Lords Sitting of 5 February 1980

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR On the
Woolsack.
Prayers—Read by the Lord Bishop of Salisbury.
The Duke of Grafton—Took the Oath.

OVERSEAS STUDENTS: LEA PROVISION
Baroness DAVID: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they approve of LEAs, under present circumstances, opening new colleges not for British students but exclusively for foreigners.
The MINISTER of STATE, DEPARTMENT of EDUCATION and SCIENCE (Baroness Young): My Lords, the policy of Her Majesty's Government regarding overseas students is that the present subsidy in the education budget should be progressively removed from 1980–81 onwards. So long as local education authorities take full account of that, and so long as they comply with race relations legislation, the form of provision which they make for overseas students is their own responsibility.
Baroness DAVID: My Lords, may I thank the Minister for that reply. It does not exactly cover what I intended to ask. What I wish to ask is whether plans which certain local education authorities have for opening colleges met with the approval of the Government. I am thinking of Nottinghamshire County Council which plans to open in September 1980 a college in Eaton Hall which is going to be for foreign students, mostly from the Middle East, and they apparently are expecting to lose up to £500,000 in the first three years until it goes into profit, and while at the same time—
Several noble Lords: Question!
Baroness DAVID:—Nottinghamshire is cutting adult classes by 86 per cent., withdrawing its grant of £14,000 from the WEA and £20,000 from the University of Nottingham's extra mural department. Does the Minister approve of this?
Baroness YOUNG: My Lords, my understanding of the position is that Nottinghamshire local education authority plan to use a college, which is at present a college of education where initial teacher training is due to end this year, for overseas students and also for British firms involved in the export trade. The position with regard to the money would be that, provided that it is the local education authority's firm policy to break even within a specified period of time, we would have no reason to take exception to the proposal.
Baroness GAITSKELL: My Lords, may I ask the Minister whether it is not true that of all the West European countries we are bottom of the league in the matter of spending money on adult education? Do we not need every penny—the Government are always "binding on" about this—for education at the moment, particularly for the 16 and 19 year olds?
Baroness YOUNG: My Lords, the noble Baroness has really addressed herself to Lady David's second Question. It will be better if I referred my answers on adult education in that context.
Lord KILMARNOCK: My Lords, in view of the noble Baroness's undertaking in the debate on overseas students on Wednesday 12th December last year (I quote from column 1346 of Hansard) that,
"The policy on full cost fees will be looked at when the position on enrolments is clear",
may I ask the noble Baroness whether she is aware of the significant drop in the enrolment in certain universities and polytechnics? Secondly, may I ask her whether she will undertake to encourage the placement of foreign students in existing establishments where their fees would be most welcome?
Baroness YOUNG: My Lords, the general question on overseas matters is outside the terms of the Question which

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has been asked. Of course, what Nottinghamshire are proposing to do, if they decide to carry this out, is to accept overseas students on full cost. That is an essential part of Government policy, were they to use this hall for this particular purpose.
Baroness DAVID: My Lords, does the Minister not think that there is plenty of room in existing establishments for these students? Other colleges may well have space. Does she not think it would be better to use these spaces and save money for other more necessary purposes?
Baroness YOUNG: My Lords, the noble Baroness knows—as I do—that this is a matter for the local education authority to determine. They will no doubt take account of the economics and what they expect to do at the end of three years, as the numbers build up. No doubt they will consider these factors when they take their decisions about it.

ADULT EDUCATION
2.45 p.m.
Baroness YOUNG: My Lords, my leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in view of the cutback in adult education in many parts of the country, they have any plans for a working party to review the long-term future of adult education.
Baroness YOUNG: My Lords, my right honourable and learned friend the Secretary of State for Education and Science has recently extended the term of office of the Advisory Council for Adult and Continuing Education, whose remit includes both the review of current practice and the development of future policies and priorities for the education of adults. He awaits with interest the reports on these questions due to be presented to him this autumn.
Baroness DAVID: My Lords, I thank the Minister for that reply. Is the
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noble Baroness aware that Dr. Hoggart, the chairman of that advisory council, and his colleagues think that we are now dangerously near the point where the fundamental structure of the service is being undermined so that it may be very difficult to secure future recovery, and the morale of the people in that service is very low indeed? He said this in a letter to me last week. Is the Minister aware that some authorities have virtually suspended adult education? Humberside, Hampshire, West Glamorgan, Cumbria and Leicestershire are cutting their grants by half, and I have just mentioned what Nottingham is doing. What is the Government's attitude to this? Do they think that these authorities are carrying out their obligations under Section 41 of the 1944 Act?
Baroness YOUNG: My Lords, we have accepted that as there have to be cuts in Government expenditure, the education service has to bear its share and the adult education service within that has to bear its share. However, the preliminary returns that we have of the numbers of enrolments of local education authority adult education centres show that there has been an overall reduction of 8 per cent. in the November 1979 figures compared with 1978. Nevertheless there is a total increase on the figures for 1976 and 1977, so there is nothing to suggest that the entire service is crumbling. On the second point about the statutory duty, Section 41 of the Education Act 1944 gives every local education authority the duty of securing, in accordance with the schemes of further education or at county colleges, the provision for its area and adequate facilities for further education, which is defined as
"full and part-time education for persons over compulsory school age and leisure-time occupations".
It does not seem to me that in the present position any local authority can be said to be breaking their statutory obligations.
Baroness DAVID: My Lords, would not the Minister agree, though, that there is a need for an overall look at all post-school education? We are going to be in a very different society in the next few years and a completely new look with a broader outlook than that of the old non-vocational adult education is

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needed. At the moment we are full of bits and pieces—
Several noble Lords: Question!
Baroness DAVID: Would not the Minister, my Lords, think that some quite new and imaginative look should be taken at this area, or is the Department of Education going to leave it to other agencies such as the Manpower Services Commission and the Department of Employment?
Baroness YOUNG: The Government, my Lords, recognise the great importance of adult education, and indeed my right honourable and learned friend the Secretary of State has, in writing, to the chairman of the Advisory Council, asked him to consider the Council's future work and particularly how it could best proceed and what its functions should be. We believe that this is the right way of proceeding because we like to build on what we have already. As I say, we have undertaken to do this.
The House may like to know that as part of our commitment to the importance of adult education we are increasing the Government funds for the development of a new unit with a wider remit than the Adult Literacy Unit, and are giving this unit half a million pounds rather than the £360,000 it has at present.
Lord BROOKS of TREMORFA: My Lords, is the noble Baroness not aware that many local authorities are forcing the adult education sector to bear a disproportionate share of these cuts? Is the Minister further aware that many local authorities, in preparing their educational budgets, have increased the evening class fees very substantially indeed? One particular local authority has increased its fees by 800 per cent. and while, on the surface, the classes will remain, in practice and in fact, many people will not be able to afford these fees and that sector of the educational activities of the local authorities will fall by the wayside.
Baroness YOUNG: My Lords, we are aware that in almost every case local education authorities have increased fees for adult education classes. This is all part of the economic restraints which we have had to apply to the education service
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as to the other aspects of Government policy. In fact our information is that rates for non-vocational adult educational courses have ranged from 6p per hour to £1 per hour, with an average of about 30p. I recognise that there are great variations within this, but the figures do show that the numbers attending classes are holding up and past experience tends to show that, whereas there is a slight fall-off as the cost of courses goes up, this is very soon made up as people come to a recognition of the new fee as indicating the true worth of the course.
Lord DAVIES of LEEK: My Lords, is the Minister aware that those of us who have had long experience of adult education—17 years in my own case—have seen nothing more wonderful than the opening of the minds of adult men and women who had no opportunity whatsoever when they were young? On one great occasion I remember the present Lord Chancellor himself at the height of his powers doing a brilliant course at Oxford University. If it was only to get a Lord Chancellor like that one down once it was worth the money the Government spent!
Baroness YOUNG: My Lords, I think I should probably ask my noble and learned friend the Lord Chancellor to reply to this question. The fact is that the current enrolments in adult education are estimated for this year at 1,883,000 and there are some half a million enrolments for comparable courses at maintained, assisted and grant-aided educational establishments. This hardly shows that this part of the educational system is collapsing, and I hope I have said enough to indicate our great regard for the adult education service and the importance which we attach to it.
Lord ALEXANDER of POTTER-HILL: My Lords, would the Minister not agree that, apart from short-term measures, as things are developing and as the nature of industry is emerging, adult education will become the most important sector of the education service in 10 to 15 years' time? Retirement will take place at an earlier age: that is inevitable. Is it not a fact that if there is one sector that has never been taken very seriously in this country it is adult education?
Baroness YOUNG: My Lords, I would not accept that adult education has not been taken seriously in this country and I should have thought, from the number of supplementary questions I have had, that all parts of the House would agree with my statement in regard to that.
As to the question whether or not one should have courses for people who are retiring and whether one should have principally retraining courses for adults to equip them for different types of jobs, and all sorts of other courses which are desirable, these are all matters we are hoping the Advisory Council will be looking at in its extended remit as regards the purpose of adult education. I think we really must await its advice on what we should be doing.
Baroness WOOTTON of ABINGER: My Lords, is the noble Baroness aware of certain experiments in some parts of the country, in which unemployed men with skills organise classes for other unemployed men which will release them from boredom and enable them to use those skills in domestic activities and so on? If she is not aware of these, will she acquaint herself with them or allow me to call her attention to them? Also, will she support that kind of activity taken on their own initiative on the part of the unemployed?
Baroness YOUNG: My Lords, we should certainly support any activity such as that. These are really matters that are dealt with at local authority level, but I am quite certain that we would all support any kind of voluntary activity, or activity making use of the talents of people who are not currently in employment.
Lord FOOT: My Lords, if other cuts are to be inflicted, may we have an absolute assurance from the noble Baroness that no mortal injury will be done to the noble and learned Lord the Lord Chancellor?
Baroness YOUNG: My Lords, I think that it would be impossible to injure the Lord Chancellor.
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, since the noble Baroness expressed overwhelming interest
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on the part of the Government in adult education, is it perhaps significant that there have been no supplementaries from her side of the House?
Baroness YOUNG: My Lords, I take it as a great compliment that my colleagues behind me are satisfied.

NUCLEAR INSTALLATIONS: EARTH TREMORS
2.51 p.m.
Lord INGLEWOOD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are satisfied that the standard of construction of nuclear installations, and in particular those in West Cumberland, are capable of standing up to earth tremors on the scale of those recently experienced in the Solway area, without health risk to the local population.
The MINISTER of STATE, DEPARTMENT of EMPLOYMENT (The Earl of Gowrie): My Lords, the recent earthquake created no damage to any nuclear installation in this country. Well-built structures, such as those of nuclear installations, are able to withstand safety intensities at the levels of any earthquake likely to be experienced in the United Kingdom.
Lord INGLEWOOD: My Lords, I thank the noble Earl for that reply, which will help allay misgivings in the county and will be very gratefully received.
Lord HYLTON: My Lords, can my noble friend confirm that the nuclear power stations at Torness and Heysham, which are now under construction, have anti-earthquake devices incorporated in them? Does that not show that the authorities have had a change of mind and are incorporating safety precautions which were not previously thought necessary, and can he tell us why this is so?
The Earl of GOWRIE: My Lords, while the risks of significant damage to nuclear plants from earthquakes in the United Kingdom are, as I indicated

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earlier, acceptably small, in the light of increased knowledge of seismic activity worldwide and with advances in technology, it is practicable to include design features which provide protection against ground motions of much higher intensity than those experienced in the United Kingdom or regions elsewhere. New nuclear installations in this country are therefore being built to meet safety criteria which set the appropriate level of protection against such ground motions.

AFGHANISTAN: MOTION OF THE EUROPEAN PARLIAMENT
2.53 p.m.
Baroness ELLIOT of HARWOOD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a statement on the Motion passed by the European Parliament on Wednesday, 16th January, in relation to Afghanistan.
Lord TREFGARNE: My Lords, Her Majesty's Government have noted and warmly approve of the terms of the resolution which the European Parliament passed on Wednesday, 16th January. The United Kingdom was associated with the statement made by the President of the Council of Ministers to the European Parliament that day.
Baroness ELLIOT of HARWOOD: My Lords, I thank the noble Lord for his reply. Is there nothing more that can be done by us, and by the European Parliament, to impress upon the Soviet Union the error of their ways? Also, in view of the fact that on 16th January the United Nations passed a unanimous resolution condemning the Russians again for their Afghanistan behaviour, is there anything more that we can do?
Lord TREFGARNE: Yes, my Lords; indeed there is. Referring to what has been decided in the Community, the Council has decided to cancel the 1979 Community food aid programme to Afghanistan, and has also decided to contribute 17·7 million dollars to the
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UNHCR appeal for 55 million dollars for aid for Afghan refugees.
Lord SHINWELL: My Lords, may I ask the noble Lord the Minister whether he agrees that it is all very well to pass resolutions and indulge in condemnation of the Soviet Union's activities, but it must be supplemented by adequate means of defence for the purpose of deterrent against possible invasion of Europe itself? Is he not aware that there are some of the countries of the Nine who, for reasons best known to themselves—and I apologise for asking this question, but I am not fully acquainted with all the details, nor do I know of anybody who is—do not trouble themselves very much about adequate defence; in particular, the French in association with NATO? Is is not about time that we stopped a lot of the humbug about economic unity and understood that economic unity, if it does exist, is not of much value unless it is backed by adequate unity in defence?
Lord TREFGARNE: My Lords, I absolutely agree with the noble Lord. He said, first, that fine words were no substitute for adequate defence—if I am paraphrasing him accurately—and I would entirely agree with that, too. The European Community is not primarily concerned with defence matters, but NATO most certainly is, and the noble Lord will have heard with as much satisfaction as I did of the decisions taken by NATO, about, for example, the modernisation of the nuclear forces, which were announced just before Christmas.
Lord GLADWYN: My Lords, would the Government regard it as rather a pity that this resolution of the European Parliament was not apparently supported by the Socialist Group?
Lord TREFGARNE: Yes, my Lords.
Baroness EMMET of AMBERLEY: My Lords, may I ask the Minister whether it is not a pity, in view of the declaration by the French and German Governments with regard to Afghanistan, that we were not invited to join them in the same declaration?
Lord TREFGARNE: My Lords, I am afraid that I did not quite catch what my noble friend said.
Baroness EMMET of AMBERLEY: My Lords, there was a declaration by the French and German Governments about the USSR removing themselves from Afghanistan. It seems a pity, as we are an important member of the European Community, that we should not have been included in that declaration.
Lord TREFGARNE: My Lords, the declaration by the Italian Foreign Minister, on behalf of all the Foreign Ministers of the European Community—
Baroness EMMET of AMBERLEY: It was the French and German Governments.
Lord TREFGARNE: Yes, my Lords, I heard my noble friend—was very satisfactory, and I would draw my noble friend's attention to it.
Lord GORONWY-ROBERTS: My Lords, can the Minister help us in this matter: Can he tell us more about the response of the Community—that is, the Commission—to the Motion passed by the European Parliament, particularly in the matter of exports at cut prices to the Soviet Union? Is it not a fact that, while the Community will not make up the shortfall in the delivery of grain resulting from the decision of the United States Government in that area, nevertheless the export of important cereals such as barley is to go ahead apace, in very significant quantities and at greatly reduced prices?
Lord TREFGARNE: My Lords, think that the noble Lord is taking an unduly pessimistic view of what is proposed. We should certainly like to see an end to EEC subsidies on exports of butter, sugar, meat and other items to the Soviet Union, and we are pursuing this in Brussels. But the Commission have said that in present circumstances there will be no further exports of, for example, butter, to the Soviet Union at the previous low price level.
Lord HALE: My Lords, is it not a fact that, until the last week or two, the Government have been rightly calling attention to the very serious economic situation in this country? Does the noble Lord really think that by spending more money on arms, which is largely the
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cause of our economic difficulties, he is not going to make much worse the real economic difficulty which is threatening us with just as grave consequences as the foreign situation?
Lord TREFGARNE: My Lords, no, I am afraid that I do not agree with that at all. The fact is that if we do not prepare to defend ourselves properly there will be nothing left that is worth defending.
Lord BETHELL: My Lords, is the noble Lord aware that the European Parliament's resolution went considerably further than any statement which was made on behalf of the Nine Foreign Ministers? Can he give an indication of what efforts have been made within the political co-operation machinery of the Nine to make further progress along the lines of the European Parliament's resolution? Is there any proposal to discuss this resolution—high technology, the Olympic Games, export restitutions—among the Nine Foreign Ministers who are meeting today?
Lord TREFGARNE: My Lords, we certainly agree that the resolution passed by the European Parliament, which is the subject of the question referred to by my noble friend, was very satisfactory, and I can confirm that all the matters referred to by my noble friend are the subject of continuing discussions at the highest level.
Lord PAGET of NORTHAMPTON: My Lords, is the noble Lord aware that in the days when we used to have an Empire in these parts our peace was continually being disturbed by mad mullahs who were being patronised by a disorderly Afghan Government and that the Russians, who now have an Empire in these parts, have been suffering from similar troubles? We intervened on two occasions with punitive Afghan wars and the Russians now seem to have done the same thing rather more efficiently. Would the noble Lord tell us what British interest is thereby affected?
Lord TREFGARNE: My Lords, perhaps the noble Lord has not heard of the Persian Gulf.
Lord AVEBURY: My Lords, is the noble Lord aware that there is an inconsistency in Community policy here? As the noble Lord has told us this afternoon, the Community has cancelled all food aid to Afghanistan because of Soviet intervention there, but has continued to grant food aid to Ethiopia where Soviet intervention has taken place on an equally obnoxious scale. Only this morning I received a letter from M. Cheysson, the European Community official in charge of these matters, saying that it is the intention of the Community to continue to send food aid to Ethiopia, notwithstanding the fact that it falls into the hands of the Ethiopian armed forces and not into the hands of the civilian population for whom it is intended, and thereby supports the Ethiopian war effort against the heroic freedom fighters of Eritrea.
Lord TREFGARNE: My Lords, I am not sure that I would use the same language as the noble Lord, but certainly our aim is to see that aid goes to those people who are in the greatest need.
Lord MORRIS: My Lords, would not my noble friend agree that concerted action by the Nine in boycotting the Olympic Games must be worth any number of resolutions and any number of protest notes?
Lord TREFGARNE: My Lords, it is not the boycott of the Olympic Games that we are seeking to achieve. We are seeking to move them from Moscow.

DINNERS
Lord DENHAM: My Lords, it may be for the convenience of your Lordships to know that dinner will be available tonight at the usual time. There will be no adjournment for dinner. I therefore hope that noble Lords who expect to take an active part in the Bill will bear this in mind and arrange to time their absence from the Chamber accordingly.

CRIMINAL JUSTICE (SCOTLAND) BILL [H.L.]
3.3 p.m.
The MINISTER of STATE, SCOTTISH OFFICE (The Earl of Mansfield):
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My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, that the House do now again resolve itself into Committee.—(The Earl of Mansfield.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 7 [Jurisdiction of district courts]:
The LORD ADVOCATE (Lord Mackay of Clashfern)The LORD ADVOCATE (Lord Mackay of Clashfern) moved Amendment No. 38A:
Page 7, line 4, after ("enactment") insert ("(including this Act or an enactment passed after this Act)").
The noble and learned Lord said: This is a pure drafting amendment which brings the reference to "any enactment" in Clause 7(1) into line with the reference in Clause 8(1) so as clearly to cover future as well as past enactments. I beg to move.
Lord ROSS of MARNOCK: May I say that the vagaries of the post from Scotland have prevented me from dealing with the same point but in a different way. The noble and learned Lord the Lord Advocate says that the purpose of this amendment is to bring the matter into line with page 7, line 30, where that phrase can be read. Is it not, however, very strange that we should be seeking to bind not only the present Parliament but any future Parliament? I may be a very simple-minded Scot but I did not think that it was possible or even desirable to attempt to do this. It may be possible if one is dealing with any enactment which is already on the statute book and which the draftsmen may have overlooked, but to talk about any future enactment is going far too far. With all due respect to the noble and learned Lord the Lord Advocate, I think that he has been ill-advised on this amendment.
Lord MACKAY of CLASHFERN: It is not the purpose of the amendment to attempt to bind Parliament in the future. What is attempted to be done is to make clear the scope of this clause and to make

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clear how this clause, if enacted, will relate to any future enactment which does not expressly mention it. I must submit to your Lordships that this is an appropriate clarification of the clause as drafted.
Lord ROSS of MARNOCK: With all due respect to the noble and learned Lord the Lord Advocate, it is both unnecessary and unwise.
On Question, amendment agreed to.
Clause 7, as amended, agreed to.
Clause 8 agreed to.
Clause 9 [Citation of defence witness for precognition]:
Lord ROSS of MARNOCK Lord ROSS of MARNOCK moved Amendment No. 38B:
Page 8, line 5, leave out ("24") and insert ("48").
The noble Lord said: Perhaps we may take the two amendments standing in my name together since they refer to the same point. It will be recollected that when we were dealing with an earlier clause I said that we were being fairly tough on witnesses. This is another example of the Government going too far. It gives power to the accused—and I think we all approve of it—to precognise a witness and it also gives power to the sheriff to summon that witness to be examined by the accused or his solicitor at the time and place stated in the summons.
At present, the police precognise witnesses. It has been suggested that the police can tell a witness that they do not require him to make a statement to the legal representative of the accused. That is true; they do not need to do so, but they can. However, this is placing an obligation upon somebody whom the accused or his solicitor think has information about a particular charge to come to a particular place at a particular time. I do not think that I, or indeed anybody on this side, would object to that, but to say that a witness must come to a particular place at a particular time within 24 hours unless he shows reasonable excuse is going a bit too far. If we do so, witnesses will not turn up.
One must remember that it is up to the sheriff or the judge to declare exactly where the witness has to be and at what time. It took me many hours to get round Scotland this weekend. It might well be that a witness would have to get leave from his place of work. Would it be construed as reasonable that he should have to do so within 24 hours? He may be unable to get in touch with his employer and the Lord Advocate may say that that is a reasonable excuse. But the more you go into the reasonable excuse the more of a mockery it becomes in terms of getting the witness there in time. Therefore, my first amendment would insert 48 hours instead of 24, although even 48 hours is pressing it.
My second point is this. The witness having got there—perhaps at considerable expense to himself—one finds that nothing is stated here about expenses, or paying the costs of travel, or loss of work for the witness. Not only is he subject to a penalty if he does not get there, but he is also subject to a penalty in respect of what he says if in someone's opinion he does not tell what he knows. At the moment a witness can say, "I do not know. I am not going to speak to you", and that is quite legal, but the clause makes the position perfectly clear and it is subject to a penalty. Clause 9 concerns any person who has been duly cited to attend and does attend but refuses to give information within his knowledge, or to produce evidence in his possession, or who prevaricates in his evidence—I do not know who will judge that but I remember the noble and learned Lord, Lord Wheatley, on the previous day of this Committee stage telling us just how myopic and subject to amnesia most witnesses seem to be. Faced with this provision, I am perfectly sure that we shall get even more of that.
I think we are being far too tough on witnesses if we create new penalties, albeit that they are £50 or imprisonment for 21 days in both cases—failing to attend or attending and not fulfilling the requirements of the subsection about giving information or in regard to prevarication. I ask the noble and learned Lord the Lord Advocate to look at this subsection again to see whether it is really being fair to witnesses. If they attend then, once there, they should be entitled to say, "I have no statement to make" and

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leave it to the persuasive powers of the solicitor or the accused to get some information from them. I beg to move.
Lord MACKAY of CLASHFERN: I should like to deal with the amendment which is before your Lordships at the moment, because the two are slightly different, although I agree that they relate to the same matter. At the present time the prosecution has a right to bring a witness along on 24 hours' notice and in this clause we have reproduced for the defence the present rights of the prosecution. We thought that was fair. I entirely appreciate that 24 hours is a little short and it seems to me to be short in the present rules for the prosecution, but it is important that the balance should be preserved. At the moment there is not power at all for the defence, so that the provisions we have put in for the defence are modelled on those available to the prosecution and in accordance with the Thomson Committee's proposals. I therefore propose to accept the amendment moved by the noble Lord so far as it substitutes 48 hours for 24, giving the witness a longer time, and in due course, in order to preserve the balance, we will bring forward an amendment to alter the present rules for the prosecution in that respect.
Lord ROSS of MARNOCK: In view of what the noble and learned Lord the Lord Advocate has said, I will withdraw the amendment, unless he wants it to be put into the Bill now?
Lord MACKAY of CLASHFERN: Yes; I accept the amendment.
On Question, amendment agreed to.
3.14 p.m.
Lord ROSS of MARNOCK Lord ROSS of MARNOCK moved Amendment No. 38C:
Page 8, line 11, leave out subsection (3).
Lord MACKAY of CLASHFERN: As I have just explained, this is a reproduction of what is available for the prosecution, and if we were to leave out this subsection the situation would be that the person who turned up would not be in the same position relative to the defence as he is in relation to the prosecution, and I submit that the correct course is to have these penalties in the Bill. The noble Lord
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asked: Who would decide the question? This is a criminal offence and it could only be disposed of as any other criminal offence is disposed of, by a finding of guilty against the accused, and the onus of proof would be beyond reasonable doubt; so that the judge would be required to decide beyond reasonable doubt as to one or other of these situations.
Lord FOOT: May I ask the noble and learned Lord the Lord Advocate whether the situation in English law is not this, that if a witness for the defence is summoned to the court on subpoena, which is the procedure that we adopt, he can be required to give evidence and to answer the questions which are addressed to him? In that respect he is in an entirely different position from the accused person, who need not answer questions. But in English law, as I remember it, the present situation is that if a witness refuses to answer the questions which are put to him he may be in contempt of court and penalties are provided for that.
The only matter on which I have a certain amount of doubt is that, so far as I know it, under the English procedure if a witness refuses to answer a question about something which is within his knowledge he may be guilty of contempt of court, but I am wondering whether the word "prevaricates" in his evidence, is a reproduction of the present Scottish law so far as prosecution witnesses are concerned. If it is, I should have thought that the word "prevaricates" is open to considerable objection. I have not had the poportunity to look in the dictionary to see what "prevaricate" means, but I should have thought it was extremely difficult to say of a witness, if he has answered a question, that he is prevaricating, in the sense that he is trying to deceive or mislead the court. I do not know whether anyone has ever been prosecuted in Scotland for prevaricating before the criminal court. I should have thought that was an extraordinary procedure, but if the noble and learned Lord can tell me that this has been the law in Scotland, so far as prosecution witnesses are concerned, for some years past, then of course I would bow to that information.
Lord MACKAY of CLASHFERN: Yes, as I think I have said, we are reproducing for the defence exactly the same

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provisions as apply to the prosecution, and the relevant sections are Sections 315(3) and 344(4) of the 1975 Act. The situation that we are dealing with here is not the situation of the witness actually giving evidence in court. As the noble Lord, Lord Ross of Marnock, has explained, it is the bringing of a witness for precognition in order that his evidence may be ascertained before the stage of court proceedings is actually reached.
Lord GALPERN: I should like to ask the noble and learned Lord the Lord Advocate a question. The person who is cited for precognition can be examined by the accused himself and show appearance with no one else present, I presume; but the accused examines the witness who has been cited for precognition, and according to subsection (2) if he fails to give evidence he is liable, ultimately, to 21 days in prison. Will this individual be under oath when he is being examined by the accused? If not, how are we to establish that someone has committed an offence?
Lord MACKAY of CLASHFERN: So far as this clause is concerned, as noble Lords will see, the proposal is that the witness should be cited to appear before the sheriff. There is never a situation which involves just the accused and the witness; it will be an appearance before the sheriff. And once the witness appears before the sheriff, then of course the sheriff will be in control of the situation and he will be a person available to testify to what has occurred, as well as the accused himself. I think that deals with the evidential difficulty referred to by the noble Lord, Lord Galpern.
The EARL of PERTH: I wonder whether I may help a little on the word "prevaricate". Of course I agree entirely with the noble and learned Lord that the prosecution and defence should be parallel in their rights. May I ask whether, in the last several years, the word "prevarication" has been tested in the courts or has caused difficulty? If it has arisen as a problem already, would it not be wiser to withdraw it in both cases rather than leaving in something which, to my way of thinking, is a difficult word?
Lord MACKAY of CLASH FERN: I know that the question has arisen in the courts. I speak in the presence of noble and learned Lords who have had experience of dealing with these situations and who will be able to give their views on this matter. I do not think it gave rise to much difficulty. The sort of situation that is intended to be covered by this is the situation in which a person in the course of his evidence gives mutually contradictory answers and that kind of thing. The noble and learned Lord, Lord Wheatley, I am sure will be able to help us on this point.
Lord WHEATLEY: May I first ask the noble and learned Lord the Lord Advocate whether he is giving an affirmative answer to the question put by the noble Lord, Lord Galpern, as to whether the witness will be on oath when merely there for the purpose of giving a precognition?
Lord MACKAY of CLASHFERN: I have not said that he will be on oath.
Lord WHEATLEY: I am glad to hear that because, first, I do not know why there should be a reference to "evidence" in paragraph (ii), "prevaricates in his evidence". If he is not on oath he is not giving evidence: he is merely giving a precognition. That is point No. 1. If I may try to answer the noble Lord, Lord Foot, so far as our procedure in Scotland is concerned, the word "prevarication" arises in relation to contempt of court.
There is a difference betwen prevarication and perjury. It is contempt of court if a person is guilty of prevarication, which means where a person in the course of his own evidence has admitted by his contradictory evidence that at one point he must have told a lie, because he has made contradictory statements and one of the two must be a lie. That is deemed to be prevarication for this purpose. But a person may be lying to his heart's content, and as long as he does not contradict himself and is consistent in his evidence, then he cannot be charged with contempt of court on the ground of prevarication; he must await a further charge of perjury. If it is contempt of court by prevarication, the court on its own can deal with the matter there and then. If it is perjury, proceedings have to be raised against that witness.
Lord ROSS of MARNOCK: What we are doing, of course, is making a new offence. It is certainly complicated by the fact that the person is summoned by the sheriff, he is there before the sheriff, but it is not the sheriff who questions or cross-examines, it is the solicitor for the accused or the accused himself. I am not a lawyer. I am not familiar with the procedure of the courts and I am grateful to the noble and learned Lord, Lord Wheatley, and to my noble friend Lord Galpern for the point that he made. You cannot deal with a person for contempt of court if he is not in court. So I presume this is why we resort to this new offence.
I am not entirely happy with it, and I hope the noble and learned Lord the Lord Advocate will look at it again. But I am not going to press my luck too far; I have got half of what I wanted, and it may be that at Report stage I will get the other half. I should like an assurance from the noble and learned Lord the Lord Advocate, that he will look at this again, in view of what Lord Wheatley has said, and in view of his answer that the person is not on oath. It is going to be very difficult on this question of prevarication.
Lord WILSON of LANGSIDE: Perhaps it would be helpful if I pointed out that prevarication is not a new offence. "Prevarication" is the word which is used in Section 344 of the Criminal Procedure (Scotland) Act 1975.
Lord FRASER of TULLYBELTON: Would the noble and learned Lord the Lord Advocate say whether or not there is confusion in this subsection? The first provision, paragraph (i), is "refuses to give information within his knowledge…". As I understood it, the Lord Advocate said that that would be a matter of prosecution, and, if necessary, the sheriff who was presiding at the precognition would, I suppose, give evidence about what happened. Anyway, it would require to be proved by other evidence that he must have had this knowledge when he refused to give it. That seems to me to be a matter for separate trial afterwards.
Then we have "prevarication" which, as my noble and learned friend Lord Wheatley says, is really contempt of court.
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Then the clause says that he shall be guilty of an offence and shall be liable on summary conviction forthwith to a fine of £50 or imprisonment for a period not exceeding 21 days. That means to me that the sheriff presiding at the precognition says, "You are going round and round and making a fool of the thing; either you give proper evidence or you will be sentenced for contempt of court". That is the sort of thing that happens occasionally in the course of a trial. But that seems to me to be something quite different from proving at some separate court an offence of refusing to give information which must have been within his knowledge at the precognition proceedings. We have two separate things muddled together.
Lord MACKAY of CLASHFERN: It may be that I have contributed to this situation to some extent, and if so I apologise. The whole provision applies to the citation of a prosecution witness for precognition. I am obliged to the noble and learned Lord, Lord Wheatley, for what he said about that. The whole provision is subject to the words the noble and learned Lord, Lord Fraser, referred to—"shall be guilty of an offence and shall be liable…" to be summarily subjected forthwith to a fine and so on.
What I was seeking to point out was that in applying that provision the person who would be found guilty of an offence would be the person who this time is a witness and accused under this provision. Therefore the criminal standard would apply. It would only be held that paragraph (i) had been established and the person guilty of an offence on the criminal standard, beyond reasonable doubt. But I think in terms of the provision it could happen at the time if it was clear beyond reasonable doubt that the person in question had refused to give information in his possession. I hope that deals with the matter.
Lord FRASER of TULLYBELTON: I do not regard the matter as quite satisfactory. I do not know how the sheriff could be satisfied beyond reasonable doubt, except very rarely if there is a document. If it depended on the evidence of other witnesses it would require to be dealt with later.
Lord ROSS of MARNOCK: I think if Lord Fraser knew some of our sheriffs he would withdraw that one!
Lord WHEATLEY: I am not too satisfied, either, with the situation here, and I hope that the noble and learned Lord the Lord Advocate will look at this seriously again. He says it is an equiperation of the position of a prosecution witness. I have been trying very hard to find out which section of the Criminal Procedure Act 1975 deals with that. I do not think it does.
Lord MACKAY of CLASHFERN: It is Sections 315(3) and 344(4).
Lord WHEATLEY: It is very strange, and I think this has to be borne in mind. It is one thing to constitute an offence for something done or said by a person giving evidence in court under oath or affirmation, and to do the same thing for a person who is merely being precognosced and not on oath. It is quite a different situation when you are making it an offence in these conditions. Therefore, I think the Lord Advocate should look very carefully at this matter to see whether, when a person is brought for precognition, either for the prosecution or defence, the matter is properly regulated and the difficulties to which reference has been made observed.
Lord FOOT: Did the noble and learned Lord say that so far as the prosecution is concerned this matter is covered by Section 315(3) and by Section 344 of the 1975 Act?
Lord MACKAY of CLASHFERN: Section 344(4) is the one that particularly gives these provisions.
Lord FOOT: Am I not right in thinking that if one looks at Section 344—and I have had the opportunity to look at it only briefly—one sees that the procedure which applies is as follows:
"If a witness in a summary prosecution shall wilfully fail to attend after being duly cited, or unlawfully refuse to be sworn, or after the oath has been administered to him refuse to answer any question which the court may allow, or to produce documents…or shall prevaricate in his evidence, he shall be deemed guilty of contempt of court and be liable to be summarily punished forthwith for such contempt by a fine not exceeding £25"?
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If I have understood correctly what the noble and learned Lord, Lord Wheatley, has been saying, that is a different type of procedure—a summary trial—from the procedure which is dealt with under the terms of the clause that we are discussing. Therefore, I should have thought that there is no strict parallel in the 1975 Act, so far as prosecution witnesses are concerned, for the provision which is being made under this clause in this Bill, because they relate to different types of proceedings. If that is right—and I may well have got it wrong—and there is not a strict parallel at present between the situation of the witness called for the defence and the witness called for the prosecution, would the noble and learned Lord be prepared to take the matter away and look at it again before the next stage of the Bill?
Lord MACKAY of CLASHFERN: Yes, certainly I am prepared to do that. That point perhaps arises on Section 344 (4), which refers to:
"Any witness who, after being duly cited in accordance with section 315 of this Act"—
fails to turn up—
"shall be liable to the like punishment as is provided in the foregoing provisions of this section".
That is the provision which takes us back. However, I am happy to attempt to make certain that we have brought the two provisions into line.
Lord WHEATLEY: I am sorry to intervene again, but I am obliged to the noble and learned Lord the Lord Advocate for drawing my attention to that section. However, if we look at Section 344 of the Criminal Procedure (Scotland) Act 1975 we find that the offence of prevaricating in one's evidence relates to the situation where one is in court and under oath, and not where one has been summoned for precognition. Therefore, for the first time we are creating an offence here—so far as someone summoned by the defence is concerned—of prevaricating while giving precognition, not evidence, and not on oath.
Lord FOOT: I should like to add one point to that. I think I am right in saying—the noble and learned Lord will correct me if I am wrong—that there is the following difference between the proceedings for

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precognition and the proceedings before a court. As the noble and learned Lord the Lord Advocate told us just now, in the precognition proceedings the witness is not on oath, whereas in the summary proceedings, as explained in Section 344, he is. I should have thought that it may well be that we ought not to attach the same sort of penalty to someone who, giving evidence not on oath, is said to prevaricate. I should have thought there was a very important distinction between the two situations.
Lord ROSS of MARNOCK: It seems that my defence of witnesses has raised quite a bit of discussion, which only shows how wise I was to blunder in where even some of the lawyers fear to tread. I am grateful to the noble and learned Lord the Lord Advocate for saying that he will look at the matter, and on that understanding I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9, as amended, agreed to.
Clauses 10 and 11 agreed to.
Clause 12 [Abolition of mandatory first diet in solemn procedure]:
On Question, Whether Clause 12 shall stand part of the Bill?
3.35 p.m.
Lord ROSS of MARNOCK: I rise to move the deletion of Clause 12. I do so not because I want to see it deleted, but in order to give an opportunity for the Government to justify what they are doing. Although quite a number of people approve of what is being done, there are others who think that what the Government are seeking to achieve could have been done by a much simpler formula. I understand that what was put forward by the noble Lord, Lord Thomson, in his report is not exactly what we have here. In fact, his solution was to give more time for the defence to prepare for the first diet, and that would make it much more meaningful and far, far better from everyone's point of view.
The present provisions appear to complicate unnecessarily the whole law of
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solemn procedure which the noble Lord, Lord Thomson—as some people suggest—would have made much simpler. Too often this first diet, the mandatory first diet, is a ritual and meaningless formality. Some lawyers in Scotland will regret its passing, because it is something Scottish that has gone on for years, and take the view that things will never be the same without it. I can assure your Lordships that my noble and learned friend Lord McCluskey does not feel that way, and he said so to me when we were sitting on this Bench during the Second Reading debate. However, I think that it would be as well for the Government to make absolutely clear why they are doing this and why they are insisting on this particular clause, despite the fact that it is not the solution to the problem that the noble Lord, Lord Thomson, suggested. I have some amendments to the schedule which is related to this matter, but they can wait until such time as we reach that schedule.
Lord MACKAY of CLASHFERN: As the noble Lord has said, the Thomson Committee did not propose the abolition of the first diet altogether. Perhaps I should explain very briefly the place of the first diet in our system. The main part of the solemn procedure in Scotland involves the second or trial diet and some time before that trial diet there is a mandatory first or pleading diet. Over the years that pleading diet has become more and more of a formality. However, there are some questions that can be resolved at that stage and, of course, if they are resolved it is very convenient from the point of view of making it unnecessary to bring the jury along, the witnesses along, or to have the attendance of the parties themselves—the prosecutor and the accused—at the trial diet.
Lord Thomson and his committee made proposals for making sure that matters which could satisfactorily be disposed of at that stage would be so disposed of. Paying attention to that, we thought that if we were to make the necessary provisions to enable the first diet to be used only when it can be properly used—when there is really a point that can be dealt with at the first diet—then there would be no harm in getting rid of it in all other cases. That is what we have proposed. We believe that it will prove a considerable simplification of the system and will

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enable the ritual to be dispensed with, leaving the substance to take effect when the opportunity arises.
On Question, Clause 12 agreed to.
Clause 13 agreed to.
Clause 14 [Prevention of delay in trials]:
Lord ROSS of MARNOCK Lord ROSS of MARNOCK moved Amendment No. 38D:
Page 11, line 38, leave out ("cause shown") and insert ("sufficient cause which is not attributable to any fault on the part of the prosecutor").
The noble Lord said: Clause 14 is the hoped-for clause dealing with the prevention of delays in trials. I think that it has been accepted in principle by most people and we, on this side, generally support it. However, I felt that there was some reason for querying the Government as to why there is a distinction. With this amendment, to line 38 on page 11, I have tried to remove this distinction so that the Bill reads the same as at page 12, line 27, and at page 13, line 13. I know that the Law Society in Scotland objects to this distinction where it is "cause shown" instead of having regard to fault—they cannot have regard to fault on the part of the prosecution. Perhaps the noble and learned Lord the Lord Advocate could enlighten me as to why we have this distinction and as to why he cannot accept this amendment and get rid of the distinction.
The Earl of SELKIRK: I have tabled an amendment which has the same purpose as that of the noble Lord, Lord Ross. I confess that I do not quite understand this because on the following page paragraphs 3 and 4 also deal with the extension of limitations, and in subsection 2(2) various limitations are imposed. In effect, how do we know that the prosecutor will not deliberately be at fault, that he will take some action which will make it impossible for the case to come on within the 12 months which is mentioned? I think that that is quite wrong. According to this, if he deliberately postpones or takes action to postpone a case, he could still get away with it. That is quite wrong. There may, of course, be some very good reason for that; I should be perfectly happy if there were. But I believe that this should
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be on the same footing as the other three occasions which are mentioned in the same clause, which can be found on pages 12 and 13 of the Bill. For that reason, I believe that an amendment of this sort is necessary. I willingly defer to the terms of the amendment of the noble Lord, Lord Ross, which are possibly better than mine—I know not—but in principle that is the point I wish to make.
Lord MACKAY of CLASHFERN: It is important to appreciate the distinctions which exists between the various parts of what is proposed here. For a considerable time in Scotland there has been a rule which limits the amount of time for which a person may be held in custody. Subsection (2) of the new Section 101 which we propose deals with the situation where a person is detained in prison awaiting trial. In that situation the proviso is that the power to extend shall not be available if the need for the extension arises from some fault on the part of the prosecution. The same is true in the clause which deals with summary offences where again the situation is one in which the person is detained, as your Lordships will see from line 42 on page 12. Both of these are in respect of persons detained. It is right that a very strict view should be taken of any application for extension arising in a situation where a person is in detention.
But Section 101(1) which is the subject of the proposed amendments by the noble Lord, Lord Ross of Marnock, and my noble friend Lord Selkirk, is a new provision designed to limit prosecution in solemn cases where the accused is not in custody. It is an entirely new protection for accused persons. In my submission, the same strictness is not appropriate in this new provision because, for one thing, the prosecutor must have regard to giving priority to people in custody. This is a problem which we face in practice at the moment. This new clause is intended to give as much protection as it is reasonable to give to a person who is not being detained pending trial. Therefore, that is the reason for the distinction.
The phrase which is used in the two provisos, to which reference has been made, "applicable to detention in custody", has been fairly strictly construed against the prosecution. I think that it would unduly hamper the proper prosecution of

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crime if one forced the prosecutor into too narrow a field where the accused person or persons in question are not in custody. In particular I want to draw the attention of the Committee to the circumstances in which this is likely to apply. It is particularly applicable in cases where the investigation is complex. If the prosecutor puts a tremendous amount of resource into these complicated cases, he might be able to bring them to trial, or be ready to go to trial, within the time specified, but very likely only at the expense of cases where persons are in custody.
Accordingly, while we seek to impose for the first time a limit in cases of this sort, we do so in a way which is not quite as strict as was available in cases of detention. The words which we have used are precisely the words which the Thomson Committee suggested at the end of paragraph 15.09 on page 80 of the Second Report. I would ask noble Lords to take the view that this is a reasonable step towards protecting people against undue delay in trials where they are not in custody.
Lord ROSS of MARNOCK: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 38E not moved.]
3.47 p.m.
Lord FRASER of TULLYBELTON Lord FRASER of TULLYBELTON moved Amendment No. 39:
Page 12, line 9, leave out from ("thereafter") to end of line 10 and insert ("he shall be for ever free from all question or process for the crime with which he was charged.").
The noble and learned Lord said: This amendment relates to the same clause to which we have just referred, that is to say Clause 101(2), which appears on page 12. This relates to the case where a man is in custody and has been in custody. As your Lordships—at least those familiar with Scots procedure—will know, when a man has been in custody for 110 days, at present his trial cannot proceed beyond that: if the trial has not been completed, he must be released. That has been found to be inconvenient. This Bill proposes to alter the provision so that, provided the trial is commenced within the 110 days, he can be retained in custody
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until his trial is completed. I thoroughly approve of that and think that it is perfectly right.
I simply seek to alter the words of the final sanction if the 110 days is exceeded. Perhaps I may ring a bell in the minds of those noble Lords who are more familiar with English procedure than Scots procedure when I say that this is generally considered to be the equivalent in Scotland of what is called habeas corpus in England. Habeas corpus procedure has no application in Scotland, but the sanction against a man being thrown into prison and left to rot there without being brought to trial is this 110 days' procedure.
The words which I propose will not, so far as I intend and so far as I am aware, affect the result as compared with the words at present in the Bill. All the same, it is important to change the words to the form which I propose. There are two reasons for that: it is not just a purely verbal alteration for its own sake. The first is that the words in my amendment would replace the last two lines of paragraph (b), at lines 9 and 10 on page 12. The paragraph says that if the trial has not been commenced within the 110 days:
"he shall be liberated forthwith and thereafter"—
and this is where my amendment would come—
"no proceedings shall be competent against him in respect of that offence".
I want to delete the words—
"no proceedings…"
and so on, and put back the words of my amendment,
"he shall be for ever free from all question or process for the crime with which he was charged".
Those words I am proposing are the words of the present law. They are contained in the Criminal Procedure (Scotland) Act 1975. They were contained in the immediate predecessor of that Act, which was the Criminal Procedure (Scotland) Act 1887, Section 43. That is the Act with which most Scots lawyers at any rate of about my generation were brought up. The words go much further back than that. They go back to the Act of 1701, which was entitled An Act to Prevent Wrongous Apprehension and Against Undue Delay in Trials.
These words have been the law of Scotland from 1701 to the present day, which is near enough 280 years. So far as

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I am aware they have given no difficulty in the way of construction. I do not know of any difficulty in applying them as they were particularly applied. They are a source of trouble and annoyance occasionally to the Crown because of the delay in getting on with the trial, but that would not be affected by the words of the Bill. The words have given satisfaction. They have achieved their object, and they should be left as they are unless the Lord Advocate is able to put forward some good reason for changing them. There may be some reason, but at the moment I am not aware of it.
The second point is that this remedy which is embodied in these words is one of the important constitutional rights of the subject in Scotland. As your Lordships may remember, this was a matter which was raised in Scotland in the Claim of Right of 1689 and in the corresponding Bill of Rights in England in 1689, when the grievances of the subjects were set out at some length. One of the constitutional grievances was that people were being kept in prison and there had been undue delay in their trials. The complaint was almost identical both in Scotland and in England.
When the Crown was accepted by William and Mary they promised to put right that grievance and arrange that no further delays of these sorts would occur. The way that that promise was implemented was in the Act of 1701, which I have mentioned, to prevent undue delay in trials. This being an ancient constitutional right of the subject, it should be enshrined in words of some dignity and with some imposing ring about them. The present words seem to me to be perfectly adequate but colourless and rather uninspiring. I prefer the words which, at the moment, contain the law and have done so for 280 years, that when the accused has not been brought to trial and his trial commenced within 110 days,
"he shall be for ever free from all question or process for the crime with which he was charged".
They seem to me to be appropriate words with which to enshrine this important right. I beg to move.
Lord MACKAY of CLASHFERN: I am happy to say that there is no difference in effect between Lord Fraser's proposal
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and what we wish to achieve. The only question is the choice of words. The best I can say is that we shall consider this matter, and I hope that the noble and learned Lord's eloquence in the matter will be as effective with everyone else as it is with me. I should perhaps say that if this amendment were accepted it would be reasonable to make the same provision in relation to the other two protections which this clause has, and we would endeavour to do that also if we are able to accept this amendment.
Lord ROSS of MARNOCK: I think that that is very reasonable indeed. The words, as the noble and learned Lord, Lord Fraser of Tullybelton, has said, have a ring to them. I can remember a long time ago sitting in consideration of a Bill to consolidate and bring up to date, I think the Naval Discipline Act, and that the words of Pepys in that Act had such a ring and history about them that we decided to leave them. It may well be that the Lord Advocate could do the same here and leave these time honoured words.
Lord FOOT: Before the noble and learned Lord withdraws his amendment, if that is his intention, perhaps I may raise a question about what the Lord Advocate said just now. He said that there was no difference in meaning between the words contained in the Bill and the words proposed by the noble and learned Lord, Lord Fraser. To my simple mind there is a substantial difference in their effect. The words proposed by the noble and learned Lord are:
"he shall be for ever free from all question or process for the crime with which he was charged".
Supposing a person has been charged with a complicated fraud. Supposing he has been charged with a fraud with, perhaps, 20 counts in the indictment—if there are counts in Scotland, and I do not know whether there are—or at any rate 20 items of different charge, and then there is a failure to bring him for trial within the specified period. Is it really right then that the police and legal authorities should be absolutely prohibited from questioning him about those matters in any particular?
It may be that other people are involved. It may be that the police want to pursue their inquiries into this complicated fraud,

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to see the extent of it and who else might have been involved. I should have thought—and of course I bow to whatever may be said by the noble and learned Lord, Lord Fraser, in the matter—that prohibiting any question addressed to that person for ever is going very much further than what is provided in the Bill; namely, that thereafter
"no proceedings shall be competent against him in respect of that offence".
Lord FRASER of TULLYBELTON: With respect to the noble Lord, Lord Foot, I do not think that he is right in his contruction here, because what he is to be free from is "all question or process for the crime". I do not think that that means questioning about the crime. No doubt the Lord Advocate will consider this matter. With the leave of the Committee, shall withdraw this amendment.
Amendment, by leave, withdrawn.
3.57 p.m.
Lord WHEATLEY Lord WHEATLEY moved Amendment No. 40:
Page 12, leave out from beginning of line 40 to end of line 3 on page 13.
The noble and learned Lord said: I beg to move the amendment standing in my name and that of my noble and learned friend Lord Fraser. May I say at the outset that I personally am all in favour of expediting trials in the criminal courts. Nothing that I say should be construed as running contrary to that. The effect of my proposed amendment is in relation to what would be the new Section 331A, and that is the counterpart in summary proceedings of the matter we discussed in relation to solemn procedure earlier, in a previous amendment.
I am all in favour of doing all that is reasonably practicable to expedite criminal trials because the delays that occur at the present time are really a blot on our criminal procedure. People have to wait in summary courts not only for a few months but sometimes for nine months and more before they can get a trial in some of our busier courts. That is what is behind this amendment. It proposes that a person must be brought to trial within 40 days after the bringing of the complaint into court.
That goes a step further back than Thomson. When Thomson proposed the
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40 days it was only 40 days from the first diet and not from the bringing of the complaint into court. But we know, unfortunately, from our experience, that our sheriff courts in Scotland—and if I may mention two in particular, Glasgow and Edinburgh—are so heavily overloaded that it would be a practical impossibility to observe the provisions of this proposed new section. It could result in a flood of applications under subsection (2)—which, at the present stage, are to a single judge of the High Court—in order to get an extension of time.
I do not think I need remind the noble and learned Lord the Lord Advocate—because he knows probably better than I now that he is occupying the position which I occupied 30 years ago—that the problem in these busy sheriff courts is very serious indeed. Therefore, while approving of the object underlying the clause, I think that to bring it into operation with the passing of this Bill would create a situation which would be impossible to cope with in these busy sheriff courts and would just result in a flood of applications for extension to a judge in the High Court.
I therefore ask the noble and learned Lord and his colleagues in Government to consider very seriously whether or not, in passing this clause, it should be under the reservation of not bringing it into operation until such time as the Government are satisfied that it would be practicable to do so. In saying that, I think the touchstone must be the busy sheriff courts, because I would regard it as wholly undesirable to have one set of rules for the busy courts in Glasgow and Edinburgh and another set of rules for the country courts.
It might therefore be appropriate if the Government were to incorporate a provision to the effect that the clause would not be brought into operation until an order was issued by the appropriate Minister, in the hope that the people responsible for the staffing of the courts and the provision of new courts may be able to help us in Scotland to get rid of this terrible backlog, which imposes great hardship on many people who have to await trial in our busy sheriff courts.
Lord ROSS of MARNOCK: The noble and learned Lord, Lord Wheatley, has something here. There is no doubt at all that experience of proceedings with summary justice in Scotland today shows that 40 days would be the exception rather than the rule, and while it is entirely commendable that the Government should seek to insert this provision. I think it is giving a false impression that there will be such a speed up, unless there is much more information of something new that is to happen than is evident to the rest of us. As the noble and learned Lord said, it will lead to a very considerable further blockage in the High Court in finding a judge probably to sit all the time dealing with many of these cases.
Does the noble and learned Lord the Lord Advocate have any information about what proportion of cases would meet this stipulation of 40 days at the present time? My information, and the experience I have had as a result of getting complaints as a Member of the other place, was that there were considerable delays, far longer than 40 days: all very much to be regretted, but I do not think we should give the false impression that we can do this right away if we do not have the facilities to do it.
4.4 p.m.
Lord WILSON of LANGSIDE: The noble Lord, Lord Ross of Marnock, is right to say that there are many delays greater than 40 days in the summary criminal courts, especially in the busier sheriff courts to which the noble and learned Lord, Lord Wheatley, referred. As I understand it, this provision in the new proposed Clause 33(A) refers to people who are detained in custody pending trial, who I should have thought would be a small minority of the number involved; and I should have thought that in most courts a trial diet could be fixed without too great difficulty, even in the busier courts, within the 40-day period, or a period not very much greater than that.
Lord DONALDSON of KINGS-BRIDGE: This is the only occasion on which I shall open my mouth on this Bill, but as I have every intention at some stage in the next few months of suggesting in your Lordships' House that a similar rule be brought in for my own country of England. I thought it might be wise to
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get up and say so. The position at the moment is that people whose crime carries a sentence of x months are being held, in this country, for 2x months before they are tried and sentenced. I do not mind what the difficulties are; I regard this as totally intolerable, absolutely unjust and something which must be dealt with, and this seems to me the only way it can be dealt in. If the nation in its present condition cannot bring people to trial within a reasonable time, it should release them, as this says. I am sorry to come in as an Englishman on a matter which is purely Scottish, but I hope the Government will not give way on this; and I hope that as a result of their excellent northern example we can bring the same thing in to the disgraceful state of our prisons here, where people on remand are kept in intolerable conditions for far too long.
Lord MACKAY of CLASHFERN: So far as I am concerned, interventions by English noble Lords are extremely welcome, particularly when they are so supportive of the Government, as was that intervention by the noble Lord, Lord Donaldson of Kingsbridge. The intention of this clause, as noble Lords have appreciated, is to make it essential for a person detained in custody on a summary complaint to be dealt with within 40 days, and I do not think anyone has suggested that that is other than a good thing. So far as resource implications are concerned, we have tried to take account of that. Of course this clause, like the rest of the Bill, would be brought into effect by an order made by the Secretary of State under Clause 80(2).
So far as the present situation is concerned, I believe that regarding detention in custody in summary cases we are by and large able to meet this particular limit. I agree there are unfortuate delays in the summary courts and delays on indictment, too, which we would very much like to eliminate, and we are doing our best to be as efficient as possible in bringing these matters forward. But so far as summary detentions are concerned, we think we are achieving this limit by and large and that it should not impose impossible difficulties, and I think all are agreed that it is a most desirable target.
Lord WHEATLEY: The purpose of moving this amendment was to ensure

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that it could be done from a practical point of view, and my experience is such—although I stand corrected because the noble and learned Lord Advocate has sources of information which are denied to me—that some of the sheriff courts, and the two in particular to which I referred, are so overloaded with work that it was not likely that it would be possible to bring this into operation at the present time. That is why I suggested that the Government, who are in control of the statistics, would be able to determine when it would be an appropriate time to bring it in. If the Lord Advocate—contrary to the view I have, but I accept his information—is of the opinion that even in Glasgow or Edinburgh the sheriff courts could give effect to this when the Bill is passed, then I must accept that assurance; but the Government ought to be very careful to be satisfied that it can be done before it is done.
The Earl of SELKIRK: The noble Lord, Lord Donaldson of Kingsbridge, made a very serious accusation against the organisation of law courts in England. May I ask the noble and learned Lord Advocate to say whether a similar situation exists in Scotland? I would put it this way: are too many people being detained on summary cases who need not be detained? Are we not making use of the recent Bail Bill? Is there any evidence that what Lord Donaldson described actually exists today in Scotland?
Lord MACKAY of CLASHFERN: As noble Lords know, the Bail Act has not yet come into operation, although we expect it soon to do so. I think it fair to say that I am doing all possible from the point of view of the Lord Advocate to see that people are not unnecessarily detained in custody generally across the whole field of criminal proceedings. Of course, this discretion has to be exercised responsibly, but we are doing our best to make sure that no person is unnecessarily detained in custody. This sanction will help in the framework to achieve that result.
Lord WHEATLEY: As a judge who deals with all bail appeals in Scotland from the other courts, I am glad to hear the assurance given by the Lord Advocate, because it will certainly lessen my work which I have to carry out on every sitting
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day of the court. In the circumstances, and in view of the assurance that the Lord Advocate has given about the bringing into operation of this proposal, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
4.11 p.m.
Lord WILSON of LANGSIDE Lord WILSON of LANGSIDE moved Amendment No. 40A:
Page 13, line 4, leave out ("A single judge of the High Court") and insert ("The Sheriff").
The noble Lord said: As it stands, the Bill provides that where an application is to be made for an extension of the period mentioned in subsection (1)—with which the noble and learned Lord, Lord Wheatley, has just been dealing—within which the summary trial may be completed, such application is to be taken before a single judge of the High Court. The amendment which I propose seeks to give this jurisdiction instead to the sheriff. I suggest that this would be more sensible for two reasons. First, it would probably be quicker, and, secondly, it would certainly be cheaper, because it would not be necessary to instruct another solicitor in Edinburgh, nor would it be necessary to instruct counsel in the application. I doubt that it would be suggested that this is not within the competence of the sheriff because of course there are many similar matters with which the sheriff deals without undue difficulty. So obviously sensible is this amendment as I view it, that, if it is opposed, I can only assume that there is some esoteric point of law which, in the obtuseness which has been a burden to me all my life, I have failed to observe. I beg to move.
Lord MACKAY of CLASHFERN: There is no question of any esoteric point of law here, but in our view a very important point of individual or civil liberty is involved. If this provision is to be enacted, in our view it will be an important safeguard of the liberty of the subject, on much the same lines as the provision of much longer memory—to which the noble and learned Lord, Lord Fraser of Tullybelton, has referred—since 1701 in solemn cases. This will be a somewhat similar provision in relation to summary cases. Although the facts and other matters to be weighed would be within the competence of the sheriff—there is no esoteric point of law, as

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I have said—the subject matter itself is of great importance. We expect that applications for extension would be extremely few and therefore would not impose any particular additional burden on the noble and learned Lord, Lord Wheatley, or whoever might be called upon to assist him in the discharge of this function. We would think it appropriate that this function should rest with a judge of the High Court, and I hope that your Lordships will feel disposed to agree.
Lord WILSON of LANGSIDE: I have listened to the noble and learned Lord, Lord Mackay of Clashfern, with great interest and I could see the force of what he says but for the provisions of Clause 14 of the Bill and, in particular, the proposed new Section 101 to the 1975 Act, which, unless I misread it, provides that applications for an extension of the 12-month period may be taken before the sheriff. This is in much more serious cases on indictment; but perhaps I have missed some particular point.
Lord MACKAY of CLASHFERN: That arises where a person is not in custody and we are perfectly content that the sheriff should decide in that case, but a decision whether a person is to be kept in custody on a summary matter for more than 40 days is, we consider, one which should rest with a judge of the High Court.
Lord KEITH of KINKEL: It appears from subsection (3) of the proposed new section, Section 331A, that appeal against the grant or refusal of an application under the proposed new section is to the High Court. Although the considerations to which the noble and learned Lord the Lord Advocate has drawn attention are important, might they not be met sufficiently by this provision for appeal to the High Court, if the matter were to be dealt with in the first instance by the sheriff? After all, the sheriff is the person who is to try the offence in question. Is it not reasonable that he should at first instance be in charge of the question whether the period of 40 days should be extended? When one considers that some of the applications may be made in a busy sheriff court, and that the necessity of bringing the process to Edinburgh and so on would involve time as well as expense, do not the considerations to which the noble and learned
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Lord referred find adequate satisfaction in the appeal proceedings, and might it not be in the best interests of the administration of justice overall that the amendment be accepted?
Lord MACKAY of CLASH FERN: Certainly we shall consider this matter in the light of what has been said, but based upon present advice our view is that the considerations are of such importance that in the first instance the case should properly go to the High Court.
Lord WILSON of LANGSIDE: I am grateful to the noble and learned Lord for what he has said about giving the matter further consideration. Will he consider the possibility that the matter raises such questions of constitutional importance related to the freedom of the individual and so on that perhaps the sheriff principal would be capable of dealing with these matters? That would be just as inexpensive as going to the sheriff, and it would be just as speedy, too, because in the ordinary courts, and especially in the busier courts, he would probably be in the same building and so it would not be necessary to go to Edinburgh.
Lord WHEATLEY: That is quite wrong. I do not want to intervene in this matter because I might have to declare an interest, but so far as the sheriff principal is concerned, that arrangement might be all right in Glasgow or Strathkelvin, but the sheriff principal in Grampian or Tayside is not immediately available, and I could quote many other examples. I do not think that this suggestion is on.
Lord WILSON of LANGSIDE: I stand corrected on these points. One makes these general assertions and is then picked up on them, but the fact remains that what I suggest would be cheaper and quicker. If the noble and learned Lord thinks that I should declare an interest, I would say—I have declared this interest so often to your Lordships that I have myself become bored with declaring it—that from time to time I sit in the summary criminal courts in Scotland; and I did not think that that raised the question of an intense interest in this matter. While I accept the correction of the noble and learned Lord, Lord Wheatley, that in the far-flung outposts of the Scottish

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empire the sheriff principal is not in the same building as his sheriffs, in the busier courts he is nearer to them. Whether or not he is in the same building, what I suggest will certainly be cheaper—it will save the legal aid fund some money—and will certainly be quicker. In those circumstances, I am prepared to withdraw the amendment, and beg leave to do so.
Amendment, by leave, withdrawn.
Clause 14 agreed to.
Clause 15 [Intermediate diet in summary procedure]:
On Question, Whether Clause 15 shall stand part of the Bill?
4.20 p.m.
Lord ROSS of MARNOCK: This clause introduces into the summary procedure what is to be called an intermediate diet. This particular diet can be called for specific limited purposes; that is, to find out the state of preparation of the prosecution and of the accused with respect to their cases, and whether the accused intends to adhere to the plea of not guilty. I think the purpose is admirable, because it is to try to get at the person who pleads not guilty and then, eventually, when the trial diet comes along, changes his plea, having put off for as long as possible the evil hour of conviction. But this clause has not been all that well received in Scotland. I do not know whether the Lord Advocate has seen the statement on the Bill by the Law Society of Scotland, but in that they totally reject this clause. I do not necessarily say that I do, but I think it is as well that your Lordships' Committee should know exactly what the council's opinion of it is—total and complete rejection of the clause.
There are others who are equally concerned about it, and who feel that the clause would not improve the present position. In other words, anyone who pleads not guilty and intends to stick to that plea is not going to be affected by the intermediate diet; it is not going to speed up matters in that respect. Indeed, I do not think it is going to affect anyone who is pleading guilty at the start and is going to change his plea at the last minute. There may be other cases where
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you will get a change of plea, but, as I understand it, there is a perfectly well known procedure at the moment in respect of a change of plea and accelerating the trial which is pretty well used and considered sufficient.
There is the other point that this is bringing the judge into the plea adjustment, the plea negotiation; and there is a fear that if someone does not change his plea at the intermediate diet but does so when it comes to the trial diet, that may well result in, or lead to, heavier sentencing in respect of those who plead guilty at the last minute. The Government may well have very considerable love for this particular clause, but when so many of the Lord Advocate's own professional colleagues do not like it then a simple-minded layman like myself must be persuaded—and persuaded, not in legal language but in lay language—that this is worth doing. It is a very considerable departure.
Lord KINROSS: It may be of interest to your Lordships to have the view of the Law Society of Scotland, to which the noble Lord, Lord Ross of Marnock, has just referred. I do not think it is right to say that they were diametrically opposed to this clause. The council appreciate that the proposal for an intermediate diet between the pleading diet and the trial diet in summary proceedings is intended to deal with situations where accused persons plead guilty on or just before the day of their trial, causing inconvenience to witnesses and a waste of the time of judges, solicitors, prosecutors and others. At the same time, the council do not see how this proposal will improve the present situation.
There are three sets of circumstances. First, there are those persons who plead not guilty at the first diet with the genuine intention of going to trial. The intermediate diet would not matter to them and would not achieve the object. Secondly, there are those persons who plead not guilty at the first diet with the undisclosed intention of pleading guilty at the trial. Persons who take this course do so, for one reason or another, to postpone the evil hour of their conviction. Again, the intermediate diet would not matter to them; it would merely be another opportunity to postpone that evil hour. Thirdly, there are those who would plead

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not guilty at the first diet, would instruct a solicitor to investigate the nature and extent of the Crown case and, thereafter, would take advice on whether or not a plea of guilty or of not guilty should be tendered. If the advice is to the effect that they should plead guilty, then there is already an adequate and frequently-used procedure for accelerating the trial diet by joint minute to an earlier date, and for having the matter disposed of. In such circumstances, intermediate diets would be unnecessary.
The council take the view that the proposed intermediate diet will be of limited use, or of no use, in dealing with the problem which it purports to alleviate; and that such limited benefit as might be derived from its introduction would not in any circumstances justify the considerable cost of judicial manpower, solicitors' fees and other expenses necessarily associated with its operation. The cost to the legal aid fund would be tremendous. In these circumstances, I look forward to hearing the answer of the noble and learned Lord the Lord Advocate to this Motion. Here, may I be allowed to make a small personal digression by saying that some years ago, when the Lord Advocate gave up the study of mathematics and very sensibly took up the law, he served a short time in my office before being called to the Bar. He showed himself to be extremely able, hard-working and very versatile. These are attributes which I think he has already shown in your Lordships' House.
Lord WHEATLEY: I think there is a problem here which has to be faced up to, and it has already been touched on by the noble Lord, Lord Kinross, in his review of the memorandum published by the Council of the Law Society of Scotland. But there is this experience, and it is linked with the problem of legal aid. An accused person is brought before the court, and at that stage he probably gets legal aid from the duty solicitor. At the first diet, which is the pleading diet, he pleads not guilty, and, in the situation to which I referred in the discussion on an earlier amendment, a diet of trial is fixed for months ahead. I am sorry to say that in many cases nothing is done between the first diet and the second diet. Then, on the morning of the trial diet the
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solicitor goes down to the court half-an-hour before the court is due to start, and he sees two or three clients, as the case may be—and sometimes that is the first time he has seen the client since the pleading diet. In the result, he then gets instructions to plead guilty, and so the time of the court, the time of the witnesses, the time of the fiscal and the public money involved are all sacrificed.
Now there is something to be said—whether or not this is the right method of doing it is a matter for your Lordships to decide—for having a system whereby the court can say, in that situation, "What is the position of this case? If we can accelerate the diet, if we have diets falling in and we have room for new diets, how far have you progressed in this ease? Does your client still wish to adhere to his plea of not guilty?", and so remove that blockage which is clogging up even further the work of the sheriff courts and, unfortunately, causing a great deal of public inconvenience and expense.
Lord GALPERN: May I ask whether the noble and learned Lord the Lord Advocate has any knowledge of, or is in possession of, figures showing the number of accused who plead guilty during the course of the trial itself? It might help us make up our minds on this matter.
4.30 p.m.
Lord MACKAY of CLASHFERN: I do not have the figures with me at the moment. I have had them from time to time and it is abundantly plain, as all noble Lords who have spoken on this matter have mentioned, that there is a problem with witnesses being assembled, the trial ready to proceed and a plea of not guilty changed to a plea of guilty at the last minute—with consequent inconvenience to people who have no real concern with the case except as witnesses. In that situation the Government feel it is important that something should be done; and this proposal of Clause 15 follows the very idea which the noble and learned Lord, Lord Wheatley, mentioned. It is correct to point out that Clause 15 is not imposing a mandatory diet; it only gives the court power to have such a diet. It is in the nature of an experiment, really, which cannot go ahead without statutory authority. One has seen difficulties of this kind before. If one wants

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to experiment in procedural matters there often needs to be something that is based on statutory authority. That is the situation here.
The difficulty is to devise the sort of procedure which would be suitable. Clause 15 is intended to give the court an opportunity—particularly having regard to the legal aid position to which the noble and learned Lord, Lord Wheatley, referred—to see, in advance of the trial diet, what is the position, how the case is progressing, whether it is likely that it will be ready for the diet or whether it is likely that, at the last minute, a plea of guilty will be tendered. It is very difficult for anyone to be certain of what is the real reason for delays in decisions. Obviously the accused person tends to put off the evil day. Sometimes he goes to a busy solicitor who has many other things to do and who tends to postpone the preparation. The legal aid is granted normally without the possibility of much investigation and it seems appropriate that the court should have an opportunity, if it wishes to take it in suitable cases—and that is all that we are providing for—to look into the state of preparation. Rule 10 of the Criminal Legal Aid Rules 1964 provides a possibility of the withdrawal of legal aid for non-co-operation by the accused.
I have seen some indications from the Law Society of Scotland that, occasionally at least, solicitors have difficulty in contacting their client. The client, having got legal aid, and the trial being a fair distance off, does not have much incentive, perhaps, for consulting with his solicitor. particularly as possibly he has no financial responsibility in the matter. In that situation it seems to us that this proposal to have an intermediate diet as a matter of discretion to the court is something that is worth having, a workable means of tackling a problem which is generally recognised to exist.
I now have the numbers for which the noble Lord, Lord Galpern, asked. In 1978, in summary procedures (and that is what we are dealing with), the number of pleas of guilty entered at trial diet so that the trial did not need to proceed totalled 15,899, which represents 11.62 per cent. of the total number of cases. The number of trials that went on was 12,611; so that, on that analysis, more
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trials went off as a result of a plea at the last minute than went on. That is a measure of the problem that exists and which we think it right that legislation should put forward some attempt to solve. We do not claim that this will necessarily produce an answer to all the problems. My noble friend Lord Kinross said that the Law Society thought it would be of limited use or of no use: Even if it is of limited use, where it is a discretionary remedy I would suggest to the Committee that this is a clause which should be left standing.
Lord ROSS of MARNOCK: As I understand it, the Government want to make an experiment but they cannot proceed with it unless they get statutory approval. I do not think that it was entirely right of the noble Lord, Lord Kinross, to suggest that I misled the Committee about the Law Society of Scotland. It may well be that the Law Society of Scotland has been misleading us all by sending us different communications. I will read out mine:
"Although the Society is continuing to look at this problem that this clause seeks to remedy, it objects totally to this clause".
To "object totally is to object totally—which was what I said. The last sentence in the document sent to me says this:
"The clause would be of no value in eradicating the problem it purports to eradicate; namely, a late or very late change of plea".
On the understanding that the noble and learned Lord the Lord Advocate made, that this was an experiment, I am not prepared to go ahead with the deletion of the actual clause. I do not know how we are going to get further information. Is it his intention, in some report or in some way, to let us know how this proceeds and whether it has been successful? We are all aware of the problem, but I have my doubts whether it will be satisfactorily answered by this particular clause. That being so, I have no desire to—
The EARL of SELKIRK: May I ask a question? Can the noble and learned Lord the Lord Advocate say who initiates the intermediate diet, where it starts from? Does the court do it on its own initiative, or can the accused or the prosecutor initiate an intermediate diet?
Lord ROSS of MARNOCK: As I understand it, it is the court. This gives

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the initiative to the court for the first time. At the present time, the defence and the prosecution can come together and make a motion to the court and have an earlier trial and so shorten the proceedings. This is part of the argument that the present procedure, which is well known and well used, is satisfactory; but this would be additional to the present procedure. From the point of view that it is additional and experimental, I am prepared to let it go.
Lord FOOT: Before the noble Lord finishes, may I ask this? It follows the question asked by the noble Earl, Lord Selkirk, about who initiates this application to the court. The noble Lord, Lord Ross of Marnock, if I understood him correctly, said it would be up to the court to decide whether they want to initiate this procedure. Surely, the court are not going to do it on their own, unless they have some reason to suppose that the convening of an intermediate diet, (if those are the right words) would be useful, helpful and have some point. The court would not, of its own initiative, invoke the procedure. Does it not follow necessarily that the procedure would be invoked either by the prosecutor, because he has some reason to think that the procedure would be useful, or by the accused or his solicitor because he thinks the procedure would be helpful to the accused? If that is the case, what harm is there in carrying through this experiment to see how it works out? The legal aid will be resorted to and expense will be incurred only if one of the parties, at any rate, to the procedure thinks that this procedure has some merit and purpose in their particular case. I do not know whether the noble and learned Lord the Lord Advocate could comment on whether I have got it right.
4.40 p.m.
Lord HALE: With respect to the noble Lord, Lord Foot, to whom I have listened with admiration and assent almost entirely throughout this discussion, if the intermediate diet is to be summoned by the sheriff or whoever the prosecuting officer is, it seems to me one is producing a procedure in which the accused will be asked to say whether he wishes to change his plea at that stage, and presumably with a certain
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intimation that on the whole his case is considered one in which a plea of guilty might be desirable. One is asking a prisoner to reply to certain questions that relate to the plea he proposes to make when he is ultimately brought to trial.
This is a complex matter. What was worrying me throughout the previous discussion was the assumption that pleading guilty is a purely simple matter for decision and it depends upon guilt or prospects of conviction.
In the English procedure—and, I have no doubt there is something in the Scots' procedure—that is a very important rule which weighs on the shoulders of the advocate that there are certain circumstances in which he may not put forward a normal defence of guilty because it involves making imputations upon another person connected with the case, against whom that advocate has sufficient information to be able to judge that such an imputation would be unfair.
I remember being called upon to summon counsel to a special conference in a case in which my client emphatically protested his innocence—it was a case of theft from a shop where only one of three persons could possibly have been involved. In view of certain responses that he made we had to tell him on the following morning that there was no more we could do. He could plead "not guilty", but we could not possibly put forward the defence which we had intended to put forward. When one talks of the difficulties of delay, the trial and so on, that was an occasion which I am afraid arose in my asking for an acquittal for a trial before the learned recorder of Burton on Trent. I was not aware at the time that the learned recorder had never sat in court but was an Oxford don who had been appointed with the assurance that he would never be called upon to sit. The new town clerk of Burton had never summoned sessions—and there had not been a session for years. He had to advertise the Assizes. My friend the mayor of Burton on Trent was called upon to provide an elaborate lunch for the Bar. There being no other case on the list, our plea of guilty finished the proceedings at five past ten in the morning and there was no one left in Burton on Trent—which is not an attractive place—to attend the lunch. This talk now of

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"We have lost an hour here or there" about a delay seems to be taking rather an elaborate view.
I put forward seriously the question about what happens at the intermediate diet in relation to the plea, if the main purpose is to find out a little more information on the duration of the trial. I was told that the present procedure (with which I have no connection) in England goes a long way for that purpose. The right to change your plea under special circumstances at the last minute may arise, not from circumstances that affect the accused alone but which may affect members of his family. In spite of the formal statements that we get from the courts about the difficulty of plea bargaining, it may arise from some circumstances in which plea bargaining is held to be reputable because of special circumstances.
Lord MACKAY of CLASHFERN: The situation so far as the clause is concerned is that it will be a power in the court. I have no doubt that the court in exercising the power would have regard to all the circumstances of the case as these were laid before it by the prosecutor and the defence. I should like to make it absolutely plain that there is no intention of anything in the nature of plea bargaining in connection with this proposal. The idea is to find out the state of preparation of the defence. It is not to prevent last minute changes of plea where that is unavoidable. That can happen, as the noble Lord, Lord Hale, has pointed out. Some change of circumstance can arise at the last minute which gives rise to a change of plea. We feel that there are circumstances in which the last minute change of plea is due to the late stage of preparation. It is that point that we desire to deal with here. It is really a matter with which the court itself has been concerned from time to time, pointing out the inconvenience that is caused both to the court and to others, and pointing out the delay to other cases caused by making available diets of trial which are not taken up. The whole thing becomes cumulative; it is a serious problem. I am sure the Committee would welcome anything that would contribute to solving it.
Clause 15 agreed to.
Clause 16 agreed to.
Clause 17 [Failure of accused to attend diet in summary procedure]:
On Question, Whether Clause 17 shall stand part of the Bill?
The Earl of SELKIRK: I want to draw attention to Clause 17. It appears to me to contain a straightforward example of double jeopardy. Subsection (2) says:
"Without prejudice to any power which the court may have to deal with the accused for contempt, an accused who without reasonable excuse fails to attend any diet of which he has been given due notice, shall be guilty of an offence and liable on summary conviction—".
It goes on in the next subsection to say:
"…notwithstanding that the total of penalties imposed may exceed the maximum penalty which it is competent to impose in respect of the original offence".
Is it really necessary? Does it want quite as blatantly and openly to have a case of double jeopardy? I should have thought it could be done in a different way, and that double jeopardy was not necessary here.
Lord MACKAY of CLASHFERN: The intention is not to make the accused liable to double jeopardy in the strict sense. It is simply making clearer what is in any event clear: that the categorisation of the particular offence by statute does not affect the court's power at common law. It does not mean that for exactly the same action one would be subject to both of these penalties at the same time.
The provision is in line with the provisions which have been made in the Bail Act. This is a situation in which bail would not be in issue because the accused has not been required to provide any undertaking or anything of that sort in the nature of bail. He is being cited to appear. It seems appropriate as part of the structure that if he does not turn up he should at least be liable to a penalty of the order which is provided in line with the bail provisions.
On Question, Clause 17 agreed to.
Clause 18 [Desertion of trial diet]:
4.50 p.m.
Lord WHEATLEY Lord WHEATLEY moved Amendment No. 41:
Page 15, leave out lines 26 to 28.
The noble and learned Lord said: I must apologise for what is a very technical matter, but it is one of some importance in the courts. May I say that while my amendment merely provides a suggestion to leave out lines 26 to 28, which would be subsection (3) of the proposed Section 338A, it equally applies to the previous provision in relation to the solemn procedure—that is, subsection (1A) of the new proposed clause mentioned above in Section 127 of the 1975 Act.
This provides that the prosecutor shall not be in a position to raise a fresh libel in a case where the court has deserted the trial diet simpliciter, and the corresponding provision further down reads:
"Where the court has deserted a diet simpliciter under subsection (2) above, it shall not be competent for the prosecutor to raise a fresh libel."
If the prosecutor deserts pro loco et tempore then he is always entitled to raise a fresh libel. The question arises as to whether he should be entitled to do that when the court has deserted a diet simpliciter. That means, for all intents and purposes, that particular process is brought to an end.
This proposal here would seem to impinge on the traditional right of the Lord Advocate, as the public prosecutor in Scotland, to determine if a prosecution should be taken against a person who has been accused of a crime, albeit there have been previous proceedings which have come to an end by their being deserted by the court simpliciter. The one exception I can think of at the present time to the right of the Lord Advocate as public prosecutor to prosecute is where the Lord Advocate has intimated that he will not take any further proceedings against an accused person, whether that intimation is made publicly in open court or publicly by any other means.
The content of these two subsections to which I have referred would seem to stem from the Thomson Report at page 146. The Thomson Committee appear to have proceeded in their thinking on this from an opinion expressed by one of my predecessors, Lord Justice Clerk Moncrieff. That was in 1872, so there have been a few of us in between. Lord Justice Clerk Moncrieff, whose opinion in part relative to this matter is quoted in the Thomson Report at page 146. seemed to base his
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opinion on his reading of the treatise by Baron Hume on Crimes. I should explain to non-lawyers that Baron Hume is regarded as the doyen of our common law in the criminal sphere; and when one is in difficulties about any matter of principle in Scots law, inevitably one finds counsel and the court resorting to Baron Hume on Crimes. It may well be—I put it no higher than that—that Lord Justice Clerk Moncrieff misread or misinterpreted what Baron Hume on Crimes said on this subject at page 277, and indeed that Lord Justice Clerk Moncrieff had actually said what was contrary to that which Baron Hume had enunciated in his treatise on Crimes.
I do not want to get involved in an argument upon that because it would be out of place here in any event; but fortunately this very question has been the subject of an appeal in the criminal appeal court in Scotland within the last fortnight. The judgment has not yet been delivered; it was not the division of the Appeal Court over which I preside which was sitting in the case, and I do not know what the judgment will contain. It will be issued very shortly and it will deal with that very point. I should therefore like to suggest to the Lord Advocate, in that situation, that he awaits the judgment of the other division of the Appeal Court in this matter and considers it very carefully and, in the light of that decision, decides, along with his colleagues, whether the retention of these two proposed subsections is justified. I so move.
Lord MACKAY of CLASH FERN: Naturally, I shall be glad to study the judgment to which the noble and learned Lord has referred. May I say just a word about the basis of this proposal. The basis of it is that the present law allows the prosecutor to raise a fresh case where the court has deserted the diet without qualification against his will. Where the court does so desert the diet without qualification against the will of the prosecutor, this clause proposes that that should bar further proceedings. But, of course, that would be a decision of the court in that case which the prosecutor could appeal to have altered. In trying to balance all the matters which should go into this Bill, we thought—though I agree that it is a limitation of the powers of the Lord Advocate as they have hitherto

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been understood—that it was a reasonable limitation to propose. However, I should certainly be glad to look at the matter in the light of the judgment to which the noble and learned Lord, Lord Wheatley, has referred. I thought it would be useful that your Lordships should know our present view on the matter.
Lord WHEATLEY: In the light of that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
Clauses 19 and 20 agreed to.
Clause 21 [Trial may proceed in accuseds absence if he misconducts himself]:
4.58 p.m.
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 41A:
Page 17, line 34, after ("removed") insert ("for such a period as may be necessary ").
The noble Earl said: It would perhaps be convenient to your Lordships if I were to take Amendment No. 41A with Amendment No. 41B, if that is not objected to by the noble Lord, Lord Ross. This raises something of a new principle in Scots law. I do not think the noble and learned Lord the Lord Advocate would differ from Green's Encyclopaedia which says it is a fundamental principle that evidence should be taken in the presence of the accused. However, when we come to the consolidated Act of 1975 we find there are one or two exceptions. One is insanity and another refers to certain cases where the penalty cannot be imprisonment. This procedure goes quite a bit wider than that. It allows the accused to be removed from the dock as part of the interruptions he is making; and Clause 1 deals with the solemn procedure. Clause 2 deals with summary procedure. I can guess the reasons for this, but no doubt the Lord Advocate can give us better reasons.
I think there are people today who question the standing of the court and of the law, and if it is done today it generally gets a fairly wide repercussion in the media, whether in the papers or on television. It is a very good way of advertising some case you want to ad-
1206
vertise. I can see that, and maybe this is going a little further today than it ever did before.
The words of the clause which concern us are these:
"…an accused so misconducts himself that in the view of the court a proper trial cannot take place…".
I am sure no one would feel that an improper trial should take place: that is to say, it is quite impossible for a trial to go further if it is improper. If it is necessary, the question that arises is: what should be done'? At the present time, I suppose that the court will be adjourned. Perhaps there are cases about which the noble and learned Lord the Lord Advocate can tell us. There is then the expensive business concerning the jury, the witnesses and so on. It may be necessary in some cases that the accused should be removed, but the conditions in which that can happen should be very strictly limited.
I have two suggestions to make here. First, you should exclude altogether summary trials; that is, subsection (2) of Clause 21. This would also exclude district trials, which are presided over by those who are not trained in the law and who have not been brought up to the discipline which the law could impose. In any case, it is not very serious to have to adjourn a summary case. So many people are not involved and it may not be very difficult to bring on another case, until the matter has been cleared up. But with solemn procedure, it is a big business. The court will have been assembled and the witnesses will be there. Not only that. If this power exists, a presiding judge could give a warning which, in many cases, would be sufficient. So it seems to me that this power should be confined to cases of solemn procedure, and that the accused should be absent only for the absolute minimum of time. No doubt half an hour in the cells would make him take a different view. I beg to move.
Lord FOOT: I wonder whether I might make a purely technical point. Does the noble Earl consider that the words that he proposes should be inserted under the proviso in Clause 21 would be better inserted after the word "removed" in line 35, rather than after the word "removed" in line 34?
The EARL of SELKIRK: The noble Lord is probably right. I shall not argue with him.
Lord MACKAY of CLASHFERN:The purpose of this clause is, as my noble friend Lord Selkirk has said, to deal with the situation where a person who is on trial deliberately misconducts himself in order to make the trial impossible to conduct in a proper manner. I am glad to say that so far this has not happened in Scotland, but the risk of its happening is apparent from what has happened elsewhere. It is much better in this situation to be prepared in advance, than to give a person who misconducted himself the opportunity of the publicity of trying to get legislation to deal with that case.
So far as the suggestions are concerned, we would take it that if this power was given to the court it would be used only in the most extreme circumstances, and therefore the court would warn, perhaps more than once, before it put such a power into operation; and, of course, the existence of the power would give force to the warning. As regards the time for which it would continue, it would always be open on a construction of this clause for the court to revoke the order. It would have power to exclude the accused only so long as was necessary in order to allow the trial to proceed, and therefore it would seem that expressly to provide so might not be necessary.
So far as summary trials are concerned, the problem could exist there. I agree with what my noble friend said. The problem then would not be so serious, but, on the other hand, it would be very difficult to deal with. One method of dealing with it that might appear would be to put the accused on indictment, and use the power if it was given on indictment, assuming that the offence was one which could be dealt with in that way. But, on the whole, we thought that if it was right to have it in solemn procedure, it was right also to have it with the same kind of safeguards in summary procedure, and that is why the two provisions have been made.
Lord FOOT: I wonder whether I might make an observation or two about the procedure in England in summary trials, when one is presented with a difficulty of this kind. I have always understood—and I think that the law today is as it has
1208
always been in England—that magistrates do not have power to commit a person who is in contempt of court, in face of the court. In fact, the authority of the magistrates can be flouted by an accused person who behaves very badly, and although it is desirable that accused people should not know of this right, in fact the magistrates are very often powerless to do anything about it. I would regret it, therefore, if this power was not given to magistrates in summary proceedings, or their equivalent in Scotland, to be able to deal with somebody who misbehaves himself and makes the trial difficult. Indeed the right to have the accused person removed because of misbehaviour is really a very limited infringement indeed of his rights. I should therefore regret it if this safeguard for the protection of the court was cut down, and I should hope that in the course of time we might have a similar provision in the law of England.
The Earl of SELKIRK: May I make one point? The noble and learned Lord said that the removal will be only for such time as is necessary. That is not stated here. We are giving the presiding judge, on his own initiative and without limitation, power to remove the accused for the whole of the trial. I do not think Parliament wants to do that and I suggest—and I readily accept the amendment of the noble Lord, Lord Foot—that it is necessary to show that Parliament wants this power narrowly guarded. There may be vicious or evil judges, who could remove the accused completely from the trial for unlimited periods, for what might be a minor disorderly appearance. I ask the noble and learned Lord the Lord Advocate to look very closely at this, and see whether he can more narrowly restrict the circumstances in which this power may be used.
Lord MACKAY of CLASHFERN: Certainly, the intention is to make these powers available only when it is absolutely necessary to use them, and I am perfectly happy to consider whether anything further can reasonably be added to the clause for that purpose. But, certainly, that is what we have in mind.
The Earl of SELKIRK: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.8 p.m.
Lord ROSS of MARNOCK Lord ROSS of MARNOCK moved Amendment No. 41B:
Page 17, line 39, leave out subsection (2).
The noble Lord said: The effect of the amendment that I move is to limit the ability of the court to proceed, in the absence of the accused, to summary procedure. In other words, we are already allowing subsection (1) which relates to solemn procedure. Why that? The only argument that has been given for this clause is that it is to deal with the possibility of terrorists being tried, and, because of the publicity and their own feelings and all that arises out of them, deliberately so disrupting the trial that it cannot go ahead. Therefore, the Government propose to give this power to the court to remove the accused and allow the trial to go ahead in his absence, albeit that he can be represented by counsel if he so wishes. If such a person were to be tried in Scotland, I doubt very much whether his trial would take place in a sheriff court. If a terrorist were to be tried it would be by solemn procedure.
Although I have objections to subsection (1), I am directing my attention to subsection (2). It never has happened, nor do I think that it is likely to happen; and if it did happen there are procedures at present, even in the sheriff court, for dealing with the matter. The trial could be adjourned. The person involved could be given legal advice and warned that he is in contempt of court and that he could be imprisoned. This could be done without very much waste of time, and certainly he would not get his publicity. I feel that the existing law and procedures are enough so far as summary trials are concerned.
When the noble and learned Lord, Lord McCluskey, spoke at Second Reading he said that this clause was put down with a certain measure of reluctance. I think that he was underestimating his own feelings about that. If it has to be done—and it is a very considerable change in Scottish law and Scottish tradition—I feel that we should limit it to solemn procedure and not introduce it into summary jurisdiction.
It may well be, as the noble and learned Lord the Lord Advocate has said, that the power would not be very much used. But we are giving this power, and who
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knows what people will do once they have got it? As the noble Earl, Lord Selkirk, said, it might be much more convenient for some people to get the accused out of the road. We have to be very careful about giving this power. Certainly it is very difficult to justify such a power, since it represents a considerable change in the law of Scotland. It would be very difficult to argue that no case has arisen, that we do not expect one to arise, but let us have the power all the same.
I am not going to remind the noble and learned Lord the Lord Advocate that certain people objected very strongly indeed. I think that he should look at the question of whether or not this power is necessary in summary trials. The Law Society are opposed to it in summary trials, and it is only fair to say that they have some experience, too. I hope, therefore, that the Lord Advocate will look at the amendment and see whether or not he can agree with us.
Lord GALPERN: May I ask the noble and learned Lord the Lord Advocate to deal with one or two points. As I understand it, one of the main concerns is that a proper trial should be conducted. If an accused misconducts himself, he can be removed from the court. How can the appointment of counsel or a solicitor to represent the accused's interests during his absence and while the trial continues result in a fair trial? If a solicitor and counsel are pitchforked into a case and there is no mention of an adjournment of the trial—it is to continue, as I read the subsection, except for time to allow for the appointment of a solicitor and counsel—how can they be instructed by their client? That would be impossible, unless the Lord Advocate is to tell us that there will be an adjournment until such time as a solicitor is instructed, and the solicitor instructs counsel, so as to ensure that a proper trial is continued. Unless that is written into the subsection it will make a farce of the trial.
What would then happen, according to the subsection, as I read it—although I am not a lawyer—is that upon the return of the accused to court both solicitor and counsel would disappear from the scene of the trial. That is quite conceivable if the accused sends a message to the presiding judge in which he says

1211
that he apologises for his misconduct and he is therefore allowed to return to the court to resume his case. May I ask the Lord Advocate whether solicitor and counsel then disappear from the trial? The subsection says that they are to represent his interests during the absence of the accused. This limits their presence to act on his behalf only to his period of absence from the court. I wonder whether the noble and learned Lord the Lord Advocate would deal with these points in his reply?
5.15 p.m.
Lord MACKAY of CLASHFERN: So far as the first point is concerned, the situation is that an adjournment would be in the control of the court. I have no doubt that the court would consider a reasonable adjournment, assuming that special counsel and solicitor had to be appointed to represent the accused in his absence. When the accused returned to the court, if he did so return, it would be up to the accused to decide whether or not he would be better off to retain the counsel and solicitor who represented his interests while he was not there.
Lord GALPERN: But he would not be able to decide that point, since he would have been out of court.
Lord MACKAY of CLASHFERN: Exactly. He would have to form a judgment as to whether he would be better advised to keep them, they having been present during the hearing while he was not there, or whether he would prefer to go ahead himself. The point is that he brings all this on himself. The object of the clause is to deal with a situation in which a person deliberately misconducts himself in such a way as to render it impossible for the trial to go on so long as he is there. I agree that it would be far better if he behaved himself so that the trial could go ahead in the ordinary way. I am saying, though, that if he misbehaves himself this is the best that can be done in the circumstances to protect his interests, and I submit to noble Lords that this would be a very reasonable protection for him.
So far as the summary position is concerned, the way I see it is that to have this power in summary cases is less in
1212
the way of an innovation because the case is a less serious one than would be a solemn case. If this is a proper power to have in solemn cases, there seems to be no reason why it should not be available in summary cases. I agree that so far this point has not arisen either in solemn or summary cases, and I hope that it never will: but I believe that one of the best ways of preventing it from arising is for both courts to have this power.
The noble Lord, Lord Ross of Marnock, said that the justification for it was by reference to terrorists. They represent a class of person who might be thought of as likely to misconduct themselves in this way. However, it is quite conceivable that somebody who was not a terrorist might consider this to be a reasonable thing to do, and so long as he always pled not guilty he could prevent himself from ever being effectively tried. Therefore prison would be a sanction right enough, but a sanction which could be reached only after the obstacle of misconduct had been overcome. If it was taken out of summary ultimately, no doubt, it would arrive in the solemn court. It seems a pity that one should have to go to that length.
Lord WHEATLEY: For the reasons just displayed by the noble and learned Lord the Lord Advocate, I think that this is a problem and that some solution must be found to it, otherwise, as he has pointed out, a determined accused could set at naught the whole administration of justice by continued conduct of the nature envisaged in the clause.
My difficulty is a practical one which arises out of something that was said by the noble Lord, Lord Galpern. If by his own conduct a person merits the loss of the right that has persisted throughout the ages, of being present in court when his case is being tried, but is being defended by counsel instructed by a solicitor, it may well be that he would suffer no disadvantage by not being present in court, or the disadvantage might be minimal. On the other hand, it might be great, from the practical point of view, if he is defending himself.
Let us take the situation in solemn procedure. He has defended himself until two-thirds of the evidence has been laid. Then he starts to misconduct him-

1213
self and is removed from the court, and the court then has to appoint counsel and solicitor to take over from the accused himself. How can that counsel and solicitor know what has gone before in the trial, what evidence has gone before, what the atmosphere has been and, as I think the noble Lord, Lord Galpern, pointed out, from the reading of this if he were only removed for a limited period and then came back it might well be that if he wanted to continue to conduct his own defence he would have to dispense with the services of the counsel and solicitor appointed by the court.
Even in summary proceedings if the same situation arose and the court appointed a solicitor who had not been in court or heard the evidence, it could be said in solemn procedure they would have to adjourn to allow the notes of evidence to be reproduced for the benefit of the counsel appointed to take over from the accused himself, which would involve a very long delay in a trial.
These are the practical considerations, but I think I am reflecting the views of my colleagues on the Bench in the High Court in Scotland in saying we are in agreement that something should be done to prevent an accused—for his own purposes in most cases or perhaps even involuntarily—from so conducting himself that the whole trial could be set at naught. So long as he continued that conduct something ought to be done, but I would invite the noble and learned Lord the Lord Advocate to consider whether the expedient that is proposed here is one that could be adopted as it stands or whether some other modifications require to be written in.
Lord MACKAY of CLASHFERN: We have done our best to get a workable arrangement. We should be happy to consider a constructive proposal for its improvement but until now this is the best that we have been able to propose. I agree that it has difficulties, but as I have said those difficulties would be brought by the accused person upon himself.
Lord ROSS of MARNOCK: The noble and learned Lord, the Lord Advocate, has not been at all helpful in regard to this amendment. Let us bear in mind that it has never happened, and is never likely to happen. With all respect to my noble
1214
and learned friend Lord Wheatley, who said that the problem is there, there has been no problem until now. It might arise but it is hypothetical.
Lord WHEATLEY: May I just point out to the noble Lord that it has not happened in Scotland so far but it has happened elsewhere.
Lord ROSS of MARNOCK: I think in the Committee stage in another place it was suggested by someone sitting on the other side of the House that he could remember only one case in which something like this had happened in Scotland and that the judge was able to deal with it. The suggestion that the whole court is helpless and that nothing can be done is quite wrong, and from that point of view I am very disappointed. I was prepared to go half way with the Lord Advocate. He has been very helpful so far today and he admits that if something like this happened in the summary court it could well be removed to the High Court, so I think he could have accepted this amendment standing in my name and that of the noble Earl, Lord Selkirk, without losing anything at all of his powers, grudging as I was at that time to give him that particular power. It means that we shall have to look at the clause as a whole now since he does not wish to amend it in this way.
The EARL of SELKIRK: Would the noble and learned Lord, the Lord Advocate consider excluding district courts? There is a feeling in district courts that these powers could be used in an oppressive manner. We are dealing with people who are perhaps not wholly unknown to each other, and these powers could be used forcefully in certain circumstances and on a basis which is wholly different from the basis on which we have been discussing this clause.
Lord FOOT: Perhaps I may add an intermediate point between the view of the Government and the views which have been expressed on this side of the Committee. The noble and learned Lord, Lord Wheatley, surely went to the heart of the matter when he said that there is a problem here which has to be dealt with and is not being provided for at the present time but nevertheless the solution which is offered by the Government is full of difficulties. That is the situation as I

1215
understand it. If that is so, and if noble Lords on the Opposition Front Bench accept that there is a problem here and that we should try to tackle it in some way or other, and if they think that the Government have got it wrong in this clause which they are proposing, is it not their business to try to suggest to the Government how it might be better dealt with? As I understand it, that is the invitation which has been issued to them by the noble and learned Lord the Lord Advocate. He said in effect, "If you can think of anything better we are prepared to consider it". If I may say so, I should have thought that the proper way to dispose of this matter today is to accept what the noble and learned Lord the Lord Advocate has said, and between now and the next stage of the Bill for those who have supported these amendments to consult with the Government to see whether a better form of words can in fact be provided.
I am much impressed with the difficulties to which the noble and learned Lord, Lord Wheatley, drew attention. They are very real difficulties indeed, and I was impressed by what was said from the Benches behind me about all the problems which we have to face under the clause as it is drafted at the moment. Would not the sensible course be for this matter to be withdrawn now in order that the whole matter might be considered by everybody in the interval between this and the next stage of the Bill?
Lord WHEATLEY: I should just like to say that, as the Lord Advocate knows, the Lord Justice General and I at all times will be available to put forward suggestions and to consult with him in these matters which very much affect the running of the courts. I should like to give that undertaking, which he knows privately but I want to make it publicly.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Jacques): Does the noble Lord wish to withdraw the amendment?
Lord ROSS of MARNOCK: Yes.
Amendment, by leave, withdrawn.
On Question, Whether Clause 21 shall stand part of the Bill?
5.28 p.m.
Lord MISHCON: I wonder whether, before a humble English lawyer formally tries to take on the very colourful cloak of my noble and learned friend Lord McCluskey, I might introduce my comments by telling the Committee that I had my first real lesson in proud Scottish national insularity yesterday afternoon, and indeed the responsibility for that lesson rested with the office of the noble and learned Lord the Lord Advocate. I wanted some papers which were out of print and I communicated with the office of the noble and learned Lord and had a most courteous response from an official who told me that I would be supplied with them.
As the Committee may know, the office is in Whitehall and I asked whether I might send a messenger over for those papers. The reply was "Yes, certainly". I then asked the official (who, if I may say so, had an accent that the late Sir Harry Lauder would have been proud of) how near he was to the Home Office in Whitehall, only to receive the reply, "I am afraid I do not know where the Home Office is".
In regard to this clause, we have heard that it is beset with difficulties. Furthermore, we have heard that so far no case North of the Border—and I will not trouble your Lordships with what the law may be possibly for the less civilised South of the Border—has really caused any trouble in this connection. The noble Lord, Lord Foot, said something that sounded most reasonable; that is, that if this clause was opposed but some case had been made out for the need to deal with somebody who misconducted, surely it would be sensible if we considered a suitable amendment to this clause instead of asking, as I am asking the Committee, to leave this clause out.
This Clause was Clause 24 of the Bill that was brought forward by the previous Government, and it received a great deal of consideration in Committee. If the record I have read is correct, at least five of the friends of the noble and learned Lord opposite sat on that Committee and saw to it that the clause was defeated. Mr. Fairbairn, the present Solicitor General, led then for the Tory Opposition, and he went on record as saying that he could think of no way whatsoever in which

1217
this clause could be amended. If the Solicitor General, who was then as wise, I am sure, as he is now, was unable to devise any amendment in regard to this clause, which he then thought was objectionable, as indeed did the Opposition Members of the Committee, I think it may be a difficult thing indeed for us on this Front Bench to try to do what he was then unable to do.
North of the Border—and I do not talk of the law South of the Border—this may be a very dangerous clause, because there is no definition of misconduct; it is a subjective matter for a judge or a sheriff. Your Lordships may feel that, having regard to all that has been said about the difficulties of this clause, which are admitted, and having heard what happened at the Committee stage in another place, when the self-same clause was before the other place only a comparatively short while ago, the safe and sensible
thing to do is to have this clause left out. I so move.
Lord MACKAY of CLASHFERN: I think I am right in saying that the clause as presently before the Committee is not the same clause as was in the previous Bill. The proviso with regard to representation is something different. But, in any case, I would take a stand on the existence of the problem as a potential problem—and there is no better way of dealing with such a problem than before it arises—as justification for having this clause in the Bill, and I would ask your Lordships to agree that it should stand part of the Bill.
5.34 p.m.
On Question, Whether Clause 21 shall stand part of the Bill?
Their Lordships divided: Contents, 159; Not-Contents, 59.

CONTENTS

Abinger, L.

Duncan-Sandys, L.

Kilmarnock, L.

Airey of Abingdon, B.

Dundee, E.

Kimberley, E.

Alexander of Tunis, E.

Ebbisham, L.

Kinnaird, L.

Allen of Abbeydale, L.

Ellenborough, L.

Kinnoull, E.

Allerton, L.

Elliot of Harwood, B.

Kinross, L.

Alport, L.

Energlyn, L.

Knutsford, V.

Amory, V.

Exeter, M.

Lauderdale, E.

Ampthill, L.

Faithfull, B.

Lindsey and Abingdon, E.

Armstrong, L.

Falkland, V.

Lloyd of Kilgerran, L.

Auckland, L.

Ferrers, E.

Long, V.

Avon, E.

Ferrier, L.

Lucas of Chilworth, L.

Balerno, L.

Foot, L.

Lyell, L.

Banks, L.

Forester, L.

Mackay of Clashfern, L.

Bellwin, L.

Fortescue, E.

Macleod of Borve, B.

Belstead, L.

Fraser of Kilmorack, L.

Mancroft, L.

Boyd of Merton, V.

Fraser of Tullybelton, L.

Mansfield, E.

Bradford, E.

Gainford, L.

Margadale, L.

Bridgeman, V.

Gisborough, L.

Marley, L.

Brookeborough, V.

Gladwyn, L.

Masham of Ilton, B.

Brookes, L.

Glasgow, E.

Massereene and Ferrard, V.

Burnham, L.

Godber of Willington, L.

Merrivale, L.

Caithness, E.

Gowrie, E.

Meston, L.

Campbell of Croy, L.

Gray, L.

Middleton, L.

Cathcart, E.

Gridley, L.

Montgomery of Alamein, V.

Clitheroe, L.

Haig, E.

Morris, L.

Coleridge, L.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Mountgarret, V.

Cork and Orrery, E.

Mowbray and Stourton, L.

Cornwallis, L.

Hanworth, V.

Murton of Lindisfarne, L.

Cottesloe, L.

Hastings, L.

Newall, L.

Craigmyle, L.

Hatherton, L.

Northchurch, B.

Cranbrook, E.

Henley, L.

Nugent of Guildford, L.

Cromartie, E.

Hereford, V.

O'Neill of the Maine, L.

Cross, V.

Hives, L.

Onslow, E.

Cullen of Ashbourne, L.

Holderness, L.

Orkney, E.

Daventry, V.

Home of the Hirsel, L.

Perth, E.

de Clifford, L.

Hooson, L.

Rathcreedan, L.

De Freyne, L.

Hornsby-Smith, B.

Rawlinson of Ewell, L.

Denham, L. [Teller.]

Hunt of Fawley, L.

Reading, M.

Donegall, M.

Inglewood, L.

Renton, L.

Drumalbyn, L.

Keith of Kinkel, L.

Ridley, V.

Dudley, E.

Kilmany, L.

Rochdale, V.

Rodney, L.

Sharples, B.

Vaizey, L.

Romney, E.

Spens, L.

Vaux of Harrowden, L.

St. Aldwyn, E.

Stanley of Alderley, L.

Vernon, L.

St. Davids, V.

Strathclyde, L.

Vickers, B.

St. Germans, E.

Strathspey, L.

Westbury, L.

St. Just, L.

Swinton, E.

Wheatley, L.

Saint Oswald, L.

Teviot, L.

Wigoder, L.

Salisbury, M.

Thorneycroft, L.

Wilson of Langside, L.

Sandford, L.

Torphichen, L.

Wise, L.

Sandys, L. [Teller.]

Tranmire, L.

Wolverton, L.

Seear, B.

Trenchard, V.

Young, B.

Selkirk, E.

Tweedsmuir, L.

Sempill, Ly.

Ullswater, V.

NOT-CONTENTS

Ardwick, L.

Hale, L.

Ross of Marnock, L.

Aylestone, L.

Hamnett, L.

Shinwell, L.

Balogh, L.

Henderson, L.

Stedman, B.

Beswick, L.

Houghton of Sowerby, L.

Stewart of Alvechurch, B.

Blease, L.

Jacques, L.

Stewart of Fulham, L.

Blyton, L.

Jeger, B.

Stone, L.

Boston of Faversham, L.

Kaldor, L.

Strabolgi, L.

Brockway, L.

Kilbracken, L.

Taylor of Blackburn, L.

Brooks of Tremorfa, L.

Lee of Newton, L.

Taylor of Gryfe, L.

Bruce of Donington, L.

Leonard, L.

Taylor of Mansfield, L.

Cledwyn of Penrhos, L.

Llewelyn-Davies of Hastoe, B.

Underhill, L.

Cudlipp, L.

McGregor of Durris, L.

Wallace, of Coslany, L.

David, B. [Teller.]

MacLeod of Fuinary, L.

Walston, L.

Davies of Leek, L.

Mishcon, L.

Wells-Pestell. L. [Teller.]

Davies of Penrhys, L.

Murray of Gravesend, L.

Wigg, L.

Galpern, L.

Oram, L.

Wilson of Radcliffe, L.

George-Brown, L.

Peart, L.

Winterbottom, L.

Glenamara, L.

Phillips, B.

Wootton of Abinger, B.

Gordon-Walker, L.

Ponsonby of Shulbrede, L.

Wynne-Jones, L.

Goronwy-Roberts, L.

Rhodes, L.

Resolved in the affirmative, and Clause agreed to accordingly.
5.45 p.m.
Clause 22 [Restrictions on report of proceedings involving person under 16]:
On Question, Whether Clause 22 shall stand part of the Bill?
The Earl of SELKIRK: I should like to ask a question on Clause 22. I wonder whether the noble and learned Lord the Lord Advocate can tell us the meaning of the words, "No newspaper". Do they refer to a newspaper available in the United Kingdom or a newspaper published in the United Kingdom? What are those words supposed to cover? I can appreciate that publicity is very undesirable, but I notice that there is no mention of radio or television. I also notice that further down it says that:
"… references to a court, shall not include a court in England".
If the Cornwall Herald published something of this sort, will someone have to come all the way up to Edinburgh in order to be fined £500 for publishing something
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that he should not have published? What is the intention? Moreover, if the crime was committed on English soil, is it appropriate for a court in Edinburgh to deal with that crime?
Another point is that if the matter is not to receive publicity, surely the names of the witnesses might well not be revealed. I do not know whether that is necessary, but in the event of witnesses names coming out, it might not be too difficult to identify which particular child is being charged under this section. If the noble and learned Lord could answer those questions I should be very grateful.
Lord MACKAY of CLASHFERN: First, Clause 22(2) is intended to apply the provisions to sound and television broadcasts in the same way as they apply in relation to newspapers. So, although "newspaper" alone is mentioned to begin with, the provisions are extended in that way.
As regards the second point raised by the noble Earl, I should point out that if this clause is agreed to, it will become part of the law of Scotland and therefore would

1221
affect newspaper reports circulating in Scotland. So, as long as the Cornish Herald—the newspaper which was taken as an example—stays out of Scottish jurisdiction, it would not be committing an offence. However, a paper in Scotland would be subject to this rule. The court is, of course, a Scottish court.
So far as identification is concerned, it was thought right that both witnesses, and accused persons under the age of 16, should have the benefit of the protection. Of course, as noble Lords will appreciate, it is provided that the court may at any stage, if satisfied that it is in the public interest so to do, direct and effect that the clause does not apply, and the protection is lifted. The Secretary of State, after completion of the proceedings, may make a similar order. Therefore, the public interest as regards finding out the information is protected in those ways, but children who become concerned in proceedings, whether as accused persons or as witnesses, are protected from publicity unless the publicity is authorised. I hope that that answers the noble Earl's questions.
The Earl of SELKIRK: I thank the noble and learned Lord, but surely after, "No newspaper", it should say, "available in Scotland", if only for clarification? I wondered what the meaning was and possibly others will also wonder.
Clause 22 agreed to.
Clause 23 [Peremptory challenge of jurors]:
5.50 p.m.
Lord MISHCON Lord MISHCON moved Amendment No. 42:
Page 19, line 3, leave out ("one juror") and insert ("three jurors").
The noble Lord said The noble Lord said: I beg to move Amendment No. 42. At present, as I understand it, the number of jurors is 15, and the right of peremptory challenge is to five. This clause provides for the reduction of the right of peremptory challenge from five to one. It seems to us, sitting on these Benches, that this is a very unwise provision. I understand that we are supported in this by the views of the Law Society in Scotland, who oppose this clause. If its purpose is to change from a peremptory right of
1222
challenge to one where you show cause, it is quite obvious that the time of the court will be taken unnecessarily while counsel for the accused has to argue each and every challenge.
There is an additional objection: that it must encourage the accused and the advisers of the accused to try to search into the backgrounds of members of the jury and, therefore, to do some sort of jury vetting in order to try to produce reasons to show cause. In those circumstances we feel that a reduction from the present five is bad. But in an endeavour to be as reasonable as we hope the noble and learned Lord the Lord Advocate will be in looking at this amendment, we have tried to go half way and we have said, "All right, let the number be reduced from five to three, but certainly not to one. "That is the reasoning behind this amendment. I beg to move.
Lord WIGODER: We should like to support the noble Lord, Lord Mishcon, in this amendment. We find the proposal in the Bill a trifle difficult to justify. I can understand the proposition that there should be no jury vetting of any sort, either by the prosecution or by the defence: that there should be no right of summary peremptory challenge at all, either by the prosecution or the defence; that both the prosecution and the defence should take their chance before a jury that is selected entirely at random. If by any mishap there are on the jury one or two who may be unreasonably prejudiced in some way, that is a chance that both the prosecution and the defence should take and it is a matter which is catered for by the majority verdict system which operates in both our countries. I can understand that being put forward as the proper solution, but I appreciate that at this moment in time the whole question of jury vetting, of attempting to analyse the backgrounds of jurors, has not yet been resolved and that, therefore, it is apparently right that there should be some right of peremptory challenge—challenge without cause—still given to both the prosecution and the defence.
I should be interested to hear the case for making a reduction from five to one, which is suggested in Clause 23. I think I am right in saying that the Thomson Report proposed that the change should

1223
be from five to two. Perhaps in their fight against inflation the Government have decided to reduce that still further, from five to one. It is, I think, a rather unsatisfactory basis for making such a reduction. If the number is to be as severely restricted as one, it will encourage, will it not?, challenges for cause, which are likely to take a great deal of time and be very embarrassing for the prosecution, the defence and for potential jurors. I invite the Government to look again at the proposal that the restriction should be for challenge to one juror only.
I appreciate that there are many and substantial differences between the English and the Scottish systems. Nevertheless, if there are some ways in which the two systems could march together in harmony, it would do no great damage. In recent years in our jurisdiction we have limited the right of summary challenge to that of three jurors. In those circumstances, I should have thought there might be something to be said for the Scots agreeing that that appears to work satisfactorily. This is one area where we might work in harmony. In those circumstances, I invite the Government to consider whether this is not a helpful amendment.
Lord WHEATLEY: We hear a great deal about the question of jury vetting. I should like to give the Committee the advantage of my experience over 26 years on the Bench as to the type of jury vetting that takes place at present. It is one to which many potential jurors, who have been brought to court on a list of assize, take exception. As has been pointed out, for a jury of 15 we have five peremptory challenges and any number of challenges on cause shown. There is a practical difficulty in that when preparing the list of assize of jurors one must make provision for objections of that nature. Therefore, the number of members of the public who qualify as jurors, who are cited to attend court to be balloted, must exceed quite considerably the actual number of jurors eventually empanelled. That can cause a great deal of inconvenience to a great number of people, for the right of peremptory challenge afears to each individual accused.
If there is only one accused, there are five peremptory challenges; but if, as is often the case at present, there are six or
1224
eight accused on the charge, or even four, that means that 20, 30 or 40 peremptory challenges are available, and provision has to be made for that in citing jurors to attend. That causes a great deal of public inconvenience. However, that is not the only point I wish to raise.
I turn to the question of jury vetting. In my opinion, on most occasions when objection is taken to people by the peremptory challenge, it is not because they know anything or have any reason to believe that the individual is not a desirable juror. What happens is as follows. The name of the juror is called out by the clerk of the court who has drawn the name from a bowl. The juror, who is sitting on the public benches in the court, makes his or her way from his or her place in court down a passage, and across the well of the court. Counsel acts as a sort of amateur psychologist, looking at the juror on his way down from his seat, trying to assess by his mien, his appearance, walk or whatever, whether he is the right type of person to sit on the jury. During the time occupied by the juror making his way to the jury box, counsel has turned back and is facing the court, with his back to the juror, and on almost all occasions he says, sotto voce, "Object". Then the clerk of the court has to tell the juror, who is on the point of entering the jury box, that he need not come. The juror has to find his way back to his seat on the public benches in the court. He does not know why objection has been taken to him; he only knows that he has been objected to.
I have never discussed matters with jurors, but officers of the court have reported to me that many jurors in that situation take great exception to the system whereby, for some unknown reason to them, they have been objected to as, they regard it, not being fit and proper persons to act on the jury. In my experience that is the only form of jury vetting that takes place in Scotland, subject to this, that there are other forms of jury vetting which do not apply to the individual but to classes. There are some counsel who think, having regard to the nature of the charge or charges, "We had better have a majority of men on the jury", or "a majority of women on the jury" In my experience, particularly when I was at the Bar, I always took the luck of the draw because I found that when you

1225
objected to somebody for no reason other than some instinctive belief that they would not be a good juror in favour of your client, you lost that one, but got someone a lot worse. So it is purely speculative and subjective.
At the same time it subjects the individual juror to this rather ignominious conduct. They want men and they do not want women; or they want women and they do not want men. They do not like schoolteachers, because they are little dictators in their own schoolroom, if I may say that with all due respect to my noble friend Lord Ross. I am not suggesting that he ever was, because he was a model schoolmaster, but I have known from my experience people say, "We don't like schoolteachers because they are dictatorial and will try to enforce their mind on the rest of them".
You have all these sorts of situations arising and excuses being put forward. In the result, you have a form of jury vetting that is not the form that is being objected to by noble Lords who have spoken. One must have regard to the situation. When this proposal came from the last Government for their Bill, the High Court judges as a whole in Scotland discussed this matter thoroughly. We came to the unanimous conclusion that the principle of this was something that we must have regard to. That principle has been enunciated by the noble Lord, Lord Wigoder. The principle is that you are entitled to be tried by your peers, but you should not be selective about your peers. You should take the luck of the draw, and allow those who are drawn to judge you.
I cannot prognosticate as to what would happen with regard to this more sinister aspect of jury vetting, but I would find it difficult to believe that it would ever become a common feature of our judicial system if we were to remove altogether the peremptory challenge to jurors. But knowing our great gift for compromise, I am not surprised that the Government, who seem to me really to have been accepting that the principle should be, "Those drawn out of the jury bowl should serve" (and they went even further than Thomson in that regard), were adopting a degree of compromise which may not be justified in logic but may perhaps, from the political point of view, be an easy way of
1226
getting an otherwise contentious matter through the House.
6.4 p.m.
Lord ROSS of MARNOCK: We have done without logic for a long time so far as jury procedure in Scotland is concerned. As long as we have had jury procedure in Scotland we have been operating the right of peremptory challenge in respect of five. The Government propose now to reduce it to one. I suppose we should say that they are generous, because when in opposition on the Labour Bill they wanted to wipe it out altogether.
It is a considerable change. Admittedly, there are some embarrassments for jurors who are objected to, but no matter which system we have, peremptory or cause shown, the waste of time or embarrassment of the juror are still there. We should hesitate before we go as far as the Government suggest of reducing it to one. This is not what Lord Thomson said in his report. He said two. But he said more than that, on the basis that you reduce the size of the jury. The jury in Scotland is 15. He said, "Yes, reduce the size of the jury and reduce the number of peremptory challenges". That is not what the Government have done. The Government have said, "We will keep the jury the same size, but will not take away but reduce from five to one the number of peremptory challenges". I do not think that that is sweet reason or compromise.
I do not think it is fair. An accused person, bearing in mind that it may mean the loss of his liberty, is entitled to an on-the-spot judgment. If he feels that he is not going to get justice from some particular person, it is only fair to give him the right to say no without cause shown. If we reduce it to one, whereas at the present time I understand that there is little resort to objection on cause shown, there will now be considerable resort to that, and I do not think that any embarrassment will be saved or any time will be saved.
I regret that the Government have taken this particular stand. I hope that the Lord Advocate will look again at these amendments. They are nicely and carefully written. I am not going to be a schoolmaster. My noble and learned

1227
friend Lord Wheatley has a better memory than I have. I had forgotten a long time ago the days when I was a schoolmaster, probably in the part of Glasgow that he came from—and he was lucky to escape me.
Lord MACKAY of CLASHFERN: The principle upon which we have sought to proceed here is the principle enunciated by the noble Lord, Lord Wigoder, that basically one ought to take what comes out of the bowl, or hat, out of which the jury is called. There is no question of jury vetting, in the sense in which that expression has been used here, being practised in Scotland. I made a statement on that matter some time ago. The situation in England and Wales is different. The jury numbers are different, and what you require in order to secure a conviction is different.
As the noble and learned Lord, Lord Wheatley, has rightly guessed, we think that it would be wise to preserve the possibility of a genuine objection which one did not want to air, and that is why we thought it wise to leave a single peremptory challenge. I suggest to the Committee that this is a reasonable step to take. The noble and learned Lord, Lord Wheatley, has indicated the sort of indignity that it offered to jurors in being turned away for no reason at all. I would not anticipate that the power to object on cause shown would be very much used, at least after the first few trials under the new system. I submit
that the result would be that people accused would be tried by a jury genuinely selected at random, with this single exception of a possible cause which a person would not wish to have to state, and the single peremptory challenge covers that. I would invite the Committee to reject this amendment.
Lord MISHCON: I would ask the Lord Advocate only this: If the idea behind this clause is to reduce embarrassment, as the noble and learned Lord, Lord Wheatley. suggested, is it not rather more embarrassing to have an argument, in which you cannot participate. as to why you are not a fit and proper person to be a juror than merely to be told that you are not wanted without any cause shown? I should have thought, in those circumstances, that this was a poor reason for advancing the argument as to the reliability or otherwise of a juror. I hope that the concession that was offered, if I may put it that way without doing it pompously, is one that would find acceptance. Would the noble and learned Lord at least say that he is prepared to think about this number again?
Lord MACKAY of CLASHFERN: We have thought about this a good deal, and I intend to stick to this number.
6.10 p.m.
On Question, Whether the said Amendment (No. 42) shall be agreed to?
Their Lordships divided: Contents, 66; Not-Contents, 129.

CONTENTS

Ardwick, L.

Jacques, L.

Ross of Marnock, L.

Balogh, L.

Jeger, B.

Seear, B.

Blease, L.

Kaldor, L.

Segal, L.

Blyton, L.

Kilbracken, L.

Shinwell, L.

Boston of Faversham, L.

Kilmarnock, L.

Spens, L.

Brockway, L.

Kirkhill, L.

Stedman, B.

Brooks of Tremorfa, L.

Lee of Newton, L.

Stewart of Alvechurch, B.

Caradon, L.

Leonard, L.

Stewart of Fulham, L.

Cledwyn of Penrhos, L.

Listowel, E.

Stone, L.

Craigavon, V.

Llewelyn-Davies of Hastoe, B.

Strabolgi, L.

David, B. [Teller.]

Lloyd of Kilgerran, L.

Taylor of Blackburn, L.

Davies of Leek, L.

Longford, E.

Taylor of Gryfe, L.

Davies of Penrhys, L.

MacLeod of Fuinary, L.

Taylor of Mansfield, L.

Foot, L.

Maelor, L.

Underhill, L.

Galpern, L.

Mishcon, L.

Wallace of Coslany, L.

George-Brown, L.

Murray of Gravesend, L.

Walston, L.

Goronwy-Roberts, L.

Oram, L.

Wells-Pestell, L. [Teller.]

Hale, L.

Peart, L.

Wigoder, L.

Hamnett, L.

Pitt of Hampstead, L.

Wilson of Radcliffe, L.

Hampton, L.

Ponsonby of Shulbrede, L.

Winterbottom, L.

Hooson, L.

Rathcreedan, L.

Wootton of Abinger, B.

Houghton of Sowerby, L.

Rhodes, L.

Wynne-Jones, L.

NOT-CONTENTS

Abinger, L.

Gainford, L.

Newall, L.

Alexander of Tunis, E.

Galloway, E.

Norfolk, D.

Allen of Abbeydale, L.

Gisborough, L.

Northchurch, B.

Allerton, L.

Glasgow, E.

Nugent of Guildford, L.

Alport, L.

Gray, L.

Onslow, E.

Amory, V.

Gridley, L.

Orkney, E.

Armstrong, L.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Perth, E.

Avon, E.

Reading, M.

Balerno, L.

Hanworth, V.

Renton, L.

Balfour of Inchrye, L.

Hastings, L.

Ridley, V.

Bellwin, L.

Hatherton, L.

Rochdale, V.

Belstead, L.

Henley, L.

Romney, E.

Bradford, E.

Hereford, V.

St. Aldwyn, E.

Brookeborough, V.

Hives, L.

St. Davids, V.

Brookes, L.

Holderness, L.

St. Germans, E.

Brougham and Vaux, L.

Home of the Hirsel, L.

St. Just, L.

Burnham, L.

Hornsby-Smith, B.

Saint Oswald, L.

Caithness, E.

Hunt of Fawley, L.

Sandford, L.

Campbell of Croy, L.

Inglewood, L.

Sandys, L. [Teller.]

Cathcart, E.

Keith of Kinkel, L.

Selkirk, E.

Clitheroe, L.

Kilmany, L.

Sempill, Ly.

Colwyn, L.

Kimberley, E.

Sharples, B.

Cork and Orrery, E.

Kinnaird, L.

Stanley of Alderley, L.

Cornwallis, L.

Kinross, L.

Strathclyde, L.

Cottesloe, L.

Lauderdale, E.

Strathspey, L.

Craigmyle, L.

Lindsey and Abingdon, E.

Swansea, L.

Cromartie, E.

Long, V.

Swinton, E.

Cullen of Ashbourne, L.

Lucas of Chilworth, L.

Teviot, L.

Daventry, V.

Lyell, L. [Teller.]

Torphichen, L.

de Clifford, L.

Mackay of Clashfern, L.

Tranmire, L.

De Freyne, L.

Macleod of Borve, B.

Tweedsmuir, L.

Denham, L.

Mancroft, L.

Ullswater, V.

Donegall, M.

Mansfield, E.

Vaizey, L.

Drumalbyn, L.

Margadale, L.

Vaux of Harrowden, L.

Dundee, E.

Marley, L.

Vernon, L.

Ellenborough, L.

Massereene and Ferrard, V.

Vickers, B.

Elliot of Harwood, B.

Merrivale, L.

Wheatley, L.

Faithfull, B.

Middleton, L.

Wilson of Langside, L.

Falkland, V.

Montgomery of Alamein, V.

Wise, L.

Ferrers, E.

Morris, L.

Wolverton, L.

Ferrier, L.

Mottistone, L.

Yarborough, E.

Forester, L.

Mountgarret, V.

Young, B.

Fortescue, E.

Mowbray and Stourton, L.

Fraser of Kilmorack, L.

Murton of Lindisfarne, L.

On Question, Motion agreed to.

Clause 24 [Seclusion of jury after retrial]:
6.20 p.m.
Lord FRASER of TULLYBELTON Lord FRASER of TULLYBELTON moved Amendment No. 43:
Page 19, line 18, after ("judge") insert ("or a person acting under direction of the judge").
The noble and learned Lord said The noble and learned Lord said: This is a very humble amendment which raises no great constitutional principles at all. It relates to the stage when the trial has been concluded and the jury has retired to consider its verdict. When it does so it has to be enclosed in its own room by the clerk of the court. The subsection with which we are concerned states, on page 19 of the Bill.
1230
"Except in so far as is provided for … until the jury intimate that they are ready to return their verdict—

(a) no person shall visit the jury and no person (save the judge in response to a direction sought …) shall communicate with them …".

Following the words, "no person save the judge". I want to insert the words,
"or a person acting under direction of the judge".
I do this solely in order to bring some reality into this situation, because we all know that the jury goes into its own room where it sits and discusses the verdict—at least one supposes that it does—and the court disperses. A bell is heard ringing in the corridor outside. The bell has been rung by a member of the jury. Surely it is not really supposed that the judge personally goes to investigate why the bell is ringing. He sends the macer, the officer of the court, to find out what the jury

1231
wants, and the macer returns and tells the judge that the foreman of the jury wants a direction on a particular point, or he explains what the trouble is. The proper person to bear that kind of message is not the judge himelf, but his officer, the macer. My object is to insert words which would permit a proper officer authorised by the court to communicate with the jury for that purpose. This seems to me to be sensible, and I suggest that the Lord Advocate might be able to accept it.
Lord RENTON: I wish to support the noble and learned Lord, Lord Fraser of Tullybelton, but, with respect, I wonder whether he has gone quite far enough. He has pointed out that in Scotland in practice the judge never would visit the jury; neither would he do so in England, of course. Such a thing is unheard of. But when it becomes necessary to find out how the jury is getting on with its deliberations after a very long absence, or if the jury sends a message to the judge requiring his further direction, in England at any rate the jury would always be brought back into court so that any further direction by the judge would be given in the presence of the accused and indeed of the public. Therefore, if all that corresponds with practice in Scotland, it would seem to me that the word "or" could be omitted from the amendment, and we would not need the words "the judge". So the provision would read
"save a person acting under direction of the judge".
It seems to me that that would put the matter right, and would indeed be a reflection of what is, and what is intended to be, the practice.
Lord MACKAY of CLASHFERN: This entire clause derives from the necessity of provision for looking after the jury if it has to deliberate for a long time, and the part of the clause to which the noble and learned Lord, Lord Fraser of Tullybelton, has drawn attention is in fact a re-echo of what was previously the law, but it is a practical improvement and I am happy to accept it in principle. We shall try to give effect to it in an amendment that we shall propose in due course. I am very grateful to the noble and learned Lord for raising this matter and to the noble Lord, Lord Renton, for supporting him.
The EARL of SELKIRK: This matter is so rigid. What about people taking food to the jury? Would they be excluded by this clause?
Lord MACKAY of CLASHFERN: The purpose of this proposal is to enable that to be done. The new subsection (3A) which is introduced into Section 153 of the 1975 Act is intended to enable members of the jury to be fed and generally looked after, so far as is consistent with performing their function as jury men or jury women.
Lord FRASER of TULLYBELTON: With the leave of the Committee, I wish to withdraw the amendment. The explanation given by the Lord Advocate was interesting and I appreciate it, but it seems to raise a new horror: Are the judges themselves otherwise supposed to take in the food for the jury?
Amendment, by leave, withdrawn.
Clause 24 agreed to.
Clause 25 agreed to.
Clause 26 [Routine evidence]:
6.25 p.m.
Lord ROSS of MARNOCK Lord ROSS of MARNOCK moved Amendment No. 44:
Page 21, line 27, at end insert—
("() Where at an inquiry held under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, an autopsy report is lodged as a production by the procurator fiscal for the district it shall be presumed that the body of the person identified in that report is the body of the deceased in respect of whose death the inquiry held, unless the Sheriff at any stage directs otherwise.").
The noble Lord said The noble Lord said: I believe that this clause is welcome, although there is some disapproval in certain quarters. It is fair to say that the Law Society of Scotland is not entirely happy with the clause, but I believe that on the whole it is sensible and will save the time of quite a number of officials. My noble and learned friend Lord McCluskey (whose absence I very much regret) was, I believe, the chairman of the committee which produced this proposal, and in this amendment he wishes it to be applied to fatal accidents and sudden deaths inquiries in Scotland. This may not be the appropriate place for this proposal, but the Long Title

1233
of the Bill includes the phrase "and for connected purposes", and so I hope that this can be construed as coming within that ambit. I feel sure that the Lord Advocate can accept this amendment and so further endear himself to the Committee.
Lord MACKAY of CLASHFERN: The noble and learned Lord, Lord McCluskey, was the chairman of a committee that considered this matter in relation to fatal accidents inquiries and suggested that provision should be made on the lines of the present amendment. The principle of the amendment is entirely acceptable to me; indeed, I thoroughly commend it. However, unfortunately, the advice I have is that what is proposed would not come within the Title of the Bill, and much as I should like it to be included from the point of view of the administration of fatal accidents inquiries in Scotland, we would run into difficulties if it were included. Perhaps some other opportunity will present itself, though at the moment I do not have one particularly in mind. I am very grateful to the noble Lord, Lord Ross of Marnock, for raising the matter, and I only regret that we cannot give effect to it.
Lord ROSS of MARNOCK: I feared that that would be the answer. I regret that I was not able to discuss the matter with my noble and learned friend Lord McCluskey, but in view of what the Lord Advocate says, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 agreed to.
Clauses 27 to 29 agreed to.
Clause 30 [Additional evidence and evidence in replication]:
Lord ROSS of MARNOCK Lord ROSS of MARNOCK moved Amendment No. 45:
Page 24, leave out lines 13 to 33.
The noble Lord said The noble Lord said: I think that Amendments Nos. 45 and 46 can be taken together. The clause relates to additional evidence. So far as I understand it, most of the evidence given to the Thomson Committee was opposed to the introduction of evidence and evidence in replication—perhaps the Lord Advocate
1234
can tell me whether or not that is so—and the feeling was that it introduces into Scottish law a right for both parties to move the court to allow additional evidence and to refute evidence led by other parties. Views on this matter are conflicting between, and within, many legal bodies, and there appears to be some inconsistency even within the Thomson Committee itself. First, may I ask whether the proposals are based upon what is contained in pages 159 to 161 of the Thomson Report? I am sorry I cannot quote them, but I am still without a copy. I warn the Government that they had better get this matter put right before this Bill sees the light of day in another place, for they will not accept this kind of procedure.
These provisions appear not to be consistent with the last two sentences of paragraph 43.09, although they did make recommendations in paragraph 43.11 which cover the new Sections 149A and 350A. But these recommendations seek to contradict paragraph 43.09, and are certainly hardly supported by anything in the nature of argument. What I want to ask the Government is whether they will justify the inclusion of the two subsections to which I refer. There is more than a feeling that this will lead to the prolongation of trials, and that possibly it could go on and on and certainly be very expensive, not only in time but in money. I shall be glad to hear the justification of the noble and learned Lord the Lord Advocate in respect of these two amendments that I seek to make. I beg to move the first one of them.
Lord MACKAY of CLASHFERN: It might be convenient if I gave the explanation in relation to both these amendments. I think one is in relation to the summary procedure and the other is in relation to the solemn procedure. The purpose is to allow the leading of evidence in replication in very narrowly defined circumstances. If I may take that part of the clause which is the subject of the first amendment for the purposes of illustration, it is provided:
"The judge may, on a motion of the prosecutor made after the close of the defence evidence and before the commencement of the speeches to the jury, permit the prosecutor to lead additional evidence for the purpose of—

1235

(a) contradicting evidence, led by the defence, which could not reasonably have been anticipated by the prosecutor; or

(b) providing such proof as is mentioned in section 147 of this Act".

That refers to proof of a statement which is to the opposite effect to that to which the witness has testified. So the purpose is really to deal with evidence which the prosecutor could not reasonably have anticipated, or to lead evidence of a contradictory statement made by a witness.
These provisions are based on Recommendations 121 and 123 of Thomson, and the need for them arises in this way. During the course of any trial in Scotland under the law at present, if the defence produce unexpected evidence the prosecution may not thereafter adduce evidence to contradict it if they have closed their case; and that, of course, will always happen before the evidence for the defence. This applies even in the situation where, after the close of the Crown case, a witness denies that he has made a previous statement which is different from his evidence. For example, a witness may have given a statement to the police which he contradicts when he goes into the witness box. The Crown can put that to him, but under the present law they cannot back up that putting to him with proof that that is what he actually said; so the Crown cannot answer back to evidence of that sort. At the moment, despite provisions contained in Sections 149 and 350 of the Criminal Procedure (Scotland) Act 1975, the case law has strictly interpreted these sections so that they are rendered ineffective, and a rule has evolved that the leading of evidence designed to discredit a witness in advance is prohibited. The implementation of the provisions relating to evidence in replication would give effect to these sections, which at the moment are for practical purposes redundant.
The power to lead evidence in replication will, as I have shown your Lordships, be subject to severe limitation; namely, that the court must be satisfied that the prosecution could not reasonably have anticipated the defence evidence which they wish to contradict, if it is under that head. Or, if they did anticipate such evidence, the only other situation in which they would be allowed to lead evidence is when it is to contradict the
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statement of a witness denying an earlier statement made by him. The admission of evidence in replication will not be a right, but will always be at the discretion of the trial judge, because, as I read, "The judge may" is the leading phrase. Evidence in replication is already an established and accepted procedure in Scottish civil law, and I would submit to your Lordships that in this day and age it is a very important procedure that the court should have at their disposal to deal with evidence which may come forward in the defence case which the Crown has had no reasonable opportunity to contradict. Subject to the safeguards which are proposed, I would commend this provision to the Committee.
Lord WIGODER: Before the noble and learned Lord sits down, would he be kind enough to help me as to what the position is in Scotland when the defence call alibi evidence and the prosecution wish to rebut that?
Lord MACKAY of CLASHFERN: The position would be that they would have to rebut it in advance in so far as they can reasonably anticipate it, even under our provisions. In so far as evidence came out of a hat, as it were—something they could not reasonably anticipate—at the moment the Crown cannot do anything about that once they have closed their case, and these provisions would enable them to do so.
On Question, amendment negatived.
[Amendment No. 46 not moved.]
Clause 30 agreed to.
Clause 31 [Offences in connection with lights, reflectors, obstruction, etc., to be provable by one witness]:
6.37 p.m.
On Question, Whether Clause 31 shall stand part of the Bill?
The EARL of SELKIRK: Clause 31 must, I suppose, be an extension of the cases in which a crime or offence can be proved by one witness. I accordingly looked at it to see whether I could understand it, as it seemed to be important. It refers to paragraphs (a) to (d) and (f).

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I looked up Section 80 of the Road Traffic Regulation Act 1967, and in Section 1(1) I could find only paragraphs (a), (b) and (c). They referred to parking offences, obstruction and parking meter offences. I have probably been foolish enough not to understand it, but it is conceivable that if I do not understand it then possibly other people would not understand it, either. I wondered whether, for that reason, the noble and learned Lord either could suggest wording which was clearer or could make it quite clear what is involved. This is a case where one witness is enough, and I think, with respect, that it should be beyond doubt exactly what is referred to. I am not moving a Motion, but I should be grateful if the noble and learned Lord either would undertake to explain it or would explain it now.
Lord MACKAY of CLASHFERN: It may be convenient that I give the explanation now. Paragraphs (a) to (d) and (f) of Section 80(1) of the 1967 Act refer to the following offences in connection with a vehicle:

"(a) the vehicle being on a road during the hours of darkness without the required lights or reflectors;

(b) the vehicle obstructing a road, or being left or parked, or being loaded or unloaded, in a road;

(c) the non-payment of a charge made at a street parking place:

(d) the vehicle being used in contravention of any provision of an order made or having effect as if made under section 1, 6 or 9, or of regulations made or having effect as if made under section 11, of the 1967 Act, being a provision—

(i) as to the route to be followed by vehicles of the class to which that vehicle belongs "—
such as, for example, lorries having to go along a certain route—

"(ii) as to roads which are not to be used for traffic by such vehicles"
that is the opposite way of achieving much the same result—

"(iii) as to the places where such vehicles may not turn so as to face in the opposite direction to that in which they were proceeding or as to the conditions under which such vehicles may so turn";

for example, U-turns, which some people have been talking about in other connections.—Finally:

"(f) by its being used or kept on a public road within the meaning of the Vehicles (Excise) Act 1962 without a licence under that Act being exhibited on the vehicle in the manner prescribed under that Act".

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I think these are the circumstances to which this new clause would apply.
Lord ROSS of MARNOCK: I think the noble and learned Lord the Lord Advocate will know that there are many people who are opposed to this. It is almost a breach of holy writ, so far as Scottish law is concerned. My noble and learned friend Lord Wheatley will remember the time when he breached it in the Salmon and Freshwater Fish Act. I, too, have a reasonably good memory. I remember the row that there was at that time and the row that there has been about any approach to the question of convicting anyone in Scotland on the evidence of a single witness without any corroborative evidence. I think that we have got to get the noble and learned Lord the Lord Advocate to get up and justify the fact that he is the person so to breach it on this occasion.
I remember the arguments that we had in respect of allowing a judge to exercise a certain measure of discretion. I think it was in a case of a claim for compensation by an injured miner or railwayman; by the nature of his employment there could be no corroboration, for, when the accident occurred, there could be nobody there apart from himself. I remember the row made in another place and in Committee there by certain people who I thought should have known better. They were prepared to stick by the traditions of Scottish law and deny Scottish miners and Scottish railwaymen what I think was fairness. This fairness was allowed in England, but not in Scotland because of the idea that the evidence of one witness is not enough.
It is not enough in Scotland, in the great majority of offences; and I think it is only fair to those who are concerned in Scotland that the Lord Advocate should judge it. I think that the Law Society called this the thin end of the wedge, and felt that the tradition of Scottish law was being breached. As I say, I do not think it is for the first time, but I think it must be justified.
Lord RENTON: Without daring to deny what the noble Lord, Lord Ross of Marnock, has described as holy writ in Scotland, I feel bound to point out that it seems to be rather absurd and a complete

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waste of time that there should be more than one witness required to prove that somebody was driving without an excise licence or driving without a reflector—something as simple as that, something, purely administrative, which only one witness could possibly be required on oath to prove. I should have thought that if the Scottish law requiring corroboration is to be sustained, it can be sustained only in reasonable circumstances and not by trying to insist upon it when it is not reasonable. For that reason, I would not expect my noble and learned friend the Lord Advocate to give way on this clause.
Lord MACKAY of CLASHFERN: The justification has already been well expressed by my noble friend Lord Renton. These are minor matters. Although we do not in any way withdraw from the important principle of Scottish criminal law and also (to an extent and notwithstanding the efforts of the noble Lord, Lord Ross of Marnock) civil law that corroboration is required, I think that, without breaching the principle, these are sufficiently minor matters to enable them to be proved by the evidence of one witness.
Clause 31 agreed to.
Clauses 32 and 33 agreed to.
Clause 34 [Prosecution appeal by way of bill of advocation]:
6.44 p.m.
Lord ROSS of MARNOCK Lord ROSS of MARNOCK moved Amendment No. 46A:
Page 26, line 14, leave out from ("may") to ("proceed") in line 15 and insert ("where there has been no trial diet or there has been a trial diet but evidence has been led").
The noble Lord said The noble Lord said: A very important word has been omitted from this amendment as printed. The last line of it should read:
"has been a trial diet but no evidence has been led".
It is a fairly simple point. It is one to which my attention has been drawn by the Law Society. It is not proper, if a decision on a bill of advocation is reversed on review, for the prosecutor to proceed with an indictment whether or not evidence has already been led at the trial
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diet. If evidence has been led at the trial and the decision is reversed on reivew, the prosecutor should not be empowered to serve an indictment. It is an obvious point about the fact that there has already been a certain amount of publicity in respect of it and it would be unfair to the person concerned. I beg to move.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Nugent of Guildford): For the convenience of the Committee I will read the amendment with the amending manuscript amendment included:
"Page 26, line 14, leave out from ("may") to ("proceed") in line 15 and insert ("where there has been no trial diet or there has been a trial diet but no evidence has been led").
The word "no" has been inserted in the manuscript amendment.
Lord MACKAY of CLASHFERN: I think it is perhaps important in looking at what has been said about this particular proposal to have in mind that the bill of advocation to which this applies is a method of bringing under review not the facts of a case but some matter of law procedure which has arisen. If the proposal were accepted the bill of advocation procedure would, as the Thomson Committee recommended, be available in both solemn and summary proceedings where the inferior court has dismissed an indictment or complaint as irrelevant or incompetent or dismisses the case on some other preliminary ground—for example, refusal by the court to continue or adjourn a case or to grant leave to desert for that time and place. Any matter which arises short of a verdict can found the right of a bill of advocation.
For example, reverting to one of the provisions that we discussed earlier, if a judge has held that the 110 days' period has expired, and that was found to be wrong, there seems to be no reason why the matter should not be allowed to proceed. Any complaint or indictment which will recommence under the proceedings after the bill of advocation has been successful must inevitably be in the same terms as the one on which the bill of advocation was taken. As the facts are not being disputed in the advocation there is no danger in hearing once again the evidence which may have been led prior to the termination of proceedings which gave rise to the bill of advocation.

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This proposal is an important one in making sure that the procedure by way of bill of advocation is effective in cases to which it is properly related and it is again based on the Thomson Committee's recommendation this time, contained in paragraph 15.10 of the Third Report. I would invite the Committee not to give effect to this amendment.
Lord ROSS of MARNOCK: In view of what the noble and learned Lord the Lord Advocate has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 34 agreed to.
Clauses 35 to 39 agreed to.
Clause 40 [Restriction on passing sentence of imprisonment or detention on person not legally represented]:
6.50 p.m.
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 46B:
Page 28, line 21, after ("imprisonment") insert (",or detention,").
The noble and learned Lord said The noble and learned Lord said: This is purely a drafting amendment. Clause 40 imposes a restriction on passing a sentence of imprisonment on adult offenders or of detention on young offenders, where the offender is not legally represented. The juxtaposition of "imprisonment or of detention" in line 19 and 20 and "imprisonment" in line 20 carries a suggestion that the restriction on immediate committal in default of payment of a fine applies only to imprisonment of adult offenders in default and not to detention of young offenders in default. This amendment rectifies that ambiguity by making it clear that the restriction does apply also to detention of young offenders who have defaulted in payment of fines. A similar amendment arises in respect of paragraph 9 of Schedule 7. I beg to move.
Clause 40, as amended, agreed to.
Clause 41 [Restriction on passing sentence of imprisonment on person not previously so dealt with]:
Lord WILSON of LANGSIDE Lord WILSON of LANGSIDE moved Amendment No. 46C:
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Page 29, line 24, leave out ("(from an officer of a local authority or otherwise)").
The noble and learned Lord said The noble and learned Lord said: On the face of it this clause is of course unexceptionable. I put down the amendment only after some considerable hesitation, because I felt that possibly it raised a number of questions of some practical importance. The question that I should like to ask the noble and learned Lord is this: The clause imposes further restrictions on the discretion of the court in passing a sentence of imprisonment, and among other things it requires the court to obtain, as the clause says
"(from an officer of the local authority or otherwise)"
such information as it can about the offender's circumstances. This is eminently sensible. Do the Government regard this provision as making it obligatory on the court to require a report from an officer of the local authority, who used to be called the probation officer?
The reason why I ask that question is, of course, that an identical provision restricting the power of the court to impose sentences of imprisonment is contained in provisions such as those in Sections 41(6) and 41(7) of the 1975 Act. Although the provision says clearly that the court shall obtain this information through a report from an officer of the local authority or otherwise, in practice in most summary criminal courts it is in any event regarded as obligatory on the court to continue the case in order to get such a report from an officer of the local authority.
Why should not the court continue the case in these circumstances? There are two points to be made so far as the practical position is concerned: the first is that one of the problems in the summary criminal courts in Scotland is the number of continued cases which have to be dealt with at the beginning of every court, cases which have been continued for a great variety of reasons, because of statutory provisions, sometimes for the production of a driving licence so far as road traffic cases are concerned. Over the years there is an increasing log jam of cases. Everyone who works in the summary criminal courts knows about these and is conscious of them. Before the serious work of the courts can be started, all these cases continued for this wide range of reasons,

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often perfectly good, have to be dealt with. There is an arid cause of delay in the disposal of trials and the like.
The second point is that in many of the busier courts in particular, the social work departments find great difficulties in providing the courts timeously with the kind of reports they need. There is a wide feeling in many social work departments that they have great difficulty in meeting the demands of the courts. This has increased since the Probation Service ceased to be. These are two practical points of some importance. There is some concern in the courts as to whether in these cases that are covered by Clause 41 it is intended to be obligatory on the court to continue with the social inquiry report, or whether they have a wide discretion which, on the face of it they have, but which they have not seemed in practice to accept that they have had in these other provisions under the other provisions of the Criminal Procedure Act which I have heard. I beg to move.
Lord WHEATLEY: I am perturbed about the extent of this clause. I can understand the purpose behind it; but we know that social workers in local authorities are constantly being asked to provide reports for the courts, and that they are finding it very difficult to do so, and at the same time to carry out the work for which they are primarily employed. I wonder whether this provision is necessary in relation to solemn proceedings where the fact that they are being taken on indictment would indicate that the offence, if established, is of such a serious nature that normally a prison sentence would follow. If this clause were to stand as it is, it would mean that in every case in a situation qualifying the conditions here the court would require to call for a social inquiry report from the local authority.
Lord RENTON: Having heard the two noble and learned Lords, I am somewhat puzzled by these words in brackets which are sought to be left out by the noble and learned Lord, Lord Wilson of Langside. When it says:
"(from an officer of a local authority or otherwise)"
it might just as well say "from anybody".
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This is a purely drafting point. If we are to specify people by way of priority as being those from whom information should be sought, I should have thought that above all a probation officer was a person who might be consulted. Sometimes the police might be consulted. There should be no limit to the court's opportunity to obtain such information as the court considers is necessary to enable it to form an opinion about the offender's circumstances. Therefore, it seems to me that the words in brackets do not help at all and might just as well be left out from a purely drafting point of view.
Lord MACKAY of CLASHFERN: It is perfectly correct, as my noble friend Lord Renton has said, that if one leaves out the words in brackets which are the subject of the amendment, it would not make a tremendous difference to the effect of the clause. However, the object of the words in brackets—and they are very similar to words in sections to which the noble and learned Lord, Lord Wilson of Langside, referred in moving the amendment—is to indicate to the court the probable source of the information that it seeks. In Scotland nowadays the probation officer is no longer available. The social work department has to a large extent taken over the role of the probation officer. The purpose of this interpolation in the brackets is to direct attention to that person as the person to whom in the first instance one would think of going for this information.
May I emphasise that this is a clause designed to make certain that where a person is being sentenced to imprisonment for the first time full information about that person's background is available. Scotland has an unfortunate record of being one of the countries with the highest rate of imprisonment per head of population in Western Europe, and the stage at which that starts—that is, when a person is first sentenced to imprisonment—is a most important stage. While I fully appreciate the concern which the noble and learned Lord, Lord Wilson, has expressed about the strain on the services and so on, the matter is of such importance that we think no effort should be spared to enable the court to have this information before it passes sentence. As to the point made by the noble and learned Lord, Lord

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Wheatley, I appreciate that it may well be almost inevitable that a sentence of imprisonment should come, but even in such cases every consideration ought to be given before that very important and irrevocable step is taken.
Lord WILSON of LANGSIDE: I take it from what the noble and learned Lord the Lord Advocate has said, and indeed from what has been said by the noble and learned Lord, Lord Wheatley, that in effect the Government consider that the courts should have resort to what used to be called "probation reports" in most, it' not all, cases. This will, in practice, add a significant burden to the working of the courts and to the work of the social work departments. In the case of Clause 40, I can readily understand that it is absolutely vital that, where a person is not legally represented, resort should be had to the social work departments. But at not inconsiderable public expense, in all these cases to which Clause 41 refers, the accused person will have the assistance of a legal adviser. If the legal adviser is not capable of giving to the court the kind of information that would enable it to decide this kind of question, then in my humble opinion the question arises as to whether so much public money should be spent in providing legal advice to people. Surely the kind of information the court needs in order to decide this kind of question, over a person who had never been in prison before, ought to be provided with a legal adviser, whether he be privately instructed or instructed at public expense. Why should it be thought that, as I understand it, many overworked social work departments in Scotland should have the burden put on to them?—a burden which many of them say they have great difficulty in carrying at the moment. It was with these sorts of considerations in mind that I put down this amendment. At first sight it might be thought a little callous to say: "Why should not the court go to the social work department?" Is it really necessary, if he has a good legal adviser?
Lord FOOT: The difficulty about that last suggestion is that if the court is trying to find out objectively what the real circumstances of the accused are, with a view to considering whether or not they should send him to prison, surely a statement emanating from the counsel
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or solicitor for the accused has not got that objective and impartial aspect that a report from a probation officer has. I would have thought there is really no great difficulty in leaving these words in, because it does not require the court always to obtain a report from "an officer from the local authority"—which I understand to be the euphemism for a probation officer—hut the court can, if it sees fit, seek for its information under the phrase "or otherwise": in other words from some separate source. I would have thought there were manifest advantages in leaving it in the clause that the court may seek the advice of an officer of the local authority if they are so inclined and if they think that the information they can get from some other source is inadequate for their purposes.
Lord WILSON of LANGSIDE: F do not want to press this point because it is a short one. I accept everything that the noble Lord, Lord Foot, has said. There will be many cases in which the court will be doubtful as to whether it should proceed to imprisonment without getting a report from a social work department. The point is that, in the Scottish courts the approach, certainly in the summary criminal courts, to the question of whether or not to impose a sentence of imprisonment is very much the approach enshrined in this clause of the Bill. The only point at which I cavill is tying the hands of the court and saying: "You cannot do it unless you get a report from the social work department" I would have thought this was an unnecessary and undue restriction. That was the only point I wanted to make, and in the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 41 agreed to.
Clause 42 [Punishment for murder]:
7.5 p.m.
Lord FRASER of TULLYBELTON Lord FRASER of TULLYBELTON moved Amendment No. 47:
Page 29, line 38, leave out ("sections") and insert ("section").
The noble and learned Lord said The noble and learned Lord said: I should like, if I may, to take Amendments Nos. 47 and 48 together. Amendment No. 47 is of absolutely no significance: it

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is merely a consequential amendment if No. 48 is carried—it deletes an "s". The important point concerns Amendment No. 48, because this deals with the question as to whether, when a sentence of life imprisonment is imposed after a conviction for murder, the judge is to be obliged to make a recommendation as to the minimum period of detention which the convicted man should serve, or whether, as at present, he should be permitted to do so if he thinks fit. Your Lordships will see that the substituted Section 205 says that,
"… a person convicted of murder shall be sentenced to imprisonment for life",
and that is subject to special provisions for young people. On page 30 of the Bill, at line 11, it goes on:
"On sentencing any person convicted of murder a judge shall, unless he considers that there are special circumstances making it inappropriate for him to do so, make a recommendation as to the minimum period which should elapse before …"
the convicted person can be released. That is an innovation. The present law is that the judge may make a recommendation if he thinks fit, but he is not obliged to do so. I would prefer the law to remain as it is, leaving it open to the judge to make a recommendation but not obliging him to do so.
I put this forward with a little hesitation because I know that a committee presided over by Lord Emslie, the Lord Justice General, reported in 1972 in favour of a mandatory recommendation: in other words, in favour of the Bill as at present drafted. That committee reported in 1972 which in this connection, was a good long time ago. A great deal of experience has been gained since then on the working of this provision, and I think the arrangements at present in force for a discretion for the judge to make a recommendation or not has worked very well. I think that the recommendation of the committee is really not one that should be accepted in this connection, and I see I have support for that from the Law Society of Scotland.
The reasons I put forward are these: In the first place, what the judge does when he is making a recommendation for the minimum period of detention is almost entirely related to his knowledge of the case from the trial. If he thinks the actual murder has been a very savage
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and very wicked one, or if he thinks the accused has a record, or if there are other cirumstances which are much to be deplored, then he will make a recommendation for a rather long period of necessary detention. He will say, "He must not be released in less than 20 years", or something of that kind. But he can do that only by reference to the past. The whole point of the parole boards and so on is that the conduct and character of the convicted person shall be judged by a panel of people after he has been in prison for a time, and in relation to his state of mind and his conduct as then ascertained. The two are rather in conflict and it would not be desirable, therefore, that the judge should always as a matter of regular practice, make a recommendation. Of course if he thinks that it is a special case he should be permitted to make a recommendation, but he should not be obliged to do so.
Secondly, in quite a number of cases the minimum period of detention which a judge would recommend might be very short. I can think of one case that I tried of a young man who was perfectly rightly convicted of murder, but the circumstances, which I shall not go into now, were not at all criminal and wicked. He had had too much to drink and he picked up a knife, there was a quarrel over a girl, and he stabbed another young man. Of course, it was a dreadful thing to do and he should not have done it. But if one heard the whole story, and knew that liquor was involved, one would know that he did not attract a very long sentence. There was a lot of evidence about his family and character. He was a decent young chap who had behaved stupidly, but I thought that it was not a crime which required a long period of detention.
If I had been obliged to make a recommendation in that case, I should have said that he must not be released in less than two years, or something like that. But if I had said that in public, there would have been an uproar and the public would have thought it was absurdly little for a crime of murder, but they would not have known the circumstances. It is much better that a formal sentence of life imprisonment should be imposed in that kind of case, and it should be left to the machinery to see how long he should be kept in prison. If a young man is of good character and bitterly regrets the terrible thing that he has

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done, he might be let out in a relatively short period. That is done quietly and without causing any uproar.
There is another factor—that if a mandatory recommendation is to be made the public will see what is recommended and will, perhaps, tend to compare the recommendation in convictions for murder, which are recommending a minimum period, with an actual sentence imposed for culpable homicide, or in England, manslaughter, where a sentence is imposed which is, in effect, a maximum sentence and which is liable to be reduced to two-thirds, anyway, for good conduct and may come down to as little as one-third. As a result, the comparison is an entirely false one. But members of the public will not always appreciate that and may say, "It seems extraordinary to recommend a period of detention of only two years for a murderer, whereas here is a sentence of 10 years for culpable homicide", without realising that the two things are not comparable. That would be unfortunate.
Without going into more elaborate details, I would also add that this very matter has recently been under consideration in England by the Criminal Law Revision Committee, who are considering penalties for offences against the person. They have, I believe, completed their report. It has not yet been published, but I suppose that it will be before very long. I do not know what the recommendation may be, but it seems to me that, as they have investigated this matter quite fully and more recently than the Emslie Committee, it would be wise to await the publication of their report with such reasons as they may advance for their recommendation, before changing the law. I prefer that the law should continue as it is now, and that the judge may make a recommendation but is not obliged to do so. For that reason, I beg to move.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Nugent of Guildford): As the debate is covering Amendments Nos. 47 and 48, I should inform the Committee that if these amendments are agreed to, Amendment No. 48A, which is directly related to Amendment No. 48, will fall.
Lord MISHCON: Following upon what has just been said, I rise only to apologise on behalf of my noble friend
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Lord Ross of Marnock, who has a longstanding engagement which he could not possibly put off, so he does not have the opportunity of participating further in this Committee stage. I just want to say that what Amendment No. 48A, which will not now be moved, would have done is to try to preserve the law as it is. That is exactly what the noble and learned Lord, Lord Fraser, is asking for and, for all the reasons that he has given, I want to say that we on these Benches support him in this amendment.
Lord KEITH of KINKEL: I support the amendment proposed by my noble and learned friend Lord Fraser of Tullybelton. The point which is raised by the amendment is not at all a lawyer's point. As I see it, it is very much concerned with the question of what the attitude of the general public to the administration of justice in the higher criminal courts of Scotland is going to be. Opinions vary as to whether sentences of imprisonment have a significant deterrent effect upon others who might be minded to commit crimes. One knows that a person serving a long sentence will not be committing any crimes during the period of his incarceration. There are certain crimes of murder which present themselves to the general public as very obviously exceedingly atrocious crimes and there are one or two instances which one can recall. In Scotland, perhaps the most notorious was the Manuel case, while another in England was the Moors Murders case, but murders of that kind are exceptional. In Scotland, the great majority of murders are what one might call run of the mill. They may be domestic murders—that is, murders committed in some kind of domestic relationship—or, quite commonly, they may be murders effected almost by accident, by young men who carry knives in the streets of the major cities.
In the case of the atrocious murders, it is reasonable that the public should demand—because any system of justice must take account of public opinion—that the sentence passed must be a very heavy one, and it appeals to their ordinary sense of justice that a recommendation should be made fixing a very long minimum term of imprisonment. The public understands that and it may encourage their faith in the administration of justice.

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For one thing, they know that that person, who is obviously very dangerous, will not be allowed out for a very long time; and for another, as I said, it appeals to their general sense of justice and seems a proper response to their feeling of shock and horror at the circumstances of a particular murder. It is, as I understand it, to deal with that kind of case that the present power to make a recommendation has been entrusted to the judiciary.
But what about the other run-of-the-mill murders, such as I have described? Is it necessary, does the public feeling demand, that recommendations be made in these circumstances, or would it do any good to the impression which the public receives of the administration of justice? Respectfully, I think not. There is no particular reason for supposing that in the ordinary murder case, if a mandatory requirement is imposed to state a minimum period of detention, there will be a great deal of difference. We know that under the present system the parole board normally recommends a murderer for release, if there is nothing special about the case, after nine or ten years. The general level of recommendations, if this clause became law, would no doubt be of the order of eight, nine or ten years. Would that do any good? The public would fix their attention upon these recommendations and say, "Oh, the term of imprisonment for murder nowadays is normally nine, 10, or 11 years, or thereabouts" and they might compare it with other sentences for other crimes which might be heavier.
I would respectfully ask your Lordships to take the view that this clause would have a detrimental effect upon the public view of the administration of justice and that it is much better that, as at present in the normal case, the question of how long a convicted murderer should serve should be left to the parole board, which is in a position to assess the progress of the prisoner while incarcerated, take account of his circumstances and his psychological state from time to time. and so on. As no doubt many noble Lords are aware, in every murder case the presiding judge is required to prepare a report for the parole board which is then kept and considered along with the other material available whenever the case of the prisoner is reviewed. Like-
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wise, the trial judge, if available, is always consulted before the parole board takes the step of recommending the release on licence of the prisoner.
As I have said, this point seems to me to be very much the sort of point apt to be considered not by lawyers but by those who are concerned and interested in the impression which the public are going to have of the sentencing policy of the courts. I conclude simply by saying that I believe that this requires reconsideration by the Government. Many different views have been expressed about it in both the Walton Report in England and the Emslie Report in Scotland. It is a very debatable question but I do not think that it is a lawyer's question.
Lord WIGODER: I hope that the noble and learned Lord the Lord Advocate will find himself persuaded by the powerful arguments of the two noble and learned Lords on this matter. May I add only one small point: that the question of the way in which we deal with convicted murderers is always a matter of the greatest public interest and the greatest controversy. It would, I suggest, be a very, very unhappy state of affairs if, on such a vital issue of penal policy, England and Scotland should adopt wholly different methods of approaching this matter. I hope that the noble and learned Lord the Lord Advocate will consider on this matter. perhaps more than on many others in the Bill, that it is very much in the public interest that the two countries should go together hand in hand, and that Scotland should not set out, as is proposed in the Bill, on a method of dealing with people who have committed the offence of murder which at the moment is not part of English law; and that any such reform should be done, if it is going to be done at all, by the United Kingdom as a whole.
Viscount ULLSWATER: I intervene for only a short while to support the noble and learned Lord, Lord Fraser of Tullybelton, in these two amendments, especially where they concern Section 205(2) which deals with those under the age of 18. In this case it is inappropriate and very unkind on a young offender, albeit taking into account the seriousness of his crime. If a long period is specified, this is at a time when his character is changing a great deal. He is maturing and growing

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up and it would have a very depressing effect upon the evolution of his character. If a very short period were stated it might give false hope to an offender if the Secretary of State, at the time that that period came to an end, decided that he was not tit for release. I think that this is inappropriate for young people.
7.26 p.m.
The Earl of MANSFIELD: I have listened with the very greatest care and attention to what the noble and learned Lord, Lord Fraser of Tullyhelton, and other noble Lords have said. If I may respectfully agree with the noble and learned Lord, Lord Keith of Kinkel, there are overtones to this part of the Bill which go beyond the law and come into the general policy of the administration of justice. When, if I may call them such, representatives of those upon whom this duty is being put say that it is not a duty which they welcome, naturally one pays the greatest attention to what they say. However, as the noble and learned Lord pointed out, this clause of the Bill comes from the recommendations of the committee presided over by Lord Emslie.
Since some of these works are now out of print and not available, perhaps I may be forgiven if I quote from a small portion of paragraph 93 on page 41 of the report, because it sets out precisely why this has been written into the Bill. That particular section deals with considerations relating to changes in Section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 and, when talking about the duty which they were going to recommend, says:
"Its effect would be that at the end of almost all trials which result in a conviction for murder the court, in addition to imposing a mandatory life sentence, would recommend, in the light of its assessment of the offence and the offender, a minimum period of years for which the offender would be initially detained. The making of such a recommendation would enable a distinction to be made in public by the court between one murderer and another. The convicted person and the public would thereby be made aware of the gravity with which the court viewed the case and any potential offender would be made aware in a more direct way than is possible with the present sentence of the likely consequences of a similar crime. At the end of a murder trial which attracted considerable publicity the pronouncement of a sentence of life imprisonment, coupled with a recommended minimum period, would usefully sharpen the deterrent value of the sentence. The introduction of such a provision would also go some way to strengthen public confidence in the penalty for murder by removing the present
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anomaly whereby the judges, who are entrusted with the task of saying what custodial element is necessary for, in particular, the purpose of deterrence and prevention in any other common law crime, play virtually no part at all in determining the period which convicted murderers spend in prison. The present provision for obtaining the trial judge's view on these matters is of little value and contributes nothing to the general deterrent influence of the penalty itself".
So the effect, I submit, of the deliberations of the committee was that the trial judge is, after all best placed to assess all the circumstances of the offence and the offender in the light of the information presented to the court.
I take the point made by the noble and learned Lord, Lord Fraser of Tullybelton, that there may be exceptions to the ordinary run—for instance, where the trial judge does not consider murder to be a very grave matter. In relation to the noble and learned Lord's second point, I am bound to say that murder, which remains the most serious offence against the person in our calender of crimes and which arouses very considerable public disquiet, would in very few cases, if there was not a defence of diminished responsibility of some kind available to the accused man, merit a period of detention so low as two years. But I suppose that it could happen. The committee therefore recommended that, exceptional circumstances apart—and I want to emphasise that—the judge should recommend the minimum period which should elapse before a person convicted of murder is released on licence.
At present, judges have a discretionary power to make such recommendations, a power which incidentally the amendment seeks to remove, but that power is seldom used. If, as is contemplated, more use is to be made of the power, certain statutory safeguards are in our view essential so that we have in particular a requirement for a judge to state the reasons for his recommendation in subsection (2), and a right for a convicted person to appeal against a recommendation, which is in subsection (3).
Like the Emslie Committee, the Government take the view that the pronouncement of such a recommendation will serve to enhance the punitive and deterrent effect of the life sentence. I appreciate that the judge is only in a position to view the matter from what has transpired and the present state of the proceedings as he sees them in court, and that is why it is

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appropriate that he should make only a recommendation as to the minimum term which should be served to achieve the desired punitive and deterrent effect. The maximum, of course, stays as it was before, with the Parole Board and the Secretary of State.
I want to emphasise that the Government regard as most important the life sentence and its pronouncement at a time when, in Scotland, there is widespread public concern about law and order and in particular about crimes involving serious violence which may or may not lead to death, often depending as we have heard in previous debates, on such chance factors as the availability of medical assistance. The incidence of murder has shown a general tendency to increase since the 1960s, and I think that public concern has increased as well.
Another advantage to be derived from the implementation of the report was referred to on Second Reading. As a former Secretary of State for Scotland, he is well aware of the problem that when the time comes for the Secretary of State to consider the release on licence of a person convicted of murder, the trial judge may have died or he may be very elderly and unable to remember the particular circumstances of the case. The requirement of the trial judge to make a minimum recommendation and to record his reasons for the recommendation will provide guidance for future holders of the office.
Lastly, and by way of underlining what the noble and learned Lord, Lord Keith of Kinkel, has said, this is a matter which has exercised public opinion for some time; sufficiently so that before the last general election this actual provision appeared in the manifesto of the Scottish Conservative Party and therefore we are undertaking this commitment by including it in the present Bill. I would not seek to justify anything simply for that reason, but I just put that in for what it is worth. I hope, from what I have said, that your Lordships will agree that in view of all the safeguards which I have mentioned this is something that could well be written into our law and possibly, dare I say to the noble Lord, Lord Wigoder, eventually be copied in England.
7.33 p.m.
Lord RENTON: I wish to deal with only one point, and that is the question of whether on this important matter the law of England and of Scotland should necessarily be exactly the same. We know that whatever happens the same sort of practice, statutorily defined, is likely to emerge. As an English lawyer I was honoured, flattered and pleased when the noble and learned Lord, Lord Fraser of Tullybelton, said that we should await the report of the English Criminal Law Revision Committee before reaching a decision on this matter. But we have before us the Criminal Justice (Scotland) Bill, and I should have thought that it was right for us to deal with it on the basis of whether the Bill has got it right for Scotland. If it has got it right for Scotland, then whatever is said by an English Criminal Law Revision Committee should not matter.
But surely my noble friend the Minister of State has put forward—leave aside what was in a political manifesto; on something like this I do not think we should be very strictly tied to that—views which provide adequate safeguards. Indeed, if we look at the clause we find that the judges in Scotland will be required to take very great care, of a kind which public opinion would expect, and they have to give their reasons for their special recommendations. In those circumstances, I cannot believe that any serious disparity which would worry public opinion is likely to emerge in the long run if we pass this clause as it stands in the Bill.
Lord FOOT: I rather hesitate to intervene but I have been provoked into doing so by the words which have just fallen from the noble Lord, Lord Renton. There is a major question here, and also a minor question. It seems to me that the provision which we have in our law in England at the present moment whereby a judge may—and it is optional for the judge—make a recommendation as to how long a person sentenced to life imprisonment should in fact remain in prison really is quite illogical. It is certainly contrary to the Christian principle that everyone is capable of redemption, because it assumes that the judge, when speaking about what is to happen in 15 or 20 years' time, and whether or not that particular individual will then

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be fit to be let out, is looking into a crystal ball; he is being asked to forecast the future, and that always seems to me to be a ridiculous burden to place upon a judge.
But the narrower point is really whether it is to be obligatory and mandatory on the judge, as provided in this new clause, to recommend a minimum term, or whether it is to be optional. I listened with great care to everything that was said by the noble Earl, Lord Mansfield, about this matter and it seemed to me that everything he said was equally applicable to arguing in favour of the optional as opposed to the mandatory sentence. Surely it is imposing upon a judge a burden which he may be unwilling to bear, to ask him always, unless there are special circumstances, to state the period that he thinks a person ought to serve and the reason why he makes that recommendation. Why should we impose that intolerable burden which I suppose many judges would be unwilling to cant'? All the arguments that we have heard have been really as much in favour of the optional system as of the mandatory system, and I hope that the Government may still be prepared to consider, not perhaps the deletion of this clause but rewriting the clause in order that the law in Scotland may indeed be on even terms with the law in England.
7.40 p.m.
Lord MISHCON: I intervene, with an apology for doing so on the second occasion on this clause, because I feel it is necessary to stress one point which has been ably made by the noble Lord, Lord Foot, but in the extension of which I feel he somewhat erred. As I understand it, the law North of the Border is the same at present as the law South of the Border, in the sense that the judge has the power to do it, as he has in England.
It seems to me that everything that the noble earl said in his very cogent speech pointed to the fact that there was a need for a deterrent. In the appropriate case, if there is a discretionary power, I have no doubt that a judge would find it his duty to observe what has been his power until now, carry out that duty which is upon him, and prescribe by way of recommendation a minimum period of detention. To try to do it for every conceivable
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case and make it mandatory must be a wrong way of dealing with the matter. Surely the judges of Scotland can be relied upon. if there were a plea to them in future that in appropriate cases they should exercise this discretion, that would meet with the sort of response that all of us who have spoken in favour of this clause would want, and indeed there is no reason why, in asking them to exercise this discretion which they would have, they should not be told that at the same time, if they do exercise it, they should carry out all the things that are contained in this clause in order to give proper guidance. I repeat, to make this mandatory must be wrong.
I cannot feel that the noble Lord, Lord Renton, for whose views upon these matters we all have great respect, is right when he says that it is a sensible thing if something appears to be right for Scotland to make it right for Scotland, even though it happens to be right for England in the reverse way. Are the crimes of murder committed North of the Border different from those of the South. Are the citizens of Scotland different from ours, and should they be dealt with separately in the crime of murder. It does seem a little absurd.
Lord RENTON: Before the noble Lord sits down, perhaps he would allow me to say this. Surely the whole point about the law of Scotland, especially the criminal law, is that it is in so many different respects different from the laws of England, and the Act of Union requires that the customary law of Scotland should be maintained and indeed built upon. Every time we have before us in Parliament a Criminal Justice (Scotland) Bill, we are building on what has gone before, and that is what we are doing tonight.
Lord FRASER of TULLYBELTON: I should like to correct any impression I may have given, if I did give the impression, that I think the crime of murder is to be treated lightly. I am far from wishing to suggest any such thing. I do not believe that and I hope I did not give that impression. If I may refer to one or two of the points the noble Earl, Lord Mansfield, put forward which appeared to me to be less than satisfactory answers to what I was saying, he said that at present the power of the judges to make recommendations for a minimum period is

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very seldom used. I should have thought that was a very strong indication that the judges do not want the power and do not think it is one they ought to use. If they thought it their duty to make a recommendation in a particular case, then, of course, they should do it. if they do not do it, it shows that they do not consider it a useful thing to do. Indeed, I understand that there is no general view among the judges in Scotland that the duty of making a recommendation should be mandatory. I do not know whether there is a positive majority in favour of what I am saying, but there certainly is no strong view in favour of a mandatory recommendation.
Another matter that the noble Earl referred to was that the trial judge, who at the moment is to be consulted before a convicted man is released, may not be available; he may have died or he may have become ill. That is true, and for that very reason the present system is that a report is made by the trial judge immediately after the trial when the matter is fresh in his mind as to what his views about the minimum period are. So that possible difficulty really does not exist.
Then the noble Earl referred to the recommendation of the Emslie Committee, which I fully recognise thought that there should be a mandatory recommendation. I think, when one considers the Emslie Committee's report on this matter, it does not seem to me to be very persuasive. In paragraph 96 they say:
"Further, the deterrent value of the sentence would in our view be enhanced and a number of possible misunderstandings removed if the pronouncement of the court was in some such terms as the following: ' I sentence you to imprisonment and to remain liable for imprisonment for the rest of your life. I recommend that you be detained for a period of not less than (so many years) before you are released on licence'"
I quite see that, if that last sentence said, "I recommend that you be detained for a period of not less than 20 years or 30 years", it would have a strong deterrent effect. But if it became the ordinary practice to say, "I recommend that you be detained for a period of not less than 8 years or 9 years or 10 years", and if that became well recognised as little more than a formula, it would lose any particular deterrent effect very quickly. So I must
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say I find that argument entirely unpersuasive.
With regard to the point of the noble Lord, Lord Renton, that conditions in the Scottish criminal law are different from the English criminal law, I, of course, accept that that is so. I would be the last person to suggest that Scotland should tag along behind England in this matter. I would not dream of doing any such thing. But we have, I understand, a very recent up-to-date report of the English Criminal Law Committee, who I know will make a recommendation on this and will set out some reasons for it. I should have thought the sensible thing was, before changing the law of Scotland, to see the reasons in the English report. Having seen them, we may say that they are quite inapplicable to conditions in Scotland, or we may say that they are sensible reasons which are equally applicable throughout the United Kingdom, and they are more up-to-date than the Emslie recommendations of 8 years ago, and we therefore think the law should remain as it is.
Finally, the fact that something of this sort was in the political manifesto of a party before an election is the one thing that makes me very reluctant to ask leave of the Committee to withdraw this amendment. But I think it would be wrong for me as a judge to press to a Division a matter of this sort against the Government. So, sadly and reluctantly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 48 and 98A not moved.]
Clause 42 agreed to.
Clause 43 agreed to.
Clause 44 [Detention of young offenders]:
Lord MACKAY of CLASH FERN Lord MACKAY of CLASH FERN moved Amendment No. 48B:
Page 34, line 21, leave out from ("to"") to ("shall") in line 23.
The noble and learned Lord said The noble and learned Lord said: This is a purely drafting amendment. Clause 44 inserts new provisions under solemn procedure in the Criminal Procedure (Scotland) Act 1975 for the detention of young offenders and applies these provisions with certain necessary modifi-

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cations to summary procedure. One modification thought necessary was to disapply for summary procedure the provisions of Sections 59 to 62 and 64 of the Criminal Justice Act 1967, which deal with release on licence, since the maximum length of summary sentence, usually three months but in some cases six months, is less than the qualifying period for parole, 18 months. However, it is now realised that it may be possible for someone sentenced to detention under Section 415 of the Act to qualify for parole; for example, if a person serving a sentence under solemn conviction of, say, 15 months is convicted and sentenced under summary procedure for another offence, and the aggregate of the two sentences to be served consecutively exceed the qualifying period for parole. Sections 59 to 62 and 64 of the 1967 Act are therefore still relevant to summary procedure, and this amendment deletes their omission in lines 21 to 23 of page 34. I beg to move.
Clause 44, as amended, agreed to.
Clauses 45 to 47 agreed to.
Clause 48 [Power to remit fines]:
7.50 p.m.
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 48C:
Page 36, line 39, leave out from ("fine") to end of line 40 and insert ("or (where that court was the High Court) by which payment was first enforceable").
The noble and learned Lord said The noble and learned Lord said: I beg to move Amendment No. 48C. The purpose of this amendment is to render more precise the phrase:
"an appropriate sheriff court"
which at present is found in the clause, and to substitute for it:
"(or (where that court was the High Court)" [the sheriff court] "by which the payment was first enforceable)."
It is important that a person wishing to have his fine remitted should know exactly to which court to have resort. It is a purely drafting amendment. I beg to move.
Clause 48, as amended, agreed to.
Clause 49 agreed to.
Clause 50 [Recovery of fine or caution by civil diligence]:
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 48D:
Page 38, line 21, after ("or") insert ("for failure to find such").
The noble and learned Lord said The noble and learned Lord said: I beg to move Amendment No. 48D. This is a purely drafting amendment. As drafted, Clause 50 refers to non-payment of a fine or caution, but strictly the correct terminology in the case of caution is failure to find caution, rather than non-payment. The amendment simply rectifies that point.
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 48E:
Page 38, line 23, leave out ("non-payment of the fine or caution") and insert ("the non-payment or the failure")
The noble and learned Lord said The noble and learned Lord said: I beg to move Amendment No. 48E. The same explanation applies.
Clause 50, as amended, agreed to.
Clauses 51 to 55 agreed to.
Clause 56 [Compensation order against convicted person]:
7.54 p.m.
Lord MISHCON Lord MISHCON moved Amendment No. 49:
Page 40, leave out lines 10 to 15.
The noble Lord said The noble Lord said: I beg to move Amendment No. 49. Clause 56 provides for a compensation order to be made against a convicted person, and no one would have the slightest quarrel with that. Indeed, if I may be permitted to say so, having regard to matters that were discussed quite recently, it is a course which is being adopted with great usefulness in the English courts. Having said that, and taking it for granted that someone will not immediately say that we had better abolish it for Scotland having regard to what was recently discussed, I shall go on to talk only about the proviso.
For some reason which is not clear to me there is a proviso in this clause that a compensation order cannot be awarded

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by a court where it makes an order discharging the defendant absolutely or if it makes a probation order. I cannot think of a greater discouragement to make a probation order in a case or to give an absolute discharge, if the award of a compensation order—which seems extremely appropriate in many cases—cannot be made if a probation order or an absolute discharge follow. I need not detain your Lordships for long by giving numerous examples. I should have thought that there was one very obvious example. I am referring to the young offender who has done damage and who has caused loss, and as regards whom the court takes the view that the most suitable penalty to be imposed is to make a compensation order and to accompany it with a probation order. In those circumstances, I move this amendment and trust that the proviso will leave the Bill.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Alport): I must advise your Lordships that if this amendment is agreed, I cannot call Amendment No. 49A:
Lord WILSON of LANGSIDE: I agree with what has been said in support of the amendment. The amendment which I put down, Amendment No. 49A, covered only the case of the probation order. That was simply because I could see a kind of legal logic in saying that if an absolute discharge was appropriate then perhaps a compensation order was not. However, I think that my legal logic was wrong.
Certainly, so far as the probation order is concerned, I think that there are two questions that the Government must answer. First, why should a person not be put on probation and a compensation order be made at the same time? For years in the Scottish criminal courts offenders have been put on probation on condition that they made good part or the whole of the damage or loss caused to the victim of the offence. That was commonplace. Therefore, the second question which the Government must answer is as follows: if they insist on this proviso, are they saying that it is incompetent for the courts to do what they have done for so long—and most people, I should have thought, would have thought
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most sensibly—namely, especially to put a young offender, on probation, with a condition of his probation that he makes good part or the whole of the loss which the victim of his offence suffered?
Lord MACKAY of CLASHFERN: There is nothing in this clause which in any way reduces the power of the courts in Scotland in so far as they have powers already. Therefore, the answer to the last question must be that, if it is competent at present it continues to be competent as regards anything that this clause provides. The reason why probation orders and orders for absolute discharge have been excluded is that it is thought by us that to impose a compensation order in these circumstances is not appropriate. From the point of view of the offender the imposition of a compensation order is very analogous to a punishment. The machinery set up for enforcing it is the machinery which affects fines. It is really for that reason that these two orders—the absolute discharge and the probation order—which are really alternative to punishment in the strict sense, are excluded.
As I have just said, that does not mean that the courts are powerless in this matter. It would still be open for the court—if they thought it appropriate to impose probation or to grant an absolute discharge—to continue the case at the first hearing to enable the person accused to make compensation to the amount that they had in mind, before granting that relief. That, from the practical point of view is, of course, what happens in that area at present. From that point of view, the only real effect, so far as compensation orders are concerned, on the power of the Scottish courts, is that machinery is provided for compulsory enforcement of the compensation order, and in the case of the absolute discharge and probation order that might not be appropriate. Therefore, for practical purposes, I am not sure that the amendment achieves very much, and if we leave the matter as it is in the Bill it preserves the legal logic—if that is the right expression—or the theory of the matter: probation orders and absolute discharges are not to be seen as quite in the nature of punishment in the same way as other penalties.
Lord MISHCON: I am sure that it must be my fault, but I am afraid that I do not quite understand any part of the logic—legal or otherwise—of a section of what the noble and learned Lord the Lord Advocate said. Is he saying that it would be competent for a court to give a hint to a defendant that, if he makes compensation before an adjourned hearing, there will be a probation order? If that is so, is he not then intimating to the defendant that there should be a punishment as well as the making of a probation order? Does that not defeat the whole logic of what the noble and learned Lord has said?
8 p.m.
Lord FOOT: Perhaps I could follow that. If the situation is that the court gives an indication to a convicted person that, if compensation is forthcoming, he may be put on probation or given an absolute discharge, that puts that defendant in an entirely privileged position as compared with the defendant who is in no position at that stage to make compensation because he does not have the money. Therefore, in his case the offer will not be available.
I am bound to say that I cannot understand the logic of the argument which the noble and learned Lord the Lord Advocate has advanced. There must be many cases, must there not, where someone commits an offence, where someone is guilty of stealing? Perhaps he is a first offender. The desirable thing is that he should be made to repay what he has stolen, what he has deprived someone of, without having to be condemned to any further measure. In those circumstances, is not an absolute discharge or possibly a probation order, combined with an order that he shall make compensation, the ideal sentence to be imposed? However, under this provision that ideal sentence—as I suggest it is in many circumstances—is the one sentence which is denied to the court as not being available. I hope that the noble and learned Lord will be prepared to look at this again.
Lord GALPERN: As regards payment under the Criminal Injuries Act, can the noble and learned Lord, the Lord Advocate, say what the position would be where compensation has been awarded to someone who has received personal
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injury? Would the sum of compensation be deducted from any amount that might be awarded to such a person under the Criminal Injuries Act, or would the payment be delayed until such time as it is ascertained that the accused against whom the compensation has been awarded is able to pay the money? Is there no relationship between a compensation order for personal injury and the Criminal Injuries Act?
Lord MACKAY of CLASHFERN: At present the Criminal Injuries Compensation Scheme is not a statutory scheme, so no question of legal right arises under it. Perhaps the noble Lord's question could be answered by reference to Clause 65 of the Bill, which deals with a situation where a compensation order exists and an award is contemplated in a civil action. The effect is that payments made under the compensation order are taken into account as, in effect, payments to account of the civil damages.
Lord GALPERN: I am glad that the noble and learned Lord has allowed me to introduce ideas which may arise later. On the question whether everyone who receives criminal injuries would receive compensation under the Criminal Injuries Act, in a substantial number of cases substantial damages are awarded. Is it not the case that if a similar amount of damages, or damages equal to the amount the individual could have made application to claim under the Criminal Injuries Act are awarded, the one would have to wait upon the other? It might be a long while before he received any money—money which might be urgently needed because of the severe criminal injuries which he had sustained.
Lord MACKAY of CLASHFERN: Any payments made under the compensation order would be taken into account. Under the present scheme, it does not follow that if the person is entitled to compensation for a criminal injury, he would have to wait. Payments would be taken into account in that respect. I think that that is a satisfactory arrangement.
Lord GALPERN: Let us assume that £5,000 was the sum which such a person could have obtained under the Criminal Injuries Act and that compensation of

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£5,000 was awarded to him in the courts. He may receive £5 of it, £50 of it and it may take 20 years before he receives the full £5,000, if he ever sees the money. It would be far better for an individual who receives these injuries to forget about compensation and rather than have any compensation awarded to him, proceed under the Criminal Injuries Act.
Lord MACKAY of CLASHFERN: I have no doubt that the authority responsible for handing out public money under the Criminal Injuries Compensation Scheme would take the proper steps to protect its interests in a situation such as that. However, I do not think the fact that there was the possibility of payment from another quarter would lead to any delay in payment. I am sure that it would be possible to make the legal arrangements in such a way that the public fund would not suffer from any duplication of payment to the person injured.
Perhaps I may return to the other matter. The point made by the noble Lord, Lord Foot, emphasises what I was trying to say. In a situation where a person is willing to make compensation there is no real necessity for a compensation order. If a person is willing to make compensation and the court considers that in the circumstances it is appropriate to make a probation order or to grant an absolute discharge, that can happen without any reference to a compensation order. That is the situation which we are trying to preserve. Absolute discharges and probation orders are appropriate in rather special circumstances and are very much to be distinguished from ordinary penalties. It is for that reason—and I venture to submit that it is a very good and important reason underlying the nature of these two possibilities—that nothing which even smacks of penalty should be attached to them. That is why we have sought to keep them separate. However, from a practical point of view as to what the court can do, so far as I can see, it makes no difference.
Lord HUGHES: I should like to ask the noble and learned Lord the Lord Advocate a question on this matter. As I understand it, the compensation clauses arise from the recommendation of the Committee under Lord Dunpark. They change the law of Scotland in giving
1268
power to the courts to make compensation compulsory. Therefore, from that point of view the situation is changed. At the moment the only way in which compensation can be paid, if I understand the position correctly, is by a method that has been used recently, with a number of sheriffs making use of their powers to say, "I shall defer sentence on this matter so that we may see what you are prepared to do about it".
In those circumstances—the sort of circumstances to which the noble and learned Lord has just referred—a voluntary payment is being made and, therefore, there is no need for compulsion. That I can understand. I am partly reassured by what the noble and learned Lord said, that nothing in these clauses takes away from the courts a power which they already have. I hope that that will be made abundantly clear to sheriffs, because I should have thought that a normal reading of a new power of this kind, stating the circumstances in which one could make a compulsory order and the circumstances in which one could not make it, might be interpreted by some sheriffs—and we have some sheriffs of very high quality indeed and others who are not quite so—as meaning that they no longer had power to carry out the present voluntary procedure.
From what the noble and learned Lord has said, I am persuaded that there is a certain value in this. To a certain extent my misgivings would be removed if I could be sure that the usual procedure would be followed, in this case by some administrative guidance being given, and if we could have an assurance that the attention of sheriffs would be specifically drawn to the fact that these clauses did not withdraw their power to defer sentence, so that compensation would be paid on a voluntary basis where an absolute discharge was granted or where a probation order was made. Could that be done?
8.10 p.m.
Lord MACKAY of CLASHFERN: I have some opportunity to address sheriffs from time to time. and I would certainly undertake to do what I could to draw to their attention the point that has been made. I think we can make it reasonably plain that this is our understanding of the provisions.
Lord FOOT: The noble Lord said earlier that something I had said seemed to him to support his argument. May I return to that for a moment. The situation I was posing was this: suppose some offender is brought in for having stolen some property, or something, and then he pleads guilty or is convicted. The court then have to decide what to do with him. If they think that the appropriate penalty would be for him to make compensation and then to be put on probation, then if I understood the noble Lord rightly earlier he was saying that, if the defendant was in the position of being able to indicate to the court that he was able to make compensation, then the court might appropriately put him on probation or even give him an absolute discharge.
The other situation I was posing was this: Suppose the man concerned is not in a position to make compensation. He has not got the money available and cannot offer it to the court or give it to the injured party. In those circumstances, is not the court obliged to say this to itself: "If he had been able to make compensation we would have thought it appropriate to make a probation order. But as he is not able to make compensation, we must do something other than a probation order. We must impose some kind of penalty." Under this proviso, they are precluded from making a probation order and at the same time making an order for compensation. That was the point I was trying to make. I do not think that it really supports the Government's argument.
Lord MACKAY of CLASHFERN: At the risk of boring your Lordships, may I say that in making a compensation order under Clause 57 the court is hound to have regard to the means of the person. If the person is not in a position to make compensation because of his lack of means, then it would not be appropriate to make a compensation order, either. The thing fits together in my submission. I do not wish to continue the argument further. I have done my best to explain our position.
Lord WILSON of LANGSIDE: There is a further point which may have a hearing on this difficulty. The summary courts have no power, when they impose a fine
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on an offender under 21 years of age, to fix an alternative of imprisonment unless the offender has been placed under supervision for payment of the fine. The courts have young men of 20, and so on, who have broken the law, and have a vote, but you cannot fix an alternative of imprisonment, unless they have been placed under supervision for payment of the fine. The law regards them as requiring this sort of protection.
Why then should it be thought inappropriate with a young offender—and there will be many young offenders under 21 who are dealt with under these provisions—to say, "You will pay this compensation. You will discharge this compensation order"—but then the court should not have power to place them under supervision of a probation officer to see that they behave properly otherwise?
Lord MISHCON: I hesitate to ask your Lordships to divide on this matter, in view of the discussion that has taken place. I can only hope, with others who have sympathised with what I have said, and in view of what the noble Lord, Lord Foot, has said, that the instruction, if I may put it that way, on the direction which will be given to the various courts will be transparently clear as to exactly what they can and cannot do. One can only hope that the forecast of the noble and learned Lord will prove correct, and that the fear that I ventured to express does not prove to be correct; namely, that this will inhibit some courts from making what otherwise ought to be a just order; namely, a probation order, or an absolute discharge. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 49A not moved.]
Clause 56 agreed to.
Clauses 57 to 61 agreed to.
Clause 62 [Review of compensation order]:
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 49B:
Page 42, line 2, leave out from ("order") to end of line 3 and insert ("(or (where that court was the High Court) by which the order was first enforceable").
The noble and learned Lord said The noble and learned Lord said: This is the same explanation that I gave in relation to the amendment to Clause 48. I beg to move.
Clause 62, as amended, agreed to.
Clause 63 agreed to.
Clause 64 [Application of provisions relating to fines to enforcement of compensation orders]:
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 49C:
Page 42, line 38, leave out ("enquiry into means") and insert ("reasons for default").
The noble and learned Lord said The noble and learned Lord said: This is a purely drafting amendment required to insert the amended description of Section 398 of the Criminal Procedure (Scotland) Act 1975 into Clause 64 in order to bring it into line with the description in Clause 46. I beg to move.
Clause 64, as amended, agreed to.
Clause 65 [Effect of compensation order on subsequent award of damages in civil proceedings]:
8.17 p.m.
Lord MISHCON Lord MISHCON moved Amendment No. 50:
Page 43, line 39, leave out ("not exceed") and insert ("be restricted to").
The noble Lord said The noble Lord said: I could well understand at this late hour and without food, as many of us have had to deal with this matter, that I would not be able to understand Clause 65. But I must in honesty say that I, in better condition, read that clause last night and still failed to understand it. It is because in its present wording it is unintelligible that this amendment has been put down in order to try to clarify the matter.
May I direct your Lordships' attention to this clause, because then at least it may bring a smile to tired faces at this hour. If you look at Clause 65 you see that it is,
"Effect of compensation order on subsequent award of damages in civil proceedings".
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That is clear. It means that there may be damages in civil proceedings afterwards in the same fashion as has been mentioned by my noble friend Lord Galpern. The clause tries to deal with the mathematical effect of the compensation order, if that is done.
If you look at subsection (2)—and hope that this does not mean that I am singularly unintelligent—and you try to follow the wording, you will find the following arithmetical direction:
"The damages in the civil proceedings shall be assessed without regard to the order;".
That seems to be quite clear.
"but where the whole or part of the amount awarded by the order has been paid,".
I am dealing now with a part of the order and taking it for granted that an order has been made for £5,000—a figure which has been mentioned earlier, and which seemed to me to be very grandiose—and let us take it for granted that £2 at that date has been paid of the £5,000, you then go on:
"… the damages awarded in the civil proceedings shall not exceed the amount (if any) by which, as so assessed, they exceed the amount paid under the order".
I read that to mean that if £2 has been paid under a compensation order where £5,000 has been awarded, the civil damages are limited to the amount of £2. I must be wrong. I cannot think that a draftsman could have led himself into that labyrinth. It is so unclear in its wording that I hope the noble and learned Lord will say that something clearer will apear on Report.
Lord MACKAY of CLASHFERN: I am happy to accept the amendment and I hope that, with it, the noble Lord is now able to understand the clause.
Lord MISHCON: On the basis that I certainly do not, may I ask the noble and learned Lord with his usual clarity and courtesy to explain what subsection (2) is supposed to mean and how these words carry it out?
Lord MACKAY of CLASHFERN: As I said, I am happy to accept the amendment, and I think that makes it considerably clearer:
Lord MISHCON: The amendment was put down merely to lead to clarification and not in the thought that the words which

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are substituted in fact clarify. I again repeat—and I will not put the noble and learned Lord to the task if he tells me that it will be looked at and that something clearer will emerge on Report—that it is meaningless, even with the amendment.
Lord HUGHES: I was surprised at the way in which my noble friend put the matter because it seemed obviously grossly unfair if an award of £5,000 had been made and only £2 had been paid of that, that it would be restricted to £2. I thought the effect of this was to be the other way round: that the award would be restricted to £4,998.
Lord MISHCON: It does not say that.
Lord HUGHES: If that is the intention, the noble and learned Lord Advocate should say so and make absolutely certain that the clause makes that clear, if not to anybody else, then at least to the man who was expecting to get the £5,000.
Lord MACKAY of CLASHFERN: All I can say is that we seem to have managed to make it clear to the noble Lord, Lord Hughes, and with the amendment I think it is clear. The effect is exactly as Lord Hughes said and perhaps it comes better from him than from me that that is what it means.
Lord HUGHES: It does not have the same effect coming from me.
On Question, Whether Clause 65, as amended, shall stand part of the Bill?
Lord MISHCON: I rise in sheer self-justification to say that no less a person than my noble and learned friend Lord McCluskey found himself in the same position of completely being unable to understand this subsection when he read it. If therefore I am in that company, I am happy that I am confused in this way.
Clause 65, as amended, agreed to.
Clause 66 [Designation of sports grounds and sporting events]:
8.23 p.m.
Lord TEVIOT Lord TEVIOT moved Amendment No. 51:
Page 44, line 28, at end insert—
("(3) The Secretary of State shall notify to all chief officers of police in the United Kingdom and shall, in the manner prescribed by Regulation 41 of the Public Service Vehicles (Licences and Certificates) Regulations 1952, publish in all traffic areas the effect of all orders made under subsection (1) above.").
The noble Lord said: This is the first of my amendments to Part V of the Bill, which concerns sporting events, the control of alcohol and so on. Your Lordships may think that the wording of Clause 66 is sufficient hut, for reasons that I will give, I think this new subsection will help to enforce the Bill and clear up any misunderstandings that may occur. As your Lordships will see, this clause gives the Secretary of State powers to designate individual sports grounds or events or classes of sports grounds or events. The subsequent clauses place responsibility on the persons described and make them liable to conviction if they are found guilty.
One appreciates there is no excuse for ignorance of the law, but in this instance I feel it is perhaps unreasonable for these persons to have to rely on the normal process of official publication. I am thinking particularly of the persons made liable in Clauses 67 and 68. As I mentioned on Second Reading, there could well be occasions of coaches travelling up from England and Wales and even, as I have recently found, coaches travelling by ferry from Northern Ireland to these events or grounds in Scotland. Certainly, sports supporters travel from Northern Ireland to Scottish events. Therefore, if the police, not only in Scotland but throughout the United Kingdom, were notified of all designation orders, coach operators, drivers and coach hirers would have a good chance of being warned of their responsibilities. This would be reinforced if the designation orders were published in Notices and Proceedings as prescribed by the 1952 regulations mentioned in the amendment, which are already the statutory method of informing coach operators of licensing matters. I beg to move.
Lord LYELL: I thank my noble friend for explaining the purpose of his amendment so clearly and concisely, but I think it would be for the benefit of the Committee if I were to clarify one particular aspect of this Part of the Bill, and this refers to the

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problem of the designation of sporting events. When the Secretary of State designates a sporting event or a particular sports ground in Scotland under subsection (1) of this clause, that will be done by statutory instrument subject to the Negative Resolution procedure of both Houses. It is important to remember that designation will be permanent; there is no intention on the part of the Government or of the Secretary of State to designate a ground one week and not the next. When the Secretary of State makes a designation order he will, as is normal in such circumstances, arrange for all those who have an interest in the order to be informed of its contents. In this particular case arrangements will be made to inform, among others, the coach operators mentioned by my noble friend, the police, local authorities and football clubs.
But the provisions of the Bill apply only to Scotland and therefore there is no need to inform police forces in other parts of the United Kingdom. I would point out that the method proposed by my noble friend to inform public service vehicle operators by way of the procedure set out in the Public Service Vehicles (Licences and Certificates) Regulations 1952 would not in practice achieve the intention which my noble friend is seeking. Regulation 41 of those regulations provides for a weekly or fortnightly publication known as Notes and Proceedings for the purpose of detailing all applications for licences, and it also contains the decisions of the licensing authorities on these applications. But these regulations are rarely used for disseminating information on Government legislation. It is my understanding that less than one-third of public service vehicle licence-holders at present subscribe to the magazine Notices and Proceedings. Accordingly, we consider that it would be much more effective to inform coach operators through their associations, principally through the Confederation of British Road Passenger Transport, to which the fast majority of public service vehicle operators belong.
It is for that reason that I assure my noble friend that when a designation order is made, adequate steps will be taken to ensure that all those who are likely to be affected will be fully informed about the effect of such an order. Perhaps I should reiterate the particular group of persons
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whom we believe will be informed, and informed very clearly: the police, local authorities, football clubs and, above all, the coach authorities, but through their association. In these circumstances, I hope my noble friend will withdraw the amendment since we believe it is unnecessary to achieve its purpose and his intention.
Lord TEVIOT: I am not completely convinced by my noble friend's answer. He referred to sports grounds, but there might be sporting events to which his answer would not apply. I also mentioned coaches travelling from England or Wales up to Scotland. I feel that these aspects need more attention and for that reason I still believe the amendment is necessary. I will withdraw it if my noble friend will think about the matter again and, on Report, either produce a suitable amendment or give a more convincing argument than he has presented.
Lord LYELL: I am terribly sorry that my noble friend is not convinced. The point of difference between what I have mentioned and what my noble friend says rests entirely on the notices I have referred to and, above all, on what the Government believe would be the convenient way to inform the coach operators, which would be through their association. I fear that I cannot give a promise to bring forward anything more conclusive, or much clearer. I shall certainly examine what my noble friend has said, but I hope he will accept that the Notices and Proceedings are read by only a minority of the coach operators, and particularly by those who are to be involved in such cross-border traffic as has been mentioned. I shall come to the question of cross-border traffic when dealing with a later amendment. I note what my noble friend has said, but I am afraid that I cannot hold out much hope at this stage.
Lord UNDERHILL: Before the noble Lord sits down, does he agree that in the event of Amendments Nos. 51A, 51B, or 51C being carried, it would be necessary to reconsider the position on Amendment No. 51?
Lord LYELL: Yes.
Lord TEVIOT: I am most reluctant to withdraw the amendment at this stage. I note the remark just made by the noble

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Lord opposite, whom I think is referring to the amendment of my noble friend Lord Inglewood, which deals with trains rather than buses or coaches. I believe that this is a very important point that has not been entirely answered, and perhaps when other amendments are considered we might look forward to a Division if the point in question is not made clear. In the light of that—but only in the light of that—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 66 agreed to.
Clause 67 [Alcohol on vehicle travelling to or from sporting event]:
8.32 p.m.
Lord INGLEWOOD Lord INGLEWOOD moved Amendment No. 51A:
Page 44, line 30, after ("carriage") insert ("or a railway train").
The noble Lord said: During the Second Reading debate I spoke very briefly and made the point that it seems very strange that, when we are asked to legislate in a Public Bill for persons taking alcohol on a vehicle travelling to or from a sporting event—and, I think, having football matches largely in mind—we should limit the clause to those travelling in a "contract carriage", by which I think is meant a coach or a bus, and that reference to those who go by train should be entirely omitted, when we all know that a very large number of persons who go to football matches travel by train. In the course of my short speech I described a dreadful scene that I witnessed at Carlisle Station last year. I appreciate that Carlisle is not in Scotland and that, at the moment at least, Part V of the Bill refers to Scotland only. None the less the incident might just as easily have happened in Scotland, except that I doubt whether the local evening paper, in reporting the wreckage, would have covered the whole of the front page with an enormous banner headline reading "Tartan terror".
This problem is as serious in regard to those travelling by train as it is in regard to those travelling by coach. Since the Second Reading debate I have tried to make inquiries, and I am told—it seems too strange—that whereas this power in Scotland derives from statute and the
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regular police would be expected to enforce it, in England such powers as may exist are found in the Private Acts of Parliament relating to British Rail, and that it is the British Transport Police who would be expected to enforce the provisions. If that is so, I should like the Minister who is to reply to make perfectly clear how the position today in England would compare with the position in Scotland if Part V of the Bill becomes law.
I have also heard it said that, while certain powers are included in the existing Acts relating to British transport, the problem is recognised by the Government as having outgrown those powers and they are now considering something additional. If this is the case, I hope the Minister will spell out exactly what circumstances are being considered and what is the timetable involved. It is all very well to be told from the Box that another department may be considering a matter and that in the next railway or transport Bill there will be clauses covering a special point. On the other hand, I recall that two or three years ago when we were dealing with the English Criminal Law Bill, which compares with this present Bill, several clauses concerned with cross-Border powers were inserted by your Lordships' House—not by the Government—and to this day they are not operative because we are still waiting for the order to bring them into force.
I hope that I have made myself clear. We are entitled to ask for an explanation, because if anyone wishes to go to a football match by bus, his consumption of alcohol is controlled by Act of Parliament in this very precise way, while if he chooses to go by train, he is apparently free of all these restrictions, and can reduce railway stations to a scene of wreckage. I beg to move.
Lord MISHCON: In supporting what has just been said by the noble Lord, may I say that I have no special interest in moving the amendment in the name of the noble Lord, Lord Ross of Marnock, proposing that a train be described as a "football special railway train"; I should be perfectly content with the noble Lord's amendment.
Lord LYELL: We have considerable sympathy with my noble friend Lord Inglewood and indeed with the noble Lord, Lord Ross of Marnock, whose

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amendment has been referred to by the noble Lord, Lord Mishcon. We have sympathy with both noble Lords in their seeking to amend the provisions of the clause so as to bring travel by trains in general, or indeed travel by football specials—in particular to and from sporting events—within the scope of the Bill. We have heard graphically from my noble friend Lord Inglewood about acts of vandalism. It seems that such incidents go back to the history books and to the incursions of the Vikings and other invaders. We hear terrible tales, which are borne out, of violence on trains which are used as football specials.
However, the point is that we are this evening discussing criminal justice in Scotland and, above all, designated sporting events in Scotland. It seems that relatively little of the trouble which has been graphically described by my noble friend Lord Inglewood occurs on trains within Scotland. I hope that my noble friend and the noble Lord, Lord Ross of Marnock, will accept that an amendment to the clause would have effect only within Scotland.
The main reason why the problem seems to be a minor one in Scotland is simply that the geographical location of the football grounds around Scotland makes rail travel by football supporters—on regular service trains, or on what are graphically described in the amendment of the noble Lord, Lord Ross, as "football specials"—seldom as convenient as travel by road. The result is that very few supporters travel by rail to Scottish matches. When rail services within Scotland are likely to be heavily used by football supporters—for example, in order to attend matches in the South, as described by my noble friend Lord Inglewood—British Rail, through their own British Transport police, take—and are responsible for taking—the precautions to contain the trouble. British Rail are well aware of the influence that alcohol has on the behaviour of the supporters—
Lord INGLEWOOD: Will my noble friend allow me to ask one question?
Lord LYELL: I should like to finish this particular point, if I may. British Rail are considering—I am told that this will cover a matter of months, much more
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than weeks; that is as far as I am able to go at the moment—with the Department of Transport and with other authorities, whether their by-laws (that is, British Rail's by-laws), which extend and apply throughout the United Kingdom, can be tightened, and how it would be appropriate to do so. It is the tightening of the United Kingdom-wide British Transport by-laws which will, we hope, enable British Rail to prevent the carriage of alcohol on certain trains, and especially on those described by the noble Lord, Lord Mischon, as "football specials". I hope I have given a reasonable and satisfactory explanation to my noble friend and to the noble Lord, Lord Mishcon, and I wonder whether they would accept that it would be better to leave the particular problems associated with rail travel to football games to be dealt with through the railway by-laws on a United Kingdom basis.
Lord INGLEWOOD: The question I wanted to ask, which was intended to be helpful, was this. My noble friend referred to England and to existing railway by-laws which it is proposed should be widened and extended. Do we understand that there are no similar railway by-laws now in Scotland; and, if there are none, would it not be simpler to extend the existing by-laws to Scotland now and later to look at the whole of the United Kingdom together?
Lord LYELL: I do not think that is possible. The railway by-laws extend throughout the United Kingdom—not to England alone, not to England and Wales, nor to Scotland separately, but throughout the United Kingdom, wherever British Rail run their services. Therefore, it would, I am given to understand, be impossible to extend restrictions on the carriage of alcohol on railway trains to football supporters using the trains within Scotland, just as it would be totally outside the scope of this Bill to control the carriage of alcohol by Scottish supporters going to watch Scotland playing in England on trains which are passing through Carlisle or even Berwick.
Lord TAYLOR of GRYFE: May I say, in support of the contribution which has just been made, that it is of interest that when British Rail had recently to withdraw their services to football matches

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they withdrew them only in England because of the vandalism and hooliganism there, and in Scotland they in fact retained their football services without damage. That would suggest that any special regulations made should not be made within the limits of a Scottish Bill, but that the matter should be looked at on a United Kingdom basis.
Lord INGLEWOOD: Since we have been told by the Minister that a review, although not a very satisfactory-sounding review, is to be held, and since there appears to be a difference of opinion as to how far the existing powers refer to the United Kingdom, how far to England and how far to Scotland—
Lord TEVIOT: Before my noble friend sits down I really think that in this section of the Bill we are being rather what might be called "brushed off". Unless my noble friend can give the faintest indication that we are going to get anywhere, I think we have got to begin to make a stand.
Lord LYELL: I cannot go further than what I have said so far, but may I make it absolutely clear to my noble friend Lord Teviot that any alterations in the permission given to any person to take alcohol on a football special train anywhere in the United Kingdom, in Scotland or in England or in Wales, are outside the scope of this Bill. That matter is to be dealt with entirely by British Transport by-laws, and that is the position so far as railway travel by football fans is concerned.
Lord TEVIOT: Before my noble friend sits down, I really should like to ask him this question. He brushed off my amendment when I suggested that designated events should be more widely spread, and he has also told my noble friend Lord Inglewood that he is not going to deal with railways. Before we go any further, I think the official Opposition really want to know, as do I and my noble friends, where we are going to go. Is my noble friend going to deal kindly with my amendment? Are we going to get anywhere? Otherwise, we shall deal with these amendments subsequently, because we feel this point rather strongly.
Lord LYELL: Can I make it absolutely clear to my noble friend that I am not
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empowered to make any concession at all on travel by rail to designated events within Scotland, because any alterations in the law as far as rail travel is concerned are totally outside the scope of this Bill. It is not that I do not want to, or want to brush off my noble friend: it is that I cannot help him; it is that this Bill cannot help the particular case of football supporters taking alcohol on trains. That, I am afraid, is the position. I cannot help it.
Lord INGLEWOOD: Could my noble friend tell us why, in this Bill, it appears possible to make elaborate rules for taking alcohol on buses but not to put down an amendment covering railway trains? Is there some great constitutional principle here?
Lord HYLTON: If the Ministers who are replying for the Government could perhaps give an undertaking from the Dispatch Box that they will draw this debate to the attention of the responsible persons within British Rail, who can look at the question on a United Kingdom basis, then I think those who have spoken to the amendment already would feel a lot happier.
The Earl of MANSFIELD: I wonder whether I could say a word about this? My noble friend Lord Teviot produced an amendment which my noble friend Lord Lyell said would in fact not achieve the ends that he wanted, and, with respect, my noble friend is perfectly entitled to say that. Naturally, before the next stage of this Bill we shall examine the matter to see whether the dissemination of what will in fact be new rules of conduct for operators of these coaches, which is no doubt a laudable aim, can be improved beyond what my noble friend has said, but I really do not think that my noble friend has much, if any, cause for complaint when my other noble friend gives that undertaking.
If I may now turn to the amendment moved by my noble friend Lord Inglewood, first of all it is defective. One hates to say that, but when we get to this stage of the evening it could not be written into the Bill because railway trains do not convey passengers to sporting events; they convey them to railway stations. So I am afraid the amendment is defective in

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itself. Having said that, of course we shall examine the position to see whether it would in fact be better to write something into this Bill if, in spite of what my noble friend has I think explained very clearly, it is going to be a very difficult piece of drafting, or whether it really would be better to leave it to British Rail to commence and carry out their own United Kingdom legislation, bearing in mind that they have a responsibility which goes throughout England, Scotland and Wales. I think my noble friend has given a good undertaking, if I may say so. Nobody is being brushed aside. It is not at all easy when one starts considering the Border and two very different systems of law and practice as between one country and another.
Lord MISHCON: I am not quite sure where we are getting to, and I believe there are other noble Lords who have exactly the same mental reaction. I can only say, having heard the noble Lord opposite let out an agonising cry as to the position he was put in by his own Front Bench, that I have had my own reasons to lament in the course of this evening. Quite obviously, however, I shall have to try to put up with them, although it may be that he will not be quite so tolerant. But, really, where are we getting to when there is a suggestion that Parliament is not able to impose upon British Rail, if it wants to, any regulation that it requires? Possibly I shall be corrected here by my colleague lawyers, but I know of nothing which stops the soveignty of Parliament from saving that it would be an offence in regard to railway trains if people did this, that or the other. They might have to consult, as a matter of courtesy, with British Rail, and I have no doubt that they would do so.
All I believe that noble Lords want is this: Could we please have an undertaking from the Front Bench opposite, not that there will be a general look at the situation and that, one hopes, British Rail will have a look at the situation within the United Kingdom, but that British Rail will be informed before the Report stage of the anxieties of this House in regard to this matter and its wish to see that something of a positive nature is done which can be reported to this House by way of by-law going through the United Kingdom or
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whatever; because in the alternative, at Report stage, these amendments may have to be brought back. If an undertaking of that kind could be given in categorical terms, I believe that my noble friends on this side of the Committee and those who spoke with such feeling on the other side may be more satisfied.
The Earl of MANSFIELD: Perhaps I could refer the noble Lord, Lord Mishcon, to Clause 80(4) which says that this Bill "extends to Scotland only"—so that the complications of putting a régime (if I may so call it) on British Rail is not going to be easy. Having said that, I will give the undertaking that the noble Lord requests and, in turn, request that my noble friend withdraws his amendment.
Lord INGLEWOOD: In view of that further assurance given by my noble friend, I feel that it would be wrong for us this evening to carry things further. The Front Bench has confused us—I do not say on purpose; but they must realise that they have confused us. It is their due to clarify this whole matter when we come to Report stage.
I do not want to start another debate, but in Clause 80(5) it says:
"This section and the following provisions extend to England and Wales … "
Therefore, what is sauce for the goose is sauce for the gander. If one small part extends to England and Wales, I fail to see why another small part should not be treated in a like way. But we have probably talked about these amendments sufficiently for this evening. In the light of the assurance my noble friend has given the Committee, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord MISHCON Lord MISHCON had given Notice of his intention to move Amendment No.51B:
Page 44, line 30, after ("carriage") insert ("or a" football special" railway train").
The noble Lord said: In precisely the same terms, if only I could be as eloquent as the noble Lord, Lord Teviot, who has just said that he withdraws his amendment, I should like not to move mine.
[Amendment No. 51B not moved.]
8.55 p.m.
Lord INGLEWOOD Lord INGLEWOOD moved Amendment No. 51C:
Page 45, line 7, at end insert—
("() This section applies to vehicles and to railway trains travelling to Scotland and from Scotland to any other part of the United Kingdom").
The noble Lord said: I beg to move Amendment No. 51C on the Marshalled List and to ask noble Lords to notice that it refers to something beyond the boundaries of Scotland. I put down this amendment after having looked at Clause 80 and having seen what I thought was an honourable precedent for doing something of this kind. Those of us who live near the Border, on both sides, never cease to be surprised that draftsmen in St. Andrews House and in London seem to think that Scotland and England must be divided by some ocean and forget that there is road traffic, people on foot and in trains crossing the Border the whole time. It is irresponsible to make the inevitable differences of administration and the difficulties arising from having different legal systems more difficult, such as Part V of the Bill would appear to do.
As I read Part V at the moment—and I hope that the noble Lord, Lord Mishcon, will support me again—the rules governing the carriage of alcohol in a bus north from England to Scotland or from Scotland to England differ according to which way you go. If you are travelling North, the noble Lord's new rules will apply to the second half of your journey. If you are travelling South, the rules will apply to the first half of the journey. That is a topsy-turvey world. It is putting extreme difficulties in the way of those who will have to enforce these provisions, and do not let us think that they will not produce a problem of enforcement because they will.
I am sure that I shall be told that the exact words of my amendment are defective; but what are Ministers and draftsmen for but to repair the defective drafting of those who have not got the advantages that they have? There are later stages of this Bill, plenty of them, to make good the omission which I am trying to make good in this amendment. I would submit that, if we are going to have these provisions in this Part of the Bill which we are told are imperative for the
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life of the people in Scotland to continue smoothly, they should be made to extend to the whole of the United Kingdom. If, on the other hand, there is not this compelling reason why we should have them in this Bill, then Part V could be withdrawn, redrafted and brought forward in another form. I beg to move.
Lord LYELL: I would think that my noble friend Lord Inglewood seeks by this amendment, if I understand his intentions correctly, to ensure that the controls on the carriage of alcohol and of drunken spectators on coaches travelling to and from matches will extend not only to travel entirely within Scotland hut also to travel to other parts of the United Kingdom to attend matches outside Scotland, and, secondly, to travel from other parts of the United Kingdom to attend matches within Scotland. I hope to try to explain how the provisions, as they stand in the Bill, would be expected to apply. Controls on the carriage of alcohol on coaches and other vehicles would, since this is a Scottish measure, apply only within Scotland. Moreover, they would apply only in relation to travel to or from these designated events. Once again, since this is a Scottish Bill, only events in Scotland can be designated. Thus, travel to or from a Scottish match can be subject to control, and a coach taking Glasgow supporters to a match in Manchester would not, since the match is in Manchester and in England, be a designated event; hence the coach would not be subject to controls introduced by his clause.
Supporters coming from Manchester to a game in Scotland or from a game, after the game is over, in Scotland would be subject, as soon as they enter Scotland, to these controls and restrictions and also until they leave Scotland. The principle which underlies the operation of the provisions is that all spectators attending a particular event should be subject to the same restrictions. I think the Committee would agree that it would be unfair if supporters from, say, Cornwall attending a match in Manchester—and this is not infrequent—were subject to different restrictions from those applying to supporters from Glasgow attending the same match. It is only fair that supporters, wherever they come from, should, if they are attending the same match, be subject to the same restrictions.

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That is what the provision as drafted will achieve. The basic principle (I reiterate) which has been followed is that all spectators at any particular event within Scotland are subject to the same restrictions. The logic of this principle is that, if controls at an event are considered necessary, they must apply to all who attend. If supporters travel by coach from Scotland to a match in Manchester, should they not be subject to the controls which would apply to people from, say, Preston, Bolton, Liverpool or anywhere else in England and Wales which would be subject to English law?
The provisions as they stand will apply to supporters travelling northwards across the Border to matches in Scotland once the coaches are in Scotland. I hope the noble Lord will accept that no amendment is necessary to achieve this. The provisions will not apply to those travelling from Scotland to matches in England, as were described by my noble friend in his earlier amendment; those particular supporters on trains. We think that it would be unjust to apply different controls to the spectators at a match on the basis of their point of departure. It is the point where the match is held that is important.
9 p.m.
Lord TEVIOT: I think my noble friend is being parochial. He is talking about from Cornwall to Manchester. We have been talking about Scotland: this is a Scottish Bill. So far as Scottish law is concerned, they want to do something about controlling sporting events. He has reached Clause 67, which my noble friend is concerned with, and talks about individuals getting drunk; when we get to my amendments I do not think that he is going to give me any joy. If he does, then of course we will go ahead. This is not a parish event; Scotland is part of the United Kingdom. I think personally these rules might extend to the whole of the United Kingdom. One cannot think of Scotland being Great Bloggingdon so far as Little Bloggingdon is concerned. The whole thing is important. I do not know what my noble friend is going to do in this event; but I feel that I should say now, before everybody leaves, that when we reach my amendment everyone should be here.
Lord LYELL: I hope that I am not parochial. The entire Bill applies to Scotland, and the provisions of carrying alcohol on football supporters' coaches will apply to any coaches which are attending a match in Scotland. That is the position. Anything else will have to be dealt with by an English law dealing with English, Welsh or Scots supporters going to a match in England or Wales. The whole purpose of this Bill is to deal with something which is not a parochial matter in Scotland but a very serious matter in Scotland. I should like to assure the noble Lord, Lord Teviot, that we hope that these provisions will go some way to curing a Scottish problem.
Lord INGLEWOOD: We have never disputed that the Bill was designed to refer to Scotland. Why I moved the amendment to widen it was because I thought that the Bill, as drafted, would result in absurdities and be difficult to enforce. Therefore I hoped that we would find some sympathy on the Front Bench. I am perfectly happy that they should say that the amendment is defective; but there is a lot of time for them to put it right. This whole attitude is a repetition of what we have seen time and time again on Scottish Bills, and no doubt sometimes English Bills too. Those who drafted the legislation have failed to realise that there is another type of administration on the other side of the Border.
I am loth to ask the Committee to divide on this amendment, particularly at this time of night. We have a Report stage ahead of us and there will be stages of this Bill in another place; but I shall look again at this amendment and try to find out from British transport undertakings and elsewhere what today's position is. If it is any less satisfactory than what the noble Lord has said—and possibly if it is exactly as the noble Lord has said—I shall put the amendments down again and be less inclined to withdraw them. This evening, if it is the will of the Committee, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 67 agreed to.
Clause 68 [Liability of vehicle licensee and his employees and agents]:
9.4 p.m.
Lord UNDERHILL Lord UNDERHILL moved Amendment No. 52:
Page 45, line 18, leave out ("employee or").
The noble Lord said: By leave, on behalf of my noble friend Lord Ross of Marnock I beg to move this amendment and maybe Amendment No. 54 could also be considered. I am certain that the Committee will agree that the provisions of this clause are praiseworthy and that the Committee will wish to support any steps which may endeavour to prevent drunkenness or violence at sporting events. I would put the point that these provisions are very unfair for the employee of a public service vehicle operator. Presumably the employee in practically all cases will be the driver of the vehicle. I have no intention to put legal arguments because I am not competent to do so; but I will deal with this matter solely from practical considerations.
Before the vehicle commences a journey, must a driver conduct a search of passengers? Their clothing, handbags and holdalls, et cetera? If the noble and learned Lord the Lord Advocate says: "Of course not" then maybe I can put some other questions to him. What does a driver do if a passenger, while on a journey, is seen to bring out of a pocket, handbag or holdall a bottle? Never mind whether or not the passenger is going to take a nip from it. Must the driver stop and make the passenger alight? Suppose they are travelling on a motorway or a congested road. Suppose they are many miles from the sporting event. Does he wait for a constable or does he have to report the offence to a constable on arrival at the particular sporting event?
We have in subsection (2) the provision that the operator will avoid any legal penalty providing that he is able to prove that any alcohol was that carried was on the vehicle without his knowledge. In other words, the operator places full responsibility on the driver by evidence that he himself has no knowledge whatsoever that any alcohol was being carried. Presumably it will be sufficient for the operator to show that clear instructions were given to his employees and agents.
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Will it be sufficient defence for a driver to demonstrate clearly that he or she drew the attention of all passengers to the instructions that he received from his employer, the operator? I should like noble Lords to tell me what does the word "permits" mean? The subsection does not say "permits alcohol to be partaken" but
"permits alcohol to be carried".
Does it mean that if the driver has no knowledge that any passenger was carrying alcohol he is exonerated, or must the driver convey to all passengers the instructions that he has received from his employer, the operator, before commencing the journey or must he conduct a search? If he has to conduct a search, this is a new innovation for the driver of a public service vehicle. He could easily see if a crate of beer is placed in the boot, in the luggage carrier; but he cannot see if a small bottle is in a handbag, holdall or pocket.
During the Second Reading debate on 15th January, the noble and learned Lord the Lord Advocate said that an employee would be liable only if he permitted the alcohol to be carried, and that would imply not only knowledge on his part but some acquiescence on his part in the carrying of alcohol. I said I was not competent to deal with legal considerations but I have always been told that it is not what is said about a Bill: it is the words in the Bill that count. Therefore I should like to have a clear definition of "permits" and what it means. What would be the position of a driver who could prove that he had no knowledge that any passenger was carrying alcohol and therefore did not acquiesce, but that during the journey he saw a passenger drinking from a bottle or can? Is he then acquiescing or permitting, if he does not stop the vehicle and immediately place the passenger in the charge of a constable?
Also during the Second Reading debate, the noble and learned Lord the Lord Advocate said, in reply to my noble friend Lord Davies of Leek, that when the McElhone Committee gave consideration to these matters the operators and the Transport and General Workers' Union had been consulted. I understand that the Transport and General Workers' Union were requested to give written evidence, but I now have a letter dated

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14th January from the Transport and General Workers' Union, expressing concern about the serious implications in Clause 68 for the union's membership in the bus industry. The union states that this clause could have a far-reaching effect on individual drivers if legal action is taken, and it expresses the view that overall responsibility should remain with the bus owner.
I stated at the outset of my few remarks that I am sure your Lordships will all support the intentions of Clause 68, but I trust that the noble and learned Lord the Lord Advocate in his reply will agree to this amendment, which we claim is absolutely unfair to the drivers of public service vehicles.
Lord TEVIOT: With great respect to the noble Lord, Lord Underhill, he has asked for the word "employee" to be struck out of the Bill, but an employee is an agent. My further amendment goes on to deal with the word "permit" so he has very largely taken the words out of my mouth. Therefore I shall be much more brief than I should otherwise have been. I think my wording might be more acceptable to the Government but, having said that, I cannot wait to hear the opinion of my noble friend.
Lord GALPERN: I wonder whether the noble Lord, when replying, would deal with a situation such as the one I am going to describe, where a football supporters' club own a bus and one member of the association drives the bus free of charge—or they take turns at driving the bus. How is the driver dealt with in a situation where they are carrying drink? The driver is not an employee of the association and the bus has no owner except the association. Therefore, how would the noble and learned Lord the Lord Advocate, or, for that matter, the noble Earl, Lord Mansfield, propose to deal with a situation of that kind?
Lord LYELL: I am sure the whole Committee appreciates the object of the amendments which have been moved by the noble Lord, Lord Underhill. I think this is the first occasion on which he has spoken from the Dispatch Box. If I am right, I should like to congratulate him on the excellent way in which he has moved
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the amendments and I hope we shall be hearing from him a great deal in the future.
Dealing with the two amendments he has moved on behalf of his noble friend Lord Ross, it seems to us that they would excuse the driver of the coach, who as an employee of the licence holder, of all liability if he permitted alcohol to be carried on his vehicle when it was travelling to or from a designated sporting event. I hope I may leave the definition of "permitting" or "authorising" to my noble and learned friend the Lord Advocate. The brief reply I shall make to the amendments will, I hope, deal with most of the aspects raised.
We do not accept that it would be reasonable to exempt the driver, even if he is an employee, in this way. The duty that is being placed on the employee or the driver is exactly comparable with that which he already bears under Section 92 of the Licensing (Scotland) Act 1976. The only difference in this Bill from the Licensing Act concerns the quantity of alcohol which is permitted on the vehicle. Under the Bill alcohol is not permitted at all. In my view, it is quite justifiable that the driver of the coach should bear some responsibility if he knows it to be an offence for anyone on that coach to have alcohol and if he, the driver, permits people to take alcohol on to the coach which he is driving. I assume that the driver sees his passengers into the coach before he starts off. I trust that he will not necessarily start when people are running to catch up, or leaping in, while the bus is in motion. I assume that he sees the passengers into the coach before he starts off.
Lord MISHCON: I hesitate to interrupt the noble Lord in his flow, but question whether he has ever been on a coach going to a football match if he described the situation in that way. As a rule, the driver does not remain outside and escort passengers on to the bus with great gallantry and chivalry. He usually thinks that because he is the driver he ought to be at the wheel, and that he ought to look in front of him and not behind him. If the noble Lord can visualise what really occurs, he may be able to deal with this amendment more effectively.
Lord LYELL: The noble Lord is addressing one Member of your Lordships' House who does exactly what he has said. I do not often travel by coach, but I have travelled by coach to a rugby match, which we do not see being designated in Scotland at the moment.
Baroness LLEWELYN-DAVIES of HASTOE: Does the noble Lord drive a coach?
9.15 p.m.
Lord LYELL: I do not have a heavy goods vehicle licence, so that would be illegal. But I have considerable experience of seeing football coaches leaving my home town for these matches which will be designated. I also had experience in my youth of seeing them leaving Glasgow, and I see coaches frequently arriving at matches now. But I stress that the provision in Clause 68 does not mean that a driver who did not authorise the carriage of alcohol, and who had no reason at all to believe that it was being carried before he set off on his journey, would be liable if during the course of the journey, alcohol was discovered—and it was very well put by the noble Lord, Lord Underhill. The only duty of the driver at that stage, if he had taken all reasonable steps before setting off to see that alcohol was not carried by the passengers as they got on to the coach, would be to take any reasonable steps to continue with his journey. The instructions that I have are that primary responsibility rests not on the driver, who will in most cases be the employee of the licence holder, except in the exceptional cases which were described by the noble Lord. Lord Galpern—
Lord GALPERN: The clause does not say "driver"; it say "employee".
Lord LYELL:—but on the hirer of the coach, and I understand that the hirer is covered by Clause 67(1)(b). The hirer is the organiser of the trip and it is his duty to ensure that alcohol is not carried, while the driver simply has a duty not to permit the carriage of alcohol on his coach. The driver must take all reasonable steps to see that alcohol is not carried on the coach. If perchance he discovers while he is in motion that alcohol in, one hopes, fairly small quantities has been taken on the coach and that an offence is
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being committed, certainly, under Clause 67, and possibly under Clause 70, the driver must take reasonable steps, and I would not include the decanting of passengers in the middle of Rannoch Moor or some other gloomy place on the way to a football match—
Lord MISHCON: I wonder whether I can save the time of the Committee, in view of what has just been said by the noble Lord. Would he be prepared before the Report stage to amplify this clause and to put in the very words that he used; namely, that the driver—if the driver is the employee—shall not be liable for any offence, provided he can show that he took all reasonable steps and dealt with the matter in the punctilious way which the noble Lord has outlined? I think we shall find that if that amplified clause reaches us at that stage, the situation may be a little more clear. I am not saying that we would necessarily accept the situation at the Report stage, but it would certainly be clearer than it is now.
Lord TEVIOT: With great respect to the noble Lord, Lord Mishcon, before my noble friend replies, there are other amendments which I have down and which I think will suit the Bill even better. So at this stage, I should like my noble friend to keep an open mind before he gives that assurance.
Lord LYELL: Certainly, so far as Amendments Nos. 52 and 54 are concerned, which I understand cover the duty of the employee as regards carrying alcohol on a coach, we will certainly look into everything that has been said and see whether we can make the clause any more clear by bringing it into line with what I have said. With that assurance, I hope that the noble Lord, Lord Underhill, will feel able to withdraw the Amendment.
Lord UNDERHILL: In the light of what the noble Lord has said, I shall withdraw the amendment. However, the noble Lord has brought forward some points. He says: so long as the driver has taken reasonable steps. The point I was making in my remarks was: what are reasonable steps? Anybody who has seen a crowd going on a football coach knows that very little can be done reasonably. What reasonable steps have been suggested? Does one search people or announce to

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all and sundry that if anyone is carrying alcohol he is not allowed on the coach? Provided that the undertaking given is to look into the matter seriously so that we can protect the employee as well as the public, then I am prepared to withdraw the amendment.
Lord LYELL: I should stress again that when, as we hope, this Bill is carried into law there will be extensive publicity directed to the new law relating to carrying alcohol on football supporters' coaches. I believe that this will be circulated to football supporters' clubs all around Scotland. The duties of the driver will be made much easier if the publicity is successful. I do not see any necessity for drivers to carry out body searches, and I am sure that the provisions of Clause 68 would not go so far as that.
The noble Lord has mentioned football supporters' coaches—people taking crates, large bottles and packs of half a dozen strong ales in large cans or bottles. That would be fairly obvious to the driver. If people were to get on a coach with, as he put it, holdalls, then there would be a reasonable assumption on the part of the driver that they were not carrying overnight clothes, or necessarily food.
Lord MISHCON: I hope that I am not boring the Committee by being repetitive, and I promise faithfully to restrict my remarks to a few words. All of us have great respect for the noble Lord opposite, despite his youthful appearance. We find that his participation in debates in this House is most useful. However, I am sure that he realises that it is not what is said on these occasions which is before the courts. We are dealing with offences. It is all very well for the noble Lord to say that nobody would expect an employee to do this, that or the other.
What one has to do is to look at the wording of the Bill. We in this House have a responsibility to see that the wording is right and that it carries out the wish of this House. I feel therefore that the matter must be left at this stage with the undertaking that we shall have a rather clearer definition of what are supposed to be the duties of the employee. Without giving an undertaking from these Benches at this stage that we shall not
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come forward with another amendment at Report, we shall naturally look at it and, in the light of what we see, we shall act.
Lord LYELL: I shall be brief and once again give an assurance that we shall look at what has been said on this amendment and come forward with any suggestions at Report stage.
Lord AIREDALE: It seems to me that what is required as a result of this discussion is that subsection (2)—which for some reason creates a defence only for the holder of the licence—should also be a defence in the case of the employee, because the words at the end of subsection (2) are very much the words which the Minister used when he said that if the employee did that, then he would not be liable. So why not make subsection (2) apply to the employee as well?
Lord TEVIOT: With great respect to the noble Lord, Lord Airedale, if you take out the word "employee", the employee is still an agent. I ask him to make his remarks when we come to my amendment, which is the next one following, which I hope will make the position clearer. I shall not withdraw a word of what I have prepared. I am afraid that your Lordships are going to hear the lot, but I shall not be very long.
Amendment, by leave, withdrawn.
9.25 p.m.
Lord TEVIOT Lord TEVIOT moved Amendment No. 53:
Page 45, line 18, leave out ("permits") and insert ("authorises").
The noble Lord said: I beg to move Amendment No. 53, and with it I will speak also to Amendment No. 55. In the Second Reading debate my noble and learned friend the Lord Advocate said that he would be glad to give careful consideration to any suggestions for the improvement of this clause, and it is in this spirit and because of what has been said before that I move this amendment, the purport of which is to place a more reasonable responsibility on the coach operator and the coach driver.
As the clause stands at the moment, it does not do so because of the looseness of the word "permit" which the noble

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Lord, Lord Underhill, has mentioned. "Permit" has already been the subject of much case law and its presence here could lead to further problems. To permit can include permission by default in that, in relevant circumstances, if a person is not actually prevented from doing something he could be helped to do it. I do not think that the noble Lord, Lord Underhill, mentioned that adjunct of the word "permit".
This situation applies to the public service vehicle licence holder or to his employee or agent. The licence holder in this case is the coach operator and he has open to him the defences described in Clause 68(2). If this operator has not specifically forbidden his driver to carry alcohol on his coach he can say that it was carried entirely without his knowledge and that he exercised "all due diligence" to prevent its being brought on to the vehicle. The unfortunate driver is not in this happy position. That remark has also been made.
The word "authorise", which I put in here, does not carry an ambiguity of meaning. To take matters a stage further, one can say that it is right that the licence holder in respect of a vehicle used and engaged as described in Clause 67 shall be guilty of an offence if he authorises the carrying of alcohol on his vehicle. He has taken a positive act and has done so culpably. Similarly, if the driver authorizes the alcohol being carried in these circumstances, he is doing so on behalf of his employer and therefore that employer should be held liable, subject to the two defences described in subsection (2). After all, there is no room for such argument in Clause 67 because the word "permit" is not used. The guilty parties there are a person who is actually in possession of alcohol on the vehicle, the hirer of the vehicle (subject to subsection (2) of that clause) and anyone who is actually drunk. Therefore clarity is needed in Clause 68(1), and thus it can be imparted by the substitution of the word "authorise" for the word "permit".
I am trying to give an example of what can actually happen with that word "permit" and I shall follow rather on what was said by the noble Lord, Lord Underhill, and the noble Lord, Lord Galpern. A driver is driving along, for instance, on a motorway or wherever,
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and he notices a person or persons taking a swig from a hip flask. We ask ourselves whether it is fair to put that driver in the position of having to stop the vehicle on the hard shoulder of a motorway or in a layby. Having been a driver I can say that it is absolutely not possible—one would be told just quietly where to go—to forbid that person from doing so. Should he perhaps have tried to make a very personal search at the beginning of the journey, and after every halt? Otherwise how will he prevent them from carrying alcohol? With the use of the word "permit" the driver could be held liable, being deemed to have permitted this offence, if he did not try to intervene in what could lead to an ugly situation. With the word "authorise" he could not be held responsible in those circumstances.
Finally, while I think these amendments might need further emphasis and probably technically are not acceptable, I hope that my noble friend will look seriously into them before he goes any stage further. I beg to move.
Lord RENTON: I feel very convinced by the argument used by my noble friend Lord Teviot in his first amendment, because, as many of us know, the expression, "permit", when used as a verb, is an ambiguous one and indeed in many circumstances is vague, and I think in the context in which it is used here it could be so described. Without presuming to repeat or elaborate what the noble Lord has said, I feel the argument he has put forward deserves attention from the Government.
I do not feel the same, however, about his second amendment. In fact, I rather feel that his second amendment is not only unnecessary but could be said to narrow the defence to which it would be related. The words from line 24 onwards are,
"it shall be a defence for him to prove that the alcohol was carried on the vehicle …",
and from the point of view of that defence I would not have thought it was necessary to say whether or not it was authorised. Therefore, while supporting my noble friend on his first amendment, I feel bound to express those doubts about his second one.
Lord LYELL: I should like to thank my noble friend Lord Teviot for presenting

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his amendments so briefly and so quickly, and also we are grateful to the noble Lord, Lord Renton, for his expert contribution. In reply to my noble friend Lord Teviot, it seems that the words, "authorise" and "permit" would both cover cases where a person, in this case an employee, had failed to take adequate steps to prevent alcohol being carried on to the coach. With neither term, neither authorise or permit, would it have been necessary to show that the driver knew that alcohol was carried on hoard the vehicle if it could be shown that he ought to have known that alcohol had been carried on. That is not desperately clear, but it means that a driver would only be liable for an offence if he did not take the reasonable steps that I was mentioning in the last two amendments to prevent alcohol from being carried on to his coach, and, depending on the circumstances, if he disregarded the carriage of alcohol during the journey. If he saw alcohol being taken from a hip flask and the coach was making a scheduled stop, there might be a reasonable chance that he might remind passengers that he had seen alcohol and it was against the law. But that would be about as far as we could expect him to go; that is pending any comments and any explanations we may make in relation to my reply to the last amendment. The word, "permit", seems to be more commonly used and better understood in this kind of context than "authorised", and it is for that reason that we prefer to leave the word "permit" in both these cases.
Lord TEVIOT: Before one even begins thinking of withdrawing this amendment, I must ask my noble friend this. A hip flask can be carried not only in an overcoat but almost without being seen, unless frisked, in jeans or like material, and it is being very unreasonable to expect the driver to be responsible to do that. As I mentioned, the word "permit" has a double meaning, but if authorised by his employer he can get away with it. I do not think my noble friend has answered that. I am delighted to have support. I shall certainly take note of my noble friend Lord Renton who has great experience of the other place. I am delighted that he has supported me on this issue. I certainly shall not push my second amendment, but I think that we
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must have a little more assurance. I do not think that my noble friend has estimated the driver's responsibilities adequately at this stage.
Lord LYELL: I do not think that my noble friend heard the beginning of my remarks so let me make it crystal clear to him that the words "authorises" and "permits" would both cover cases where the person—in this case it is the employee—had failed to take adequate steps to prevent alcohol being carried on to the coach. I think that I said when referring to the two earlier amendments moved by the noble Lord. Lord Underhill, that we did not think that it was reasonable for a driver to carry out a body search, and that would clearly be necessary to discover a hip flask if it were carried on the person of a supporter hoarding the bus. We do not think that it is reasonable for the driver to do that. Hence we do not see that the driver would be liable to have committed an offence if solely a hip flask was carried on by—one would hope—only one or two of the passengers, not by everyone.
Lord MISHCON: I am sorry to say that I must remind the noble Lord again that it is not a question of what is said in Committee as to whether we think this would be a reasonable course: it is what the Bill says. Without giving the noble Lord a lesson in semantics—which I would not be able to give him because he is as capable as I am—I should like to ask him to consider the following matter. If I rose and asked him to permit me to move a certain amendment, I am sure that he would remain in his seat and I would go on and move it. However, if I said that I had been authorised by my noble friend opposite to make this amendment I think that he would find himself in some difficulty and would immediately rise and say that he had authorised no such thing. In the circumstances, I ask him to reflect upon that lesson in semantics and to admit immediately the amendment that "authorises" is clearer than "permits".
Lord RENTON: It is with hesitation that I ask that my noble friend should consider this matter further, because it does not seem to me to be a good enough answer to say, as he has said, that "permits" and "authorises" have the same effect in this context. They plainly do not do so. "Permits" can mean either

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giving permission or not bothering whether he gives permission. "Authorises", on the other hand, must mean a single positive act of giving permission, and thereby lies the difference. I am not quite sure what the Government are getting at in this subsection in any event, but, to the extent that we have had an explanation I am indeed sorry to say that I find it very difficult to accept the explanation which my noble friend has given. I feel confirmed in the support that I originally gave to my noble friend Lord Teviot.
Lord INGLEWOOD: I feel very much in agreement with the noble Lord opposite who a short time ago made the point that it is not what we say or think in this House that matters—it will be what is said in evidence in the court in front of magistrates or their Scottish equivalent. As I see it, any constable trying to enforce this clause would have to take cognisance of a hip flask, because it is a controlled container which we take great pains to describe. It is no good our just saying that everybody will think as we do and that people are reasonable in all circumstances. Under the type of circumstances for which this clause has been drafted, people are not reasonable: sonic are drunk already; some may well have black eyes already; some may be ready to kick the shins of anyone else, including a police constable, who, if he then sees a great bulging hip flask after he has had a slog on the shins, he will immediately run the man in, and will immediately run the man in, and believe that all those who travel on vehicles of this sort ought to be allowed the ration of a hip flask outside the provisions of this clause, surely somewhere in the clause we ought to say, "other than a hip flask". I should like to think that, if that is the noble Lord's view, he will bring those words forward on Report.
Lord LYELL: I have nothing further to add, except that I shall take my lesson on
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semantics and look at the words, "authorises", and, "permits", between now and a later stage. I hope that that will satisfy the noble Lord.
Lord TEVIOT: My noble friend says that he will look at the words "authorises" and "permits". I hope that he has accepted the mood of this Committee that there is a very great difference between those two words. I can cite a huge amount of case law in relation to the word, "permits", with which I could keep your Lordships here for half-an-hour, but I shall not do so. My noble friend has said that he will look at the two words. He knows the mood of the Committee on this amendment. Taking that into consideration, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord MISHCON Lord MISHCON moved Amendment No. 54:
Page 45, line 19, leave out ("employee or").
The noble Lord said: It means what it says. I beg to move.
Lord LYELL: We discussed t his amendment at an earlier stage and I gave the assurance that we would take this amendment away and look at the clause. I hope that the noble Lord will feel free, in the light of my assurance, to withdraw the amendment.
Lord MISHCON: In view of that renewed assurance, I do. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendtnent No. 55 not moved.]
Clause 68 agreed to.
Clause 69 [Possession of container at sporting event.]:
9.43 p.m.
Lord MISHCON Lord MISHCON moved Amendment No. 56:
Page 45, line 38, leave out from ("any") to ("but") in line 43, and insert ("bottle, can or similar container designed, adapted or used for carrying alcohol, and having a capacity greater than six and two thirds fluid ounces").
The noble Lord said: This amendment arises out of a very witty intervention which was made during the Second Reading debate by my noble and learned friend Lord McCluskey. I do not think that I can do better than simply read a few lines about the definition that is given in the Bill, and then rapidly sit down. I can do no better than recite what is to be found at column 38 of the Official Report on 15th January. My noble and learned friend said:
"The Government, in order to define the missile, have created the concept of a controlled container '. It is a very silly one. It includes not just a bottle and a can, but a hip flask; it includes a saucer and a jar of smelling salts (which I always take to a rugby match in case Scotland should score a try); it includes a fountain pen; it includes a tobacco tin; and it includes, probably, a box of chocolate liquers. What it does not include, however, is a gourd, or skin bottle, out of which Spaniards are wont to squeeze wine in a long, thin jet. So I foresee the terracing at Celtic Park being lined with thousands of supporters squeezing their gourds and directing their jets of Tartan Special, not only at their own eager mouths, but in the general direction of their friends' mouths and the necks of Rangers' supporters. It is not, my Lords, a pretty prospect!"
Then he added some words; I hope this Committee will not regard it as disrespectful of me if I repeat them:
"I am tempted to say to the noble Earl, at the risk of some little ambiguity, Chuck it, Mansfield ', and settle for the less precise but more realistic expression".
Then he went on with the definition which is contained in this amendment and which I hope your Lordships will think is a very much more sensible definition than that contained in the Bill. I beg to move.
9.45 p.m.
Lord LYELL: We are grateful to the noble Lord, Lord Mishcon, for reminding us again of the levity of the day of the Second Reading. There is one error that the noble and learned Lord, Lord McCluskey, made, that he should never take, or need to take, smelling salts. I believe they are permitted under the Bill at present as a medicinal product. The noble and learned Lord should know that Scotland have scored try for try in all their matches, but they have still contrived to lose. If Scotland win at Murrayfield then the noble and learned Lord may need his smelling salts, but possibly he may need something stronger at the game or outside, since it is not envisaged at the moment that Murrayfield would, as yet, be a designated ground, but that may come further on.
In discussing this amendment, I hope the Committee will find it useful if I set out briefly the intention behind the provision in Clause 69 banning the carriage and the possession of what, for want of a better word, we are calling certain containers at football matches. The Working Group on Football Crowd Behaviour concluded that much of the hooliganism and violence associated with football matches was due to the amount of alcohol consumed before, during, and after the matches. The Working Group therefore recommended that it should be an offence to carry alcohol into, or to be in possession of alcohol within, a football ground. This recommendation is implemented by Clause 70 of the Bill.
The Working Group also considered the related problem of the use made of drink containers as weapons and missiles at football matches; indeed, they recommended that the dangers involved warranted making it an offence to carry such containers into football grounds. This is the purpose of Clause 69. The report also pointed out that it was irrelevant whether or not the original liquid content of such containers was alcohol or not, since bottles or cans which originally contained non-alcoholic drinks such as lemonade—which, apart from stronger liquors, is the staple liquid diet of the Scots—were equally dangerous, and had a similar effect if they were thrown, full or empty.
Bearing in mind the principle of this recommendation, Clause 69(2) attempts to

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define the type of container which it would be an offence to carry into the ground, or indeed even to be in possession of if you are inside a football ground. The definition is designed to cover four essential characteristics. The first is that the container is portable. That clearly would exclude liquid gas bottles, or similar heavy containers. Secondly, the container may be open or sealed. Thirdly, it must be capable, or apparently was so in its original state, of containing a liquid, be it alcohol or even lemonade. Finally, that this particular container is made of such a material, or is constructed in such a way, or is adapted—that gives rise to a certain amount of imagination—that if it was thrown at, or propelled against, a person (and I think we had better not get into semantics of how you propel a particular container against somebody) it would be capable of causing some injury to a person against whom it was thrown or propelled.
We considered whether it would be possible to define a container by reference to the material of which it was made, be it glass, metal, or plastic. I am sure noble Lords and the Committee will appreciate that, given the wide range of modern materials, particularly the types of hard and soft plastics, this has not proved possible. The principle of the Working Group report was that all containers capable of causing injury if thrown, should be prohibited, and the definition is framed to meet this intention. It would therefore exclude from the ban soft plastic cups for the sale within the ground of such drinks as tea and other non-alcoholic refreshments as are normally on sale before the match and sometimes at half-time.
The definition would also allow, most interestingly, the soft skin gourds which were referred to by the noble and learned Lord, Lord McCluskey, on Second Reading and by the noble Lord, Lord Mishcon, this evening, provided of course that they did not contain alcohol. I am informed that the efficiency of these gourds is somewhat reduced if they are not filled with alcohol; it is said that if one fills them with non-alcoholic liquid these gourds have a great propensity to leak so it would seem that if one of these containers, soft skinned or not, were taken into the match, the container would not achieve its purpose, even if thrown.
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I come to the amendment. We do not think it would meet what we are trying to achieve in the Bill because from its wording it would seem that it is intended to cover only containers used for carrying alcohol, and it appears that containers for carrying non-alcoholic drinks would still be permitted. However, I have explained that the carriage of alcohol is already caught by the provisions of Clause 70. We believe it is essential that all types of containers which could cause injury if thrown are caught by the ban, but the wording of the amendment would not achieve that.
The amendment also seeks to allow a supporter to take into the football match with him any container provided it has a capacity of less than six and two thirds fluid ounces, and that is the exact measure of a quarter bottle. The noble and learned Lord, Lord McCluskey, mentioned on Second Reading that a spectator should be allowed to carry a small hip flask, and doubtless the amendment is framed to achieve just that. However, that would provide a loophole which could undermine the basis of these provisions on the control of alcohol and behaviour at sporting events. Hooliganism at football matches still means that a total ban on alcohol is necessary, at least in Scotland, if we are to hope to make any inroads on curbing these mindless acts of violence and rowdyism which are often stimulated by indulgence and over-indulgence in alcohol. And I fear that even the consumption of a quarter bottle of strong alcohol would provide sufficient fuel to certain persons to encourage many of them to become involved in hooliganism.
More important, a quarter bottle or similar container when empty could be a very dangerous weapon. I would not suggest that anybody owning a beautiful silver hipflask—certainly not the noble and learned Lord, Lord McCluskey—would throw it on to the pitch or at opposing supporters if he was annoyed at his team's performance or elated at any victory. But I am equally certain that no Member of the Committee, let alone the noble and learned Lord, would be pleased if an empty quarter bottle of whisky or indeed a silver hip flask were thrown and landed on his head, or on anybody else's head.

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To allow containers up to a certain capacity, but not others, would, we believe, place an intolerable burden on the police. I would also point out that, as drafted, the amendment would allow an individual to take in any number of containers, provided that each one was less than six and two thirds fluid ounces capacity. I have experience of seeing people going to cricket matches in the Antipodes with large amounts of liquor, and the thought of my national colleagues going to football matches with any number of quarter bottles on them raises considerable doubts in my mind. Certainly the amendment would lead to abuse of the Bill.
Our intention under this provision, which is to ban any drinks container which could be used as an offensive weapon, is, I hope, clear. I accept that the definition as drafted may not be perfect, and I assure the noble Lord, Lord Mishcon, thatwe shall look at it again to see if it can be improved, but I would not promise at this stage that we shall come up with an entirely acceptable definition at the first time of asking. The amendment does not meet the necessary requirements as we see them, and as I hope I have shown, possibly at a little greater length than your Lordships might have wished, we believe that it is defective in certain respects. Given that we shall look at the amendment and see how we can make the provision a little more realistic in the light of what was said earlier, I ask the noble Lord to withdraw the Amendment.
Lord MISHCON: I have in mind that if I were at this hour to continue the debate upon this definition, several of your Lordships would wish to possess a portable container which,
"if it were thrown at or propelled against a person … would be capable of causing some injury to that person",
and I do not wish to be its recipient. We have heard an assurance that this point is being looked at. There is no doubt in my mind—I say this most respectfully—that the definition is capable of causing laughter in some courts in regard to offences of this nature. That is the last thing that one wants. I am merely thinking in terms of a counsel for an accused referring to the definition which is contained here which can really cover
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many matters that are not intended to be covered. On the basis of the assurance that this matter is to be looked at carefully and that the observations that have been made will be taken into account before the Report stage, I am very happy to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 69 agreed to.
Clauses 70 to 73 agreed to.
Clause 74 [Interpretation of Part V]:
9.57 p.m.
Lord MISHCON Lord MISHCON moved Amendment No. 56A:
Page 47, line 15, at end insert—
(" "drunk" means drunk and incapable as defined in the Licensing (Scotland) Act 1976").
The noble Lord said: On this occasion I can truthfully say that the amendment means what it says. I beg to move.
Lord LYELL: It seems that this amendment wishes to introduce into the provisions of this Part of the Bill, applying to the offences of being, drunk at a designated sporting event, or in a coach travelling to or from an event, the additional requirement that the individual concerned was not only drunk, but also incapable of looking after himself. I do not think that this would be helpful, because the term "being drunk" is not synonymous with the expression "being drunk and incapable". It is the intention of the provision to deal not merely with those who have consumed so much that they are falling about and are liable to cause themselves injury, but also with people who are drunk, but whose state is more likely to result in their causing injury to others by their violent behaviour, rather than to themselves. The term "drunk" does not require further definition, because it will apply simply to a person whose appearance and behaviour is reasonably interpreted as that of a drunken person. The noble Lord may know that the term "drunk" is already used and applied in the 1976 Licensing Act, to which I referred earlier. I think that the reference was to carrying crates on board a bus—
Lord MISHCON: If the noble Lord would give way, I could help everybody. I moved this amendment by courtesy because my noble friend was not present. I am completely convinced by the noble Lord's answer so far, and at this stage I therefore ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 74 agreed to.
Clause 75 [Vandalism]:
On Question, Whether Clause 75 shall stand part of the Bill?
Lord MISHCON: I hope to be equally brief because many of your Lordships will remember a reference to Clause 75, which introduces the crime of vandalism by way of definition; the Committee will remember what was said in the debate on Second Reading. The Law Society of Scotland say that they oppose the clause as unnecessary and that these offences can be satisfactorily prosecuted under the present law. The situation as I understand it is that this provision would make a mere cosmetic offence where an offence already exists—that of malicious mischief, which is an offence at common law. I believe that I am right in saying that the penalties in regard to the offence of malicious mischief are in fact more severe than the penalties under this clause. Therefore to give the impression that one is dealing with vandalism—which every Member of your Lordships' Committee would decry—by way of a fresh measure and with a further degree of enforcement, is really to mislead everybody. I repeat that the offence already exists, a prosecution can be brought, and the penalties are more severe. If we allow the clause to stand, all we shall do is to make a pretence, which is not what we want.
Lord WILSON of LANGSIDE: I support the noble Lord wholeheartedly. I hesitate to say that this matter raises a question of principle, because that would make everyone suspicious, particularly at this late hour. If it were not so late I should certainly be concerned to press it to a Division, because I think it raises a question of great importance. At this late hour, however, I content myself with saying that I was surprised to hear the
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noble Earl, Lord Selkirk, and the noble Lord, Lord Campbell of Croy, say at Second Reading that they thought there was something to be said for it psychologically. I can understand their point of view, but I was surprised that they took it. I think this is legislative cosmetology of the worst possible kind—and that word is in the dictionary. It is designed to mislead; it is politically inspired in the worst sense of political inspiration; and it will do nothing to help the situation.
We have called the offence "malicious mischief" for centuries—or, at least, for many years. To call it "vandalism" is to flatter it. "Vandalism" is a convenient word for the media, for politicians and for writers. In my view it has no place in the Scottish statute book. But at this late hour of the evening I do not propose to develop the point, although I certainly propose at a later stage, if we can arrive at this clause at a convenient hour when people are prepared to listen, to develop the point. But I think this clause is a very silly one indeed.
The EARL of CROMARTIE: As a simple honorary sheriff of some age, and having discussed this Bill with certain other sheriffs in the North of Scotland and the Highlands, I still think this is a good clause. We know that it does not lay out any further penalties for vandalism—they are quite heavy for malicious damage—but the point is that "malicious damage" sounds extraordinarily legal, and a lot of people do not understand it. Everybody in the United Kingdom understands the word "vandalism", and I think that is one of the benefits of this particular clause.
Lord MISHCON: I wonder whether the noble Earl would really concentrate with us for a moment on what he has just said. Does he really think that the sort of people who do this do not understand the words "malicious mischief" but do understand what is quite a classical word in our language, the word "vandalism"?
The Earl of CROMARTIE: I must answer that, if I may. I think it is very largely up to their parents to understand it in many cases.
The Earl of MANSFIELD: At this hour I should like to compress my remarks, and indeed I shall do so, but I am afraid

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there are a number of things which the noble Lord, Lord Mishcon, and the noble and learned Lord, Lord Wilson of Langside, have said which I, for one, just do not accept. "Vandalism" is a word which, I think, is only too well known throughout the length and breadth of the country. It has become so because it is increasingly manifested to a point where it has become extremely serious and causes very great concern and fear to a great many ordinary, decent people. It is one of the great scandals of our time. In housing estates in parts of the conurbations in Scotland, it ruins the quality of life for those who have to live in them. Therefore, I think we must not talk in terms of semantics. To an old lady who has had a flower pot thrown through her window or to somebody who tries to dial "999" only to find the telephone vandalised the word is "vandalism" and not "mischief". If I may disagree with the noble and learned Lord, Lord Wilson of Langside, the word "mischief" in common, modern speech hardly conveys the seriousness of the crime of vandalism.
More importantly, there are in Scotland at the moment a multiplicity of possible charges which may be brought as a result of what, in terms of ordinary English, is now known as vandalism. One can have malicious mischief, wilful damage and even breach of the peace. These three offences can be covered more or less by the same set of circumstances. I do not think that, in a Bill which is, hopefully, bringing up to date the law of Scotland so far as criminal procedure is concerned and, hopefully, pushing it forward, we shall achieve that object if we make use of archaic language to describe an offence which is prevalent and very serious.
Those were the circumstances, I suggest, in which the Scottish Conservative Crime Advisory Committee, under the chairmanship of Mr. McArthur, in fact recommended that a specific statutory offence of vandalism should be created. This clause seeks to implement that recommendation. The purpose of the clause is simply to identify vandalism as a separate offence and to mark it out in the public mind as such. It will enable the courts to identify persistent vandals who are brought before them and to impose appropriate, deterrent penalties on them.
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In the longer term, one hopes that this may have some effect in discouraging certain people from committing acts of vandalism. I do not put it any higher than that. Nobody makes any great claims for this measure, but I think it is necessary in the circumstances to bring the law up to date, to bring the description of the offence up to date and to try to do anything reasonable and possible to control this growing social evil.
Lord WILSON of LANGSIDE: I do not propose to add anything except that those of us who put down this amendment share the noble Earl's concern about this serious public mischief. We are just as concerned about it as he is. We put down this amendment because we regard this provision in the Bill as being essentially cosmetic and dishonest. It is to encourage people to think that vigorous action is being taken when all that is being done is to change the words. It is not a matter of semantics. I do not propose to pursue this tonight but I can think of many arguments which, I hope, in due course will be considered by noble Lords who spoke in favour of this provision and against the amendment. I think it important from every point of view that the matter should be gone into very thoroughly. This is not the hour of night in this Committee when that can be done.
10.10 p.m.
Lord MISHCON: I trust that some consideration will be given to the serious words that have been uttered tonight in regard to this paragraph. In regard to what the noble and learned Lord, Lord Wilson of Langside, has said, there is nobody in this Committee who does not deplore the acts of vandalism that occur, whether they live North or South of the Border. I repeat that this is a cosmetic exercise. I also repeat—and there has been no answer to this—that my information is that the malicious mischief common law charge carries heavier penalties than this one. Am I wrong on that?
The Earl of MANSFIELD: The noble Lord is wrong. For the sake of the record, perhaps I should put it right. Most offences involving vandalism will be taken by way of summary procedure. It

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will be open to procurators fiscal to continue to prosecute more serious cases of vandalism on indictment under the common law.
Lord MISHCON: I am much obliged to the noble Earl for teaching me. In the hope that further consideration will be given to what has been said, I do not propose to divide the Committee on this amendment. I ask the leave of the Committee to withdraw it upon that understanding so far as I am concerned.
Amendment, by leave, withdrawn.
Clause 75 agreed to.
Clauses 76 to 79 agreed to.
Clause 80 [Short title, commencement and extent]:
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment 56B:
Page 49, line 26, leave out ("and (6)") and insert ("to (7)").
The noble Earl said: This is simply a drafting amendment. I beg to move.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendments 56C, 56D and 56E en bloc:
Page 49, line 32, after ("paragraphs") insert ("5A(a),").
Page 49, line 37, leave out ("paragraph") and insert ("paragraphs 5A(a) and").
Page 49, line 41, after ("This section,") insert ("paragraph 5A(a) of Schedule 7,).
The noble Earl said: These are paving amendments to those which will be made in Schedules 7 and 8, amendments 62D, 62E and 66 in the Marshalled List. I beg to move.
Clause 80, as amended, agreed to.
Schedule 1 [Certificates as to certain matters requiring to be proved]:
On Question, Whether Schedule I shall be the first schedule to the Bill?
The Earl of SELKIRK: May we have some explanation on lines 6 to 8 of this schedule? The enactment in column No. 1 says:
"The enactments specified in Section 78A(3)".
I do not know where that comes from.
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It is not in the 1975 Act. It may be in this Act, but I have not seen it. It refers to
"speeding offences generally".
When one comes to the next column it appears to refer to apparatus and two people have to sign who have tested the apparatus. When one comes to the third column it appears to refer to the accuracy of a speedometer and a radar meter. I do not understand what it means and maybe possibly others do not. Could the noble Earl look at it at some time and make it clear?
The Earl of MANSFIELD: Yes, I will certainly give that undertaking.
Schedule 1 agreed to.
Schedule 2 [Solemn Appeals]:
Lord MACKAY of CLASH FERN Lord MACKAY of CLASH FERN moved Amendment No. 56F:
Page 53, line 3, leave out ("236A(2)") and insert ("236B(2)").
The noble and learned Lord said: This is a drafting amendment. I beg to move.
10.15 p.m.
Lord WHEATLEY Lord WHEATLEY moved Amendment No. 57:
Page 53, line 30, leave out ("Within two weeks of") and insert ("as soon as reasonably practical after").
The noble and learned Lord said: At this late hour I shall be as brief as I possibly can with the amendments standing in my name. With regard to Amendment No. 57, your Lordships will observe that under the proposed new Section 233 at the top of page 53, there has to be a note of appeal which will not only identify the proceedings but will contain a full statement of all the grounds of appeal. Then Section 236A would read:
"Within two weeks of the judge receiving his copy of that, he shall prepare and furnish to the Clerk of Justiciary a report in writing, giving his opinion on the case generally and on the grounds contained in the note of appeal."
Normally this could be easily effected if the judge happens to be in Edinburgh; but with the heavy commitments of judges on circuit at present, when they are often away for weeks at a time, it might not be possible to get this done within two weeks without imposing an intolerable burden on

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the judge on circuit, who is usually very heavily engaged on his circuit work, or it might well be that the judge was ill.
I accept that provision is made later in the proposed new section that the High Court may extend the time of two weeks, but is that not rather taking a sledgehammer to crack a nut, because the circumstances would differ from time to time? Would it not be sufficient merely to say that within a reasonable time the judge will prepare his report, leaving it—and I may say I have the consent of the Lord Justice General to say that he agreed entirely with this—entirely to the Lord Justice General, as head of the court, to secure that the report is obtained from the trial judge as soon as reasonably practicable in any given case. It seems to me that would be a much more elastic way of dealing with the matter, rather than having to convene three judges of the High Court in order to grant an extension of time simply because the trial judge happens to be on circuit, indisposed or, as my noble and learned friend Lord Fraser has just indicated, on holiday. There may well be a variety of reasons.
I should like to make just one proviso. If the Government were prepared to take this on hoard, I think it would be desirable to continue the provision made in the proposed subsection (2) that even if, for some reason, the report is not furnished, the appeal could go on without the report. That would be a highly desirable thing. But the court would only do that if it felt it could properly deal with the appeal, even in the absence of a report in the particular circumstances. I so move.
Lord RENTON: I am not sure whether this is the right moment for me to do so, but I should like to make a comment upon drafting; and perhaps this is as good a moment as any. We find in this schedule, as elsewhere in the Bill, that there is a great deal of amendment of previous legislation, and especially of the 1975 Act. I think it is highly commendable that nearly all the amendment has been done by the textual method, and for that we can be thankful. But it does mean a tremendous amount of cross-reference.
One very much hopes that my noble and learned friend the Lord Advocate can give us an assurance that before very long
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there might be some consolidation, which would not be difficult consolidation because of the fact that it has been done by textual amendment and that it is nearly all amendment of one previous Act of Parliament. This type of legislation should be made as clear as possible—that goes without saying—because it affects a great part of society; not merely the criminals in society, although everybody is potentially one. I hope that we may have an assurance that there will be consolidation, so that the relative clarity of this Bill can be made abundantly plain for all to understand.
Lord MACKAY of CLASHFERN: So far as the noble and learned Lord, Lord Wheatley, is concerned, I appreciate the practical matters that he has raised. We have been concerned to try to provide a timetable, and a timetable in relation to appeals is part of the fairly fundamental thinking that underlies the recommendations of the Thomson Committee on this aspect of the matter. We had hoped that sufficient flexibility was preserved by the opportunity in the High Court to extend the time, and no doubt that could be done as an incidental matter. If we were to accede to this amendment, it would really mean a fairly important change in the timetable as set out, putting the judge in a somewhat different position in not having a defined time to work to. I agree that "as soon as reasonably practical" is a fairly strong persuader to get on with, but it does not give one a fixed time. These are the reasons that persuaded us that we should have this timetable in the schedule.
As regards the point on drafting made by the noble Lord, Lord Renton, it is certainly my fervent hope that once this legislation is enacted early consolidation will follow, and the form in which this legislation is presently drafted is intended to make that as easy as possible. I regret that it occasions references backwards and forwards from the 1975 Act to the present one. I invite the noble and learned Lord to be kind enough to withdraw his amendment.
Lord WHEATLEY: I am not so sure that I can, because I am not altogether satisfied with the reply. I am very seldom not satisfied with what the noble and learned Lord the Lord Advocate says on matters of law and procedure. It is all

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very well to have a timetable, and there may be reasons which persuaded the noble and learned Lord and his colleagues to put it in this fashion. But I hope that the circumstances to which I alluded may persuade him to change his mind back again, without in any way affecting materially the timetable that he envisages.
Surely, he and his colleagues can trust the judges of the High Court to do their job properly. If an appeal is lodged by a note of appeal what happens, in practice, now is that the clerk of justiciary sends to that judge immediately the note of appeal with reasons stated and asks for a report. That report is normally given within a day or two, and I can tell your Lordships that, for my own part, it is done that night and is ready the next morning. Normally, it is as easy as that. But there are circumstances where, for the reasons I have explained, the judge may not be available to act in that way, and they will be the exceptional cases. To convene a full court of three judges merely to give an extension of a week or two, in the particular circumstances of the case, is a complete waste of judicial time, and I ask the noble and learned Lord, in consultation with his colleagues, to think on this again and to consider whether or not this is a more flexible method.
I have the authority of the Lord Justice General to say that he would be very anxious to see that this was observed, if it was done in this more flexible manner. He would be willing to give this undertaking that he would see that the judges provided the reports within the reasonable time that we have in contemplation. It would be only on the understanding that I had that undertaking, that I should be prepared at this stage to say that I would withdraw my Amendment.
Lord MACKAY of CLASHFERN: So far as I am concerned, I am perfectly prepared to say that we will look at the matter again. It has been fairly fully considered, but I hope that the noble and learned Lord will feel able to withdraw the amendment.
Lord WHEATLEY: Subject to that undertaking, and also on the understanding that "looking "means" looking and considering ", I withdraw the amendment.
Amendment, by leave, withdrawn.
10.26 p.m.
Lord MISHCON Lord MISHCON moved Amendment No. 58:
page 55, line 48, leave out from ("court;") to end of line 3 on page 56.
The noble Lord said: In paragraph 18 of the second schedule another section is to be substituted for Section 254 relating to the determination of appeals. In subsection (1)(c), which runs over to page 56 of the Bill, there is a right on appeal to set aside the verdict of the trial court and grant authority to bring a new prosecution.
The sole purpose of the amendment is to call attention to this power and to ask for some reflection to be given to whether or not there is a grave risk of prejudice, especially in jury cases, to the chances of a fair second trial when the earlier trial and appeal will have been widely reported. As the number of cases where this would be material would be so few, it may very well be that what appears to be injustice to an accused ought to be removed from the Bill.
Lord MACKAY of CLASHFERN: This is intended to give an extra power to the court in order satisfactorily to dispose of difficult cases. The basic difficulty from which any appellate court suffers is that it has not, and cannot have, heard all the evidence at the original trial nor observed the demeanour of the witnesses. There may well be cases in which it is extremely difficult to set aside a verdict, even if one is in considerable doubt about it, if one is not in a position at least to authorise a fresh prosecution. I have no doubt that the circumstances to which the noble Lord, Lord Mishcon, has referred—the publicity that attaches to this sort of thing and so on—would be carefully taken into account by the High Court in deciding to exercise this power. They would also be taken into account by the prosecution if they decided to implement the possibility which the High Court left to them.
There is one point about prejudice which I could perhaps mention. It by no means follows that the publicity which would attach to a case like this would be of a kind which would be prejudicial to

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the accused person. The probability is that if a potential juror has read anything, it will have been about the appeal proceedings and the setting aside of the verdict by the appeal court.
Although this is a new power, it is, in the circumstances, the same power as was proposed in the previous Bill, at least on amendment, for summary trials. We think that it is advisable to give this power to the court. Adopting the point which the noble and learned Lord, Lord Wheatley, has made, I think we can trust the court to use these powers with great discretion.
Lord MISHCON: As I tried to indicate, there is naturally a different situation in the case of summary trials from the publicity that is normally given to a trial by jury. However, I have heard what the noble and learned Lord the Lord Advocate has said and one can only hope that very careful use is made of this provision, and that in the light of experience it will be a very rare occurrence and one which will not in fact mean injustice. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.29 p.m.
Baroness LLEWELYN-DAVIES of HASTOE: I wonder whether I might intervene for a moment. I see that the noble Lord the Chief Whip is in his place. It is nearly half-past ten and there are a further 10 or 11 amendments to be dealt with. There are not many of your Lordships here to discuss what is an extremely important Bill. We on our side have been very gratified by the seriousness with which Members of the noble and learned Lord's party have expressed great worries about the content of this Bill. Some of the provisions have been withdrawn. They all have to be debated again, presumably at Report stage. It is late and public transport stops quite soon, and I think the Committee is entitled to know the intentions of the noble Lord the Chief Whip; whether we are to go on to the end of the Committee stage of the Bill tonight, whether we are to adjourn before the end, or what he plans to do.
Lord DENHAM: I am most grateful to the noble Baroness, Lady Llewelyn-
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Davies. I think the point at the moment is that we are not absolutely certain how much there is in some of the remaining amendments. I am told that a large proportion of them are Government drafting amendments, so that if we can possibly carry on for ten minutes or so we shall see how far we get. It seems to me that to have a whole extra day on this Committee stage for what could possibly be only five or ten minutes' work would be rather overdoing it. Perhaps the noble Baroness would agree that we could confer a little later.
Baroness LLEWELYN-DAVIES of HASTOE: I accept that perhaps we might confer in about ten minutes' time, but I might add that if the Government had thought of it earlier, before they tabled their amendments to the Bill, and indeed if they had thought out their own line more clearly at the beginning of the Bill, the Committee would have known the direction in which we were going and our deliberations might not have taken this long. However, I quite agree with the noble Lord that we might have a word in about ten minutes' time.
10.32 p.m.
Lord WHEATLEY Lord WHEATLEY moved Amendment No. 59:
Page 56, line 13, at end insert—
("() Where the High Court affirms the verdict of the trial court it may pass another sentence whether more or less severe in substitution for the sentence imposed by the trial judge.").
The noble and learned Lord said: I beg to move Amendment No. 59 and, in view of what has been said, I shall be as brief as I possibly can and will compress my argument into the very minimum of words. Quite briefly, the amendment would effect the following: your Lordships will observe that under the new proposed Section 254 the High Court, in appeal against sentence, may either confirm the sentence passed in the court below or increase it or reduce it. That is the present law; and the present procedure and the law which we observe at the present time is that where there is an appeal against conviction and that appeal fails, the court arrogates to itself the right to deal with the sentence and to increase it if need be, all in the interests of a sentencing policy.
There is at least doubt as to whether the proposed new clauses here would continue that right which exists at the present time, of the High Court increasing sentences where there is only an appeal against conviction. Having regard to the express provision in paragraph (b) of the new proposed subsection (3) and the restriction that is contained in subsection (2) itself, there might be doubt as to whether these provisions would take away the existing right of the Court of Appeal to increase sentence on an appeal against conviction only; and as we in the Court of Appeal lay great store on being able to regulate sentencing policy, it is highly desirable that if there is any doubt in the drafting as it is constituted at present, it should be made crystal clear that the right which we exercise at the present time should be continued into the provisions of this Bill. I beg to move.
Lord MACKAY of CLASHFERN: The intention of the Government in this connection is to give effect to the considerations set out in the Thomson Committee's Third Report, which amounts in substance to this: that no convicted person with substantial grounds for an appeal against conviction should be deterred from lodging such an appeal by the prospect that in the event of failure he may face a stiffer sentence than that imposed at his trial. That is the basic principle that we are seeking to go on, and the belief is that that intention is carried out in the drafting as it is; but in view of the doubt which the noble and learned Lord has cast on that, and in the light of what he has said, we shall be glad to look at it again.
Lord WHEATLEY: In the light of that undertaking, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2, as amended, agreed to.
Schedule 3 agreed to.
Schedule 4 [Abolition of Mandatory First Diet]:
10.35 p.m.
Lord WHEATLEY Lord WHEATLEY moved Amendment No. 60:
Page 70, leave out line 8.
The noble and learned Lord said: I must try to telescope this, because it would take some time if I tried to explain it in full. May I draw your Lordships' attention to page 70, line 8. Provision is made for the court to consider matters arising by way of preliminary pleas on (i) a point of law, and (ii) as regards admissibility of evidence. Then, (iii) is an umbrella provision which refers to any other matter not mentioned in (a) or (b). We cannot see that there could be any point of law other than the points of law by way of preliminary pleas dealt with under (a) and (b) of the proposed Section 76(i), and therefore (i) is entirely unnecessary.
With regard to (ii) as regards admissibility of evidence, we cannot see at this preliminary stage before the trial takes place how this would be practicable, because it would not be a trial within a trial; it would be a trial outwith a trial and a trial in a vacuum, because the admissibility of evidence can normally only be determined in the context of the trial in the circumstances of the case. If there should be any casus intravires that the Lord Justice General and I have not been able to contemplate in regard to (i), it is amply covered by (iii) because of the omnibus nature of (iii). That is it in a nutshell. I have already discussed it with the noble and learned Lord the Lord Advocate. I hope we can deal with this very technical matter in a very short way.
Lord MACKAY of CLASHFERN: The noble and learned Lord has indeed explained this matter to me. The point is made a little more difficult by the fact that the printing is not quite right. We felt there may be matters, such as, for example, questions arising out of judicial examination, which could be dealt with at the preliminary diet, and it was thought wise to try to point the way in that direction. Certainly the words that the noble Lord seeks to delete are not essential and I would be glad to consider this matter further.
Lord WHEATLEY: On that undertaking, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 61 not moved.]
Lord MISHCON Lord MISHCON moved Amendment No. 61A:
Page 70, line 45, after ("permits") insert ("and the accused consents").
The noble Lord said: I hope to be able to copy the fine example of the noble and learned Lord. Lord Wheatley, by being brief. There is a provision for the holding of a preliminary diet where it is ordered, and there is a proviso that the court can proceed notwithstanding that the accused is absent. This amendment merely provides that the accused's consent shall be obtained. I beg to move.
Lord MACKAY of CLASHFERN: There may be some misunderstanding in regard to this. It is not intended to give the court power in this clause to exclude an accused who wishes to be present. The idea is to give the court power, if the accused does not wish to be present, to proceed without him. So in a sense his consent is manifested in the sort of circumstances to which we take it these words apply by the fact that he has not agreed. That is what is in mind. I shall be glad to see if we can make that clearer.
Lord MISHCON: On that understanding, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord MISHCON Lord MISHCON moved Amendment No. 61B:
Page 71, line 7, leave out from ("may") to ("appeal") in line 11.
The noble Lord said: I hope to be equally brief in dealing with the provision of an appeal in connection with the preliminary diet. I have only one point, and that is that a party may under this clause, with the leave of the court of first instance, appeal to the High Court. It appears to be quite wrong, in the interests of justice, that it should not be possible for there to be an appeal to the High Court for leave to appeal where not granted by the court of first instance—not unknown, if I may say so, in regard to certain proceedings that took place in this House last week.
Lord MACKAY of CLASHFERN: The procedures which are familiar to the noble Lord are not quite so familiar in Scotland. The idea in this case is that the court of first instance should have a
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discretion and the only discretion, in effect, is a discretion as to time. If the accused has a substantial point, it will not be lost by the fact that a trial has to take place. So the discretion in the court of first instance is only a discretion as to the time at which the appeal takes place. The point is that if the court thinks that there is sufficient substance in the matter, and a trial could be avoided, it will allow the appeal to go ahead at that stage. It might, in other circumstances, think that the matter should wait until the case has been concluded.
Lord MISHCON: Will the noble and learned Lord at least agree to reconsider the matter before the Report stage? I do not want to continue an argument at this hour. But there obviously is force always in the right of going beyond the court, against whose findings one wishes to appeal, for leave to appeal.
Lord MACKAY of CLASHFERN: Yes, certainly.
Lord MISHCON: In those circumstance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.42 p.m.
Lord WHEATLEY Lord WHEATLEY moved Amendment No. 62:
Page 73, line 38, leave out ("may, if he thinks fit,") and insert ("shall").
The noble and learned Lord said: I beg to move Amendment No. 62. Your Lordships will observe that this relates to the situation where a sheriff in the sheriff court on an indictment decides, after conviction, that any competent sentence that he could impose would not be justified having regard to the serious nature of the offence, and that a sentence of a more serious nature should be given. In that situation the procedure is that he remits the case to the High Court for sentence. Your Lordships will observe that under paragraph (c) of the proposed Section 104, it provides that in remitting the case to the High Court the sheriff may, if he thinks fit, append to his interlocutor a note of his reasons for such remit.
It so happens that in my capacity as Lord Justice Clerk, I do virtually all these remits, so I know something about the matter. I shall explain it as briefly as I can. Some sheriffs do append a note and others do not. I find it a great advantage to have a note. For example, one may get a note from the sheriff giving an explanation of what occurred in the court below. There may have been a trial, and he can give the background of the evidence at the trial. It may have been a plea of guilty, and he can tell one what was said by the prosecutor and what was said by the defence in mitigation. When the case comes before the High Court for sentence, I find it a great advantage to have that background information so that I can compare it with the submissions placed before me in the High Court, because they do not always coincide. Therefore, the purpose of this amendment is to move this from a discretionary power to a mandatory compulsion.
Lord MACKAY of CLASHFERN: have the greatest sympathy with this proposal and I hope that I may be in a position to accept it—but I am not absolutely in that position at this moment. So, if the noble and learned Lord will withdraw the amendment, I think I can safely say that we may well be in a better position next time.
Lord WHEATLEY: That is the nearest that I have got so far, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 4 agreed to.
Schedule 5 [Young offenders]:
The EARL of MANSFIELD The EARL of MANSFIELD moved Amendment No. 62A:
Page 76, line 21, leave out ("by order").
The noble Earl said: I beg to move Amendment No. 62A. This is a drafting amendment.
Schedule 5, as amended, agreed to.
Schedule 6 agreed to.
Schedule 7 [Minor and consequential amendments]:
The EARL of MANSFIELD The EARL of MANSFIELD moved Amendments Nos. 62B, 62C, 62D, 62E, 62F and 62G:
Page 78, line 12, after ("words" ") insert ("the")
Page 78, line 25, leave out from ("words") to end of line 28 and insert (" "Borstal institution or a young offenders institution" there shall be substituted the words "young offenders institution or a detention centre".")
Page 78, line 33, leave out second ("and")
Page 78, line 36, at end insert ("; and
(c) in subsection (6), for the words ", corrective training, preventive detention, detention in a young offenders institution or Borstal training" there shall be substituted the words "or detention"
5A. In section 37 (persons unlawfully at large)—

(a) in subsection (1), for the words from "corrective training" to "detained in a" there shall be substituted the words "or to detention in a young offenders institution or";

(b) in subsection (2)—

(i) for the words from "corrective training" to "detained in a" there shall be substituted the words" or to detention in a young offenders institution or "; and

(ii) the words "Borstal institution", in both places where they occur, shall cease to have effect.")

Page 78, line 45, leave out C' inserted the words "the Air Force Act 1976" ") and insert ("substituted the words" the Air Force Act 1955 or the Armed Forces Act 1976" ").
Page 79, line 11, after ("imprisonment") insert (",or detention,").
The noble Earl said: All these amendments, Nos. 62B to 62G, are drafting amendments. If it is for the convenience of the Committee, and within the rules, I propose to move them en bloc. I beg to move.
Lord WHEATLEY moved Lord WHEATLEY moved Amendment No. 63:
Page 80, line 31, leave out paragraph 21.
The noble and learned Lord said: I should like to ask the noble and learned Lord the Lord Advocate the justification for paragraph 21, which provides for the removal of the procedure known as certification. Perhaps I may explain very briefly to your Lordships what this involves. If a single judge is on circuit and an important point of law—and normally it only relates to an important point of law—arises and it is of such importance that he would like an authoritative

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decision, he can certify it from the circuit for a decision in the High Court in Edinburgh with a court composed of at least three judges and perhaps more.
This is a provision and procedure which is very rarely used, but is it one which normally arises when an important point of law is at issue. In these circumstances we find it difficult to know why the procedure should be abolished, because it is always competent for the court in that situation to covene the higher court of three judges, or five judges as the case may be. But that would involve the judges going from Edinburgh to the circuit town, whether it be in Stirling or Inverness. That would be a great waste of judicial time. This is not a question of judicial convenience or inconvenience, but a great waste of judicial time. By remitting the case to Edinburgh it is always possible at short notice to get the requisite court to consider the point at law. As the noble and learned Lord knows, there was such a case in Edinburgh itself only 10 days ago. Although it may not be frequently used, it is there for use when required and we have yet to find a good reason for its proposed abolition. I beg to move.
Lord MACKAY of CLASHFERN: The intention in this connection was to substitute for that procedure, which is very little used, the extension to circuits of the procedure which is used in Edinburgh so that the circuit situation and the Edinburgh situation would be the same. If that is so, it would appear to obviate the necessity for this procedure by certification, which, as the noble and learned Lord said, has been used hardly at all over quite a long period. That is why we propose this abolition.
Lord WHEATLEY: The noble and learned Lord referred to the Edinburgh procedure, but, in that situation, if the point arises in Inverness, three or five judges, as the case may be, may have to go to Inverness in order to constitute the court there; they would lose one day at either end in travelling, which is a complete waste of judicial time—time that is in very rare supply at present. Will the noble and learned Lord the Lord Advocate give us an undertaking to look at this again? Judges do not make these appeals lightly; they do so in the light of experience
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and, with all due respect, we have a tremendous fount of experience in the body of judges in the Court of Session and the High Court of Justiciary. Perhaps regard might be had to their experience and desire in the matter.
Lord FRASER of TULLEYBELTON: The noble and learned Lord the Lord Advocate rather suggested that the procedure is almost in desuetude. I remember one case when I was the judge and counsel for the defence was the present Solicitor-General, and this procedure was used, and worked very conveniently. So it is not an antique procedure.
Lord MACKAY of CLASHFERN: Certainly we would not lightly disregard any request from the judges, and in view of what has been said, I think it right that I should undertake to consider this matter further.
Lord WHEATLEY: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.50 p.m.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 64:
Page 83, line 25, at end insert—
(" () section 407(1A) of this Act in relation to imprisonment for non-payment of a fine or for failure to find caution;").
The noble Earl said: This is a drafting amendment. I beg to move.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 65:
Page 86, line 6, at end insert—
(" () In section 458 (construction of enactments referring to sentence of detention) for the words "in a young offenders institution" there shall be substituted the words "under section 207 or 415 of this Act".
() In section 459 (construction of enactments referring to detention) for the words "in a young offenders institution" there shall be substituted the words "under section 207 or 415 of this Act".")
The noble Earl said: These two amendments are designed to amend Sections 458 and 459 of the Criminal Procedure (Scotland) Act 1975 to cover detention in both a young offenders' institution and a detention centre, and thus to reflect the new provisions of Sections 207 and 415 of

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the 1975 Act on the detention of young offenders as inserted by Clause 44 of the Bill. I beg to move.
Schedule 7, as amended, agreed to.
Schedule 8 [Repeals]:
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 66:
Page 87, leave out lines 36 to 45 and insert in the third column ("Section 35(5)(a).

In section 37(2), the words "Borstal institution" in both places where they occur.").

The noble Earl said: This amendment is consequential upon Amendments Nos. 62D and 62E, to which I have already spoken. I beg to move.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 67:
Page 87, line 48, leave out ("in so far as it relates to section 19 of the Prisons (Scotland) Act 1952").
The noble Earl said: This is a drafting amendment. I beg to move.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 68:
Page 88, line 14, leave out (", section 12(1) or (3)") and insert ("(other than orders made under section 11, section 12(1) or (3) or section 22)").
The noble Earl said: This amendment is consequential to Amendment No. 62A. I beg to move.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 69:
Page 88, line 18, leave out ("subsection (3);").
The noble Earl said: This is a purely technical amendment. By the repeal of "(a)" in line 23 of page 88 the whole of Section 60(3) is disapplied to Scotland. It is therefore not appropriate to repeal Section 60(3) for Scotland, where it does not apply anyway. I beg to move.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 70:
Page 88, line 24, leave out ("and paragraph (d)").
The noble Earl said: This is a drafting amendment. I beg to move.
Schedule 8, as amended, agreed to.
The DEPUTY CHAIRMAN of COMMITTEES (Viscount Hood): The Question is, That I report the Bill to the House with amendments.
Baroness LLEWELYN-DAVIES of HASTOE: May I intervene again for one moment at this stage? This Committee stage has been discussed with great seriousness in all parts of the Committee. We have had an extremely good and serious debate, but I feel that noble Lords will wish me to point out to the noble Lord the Chief Whip that the Government have, in their great wisdom, withdrawn so many parts of the Bill and have listened to opinions from all sides of your Lordships' House—and I give them credit for listening with generosity—that I feel that there will be a great deal to go through at Report stage. I must formally inform the noble Lord the Chief Whip that we may well need an extra day on Report stage after these proceedings at Committee stage.
Lord DENHAM: Of course we are always ready to listen to the Opposition in any reasonable request that they may make. I think that my noble friends who have taken this Bill have naturally been grateful for all expressions of opinion about the Bill from all quarters of the House, and they will certainly be reconsidering everything that they have undertaken to reconsider. Of course we would wish that at the next stage of the Bill we shall give equal consideration to the views of your Lordships, and I think that between the usual channels we can work out that we shall do so.
House resumed: Bill reported with the amendments.