reform and I signed this whole report because I think it is a good reform". Then he refers to these two clauses as the ones he disagrees with, and he gives considerable reason. The reason that is constantly given, in all the observations, is doubt.

I intimated before Committee stage that I agreed with the first two Amendments proposed by Lord Wigoder. In the course of the debate I expressed a little concern about the second one. The noble and learned Viscount, Lord Dilhorn, has expressed precisely that concern, as I understand what he said, with his usual clarity, but perhaps rather more than his usual diffidence because he did not do more than make a passing reference. He said he was afraid that the second Amendment of Lord Wigoder breached, not what you might call an iron curtain, but the very firm line which should distinguish the civil from the criminal law. If we look back we find members of the Criminal Law Revision Committee canvassing views on this general question, and saying that in no circumstances must debt qua debt be made an offence or be transmuted into an offence, except by a specific act of deception.

I think that I am putting the situation quite fairly. It is really a question of how far people get into debt. Of course, it is only poor people who have to get into debt, because if someone is fairly well off he can go bankrupt and get a complete absolution from all his liabilities subject, of course, to handing over what property is available for distribution. It was only a day or two ago, when discussing another Bill, that we heard that the smaller debtor is increasingly helping to fill our already overcrowded prisons in an effort—and at exhorbitant expense—to extract small sums from obstinate recalcitrants.

The noble and learned Lord, Lord Edmund-Davies, referred to the very distinguished criminal lawyer, Lord Justice Lawton, now the chairman of this Committee in succession to the noble and learned Lord, Lord Edmund-Davies. By quoting one of his decisions I hope, with the most humble respect, that I can express approval of every word he said. The case to which I wish to refer is the most recent one on theft that I have been able to find. The case is reported briefly in the Law Society's Gazette and it was heard on 16th January. In those circumstances, probably there is no other report of the case than the one which I have. The facts were as follows: The defendant entered a parked car without its owner's consent and was examining its contents when he was arrested. He was charged with the attempted theft of inter alia a spirometer and a clothes-airer which were in the car. It was submitted by the defence that at the time of the defendant's arrest he was looking at the property in the car to see whether there was anything worth stealing". He had not made up his mind. He was thinking it over and wondering whether the articles were worth stealing. I should imagine that a spirometer is not very readily saleable. However, he was charged with stealing those two articles and others. He said that in the circumstances he could not be guilty. The trial judge did not direct the jury that the absence of the intention to steal the specified items was a defence to the charge and the defendant was convicted.

The Court of Appeal felt itself constrained—and undoubtedly it was constrained—by the law as it exists. I do not make any criticism of the Court of Appeal at all—that is the law. The case must be put to a jury. Indeed, it is not only the law but one of the bulwarks of our liberties that the case must be fairly and properly put to a jury. That is where the failure lay. The failure also lay in the possibility that the prosecution did not bring the right charge. Indeed, the noble Earl, Lord Mansfield, took part in a discussion on the question of whether under this Act "attempt to steal" was an offence at all. I was hoping that he would develop that point.

In any event we reach the following situation. The man has to be acquitted by the Court of Appeal because the prosecutors and those concerned at the court of first instance did not really understand the law as regards "attempt to steal" or with what the man could be charged if he had not actually committed what we used to call, conveniently, a tortious asportation.

It is extremely worrying. Among the ignorant people—I say "ignorant", but they are probably much better informed than I on most other matters—who do not profess to understand the law, there is real concern that the milk bottle lady may have committed an offence. No one has gone into the details because it is a very small matter, but her husband may have deceived her and said, "I have not been to work today because there is a one-day strike", or something like that, when he really went to the races. I see that the noble Lord is making favourable gestures and I greatly appreciate it. I rather suspect that he will say that in those circumstances she should not be convicted. I do not doubt that that is true. However, she would be prosecuted. People do not like being prosecuted for theft, even if they go home after having been acquitted.

That is all I wish to say. I hope that the House will forgive me for straying just a little outside the bounds of this discussion. I had to speak at this stage because under the rules of the Report stage I cannot speak after the Minister, and one well appreciates the reasons for that. If the situation were otherwise, I would not have intervened after so many learned speeches had already been made. As at present I would support the first new clause of the noble Lord, Lord Wigoder. However, I have hesitations about the second one. I do not think that anything else on the Marshalled List is likely to give us any trouble.

4.26 p.m.

Lord AIREDALE

My Lords, if the Government are disposed to accept the advice of the noble and learned Viscount, Lord Dilhorne, and have another look at Clause 1, will they also have another look at subsection (1), which uses a device of which the draftsmen are very fond?—they coin a phrase and then proceed to define it. Subsection (1) coins the phrase "relevant deception" and then proceeds to define it. That is a very useful device when a phrase is used constantly throughout a Bill and then is defined in the interpretation clause at the end, because it saves words in the Bill. However, so far as I can see, the expression "relevant deception" appears only in Clause 1(1) and nowhere else. It seems to me to serve no useful purpose at all to proceed by coining this phrase and then defining it—it merely adds to the words in the Bill. Would it not be much simpler and more straightforward to say what we mean and forget the device of coining a phrase and then proceeding to define it?

4.27 p.m.

The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)

My Lords, let me begin by saying that I listened to the noble Lord, Lord Wigoder, as regards one point at least, with some disappointment; namely, to his suggestion at the beginning of his speech that the fact that we had a crowded House this afternoon had something to do with an issue which was coming before the House later. Until that moment it had seemed to me that the House had very properly come here in very large numbers today in order to hear the noble Lord and myself discuss this issue for the third time within a relatively few weeks. Certainly we have gone over this ground once again today. There is no complaint about that. It is right that we should on this occasion at least try to get the matter right, all the more so for the reason given by the noble and learned Viscount, Lord Dilhorne, that we did not do a particularly good job on the last occasion this matter was before the House.

Certainly, in the period between the Committee stage of the Bill and today, we have studied with great care the noble Lord's Amendment which he has again tabled. However, after the fullest consideration and consultation with the former chairman of the Criminal Law Revision Committee, the noble and learned Lord, Lord Edmund-Davies, I can only reiterate that our view is that the clause should pass in its existing form. The noble and learned Lord, Lord Edmund-Davies, in an extremely powerful and persuasive speech, has himself, I think, drawn attention to a number of very substantial defects in the Amendment which has been put before us by the noble Lord, Lord Wigoder.

Although I have the greatest sympathy for the noble Lord's desire for greater simplicity, I can only say that the Criminal Law Revision Committee—as the noble and learned Lord has reminded us, a particularly distinguished body whose members have a unique expertise in these matters—which considered this matter with the greatest care, reached the conclusion, only after a long process of consultation, that the idea of framing a clause on the basis of the use of the term "services", was unacceptable. The term would not serve the purpose without definition, and even if some such word as "facility" were to be added—something that I understand the Criminal Law Revision Committee in fact considered at one stage—it would be impracticable in our view to draft a satisfactory clause. Any definition aimed at bringing within the offence all the circumstances which are loosely described as "obtaining services" would be wide and, I think, uncertain in scope. It seems to us that there are considerable dangers, in so complex a field of law, in adopting Amendments which would have uncertain effect.

I must remind your Lordships that the whole object of the Bill before the House is to remove the deficiencies and unintended effects of the existing law. Indeed, that is why the Criminal Law Revision Committee was asked to look into this matter on the first occasion by the noble Lord, Lord Carr of Hadley. Although I do not for one moment want to detract from the efforts of the noble Lord, Lord Wigoder, to improve on the Committee's version, I must reiterate that he is not presenting us with any new scheme which the Criminal Law Revision Committee has not fully considered. Nor, inevitably, can the noble Lord give an assurance that his scheme would command full support elsewhere.

I would point out that, although, as the noble Lord, Lord Wigoder, has said in presenting the new clause, it was worked out by the Criminal Bar Association, the fact is that, in a memorandum of last June to the Home Office, the Law Society expressed the view that the Criminal Law Revision Committee's clause succeeded in achieving its objectives—though they did, in fact, propose some minor modifications—and the Justices' Clerks' Society also expressed their support for that Committee's proposals.

On the detailed criticisms which the noble Lord, Lord Wigoder, has put before us affecting Clause 1 of the Bill, I must support the views expressed by the noble and learned Lord, Lord Edmund-Davies. I certainly appreciate and accept at once that the clause is not simple—I should not for a moment suggest that it was—but, as the noble Baroness, Lady Elles, said in Committee, the very fact that a provision in a Bill looks clear may in itself be something of a trap. If I may say so, I rather agree with that view. As regards the problem which has been emphasised by the noble Lord, Lord Wigoder, of explaining to a jury all the ingredients of the clause, as the noble and learned Lord, Lord Edmund-Davies, has said, only relevant ingredients would have to be explained in the circumstances of any particular case.

There is one point which was made by my noble friend Lord Hale on which I should like briefly to comment. He referred to the position of those who dissented from the views of their colleagues on the Criminal Law Revision Committee. He referred to the expressed dissent of Professor Glanville Williams. But, of course, his dissent was not to Clause 1—which is what we are discussing at the moment—but to Clause 2, which is a matter that we can come to in a moment.

In short, I cannot commend the Amendment of the noble Lord, Lord Wigoder, to the House. At this stage, I think it would be right to make some reference to the speech of the noble and learned Viscount, Lord Dilhorne, who certainly emphasised his dissatisfaction with the Amendment before us, and understood the motives which, indeed, underlie the Bill. However, with the greatest respect to the noble and learned Viscount, I must doubt whether the suggestion that he put before the House does, in fact, get us very far. As has been pointed out on a number of occasions, the Bill has been designed by the Criminal Law Revision Committee, which has special expertise on this matter and which has consulted widely—far more widely on this occasion than on other occasions. Further, the Committee has kept in close touch with the Law Commission which, as the House will be aware, is undertaking a wider review of the law on conspiracy to cheat and defraud, which in due course will provide the opportunity for a further look at deception offences. However, inevitably this review will take some time to complete. Meanwhile, the Law Commission is content that this Bill should be introduced as an urgent measure in advance of the outcome of its own review.

I hope your Lordships will agree—as I think does the noble and learned Viscount himself—that the replacement of this section of the Theft Act is an important matter. In view of that, the proposal of the noble and learned Viscount for a period of further delay would in our view not be justified, and the Government see no point in a further reference to a law reform body on this limited aspect of the law on fraud, important though it certainly is.

I think that I have expressed as best I can our attitude both to Clause 1 and to the Amendment in the name of the noble Lord, Lord Wigoder. In our view this Amendment would in no way improve the Bill. It would inject still further uncertainty into a matter where the law is at the moment unsatisfactory. On this occasion I think that we should try to achieve some greater clarity in the law. I believe that Clause 1 achieves that far more satisfactorily than does the Amendment.

4.35 p.m.

Lord WIGODER

My Lords, I am second to none in my admiration, both personal and professional, for the individual members of the Criminal Law Revision Committee and for its work as a body. It is with the greatest possible diffidence that in those circumstances I still venture to put forward the view that there is merit in the Amendment. Your Lordships' House is a revising Chamber. If that means anything, it means that your Lordships have the obligation to look at proposals from whatever body they come—from however highly reputable a source they come—in order to see whether they can in some way be improved. I am sure that the noble and learned Lord, Lord Edmund-Davies, would not want to contend that simply because something was produced in your Lordships' House—the product of the most careful consideration outside it—it should therefore be passed, without very careful consideration.

The point has been made by the noble and learned Lord, Lord Edmund-Davies, in his most careful and helpful observations that Clause 1 of the Government's Bill, complicated though it sounds on the face of it, may in fact not be complicated in individual cases because it may not be necessary for the trial judge to refer to all the necessary ingredients of the offence set out in the clause. With great respect to the noble and learned Lord, life at the Crown Court is not like that. These are offences which, on the whole, are not likely to be offences of very great gravity—most offences of great gravity in this area will be covered under other sections; they are offences that may be tried by somewhat inexperienced recorders or rather junior circuit judges. All judges at every level know perfectly well that the one way to be absolutely safe if the case is ever appealed to the Court of Appeal (Criminal Division) is to sum up every conceivable ingredient of the offence exactly as it is set out in the Statute.

I have not the slightest doubt that the result of passing Clause 1 in its present form will be a series of bewildered juries who will have read to them a series of propositions as set out in the clause which they will find themselves quite unable to understand. Indeed, the result will be rather more appeals to the Appellate Committee of your Lordships' House under the new clause as drafted by the Government than took place under the previous ill-fated Section 16.

The second objection that was raised to the amended clause was the use of the word "services". It was said that no precise meaning is attached to it. I find it difficult to understand how that can be put forward as a valid objection because the Government's Bill, in Clause 3, which has been accepted by your Lordships' House so far without amendment, refers specifically to "service" which has been done in subsection (1) and "service" which has been provided in subsection (2). I can see no reason why there should be any more difficulty in dealing with services under the proposed new clause than under the Government's draft Bill. Whether something is a service I should have thought was essentially a matter of fact for the common sense of the jury to determine.

Thirdly, one or two suggested problems have been raised, and it has been asked how they would be resolved under the Government's clause and under the proposed new clause. I think it was the noble and learned Lord, Lord Edmund-Davies, who mentioned the man who cheated his way into an international match by saying at the turnstile that he had lost his ticket. As I understood the noble and learned Lord, he was saying that that might be, manifestly dishonest as it is, an offence under his draft but not an offence under my draft. May I respectfully suggest that, if anything, it is the other way round. If anything, if obtaining admission to a football match is to be regarded by the jury as a service, it would come under the definition of obtaining services by deception in the proposed new Clause 1. But if the man had simply got in by saying that he had lost his ticket, he would not have made any promise of payment and therefore there would be no offence under the draft proposed in the Government's Bill.

The noble and learned Lord, Lord Morris of Borth-y-Gest, raised the question of the cricket club, of which we both have the honour to be members, and the person who paid his subscription by a dud cheque in January when the season did not start until April. I should have thought that in that situation he had not obtained any services by deception at that stage under my proposed draft, and equally he would not have been guilty of any offence under the Government's draft because he had not, at that stage, dishonestly induced anybody else to act. The

action would not take place until he was admitted when the season began.

One can go on dealing with these hypothetical cases indefinitely. I accept that the position is never going to be entirely clear. I accept that under either of these drafts the courts may well be troubled in future on several occasions. I would submit that it will be on many fewer occasions under the amended clause than under the clause as it stands. The noble and learned Viscount, Lord Dilhorne, was clearly unhappy both with the clause as it stands and with the proposed Amendment. In that situation there is much to be said for replacing the Government's clause at this stage. I say that for this reason. This is a Bill which, fortunately, has started in your Lordships' House. It still has to go through the other place in all its stages. If the proposed new clause is in any way unsatisfactory, it is susceptible to amendment and it will be amended en route. If, on the other hand, we abandon this issue today and leave the Government's clause as it stands, then I think it is highly probable that what is basically an unsatisfactory and complicated piece of legislation will find itself in due course on the Statute Book, to the great detriment of all of us. In those circumstances, with considerable diffidence, I beg to commend this Amendment.

4.44 p.m.

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

Their Lordships divided: Contents, 98: Not-Contents, 66.

CONTENTS
Adeane, L.	Cottesloe, L.	Glenarthur, L.
Ailesbury, M.	Croft, L.	Glenkinglas, L.
Airedale, L. [Teller.]	Cromartie, E.	Gray, L.
Alexander of Tunis, E.	Cullen of Ashbourne, L.	Hale, L.
Alport, L.	Daventry, V.	Hampton, L.
Arran, E.	Denham, L.	Inglewood, L.
Atholl, D.	Derwent, L.	Killearn, L.
Auckland, L.	Dowding, L.	Kilmarnock, L.
Banks, L.	Drumalbyn, L.	Kinloss, Ly.
Barrington, V.	Durham, Bp.	Kinross, L.
Belstead, L.	Ebbisham, L.	Liverpool, E.
Berkeley, B.	Effingham, E.	Long, V.
Bradford, E.	Ellenborough, L.	Loudoun, C.
Bridgeman, V.	Elles, B.	Lucas of Chilworth, L.
Brockway, L.	Elliot of Harwood, B.	Lyell, L.
Byers, L.	Emmet of Amberley, B.	Mackie of Benshie, L.
Cairns, E.	Exeter, M.	McNair, L.
Campbell of Croy, L.	Ferrers, E.	Mancroft, L.
Cathcart, E.	Ferrier, L.	Massereene and Ferrard, V.
Chitnis, L.	Fraser of Kilmorack, L.	Monck, V.
Clifford of Chudleigh, L.	Gage, V.	Monckton of Brenchley, V.
Cork and Orrery, E.	Glasgow, E.	Montagu of Beaulieu, L.
Mountgarret, V.	Sackville, L.	Trenchard, V.
Mowbray and Stourton, L.	Sandford, L.	Truro, Bp.
Netherthorpe, L.	Sandys, L.	Tweeddale, M.
Norwich, V.	Selkirk, E.	Vaux of Harrowden, L.
Nugent of Guildford, L.	Spens, L.	Vivian, L.
Nunburnholme, L.	Stamp, L.	Wade, L.
O'Hagan, L.	Strathclyde, L.	Ward of North Tyneside, B.
Porritt, L.	Strathspey, L.	Westbury, L.
Reading, M.	Tenby, V.	Wigoder, L. [Teller.]
Rochester, Bp.	Teviot, L.	Windlesham, L.
Romney, E.	Trefgarne, L.
NOT-CONTENTS
Allen of Abbeydale, L.	Henderson, L.	Russell of Liverpool, L.
Ampthill, L.	Houghton of Sowerby, L.	St. Davids, V.
Ardwick, L.	Hylton-Foster, B.	Segal, L.
Aylestone, L.	Jacobson, L.	Shepherd, L.
Birk, B.	Listowel, E.	Shinwell, L.
Boston of Faversham, L.	Llewelyn-Davies of Hastoe, B.	Simon of Glaisdale, L.
Bourne, L.	Lloyd of Hampstead, L.	Sligo, M.
Bruce of Donington, L.	Longford, E.	Snow, L.
Castle, L.	Merrivale, L.	Somers, L.
Champion, L.	Morris of Borth-y-Gest, L.	Soper, L.
Clancarty, E.	Murray of Gravesend, L.	Stedman, B.
Clwyd, L.	Noel-Baker, L.	Stone, L.
Cooper of Stockton Heath, L.	Noel-Buxton, L.	Strabolgi, L.
Douglas of Barloch, L.	Onslow, E.	Thomson of Monifieth, L.
Edmund-Davies, L.	Oram, L. [Teller.]	Wallace of Coslany, L.
Eldon, L.	Peart, L. (L. Privy Seal.)	Wells-Pestell, L. [Teller.]
Gaitskell, B.	Peddie, L.	White, B.
Garner, L.	Phillips, B.	Willis, L.
Gordon-Walker, L.	Ponsonby of Shulbrede, L.	Wilson of High Wray, L.
Halsbury, E.	Rathcreedan, L.	Winterbottom, L.
Hamworth, V.	Ritchie-Calder, L.	Wootton of Abinger, B.
Harris of Greenwich, L.	Roberthall, L.	Wynne-Jones, L,

Resolved in the affirmative, and Amendment agreed to accordingly.

4.54 p.m.

Lord WIGODER moved Amendment No. 2: Leave out Clause 2, and insert the following new clause:

Evasion of liability by deception

(" 2.—(1) A person who by any deception—

1. (a) dishonestly evades whether in whole or in part payment of any debt or charge for which he or another is or may be come liable; or
2. (b) dishonestly obtains the reduction or deferment of any debt or charge for which he or another is or may become liable,

shall be guilty of an offence.

(2) For purposes of this section—

1. (a) "obtains" includes obtaining for another or enabling another to obtain;
2. (b) "debt" or "charge" means a legally enforceable debt or charge.")

The noble Lord said: My Lords, I hope that this Amendment will not take as much time as the previous one; it may not be quite so controversial, although again I believe the case is primarily that the new proposed Clause 2 is very much clearer and simpler than the Clause 2 in the Bill. The existing clause as drafted marks a departure from existing law because it introduces for the first time, in subsection (1)(b), the necessity for an intent to make permanent default where there is a dishonest inducing of a creditor to wait for or forgo payment.

The previous position has been that in the case of Turner it was decided there was no necessity for such intent to make permanent default, and I suggest it is an undesirable provision to incorporate into the clause for two reasons. The first is because it has no logical basis; it is in ordinary experience a criminal offence, or should be so, dishonestly to get a credit or to forgo payment. Secondly, it is undesirable that it should be written into the clause in the way it is because, as the Criminal Law Revision Committee admitted, it will be impossible to prove in practically every case. To write into a Bill words which one knows in advance will make a clause wholly inoperative is not a very helpful way to set about legislation.

Clause 2 in the Government's Bill appears to contain a number of real difficulties of interpretation. The first is that under subsection (1)(a) it is an offence dishonestly to secure the remission of a liability to make payment. Under subsection (1)(b) as it stands it is an offence dishonestly to induce a creditor to forgo payment, yet under subsection (l)(b) there must be an intent to make permanent default, whereas under subsection (1)(a) there is no need for there to be any intent to make permanent default.

I raised the question in Committee as to what in common sense was the difference between securing the remission of a liability and inducing a creditor to forgo payment. The noble Lord, Lord Harris of Greenwich, was kind enough to say he would write to me, and he has done so, and I have obtained his approval to cite a passage from his letter. He gives as an example of subsection (1)(a) in the Government's Bill this situation: A orders goods from B and they are sent to him by post together with an invoice. A sells the goods, gambles away the money and then discovers he cannot pay B. B then sends A another invoice demanding payment, to which A replies that the goods were never delivered and he had had to obtain similar goods elsewhere. B accepts the truth of this story and writes to A apologising for troubling him with the bill". Here, says the noble Lord, A, by his deception, has dishonestly secured the remission of his liability to pay for the goods. So he has, but has he not equally in ordinary English language under Clause 2(1)(b) induced his creditor to forgo payment?

Another example which the noble Lord gives is intended to make the distinction the other way, though it is perhaps a somewhat farfetched one, as the noble Lord appreciates: X owes Y £100 and Y is pressing for payment. X sends Y a letter purporting to come from the new tenant of the flat where X has lived informing Y that X was killed recently in a motor accident. Y accepts the truth of this and makes no further attempt to enforce the debt". Here, says the noble Lord, the creditor has been dishonestly induced to forgo payment. So he has, but equally in ordinary English language, has not the debtor under Clause 2(1)(a) dishonestly secured the remission of his liability to make the payment? I would respectfully suggest that it seems that those two paragraphs are going to give rise to very considerable difficulty, particularly when one of them contains the specific intent to make permanent default and the other does not.

I shall add, if I may, other problems which are going to arise out of the Government's Bill as drafted. Clause 2(1)(a) refers to dishonestly securing the remission of the whole or part of any existing liability …". If one looks up the word "remit" in the Oxford English Dictionary, which the noble Lord cites as his authority in the course of his letter to me, one sees that one meaning of "remit" is to postpone, put off or defer". If remission can mean postponement or deferment in subsection (1)(a), then there is at once a direct conflict between Clause 2(1)(a) and 2(1)(b), where exactly the same thing is said about inducing the creditor to wait for payment but with a different specific intent in subsection (1)(a) from that which is in subsection (1)(b).

I add one other comment about the difficulties which the courts are going to get into on Clause 2 as it is at present drafted, and that is that in subsection (1)(c) it talks about dishonestly obtaining any exemption from or abatement of liability to make a payment". I suspect that the word "abatement" is intended to be used there in the sense of meaning a lessening of a liability, a reduction of liability, to make a payment. "Abatement" is a word which has a very specific legal connotation, as in the phrase "abatement of a nuisance", where it means, of course, "putting an end to"; not reducing, but ending. If in fact dishonestly obtaining an abatement of a liability means ending a liability, then it seems to me that one is again back with the problem that, this time, it is saying exactly the same thing, in slightly different words, as Clause 2(1)(a)—dishonestly securing the remission of a liability.

With all these problems facing us, I again venture to suggest that the new Clause 2 proposed in the Amendment is simpler and avoids the difficulties. It avoids the difficulty about intent permanently to defraud, which I have already dealt with; and it contains two slight drafting improvements which follow upon helpful observations made by the noble Baroness, Lady Elles, at Committee stage. Instead of having "evasion" and "reduction" in the one sentence, it is now divided into 2(1)(a) and (2)(1)(b). A person who by deception "dishonestly evades" come under Clause 2(1)(a); a person who "dishonestly obtains" a reduction or deferment comes under Clause 2(1)(b). Then, again to meet the point made by the noble Baroness, I have added, under subsection (2)(b), the indication that 'debt' or 'charge' means a legally enforceable debt or charge". Again, as with the previous clause, I accept that no clause is going to be entirely free from difficulties in this very troublesome field, but I again venture to put forward the proposed new draft as one which is going to cause less problems than the one at present in the Bill. I beg to move.

Baroness ELLES

My Lords, I do not intend to take up the time of the House, because I think that this clause was well argued, both at Second Reading and during the Committee stage, and the noble Lord has once again put forward his case very clearly indeed. I should just like to express my gratitude to him for the fact that he has taken note of the comments that I made during the Committee stage; and I think that the way in which the Amendment is now drafted certainly meets the objections which I raised. In supporting the noble Lord in this Amendment, I must of course declare that in no way do I show any disrespect for the noble and learned Lord, Lord Edmund-Davies, and the great experts on his committee, but, since I think that all in this House are equals, we are entitled, rightly or wrongly, to have our own opinion. I therefore support the noble Lord, Lord Wigoder, in this Amendment.

Lord EDMUND-DAVIES

My Lords, I can be considerably shorter on this occasion than I was when dealing with Clause 1. It is not that I have any less conviction about this clause than I had about that one, but I invite the House to pause a very long time before accepting the Amendment—and I do that for this reason. It is disturbingly similar to Section 16(2)(a) of the Theft Act—a section which has caused havoc and great disturbance. In all basic respects it is difficult to find any valid distinction between the Amendment and that which is already, regrettably, the law of the land. Putting it as shortly as I can—but brevity must not be regarded as equivalent to casualness—I invite the House to ask itself: Are there any substantial differences between the Amendment proposed by the noble Lord and Section 16(2)(a) of the Theft Act? Unless your Lordships are convinced that it has a clarity which Section 16(2)(a) notoriously lacks, then it ought not to find acceptance. I have to say with profound respect that I submit that it lacks that clarity, and that we ought not to make a change from the section as it stands in favour of the Amendment proposed by the noble Lord, Lord Wigoder.

As to the Government's Clause 2, I want to say only this. The only words in it on which I desire to make any observations are the opening words of Clause 2(1)(b): with intent to make permanent default…". My Lords, whether you like or dislike those words is not a matter of law at all: it is a matter of your attitude towards the criminal law. It depends upon what you think ought to be made criminal. In the case of Turner, in 1974, this House decided that, if a man told a lie in relation to an existing liability, and so on, it mattered not that he was merely postponing payment and that he was telling a lie, in order to play for time because lie had the full and reasonable intention that he would be able to pay later. It was held that that was no defence. That is, I suggest and submit, a very unsatisfactory state of the law.

It was for that reason that the committee, and in turn the Government, used these words, with intent to make permanent default". In other words, if the person is stalling for time but has the intention to pay later, it would be wrong to make a criminal of him. It may be highly regrettable, and doubtless it is, for him to tell lies for that or any other purpose; but ought he, in those circumstances and granted an intention to pay later on, to be stamped as a criminal? I happen to think he ought not to be. As I have already said, he is to be condemned, but not, surely, by the criminal law, for the lies that he perpetrates.

My Lords, I cannot, with respect and despite my great desire, help the House about that matter. It is due entirely to your attitude. It has been said that it will be difficult to prove an intent to make permanent default. If there is difficulty, then the clause could not be used very greatly; but we can overdo the difficulties in applying this provision, also. Let me give a very simple and obvious example. Suppose A borrows £200 from B and does not pay it back on the due date, and suppose B instructs a solicitor to institute county court proceedings to recover the debt. The solicitor thereupon writes to the debtor, the debtor calls upon the solicitor and he says, "I am very sorry; I cannot pay for the present. I am very hard up—I have family difficulties and one thing or another—but I can pay presently. Give me two months, and I can pay". The solicitor gives him the time and holds his hand for a couple of months. Then, on inquiries, the man cannot be traced; he has vanished and left no address. Later on, he is apprehended.

My Lords, from those simple and by no means uncommon facts, would a jury not be entitled to say, "It is as clear as a pikestaff that those lies about paying in a couple of months' time were lies in order to make good his getaway, and his intent to make permanent default was an irresistible conclusion to draw from the proved facts "? I suggest, with respect, that that is the sort of inference that every day of the week juries are called upon, are invited by the judge, if they are satisfied, to draw.

I am not going to take up the time of the House at this late hour by examining every part of the Government's Bill. In my submission, the Bill ought to receive acceptance; and, for the lack of clarity and the startling and unpleasant resemblance between the Amendment proposed by the noble Lord to the existing law under Section 16(2)(a), which has been so vigorously condemned in this House and in other places, the Amendment does not serve any useful purpose and ought to be rejected.

Viscount DILHORNE

My Lords, I am sorry on this occasion to find myself in disagreement with my noble and learned friend, Lord Edmund-Davies. On this occasion, I am disposed to support the noble Lord, Lord Wigoder, if he presses his Amendment to a Division, bearing in mind from the result of the last Division that if this Amendment was carried the Bill would be a coherent whole even though open to criticism from some of my noble and learned friends.

I do not like this provision putting the burden on the prosecution to prove an intent permanently to make default. I think it will prove to be a dead letter. Let us take the very case that my noble and learned friend put, the man who tells a solicitor lies to get two months' deferment and then cannot be found at the end of the time. My noble and learned friend said that on proof of those facts the jury would be entitled to infer that he had had, at the time he made the promises, a permanent intention to default.

I venture to doubt whether it would be quite as simple as that. I would suspect that the accused who had made the promises would go into the witness box and testify on oath that at the time that he made the promises he had every expectation of a legacy or something like that; and that it was only when the legacy did not arrive that he decided to run for it—bearing in mind that it will be for the prosecution to prove that he had that intention not two months later, not one month later, but at the very time he made the promises. I believe that it will be in singularly few cases that that burden of proof will be discharged. I think that that particular provision in Clause 2 is really almost not worth the paper it is written on.

One must bear in mind that as the Bill stood—and perhaps even, I am not sure, as it now stands—you can commit an offence under Clause 1 without having any intention permanently to default. You can obtain the services—and I must use that expression now—by dishonestly promising to pay, not intending to pay when you promise to, but without any permament intention to avoid payment; and you will commit an offence. But in relation to Clause 2(b) you have to have that permanent intention. Looking at the language, it may be that this clause drafted by the noble Lord, Lord Wigoder, is similar in some respects to Section 16(2)(a) which, I think I am right in saying, was a product of the Government in 1968 on which the Government spoke as eloquently and as persuasively as did Lord Harris today. Now we know how it is described.

I am not worried about this particular Amendment looking like Section 16(2)(a). I have been contrasting it with the clause in the Bill; and apart from leaving out all references to permanent intention to default, it seems to me—although I may be wrong—to cover the same ground as the clause in the Bill and to cover it in much clearer language. That being so, while I think the objectives of the noble Lord and of those responsible for the Bill are the same, I shall on this occasion, if the matter is pressed to a Division, give my support to the noble Lord.

5.15 p.m.

Lord MORRIS of BORTH-Y-GEST

My Lords, the Amendment of the noble Lord, Lord Wigoder, after the proposition to "leave out Clause 2 and insert the following new clause", begins with the words: (1) A person who by any deception … dishonestly evades whether in whole or in part payment of any debt or charge …". The Amendment of the noble Lord, Lord Wigoder, is making a major change from the law as the Bill puts it before your Lordships.

There was the case of Turner. I happen to be a Member of your Lordships' House that decided that case; as I was of the five who decided the Ray case. What was Turner?—a man had had some work done and he owed somebody £14 and another man £24. He gave to one of them a cheque. He did it dishonestly—there was no money to meet the cheque—saying to the man, "You pay t'other the £14." Where this Amendment makes a fundamental change is this; it restores the word, "evade", which, I think I am right in saying, does not appear in the Bill as it is now before us.

Therefore, the issue that your Lordships have to decide is whether you wish the stalling debtor, who issues a dud cheque knowing that it will not be honoured, in all circumstances to be guilty of an offence because he has evaded payment. There is no doubt that in the Turner case, the issue of the cheque, the dishonest issue, because it was known it would not be met, there was evading payment. Your Lordships have so decided.

In the case of Ray—the facts of which would now be covered by Clause 3—again there is no doubt that the young man who ran out of the restaurant was evading payment. The special point that arose in Ray was whether there had been deception or not. But in Turner it was clearly laid down that if you owe some money and issue a cheque, knowing it cannot be met and so you are dishonest, you are evading payment. So, I think that your Lordships have to come to a conclusion whether you wish that to be a criminal offence.

Money is owed to a creditor, £100 is owed to a creditor, and the debtor is being pressed. He says: "I will pay in a day or two." Supposing that he has solid grounds for believing that in a week or two he will really have the resources: but he is pressed and pressed and he says to the creditor, "Well, I will give you a cheque." He is dishonest; he knows that that cheque will not be met. He has evaded payment. So that the issue before your Lordships is whether you wish to adopt the policy of the Bill—which was the policy recommended by the Committee that looked into this and said: "No, the stalling debtor ought only to be regarded as committing a criminal offence if he really is not going to pay. But to evade, that, of itself, ought not to be a criminal offence."

For my part, I think that that is a very reasonable point of view. I would support the approach of the Committee. But let us be under no doubt that the Amendment of the noble Lord, Lord Wigoder, would involve a major change in the law as it is at present laid down. It may be a good thing to say "Whenever you issue a cheque that you know will not be met you must go to prison." The alternative is to send the man who really intends never to pay to prison. I respectfully suggest that this Amendment ought not to be accepted unless your Lordships want to change the law and restore the word "evade", which is in the Amendment but which is not in the Bill, to its full vigour. I would very respectfully submit that it would not be an improvement to adopt this Amendment.

5.20 p.m.

Lord HARRIS of GREENWICH

My Lords, once again, I appreciate the thought given by the noble Lord, Lord Wigoder, to this Amendment, and I recognise that he has tried to improve his earlier version by taking account of some of the points which were made when we discussed this matter at the Committee stage. But I am bound to say at the outset that the Government cannot accept this new version and cannot commend it to the House. Essentially, the noble Lord's new clause follows the same lines as his previous new Clause 2, in that it uses the same language as Section 16(2)(a) of the Theft Act—this point has been made by the noble and learned Lord, Lord Edmund-Davies—which has caused all the difficulties, and has led to the noble and learned Lord, Lord Edmund-Davies, describing it a "judicial nightmare". We appear to be asked to embrace a further judicial nightmare in the Amendment which has been put before us by the noble Lord, Lord Wigoder. An element of caution on our part might be appropriate on this occasion.

The question of the "stalling debtor" is a most important element in the entire argument and was an important element of the speech of the noble and learned Lord, Lord Morris of Borth-y-Gest, whom we are all delighted to see back in good health today. Your Lordships will be aware that the Criminal Law Revision Committee's proposal, now in Clause 2(1)(b) of the Bill, represents a compromise between two extreme positions—one is that the present law should prevail and that it should continue to be an offence dishonestly by deception to induce a creditor to wait for payment of a debt, even though he intends to pay one day. This the Committee rejected as being too severe. It is, however, a view which has commanded the support of the noble Lord, Lord Wigoder, the noble and learned Viscount, Lord Dilhorne, and the Criminal Bar Association, but not of the Law Society, which had a very different view, nor of others, such as the Council of the Justices' Clerks' Society, which again took a different view. Both expressed general support for the proposals of the Criminal Law Revision Committee.

Another extreme view is that the enforcement of debts is a matter exclusively for the civil law and should not be a criminal offence, regardless of whether the debtor tells his creditor lies to avoid payment. My noble friend Lord Hale raised this on the last Amendment: Professor Glanville Williams and Sir Rupert Cross—the former in a note annexed to the Committee's Report—expressed support for that view. I have great respect for their opinion; but it is not one which I share, and neither does the noble Lord, Lord Wigoder, who is frankly opposed to that approach. The compromise, which is in the Bill and which, on behalf of the Government I wish to reaffirm that we fully support, is that, while it should be an offence dishonestly by deception to induce a creditor to wait for payment when it is intended never to pay, it should not be an offence where the debtor intends to honour the debt one day (as in the case of the timid housewife, who deceives one of her creditors because she is temporarily unable to pay). That seems a reasonable approach and is one that I emphatically support.

It is entirely for your Lordships' House to decide how this matter should be determined, but I advise the House to keep to the terms of the Criminal Law Revision Committee's clause, and not to reopen the sensitive area of the position of the "stalling debtor". I say this for precisely the reasons which were put before us by the noble and learned Lord, Lord Morris of Borth-y-Gest. I must remind the House that this form of words was published in the consultation document and once again received a great deal of careful consideration as a result of the comments which were made on the Criminal Law Revision Committee's Paper. The Government accept—as did the Committee—that there may be few prosecutions under this head, because of the difficulty of proving the intent—but, in our view, this is as it should be—it is consistent with the Committee's view that the criminal law should not apply to a debtor who is merely attempting to delay payment.

Another major objection to the clause—one I have touched on already—is that it is no different in substance from Section 16(2)(a) of the Theft Act. It uses the same language, making it an offence dishonestly, by deception, to evade the payment of a debt or charge or to obtain the reduction or deferment of such a debt or charge, and covers the same cases. In effect, it virtually re-enacts Section 16(2)(a) without making any change of substance. I do not think that is what the Bill attempts to achieve. Further, by following the terms of Section 16(2)(a) of the Theft Act it overlaps completely both the noble Lord's new Clause 1—which we have already debated—and Clause I of the Bill before your Lordships' House. In other words, Clause 1 is, in our view, unnecessary if this Amendment is accepted.

Therefore, for the reasons I have given, I suggest to the House that the Amendment proposed by the noble Lord, Lord Wigoder, in no way improves the Bill. To quote the noble and learned Lord, Lord Edmund-Davies, it has an unpleasant resemblance to the existing law which has been the cause of such widespread dissatisfaction. For that reason, I recommend the House not to accept the Amendment.

Lord WIGODER

My Lords, I do not want to tempt those of your Lordships who are waiting to take part in the next debate to any outburst of profane language. Therefore, I shall deal with the matter as briefly as I can. There are two issues. The first is: what should be done? Should it be an offence to be a dishonest "stalling debtor"? That is not a debtor playing for time, as the noble Lord, Lord Harris of Greenwich, said, but a dishonest "stalling debtor who is stalling his creditor by deception. I find it difficult to see why that which should be regarded by all of us as at once as dishonest and improper conduct, should not be a criminal offence. Of course, it is not going to be a criminal offence if a debtor goes to a solicitor acting for the creditor and says: "Please give me another two months, I am rather hard up". Nobody is suggesting it would be.

However, if a debtor goes to a solicitor and says: "I cannot pay for the next two months because I am out of work at the moment; and here is a medical certificate to that effect and the certificate is forged and totally untrue, is that not criminally dishonest? Why should people who are entitled to repayment of their loans have to suffer in those circumstances where there is dishonest conduct induced or grounded in deception in that way?

It is true, of course, that one can always invent cases in which it can be said: "It is not a matter of any great consequence one way or the other, and it is not necessary to prosecute". So be it. There is abundant discretion in prosecuting authorities not to bring cases which are of an extremely trivial nature, and in the ordinary way they decline to do so. I do not believe that your Lordships should be worried on that account.

Secondly, it was said by the noble and learned Lord, Lord Morris of Borth-y-Gest, that I was seeking in this Amendment to make a substantial change in the law. With very great respect, I think that what the noble and learned Lord really meant was that I was seeking to make a substantial change in the proposals of the Criminal Law Revision Committee. In essence, I am seeking to revert to the existing Section 16(2) of the Theft Act. If I may say so, since the case of Turner was decided in 1974, this part of the section has not given rise to any great difficulties.

The only other observation I make—and I do not want to go on about it ad nauseam—is that at no time has one had any explanation during the proceedings on this Bill as to how a jury is going to understand the distinction between securing a remission of a liability and inducing a creditor to forgo a payment. Also, one has had no explanation now of how one is to explain the different meanings of the word "remit" in their relation to the different sections, or the different meanings of the word, "abatement". I appreciate that the new Clause 2 that is proposed in essence reverts back to the existing Section 16(2)(a). That, I would submit, has on the whole worked satisfactorily for the last four years; it is very much clearer and in that way is more satisfactory than the Government's clause. Again, I beg to move.

5.31 p.m.

On Question, Whether the said Amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 85; Not-Contents, 51.

CONTENTS
Airedale, L.	Ferrers, E.	Monck, V.
Alexander of Tunis, E.	Fraser of Kilmorack, L.	Mowbray and Stourton, L.
Alport, L.	Gage, V.	Netherthorpe, L.
Arran, E.	Gainford, L.	Norfolk, D.
Atholl, D.	Glasgow, E.	Norrie, L.
Auckland, L.	Glenarthur, L.	Norwich, V.
Banks, L.	Gray, L.	Nugent of Guildford, L.
Barrington, V.	Hale, L.	Ogmore, L.
Belstead, L.	Hampton, L.	O'Hagan, L.
Berkeley, B.	Hertford, M.	Rankeillour, L.
Bradford, E.	Inglewood, L.	Romney, E.
Byers, L.	Killearn, L.	Russell of Liverpool, L.
Caccia, L.	Kilmarnock, L.	St. Davids, V.
Cairns, E.	Kinloss, Ly.	Sandford, L.
Campbell of Croy, L.	Kinnaird, L.	Seear, B.
Cathcart, E.	Kinross, L.	Selkirk, E.
Chelmsford, Bp.	Lauderdale, E.	Spens, L.
Chitnis, L.	Liverpool, E.	Strathclyde, L.
Craigmyle, L.	Long, V. [Teller.]	Teynham, L.
Croft, L.	Loudoun, C.	Thorneycroft, L.
Cromartie, E.	Lucas of Chilworth, L.	Trefgarne, L.
Cullen of Ashbourne, L.	Lyell, L.	Trenchard, V.
Daventry, V.	Mackie of Benshie, L.	Truro, Bp.
Dilhorne, V.	McNair, L.	Vaux of Harrowden, L.
Drumalbyn, L.	Mancroft, L.	Vivian, L.
Elles, B.	Massereene and Ferrard, V.	Ward of North Tyneside, B.
Elliot of Harwood, B.	Meston, L.	Westbury, L.
Emmet of Amberley, B.	Molson, L.	Wigoder, L. [Teller.]
Exeter, M.

NOT-CONTENTS
Allen of Abbeydale, L.	Harris of Greenwich, L.	Porrit, L.
Ampthill, L.	Henderson, L.	Rathcreedan, L.
Aylestone, L.	Houghton of Sowerby, L.	Segal, L.
Boston of Faversham, L.	Hylton-Foster, B.	Shinwell, L.
Bourne, L.	Jacobson, L.	Simon of Glaisdale, L.
Bruce of Donington, L.	Listowel, E.	Soper, L.
Castle, L.	Llewelyn-Davies of Hastoe, B.	Stamp, L.
Clifford of Chudleigh, L.	Lloyd of Hampstead, L.	Stedman, B. [Teller.]
Cooper of Stockton Heath, L.	Longford, E.	Stone, L.
Cudlipp, L.	MacLeod of Fuinary, L.	Strabolgi, L.
Edmund-Davies, L.	Merrivale, L.	Thomson of Monifieth, L.
Elwyn-Jones, L. (L. Chancellor.)	Morris of Borth-y-Gest, L.	Wallace of Coslany, L.
Gaitskell, B.	Murray of Gravesend, L.	Wells-Pestell, L. [Teller.]
Garner, L.	Oram, L.	White, B.
Gordon-Walker, L.	Peart, L. (L. Privy Seal.)	Wilson of High Wray, L.
Halsbury, E.	Phillips, B.	Winterbottom, L.
Hanworth, V.	Ponsonby of Shulbrede, L.	Wootton of Abinger, B.

Resolved in the affirmative, and Amendment agreed to accordingly.

5.39 p.m.

Lord HARRIS of GREENWICH moved Amendment No. 3: After Clause 5, insert the following new clause:

Enactment of same provisions for Northern Ireland

". An Order in Council under paragraph 1(1)(b) of Schedule 1 to the Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which contains a statement that it operates only so as to make for Northern Ireland provision corresponding to this Act—

1. (a) shall not be subject to paragraph 1(4) and (5) of that Schedule (affirmative 278 resolution of both Houses of Parliament); but
2. (b) shall be subject to annulment by resolution of either House".

The noble Lord said: My Lords, this Amendment would allow the changes being made in England and Wales by the present Bill to be extended to Northern Ireland where the relevant Bill is identical. I beg to move.

On Question, Amendment agreed to.

Clause 6 [Short title, commencement and extent]:

Lord HARRIS of GREENWICH moved Amendment No. 4: Page 4, line 6, leave out from ("force") to end of line 7 and insert ("at the expiration of three months beginning with the date on which it is passed").

The noble Lord said: My Lords, I beg to move this Amendment, which substitutes words in Clause 6(2) bringing the Act into force at the expiration of three months beginning at the date of Royal Assent. This covers the commencement order provision. The Amendment fulfils the undertaking which I gave to my noble and learned friend Lord Gardiner during the Committee stage.

On Question, Amendment agreed to.