§ 3.27 p.m.
§ Further considered on Report.
§ Clause 42 [Punishment for murder]:
Lord McCLUSKEY moved Amendment No. 84:
Page 30, line 20, leave out from ("recommending") to end of line 23.
§ The noble and learned Lord said: My Lords, on behalf of my noble and learned friend Lord Keith of Kinkel I beg to move Amendment No. 84. My noble and learned friend is unable to be present because he is in court today and he has asked me to move this amendment on his behalf. Your Lordships will recall that in introducing Amendment No. 83 my noble and learned friend described this as purely consequential. Amendment No. 83 was designed to substitute a discretionary power for the mandatory provision in the Bill in relation to recommendations by judges in murder cases. It was carried by the House, and I trust that we have now seen the last of it. The Division on Amendment No. 83 ended the last proceedings on a happy note, and I hope that we shall make similar happy progress today. I beg to move.
§ The MINISTER of STATE, SCOTTISH OFFICE (The Earl of Mansfield)
My Lords, as the noble and learned Lord has said, this amendment is consequential to the previous amendment, No. 83, which was agreed to on a Division on the last occasion upon which this Bill was considered on 156 Report. Naturally, the Government are willing to accept this amendment as being consequential thereto.
§ On Question, amendment agreed to.
Lord McCLUSKEY moved Amendment No. 85:
Page 30, line 34, leave out ("under subsection (1) above") and insert ("as to the minimum period which should elapse before the Secretary of State releases that person on licence under section 61 of the Criminal Justice Act 1967,").
§ The noble and learned Lord said: My Lords, with leave, I wonder whether I might go slightly wider than this amendment and draw attention to this matter. Surely it follows logically, now that subsection (1) has been altered by the previous two amendments, that if the trial judge, exercising his discretion, makes no recommendation, then the appeal court should not make a recommendation, either. The appeal court cannot be better informed about the facts and circumstances of the case than the trial judge himself. It may be as well informed, but only if the accused has pled guilty, in which case there would be no appeal against conviction.
§ The other aspect is that it is quite wrong in principle, in my submission, to allow an appeal court, dealing with the merits of a conviction, to increase the sentence, which is what this subsection allows;the two should be quite separate. I know that it happens elsewhere, but it should not be encouraged, and it should certainly not be extended to murder cases. This is something which I would invite the Government to look at again. I shall not in fact press this amendment, but would ask the Government to consider this aspect. For the moment, I beg to move.
§ The EARL of MANSFIELD
My Lords, my recollection is—and I have not been able to look it up in Hansard in the short time that has been available to me since the noble and learned Lord moved his amendment—that the noble and learned Lord, Lord Keith of Kinkel, in fact took a slightly different view from the noble and learned Lord, Lord McCluskey, about this matter. Be that as it may, I think that while the Bill waits to complete its passage in this House, or more likely while it is waiting to go through its passage in the other place, this is a matter which the 157 Government should pay heed to. In those circumstances I would ask the noble and learned Lord to withdraw his amendment, at least at this stage.
The EARL of SELKIRK
My Lords, would the noble Earl look at a drafting error in, I think, line 30 of page 30?
§ Amendment, by leave, withdrawn.
§ Clause 50 [Recovery of fine or caution by civil diligence]:
§ 3.31 p.m.
§ The LORD ADVOCATE (Lord Mackay of Clashfern) moved Amendments Nos. 86, 87 and 88.
§ Page 38, line 23, after ("for") insert ("(or in the event of)")
§ Page 38, line 24, after ("failure") insert ("but before imprisonment has followed such imposition")
Page 38, leave out lines 25 and 26 and insert ("—
("(a) subsection (2) shall cease to have effect;and
(b) in the proviso to subsection (3), for the words "court has imposed imprisonment in default of" there shall be substituted the words "offender has been imprisoned in consequence of his having defaulted in".").
§ The noble and learned Lord said: My Lords, with permission I should like to move Amendments Nos. 86, 87 and 88 together. All three contribute to the achievement of a drafting change. The need for this change was raised by the Sheriffs Association who brought to our attention that, as drafted, this clause could be misread as permitting courts to proceed to recover a fine by civil diligence after the term of imprisonment imposed in default had been served. The intention of the clause is to empower courts to apply civil diligence after imprisonment in default has been imposed but not served. The purpose of these three amendments is to make this intention quite clear. I beg to move.
§ On Question, amendments agreed to.158
§ Clause 54 [Penalties for drunkenness]:
§ Lord MACKAY of CLASHFERN moved Amendment No. 89:
Page 39, line 35, at end insert—
("( ) after that subsection there shall be inserted the following subsection—
" (1A) A constable may arrest without warrant any person who he has reasonable grounds for suspecting is committing an offence under subsection (1) above.";and")
§ The noble and learned Lord said: My Lords, the purpose of this amendment is to make clear that the police have power to arrest a drunken person without warrant, under Section 70 of the Licensing (Scotland) Act 1903. This is necessary to ensure that Clause 5, which empowers a constable to take a drunken person to a designated place instead of arresting him, can operate, since it is not clear whether the police have common law powers of arrest in such circumstances. The 1903 Act currently provides that certain types of drunken offender "may be taken into custody by any constable;" the amendment updates the wording and extends the scope of the power to cover all types of drunken offender mentioned in Section 70(1) of the 1903 Act. The principal purpose here is to make it possible to apply the powers of Clause 5 in the Bill to all such persons. I beg to move.
§ On Question, amendment agreed to.
§ Clause 67 [Alcohol on vehicle travelling to or from sporting event]:
§ 3.35 p.m.
Lord LYELL moved Amendments Nos. 90 and 91:
Page 45, line 2, after ("shall") insert (", subject to section 68A of this Act;")
Page 45, line 8, leave out subsection (2).
§ The noble Lord said: My Lords, it may be for the convenience of the House if I address myself to Amendments Nos. 90 and 91. If the House agrees to that, I wish to say one or two words about these two amendments. They are first in a number of amendments which deal with the liability of the hirer of what we might call a coach;secondly, with the public service vehicle licence holder;and thirdly, with his employee or agent. These particular circumstances occur in all cases if 159 alcohol is carried on a coach travelling to or from a designated sporting event. Our aim in tabling these amendments has been to ensure that the clauses make clear the extent of the liability on these individuals to prevent alcohol being carried on such coaches.
§ The particular position of the driver, who will normally be the employee of the public service vehicle licence holder, was, as your Lordships will be aware, the subject of some considerable discussion during the Committee stage of the Bill. We on this side undertook to look again at these provisions to see whether the liability of the driver could be made more explicit, and also to provide a clear defence for the driver. We shall be dealing with the driver shortly.
§ In considering these points we have looked again at the defence which was available under Clause 67 to the hirer of a coach on which alcohol was carried, and we concluded that this too could he improved. As presently drafted, the hirer would be guilty of an offence under Clause 67 if he knew that alcohol was carried on to a coach even though he had exercised all due diligence to prevent such carriage. On reflection, we would feel that this places an unreasonable burden on the hirer who, in all cases, would have done everything he reasonably could have done to prevent the carriage of alcohol on his coach but, through no fault of his own, had been unsuccessful in this attempt and in this particular case.
§ Accordingly, we think it right that he, the hirer, should be able to avail himself of the proposed defence under new Clause 68A. We shall presently be addressing your Lordships' attention to this. The defence that we are speaking about now recognises that it is not simply the individual's knowledge of whether or not alcohol has been taken on board the coach, but his involvement in what took place which has to be considered. If he, the hirer, knew that alcohol was carried on to the coach but took absolutely no steps whatever to prevent such carriage of alcohol on his coach, then we think it right that he should be liable. Similarly, if he took no steps to prevent the carriage of alcohol on his coach and consequently was unaware that alcohol was on board, again we think it reasonable that he should be liable.160
§ But on the other hand the conscientious club secretary who has done all he reasonably could to see that alcohol is not carried on the coach, but does not for some reason or other succeed in this and then becomes aware of that fact, we believe cannot be said to have consented or connived in the carriage of alcohol on the coach, and therefore should not be guilty of an offence. I am afraid that this explanation is rather detailed, but I hope that your Lordships will see the merits of the change and that the House will see its way to support these two amendments. I beg to move.
§ Lord McCLUSKEY
My Lords, I think that it would be fair to say that one cannot look at Amendments Nos. 90 and 91 without looking at the associated Government amendments, Nos. 92, 95 and 96. I think that Amendments Nos. 90 and 91 pave the way for the others. The principal amendment is No. 96, and it certainly goes some way to meeting a number of the points made at the Committee stage. However, I ask the House to accept that it does not really go far enough.
There are a number of aspects. The linchpin of Part V is the concept of a designated sporting event;in other words, people commit offences when they are hiring, or sending, or driving vehicles to and from designated sporting events, and surely the defence ought to include the accused's ignorance that the particular event has been designated. After all, it is possible under Clause 66 to designate a sports ground, a class of sports ground;but it is perfectly possible for the Secretary of State to make an order designating a particular sporting event. That does not make it a matter of law and therefore there is no reason why the particular driver should have knowledge that an order has been made.
I should have thought that if the driver was unaware that the event was designated, then he ought not to be convicted of the offence of driving to such an event a coach with people having alcohol in their possession. I should have thought that the Government could consider at a later stage, either here or elsewhere, adding to the new Clause 96 words to the effect:or that he was not aware that the sporting event to or from which he was conveying passengers had been so designated".161 That is one aspect. Another point which has not been made clear in response to the criticisms made in Committee is what is exactly covered by the words:he did all he reasonably could to prevent such carriage".The point was made—and I repeat it because I feel it has not been properly dealt with—that the driver may, for example, discover in the course of the journey that some passengers are carrying alcohol. Must he try to confiscate it;must he stop the vehicle and ask them to get off;or must he go on committing the offence until he reaches a policeman and tells the police that an offence has been committed by himself? If he confiscates the alcohol, is he entitled to lock it away until he completes the return journey? Indeed, is he bound to do that? So it is not at all clear, and I think a driver faced with these words cannot know what he has to do in a situation when he discovers that alcohol is being carried by passengers on his vehicle.
Next I direct your Lordships' attention to the new clause, which in effect replaces the subsection taken out by Amendment No. 91. The words include the phrase "without his consent or connivance". I should have thought that the word "connivance" was included and embraced by the word "consent". You could hardly connive at something if you did not consent to it and certainly it must be embraced in the words, "without his consent and doing all he reasonable could", and I wonder why one must have that word in at all.
My next point arises to some extent out of what the noble Lord, Lord Lyell, said. I am also puzzled as to why this defence is available to the offender referred to in Clause 68(1), who, being the holder of a PSV licence—by himself permits alcohol to be carried in the vehiclebecause in Smith of Maddiston v. Macnab, which is the leading authority in Scotland, decided by a court of nine judges, reported at page 86 of the Scots Law Times in 1975, the court repeatedly made it clear that a necessary ingredient of permission in this context is knowledge not only of the use but of the fact that the use was in contravention of the relevant regulation. Given that, one wonders why one needs to make this defence available to a person who has to be 162 proven by the Crown to have "permitted" in the sense in which that word was interpreted in Smith of Maddiston v. Macnab, and indeed much the same argument applies to the employee and agent. There are other aspects of this which will no doubt arise in relation to Amendments Nos. 93 and 94, but at this stage I would ask the Government to reply to these matters and certainly to consider them before the Bill takes its final form.
§ Lord LYELL
My Lords, perhaps it would be in order for me to reply fairly swiftly to the first point raised by the noble and learned Lord, Lord McCluskey. I had not covered Amendments Nos. 92, 95 and 96 in my remarks;I thought that probably I had wearied your Lordships long enough on the first two amendments, which were in the style of paving amendments, as the noble and learned Lord rightly pointed out. He went on to refer to Amendments Nos. 92, 95 and 96. The first comment the noble and learned Lord made was about the linchpin of our amendment being designation of an event. We see the merit of what he said, in that, so far as I am aware, guidelines are already available, not necessarily for the transport authorities, but there are thoughts already as to which events should be designated events, and I hasten to reassure the noble and learned Lord about the events to which he was referring when he was last with us, either in Committee or on Second Reading, when he spoke of Murrayfield;that is not yet scheduled to be a designated event, but we see that there is merit in what he said and we shall certainly look at that point.
As for the second, third, fourth and, I dare say, fifth points he raised, I shall try to cover those, and perhaps he and the House will consider what I have to say when I come to move those amendments. I have taken careful note of what he said in relation to Smith of Maddiston v. Macnab. I recall that it is nearly three years ago since the roles were reversed and I was firing similar cases at the noble and learned Lords, Lord Elwyn-Jones and Lord McCluskey, on the Patents Bill. We got into similar difficulty, having to go and look up cases, but I give the undertaking that we shall look at the particular case to which the noble and learned Lord referred.
§ On Question, amendments agreed to.163
§ Clause 68 [Liability of vehicle licensee and him employees and agents]:
§ 3.46 p.m.
Lord LYELL moved Amendment No. 92:
Page 45, line 15, after ("carriages),") insert ("but subject to section 68A of this Act,").
§ The noble Lord said: My Lords, with the permission of the House I shall speak at the same time to Amendments Nos. 95 and 96. When discussing Amendments Nos. 90 and 91, I referred to the debate in Committee on the position of the employee or agent of the PSV licence-holder under Clause 68 and the undertaking I gave then, which I bring forward again today, to reconsider how the liability imposed by the clause affects the driver of a coach carrying football supporters to or from a designated match. These amendments to Clause 68 and the insertion of new Clause 68A are the results of that undertaking. The effect of these provisions would be to replace the existing defence in subsection (2) of Clause 68 which applies only to the PSV licence-holder who is charged with an offence of "permitting" alcohol to be carried on his vehicle by virtue of the actions of his employee or agent, with the new defence in Clause 68A. The new defence would extend not only to the licence-holder but also to his employee and agent, which will of course include the driver.
§ The criticism that was made of the clause as presently drafted was that it did not make explicit our expressed intention that the individual who had done what he could in diligent fashion to prevent alcohol being carried should not be found guilty of an offence. The new Clause 68A should now make this clear, for it provides it shall be a defence for a person charged under Clause 68 (or, as I have already explained, for the hirer under Clause 67) to prove that he did not consent to or connive in the carriage of alcohol and that he did all that he reasonably could to prevent such carriage. What is reasonable will of course depend on the circumstances: for the coach operator it may mean giving proper instruction to his employees as to the precautions to be observed when passengers are being picked up;for the driver who discovers in mid-journey that alcohol has, despite his precautions, been carried on to the coach, it may mean waiting until a suitable opportunity to stop 164 the coach presents itself when he can ask that the alcohol be removed. It will be for the courts to apply this general provision in a sensible manner in individual cases as they arise. I trust that these amendments meet the difficulties which were envisaged by noble Lords when last they considered Clause 68 and that they will give their support to these changes.
§ The noble and learned Lord, Lord McCluskey, asked me specifically about the use of the words "consent or connive". I understand that "consent or connivance" is the phrase used in Section 92 of the Licensing (Scotland) Act 1976 in relation to the carriage of alcohol on coaches, and the carriage of alcohol in that particular Act is defined as being in crates, or at any rate it is in considerable quantities. I understand that that particular term, "consent or connivance", is deemed to be relevant in that Act, and therefore we believe that it is relevant here. I beg to move.
§ Lord TEVIOT
My Lords, bearing in mind that we are on the Report stage, may I say that the noble and learned Lord, Lord McCluskey, spoke briefly to this type of amendment earlier, and I wonder whether he is aware that I have also tabled Amendments Nos. 96A and 96B. They were too late to be included in the last Marshalled List. I have the new Marshalled List today, and I wonder whether the noble and learned Lord has details of these amendments.
§ Lord TEVIOT
In that case, my Lords, I should now like to speak to my amendments. First, I am very grateful that the Government have seen fit to move the new clause, Clause 68A, but my one criticism of it is the inclusion of the word "all". If the driver is asked to do "all" that could be expected of him, that would put rather too much on his shoulders. My amendment provides that:…he did that which could reasonably be expected of him,and in those circumstances he could use his own common sense.
I should like to give one brief example of what I have in mind. A driver may be 165 driving along, say, the A.76—not a motorway, because he could not pull off—which is where this kind of thing could happen. He notices in his mirror a person or persons drinking, and he pulls off the road. If he has to do "all" that is expected of him he would virtually have to try to throw the people concerned off the coach, which would be very difficult, and probably a fight would ensue. But if the word "all" is not included in the new clause the driver could use his common sense. With that in mind, I hope that the Government will accept my wording, and that the noble and learned Lord, Lord McCluskey, and other noble Lords will accept it, too.
§ Lord ROSS of MARNOCK
My Lords, we are at a slight disadvantage here because we are talking about new Clause 68A even though we have not yet come to it, and——
§ 3.53 p.m.
§ Lord ROSS of MARNOCK
Yes, my Lords, but with all due respect, even the noble Lord cannot change the rules of order. The amendment cannot possibly be moved before due time;I think I am right in that respect. We are jumping over what I regard as other relevant amendments. I am not entirely happy with Clause 68A, and I suppose that as everyone else has been discussing it I might as well have a go, too. I am not entirely happy that the Government have not seen fit to remove the phrase, "employee or". If the noble Lord recollects the discussion that took place at the previous stage of the Bill, he will know that very considerable objection was taken to the word "permits";yet that word is still included. I do not think that your Lordships were entirely satisfied with regard to what was expected of the driver in the particular circumstances of the bus going along the road. What are the new words now?—" without his consent or connivance". Let us suppose that in the first instance the driver had not consented or connived, but had done all that he reasonably could to prevent there being alcohol on the bus, but then sees someone 166 drinking on the bus. What happens thereafter? If the driver carries on, he is somehow or other agreeing, consenting to the carriage of that alcohol. Whether he likes it or not, he must stop the bus. What does he do then? There is not always available someone to whom he can hand over. This is one of the difficulties that has come out of consideration of this question.
I am as anxious as anyone to try to get some amelioration of the position. In fact, I think I should declare an interest: I am the honorary president of the Scottish Football Association, and the Scottish Football Association agrees in principle —I emphasise in principle—with what is being done here. But whether what is proposed will be enforceable or will make any sense, I am not entirely sure;that is my opinion, not the opinion of the Scottish Football Association. One thing I am sure about is that we are increasing the problem very considerably. If the noble Lord will look at the report by the McElhone Working Party, he will see figures that show that there is more of this kind of trouble on a Saturday night than on a Saturday afternoon. Indeed, so far as some of the incidents are concerned, more of them take place in England than in Scotland. So I say: look out England for what is coming to you if you are going to vote for this!
I believe that the responsibility should be on the person who hires the bus. It is for his convenience, and he should keep the law and should see that it is kept by the people to whom he sells tickets. The driver does not sell tickets to anybody. He is provided with the bus, and all he does is drive it—nothing else. I should have thought that when a crowd of people are being taken to a football match it is a big enough responsibility merely to drive the bus. They must not take any drink with them, but I do not know whether noble Lords appreciate that many of these buses which are hired for football matches leave from public houses;oh yes, some of them do. So they already have plenty of drink aboard without more drink having to be taken aboard. "They were no' fu', but just had plenty"—and that can lead to the bus being fairly noisy without it being troublesome. Seemingly, the driver, who already is faced with a distraction as he goes along the road, must look out 167 further for alcohol. That is not at all fair. The responsibility should be placed on the person who hires the bus to steward it, first, to ensure that there is no alcohol being carried by anyone, and, secondly, if alcohol is discovered, to remove the person concerned.
With regard to the actual words, I think that my noble and learned friend Lord McCluskey and the noble Lord who spoke previously have questioned the phrase,…all he reasonably could do to prevent such carriage".The driver may think that what he has done was reasonable. Mind you, my Lords, I do not think that it is reasonable to lay this burden on him at all;he is just driving the bus. It is not a case of what he considers to be reasonable, but what the court eventually considers to be reasonable;and that might be very different. After all, we have different standards. You can do what you like if you are going to Murrayfield. You can bring as much drink as you like with you in the bus, or in your pocket, or anywhere else. It is not a designated event. I do not know who asked this question, but there is class distinction here. I do not go to Murrayfield—well, occasionally I am invited, and occasionally I go. I seldom go to Edinburgh as a matter of fact. But I think that the great majority of sports spectators go to football matches. But here we are with 80,000 people in Murrayfield and as much "booze" as you like;90,000 people in Hampden, but not a drop. Does the noble Lord believe that that will happen? I do not think that it is enforceable.
The provision is not enforceable, and we are tending to make fools of ourselves when we go even further and place responsibility for enforcement not on the police, but on the poor driver. It is not good enough. So although I am prepared to agree to the amendments that the noble Lord has moved so far, and even to his new clause, I still think that employees should be excluded, and I shall gladly move an amendment to that effect when we come to it.
§ Viscount MASSEREENE and FERRARD
My Lords, the noble Lord who has just spoken is not being practical. 168 I have had experience of this because a lot of buses come to my banquets. The driver of a bus might stop halfway and the occupants of the bus might buy a lot of drink in a pub and take it on to the bus. This in fact frequently happens. That is the driver's responsibility;he should be responsible for that. It is wholly unfair to put the blame on the employer or the agent, or the man who hires the bus, because he cannot be there. He cannot see that the occupants of the bus do not go into a pub and buy drink to take on the bus.
§ Lord ROSS of MARNOCK
My Lords, what I suggest is that the responsibility is his and that he should put an agent on the bus to ensure that the requirement is carried out.
§ 4.1 p.m.
§ Lord MISHCON
My Lords, I wonder whether I may be permitted to intervene because I myself tried, in a humble way, to deal with this matter at the Committee stage. I then submitted that we were not dealing realistically with the circumstances that would be bound to obtain in many cases if this clause were to be operative. It is not quite the situation of guests being conveyed to the noble Viscount's table in regard to any banquet which, in his generosity, he might be prepared to give. I tend to think that the noble Viscount would be extremely selective in his guests;and, indeed, he has been so selective so far that I have not been included in their number. But, of course, this is a situation which I ask the House to face realistically.
The bus has one driver. He is employed to do one thing and one thing only, which is to convey the passengers in safety to a football match or to some other designated sporting event. If one creates a criminal offence, it is the tradition in England. in Scotland. in Wales and in Northern Ireland that the offending action is done seriously, with adequate thought, and in most cases it is taken for granted that there must be some guilty conduct on the part of the person who it is said commits an offence.
The question has been posed, and not yet answered: What is the poor driver to do if, in the midst of his journey, and if he has just got the time to arrive at the match, he sees in his driving mirror some- 169 body diving into a pocket and removing a bottle which looks as though it contains alcohol? Under this clause, is he then to brake the vehicle, stop in a safe place, leave his seat, inspect the bottle and, in as polite language as drivers of buses are used to employing, require the passenger concerned to remove either himself and the bottle or at least the bottle, if not himself?
May we for a moment take it, not unreasonably, that the polite invitation is declined. What then happens? There will presumably be a riot on the bus if the driver says, "Will you kindly look at Section 68A, which the House of Lords, in their wisdom, passed in March 1980?" Are we to imagine that the driver then says to the passengers, "I am sorry, but unless this person gets off it may be held that I am not acting reasonably;and I am consenting or conniving if I go on driving this bus "? We are asking for an absolutely Gilbertian situation, and I submit to your Lordships that this is an impossible burden to cast upon any driver of a bus, especially one going to a sporting event.
All I can say is that if this argument of mine—and I am merely adopting what others have said in this discussion—is not acceptable, then the very most we ought to do here is to have an offence limited to somebody who directly consents or connives. We should not then cast a burden upon the driver to act reasonably in the circumstances, because one just does not know and cannot imagine what the reasonable conduct is supposed to be. Also, as my noble friend Lord Ross has said—and we dealt with this in Committee—one ought not to use the word "permits";one ought to use the word "authorises". There is a world of difference between those two words.
§ Lord RENTON
My Lords, although to my mind there is a good answer to the case put forward by the noble Lord, Lord Ross of Marnock, and the noble Lord, Lord Mishcon, I think it would be better if the answer to it came authoritatively from the Front Bench instead of less authoritatively from me. Therefore, I wish to confine myself to the point made by my noble friend Lord Teviot. On the assumption that the driver is going to remain liable under this clause, 170 I think we should be quite sure that the defence which we are making available to him is one which he could establish as easily as possible, and to the extent that it is easily established it would of course answer pro tanto the points made by the two noble Lords.
The point which my noble friend Lord Teviot has made may seem to be a very fine point, but I think it is a point worth considering, more especially as, as I understand it, the law relating to the onus of proof in criminal cases in Scotland is the same as in England;that is to say, although a statutory defence may be made available to the accused, the burden of proof at the end of the day is upon the prosecution. But in the course of the case the accused will have the opportunity to raise his defence to what may seem at first sight to be a strong prosecution case against him, and if we make that defence one which can easily be established, then there is less likelihood of conviction. But if we are going to make it a case which is difficult to establish, in the way that my noble friend Lord Teviot has suggested, then at the end of the day the prosecution are more likely to win out. Although it is a narrow point I think that, in the circumstances, it is one which the Government would do well to consider;and, as I have said already (but make no apology for emphasising), we must consider this point in the light of the fact that the burden of proof is always upon the prosecution ultimately.
My Lords, I rise to support my noble friend Lord Teviot and also the noble Lord, Lord Renton, because I have serious misgivings with regard to Amendment No. 96. I am concerned that, if one asks a man to prove that he did all that he reasonably could, it places a greater burden on him than if you ask him to prove that he did that which could be reasonably expected of him. I am also rather puzzled as to why the Government have departed from the wording that they used in Clause 68(2), which I think is a far better test, and simply stated:…it shall be a defence for him to prove that the alcohol was carried on the vehicle without the holder's knowledge and that he exercised all due diligence to prevent such carriage".That, from the drafting point of view, seems more satisfactory. I am also con- 171 cerned about the use of the word "connivance". I cannot see how the bus driver could possibly connive without giving consent, or consent without conniving. I am concerned about the word "connivance" merely on the grounds of necessity. I should be grateful for guidance on that point.
§ 4.10 p.m.
§ Lord McCLUSKEY
My Lords, the noble Lord is concerned about the words "all he reasonably could". So am I. If I may give a further example, once every two years, about 30,000 Welshmen come to watch their team play rugby at Murray-field. They will be coming not to attend a designated sporting event, as I understand it. Close by is Tynecastle where the Heart of Midlothian club play football or, in the view of some, attempt to play football. Large crowds of people go towards both grounds from time to time on the same day. It commonly happens that many thousands of Welshmen who cannot get in at Murrayfield instruct their drivers to take them to Tynecastle. If Tynecastle is host to a designated sporting event, it means that the driver is engaged on a journey, the principal purpose of which is to convey Welshmen to and, subsequently, from a designated sporting event. In these circumstances, what is his duty? What can he reasonably do to these Welshmen, most of whom have been in Edinburgh for four or five days enjoying the local wine? They could be a difficult crew to handle. Is he reasonably required to say, I will not take you to Tynecastle "?
I make this as a serious point. It is a point which the Government must consider. It relates in a sense to our Amendments Nos. 93 and 94, on which, I hope, we shall have the support of the noble Lords, Lord Teviot and Lord Morris. If these were carried, maybe many of these problems would disappear. For the moment, I would reiterate the view in relation to Amendment No. 92 that the Government have not thought this properly through.
§ Lord LYELL
My Lords, may I say to my noble friend Lord Teviot that I will come to his point;I have not forgotten him. May I start with Amendments Nos. 93 and 94? The House will be 172 fascinated to hear of the appointment of the noble Lord, Lord Ross, as vice-president or vice-chairman of the Scottish Football Association. But all noble Lords who have spoken betray the inbuilt fault of Scottish footballers: they put far too much work on the ball. They have argued round the case very considerably and have raised a number of points. Starting with Amendments Nos. 93 and 94, to which, I think, the noble Lord, Lord Ross, was addressing himself at the beginning, it seems that these amendments are the same as those put down by the noble Lord and the noble and learned Lord, Lord McCluskey, at Committee stage. I am sorry they were not satisfied with the replies we gave them then.
We believe that Amendments Nos. 93 and 94 are intended to excuse from all liability for his action the driver of a coach who consciously allows his passengers to take alcohol on to his coach. We believe that if we allow these amendments a driver could easily allow, permit, authorise or tolerate the carriage of fairly large amounts of alcohol—and, as we have heard from Lord Ross, alcohol might already have been consumed in his coach before he set off.
I indicated during Committee stage that we regarded as absolutely unreasonable the failure by the driver to take even such action as to inform the passengers, the hirer, the organiser or the club secretary of the legal ban on taking alcohol on coaches. We believe that it is justifiable to ask the driver to take what steps would be agreed by any court—and this is not a narrow legal point—to prevent the carriage of alcohol on his coach. To take one example, he can watch the passengers as they get on and draw their attention to the ban on alcohol on such journeys. I took close advice over the weekend and today of friends of mine who go to matches in Scotland on buses in the way described by noble Lords. I understand that a very high proportion of coaches going to what will be designated events start from public houses. However, I was given to understand that the passengers on these coaches are told by the club secretaries—and the drivers had instructions on this before this Bill was discussed in this House—that alcohol is not to be taken on the coaches. I am sure that the noble Lord, Lord Ross, and the noble and learned Lord, Lord 173 McCluskey, and most Scots will be aware of the geography of Scotland's football matches. These are the matches at present considered as designated events. The only long journey involved is when teams from Glasgow or Ayrshire, or perhaps Kilmarnock, go to Aberdeen or Dundee, which is a three-hour or four-hour journey.
As I understand it, these coaches, if meeting at a public house or at two or three stopping points, will pick up passengers before opening time and, therefore, the passengers have not had the opportunity to take on board so much as was described by the noble Lord, Lord Ross. The coaches may stop for a brief interval on the way to the match and, once the coaches enter the city or town where the match is to be held, the police will take care to see that the coaches are parked and that the supporters get to the match. The coaches may stop for a short while on the way home if it is a particularly long drive. I am given to understand by the coach operators that the average length of coach journey is under 1 ½hours and, therefore, there would seem to be no necessity to take on alcohol for refreshment or aliment.
My Lords, I think for these reasons, the inclusion of the driver in the protection of Clause 68 is a necessary element in making the provisions of the clause work. We recognise the difficulties with which a driver may be faced. They have been instanced by the noble Lord, Lord Ross, and others. In this clause, we have provided him and the others—the hirer and the coach operator—with an appropriate and, we believe, excellent defence. It is in the nature of that defence that the driver cannot be expected to do more than is reasonable. We fail to see how such a limited requirement could be regarded as unduly onerous.
My Lords, I now address myself to the problems that have been raised by the noble Lord, Lord Ross, by my noble friend Lord Teviot and by the noble Lord, Lord Mishcon, as to what a driver should do if, having taken reasonable precautions —and I do not mean body-searching or anything like that—and observing passengers as they get on, he finds that somebody brings alcohol out of his pocket. If the driver becomes aware that there is alcohol on the bus, be it one or two cans of beer 174 or a bottle of any size, or if he reasonably suspects that to be the case—he might be concentrating on driving and he hears songs or spillage of liquid—then we would think that he must take reasonable steps to prevent the carriage of that alcohol.
In the case of discovery before he starts, probably he will be entitled to refuse to start until the alcohol is removed. The wording of the statutory defence is likely to be interpreted to require a driver to take reasonable steps if he discovers alcohol after the start of the journey. What is reasonable will depend on the circumstances. It would not be unreasonable for the driver to continue the journey since to stop would be to strand vehicles. My noble friend Lord Teviot mentioned the A.76 road. I cannot say that I am entirely familiar with that road. I am familiar with the A.94. My noble friend Lord Mansfield is very familiar with other roads in and around Perth which carry large amounts of football traffic at the weekends and, on some nights, mid-week.
If a suitable opportunity presents itself, then the driver would be expected to take that opportunity and ask that the alcohol which he found on the bus should be removed. Given the opportunity, if they are going on a long journey, say to Aberdeen from the West of Scotland, probably the driver would be expected to stop, and when he does stop he would make known his objections to the hirer, the club secretary;and if he finds that his objections are not met, probably he ought to report the offence to the police.
That does not mean that he has to make a great detour. If he stops at any roadside restaurant or milk bar (which would not necessarily sell alcohol) he probably can inform the police ahead as to where he is going;or if he was going to telephone the police and believed there was going to be a disproportionate reaction, then probably he should get in touch with his employer for further instruction. Reasonable steps, we believe, can only be settled by the courts. We have to emphasise that it is not so much what is or what is not reasonable which we are discussing, but this will be dependent upon the circumstances of each particular case which is brought to the court's notice. Any attempt to lay down laws in your Lordships' House of all places when we 175 are dealing with coaches going over Scotland to football matches, and giving absolute guidelines at this stage, we believe might place a driver in a position where he considers he has to follow a course of action, come what may, in order to avoid liability, even though that course of action was inappropriate and unreasonable. We do not think that any driver should have to do that.
§ Lord LYELL
My Lords, I have not sat down. If the noble Lord has a point to raise, he will I am sure remember that all of us—myself included—are allowed to speak just once. I understand that I am allowed to speak with the leave of the House. The House has been hearing me for quite a while;but if the noble Lord has a point, will he raise it? I was going on to the point raised by my noble friend Lord Teviot.
§ Lord MISHCON
My Lords, with the leave of the House, I intervene only so that the House gets some clarification. If the noble Lord opposite were to spend his time lecturing to the Transport and General Workers' Union in Scotland in regard to their duties under this clause, I think that we would be denied the pleasure of his company and his participation in our debates for a very long time. I am afraid that the House has heard so far that there have been many examples of what a driver might be expected to do. Presumably on short journeys he is expected not to stop;and on long journeys he is expected to stop. Would the noble Lord, before he finishes with the point, indicate what certainty there is in regard to this clause so that the average, sensible driver would know what was expected of him?
§ Lord LYELL
My Lords, the only advice I have from the qualified experts is that the driver would be expected to do what he normally would do—what is reasonable as a driver. I do not know whether there are crowds of alcoholic persons going around to other functions or that—dare I say it?—women's rural outings devolve into incredible orgies. I do not think so. But I should think the driver has some experience of driving 176 coaches—and we are trying to suggest that certain events will be designated—and the driver would have a good idea of what he ought to do, both before the passengers get on to the coach and once they are on it. If he discovers that the law is being broken, he would know what to do. If it was a short journey, when he pulls in at the end, the police probably will be directing him to his parking spot. If there is trouble, the police will go towards that coach very quickly, and the driver can point out that when he started off on his journey he took reasonable steps. He would be able to make his case to the police. After all, it is the police who are giving evidence to the court that is deciding what is and what is not reasonable in each particular circumstance. I hope that that would give some guidance to the noble Lord.
I do not know whether the noble Lord, Lord Mishcon, drives a coach in such circumstances in Scotland, taking crowds of supporters to football matches. I have not yet had experience of it—I may have in the future;I do not know. I suspect that a reasonable driver would know what to do and would be able to take action were this Bill to come into effect. That would take care of that particular case.
My noble friend Lord Teviot has been waiting——
§ Lord WIGODER
My Lords, before the noble Lord comes to Lord Teviot's point, would the noble Lord allow me to mention one other matter? It is this: Am I right in thinking that under the proposed new clause the burden will be on the driver to prove, on the balance of probabilities, that he has taken the action that is required? Secondly, the noble Lord keeps saying that the question would be: Has he taken reasonable steps? Under the drafting of the clause, would he not have to show that he had taken all reasonable steps? And if he had failed to take one reasonable step he would still be liable to be convicted.
§ Lord LYELL
My Lords, I do not think that that is the case. I am given to understand that it is not the interpretation of this clause that the driver would have to prove his innocence. I do not know how many steps a driver might have to take which would be regarded as reason- 177 able. I think I gave one example of what a driver might do to find himself liable under the clause: that he could see large amounts of alcohol going on board a coach, and did nothing. If these two amendments, Nos. 93 and 94, were accepted, I understand that the driver would be totally exonerated.
I have mentioned several examples to show that the driver would not have to make a detour. If the coach was making a scheduled stop he should draw the fact to the attention of both the club secretary and the police. If he told the club secretary, and the club secretary—being the hirer of the coach under Clause 67—told him that it was none of his business or showed other disregard for the law, probably the driver ought to ring the police because the driver would know that it was an offence.
I should have thought that that would be a reasonable example. I hope that we do not make too much of all this, what the driver reasonably could do, which will be Lord Teviot's amendment. We think there would be two or possibly three things that the driver might do—or perhaps should do—I refer to a driver who, after all, is not a complete amateur, who is driving coaches certainly as a career and would know and would be able to deal with such cases.
If I may briefly reply to my noble friend Lord Teviot, the House will have listened with interest to his explanation of the change he would want to make into the nature of the defence in Clause 68A, by means of his amendment. I want to emphasise to my noble friend very strongly that the onus to prove that the licence-holder, his employee or agent permitted the carriage of alcohol on the vehicle lies squarely, as in all criminal cases in the United Kingdom, with the prosecution;but where the prosecution has proved that the defendant has permitted, tolerated, authorised or allowed the carriage of alcohol on his coach, he will still not be convicted in all these cases if he can show that in the terms of the Government's new Clause 68A he did not consent or connive in so doing and did all he could to prevent the carriage of alcohol.
This does nothing to detract from the prosecution's responsibility to prove that 178 the defendant did not take these steps and that he permitted alcohol to come aboard his coach. As Clause 68A is now drafted, we believe that it provides the driver, and indeed any other persons who have a duty to prevent the carriage of alcohol on the coach, with a full and adequate defence. It meets the points on which my noble friend and other speakers opposite expressed concern earlier. The amendment now before us seeks to amend the defence available to the coach driver by giving him a defence of doing all that could reasonably be expected of him. With all respect to my noble friend's argument, I cannot accept that in practice—this is in the law courts, and not in the matter of driving a bus—it adds anything to the clause as it now stands;nor would we expect the courts to interpret the two formulations, that is, in Clause 68A and in my noble friend's amendment, differently. I submit that my noble friend's amendment is a little more cumbersome and that by framing it in a slightly oblique way we believe that it is very likely to cause confusion. We believe that Clause 68A, as it stands, is simpler and more readily understood both by the public and by the courts. What is particularly important is that it provides just the defence that my noble friend is seeking and indeed that which the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Ross, have sought not only for the driver but also for anyone else who is concerned with taking coaches to designated events.
§ Lord TEVIOT
My Lords, with the leave of the House, is my noble friend aware that that is a classic case this afternoon of taking too many amendments at once. I hope that we shall all be able, when we are moving our amendments, to explain our own points because they are relevant to their own issues. I am grateful to my noble friend Lord Lyell for having explained all, so that when we do make our own speeches we can adjust them accordingly. There is one point I should like him to make clear to me, which I am afraid is not clear at the moment. He has told me, and I think that he has also told the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Ross of Marnock, what sporting events are and the difference between soccer and rugger. Perhaps my noble friend at some time could say what the 179 Government's intentions are about "sporting events". It would then be much clearer to us all.
§ Lord GLENKINGLAS
My Lords, I wonder whether I might ask my noble friend to clear up what to me is becoming steadily a more complicated and difficult issue. I can easily understand that it could be put on the driver to take all reasonable care that alcohol is not carried on to the bus. That is something which, if he is not expected to search people, he can do with reasonable confidence;but it is not impossible to imagine that certain enthusiasts for one side or another might slip a number of hip flasks into their pockets and would therefore be carrying alcohol on to the bus. That seems to me to put an intolerable burden on the driver, but if I understood my noble friend's last explanation of the situation, it was that, provided the driver had taken all reasonable care to prevent alcohol coming on to the bus, if alcohol was found to be there he would not be held responsible because he had in fact taken all reasonable care to see that it was not there. If that is so, are we not all barking round a considerable number of different trees?—because in spite of all the problems about what a driver does when he sees that somebody has got alcohol, he is not then responsible because he did take all reasonable care to see it was not there. He does not have to stop or to do anything at all. He is perfectly free to drive the bus until it gets to its destination. Am I wrong?
§ Lord LYELL
My Lords, with the leave of the House, it seems rather like the curate's egg: Yes and No in various parts. The noble Lord is right in saying that the driver should continue if he discovers that alcohol is on board the coach if it is a reasonable thing to do, and if the driver could take steps to have the alcohol put off the coach, then, No, he is not allowed to continue.
So far as designated sporting events are concerned, which were mentioned by my noble friend, Lord Teviot, I understand that this is left as a fairly wide designation at the moment because the Secretary of State may wish to include certain events which have had a bad record in the past over alcoholic crowds. At the moment 180 I understand the designated sporting events are liable to be football matches played under the aegis of the Scottish League at all Scottish League grounds, with the exception, as I am sure the noble Lord, Lord Ross, will be aware, of Berwick. Berwick, of course, lies in England and all matches played there will not be designated matches. That is the guidance I have received so far.
§ On Question, amendment agreed to.
§ 4.37 p.m.
Lord ROSS of MARNOCK moved Amendment No. 93:
Page 45, line 18, leave out ("employee or").
§ The noble Lord said: My Lords, it is suggested that I should speak briefly. I do not know why I should now be penalised after listening for so long to the noble Lord the Minister answering my speech before I had made it. In fact, when he talked about taking drink on to buses, we appreciate of course that this is against the law at the moment. The limit at the moment is six pints. But you can take on what you like on your person.
§ I think it was appreciated when last we legislated in, I think, 1975 in respect of this how difficult it would be to place an obligation upon anyone without giving them the right to search—and remember that we are giving the police the right to search. probably when the passengers are coming out of the bus or it may be when they are going on to the bus: I do not know. But we have not given the right to search to the driver, to an agent, to a club secretary or the like. They may take it upon themselves but it is a very difficult task. However, that is the law at present: what we are concerned about here is the change in the law which really prohibits taking any alcohol at all. I do not suppose it is covered even by the medicinal definition, so that it really is asking far too much for anyone else now to place the onus where it has not been before, an onus which was not there before because it was felt unfair and almost impossible to comply with it.
§ The noble Lord spoke about pub hours —"Don't worry, because the distances are such that buses will have to start before the pubs are open". Does he know when off-licences are open?—shop hours. All the superstores now have 181 off-licences, so that the celebrated carry-out is very much involved in this. It is something that is available at seven, 7.30, 8 o'clock and 9 o'clock in the morning.
§ With all due respect to the noble Lord's appreciation of how football crowds move, does he also appreciate that there are football supporters' clubs in different parts of the country? You do not need to come from Glasgow to support the Rangers or Celtic. In fact, you do not even need to come from Aberdeen to support Aberdeen. I know of a small colony in a place called Stewarton that supports Aberdeen. Therefore, there are much shorter distances and people in clubs go in coaches which very often leave from public houses, when they are open. If they are not open, the coaches stop on the way at one that is. So that, whether you like it, or not there is that problem.
§ Responsibility is being placed on the driver not just when the coach starts off, but every time it stops. There is nothing yet in the Bill to prevent a bus from stopping, everyone getting out, going into a wayside tavern and then coming back. It may well be that someone who was quite clean at the start puts something into his pocket such as a half bottle or something like that. Maybe he thought he was going to Murrayfield and forgot he was going to a football match, or did not appreciate the change of day. My noble friend spoke about the Welsh going to Tynecastle by mistake. What about the Tynecastle people who were going to Murrayfield? How are the police going to differentiate between all these buses—
§ The Earl of MANSFIELD
My Lords, may I interrupt the noble Lord? Does he know how far it is from Tynecastle to Murrayfield? Would he agree with me that it is about 300 yards and that the supporters might be expected to walk between the two?
§ Lord ROSS of MARNOCK
My Lords, the noble Earl really should read the working party's report on football crowd behaviour. Special regard is to be paid by local authorities and other people concerned to get these buses parked beside the ground, for the simple reason that much of the trouble arises after the game is over. People are probably slightly less alcoholically inclined, but they are 182 possibly disappointed at the result. When the crowds mingle, that is when the trouble occurs. According to what we have laid down we must, so far as possible, keep, these buses right beside the ground. So that that is not a good argument.
Then there is the question of what is reasonable. The more the noble Lord spoke about what was reasonable, the more confused everyone became. When he started telling us, virtually, that the driver had to inform the police, I thought to myself that that bus would not get very far. It certainly would never be hired again. I ask the noble Lord to appreciate this fact. There is no offence committed until the police discover it. It is when the bus is stopped by the police, or perhaps when it arrives at the parking place and the police watch the people coming out and see evidence of drink being carried that they can take action.
That is one of the most amazing aspects. A person can be as drunk as he likes on the bus, and yet he commits no offence. He can be pretty well drunk when he arrives. The bus can stop and he can get "tanked-up" again, but he has not committed an offence by being drunk on the bus. It is only when he tries to go into the game that it becomes an offence. The noble and learned Lord the Lord Advocate should read the Bill. It does not say anywhere that that is so. The person has to be found by the police. He can be drunk and get out and not be found by the police. We are placing all this responsibility on the driver. My point is that it is unfair to leave it to the driver.
We certainly want these bus parties to be conducted in the proper way. We thought we had covered that in the 1975 Act. It was appreciated in the McElhone Report that we have not been able to enforce it. That report said:We wish to place on record our considerable disquiet at the amount of the evidence, some of it confirmed by members at first-hand, regarding the extent to which alcohol is carried and consumed on board coaches hired by supporters to take them to a football match. The law does not prohibit the carrying of alcoholic liquor by a passenger on a bus".The report went on to say that people set off from licensed premises, that they stop at licensed premises en route and that it should be made an offence for the holder of a public service vehicle licence or his 183 employee or agent to permit the carriage of liquor. But the working group appreciated the difficulty. In fact, they said that complete prohibition is not practicable. We must look to see whether the law is enforceable and, also, whether it will be fair in the way it will be enforced. Enforcing it in this way, by placing responsibility on the driver, is totally unfair. My Lords, I beg to move.
§ 4.46 p.m.
§ Lord TEVIOT:
My Lords, I wish that I could support absolutely the noble Lord, Lord Ross, but I am afraid I cannot for two reasons. First, he uses the words "employee or". I do not know whether he is aware that the word "agent "is still left in the Bill, and that an employee is still an agent. So that his amendment means that the driver would still be liable. Secondly, the noble Lord talked about it being unfair to place this burden on the driver, and I agree. When an earlier amendment was being moved, he said that the steward on the bus should be responsible. I am not sure whether that is a good thing. But the driver is not a "poor chap", and I think that if a driver was listening to this debate he might think that we were being faintly patronising. I feel that drivers should have some form of responsibility and should be able to use their common sense. I do not think that it should be left to the hirer.
The coach could come from a public house. The public house or the supporters' club would have a steward, but there might be four coaches. There is no statutory requirement to have a steward on each coach. But the driver is a responsible person. He is licensed by the Traffic Commissioners, he is driving the coach and, under the terms of his employment, he cannot have a drink. There is no statutory requirement that a steward should in any way be responsible. If I were driving a coach, and a steward who was—to use an unparliamentary term, which I believe is accepted—rather "slushy" was appointed, I would take the greatest exception if he was responsible for me. I myself would rather be responsible.
As we are all talking about each other's amendments, I disagree entirely that my Amendment No. 96A is cumbersome. It 184 is supported by my noble friend Lord Renton, who has great experience of drafting and chaired a committee in the other place, and also by my noble friend Lord Morris. But if the noble Lord, Lord Ross, saw fit to withdraw his amendment and my noble friends supported me, that would be splendid. Corning back to the point about the employee, that argument does not wash because the word "agent" is not being removed, and I could not support this amendment.
y Lords, if I may say something in relation to that, I accept, of course, that it would have been better had we deleted the word "agent" as well, but I do not think that it is the duty of Members, other than those who sit on the Front Bench, to try to achieve perfection in drafting. That is the duty of the draftsmen. No matter how hard we try, we can never get it right to their satisfaction. But what I think the House ought to do is to indicate our view on the principle, and the principle is whether or not an employee should be put in the position that this Bill puts him in.
I am extremely critical of the Government—I am not critical of the noble Lord, Lord Lyell—and I regard it as profoundly astonishing that the noble Earl and the noble and learned Lord the Lord Advocate have allowed this matter to be dealt with by the noble Lord, Lord Lyell, who is not a lawyer and is not familiar with Scottish legal terminology, as he made plain when addressing the House by using a word like "defender" which is not known to Scottish criminal law. The noble and learned Lord the Lord Advocate or the noble Earl should have dealt with this, when it could have been dealt with more briefly and to the better satisfaction of the House. I think that the House is entitled to be dissatisfied with the way in which this matter has been presented, and at such length, to the House.
The reply contained a good deal of nonsense about the position of the driver, in my judgment as a lawyer with considerable experience in the criminal courts of Scotland. I found the reply more than alarming. Must drivers read the speech which was delivered by the noble Lord, Lord Lyell, in order to discover what they may do in particular circumstances? I want to reiterate the point which was made by my noble friend Lord Ross of 185 Marnock: imagine what will happen to a driver if he stops the coach and says, "I'm off to phone the police". How is he going to be treated by the people in the coach when he announces his intention to do that? Furthermore, that is on the way to the ground. What will happen on the way back from the ground? By his intervention about the distance between Murrayfield and Tynecastle being 300 yards and people being expected to walk the noble Earl, Lord Mansfield, missed that it is an offence to drive the vehicle back from the sporting event afterwards. That is also important.
The noble Lord, Lord Lyell, should also recognise, and the House should know, that to telephone the police and say, "I am going to continue on my journey with a lot of alcohol in the vehicle" is to telephone the police and say, "I am going from here on in to commit the offence which is created by this section". So it really will not do. I would advise that those who are in the House should vote on this amendment and carry it in order to compel the Government to go away and, before they take this Bill into another place, do some sound thinking about the proper shape of this clause.
§ Lord WEDDERBURN of CHARLTON:
My Lords, before the Minister replies, may I say that I have some sympathy with him in not being a Scottish lawyer; but if an English lawyer could
§ look at the amendment, your Lordships' House should, I suggest, give very serious consideration to it. As my noble and learned friend Lord McCluskey has just said, the position of a driver under this clause would be quite intolerable. I beg the Government to note that it is not just that his position is intolerable vis-à-vis the people in the coach; it is his employment and his livelihood which are at risk at a time when other jobs will be hard to come by. The Government really should take this away and look at it again.
§ Lord LYELL:
My Lords, the House has heard quite enough from me on these two amendments. However, I would say to the noble and learned Lord, Lord McCluskey, that it is entirely my responsiblity to try to interpret these clauses and to try to be as familiar as I can be with Scottish law. I do not know about other noble Lords but I have some knowledge of it. I am sorry if I used the word "defender". I stuck fairly carefully to my instructions and that, I am sure, is what I said. I have nothing to add to what I said before. I explained the case then very fully and I will allow it to rest there.
§ 4.54 p.m.
§ On Question, Whether the said amendment (No. 93) shall be agreed to?
§ Their Lordships divided: Contents, 92; Not Contents, 92.187
|Airedale, L.||Gardiner, L.||MacLeod of Fuinary, L.|
|Ampthill, L.||Gladwyn, L.||Maelor, L.|
|Amulree, L.||Glenamara, L.||Melchett, L.|
|Ardwick, L.||Glenkinglas, L.||Meston, L.|
|Aylestone, L.||Goronwy-Roberts, L.||Milford, L.|
|Banks, L.||Greenwood of Rossendale, L.||Mishcon, L.|
|Blease, L.||Hale, L.||Northfield, L.|
|Blyton, L.||Halsbury, E.||Ogmore, L.|
|Boston of Faversham, L.||Henderson, L.||Oram, L.|
|Byers, L.||Houghton of Sowerby, L.||Paget of Northampton, L.|
|Clancarty, E.||Hunt, L.||Peart, L.|
|Cledwyn of Penrhos, L.||Ilchester, E.||Phillips, B.|
|Clifford of Chudleigh, L.||Jacques, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Collison, L.||Janner, L.|
|Cooper of Stockton Heath, L.||Jeger, B.||Porritt, L.|
|Craigavon, V.||Kaldor, L.||Rochester, L.|
|Crowther-Hunt, L.||Kilmarnock, L.||Ross of Marnock, L.|
|Cudlipp, L.||Kinloss, Ly.||Sainsbury, L.|
|David, B.||Kirkhill, L.||Seear, B.|
|Davies of Leek, L.||Leatherland, L.||Sefton of Garston, L.|
|Davies of Penrhys, L.||Lee of Newton, L.||Segal, L.|
|Diamond, L.||Listowel, E.||Shinwell, L.|
|Elwyn-Jones, L.||Llewelyn-Davies of Hastoe, B.||Stamp, L.|
|Enroll, E.||Loudoun, C.||Stedman, B.|
|Gaitskell, B.||McCluskey, L.||Stewart of Alvechurch, B.|
|Stewart of Fulham, L.||Thomson of Monifieth, L.||Whaddon, L.|
|Stone, L.||Thurso, V.||White, B.|
|Strabolgi, L.||Wade, L.||Wigoder, L.|
|Swaythling, L.||Wallace of Coslany, L.[Teller.]||Wilson of Langside, L.|
|Taylor of Blackburn, L.||Wedderburn of Charlton, L.||Wilson of Radcliffe, L.|
|Taylor of Mansfield, L.||Wells-Pestell, L.||Wynne-Jones, L.|
|Airey of Abingdon, B.||Geoffrey-Lloyd, L.||Murton of Lindisfarne, L.|
|Allerton, L.||Gisborough, L.||Newall, L.|
|Amory, V.||Gowrie, E.||Northchurch, B.|
|Atholl, D.||Gray, L.||Nugent of Guildford, L.|
|Auckland, L.||Gridley, L.||Orkney, E.|
|Balerno, L.||Grimston of Westbury, L.||Polwarth, L.|
|Balfour of Inchrye, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Reigate, L.|
|Bellwin, L.||Renton, L.|
|Berkeley, B.||Henley, L.||Rochdale, V.|
|Bessborough, E.||Hives, L.||St. Aldwyn, E.|
|Bradford, E.||Holderness, L.||St. Davids, V.|
|Camoys, L.||Home of the Hirsel, L.||St. Just, L.|
|Cathcart, E.||Hornsby-Smith, B.||Saint Oswald, L.|
|Clwyd, L.||Inglewood, L.||Sandford, L.|
|Cork and Orrery, E.||Killearn, L.||Sandys, L.[Teller.]|
|Cottesloe, L.||Kilmany, L.||Selkirk, E.|
|Cranbrook, E.||Kimberley, E.||Sempill, Ly.|
|Croft, L.||Lauderdale, E.||Strathclyde, L.|
|Cullen of Ashbourne, L.||Long, V.||Strathspey, L.|
|Daventry, V.||Lucas of Chilworth, L.||Sudeley, L.|
|De Freyne, L.||Lyell, L.||Swansea, L.|
|Denham, L.[Teller.]||Mackay of Clashfern, L.||Tranmire, L.|
|Drumalbyn, L.||Macleod of Borve, B.||Trefgarne, L.|
|Ebbisham, L.||Mancroft, L.||Trenchard, V.|
|Elliot of Harwood, B.||Mansfield, E.||Vaux of Harrowden, L.|
|Emmet of Amberley, B.||Margadale, L.||Vernon, L.|
|Falkland, V.||Massereene and Ferrard, V.||Vickers, B.|
|Fraser of Kilmorack, L.||Mills, V.||Vivian, L.|
|Gage, V.||Monson, L.||Westbury, L.|
|Gainford, L.||Mountgarret, V.||Wise, L.|
|Galloway, E.||Mowbray and Stourton, L.||Young, B.|
On Question, amendment agreed to.
§ The DEPUTY SPEAKER (Lord Maybray-King):
My Lords, there being an equality of votes, in accordance with Standing Order No. 53, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such amendment, I declare the amendment disagreed to.
§ 5.5 p.m.
Lord McCLUSKEY had given Notice of his intention to move Amendment No. 94:
Page 45, line 19, leave out ("employee or").
§ The noble and learned Lord said: My Lords, I shall not in fact proceed with this amendment but, in the light of that scoring draw of 92 to each side in that particular encounter, I invite the Government to look at the lists of those who voted. They will be as conscious as I am that a great many of the 92 who supported the188
§ Government were not in the Chamber for the debate, and if the Government look at the lists and compare the names of those who were sitting on the Cross-Benches, on the Liberal Benches, on these Benches and indeed on their own Benches, they will discover that the vast majority of those who listened to the debate voted in favour of the last amendment. I hope the Government will recognise that and will not just rely on their traditional steamroller to ensure that the Bill stands as it is. I hope the Government will learn a lesson from what has just happened.
§ [Amendment No. 94 not moved.]
Lord LY ELL moved Amendment No. 95:
Page 45, line 22, leave out subsection (2).
§ The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.189
§ Lord LYELL moved Amendment No. 96:
After Clause 68, insert the following new clause:
Defences in connection with carriage of
Where a person is charged with an offence under section 67(1)(b) or 68 of this Act, it shall be a defence for him to prove that the alcohol was carried on the vehicle without his consent or connivance and that he did all he reasonably could to prevent such carriage.".
§ 5.8 p.m.
Lord TEVIOT moved as an amendment to Amendment No. 96, Amendment No. 96A:
Line 3, after ("that") insert ("(a)").
§ The noble Lord said: My Lords, quite a lot of this has already been discussed and I feel that I really must ask my noble friend to take this back again or I shall have to press this matter to a Division. There are one or two things I should like to ask the noble Lord. First, I spoke previously about "employee" or "agent" and I should like a little elucidation about the meaning of the word "agent". My other point is that all I am asking is to delete the word "all" and I have previously spelled out what it would mean if the word "all" were removed. It just alters the emphasis. It is a small point and I do not want to repeat myself. My noble friend Lord Renton felt that this Amendment was not cumbersome and that it should be accepted. However, at this stage I shall say no more. I beg to move.
§ Lord MACKAY of CLASHFERN:
My Lords, the purpose of Amendment No. 96, as my noble friend Lord Lyell explained, was to make explicit the point that the persons to whom the clause applied would not be expected to do that which was not reasonable and the provisions in Amendment 96 are designed for that purpose. The only thing between my noble friend Lord Teviot and myself is whether the word "all" should be in the clause. My own feeling on that matter is that there is not much difference between the two. If a person has to show that he did that which could reasonably be expected of him I think he would have to 190 show that the reasonable steps which were open to him he had taken and whether the word "all was in or not, it would have much the same effect. The effect of the amendment moved by the noble Lord, Lord Teviot, so far as I can see makes no difference to the substance of what is proposed.
Perhaps it is worth trying to look at this in context. The major provision is that in Clause 68 where the holder of the vehicle licence, "either by himself"—that is reasonably straightforward, where he himself is present—" permits alcohol to be carried". I assume that that is not difficult to understand. As to "by his employee", the suggestion there is that someone who is in his employment is permitting the alcohol to be carried.
A question was asked about agents. I understand that to refer to a person who is possibly not an employee—though an employee might be an agent—but a person who has the character of acting with the authority of the person who is the holder of the licence;a person authorised by the holder of the licence would be an agent. As the noble and learned Lord, Lord McCluskey, mentioned, the word "permit" itself carries with it a connotation that the person in question must know that the alcohol is being carried and must in some way connive at the carrying of the alcohol. It was felt, as I understood it, at earlier stages of this matter that that was not sufficiently explicit, and we thought it right to make it explicit in a way which covered not only the holder of the licence but all others who might be affected by this particular problem. So the amendment which we propose and which has already been referred to by my noble friend Lord Lyell was intended to make that explicit and make it clear that no one was being asked —employee, agent or licence-holder—to do anything more than was reasonable in all the circumstances with which he was faced. That is the reason why we proposed the amendment in the way that we did.
§ Lord McCLUSKEY:
My Lords, first of all, I agree with the Lord Advocate as to the effect of the amendments proposed to the amendment by the noble Lord, Lord Teviot. I do not think they change the position very much. Secondly, I 191 would agree with the noble and learned Lord about the meaning of the word "agent" in this context. I think it may be that it would have a slightly different and more extended meaning if the words "employee or" did not appear. If it is in juxtaposition with the word "employee" it no doubt means an agent in the ordinary way.
I think we are certainly in an unfortunate position here, and I do hope the Government will look at this matter again. I do not see any particular point in putting in this amendment. I am sure the Government will have learned a lesson from what happened this afternoon and I am sure they will take into account all that has been said and come up with something better than we already have.
§ Lord RENTON:
My Lords, I concede, as my noble and learned friend the Lord Advocate has said, that this is a very narrow point indeed;I can envisage, and perhaps other noble Lords would do so as well, the rare case in which it was said that the accused although he had taken such steps as were reasonable in the circumstances had not done all that he might have done. The imagination of the tribunal might be used, even at the suggestion of the prosecution, to think up something else he might have done and did not do. The use of the word "all" would give rise to just that situation in an admittedly rare case. That being so, I do think that the plea which has been made to my noble and learned friend, to take this away and consider it again, would be better than having a Division upon it. I do, therefore, appeal to my noble and learned friend not to close his mind at this point and force the House to a Division, but to say he will think about it further.
§ Lord MACKAY of CLASHFERN:
My Lords, I think the House may be assured that not only what has been said this afternoon but all that is said as matters proceed will be taken into account by us. It was because we took into account, what was said heretofore that we proposed this amendment in an attempt to meet the difficulties that have been expressed in relation to the word "permit". It was to make that more explicit, so that people could understand that we were asking no 192 one to do what it was not reasonable for them to do in the circumstances. However, I entirely appreciate that this is rather a difficult problem and we shall be happy to consider it further in the light of all that has been said. I do not feel confident at this moment that this problem can give rise to an easy solution. We have had much wisdom before us this afternoon;whether it will all produce anything that we can easily incorporate I am not certain, but we shall do our best.
§ Lord TEVIOT:
My Lords, it falls to me to conclude the very full discussion we have had on this subject, bringing out very many points. In the light of what has been said by my noble and learned friend, that he is going to look at this again—I hope he is going to be able to do it either before Third Reading or before the Bill gets into the other place;there is so much to be looked at—I beg leave to withdraw my amendment.
§ Amendment to amendment, by leave, withdrawn.
§ [Amendment No. 96B not moved.]
§ Clause 69 [Possession of container at sporting event]:
§ 5.18 p.m.
§ The DEPUTY SPEAKER:
My Lords, Amendment No. 98 is an alternative to No. 97. If No. 97 is carried I cannot put Amendment No. 98 to the House.
Lord LYELL moved Amendment No. 97:
Page 45, line 38, after ("any") insert ("bottle, can or other").
§ The noble Lord said: My Lords, we come again to the vexed question famed "controlled container" which was discussed at an earlier stage. Our intention under the provisions of the Bill—Clause 69—to ban any drink container which could be used as a dangerous missile or an offensive weapon has already been made absolutely clear. I think there is general support for that particular aim. We think it is also fair to say that no one doubts that the definition of "controlled container" would succeed in outlawing from designated football matches bottles and cans and suchlike objects which could be used as offensive weapons.193
§ What has been questioned is whether the definition might be construed as covering a great deal else besides. The noble and learned Lord, Lord McCluskey, suggested earlier that a fountain pen or a saucer could be included. We believe he is wrong in that regard. We do understand that no court would seriously countenance the suggestion that a fountain pen was a container under the definition as it is at present. Neverhtless, I accept that it would be useful, and certainly would improve the wording of the definition, if the special definition of "controlled container "were clearly directed at the outset towards the objects with which we are principally concerned, the bottles and cans. Accordingly, this amendment, No. 97, includes those words in the definition, and as a result there should be no doubt that the definition does not include any of the far-fetched items that we have been discussing at earlier stages.
§ Hoping that this amendment will clarify the type of container we seek to prohibit under Clause 69, I would emphasise that we do hold firmly to the opinion that it is essential to retain the other elements of the definition. Our objective in this amendment is to ban containers which are going to cause injury, particularly if thrown, but not to ban containers altogether. For instance, we do not want to stop people from drinking tea or Bovril from plastic cups, as many are in the habit of doing. We believe that to be unobjectionable. We certainly would not object to the splendid Spanish gourd proposed by the noble and learned Lord, Lord McCluskey, earlier, so long as it does not contain alcohol.
§ We believe that that part of the definition which refers to a container's capability of causing injury is essential. Similarly, the other parts of the definition all fulfil an essential purpose. We pointed out during the debate in Committee that the test is not necessarily what we say in this House, but how the definition will be construed by the courts. I hope that the definition, as altered by the present amendment, sets out clearly and concisely the type of container which we seek to prohibit. I beg to move.
§ Lord McCLUSKEY:
My Lords, I certainly do not wat to repeat any stale jokes, but this definition still, in my judgment, embraces the open container. In 194 fact, the noble Lord in addressing himself to this amendment spoke about people drinking tea or Bovril. Unless they want to drink cold tea or cold Bovril, they will be drinking it out of a vacuum flask and a vacuum flask is a controlled container within the meaning of this particular definition. I still think that it is too wide. It may be a marginal improvement, but the words which I use in my definition in Amendment No. 98 are:…adapted or used for carrying alcohol".That, I think, points in the right direction, because one is concerned with articles which have the double characteristic that, on the one hand, they are for carrying alcohol and are used or designed for that purpose, and, on the other hand, they are capable of causing injury when thrown or propelled. So I believe that the Government have still not thought deeply enough about this matter, but I do not want, at this hour of the day, to make a long speech about it. I urge the Government to continue their thinking, and for the moment, acknowledging that this is a very modest improvement, I would not ask my noble friends to vote against the amendment.
§ Lord LYELL:
My Lords, I should like to thank the noble and learned Lord for his generous welcome for what we have tried to achieve with the amendment. We shall look at it again. I beg to move.
§ [Amendment No. 98 not moved.]
§ Clause 74 [Interpretation of Part V.]:
§ 5.23 p.m.
Lord INGLEWOOD moved Amendment No. 99:
Page 47, line 15, at end insert (""Constable "means a constable within the meaning of the British Transport Commission Act 1949 and the Police (Scotland) Act 1967.").
§ The noble Lord said: My Lords, I beg to move Amendment No. 99 in the name of my noble friend Lord Teviot and myself. We now move on to other ground and, I think, rather simpler ground. We are dealing with the question of enforcement, which is a very responsible matter under the provisions of a Bill of this sort. We are dealing with the powers of enforce 195 ment and interpretation so that there will be no doubt about the matter.
§ Under the Bill we are creating new offences and we must be clear about these matters or the police task of enforcement will be too insidious. Much in the Bill can be compared to Alice in Wonderland. We have been creating new offences for bus travellers, but not for those travelling between the same points with the same intention but travelling in trains instead of buses and with the same drink in the same flasks in their pockets. We have provided for certain penalties for offences committed when travelling in Scotland, but once one of the bus parties we have in mind crosses the Border and finds themselves in England, they are free of the new restraints, even though they may still be on the way to a football match designated or otherwise.
§ There appears to me to be some confusion as regards the interpretation of the police powers of enforcement. Clause 72 lists a number of matters which constables will have power to do without warrant. It is a serious list and it has been referred to already by the noble Lord opposite.
§ It is the intention of my noble friend and myself that these powers should not only be given to the police who are listed in the schedule to the Police (Scotland) Act 1967, but to the British Transport Police as well, who are likely to be intimately concerned with offences committed under the Act. To make a distinction under the Act between the county police and the British Transport Police seems to me to be foolish and unnacceptable.
§ The two police forces, to the best of my knowledge, have the same powers and privileges except that the British Transport Police have a geographical limitation on their powers, but they are fairly wide all the same. They wear the same uniform, except for different badges and in the eyes of the public there is really nothing to distinguish the one from the other. Under the Bill we appear to be creating uncertainty where no uncertainty ought to be allowed.196
§ I ask your Lordships to imagine a bus party arriving on the forecourt of a railway station. We have heard how buses may start from the public houses and the same situation might well arise at a recognised bus starting point on the forecourt of a railway station. Some type of trouble may arise. A police constable could go to the scene from the station and another police constable come to see what the disturbance is about from the other side of the forecourt or from down the side street. Those two men, looking exactly the same, arrive at the scene of the trouble at the same time, but their powers under the Bill are different. The British Transport Police Constable, whose interest might be thought to he the larger as the trouble started on British Transport Police property is, in fact, denied the small additional powers, which are granted to the other police forces in Scotland. I ask the noble Lord who is to reply for the Government, what consultations they held with the police in Scotland before arriving at this conclusion and whether the British Transport Police are, in their view, happy about it? I understand that they are not.
§ When we discussed this Bill on the last occasion the Government spokesmen were at pains to show that the powers of the British Transport Police should best be amended or defined through by-laws made under the authority of the Transport Acts. We were given to believe that discussions are taking place and that another Transport Bill will be laid before Parliament before any great time has passed. But we were not given the earliest time at which we could expect an order giving the British Transport Police the same powers as are given to the county police under the Bill. It may have been convenient to treat the British Transport Police in this way, and it might even have been a better way in the days when we had a large number—a score may be—of railway companies each with its own police force. However, today, when the British Transport police cover the whole of Great Britain, it really seems absurd.
§ I should like to make one other point. The British Transport Police under the Edmund-Davis Report now have the same rate of pay as the other police forces. Therefore, under the Edmund-Davis report their is no distinction between their responsibilities and those of other forces. Their educational standards are certainly 197 not lower and they could be higher than those of other police forces. They have more exacting initial training and they are specialists in dealing with offences committed by people on the move. It seems to me strange that they should be left out of this Bill. I would submit that this small amendment should be accepted. It would remove an anomaly and add to the efficient working of the Bill. I beg to move.
§ Lord LYELL:
My Lords, I should like to reply very swiftly and briefly to my noble friend Lord Inglewood. At the outset I should like to say that the British Transport Police—whom he has described —when dealing with any offences which relate to or which are committed on railway property, enjoy exactly the same powers as the regular police under the existing law. As my noble friend said, they are the county police;but I think that they would be a regional police force in Scotland. Therefore, we can see no necessity for a special provision, such as that which is contained in this amendment, in order to enable the Transport Police to deal with any new offences, which we have not yet lined up at all.
During the Committee stage I gave an undertaking to bring the views of your Lordships' on this subject to the attention of British Railways. I did that, and I can assure the House that the Department of Transport, the Home Office and Scottish Home and Health Department are all in close co-operation with British Railways with a view to producing an effective bylaw on this particular topic of carrying alcohol on trains. Such a by-law would be enforceable by the British Transport Police. That is a very brief answer, and I hope it will go some way towards satisfying my noble friend.
My Lords, can my noble friend say when we can expect the by-law, because that is important?
§ Lord TEVIOT:
My Lords, I entirely endorse what my noble friend Lord Inglewood has said on the amendment standing in both his name and mine. My noble friend Lord Lyell has mentioned that 198 consultations have taken place between British Railways and all those dealing with this matter. But have consultations taken place between his department and the British Transport Police? If they have not, that is surely a remission. If they have, I should be grateful to hear their opinion on this matter.
§ The EARL of MANSFIELD:
My Lords, my noble friend has had his point explained perfectly adequately by my noble friend Lord Lyell. As regards the present situation, no further powers are required in relation to railway police. That is my first point. My second point is that various departments are, as it were, in consultation. I do not think that my noble friend can go further than say, as he has, that the object of the exercise is to bring forth a by-law which will, I hope, be comprehensive and commendable. It would be quite impossible for any of us to say at this stage how long it will take the draftsmen to put the thoughts on to paper and thereafter to produce a satisfactory by-law.
If one stands aside for a moment, I think it will be seen that my noble friend has produced a perfectly satisfactory explanation, and in the circumstances I ask my noble friend Lord Inglewood to withdraw his amendment. Apart from anything else, taking into consideration the parliamentary timetable, one really cannot leave, as it were, a hostage to fortune by putting dates on these matters.
§ Lord ROSS of MARNOCK
My Lords I think it may well be that we slipped up ourselves in this House. Not long ago we had before us a provisional order from the Greater Glasgow Passenger Transport Executive. I think that the noble Earl, Lord Mansfield, will remember this. I dared to ask one or two questions in my youthful innocence, just having arrived in your Lordships' House. But having retrieved this order from the place where I had thrown it, I discover, of course, that the police are the Greater Glasgow Passenger Executive and will be concerned with this.
I think it was the noble Lord, Lord Lyell—but it may have been the Rohl,: Earl, Lord Mansfield—who said at an earlier stage that, whereas buses went to grounds, that was not true about trains. If the noble Lord knew Glasgow, he would 199 know that the blue train runs from Central Station right to Mount Florida, and 50 yards from Mount Florida there is Hampden Park. If the noble Lord saw people lining up to get on those particular trains, he would appreciate to difficulties that might arise.
However, it is equally true to say that the Greater Glasgow Passenger Transport Executive:may make byelaws regulating the use and working of, and travel on, the underground, the maintenance of order on the underground and the railway premises, including stations, the approaches to stations and any depot belonging to them, and the conduct of all persons, including their officers and servants, while on those premises".I say "underground "because, hopefully, we shall have a new system which will take people relatively near the football grounds. There is one station very near Ibrox, and I am perfectly sure that that will be used in this particular case. The order goes on to say:Without prejudice to the generality ",and then it lists paragraphs (a), (b), (c), (d) and (e). There is no mention of drink there, although paragraph (c) prohibits,the use of tobacco or other substances in railway vehicles and elsewhere and with respect to the prevention of nuisances".However, they have the power and no doubt they will use it. Let us not underestimate it.
Let us remember that the worst offence that has been committed was committed in a train on the way to Wembley last year. It was an entirely different type of offence when one innocent lad, who tried to intervene to protect someone, was stabbed to death. That offence occurred in the crowd going to Wembley and certainly would not be covered by this provision—it was not in Scotland;it was in England. But do not let us think that these offences do not happen on trains. One of the worst experiences I have had occurred when I was travelling from Glasgow to Ayr, to my home. I had been attending a meeting. In the same compartment was a woman with a baby. The train stopped at Irvine and as it stopped another train coming in the opposite direction also stopped at Irvine. My train was carrying a crowd of Rangers supporters who had come from Glasgow;in the other train was a crowd of Celtic supporters who had come from Ayr. I can assure noble 200 Lords that it was not pleasant and there was not a policeman in sight.
Therefore, I welcome the fact that British Railways have already produced guidelines for trains. They are set out in the McElhone Report. However, I had some slight difficulty in appreciating just exactly all it said because at one point the guidelines say:Discourage supporters under the influence of drink or who are carrying drink. Police to remove or turn away if necessary ",On the next page the report says:Whilst all points referred to are vital in our attempts to stamp out vandalism, none are more important than (3) and (4) and it is reiterated that:—(a)…(b)supporters under the influence of drink or carrying drink are not permitted to board the train".That is slightly different, but at least it shows that British Rail are concerned about it, and I shall certainly be watching progress. After all, not everyone travels from Glasgow to Edinburgh by chartered bus. There is a very good half-hour service, and on a Saturday quite a number of football supporters travel. I trust that, although the railway authorities are not particularly included in the Bill, they will take the necessary steps to safeguard the travelling public.
My Lords, in view of my noble friend's assurance that an appropriate by-law is now being considered by a variety of departments—there are so many departments that I fear the speed will be very slow—it would be churlish of me to press this amendment. I did think that my amendment was much the easiest and simplest way of doing something which the Government admit is worth doing. However, as they are doing something about this—and I gather that they are making a genuine effort—I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Clause 75 [Vandalism]:
§ 5.39 p.m.
Lord WILSON of LANGSIDE moved Amendment No. 100:
Page 48, line 19, leave out ("3") and insert ("4").
§ The noble and learned Lord said: My Lords, it may be for the convenience of 201 the House if at the same time as I move Amendment No. 100 I speak of Amendment No. 101. These two amendments merely seek to increase the maximum penalties provided for under this new offence of vandalism. The clause as it stands is a thoroughly bad clause. It will do no good, and will set a bad precedent. I confess that over the months since the Bill was published I have reflected off and on as to the words and phrases that might persuade your Lordships to reach the conclusion that it was inappropriate that this clause should find its place in a Scottish Criminal Justice Act.
§ I found some difficulty with this task because it seems to me so obviously bad a provision when one considers its terms and the background to it, and it is often more difficult to describe the obvious than the more obscure. It is rather like the old story of the elephant;so easy to recognise but so difficult to describe. The word which I think most appropriately describes Clause 75 of this Bill—and I hope that this is a word which is within the Rules of Order of your Lordships' House—is the word wet "because, as it seems to me, this clause encompasses all the characteristics of wetness in the context in which wetness is a bad thing.
§ Let me try to explain why I say that quite seriously. Let us look at the background. The background is of millions of pounds worth of property—public property and private property—destroyed or damaged every year: sometimes by gangs of young hoodlums whom civilisation has apparently not touched;quite often by young men, individuals or groups of young men, normally well behaved, perhaps under the influence of drink or who have lost control for some other reason. This is the area with which we are dealing.
§ What are the sorts of things about it that affect ordinary people? There are the telephone boxes which can never be used. When people are trying to use them to call to their aid the police, the fire service, or the ambulance, they do not work. There are simple things like the back gardens painstakingly planted and cultivated. Their labours are rooted out by those to whom the media refer as vandals. This is the sort of area with which we are concerned. It is an area 202 over which there is acute, widespread, and justified concern and a great deal of anxiety. It is an area in which almost everyone would welcome (to use a corny, old phrase) "The mack of firm government".
§ So of course it need surprise no one that at the hustings one of the political parties should commit itself to—I am not quite sure what it was, but I gather legislating against vandalism. There is no doubt but that that would help in its time to some extent to allay anxieties, to reassure people that, to coin a phrase, something would be done. One can imagine the candidates saying, in answer to questions, "You can be assured, sir "or "madam "as the case might be, "that if you vote for me and my party is returned to office, something will be done about vandalism". People are reassured and their anxieties are allayed: something will be done.
§ Well, what is the something in this case? The something is Clause 75. If I may say so without transgressing against the Rules of your Lordships' House as to the language which should be used here—a real, wet, wee mouse it surely is. It flatters the hoodlums by calling them "'vandals ";those historic figures. However, I shall not digress into history. That may come if we go on to the next amendment in the names of the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Ross. But besides flattering the hoodlums this is the point;it gives no power to the prosecuting authority, or to the courts, that they do not already have to deal with these offenders. None at all.
§ It provides no new treatment;no increase in the sentence which may be imposed by the courts. The only change —and note this well—will be that instead of the words "malicious mischief "appearing on the back of the complaint there will appear the word "vandalism". That is all. There is no suggestion—it has not been suggested in the course of the debates on this Bill, and this point has been raised before by the noble and learned Lord, Lord McCluskey—that the courts have been dealing with the offence of malicious mischief, as we at present call vandalism, ineffectively. Of course it is known that the approach of the courts to this particular offence is pretty sensible and very often effective.203
§ It was said in the Second Reading debate by, I think, the noble Lord, Lord Campbell of Croy, to some extent supported by the noble Earl, Lord Selkirk, that there would be some psychological benefit from this new provision. I have the greatest respect for the judgment and views of the noble Lord, Lord Campbell, and in particular the noble Earl, Lord Selkirk, but I was surprised that they should find this ground for being satisfied with this provision, because of course while psychology has its place in crime busting—I think we all recognise that—I would not myself have thought that its place was in the legislative process. I should not have thought that in this context it provided any improvement in the situation at all.
§ It is of course a cosmetic thing. Legislative cosmetics are sometimes quite a good thing. There is an area where cosmetic correction makes things better and makes certain people feel better, but I should not have thought it was in the context of this quite horrifying problem. So what I am suggesting in these amendments is that your Lordships should increase the penalties which may be imposed. In the first place, instead of up to three months' imprisonment, or its equivalent, for younger offenders it should be four months' imprisonment. That is the penalty which is imposed, for example, for a first offence on drunken drivers. I am suggesting that for a second or subsequent offence the maximum penalty might be one of nine months' imprisonment.
§ If it is suggested that that is rather a lengthy sentence on a summary criminal offence under the Scottish system, there is of course a precedent for it. If you punch a policeman on the nose when he is trying to arrest you, or resist arrest in some other way and you have done it before, you may be sentenced to nine months' imprisonment even without a jury trial, and appearing before a sheriff alone. Accordingly, there are precedents for this.
§ A good deal has been said in the debates on the Bill about the need for giving additional powers to the police, and when some of us questioned the necessity for some of these powers, great emphasis was placed by many of your Lordships on the incidence of crimes of violence. What 204 about what we call vandalism? Are we not going to do something about that in the Bill in the provision which we are told had its source in the Conservative Party's manifesto? If the party was serious about this, why did it not do something serious when it came to legislate? All that happens here is a change of name. I cannot imagine that will deceive anybody. I shall be astonished in the whole circumstances, looking to all the background of this particular offence, if the Government find it possible to resist these two amendments.
§ 5.51 p.m.
§ Lord McCLUSKEY:
My Lords, I agree with much that the noble and learned Lord, Lord Wilson of Langside, said, but I shall have some observations to make on the clause itself when we come to Amendment No. 102 and will therefore confine my remarks at this stage to the limited Amendments Nos. 100 to 101. We are all against vandalism and no doubt the courts could play a part, if they thought it proper, by increasing the penalties under the law as it now stands, but I am not in favour of giving the summary criminal courts the increased sentencing powers which Amendments Nos. 100 and 101 envisage.
At present the general rule, as I understand it, although of course there are precedents the other way, is that the maximum sentence is three months on the first occasion and six months on the second. If it is raised from four to nine, what we are simply doing is extending the powers of the summary criminal courts in relation to one particular limited category of offence, and I do not think that is the right way to do it. I agree with the whole thinking behind the noble and learned Lord's approach to it. But I think the House would be better advised not to extend the powers of the summary criminal courts in the way proposed by these two amendments, but to vote in favour of Amendment No. 102, and I will speak to that when we reach it.
§ Baroness PHILLIPS:
My Lords, many of your Lordships will have sympathy with the noble and learned Lord's amendment, but as one who has the misfortune, and I say that very firmly, to travel frequently on British Rail on Saturdays—not in Scotland, where it seems to be even 205 worse from the description we have been given—I would say that whatever laws we pass and whatever penalties we impose, the fact remains that these hooligans rush up and down the trains and that whenever one appeals for any sort of control the person in charge says, "There is one of me and 50 of them ", so we must not delude ourselves into thinking that the mere passing of laws will do much to deal with this problem, unless there is a big increase in the number of enforcement officers on the spot.
I would remind the noble and learned Lord, Lord Wilson of Langside, that of course penalties can be imposed only if you first catch your hare. Unlike the drunken driver, who is usually so drunk that eventually he can be caught, these people get on trains in great number and misbehave appallingly but are not always under the influence of alcohol. I have seen 15-year-olds rushing up and down, certainly not under the influence of alcohol, but nevertheless their activities are very frightening and they are unpleasant to travel with. It is fair to say that any legislation we pass will not be effective unless we look much more closely at the powers of enforcement.
The EARL of SELKIRK:
My Lords, I can assure the noble Baroness, Lady Phillips, that the trains in Scotland are remarkably safe on the whole, so she need not be worried about travelling in that part of the country. I listened with great attention to the remarks of the noble and learned Lord, Lord Wilson of Langside, and I do not suppose there is anyone in this House who has greater experience of dealing with malicious mischief, vandalism and so on than the noble and learned Lord, particularly through his experience in the Glasgow courts, and anything he says must be listened to with great attention.
I would happily vote for his two amendments, though I do not wholly disagree with the noble and learned Lord, Lord McCluskey, in that I do not have a lot of confidence in any form of penalties. I believe there is a considerable limitation to the manner in which penalties can restrict activities in this sphere. This may be only a cosmetic, but may I ask the noble and learned Lord to tell us what he would do? At least this is something 206 being done of a perfectly clear and distinct character. Everybody knows what the word "vandalism "means, but I suspect there is a good deal of doubt about the words "malicious mischief". I know it has a fairly precise meaning in law, but to the ordinary public it is almost humorous in some cases and I do not know that they know precisely the range of spheres in which those words can be used.
This may be only a part, but if there are other things we can do—and nobody here does not recognise that the range of vandalism today is absolutely terrifying;the country in some respects is being held to ransom by it—let us consider what we can do. We can do something about police powers if you like, and a certain amount is being done about that here, and maybe there is not much we can do by way of penalties—perhaps it is education, which is talked about a lot—but if this is even a marginal step towards clarifying what is undoubtedly a severe offence and one which is of great damage to the whole public of this country, then it is worthwhile. It may not carry us very far, but it goes a certain distance toward clarifying exactly what we are trying to get at, and in that sense it is a pity to pretend it does not go further than it does
§ The Earl of MANSFIELD:
My Lords, like the noble and learned Lord, Lord McCluskey, I shall address myself only to the two Amendments Nos. 100 and 101 at this stage. When I saw the list of amendments to start with, I formed the unworthy thought that perhaps the noble and learned Lord, Lord Wilson of Lang-side, was trying, as it were, to have his cake and eat it. But I am sure that cannot be so and I therefore discuss these two amendments on the basis that he is a sinner come to repentance, that the wise words which fell from my lips in Committee when we discussed this matter at considerable length have had their effect on the noble and learned Lord, as well as the various researches which he has obviously made and which I shall not deal with at any further length, and I discuss these two amendments on their merits.
Dealing first with Amendment No. 100, Clause 75 specifies a maximum sentence of three months' imprisonment for the 207 statutory offence of vandalism and, as the noble and learned Lord will know better than I, that corresponds with the normal maximum sentence imposable under the existing power of the sheriff sitting without a jury in relation to all first offences under the common law and indeed most statutory offences. We consider that this maximum is adequate to give the courts sufficient discretion to deal with first offenders, because in our view it is the serious extent of minor acts of vandalism rather than the serious nature of most individual offences of vandalism which cause the greatest concern.
I have asked for a few figures which may illustrate the point. Taking the year 1978, which is the latest for which I could obtain them, and using the fairly neutral phrase "malicious damage to property ", the number of offenders proceeded against was 2,364. Of those, the number sent to prison or young offenders institutions was 89, or 3½per cent. The average length of sentence was two months. So, as I have sought to say, we are not dealing with what one might describe as the most serious of crimes in itself, although—as the noble and learned Lord said when he took my example from the previous debate of a vandalised telephone box—it is a crime which causes very considerable concern to the citizenry. Therefore, I am not disposed to agree with the noble and learned Lord's contention so far as Amendment No. 100 is concerned.
When one comes to Amendment No. 101, I think rather different considerations apply. The purpose of the amendment is to specify substantially heavier maximum penalties on conviction for a second or subsequent offence of vandalism than are available on conviction of a first offender. I have every sympathy with the view that persistent vandals should be dealt with more severely than first offenders;indeed, the fundamental purpose of this clause is to enable courts to identify persistent vandals rather more effectively than obtains at present, when the offence is prosecuted under a variety of names. However, I think that this amendment goes rather too far in the maximum penalties that it seeks to introduce in this context. Nine months' imprisonment is an unusually long sentence to be within the competence of a sheriff sitting without a jury. The noble and learned Lord 208 instanced the only precedent that I know for this, which is Section 41(1)(ii) of the Police (Scotland) Act 1967, which lays down this period of imprisonment for a second or subsequent assault on a constable within two years. Furthermore, few of the offenders convicted of the common law offences which will be replaced by the statutory offence of vandalism are sentenced to imprisonment, as I have pointed out.
The maximum fine of £2,500 also seems unrealistically high, bearing in mind that we are dealing mainly with young offenders. As drafted, the amendment also specifies a minimum fine of the "prescribed sum "(which is currently £1,000), though I take it that that is unintentional. But the average fine imposed in 1978 on those convicted of the common law offences which are similar to vandalism was less than £50.
It is I think profitable to turn once more to the recommendations of the Thomson Committee in consideration of the sentencing power of the sheriff summary court. They said in paragraph 13.18:we do not consider that a sentence of more than six months' imprisonment should be competent in summary proceedings".In paragraph 13.19 they recommended that in all cases where the accused person had a previous conviction the maximum of six months should apply. The Government have not elected to implement this latter recommendation generally for all second or subsequent offences, but perhaps a limited implementation in relation to repeated offences of vandalism would meet with general approval. It would certainly justify a further look at the question. On the other hand, the express recommendation against sentences in excess of six months in summary cases provides an additional reason for doubting the wisdom of the more extreme measures suggested by the amendment.
There is a precedent for allowing a sheriff summary court to impose a maximum sentence of six months' imprisonment for a second or subsequent offence;Section 290 of the 1975 Act allows this in respect of a second or subsequent offence involving dishonest appropriation of money, or personal violence. I am therefore prepared to consider whether a useful purpose might be served by making similar provision in respect of vandalism: indeed, 209 I think that there is quite a strong case for saying just that. Therefore I hope that this undertaking on the Government's part to consider the question—probably not before Third Reading, but certainly before the matter goes to another place—will do two things. I hope, first, that it will enable the noble and learned Lord to take a rather more benign view of the new offence than he has so far, and, that secondly, it will enable him to withdraw Amendment No. 100;and I further hope that he will adopt at least a benign neutrality when it comes to Amendment No. 102.
§ Lord McCLUSKEY
My Lords, before the noble Earl sits down, may I say that he used the expression "the offences replaced by the statutory offence of vandalism "? I wonder whether he would care, either now or in the course of dealing with the next clause, to explain to the House whether he means "replaced ", because this is a matter of some concern to me. I understood that the ordinary common law offence of malicious mischief is not affected by Clause 75, and that this statutory crime of vandalism is an additional crime. If that be wrong, I should need to think very carefully about the matter, and must at the next stage draw the attention of the House to the views of the Faculty of Advocates on this;but perhaps the noble Earl can give me an answer to the point either now, or in the course of the debate on Amendment No. 102.
§ The Earl of MANSFIELD
My Lords, I can give the noble and learned Lord that assurance now. The word "replaced "should be taken as having its normal English meaning, or what I consider to be its normal English meaning. There is no question of repealing or replacing in the other sense any of the existing common law.
§ Lord WILSON of LANGSIDE
My Lords, with the leave of the House, may I say in reply to the point raised by the noble Baroness, Lady Phillips, that I do not share any illusions with anyone that one can make a real impact on the problems of crime by punishment in the courts? I have no illusions about that. May I say to the noble Earl that I am not a sinner come to repentance so far as this clause is concerned? I thought it proper to put 210 down these two amendments to test what I regarded as the bona fides of the Government in this context. I do not know how far I can go in extremity of language, but I think it slightly deceitful to go to people at the hustings and say, "We will do something about vandalism ", when one does not mean to do anything at all, except change its name on the back of a complaint.
I wanted to see what the reaction would be from the Government Benches in the House when those noble Lords who are not familiar with the summary legal processes in the Scottish courts suddenly realised that there was nothing in this except the change of name. That was the purpose of my putting down the amendment. I still do not like the clause, and if my amendments are not accepted, I can tell from the feeling of the House that it would be inappropriate to press them to a Division;I do not propose to do so. Having made my points I reserve the right to vote with the noble and learned Lord, Lord McCluskey, if he chooses to press his amendment, with which I still have considerable sympathy. I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 101 not moved.]
§ 6.9 p.m.
Lord ROSS of MARNOCK moved Amendment No. 102:
Leave out Clause 75.
§ The noble Lord said: My Lords, that was a good opener on this subject, about which I probably feel more strongly than I do about anything else in the Bill. The noble Baroness asked what we are going to do, or what can we do, about vandalism. The noble Earl, Lord Selkirk, showed what was almost despair and frustration: let us do something;it does not matter what we do, evidently, but let us do something. But surely the thing not to do is to consider that one is achieving anything by changing the name. That is all that is happening here. Vandals went around Europe, from the North right through to Spain, destroying culture, books, everything, in the year 500. It has taken us 1,400 years to discover that we needed a crime called vandalism. But, wilful destruction of property, sometimes to the danger of life, unthinkingly, and malicious 211 damage—all these things have gone on, and in Scotland they have been punished. The trouble is the one which Lord Wilson and the noble Baroness mentioned, that you cannot punish them unless you catch them. Is changing the name of a crime going to enable you to catch them? It is not.
My Lords, what are the origins of this? In the discussions on this Bill we have been hearing about a number of reports. There is the Emslie Committee Report, to some of which we did not take too kindly, by what we have done;but it was a good, thoughtful report by distinguished people. There was the Thomson Committee Report, and there was the Dunpark Committee Report. But what are the origins of this one? Yes, there was a report—in 1976, I think it was. It was called Crime and its Remedies, and it was produced by the Conservative MP Mr. Teddie Taylor—or Teddie Taylor who was the MP. He was washed overboard on the Clyde, he has turned up on the beaches of Southend. That is where this comes from—Crime and its Remedies. No evidence was put forward to support the argument, and it is suggested by the report:
Accordingly, in an endeavour to cut down the amount of vandalism and to prevent such in future, we recommend that a separate statutory offence of vandalism be created, with appropriate penalties".
All the things with which people arc going to be charged are already offences;they can already be punished, sometimes with penalties even greater than what were originally in the Bill. I wonder whether the Lord Advocate will deny that. If so, he is about the only lawyer in Scotland who will. The Law Society of Scotland says that the clause is completely unnecessary, and things can be dealt with adequately under the present law.
So I am very unhappy about this one, because I have a certain measure of dignity. We want credibility in the Scottish law, and we want simplicity, too. I am surprised at the noble Earl laughing. Listen to this:
To the principle of the Bill, and indeed to the principle of this clause, he had no objection because it did no more than declare that to be law which was already law".
He had strong objections to the passing of a Bill, and those objections rested altogether in there being no necessity for such a statute ''.
By the common law of the land and by a variety of statute laws the crime ",
which was mentioned here,
was sufficiently ascertained. What the common law held to he criminal there was no occasion to pass a statute law to declare criminal".
That, of course, was the first Earl of Mansfield in 1784, dealing with the question of a Bill to prevent bribery at elections. But common sense! He had a wonderful reputation as Lord Chief Justice, of the King's Bench. Yet when the same arguments are put forward as he put forward, the present Earl of Mansfield thinks it is funny.
It was a universal principle in all human legislation never to propose a new law when there was an existing remedy adequate to the removal or correction of the evil complained of".
That was the first Earl of Mansfield six years later.
§ The purpose of what we are doing here is purely political and parochial—and it failed in its purpose, because the man who put it forward lost his seat! It will not reduce vandalism: it will not prevent vandalism;it will not deter vandals. I think it ill becomes any distinguished Lord Advocate to come before your Lordships' House and suggest that this is something which is going to contribute to the fight against vandals as we know it. Indeed, if all we have to do is give a crime a new name, what name will we discover for murder, or all the other forms of violence? Do we just change their name and suddenly it is solved? This is unworthy of the Lord Advocate, and I hope he will join me and everybody else in withdrawing this clause from the Scottish statute book. I beg to move.
§ Lord McCLUSKEY
My Lords, I do not want to add very much to what my noble friend Lord Ross has said, but there are one or two points I ought to bring to your Lordships' attention. First of all, at the Committee stage, prompted by a letter I had written to him, my noble friend Lord Mishcon said at column 1312 on 5th February 1980:…my information is that the malicious mischief common law charge carries heavier penalties than this one. Am I wrong on that?",to which the noble Earl. Lord Mansfield, replied,The noble Lord is wrong".In fact, the noble Lord was right and the noble Earl was wrong, because malicious 213 mischief as a common law offence carries any penalty that the court before which the offence is tried can impose, and that may be a penalty of years of imprisonment if the crime is indicted before the court. I think the noble Earl would do well to acknowledge his error and Lord Mishcon's correctness on that occasion.
I agree with what has been said about this being a purely cosmetic exercise, and I think your Lordships should know that this particular clause has been considered not only by the Council of the Law Society of Scotland but also by a committee of the Faculty of Advocates, which is in fact having a meeting at this moment, before the whole Faculty, in order to discuss its report. The Council of the Law Society regarded Clause 75 as unnecessary, and the Faculty Committee, which was a very powerful one, recommended as follows to the Faculty—and I quote from Part VI:The only clause in this Part of the Bill which calls for comment is Clause 75, which creates the offence of vandalism. The definition of vandalism appears to be indistinguishable from malicious mischief, and accordingly the creation of this new statutory offence appears unnecessary. Furthermore, trial of this offence is restricted to summary proceedings, with the inevitable restriction in penalties and the six months' time limit on statutory charges. The Committee see no point in this cosmetic clause, and recommend that it should be withdrawn".So, my Lords, you have the two most powerful legal bodies in Scotland coming out against this clause, and I hope the Government will take note of the advice from these sources.
The other point on which I received I thought a somewhat unsatisfactory reply from the noble Earl was the point about whether or not the statutory crime of vandalism replaces the common law offence of malicious mischief. I understand the word "replace "in English to mean something different from what it apparently means to the noble Earl. Surely what is being done here is to create an additional offence of vandalism. That is what ought to be done, but the Faculty Committee goes on to say:If the clause remains, the Committee recommend that it be provided for the avoidance of doubt that nothing contained in the clause should prevent or limit proceedings being taken for malicious mischief or any other competent common law offence";and it may be that the Government should take that advice from the Faculty of Advocates Committee.
214 The other point to which I wish to draw attention, and the last one, is that at the Committee stage the noble Earl. speaking at column 1311 on the same date, 5th February, said: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".Surely the noble Earl will concede that that was inaccurate, because in the clause as it stands (it may be that he is now having second thoughts about the penalties, but in the clause as it stands) there are no deterrent penalties at all. The maximum sentence in the clause as it stands is three months' imprisonment, and I cannot see how that can possibly be regarded as a deterrent sentence when, at the moment, provided you charge the ordinary common law offence, if the court is so minded it can impose a sentence of 10 years. Surely the Government have got their thinking muddled up here and have been misled by Teddy Taylor and the committee chaired by Mr. Charles Macarthur. I would invite your Lordships to support us in the Lobbies and remove this silly clause from the Bill.
My Lords, may I ask the noble and learned Lord one question about what has been described as a new offence? Since vandalism on railway property is very widespread, do I understand that, under the interpretation clause of this Bill, all sworn-in constables in Scotland have some standing in connection with dealing with vandalism and that that includes special constables doing service with various regular police forces;or, as in other parts of the Bill, are the British Transport Police, who are full-time professionals, excluded?
§ The Earl of MANSFIELD
My Lords, I must congratulate noble Lords opposite on having done their homework. Some went back quite a long way. To deal with the noble and learned Lord who has gone back least far, if I am guilty of misleading the House in relation to the reply I gave to the noble Lord, Lord Mishcon, I crave 215 indulgence. From looking at Hansard I think, with respect, that it is pretty plain that what I was seeking to say was that the penalties in cases of summary prosecution are exactly the same whether the proceedings are brought under the old common law offence of malicious mischief or under the new offence. That is the case. That is what I said, and I stand by it.
If I may turn to the noble Lord, Lord Ross, as I think the noble and learned Lord, Lord McCluskey, said—and whether or not Mr. Taylor had a hand in this I do not know—there was a committee presided over by Mr. Macarthur, who is a distinguished Silk, I understand, at the Scottish Bar. He made a recommendation that there was room for this provision to he put in the penal code of Scotland. That was the conclusion to which his committee came. One can make what political points one likes over this. We had a fairly full debate on this in Committee. The main accusation then was that this was what might be described as a cosmetic exercise. But every time the law is reformed to an extent where one changes the language it is a cosmetic exercise. As such, I suppose it may be open more or less to some form of criticism. I am bound to say that I do not think a Bill like this is necessarily any the worse for that. One's loved one in her natural state is very attractive;with a little cosmetic she becomes even more attractive. That is what is being achieved here, plus a little else.
I tried to say in the Committee stage that vandalism was a very serious matter in Scotland. With that, I think most noble Lords agree. I tried to say that I do not believe that the somewhat archaic-sounding offence of malicious mischief is one that is either understood by or appreciated by the youthful offenders who frequently find themselves before the courts charged with this offence. Everybody knows what vandalism is;a great many people have seen the TV advertisements and everybody knows what society thinks of it. I should have thought, as a matter of common sense, that if the courts and society are going to give vent to what they believe right in circumstances when this form of malicious damage is perpetuated on the property of invididuals or public, it is only right that a spade 216 should be called a spade and a vandal should be called a vandal and not a malicious mischief-maker.
Most offenders are juveniles or, at any rate, youthful and I would suggest that in many cases they arc ignorant of, or certainly unheeding of, the utlimately serious consequences of what very often are petty acts of vandalism. Nobody has suggested—and least of all me—that this clause in the Bill is going to help the police to catch vandals. Furthermore, I appreicate that when these people are caught, the prosecution at the moment has no difficulty in bringing charges under the existing common law. But the charge may be malicious mischief, it may be wilful damage or even breach of the peace. In the year 1980. I do not think that it is either a tidy or sensible way of dealing with vandalism to call it three different things, none of which conveys the real meaning of the act.
As I have said in Committee, the word "mischief "in common, modern speech hardly conveys the seriousness of many offences of vandalism. Noble Lords opposite and the noble and learned Lord, Lord Wilson, may or may not like the term "vandalism "but, for better or worse, it is now in common usage throughout the United Kingdom as being the word that is appropriate. I do not believe that the law should disdain it, particularly for any semantic reasons or reasons of emotional attachment to a bygone age. One of the purposes of the whole of this Bill is to bring the law up to date;and the purpose of this clause is to bring the terminology of the law up to date in this respect. However, its rather more important purpose is to identify vandalism as a separate offence and to mark it out in the public mind as such.
The multiplicity of possible charges which may be brought under the existing law creates difficulties for those who have to consider an offender's record at a later date. In particular, sentencing courts cannot tell from an offender's record whether he had previously been convicted of an offence of vandalism. For instance as I sought to illustrate, a conviction for a breach of the peace may be an offence which constitutes vandalism, or has an element of vandalism in it, or it may be something quite different. The introduction of a specific statutory offence of 217 vandalism will enable courts to identify persistent vandals who are brought before them and to impose appropriate deterrent penalties upon them. In the longer term, this may have the effect of discouraging some people from committing acts of vandalism. That is the point of the clause.
Dealing with the point raised by my noble friend Lord Inglewood, he was referring to vandalism either on trains or railway property. Vandalism on trains will be governed by British Rail by-laws and the Transport Commission police have the duty, and the power, to enforce that. Railway police have all the powers of regular police in carrying out their duties on railway property. That encapsulates the matter in one sentence.
Finally, for the edification of the noble Lord, Lord Ross, the first holder of my particular title, who was Lord Chief Justice for no less than 36 years and who introduced commercial law to the law of England, was, above all, a man who could bring his mind up to date through most of those 36 years. This is what I suggest we are trying to do with this particular clause. Nobody imagines—still less lays claim—that it is going to do a great deal;but it is a tidying up measure, one which is worthy of rather more support than the scorn which has been poured upon it by noble Lords opposite.
§ Lord ROSS of MARNOCK
My Lords, with the leave of the House, I am perfectly sure that the noble Earl has done his best but it is not really good enough. When he says it was not suggested that this in any way was going to cure all the evils of vandalism, he should appreciate what
|Ailesbury, M.||Gardiner, L.||MacLeod of Fuinary, L.|
|Ampthill, L.||Goronwy-Roberts, L.||Northfield, L.|
|Ardwick, L.||Greenwood of Rossendale, L.||Ogmore, L.|
|Bacon, B.||Hale, L.||Peart, L.|
|Banks, L.||Houghton of Sowerby, L.||Phillips, B.|
|Barrington, V.||Hughes, L.||Ponsonby of Shulbrede, L.|
|Blease, L.||Jacques, L.||Raglan, L.|
|Blyton, L.||Janner, L.||Rhodes, L.|
|Boston of Faversham, L.||Jeger, B.||Rochester, L.|
|Brooks of Tremorfa, L.||Kaldor, L.||Ross of Marnock, L.|
|Cledwyn of Penrhos, L.||Kilmarnock, L.||Simon, V.|
|Clifford of Chudleigh, L.||Kinloss, Ly.||Stedman, B.|
|Collison, L.||Kirkhill, L.||Stewart of Alvechurch, B.|
|Cooper of Stockton Heath, L.||Lee of Newton, L.||Stewart of Fulham, L.|
|David, B.[Teller.]||Llewelyn-Davies of Hastoe, B.||Stone, L.|
|Davies of Leek, L.||Loudoun, C.||Strabolgi, L.|
|Davies of Penrhys, L.||Lovell-Davis, L.||Taylor of Blackburn, L.|
|Elwyn-Jones, L.||McCluskey, L.||Taylor of Mansfield, L.|
|Gaitskell, B.||Mackie of Benshie, L.||Tweeddale, M.|
was put forward in that document from which this stems. I will quote the words again:
Accordingly, in an endeavour to cut down the amount of vandalism and to prevent such in future, we recommend that a separate statutory offence of vandalism be created with appropriate penalties".
That was in the report Crime and its Remedies, and it was put forward in the Scottish Tory Manifesto at the last election. The effort was made in the last Parliament to put it into the original Bill, and it was turned down. I think we have had enough on this; the thing is so bad it really is indenfensible. I hope that we shall see our way to getting rid of it from the Scottish statute.
§ Lord WILSON of LANGSIDE
My Lords, I agree with the noble Lord, Lord Ross of Marnock, that we have had enough of this. I think there is one small error of the noble Earl's which should be pointed out to him. He suggested that there was nothing wrong with cosmetology, as I understood him. He said to your Lordships that after all one's loved one, who was attractive at all times, became even more attractive when more elaborately adorned with the cosmetic. He is quite wrong. One only thinks that she is more attractive. This of course is the whole point of the objections to this provision.
§ 6.33 p.m.
§ On Question, Whether the said amendment (No. 102) shall be agreed to?
§ Their Lordships divided: Contents, 66; Non-Contents, 90.219
|Wade, L.||Whaddon, L.||Wilson of Radcliffe, L.|
|Wallace of Coslany, L.||Wigoder, L.||Winterbottom, L.|
|Wells-Pestell, L. [Teller.]||Wilson of Langside, L.||Wynne-Jones, L.|
|Ailsa, M.||Gisborough, L.||Murton of Lindisfarne, L.|
|Airey of Abingdon, B.||Gowrie, E.||Newall, L.|
|Amory, V.||Gray, L.||Nugent of Guildford, L.|
|Auckland, L.||Greenway, L.||O'Hagan, L.|
|Balerno, L.||Gridley, L.||Orr-Ewing, L.|
|Bellwin, L.||Grimston of Westbury, L.||Pender, L.|
|Belstead, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Polwarth, L.|
|Brookeborough, V.||Reigate, L.|
|Caithness, E.||Harmar-Nicholls, L.||Renton, L.|
|Carrington, L. (A Principal Secretary of State.)||Henley, L.||Rochdale, V.|
|Hives, L.||St. Aldwyn, E.|
|Cathcart, E.||Holderness, L.||St. Davids, V.|
|Cork and Orrery, E.||Home of the Hirsel, L.||St. Just, L.|
|Cottesloe, L.||Hornsby-Smith, B.||Sandford, L.|
|Craigavon, V.||Inglewood, L.||Sandys, L. [Teller.]|
|Cranbrook, E.||Killearn, L.||Selkirk, E.|
|Croft, L.||Kilmany, L.||Sempill, Ly.|
|Cullen of Ashbourne, L.||Kimberley, E.||Strathclyde, L.|
|Daventry, V.||Kinnoull, E.||Strathcona and Mount Royal, L.|
|Denham, L.||Lauderdale, E.||Strathspey, L.|
|Drumalbyn, L.||Long, V.||Sudeley, L.|
|Dulverton, L.||Lyell, L,[Teller.]||Swansea, L.|
|Elliot of Harwood, B.||Mackay of Clashfern, L,||Tranmire, L.|
|Exeter, M.||Macleod of Borve, B.||Trefgarne, L.|
|Faithful, B.||Mansfield, E.||Trenchard, V.|
|Falkland, V.||Margadale, L.||Vaux of Harrowden, L.|
|Ferrers, E.||Massereene and Ferrard, V.||Vernon, L.|
|Fraser of Kilmorack, L.||Mills, V.||Vickers, B.|
|Gainford, L.||Morris, L.||Vivian, L.|
|Galloway, E.||Mottistone, L.||Young, B.|
|George-Brown, L.||Mowbray and Stourton, L.|
§ [Amendment No. 103 not moved.]
§ Clause 80 [Short title, commencement and extent]:
§ 6.40 p.m.
Lord MACKAY of CLASHFERN: moved Amendment No. 104:
Page 49, line 31, at end insert ("paragraph 8 of Schedule 6;").
§ The noble and learned Lord said: My Lords, it may be for your Lordships' convenience if I were to seek to explain Amendments Nos. 104, 105A, 105B, 105C, 105D and 105E and together. These are paving Amendments in respect of later amendments concerning the Rehabilitation of Offenders Act 1974 and the Criminal Justice Act 1961. These later amendments are Nos. 126, 127A, 129 and 133B on the Marshalled List.
§ The Rehabilitation of Offenders Act 1964, which applies throughout Great Britain, contains reference to particular 220 Scottish court disposals. The purpose of the present amendment to Clause 80 is to ensure that the amendments to the 1974 Acts, as contained in Amendments Nos. 126 and 129, also apply to Britain as a whole. The relevant parts of the Criminal Justice Act 1961 relating to transfer of prisoners apply on a United Kingdom basis. These amendments to Clause 80 ensure that the later amendments with regard to the 1961 Act, consequential on the new Scottish court disposals in respect of young offenders, have the same extent as the 1961 Act itself. I beg to move.
§ Lord MACKAY of CLASHFERN moved Amendments Nos. 105A, 105B, 105C, 105D, and 105E:
§ Page 49, line 32, after ("6(a)") insert ("6A to 6D, 16A,")
§ Page 49, line 33, leave out ("section 32(2)(b) of")
§ Page 49, line 38, after ("6(a)") insert (", 6A to 6D")
§ Page 49, line 39, leave out ("section 32(2)(b) of")
§ Page 49, line 41, leave out ("paragraph 6(a)") and insert ("paragraphs 6(a) and 6B(a)").221
§ Schedule 1 [Certificates as to certain matters requiring to be proved]:
§ The EARL of MANSFIELD moved Amendment No. 106:
§ Page 50, column 3, leave out lines 6 to 8 and insert—
§ ("The accuracy of any particular—
- (a) speedometer fitted to a police vehicle;
- (b) odometer fitted to a police vehicle;
- (c)radar meter;or
- (d) apparatus for measuring speed, time or distance,
§ The noble Earl said: My Lords, in order to ensure that the matters referred to in column 3 keep abreast with the advancement of technology, it is necessary to amend column 3 as is proposed. Noble Lords will be familiar with the radar method of detecting speeding offenders and the apparatus involved in such methods is already referred to in column 3. However, noble Lords may not be quite as familiar with new methods of detecting speeding offences also now in operation, and it is to enable the accuracy of the apparatus used in those new methods to he proved by certificates under column 3 that this amendment is proposed. I am thinking particularly of a device now being used which is known as VASCAR—the vehicle average speed computer and recorder—which is installed in a police car and which computes the speed of a vehicle by the use of time. Also there has recently been introduced a piece of apparatus similar to a gun which can be pointed at a particular vehicle and it computes speed by measuring time and distance and the ratio thereof. Its title is the Muniquip Hand-held Digital Radar. The addition of the words identified in the certificate by reference to its number or otherwise is necessary for evidential purposes in order to prove that the apparatus mentioned in the certificate is the same apparatus as was used to calculate the speed of the offending vehicle, the serial number of which apparatus will also have been noted at the time of the offence. I beg to move.
The Earl of SELKIRK
My Lords, I am grateful to the noble Earl for this amendment, which is very much clearer than it was before. It has to be tested by two police officers. I take it they are 222 qualified to test these highly complicated advances in technology, based on what in the RAF we used to call the Doppler system many years ago. Surely in a statute you should have your etymology correct. I know that the word "odometer "is used, but surely this is correctly the "hodometer". It has nothing to do, of course, with the dialect spoken by some inhabitants of London but it has a definite classical origin. I wonder whether the noble Earl would consider, although the word "odometer "may be used colloqually, that "hodometer "is surely the correct word—it means, I hasten to say, it is simply the measurement of distance.
§ The Earl of MANSFIELD
My Lords, I am bound to say I do not know whether it was a cockney who actually drafted this. I do not think we have many in the Scottish Office, but I will look up this point.
§ [Amendment 107 not moved.]
The Earl of MANSFIELD moved Amendment No. 108:
Page 50, line 10, column 3, leave out ("substance") and insert ("particular substance, identified in the certificate by reference to a label or otherwise,").
§ The noble Earl said: This amendment is similar in purpose to the last few words of the previous amendment to column 3. If a substance has been analysed and is certified as being a particular substance, there must be some means of linking the substance so analysed with the substance being produced in court, having been found in the possession of a named person or in a specified place. As the substance being analysed would be accompanied by a label, identifying where or on whom it was found, the information on that label must be included in the certificate in order that the court can be sure that the substance referred to in court is the same substance as that which was analysed. This amendment therefore is for evidential purposes, and I beg to move.223
§ Schedule 2 [Solemn appeals]:
§ Lord MACKAY of CLASHFERN moved Amendments Nos. 109, 110 and 111:
§ Page 53, line 30, leave out ("Within two weeks of") and insert ("As soon as is reasonably practicable after")
§ Page 53, line 40, leave out ("within the period") and insert ("as")
§ Page 53, line 42, leave out ("extend such period") and insert ("call for such report to be furnished within such period as it may specify").
§ The noble and learned Lord said: My Lords, to take Amendments Nos. 109 to 1 1 1 together, these amendments are implementing a request of the noble and learned Lord, Lord Wheatley, made at the Committee stage of the Bill. Noble Lords will recall that as the Bill stands at present, trial judges will be obliged in solemn appeal cases to lodge with the clerk of judiciary a report on the case within two weeks of receiving the note of appeal. The noble and learned Lord, Lord Wheatley, suggested that, in view of the heavy commitments of judges, particularly when on circuit, it might not always be possible to produce the report within two weeks.
§ The Thomson Committee and the Government recognised that this was a problem and provided in the Bill that the High Court could extend the time limit if necessary. The noble and learned Lord suggested that this was a cumbersome procedure and, having considered the matter further, the Government have decided that there are advantages in the alternative procedure he proposed. The amendment will oblige the judge to submit his report as soon as reasonably practicable after receiving the note of appeal. As the noble and learned Lord, Lord Wheatley, observed at Committee stage, judges and sheriffs can be trusted to produce their reports as expeditiously as possible, and the Government are content to leave the matter to the control of the Lord Justice-General to ensure that the amendment will not lengthen the appeal procedure in solemn cases. I beg to move.
§ Lord McCLUSKEY
My Lords, just a brief word to say that the Government are to be congratulated on their flexibility here. The noble and learned Lord the Lord Advocate was slightly more rigid when the matter was raised at a previous 224 stage, but I think the reasoning which was put forward by the noble and learned Lord, Lord Wheatley, is absolutely sound. There is no reason to fear that there will be any delay resulting from the acceptance of this provision.
§ 6.50 p.m.
Lord MACKAY of CLASHFERN moved Amendment No. 112:
Page 55, line 21, leave out ("such as is mentioned in section 228(2) of this Act") and insert ("relevant to any alleged miscarriage of justice").
§ The noble and learned Lord said: My Lords, I should perhaps speak to Amendments Nos. 112 and 115 together, because the point is the same in both. The House will remember that in paragraph 16 of Schedule 2 the Bill amends the existing powers of the High Court to hear additional or, as it is more commonly known, fresh evidence. During examination of the provision, it has been suggested that Section 252(b) would not, as drafted, empower the High Court to hear any evidence brought by the Crown to rebut any additional evidence brought by the appellant.
§ The Government believe that it is essential to allow the High Court to hear evidence put forward by the Crown to help them to assess the weight to be attached to the additional evidence, if such evidence is available to the Crown, when deciding whether or not to exercise their power to quash the conviction or to set aside the verdict. Accordingly, this is really to allow the court, in considering new evidence, to consider not only the new evidence offered by the appellant, but also any evidence which the Crown may offer which may throw some light upon that. My Lords, I beg to move.
Lord McCLUSKEY moved Amendment No. 113:
Page 55, line 48, leave out from ("court") to end of line 3 on page 56.
§ The noble and learned Lord said: My Lords, this is the last amendment of any real substance that may be in dispute, and I should like to take a minute or two—but I hope not too long—to explain what the circumstances are. I believe 225 that I also have something new to say on this matter, because the subject was dealt with at some length at a previous stage.
On page 55 and at the top of page 56 of the Bill, your Lordships will find in paragraph 18 of Schedule 2 that under the Bill the High Court may dispose of an appeal against conviction by doing a number of things, one of which, in paragraph (c) at the top of page 56, is,
setting aside the verdict of the trial court and granting authority to bring a new prosecution in accordance with section 255 of this Act".
When I was considering the provisions of the Criminal Justice (Scotland) Bill which was introduced by the last Government, I argued in favour of a retrial provision in summary cases;that is to say, cases which were heard and determined by a sheriff. This paragraph, however, deals with cases heard and determined by a jury.
§ What happens, of course, is that when a jury considers a case the verdict tends to attract a good deal of publicity, particularly if it is a verdict of conviction. There is a lot of publicity in the local newspapers. Therefore, if one comes back to retry the same case—and I put this argument forward earlier—one will find it rather more difficult to get an impartial jury which has not been influenced by what was said on the previous occasion.
§ The new point that I want to make—it is new in the sense that I have not made it before, and I think that your Lordships should hear it—is one that struck me very forcibly in two cases, in one of which I was involved last week and one some years ago;the case against the nurse, Jessie McTavish. What happened on each of those occasions was that, when the accused was convicted at the end of his or her first trial, the newspapers then printed a good deal of material as to the background, the character, the previous convictions, the general circumstances of the police investigation and so on, being material of a kind which could not have been published before the trial, because to have done that would have been contempt of court. So that there was a great deal of material put into the popular newspapers and read by the public in both these cases, which attracted a good deal of interest.226
§ If one imagines either of these cases proceeding to the appeal court and being dealt with in the way permitted by this paragraph and a retrial being allowed, then it is not just a question of the jury saying, "We know the result of the previous trial". They will also know what the journalists have dug up in the way of accurate and inaccurate material. They will know what the journalists have found and have published in the newspapers, and it would be extremely difficult to get an impartial jury. I believe that this is a matter of great importance.
§ Of course, in this type of case, as in any other, the Lord Advocate has a discretion not to prosecute and I have no doubt that, if he felt that the publicity had been of a kind that might prejudice the second trial, he would decide not to order a retrial. But then one gets into the odd position that it becomes a matter of chance whether or not you proceed with the second trial. If one accused is lucky enough to have had his character blackened by this material, following upon his first conviction, the Lord Advocate will decide that he cannot, in fairness, prosecute him on the second occasion. But if another one happens to hit the newspapers on a hot news day and gets no publicity or no investigative journalism, the Lord Advocate then feels free to prosecute him a second time, because there has been no adverse publicity. So it becomes very much a matter of chance.
§ The other point—and I think that the Lord Advocate accepted this earlier—is that the possibility of a retrial will be limited to a very small number of cases, and I think he will accept that some of these will be cut out by the risk of prejudice. So is the provision really worth while? One is talking about jury trial cases which might involve murder or rape, and which would certainly be very serious indeed, and I cannot see how a jury could put out of their minds the kind of material which got into the newspapers on the occasion of the first trial. In a sense, it is slightly worse than that, because when the case is heard on appeal, it gets a second burst of publicity with additional information, and so it becomes very difficult to get a jury which is impartial.
The other new matter which I want to bring to the Lord Advocate's attention
on this point is that the Faculty Committee—to which I referred earlier, and which puts its findings before the Faculty of Evidence at five o'cock tonight and therefore I do not know what is the Faculty's conclusion—spoke of this paragraph in these terms:
We are not enthusiastic about this and some of our number are strongly opposed to it".
They referred to the case of Jessie McTavish as being a case in which one might have had a retrial, and they said:
The new trial would he bound, in practice, to come after a prolonged delay ",
and that is a point that I have not made. The delay is important and all serious criminal cases in Scotland are dealt with within 110 and 118 days. Here is a very considerable delay.
The report goes on,
…and the accused is made to suffer for what is not his mistake, such as the judge's misdirection. Furthermore, cases such as McTavish have inevitably attracted much publicity during the trial and again at the allowance of the appeal, with the inevitable result that the jury at the new trial would be likely to have a biased approach to the case".
So the Faculty Committee is obviously arguing strongly against this provision. I do not expect the Governement to move on this tonight, but I ask them to consider very seriously, before they come to the matter again, whether or not this is really worth going ahead with. My Lords, I beg to move.
§ Lord MACKAY of CLASHFERN
My Lords, I immediately accept that this is an important and serious matter, and it is one to which we have given a great deal of thought. It is a power in the court that we are seeking here and, of course, that means that they would take account of all the circumstances in deciding whether to exercise it. As I said earlier, the court's power is simply to allow the Lord Advocate to re-indict. It would be for the Lord Advocate to consider, in any particular circumstances, whether it was fair to proceed.
The noble and learned Lord said that it was a bit hit or miss, depending on whether there had been publicity, but that is the situation at the moment. During the tenure of office of the noble 228 and learned Lord, he had to face this problem in connection with a first trial, where somebody, no doubt through misunderstanding or inadvertence, put out a programme on television which was thought to be rather damaging to the prospects of a fair trial in that case. So even at present, in relation to that kind of adverse effect on proceedings, you can get what might be called a chance and that chance has to be dealt with. Of course, there are various steps that the court can take to limit the effect of prejudicial publication, such as giving directions and so on.
The situation appears to me to be that not very often but from time to time there are cases of extreme balance which come before the courts. This power is only available—I want to emphasise this—where a person has already been convicted by a jury. It is not a case of the Lord Advocate being able to ask for a new trial because the first jury found the accused not guilty. It is a power available only on appeal when the accused has been convicted. Therefore, I think that the existence of this power will in the end be to the advantage of the accused person in a narrow case. That is the way I would see its principal thrust.
The difficulties, I agree, exist. These arc difficulties which we cannot remove but there are certainly some steps that can be taken to minimise them. Of course, the principal publicity one would expect to be that the accused was subject to a decision by the appeal court to set aside the previous conviction. That would be an important element in any publicity. So while I appreciate the difficulty of the position and while I appreciate that there are circumstances which might make it very inadvisable to use this power, we feel that since it is a power for the court, and in the discretion of the court, it is one which we should give to the court, leaving the court with that discretion;and they would take account of all the circumstances. I feel that to remove this power which, as the noble and learned Lord said, he has argued for in summary cases, would be to damage the Bill.
I would invite the noble and learned Lord to accept the assurance that we have considered the matter very fully. The recommendations of the Faculty of Advo- 229 cates Committee is a new factor, so far as I am concerned. I shall certainly look closely at these recommendations, and also at whatever the Faculty may have to say about it. In the meantime, however, our view is that this power should remain. I hope that that will satisfy the noble and learned Lord.
§ 7.3 p.m.
§ Lord McCLUSKEY
My Lords, I really do not think that my argument has been satisfactorily answered by the noble and learned Lord the Lord Advocate. What he said first of all was that this kind of prejudice, or possible prejudice to a trial, can happen at the present time. Well, it can, and it happens extremely rarely. It may be that if it is bad enough, one cannot proceed with the trial. That has happened at least once fairly recently. But under the Bill it is almost built into this type of case because all these cases will or may have attracted a good deal of publicity. So one is going to have it happening not rarely but very frequently in this type of case.
It is certainly very important that the newspapers will at the moment, if they publish material about the accused and his background and the circumstances before his trial, be in contempt of court, or may well he so. Therefore, they will not do it, but they are perfectly free to do so the day after his conviction. So that material will inevitably come out and will create great problems in this type of case.
The noble and learned Lord used an argument about these cases being cases of extreme balance. In other words, the appeal court, in effect unable to make up its mind, plumps for the retrial provision. I find that to be a very surprising argument. If it were in such doubt at the present time, I should have thought that the appeal court would quash the conviction. One just has to live with that circumstance. Certainly these cases of extreme balance are the very last cases that one wants to put out for trial before a jury which has read the kind of publicity to which I have referred.
The noble and learned Lord the Lord Advocate used a very curious argument to the effect that one of the factors which would get publicised would be that the 230 appeal court had quashed a conviction, subject to this. But with respect that is a very had argument. In a sense, all publicity about a criminal trial, no matter who it favours, whether the accused or the prosecution, is bad publicity. It is prejudicial to the trial. Therefore, if a jury conies along saying to themselves that they have heard that the appeal court has quashed the conviction, is that a desirable frame of mind for a jury to approach the consideration of a case? I should have thought not. They should come and decide the case upon the evidence, not upon the basis of what they have read in the newspapers.
Lastly, the noble and learned Lord the Lord Advocate frowns heavily upon the discretion of the court. Under the Bill, the court is given this discretion, but the court does not in fact know generally about the kind of publicity I am talking about. I do not suppose that every member of the appeal court considering a case of this kind will cast his mind back to the day after the trial two or three months before and be able to recall to his mind what the Daily Record said about it, what the Daily Express said about it, what the Glasgow Evening Times said about it, or, indeed, what any provincial newspaper might have said about a case that was tried in Oban, or Dumfries, or whatever. So the court is not really in a position to judge what the prejudice may be locally. The court sits in Edinburgh and the case may have been tried in Ayr, or Oban, or Glasgow.
I do not suppose the noble and learned Lord the Lord Advocate would at the appeal stage bring to the attention of the court articles contained in the Scottish Daily Express, or the Daily Record, or the Oban Times, or whatever it may be. So I do not think that these arguments are very sound. However, I know from the position of the noble and learned Lord the Lord Advocate on the rest of the Bill—indeed, this applies also to the noble Earl, Lord Mansfield—that on many issues they have looked carefully at the arguments and come to a different view. In the hope that they will do so again and certainly look at the fresh arguments and at the views of the Faculty of Advocates, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.231
§ Lord MACKAY of CLASHFERN moved Amendment No. 114:
§ Page 57, line 20, after ("(2)") insert ("—
- (a) for the words "ten days there shall be substituted the words "two weeks ";and
§ The noble and learned Lord said: My Lords, this amendment is designed to deal with the following problem. Section 264 of the Criminal Procedure (Scotland) Act 1975 provides that in cases where disqualification or forfeiture of goods, which in some cases may be ordered to be destroyed, is ordered on conviction, this order will not take effect until 10 days after the date of conviction. The purpose of this provision is to delay the imposition of these penalties until it is known whether the convicted person is to appeal. The present time limit of 10 days is also the time limit for the lodging of appeals. As noble Lords will no doubt recall, paragraph 3 of the schedule, in line with the recommendation of the Thomson Committee, changes the time limit on the first stage of appeals to two weeks. It is therefore necessary to change the date at which disqualifications and other similar penalties begin to take effect to two weeks after the date of conviction. I beg to move.
§ Schedule 3 [Summary appeals]:
Lord MACKAY of CLASH FERN moved Amendment No. 115:
Page 64, line 5, leave out ("such as is mentioned in section 442(2) of this Act") and insert ("relevant to any alleged miscarriage of justice").
Lord MACKAY of CLASHFERN moved Amendment No. 116:
Page 67, line 6, leave out ("452A(1)(c)") and insert ("452A(1)(d)").
§ The noble and learned Lord said: My Lords, this is a misprint. I beg to move.
§ Schedule 4 [Abolition of mandatory first diet]:
§ The noble and learned Lord said: My Lords, I sought to explain this amendment on the previous occasion, at col. 1258 of Hansard. I beg to move.
Lord MACKAY of CLASHFERN moved Amendments Nos. 118 and 119:
Page 70, leave out from beginning of line 8 to ("as") in line 11.
Page 70, line 12, leave out ("or in sub-paragraph (i) or (ii) above").
§ The noble and learned Lord said: My Lords, if I may take together Amendments Nos. 118 and 119, these amendments seek to delete two specific grounds on which a party to a trial may apply for a preliminary diet. They reflect the terms of an amendment tabled by the noble and learned Lord, Lord Wheatley, in Committee. On consideration, we have decided to give effect to them. I beg to move.
§ Lord MACKAY of CLASHFERN moved Amendments Nos. 120 to 123:
- Page 73, line 31, at end insert ("shall")
- Page 73, line 32, leave out ("shall")
- Page 73, line 35, leave out ("shall")
- Page 73, line 38, leave out ("may, if he thinks fit,").
§ The noble and learned Lord said: My Lords, if I may take together Amendments Nos. 120 to 123, again this is intended to give effect to the request that the noble and learned Lord, Lord Wheatley, put to the Committee. The amendments seek to impose a duty on a sheriff to append a note of his reasons when he remits a case for sentence to the High Court. The Bill at present allows him discretion to do so if he thinks fit. We are impressed by the strength of this argument. It is obviously extremely useful for a judge in the High Court to know why the sheriff did remit and it does not seem that the additional burden that this would place on sheriffs would be very great. I beg to move.233
§ Schedule 6 [Transitional provisions]:
§ 7.10 p.m.
The EARL of MANSFIELD moved Amendments Nos. 124 and 125:
Page 76, line 48, leave out ("to 31") and insert ("29, 31").
Page 77, line 5, after ("27") insert (", 30").
§ The noble Earl said: My Lords, it may be convenient to take these two amendments together. The purpose of these two minor amendments is to remove the reference to Clause 30 (which deals with additional evidence and evidence in replication) from paragraph 1 of Schedule 6 and add it to paragraph 2 instead. The effect of this is to enable Clause 30 to apply, as soon as it is brought into force, to solemn trials where the jury has not yet been sworn in and to summary trials where the first witness has not yet taken the oath. As the Bill is drafted at present, Clause 30 would not apply to any case where the petition or complaint had been served. I beg to move.
§ The Earl of MANSFIELD moved Amendment No. 126:
Page 77, line 33, at end insert—
("8. A provision contained in paragraph 16A of Schedule 7 to this Act shall not affect the operation of the Rehabilitation of Offenders Act 1974 as regards any disposal which predates the coming into force of that provision.").
§ The noble Earl said: My Lords, if I may I shall also speak to Amendment No. 129. These arc consequential amendments arising from the new court disposals relating to children and young offenders introduced in Clauses 42–44. The Rehabilitation of Offenders Act prescribes, in relation to the type of court disposal, periods after which convictions become "spent "and the offender is rehabilitated. The effect of these amendments is to relate the new disposals contained in Clauses 42–44 to the appropriate rehabilitation period in the 1974 Act. I beg to move.
§ Lord RENTON
My Lords, it is with some reluctance that I intervene at this stage because it is said that we are dealing with minor and consequential amendments. Nevertheless, the rehabilitation of offenders is a matter which can be of very great importance to individuals. I 234 tried to understand Amendment No. 126 and found that in order to do so I had to refer to Amendment No. 129. I can raise no complaint on that score by itself, but when one looks at the two amendments together one finds that there are no fewer than six statutory provisions to which one has to refer. These statutory provisions are interrelated. Some of them amend each other, and I must confess that I was quite unable to understand the effect of these two amendments, although I am not without some experience of having to understand statutory provisions.
I hope that I now understand the effect of Amendment No. 126, which seems to me merely to state that there shall be no retrospection in the application of the Rehabilitation of Offenders Act 1974 so far as it relates to Scotland, as a result of this Bill. But when we come to Amendment No. 129 the matter is of course far more complicated. Indeed, it is quite impossible, even with great application, to understand the effect of Amendment No. 129, and even by means of careful cross-checking of the various statutes. Although one is always grateful to my noble and learned friend for his clear explanations and to the noble Earl Lord Mansfield, I feel that Amendment No. 129 might well have been accompanied by some kind of explanatory memorandum.
As to Schedule 7, generally speaking all that the memorandum in the original Bill gave by way of explanation was that the schedule lists the minor and consequential amendments. But these so-called minor and consequential amendments can affect not only the application of the Rehabilitation of Offenders Act but also the way in which even children are dealt with by the courts and transferred perhaps from one country to another to serve such sentences as the courts may impose.
Therefore, I feel that this is one of those occasions on which in either House of Parliament Members are really obliged to remind the Government yet again—and it has been done so often in the past —of the need to explain the effect of complicated provisions. If these really were merely technical details I should not be inflicting upon your Lordships the kind of point which I am now making, 235 but these are matters which affect the liberty of the subject, including the future of young children.
Also if we may look in a more general way—and I hope I am entitled to do so, using this amendment as a peg on which to hang the argument—at Schedule 7, which deals with the transfer of offenders from one country to another, one knows that for party political reasons that has become a very sensitive matter indeed. Therefore we really should be aware of what we are doing. I must confess that I am not totally aware of the effect of these amendments.
§ The Earl of MANSFIELD
My Lords, my noble friend not only has expertise;he has experience, and if he confesses that he is either perplexed or, even worse, bemused, who am I to contradict him? I do not know whether the effect of my noble friend's remarks was what I might call a cri de Coeur or a complaint, but maybe it will reassure him to some degree if I say that I shall look very closely at what he has said, in the Official Report, and I have no doubt that if my learned friend and I think that it calls for action, so to speak, after this Bill reaches the other place, that will be put into the Bill.
§ Lord McCLUSKEY
My Lords, perhaps I may intervene to support what the noble Lord, Lord Renton, has said. The difficulty here is not simply one of following through the provisions;there is the difficulty of having time even to attempt the task. Of course, the Government have Notes on Clauses for the benefit of Ministers and those notes on clauses will undoubtedly contain at least the signposts as to what each provision will contain. I should have thought that perhaps the proper thing for the Government to think of doing at once is to put into the Library the Notes on Clauses, either on the whole Bill or certainly on the so-called minor and consequential amendments, so that those who are interested do not have to undertake the task for which perhaps the noble Lord. Lord Renton, is uniquely fitted but the rest of us simply do not have either the qualifications or the time to pursue.
§ Schedule 7 [Minor and consequential amendments]:
§ 7.20 p.m.
§ The Earl of MANSFIELD moved Amendment No. 127A:
§ Page 78, line 41, at end insert (";and
§ (c) after subsection (2) there shall be inserted the following subsection—
§ (2A) Without prejudice to section 69(2) of the Criminal Justice Act 1967, in subsection (2) above references to a prison shall be construed as including references to a place which is the subject of a direction of the Secretary of State under section 206(1) of the Criminal Procedure (Scotland) Act 1975."
§ The Criminal Justice Act 1961 (c. 39)
§ 6A. In section 26 (transfer to serve sentence)—
§ (a) in subsection (5)—
- (i) after the word "Kingdom "where it first occurs, there shall be inserted the words "other than Scotland ";
- (ii) in paragraph (a) of the proviso, for the words "from England and Wales "there shall be substituted the words "to Northern Ireland ";and the words "Scotland or "shall cease to have effect;and
- (iii) in paragraph (b) of the proviso, the words "Scotland or "shall cease to have effect;and
§ (b) after subsection (5) there shall he inserted the following subsection—
§ " (5A) Where a person sentenced to borstal training is transferred under this section to Scotland the provisions applicable to him shall he those applicable to a person sentenced in Scotland to detention in a young offenders institution:
§ Provided that
- (a) the maximum and minimum periods for which he may be detained in a young offenders institution shall be those prescribed by—
- (i) in the case of a person transferred from England and Wales, section 45(2) of the Prison Act 1952 as amended by section 11 of this Act;
- (ii) in the case of a person transferred from Northern Ireland, section 21 of and Schedule 2 to the Prison Act (Northern Ireland) 1953;
- (b) at any time after the expiry of such minimum period he may be released on the direction of the Secretary of State;and
- (c) the period after his release (whether on a direction under paragraph (b) above or on the expiry of such maximum period) during which he remains under supervision and liable to be recalled shall be that which would
237 have applied under the law of the place where he was sentenced if he had been released there.".
§ 6B. In section 32(2) (extension throughout the United Kingdom of certain enactments relating to supervision and recall)
- (a) paragraph (b) shall cease to have effect;
- (b) in paragraph (f), the word "11 "shall cease to have effect;and
- (c) in paragraph (i), for the words "214" there shall he substituted the words "212, 214, 421".
§ 6C. In section 38 (construction of references to sentence of imprisonment)
- (a) in subsection (3)(a)—
- (i) the words "corrective training, preventive detention," shall cease to have effect;
- (ii) at the end there shall be added the words "or young offenders institution ";and
- (b) in subsection (5)(a), the words "in a young offenders institution "shall cease to have effect.
§ 6D. In section 39(1) (interpretation)—
- (a) in paragraph (a) of the definition of "appropriate institution ", after the word "Kingdom "there shall be inserted the words "other than Scotland ";
- (b) in paragraph (b) of that definition, the words "England and Wales or "shall cease to have effect;and
- (c)in paragraph (bb) of that definition, for the words "sentenced to imprisonment when under twenty-one years of age "there shall be substituted the words "under twenty-one years of age who is serving a sentence of—
- (i) imprisonment;
- (ii) borstal training;or
- (iii) detention in a young offenders centre in Northern Ireland, and".").
§ The noble Earl said: My Lords, in moving this amendment, perhaps I may speak also to Amendment No. 133B. These amendments have two purposes. The first is to amend the Prisons (Scotland) Act 1952 by adding to the list of institutions in Section 37(2) of the Act a reference to a place directed by the Secretary of State for the detention of child offenders under Section 206(1) of the Criminal Justice (Scotland) Act 1975 as contained in Clause 43 of the Bill. The effect of this change is to ensure that in calculating the priod to be served no account shall be taken of any period during which a child offender is unlawfully absent from such a place.
§ The second purpose is to amend and, through the Schedule 8 amendment, to 238 repeal certain provisions of the Criminal Justice Act 1961. That Act deals with the transfer of prisoners within the British Isles and at present includes reference to certain Scottish court disposals in respect of young offenders which are affected by the changes in Clauses 42 and 44 of the Bill, particularly abolition of borstal training in Scotland. The purpose of these amendments to Schedule 7 and Schedule 8 is, therefore, to secure that the provisions of the 1961 Act are adjusted to reflect the new Scottish court disposals. I beg to move.
§ Lord RENTON
My Lords, again one is grateful to my noble fiend Lord Mansfield for his explanation. Here I am able to praise the draftsman because in these very complicated amendments he has used the textual method of amending rather than the non-textual. But on the drafting of it I wonder if I may just seek information on one point: it arises at the last line of page 6 of the Marshalled List, where we see the words "shall cease to have effect ", and at the second line of page 7 where those same words appear, and they appear again three times towards the end of page 7. I have always understood that the words "cease to have effect "do not have the result of actually deleting those words from the statute which we are seeking to amend. In other words, we are saying those words shall remain in the statute but shall cease to have effect. That is not repealing. But the intention here seems to he to repeal.
I should have thought, therefore, that in order to achieve that object, instead of using the words "shall cease to haw effect "we ought to use the words "shall be repealed "or "shall be deleted This is admittedly a narrow draftine point, but as we are pursuing the practice of textual amendment, which is a good practice, I think we ought to make sure that we are doing it thoroughly.
§ The Earl of MANSFIELD
My Lords. this is a matter which the draftsmen will have to consider in the light of my noble friend's remarks. I am certainly not competent to deal with it at this moment.
§ The Earl of MANSFIELD moved Amendment No. 128:
§ Page 79, line 37, leave out paragraph 13 and insert—
§ ("(13) In section 62 (revocation of licences, etc.)—
- (a) in subsection (11), for the words "206 "there shall be substituted the words "205(2)";and
- (b) after subsection (11) there shall be added the following subsection—
- " (12) This section shall have effect, in its application to a person sentenced to be detained under section 207 or 415 of the said Act of 1975 (detention of young offenders) as if for any reference to a prison there were substituted a reference to a young offenders institution.".").
§ The noble Earl said: My Lords, the purpose of this amendment is to extend the meaning of the word "prison "for the purposes of Section 62 of the Criminal Justice Act 1967 to include young offenders' institutions. This is in order that the provisions of Section 62, which deals with the revocation of licences on the conviction of prisoners on licence, may apply to offenders paroled from young offenders' institutions. I beg to move.
§ The Earl of MANSFIELD moved Amendment No. 129:
§ page 80, line 13, at end insert—
§ 16A. In section 5 (rehabilitation periods for particular sentences)—
- (a) in subsection (l)(d)—
- (i) after the word "life ", there shall be inserted the words "or under section 205(2) or (3) of the Criminal Procedure (Scotland) Act 1975,";and
- (ii) for the words "or under section 57 of the Children and Young Persons (Scotland) Act 1937 (young offenders convicted of grave crimes)" there shall be substituted the words "(young offenders convicted of grave crimes) or under section 206 of the said Act of 1975 (detention of children convicted on indictment)";
- (b) in subsection (2), in Table B, in the first column—
- (i) for the words "57 of the said Act of 1937 "there shall be substituted the words "206 of the Criminal Procedure (Scotland) Act 1975 ";and
- (ii) the words "or under section 7 of the Criminal Justice (Scotland) Act 1963 "shall cease to have effect;
- (c) in subsection (5) for paragraph (c) there shall be substituted the following para-graph
- " (c) an order under section 413 of the Criminal Procedure (Scotland) Act 1975 committing a child for the purpose of his undergoing residential training;";and
- (d) in subsection (9)—
- (i) in paragraph (a), for the words "in a young offenders institution in Scotland "there shall be substituted the words "under section 207 or 415 of the Criminal Procedure (Scotland) Act 1975 ";and
- (ii) in paragraph (b) for the words section 57 of the said Act of 1937 "there shall be substituted the words "section 206 of the said Act of 1975".").
§ The noble Earl said: My Lords, I have already spoken to this amendment. I beg to move.
§ 7.26 p.m.
Lord MACKAY of CLASHFERN moved Amendment No. 130:
Page 80, line 35, leave out paragraph 22.
§ The noble and learned Lord said: My Lords, the purpose of this amendment is to give effect to another request that was made at Committee stage by the noble and learned Lord, Lord Wheatley, and supported by the noble and learned Lord, Lord Fraser of Tullybelton. Originally, it had been proposed to abolish the procedure known as certification, whereby a circuit court might remit a point of law for decision to the High Court in Edinburgh, because the Bill proposed making available to the court the possibility of having three judges sitting in the circuit court. The noble and learned Lords to whom I have referred argued persuasively that it might be wise to leave the possibility of a remit to the High Court in Edinburgh even though this other procedure was being introduced. We have been convinced that the retention of certification will allow the maximum flexibility to the circuit court in dealing with difficult points of law which may arise during the course of a case, and therefore we are proposing not to abolish this procedure. I beg to move.
§ Lord McCLUSKEY
My Lords, I welcome this change the Government are 241 introducing by this amendment. I say nothing more about it, other than to raise a point to which I really ought to know the answer. No doubt if the Lord Advocate cannot give me the answer the noble Lord, Lord Renton, will be able to do so. Schedule 7 which contains this paragraph 22 is headed "Minor and consequential amendments". What I want to know is whether the amendments there are both minor and consequential, that they have both of these characteristics, or whether some of them are minor, some of them consequential and some perhaps both.
§ Lord MACKAY of CLASHFERN
My Lords, this may well be a matter of opinion, but I think the intention is that the qualification applies;it is a cumulative qualification. It is for noble Lords to judge whether they are in fact as minor as all that.
§ Lord McCLUSKEY
With the leave of the House, I would merely ask in relation to paragraph 22, which proposes the addition of the following subsection which renders incompetent the procedure of certification, what that was consequential to.
§ Lord MACKAY of CLASHFERN
My Lords, it is consequential to the creation of the new procedure whereby three judges can sit on circuit. It was thought to be fairly minor to delete the old form and put this new one in its place, but we have been persuaded that there are advantages in having both. So we are making a minor amendment to the minor and consequential amendment schedule.
§ The Earl of MANSFIELD moved Amendment No. 131:
Page 84, line 11, at end insert—
(". In section 344(4)(a) (failure of witness to attend for precognition) for the words "24 "there shall be substituted the words "48".").
§ The noble Earl said: This amendment fulfils an undertaking which I gave in Committee when accepting an amendment proposed by the noble Lord, Lord Ross of Marnock. That amendment allowed a 242 witness 48-hours notice of precognition by the defence rather than the 24-hours notice which was proposed in Clause 9. This amendment makes the same extension of notice for witnesses called for precognition by the prosecution under Section 344(1) of the Criminal Procedure (Scotland) Act 1975. I beg to move.
§ Lord McCLUSKEY
My Lords, may I simply acknowledge with gratitude what the Government are doing here.
The Earl of MANSFIELD moved Amendment No. 132:
Page 85, line 42, leave out paragraph 57.
§ The noble Earl said: My Lords, this amendment deletes paragraph 57 of Schedule 7. It was only included in the Bill because of an oversight. It is redundant in this Bill since it is consequential on a provision of the previous Government's Bill which has been dropped. I beg to move.
§ Schedule 8 [Repeals]:
The Earl of MANSFIELD moved Amendment No. 133:
Page 87, leave out lines 25 to 27.
§ The noble Earl said: My Lords, this is a drafting amendment which deletes an unnecessary repeal. The repeal by Schedule 8 of Section 285(1) of the Customs and Excise Act 1952 is unnecessary since the provision was repealed on consolidation into Section 149(2) of the Customs and Excise Management Act 1979 which is itself repealed by Schedule 8. I beg to move.
The Earl of MANSFIELD moved Amendment No. 133A:
Page 87, line 30, in column three leave out ("proviso (i)") and insert ("paragraph (i) of the proviso").
§ The noble Earl said: My Lords, this is a drafting amendment the only purpose of which is to improve the style of the drafting at this point. I beg to move.243
§ The Earl of MANSFIELD moved Amendment No. 133B:
Page 87, in column three, leave out lines 42 to 45 and insert—
("In section 26(5), in each of paragraphs (a) and (b) of the proviso, the words "Scotland or".
§ In section 32(2), paragraph (b), and in paragraph (f) the word "11".
§ In section 38, in subsection (3)(a) the words "corrective training, preventive detention," and in subsection (5)(a) the words "in a young offenders institution".
§ In section 39(1), in paragraph (b) of the definition of "appropriate institution ", the words "England and Wales or".").
§ The noble Earl said: My Lords, I have already spoken to this amendment and so indeed has my noble friend. 1 am informed that the words, "shall cease to have effect "are, in fact, repealed in Schedule 8. I beg to move.
The Earl of MANSFIELD moved Amendment No. 134:
Page 90, leave out line 22.
§ The noble Earl said: My Lords, this amendment deletes from Schedule 8 the reference to Section 344(4) of the Criminal Procedure (Scotland) Act 1975. This provision, which deals with the punishment for contempt of court of a witness who fails to attend or who refuses to give information at precognition, was mistakenly listed in Schedule 8 for repeal. This amendment corrects this earlier mistake. I beg to move.
§ Lord McCLUSKEY:
My Lords, this is perhaps not a very good example, but the Government have certainly, in moving a number of their amendments and in accepting amendments proceeding from other parts of the House, moved some way towards meeting the criticisms that were voiced on Second Reading and in Committee. I should like to acknowledge the help that was given to me by the noble and learned Lord the Lord Advocate when he supplied me, in good time, with advance notice of a number of the Government amendments, particularly on important matters. The Government have yet the difficult task ahead of them of persuading us that the Bill is entirely right and they will have an even greater task no doubt when the Bill reaches another place.
244 I urge them, in the light of the very constructive debates which have taken place here on a number of the major points, to look further before they proceed with those provisions which have been much criticised in this House.
§ Lord RENTON:
My Lords, it might be convenient if I make a few brief comments following what the noble and learned Lord, Lord McCluskey, has said. He suggested earlier that the Government might very well provide Notes on Clauses or at any rate enable us to see them in the Library. There are good precedents for that. I think that when the noble and learned Lord, Lord Gardiner, was Lord Chancellor, he broke with precedent and made Notes on Clauses available, whether in that way or in some other way I am not sure. But it is certainly very helpful, especially during the Committee stage of a Bill.
However, when we reach the Report stage we find that an entirely new matter, not covered by Notes on Clauses, is introduced, as happened as regards Amendments Nos. 126 and 129. It may be that it comes within a part of the Bill or a schedule which is supposed to deal with minor and consequential matters. Nevertheless, it is sometimes a matter of great substance that arises afresh at the Report stage. When that happens, alas! the Notes on Clauses would not help, useful though they would have been at the Committee stage. Of course, the Government must be selective and one must rely upon them not to submerge us with paper or to place a heavy additional burden upon the draftsman. But when it is found that amendments tabled at the Report stage which appear technical are both confusing and matters of substance, then an explanatory memorandum, tabled with the amendments would be of great assistance.
§ Lord McCLUSKEY:
My Lords, with the leave of the House, I should like to make two points as regards that matter. First, the Notes on Clauses exist and there is no extra work, of course, for the draftsman. I often felt when in Government that they were born to blush unseen, as it were, and it was rather a pity because a good deal of work had gone into them and it would certainly help those who want to study the Bill closely to see them.
245 Even when it comes to the Report stage—and I accept what the noble Lord has said about there being a new matter at that stage—before the new matter is put into the Bill the Minister will receive from the draftsman and the administrative people a submission which is, in effect, equivalent to the Notes on the Clause. So that could be published.
§ The EARL of MANSFIELD:
My Lords, I shall certainly take very seriously the constructive remarks of my noble friend. Of course, other departments have different ways of going about matters, but so far as the Scottish Office is concerned, when we have any Bill like this again, I am sure that something on the lines that my noble friend has suggested will be more than welcome.
I do not know whether I detected from the remarks of the noble and learned Lord, Lord McCluskey, some slight indication that he might not actually be present on Third Reading, because it is not usual to make the type of valedictory remarks he made in the final stages of the Report stage. If my submission is not entirely unworthy, and it indeed represents the correct plan of the noble and learned Lord, I should like, on behalf of my noble and learned friend and myself, to thank him for the help that he has given, particularly behind the scenes but also in your Lordships' House, and to say that I do not mind having my tail twisted and my leg pulled, particularly when it results in what we hope will be much more satisfactory Bill going to the other place.