Lords Sitting of 21 May 1981

Preamble
The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Norwich.

Air Tickets: Evidence of Discounting
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have received evidence concerning the discounting of air tickets and, if so, what action they propose to take.
The Parliamentary Under-Secretary of State, Department of Trade (Lord Trefgarne): Yes, my Lords. I have received evidence, but none of it, so far as I can see, is evidence that would stand up in the courts.
Baroness Burton of Coventry: My Lords, I wonder whether I might ask the Minister two questions arising out of his Answer. Knowing of some of the evidence which has been submitted to him and how anxious to help are the people who submitted it, could he tell the House whether he has informed those people (a) that the information is not adequate, and (b) what information would be of assistance to him in taking action? Secondly, as the Minister told the House this week that he had seen many people and organisations on this matter, could he say in general whether those organisations were all wishing to make these discounted tickets available to everybody but that they were not sure how to do it?
Lord Trefgarne: My Lords, the views which have been expressed to me have been very wide-ranging. It would not be possible for me to identify a single thread running through the representations which I have received. As for the nature of the evidence that would be required, very briefly we should need proof that the purchaser of the ticket actually travelled on it; that he or she actually paid less than the approved fare, or that the ticket was purchased without compliance with the advance purchase or other special purchase conditions; and that the airlines concerned had connived at the discounted sale.
Baroness Elliot of Harwood: My Lords, since KLM, Air France and Swissair are selling tickets below the IATA price level and are allowed to break the rules, may I ask the Minister why British Airways and any other British airline should suffer and lose business because they are sticking to the IATA rules when nobody else is? Surely that is a fact which ought to help the noble Lord in his efforts to get this problem straightened out.
Lord Trefgarne: My Lords, the assertion which lies at the heart of my noble friend's question is not, I think, borne out by the facts.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that so far as Europe is concerned the great problem is the excessively high rate of air fares? May I ask him whether or not the Government during the period of their presidency of the Council of Ministers could use that special position to see to it that freedom is given to more competition, which would bring down air fares in that area, as it has done in others? During that period of six months we are in a special position to support the transport committee which runs the European Parliament. Would my noble friend be prepared to recommend to the Government that they do just that?
Lord Trefgarne: My Lords, my noble friend has eloquently enunciated the heart of my policy on this matter. I can assure my noble friend that I shall be doing precisely as he suggests. Your Lordships may know that a first document on this matter will be coming from the Commission to the Council of Transport Ministers very shortly after we assume the presidency.
Baroness Burton of Coventry: My Lords, in his answers to my supplementary questions, did I understand the noble Lord to say that there was no discernable thread running through the representations of all those who have been to see him—in other words, that they are not anxious for these discounted tickets to be extended to everybody? With regard to the first point which the noble Lord made, may we take it that if information such as he has described is given to him he will take action?
Lord Trefgarne: My Lords, on the first part of the supplementary question asked by the noble Baroness, the answer is as she put it: that not everybody who came to see me was anxious that these tickets should become as widely available as the noble Baroness is seeking. Some people had alternative proposals to make. As to whether action will be taken in the event of a suitable case coming before me, if there is a case where the evidence is likely, in our view, to stand up in court, we shall wish to take action. It is my duty to ensure that the law is properly upheld. On the other hand, I am not going to authorise the waste of public money on a prosecution which is bound to fail.

Kensington and Chelsea: Proposed Rate Increase
11.10 a.m.
Lord Boyd-Carpenter: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are aware of the very large increase in rate poundage proposed for 1981–82 by the Kensington and Chelsea Borough Council; and what action they propose to

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take to protect ratepayers from this heavily increased burden.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin:)My Lords, I am of course aware of the rate increase in Kensington and Chelsea this year. The greater part of it can be attributed to the requirements of the precepting authorities, particularly the Inner London Education Authority.
The Government are concerned about the high level of rate increases this year and the burden that places on ratepayers. We are now actively examining all the ways in which we could respond to this situation. Ultimately, excessive rate increases can most satisfactorily be avoided if expenditure at all levels is constrained.
Lord Boyd-Carpenter: My Lords, while thanking my noble friend for his Answer and disclosing the interest that I have the misfortune to live in the borough in question, is my noble friend aware that the rate poundage for private citizens is being increased by 52 per cent. over the rate poundage for the preceding year and that the local authority concerned in its circular to ratepayers puts a large part of the blame on Her Majesty's Government? In the circumstances, is not my noble friend prepared to consider use of the powers given under recent legislation to secure that this authority does in fact take effective steps to restrain its own expenditure?
Lord Bellwin: My Lords, I should say at once that I have the same interest in this matter as does my noble friend. I am also aware, as he is, of what the local authority said in their letter to ratepayers. In fairness to them it ought to be said that they have come out on the wrong end, as they see it, of the block grant allocation this year. But at the end of the day, rates come down to spending. That is the issue. As to whether or not the powers contained in the Local Government, Planning and Land Act are sufficient to deal directly with the matter in the way my noble friend would wish, I have to say that they are not. They are powers as to what one does about grant, not about what one does regarding putting ceilings or anything of that kind upon the domestic rate. To that extent the Act does not allow the Government to do what my noble friend is seeking. I hope, however, that the grant effects and other measures which the Government have taken will bring home to local authorities the fact that impositions of rate increases of this kind do impose intolerable burdens upon individuals. This is the problem.
Lord Shinwell: My Lords, as a matter of interest, may I ask the Minister whether he agrees that this area is Labour controlled?
Lord Bellwin: My Lords, of course I do not agree, because it is not Labour controlled.
Lord Grimston of Westbury: My Lords, may I ask my noble friend whether outside management consultants have yet been brought in at Kensington and
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Chelsea—where I do not have an interest to declare—as they have been in one or two other instances in the country?
Lord Bellwin: My Lords, I do not know whether that is so.
Lord Davies of Leek: My Lords, is the noble Lord aware that, for heaven's sake, some of us would ask him not to have outside controlled management? I saw it once in Chicago, where teachers had not received their wages for two years.
Lord Bellwin: My Lords, I understand the lighthearted way in which the noble Lord makes the point, but in fact it is important. As always it is perhaps not right to generalise. There are obviously situations where it could be most helpful, but there are others where it might not be so helpful.
Lord Orr-Ewing: My Lords, can my noble friend remind the House—and I declare an interest—what percentage of the total rate comes from ILEA and what from the police precept? These two precepts surely represent the majority of the rate burden. And is it not true that under the new Left-wing dominance of the GLC the intention has been announced that it is intended to have no financial restrictions in these areas and this will probably necessitate an extra rate demand in the autumn as a result of their policies?
Lord Bellwin: My Lords, as to the second part of my noble friend's question, I understand exactly that that is the declared intention. Indeed it was the declared intention, before they did so, of those who have now taken control of the GLC. It is also right, as my noble friend reminds us and as I hoped I had intimated in my original Answer, that certainly more than half of the increase in the rate in Kensington and Chelsea is due to the very high level of the Inner London Education Authority's spending. In fact, the consequent loss of grant and the increase in the precept costs ratepayers there 20p.
Lord Leatherland: My Lords, is it not a fact that the increased rates which are being imposed by Tory councils throughout the country are largely due to the fact that the Government have cut by about £97 million the grant which normally would be paid to councils?
Lord Bellwin: No, my Lords, that is not correct. In fact the mass—and I think that is the proper word to use in this context—of large rate increases throughout the country have come from Labour-controlled authorities and not from Conservative ones. There are individual special situations such as the one we are now discussing, mostly in London, because the emphasis of grant in London which had switched away in previous years to other parts of the country has now been marginally redirected back to London. That is the reason why it is mostly the London authorities which have had this problem with grant, but I do not accept the first part of what the noble Lord has said.
Lord Robbins: My Lords, would the Minister agree that, whatever the distribution of blame between central

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and local authorities for this intolerable burden, the fact is that the rating system, given the enlarged functions of local government authorities this century, has become totally obsolete?
Lord Bellwin: My Lords, the Government are very alert to that. I tried to imply that in my original Answer to my noble friend. It would, I think, be proper for me to say with perhaps more emphasis than I did initially, because it is no secret, that we are looking very closely indeed at exactly what might be done about this whole matter. I am sure that the noble Lord will accept from me that these are difficult issues and, whatever might or might not be done, they must stand the test of time. Therefore, although it is perhaps frustrating in that it seems to take more time, I think it is more important that we should try to get it right and that where we can we should be in close consultation with all concerned about the matter.
Lord Underhill: My Lords, as the Minister said that half the rate increase was due to the demands of the precepting authorities, is he able to tell the House what the other half is for, bearing in mind that this borough council does not have quite the severe inner city problems that other borough councils have; and also can he tell the House what representations the borough council has made to the Secretary of State?
Lord Bellwin: My Lords, I said—and I say again—that more than half the increase (not just half) was due to the precepting authorities. Quite clearly, it would not be right at Question Time for me to go into the individual figures pertaining to this—or, for that matter, any other—authority, but if the noble Lord would like to have more detailed information and he would care to write to me, I shall be glad to give it to him.
Lord Harmar-Nicholls: My Lords, so that the cause and effect may be properly assessed, can the Minister say what proportion of the 50 per cent. increase mentioned by my noble friend results from the reduced block grant?
Lord Bellwin: My Lords, it is hard to give the proportion off hand; it is not information that I have available at this moment, but I should be glad to write to my noble friend if he so wishes.
Lord Leatherland: My Lords, does the noble Lord recall that at the last election the Conservative Party said that it was pledged to abolish rates, and is he aware of the fact that instead of abolishing them it is putting them up?
Lord Bellwin: My Lords, it is not the Government who put rates up at all; it is the local authorities concerned. As I said originally, what puts rates up is spending, and, however you fool around with grants and adjust them, at the end of the day it is still a matter of how much you spend. That is the major factor in deciding what the rate levels will be.
Lord Boyd-Carpenter: My Lords, arising out of that answer, can my noble friend say whether or not he is
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satisfied that the local authority concerned has exercised the kind of restraint that has been very properly exercised in the adjoining City of Westminster?
Lord Bellwin: My Lords, it is difficult for me to answer that question and thereby to give an opinion upon that. What it is fair for me to say is that the council in question has quite a good record if we compare its spending and its achievement in relation to employees per head of the population and in many other ways. Its record really is a very good one. I think it is proper to say that. When we talk of increases we talk of percentages and percentages can be misleading because they are percentages on what? Where do you start? I happen to know that the authority in question is very concerned about this whole matter. Would that all others were as concerned as it is. It is looking very closely at all its spending.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers): My Lords, I think, with respect, that it might be appropriate to move on. We have given this Question a fairly long run.

Stansted: Costs of Inquiry
11.21 a.m.
The Earl of Cork and Orrery: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have agreed to pay the costs of the forthcoming public inquiry into the British Airport Authority's plans for a new terminal at Stansted.
Lord Bellwin: My Lords, in accordance with normal practice the Government will pay the costs of providing the inspector and his assessors. In addition, they have agreed in this exceptional case to pay the costs of accommodation.
The Earl of Cork and Orrery: My Lords, I thank my noble friend for that Answer. Is he aware that the British Airports Authority have sent out a brief, of which I hold a copy in my hand, which includes the following words:
"The Secretary of State for the Environment has announced that his department will pay the costs of the forthcoming public inquiry into the BAA's plans for a new terminal at Stansted"?
As this is an inaccurate statement of the position, will the Government be prepared to desire the authority to correct it in their next briefing note?
Lord Bellwin: My Lords, I am not sure why my noble friend, or the people who have the document to which he refers, feel that this is an inaccurate statement. So far as I am aware, this is a correct statement. I am not quite sure that I am following my noble friend's point.
Lord Renton: My Lords, does my noble friend recollect that the last major inquiry of this kind was that held by the Royal Commission into the third London

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airport, the so-called Roskill Commission, which lasted several years and involved local authorities and many private individuals in very large expenditure, expenditure which was for the public benefit as well as for the benefit of those represented? Bearing in mind that there is likely to be a repetition, on a slightly smaller scale but still a very large scale, of the kind of costs that were incurred on the previous occasion, I wonder whether the Government would consider, even in these times of necessary economy, at any rate helping with the costs of the local authorities, which might be considerable.
Lord Bellwin: My Lords, perhaps I did not make it clear enough in my original Answer, but I thought I said that in fact we will be meeting the costs of the local authorities in this case. It is the normal practice for the authority to pay but in this case the Uttlesford District Council, who are the planning authority, asked that the Government should pay because of the exceptional circumstances, and we felt that that was right. So in fact I am agreeing with my noble friend, that having regard to all the expense involved, and the fact that this is the third time round, we should meet these expenses, and that is why we are doing so.
Lord Mottistone: My Lords, would my noble friend not think that it was fair if some sort of assistance could be given to the private protesters of the local area in this particular case? They have collected money and fought three times, and really to go round the buoy again on what will be substantially the same sort of evidence seems to me to be most unfair. If any money is to be given to anybody, whether it be the local authority or the British Airports Authority, then surely it would be reasonable for private individuals, who represent the local community in a more direct sense, to get something as well?.
Lord Bellwin: My Lords, this inquiry is in fact a much more modest inquiry, not as far-reaching as were the previous ones. We do not feel that in these circumstances we should pay the costs, or part of the costs, of the objectors.
Baroness Trumpington: My Lords, I apologise to the Minister, but I am still not quite sure whether it is only the local council's expenses which will be paid or those of other councils, because I am perfectly certain that this matter will involve Cambridge in expense.
Lord Bellwin: My Lords, it is only the expenses of the Uttlesford District Council.
Lord Elwyn-Jones: My Lords, would it not be appropriate for payment to be made to a representation of local objectors? This is often done in inquiries. I hope the Minister's Answer does not exclude the power of those running the inquiry to exercise discretion and to indicate that at any rate there should be representational backing, and paid for through public funds. It has often happened in public inquiries.
Lord Bellwin: My Lords, we are talking here of a planning inquiry. While I defer, as always, to the
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noble and learned Lord on his knowledge and experience of these matters, which is so much greater than mine, nevertheless it is a planning inquiry, and I understand that it is not normal that that be done. I have no wish at all to anticipate what anyone might recommend. I am stating the position as it is at the present time, and as I think I would be bound to say it is likely to be.
The Earl of Cork and Orrery: My Lords, has my noble friend understood? I think perhaps I did not make it clear. What I was referring to in the British Airport Authority's note was the statement that the department has agreed to,
"pay the costs of the forthcoming public inquiry".
The costs must amount to tens of thousands of pounds; they are far beyond compensation. Is it his opinion that this statement that they have issued goes much too far and should be corrected?
Lord Bellwin: Well, my Lords, whether or not this is too much or too little, or whether it covers all that some would like or not, I suppose would at the end of the day have to be a matter of opinion and judgment. So far as I am aware, what we are proposing to pay is exactly what I said; we will pay the cost of providing the inspector and his assessors, and, in addition, the costs of accommodation.

Common Fisheries Policy: Negotiations
11.26 a.m.
Lord Boothby: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they can give an assurance that, in the forthcoming negotiations with the EEC for a common fisheries policy, the vital interests of the British inshore fishing industry will be preserved.
Earl Ferrers: My Lords, may I be permitted to say that it is a pleasure to see the noble Lord, Lord Boothby, back in his place after his temporary indisposition.
My Lords, it remains the firm intention of Her Majesty's Government to safeguard the interests and future of all sectors of the British fishing industry in the negotiations for a revised common fisheries policy.
Lord Boothby: My Lords, as I know that Her Majesty's Government are well aware of the problems now confronting our inshore fishing industry, I can only thank the noble Earl for that brief but generous reply.
Lord Peart: My Lords, I hope the noble Earl will assume that the Opposition also wishes our negotiators the very best. It is an important section of the industry. I know we have debated the fishing industry just recently, but this affects the inshore people who are so important to the North-East of England, and particularly also to Scotland. The noble Lord, Lord Boothby, as always, defends his fishermen. I always

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remember that in another place he was regarded as "Mr. Fish".
Earl Ferrers: My Lords, I merely say that I had prepared myself for a number of quite difficult questions. I had not prepared myself for such felicitous remarks as have been made. I greatly appreciate it, as will my right honourable friend.
Lord Shinwell: My Lords, although we appreciate the intention of the Government to safeguard the interests of the inshore fishermen—which at one period of my life I sought to organise, and that met with some success—is the noble Earl aware that the damage inflicted on the inshore fishermen since we entered the Common Market is of such a character that it seems almost impossible to effect a recovery?
Earl Ferrers: My Lords, if I may say so, I think the noble Lord is making the mistake of thinking that the damage to the industry is because we have joined the Common Market. One of the real problems is the shortage of fish, and finding the correct method of apportioning the fish which is available among the interests of the various countries involved, and indeed of the world.
Lord Mackie of Benshie: My Lords, is it not also a fact that the loss of markets in North America is the cause of a great deal of the trouble?
Earl Ferrers: Yes, my Lords, and I dare say that the extension to the 200-mile limit has probably caused more problems than it has solved.
The Lord Bishop of Norwich: My Lords, can the noble Earl give any assurances concerning the East Coast ports, which are so close to Europe? And if the noble Earl the Minister does not feel that it is making what I think in another place is called a "constituency speech", could he take a special interest in Lowestoft?
Earl Ferrers: My Lords, the right reverend Prelate would certainly not be out of order in making a constituency point, but he would have been out of order if he had made a speech. I can tell him that we are deeply conscious of the plight of those who operate in the fishing industry and that is the reason why the Government have recently made a substantial concession to them. We are concerned to see that in the final negotiations on the common fisheries policy there should be a viable industry left and, of course, that part of it which is based in Lowestoft is indeed a very important part—it happens, apart from anything else, not only to be where the right reverend Prelate comes from, but also not all that far away from me, too.

Peterborough Development Corporation Bill [H.L.]
Read 3a, and passed, and sent to the Commons.
Preston Borough Council Bill [H.L.]
Read 3a, and passed, and sent to the Commons.
Western Isles Islands Council (Berneray Ferry) Order Confirmation Bill
Read 3a, and passed.

Ports (Financial Assistance) Bill
11.32 a.m.
Lord Bellwin: My Lords, I beg to move that this Bill be now read a second time. This Bill is a measure to provide statutory authority for continued financial assistance to the Port of London Authority and the Mersey Docks and Harbour Company. It has been made necessary by a rapid and unexpected loss of traffic over the last year or so.
To some extent the recession has affected nearly all British ports, but London and Liverpool have suffered particularly serious difficulties since each lost between 35 per cent. and 40 per cent. of their general cargo traffic last year. This loss of traffic follows a period during which the whole ports industry has been radically affected by the introduction of new cargo handling methods—primarily the move to containers—and by changes in the pattern of trade. Both of those developments have been felt particularly severely in London and Liverpool which remain our two biggest traditional general cargo ports.
The central problem facing these two ports at the beginning of this year was a substantial surplus of labour. Even though both PLA and MDHC have, over the last two years, made substantial progress in reducing their workforces, the fall in demand for their labour has overtaken them, so that at the beginning of this year each authority employed almost 1,500 surplus workers, including roughly 1,000 registered dock workers each.
There is no doubt that an essential first step, if the ports are to return to profitability, must be to relieve the authorities of the burden of paying for these large numbers of people for whom there is no work and no prospect of any in the foreseeable future. There was, however, no chance of a rapid rundown in their workforce being achieved without special assistance. As far as the registered dock worker force was concerned, applications for severance under the port industry's National Voluntary Severance Scheme were not coming forward in anything like the required numbers, and the PLA and MDHC had no reserves or other sources of help from which to finance improved severance payments for the registered dock workers. I shall refer to them as "RWDS" each time otherwise I shall be reading out the full description. The Government, therefore, decided in view of this, and of the strategic importance of the two ports, that financial assistance from central funds was needed.
The timing of the Bill has been determined by the certainty that, without the assistance it provides, both the PLA and the MDHC would have had to cease trading in early April. The existing provision for Government assistance would then have been

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exhausted—that is the £70 million limit on help to the PLA set in last year's Port of London (Financial Assistance) Act and the £3 million overdraft guarantee to MDHC announced by the Government last December. As the Secretary of State for Transport emphasised when the Bill was discussed in another place, the crisis was an urgent one, requiring an urgent response.
One of the principal purposes of the Bill is to provide funds to pay for the special supplementary severance scheme for registered dock workers in the two ports, which the Secretary of State for Transport announced on 17th February. This scheme was intended as a direct way of tackling the surplus manpower problem. It provided for the payment of supplementary amounts of up to £5,500 to registered dock workers applying for severance during March and April. When added to the normal payments of up to £10,500 available under the industry's own National Voluntary Severance Scheme these supplements gave a maximum payment of £16,000, for a man with 20 or more years' service.
The size of the special supplements, as the period of availability, were decided in consultation with the chairmen of the two port authorities. I am happy to be able to tell the House that, now that the period of availability of the supplements has ended, the final results show that the scheme has been almost completely successful in achieving its objectives. The targets in each port were 1,000 applications in the Port of London and 1,250 in the Port of Liverpool; the figures achieved were 1,057 and 1,313 respectively, thus comfortably meeting the target in each case. This success reflects credit on those who have been responsible for getting the message across in the ports, and on all those who have recognised the importance of grasping this opportunity to take the first step towards recovery of the ports' fortunes. I understand that already about 1,400 registered dock workers have left the two ports, and more will follow shortly.
I do not believe that there has been serious dissent from the view that the difficulties in London and Liverpool required urgent Government action. But concern has, understandably, been expressed about its implications for other ports; and we have been asked by both sides of the industry to make supplementary payments available in all ports. This is to misunderstand the nature of the assistance we are giving. The supplements are a special local arrangement designed to meet an immediate crisis in two ports of national importance. The Government remain firmly opposed to any suggestion of general or open-ended subsidies to ports, and the objective of the help now being given is to ensure that PLA and MDHC can return, as quickly as possible, to a position where they no longer need such assistance.
The Government do, of course, recognise that other ports are facing difficulties as a result of the recession, and also that a number of them have substantial problems of surplus labour. But nowhere else is the scale of the problem as serious as in London or Liverpool, and nowhere else was it the case that, without Government help in achieving immediate manpower reductions, the port had no prospect of survival. The scheme in London and Liverpool has, as was to be expected, led to fewer applications for severance elsewhere as dock workers have waited to
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see whether it would be extended. The Secretary of State for Transport has repeatedly made it clear that the special supplements are outside the National Voluntary Severance Scheme and perhaps I should take the opportunity of emphasising that the Government have no intention of introducing similar supplements in any other port nor, indeed, of reviving them in London and Liverpool. I hope that now that the supplementary scheme is behind us, severances elsewhere will begin to pick up again and there is already some evidence that this is happening.
Although the supplementary severance scheme forms perhaps the most dramatic element in the assistance to the two authorities, the Bill also provides for a number of other purposes. Although this Bill provides a limit on assistance to the ports of £160 million, this represents only £87 million of new money; the £160 million figure includes £70 million aid under last year's Port of London (Financial Assistance) Act, and the £3 million guarantee to MDHC. Of this, about half is expected to pay for severances, not only of registered dock workers but also for about 600 voluntary redundancies among other employees of each of the two port authorities. The remainder is to cover necessary capital investment, a number of contingencies, and to enable the ports to continue in operation while manpower reductions and other changes are taking place.
The Bill itself deliberately does not include detailed breakdowns as between different needs or as between the two ports, as it is the Government's intention to keep a very tight control on the amounts actually disbursed to the two authorities, and to maintain a close watch on the purposes for which they are used. Initial cash ceilings have been set for each port, and regular monitoring meetings between the port authorities, our accounting advisers and departmental officials have been instituted. So far £12.6 million has been paid out to MDHC and £8.6 million to the PLA. However, there is certainly no question of the PLA and MDHC being entitled to expect that they will receive even a substantial part of the remainder of the money provided in this Bill without providing us with evidence that, in addition to manpower reductions, the necessary improvements in working practices and methods of operation are also well in hand.
Now that the results of the special severance scheme are known, we are reviewing the case for continuing financial support into the autumn. If further help is given, the next step will be to examine the PLA and MDHC's corporate plans which will be ready in the late summer. These should provide the basis for detailed consideration of the steps needed for a return to long-term profitability, and will be assisted in this work by the two firms of accountants appointed to advise us at the beginning of the year—Price Waterhouse in London and Peat Marwick in Mersey.
I should say something about the provisions of the Bill. Clause 1(1) provides for assistance to be given, first, for measures taken by PLA and MDHC to reduce the numbers of persons employed in their ports, or adjacent ports; and, secondly, for the carrying on of their undertakings while these measures are being taken. These are similar powers to those provided in the Port of London (Financial Assistance) Act 1980, but with extensions to bring in Liverpool and registered dock workers employed in the private sector.

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Clause 1(2) enables assistance to be given in the form of grant, loan or guarantee, and provides for the attachment of conditions, including conditions requiring repayment. Clause 1(3), 1(4) and 1(5) cover the new limit of £160 million and the previous payments that count against it, and Clause 1(7) repeals the Port of London (Financial Assistance) Act 1980.
Clause 2 of the Bill raises the limit on borrowing by the National Dock Labour Board. This is necessary, first, to enable the board to meet the payments being made under the National Voluntary Severance Scheme, to those registered dock workers who have now accepted severance in London and Liverpool; and, secondly, to enable them to finance continuing severances in other ports. The new limit of £50 million, which can be raised to £90 million by order, is expected to meet the NDLB's requirements for the foreseeable future.
Finally, in commending this Bill to the House, may I emphasise again that the future of these two great ports lies, to a very large extent, with the PLA and the MDHC themselves, and with those at all levels who work for them. Encouraging steps have been taken, particularly with the success of the special severance scheme, but radical changes still need to be made before the authorities can once again stand on their own feet. This Bill provides the means to carry them through, at least to a position from where a clear path to profitability can be seen; it remains for the ports themselves to show that they can continue to justify our assistance. My Lords, I beg to move.
Moved, That the Bill be now read 2a.—(Lord Bellwin.)
11.44 a.m.
Lord Underhill: My Lords, I am certain that noble Lords will be grateful to the Minister for the clarity with which he has explained this Bill in the manner in which we have come to expect from him. Although this is a money Bill, I should like to raise a number of points. First, the noble Lord has stressed the urgency of the situation, which we, on this side of your Lordships' House, clearly recognise. He has explained that it is due to the problem of overmanning and also to loss of trade. As he said, far too few workers have opted for severance pay, and this must be allied to the problem of these men finding alternative employment in those particular areas. It would be foolish to disregard that fact.
Therefore, one can understand why the Government thought it desirable to offer this additional inducement, and it is encouraging to know that so many of the workforce have accepted the additional severance pay. The noble Lord said that this had been worked out in consultation with the chairman of the two ports authorities. It would be interesting to know whether there had been prior consultation with the general bodies of ports employers throughout the country. It would also be useful to know whether there had been any prior consultation with the trade unions concerned for the whole of the ports industry, because it has a considerable effect.
As the Minister has said, there are other ports which also have this problem of overmanning. As I think your Lordships know, when companies go out of existence—stevedore companies and so on—all the
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workers have the option either of accepting redundancy or of being transferred to particular ports authorities. Other docks have had this problem and have also had the problem caused by the trade recession. We know that there are workers in some other ports who have refused redundancy, partly because of the difficulty of obtaining alternative employment in those areas, particularly if they are young enough, for once they have left the industry and their redundancy payment has been used up, they then want work; the redundancy payment will not give them the standard of living to which they are used for very long. They also ask, "What is special about Liverpool and London"? The workers in these other ports argue, "Why is there an artificial distinction? Why should not we also have the advantage of this increased generous severance pay which has been given to the PLA and to the Merseyside docks"? I understand that some requests have already been made by bodies of workers in those particular ports. Although one understands the problems of the PLA and the Mersey docks, it is difficult to justify why this has to be done in London and Merseyside but not in other ports which suffer the same problems and where the workers suffer the same problems.
It may be—and I accept this—that London and Merseyside have larger numbers of workers involved, but proportionately to the workforce in some of the other ports, the problem is as bad. All this, together with what the Minister has said, indicates the problem facing the ports industry. The Minister has explained this, so I shall not go into it again. However, does this Bill do anything about it? It may be argued that this is a money Bill to deal with the urgent situation, but surely there must be the need for a body which is in a position to review the whole of the docks industry and to give advice to the Minister. No matter how eminent may be the two firms of accountants, surely this is an issue which goes far beyond the question of pounds, shillings and pence in the PLA and Merseyside. Surely it is the whole problem of the British ports industry. Although it is not particularly covered by this Bill, the problems are raised because of the reasons for the necessity for this Bill.
What do the Government propose to do in the Transport Bill that will be before your Lordships' House when we return after the Recess? The National Ports Council, which in a very limited way, is able to give advice after reviewing the situation in the industry, is to be abolished, so we shall not have that body to give advice to the Minister on the ports industry. The harbours part of Sealink is also being separated from the shipping part, and there are proposals to change the Transport Docks Board into Associated British Ports; but, in itself, it does not involve a great change and review for the docks industry.
As the noble Lord, Lord Bellwin, has said, other port authorities are facing financial difficulties. I believe the figures are that only one-third of the total capacity of British harbours and docks is at present able to be used by the amount of trade going through them. Therefore we have two-thirds surplus capacity. There is clearly a need for a national docks policy for the docks as a whole, and the matter cannot be dealt with by piecemeal investigation into just the PLA and Merseyside. When your Lordships come to the

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Transport Bill, we on this side of the House will be putting on pressure for such an authority to review the whole of the industry and to advise the Minister.
While we recognise the necessity for this Bill, it is not a solution for the industry; it is not even a solution for those two docks alone, because one cannot deal with those two docks in isolation from the rest of the industry. While it is not my place this morning to reverse the arguments that will be put forward when we come to the Transport Bill, these are very important considerations with which your Lordships' House will concern itself.
11.51 a.m.
Lord Bellwin: My Lords, to cover the point about consultation to which the noble Lord, Lord Underhill, referred, and although I am not absolutely clear on the point, I understand that consultation did take place with other ports. I do not know the answer to the noble Lord's point about consultation with the trade unions and I will have to write to him about that.
Perhaps not surprisingly—particularly in view of what the noble Lord, Lord Underhill, said—the Government have received a number of representations seeking to demonstrate that other ports have as pressing a case for financial assistance as do the ports of London or Liverpool. I am afraid that is not really so. With the exception of Bristol, which is something of a special case, no other port is approaching the state of bankruptcy which both the PLA and MDHC reached during the first week of April. Even in those cases where losses have been made recently—and I recognise that 1980 was a bad year for a number of ports—financial reserves are still available and surplus labour problems, although significant in some cases, are nowhere near the scale that applies in London and Liverpool. There would be no justification, either on grounds of immediate financial need or in terms of some fabulous national ports authority, for the assistance which this Bill provides being extended to other ports. Of course I am sure that we shall be discussing the broader aspect before too long.
This is a limited Bill, designed to meet an immediate crisis in two specific ports. As the Government have made clear, it provides assistance for specific purposes and there is no question of a permanent or open-ended subsidy to these ports, or indeed to any other ports. The objective is to return both the PLA and the MDHC as quickly as possible to a situation in which they no longer need to rely upon Government support, and this Bill is designed to achieve that end. My Lords, I commend it to the House.
On Question, Bill read 2a; Committee negatived.

Criminal Attempts Bill
11.53 a.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Belstead): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee—(Lord Belstead.]
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1 [Attempting to commit an offence]:
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Renton: I wish to make a brief drafting point. Subsection (4) states:
"This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence, other than—"
and it then sets out three examples. One of these examples is conspiracy. Manslaughter is not included. On Second Reading the noble Lord, Lord Wigoder, suggested that it should be included but my noble friend Lord Belstead gave a reason for not including it. He said:
"The defences of provocation or diminished responsibility which apply to reduce murder to manslaughter do not apply to attempted murder".
That point is well taken. My noble friend went on:
"The other kind of manslaughter, killing by gross negligence, cannot be attempted".
That argument is perfectly sound and true, but conspiracy has been included as an exception, and I would have thought that conspiracy—which requires the agreement of two people—should be left out if manslaughter is to be left out. Conversely, if conspiracy is to be included then manslaughter should also be included. My noble friend may wish to think about this point a little more. I think it is a point worth making from the drafting point of view.
Lord Belstead: I should like to think about this for a moment or two. I might be in a position to reply to my noble friend, if he will bear with me, when we come to Clause 5, which deals with the other limb of conspiracy. Would that be agreeable to my noble friend?
Lord Renton: Yes, certainly.
Clause 1 agreed to.
Clause 2 agreed to.
Clause 3 [Offences of attempt under other enactments]:
On Question, Whether Clause 3 shall stand part of the Bill?
Lord Renton: We find that subsections (3), (4) and (5) of Clause 3 merely repeat subsections (1), (2) and (3) of Clause 1. We really should try to avoid repetition, especially on that sort of scale. I believe that my noble friend would do well to ask the draftsman whether it is really necessary to have this completely set out so soon in the Bill, and whether there could not be some compendious way of invoking the first three subsections of Clause 1 and applying them to Clause 3 without complete repetition.
Lord Belstead: I do of course take very seriously any advice which my noble friend gives on the drafting of legislation. As I understand my noble friend's

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remarks, he is not objecting to the intention of Clause 3, which is that if the Bill were to pass without the clause it is probable that the courts would begin to interpret statutory offences of attempt in the same way as the offence of attempt under Clause 1, but that this clause ensures that this will happen. As I understand it, my noble friend Lord Renton is not objecting to that intention but to the way in which the clause is drafted. If I may take my noble friend's advice I will consider what he has said on this particular point and will look at it again, without making any commitment as to what our own conclusions will be. However, I think it would be right to undertake, if I can possibly do so, to first write to my noble friend Lord Renton.
Lord Renton: I am much obliged to my noble friend.
Clause 3 agreed to.
Clause 4 [Trials and penalties]:
11.58 p.m.
Lord Belstead Lord Belstead moved Amendment No. 1:
Page 4, line 32, leave out subsection (6).
The noble Lord said: With the permission of the Committee, in moving Amendment No. 1 I should also like to speak to Amendments Nos. 4, 5 and 9. The amendment to Clauses 4 and 7—that is to say, Amendment No. 1 that I am moving now and Amendments Nos. 4 and 5 also—remove some transitional provisions which were included in case the Criminal Attempts Bill became law before the commencement of the Magistrates' Courts Act 1980. Since that Act is now set to come into force on 6th July, it is clear that this Bill has lost the race and so the provisions are unnecessary. Similarly, it is now clear that the final three references to the Criminal Law Act 1977 in the repeal schedule—that is, in Amendment No. 9—should be to the Magistrates' Courts Act 1980 which will, among other matters, consolidate these particular provisions. I hope I have explained why I have asked to speak to four amendments, although I now move Amendment No. 1.
Lord Mishcon: The Minister, with his usual courtesy, wrote to me in a most considerate manner explaining the reason for the various amendments, and therefore calling my attention to their necessity from a drafting point of view. I should like to thank him, because it has saved the Committee a speech from me and various questions which I otherwise might have asked.
On Question, amendment agreed to.
Clause 4, as amended, agreed to.
Clause 5 [Extension of definition of the offence of conspiracy]:
12 noon
Lord Belstead Lord Belstead moved Amendment No. 2:
Page 4, line 37, leave out ("the following subsection shall be inserted after") and insert ("(1) For").
The noble Lord said: I beg to move Amendment No. 2, and with the Committee's permission would speak also to Amendment No. 3. The purpose of Clause 5 of the Bill is to ensure that, as Clause 1 does in respect of attempt, it should not be a defence to a charge of conspiracy that the offence in question is one which in the circumstances it was impossible to commit. The amendments—which have the support of the Law Commission—make no change in that policy. The purpose of these two amendments is twofold. Subsection (1) created by Amendment No. 3 proceeds along similar lines to the corresponding clause in the Law Commission's draft Bill, and makes no material change in the present definition of conspiracy.
Its object is simply to avoid a possible contradiction between Section 1(1) of the Criminal Law Act 1977 and the subsection (1A) which the present Clause 5 would add after it. The former—which gives the statutory definition of conspiracy—provides that the carrying out of the agreement must result in the commission of an offence. The latter—which is designed to deal with "impossible" conspiracies—provides that it is immaterial that it will not result in the commission of an offence.
Although there is no dispute—at least there was no dispute except for the noble Lord, Lord Pitt, who I think is not able to be in your Lordships' House today—about the rightness of dealing with "impossible" conspiracies, there is a risk that the courts might not find it easy to resolve the inconsistency which might result from the present wording. The amendment avoids this difficulty by putting the two subsections together in a form which restates Section 1(1) of the 1977 Act and adds to it a conditional element dealing with conspiracies to do the impossible.
Subsection (2) is designed to ensure that Clause 5 does not operate retrospectively. As it stands, a person indicted after the date of coming into force of the Bill for a conspiracy committed before that date would be liable to conviction notwithstanding that the object of the conspiracy might have been impossible to achieve. The amendment will disapply the clause if the agreement was entered into before the date of coming into force of the Bill, though not if the agreement continued to exist after that date. The amendments are therefore substantially of a drafting and technical nature and I hope they will commend themselves to your Lordships. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 3:
Page 4, line 39, leave out from ("conspiracy") to end of line 42 and insert ("there shall be substituted the following subsection:—
"(1) Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—

(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or

(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or offences in question".
(2) This section shall not apply where an agreement was entered into before the commencement of this Act unless the conspiracy continued to exist after that date").
The noble Lord said: I have just spoken to this amendment. I beg to move.
On Question, amendment agreed to.
On Question, Whether Clause 5, as amended, shall stand part of the Bill?
Lord Belstead: I undertook to reply to my noble friend Lord Renton on the point he raised concerning manslaughter, which referred to attempted conspiracies. I said that I would attempt to reply to my noble friend on this clause. Manslaughter cannot be attempted so it is, the Government suggest, unnecessary to mention it expressly in Clause 1(4). It was on that stage of the Bill that my noble friend Lord Renton raised the point.
Conspiracy in fact could be attempted but the Criminal Law Act 1977 at present provides that attempting to conspire shall not be an offence. The Bill re-states the relevant provision in the 1977 Act and repeals that provision in that Act. Without express mention of conspiracy in Clause 1(4) attempting to conspire would become an offence again.
Lord Renton: I am most grateful. That is a most lucid explanation. It creates the firm relationship of the mention of conspiracy in Clause 1(4) with the mention of conspiracy in Clause 5. I am grateful to my noble friend. He has enabled me to understand the position much better.
Clause 5, as amended, agreed to.
Clause 6 [Effect of Part I on common law]:
12.6 p.m.
On Question, Whether Clause 6 shall stand part of the Bill?
Lord Renton: I should be grateful for an explanation here. We are abolishing the offence of attempt at common law. It would be helpful to know exactly why we are doing so because that offence at common law has a wide-ranging effect. We find that again it is necessary to refer to Clause 1(4):
"This section"—
which is the foundation of the Bill—
"applies to any offence which, if it were completed, would be triable … as an indictable offence …".
But at common law the offence of attempt can be applied, as I understand it, to some offences which are not indictable. I may be wrong about that. I have not done deep research into it, but that is my recollection. If we are going to make a wholesale repeal, abolition, of the offence of attempt at common law, it would be helpful if we could be told why this is to be done.
Lord Belstead: This clause of course abolishes the offence of attempt at common law and provides that references in existing enactments to attempt at common law shall be construed as references to the new statutory offence. It corresponds to Clause 5 of the Law Commission's draft Bill, with a minor addition to subsection (1). May I just refer to the two subsections of
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Clause 6. Subsection (1) abolishes the offence of attempt at common law except in so far as it applies to acts done before the Act comes into force. The proviso enables charges to be laid and proceeded with under the common law in respect of alleged offences committed before the commencement date. Abolition of the common law offence follows automatically from the creation of a new statutory offence in Clause 1. It also abolishes any specific preparatory offences which might be held to exist at common law following, as I said on Second Reading, the decision in the case of Gurmit Singh.
So far as subsection (2) is concerned, this provides that unless the context otherwise requires, references in previous enactments which fall to be construed as references to the common law offence of attempt shall be construed as references to the new statutory offence. This is to ensure that any special provisions in existing legislation concerning the common law of attempt will apply in the same way to the new offence.
I hope your Lordships will forgive me for having just looked at my briefing to remind myself, if not your Lordships, of the exact effect of this particular clause on which my noble friend has raised a specific point. It is not clear that the common law of attempt applies to summary offences, although there are special statutory offences of attempt, and those are dealt with in Clause 3.
Lord Renton: I am grateful to my noble friend and would only add that I hope the words in line 7, "unless the context otherwise requires", will not give rise to difficulties of interpretation in the courts.
Lord Belstead: Does my noble friend mean instead of referring specifically to Clause 3?
Lord Renton: Yes.
Lord Belstead: I will take my noble friend's final remark away and look at it, and possibly I can include something about it in the letter which I promised to write to my noble friend.
Clause 6 agreed to.
Clause 7 [Amendments consequential on Part I]:
Lord Belstead Lord Belstead moved Amendment No. 4:
Page 5, line 29, leave out from ("in") to end of line.
The noble Lord said: I spoke to this with Amendment No. 1. I beg to move.
On Question, amendment agreed to.
Lord Belstead Lord Belstead moved Amendment No. 5:
Page 5, line 30, leave out from ("1980") to ("includes") in line 32.
The noble Lord said: This is consequential on Amendment No. 1. I beg to move.
On Question, amendment agreed to.
Clause 7, as amended, agreed to.
Clause 8 agreed to.
Clause 9 [Interference with vehicles]:
12.12 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 6:
Page 6, line 5, at end insert—
("( ) A person does not commit an offence under this section unless he pursues a course of conduct which involves two or more separate acts of interference").
The noble Lord said: We move from the realms of the technical and questions of drafting to matters of policy, and I suggest that we now come to an important matter of policy. It will be observed incidentally that the amendment has the support of various parts of the Committee, and I hope it will commend itself as well to the Government.
There was unanimity in your Lordships' House when the offence known as "sus" was said to be abolished by the Bill. It met with unanimous welcome and speeches were made, which I do not intend to repeat, as to why it was so welcome. One of those reasons was the fact that people were sometimes faced with charges which they regarded as completely unjust, and there were opportunities for your Lordships to examine examples of where convictions had taken place where indeed it was extremely doubtful if the subjective view that was taken by the court was correct.
Sus is a summary offence. There has been substituted for sus in the Bill a new offence which is meant to deal with something which is extremely troublesome—if that is the right word to use for it—namely, the continuous stream of offences relating to motor vehicles (taking and driving away and the theft of motor vehicles) and it was thought there had to be something to act as a preventive measure in order that the public could be safeguarded and that those who had gone through the motions of what would normally be an attempt could be arrested and charged where the evidence was sufficient.
The reason for this offence, as against the charge of attempting to take and drive away or to commit a theft, is that trouble is experienced by the police authorities in deciding (your Lordships can well realise why) whether somebody who is tampering with a car is attempting to take it away but not to steal it, or indeed to steal it. Therefore, it was argued that there should be an offence, now that sus was to go, which would deal with this nuisance and would say in effect that if there were suspicious circumstances which could lead to the court assuming—as the court would have to assume on the basis of criminal liability—that the person concerned was attempting or had in mind either driving the car away or committing a theft, then this offence would be committed.
I remind the Committee that this substituted offence is, again, a summary offence and not one on which there is a right to go for trial before a judge and jury. Without being in the slightest degree offensive, since that is my last intention, to our stipendiary or lay magistrates, one knows as a practitioner that often magistrates who have a very heavy list and a repetition of a number of offences which may be common in that area, are inclined to take a short view of the evidence before them and take it for granted that because the last charge with which they dealt had similar evidence and there was a conviction, there should similarly be a conviction of the next offence. This is not by any
1028
means a general statement that I am making, but it is, I am afraid, a statement which practitioners in the criminal courts would agree with.
The new offence, with which the amendment does not seek to quarrel, has a requirement which is less than the offence of sus which it abolishes. The offence of sus required that there had to be evidence of a suspicious act, followed by a completely separate act, of which there was evidence which might lead to a conviction, and would certainly lead to a police constable (because it would normally be a police constable) thinking there was reasonable evidence of the fact that an offence of taking or driving away or theft was about to be committed.
To make this offence less of a requirement in regard to evidence of acts would surely be to go back on the whole reasoning behind the abolition of sus, and therefore the amendment seeks again to impose, as was required for the sus offence, the act which creates suspicion followed by another separate act. At the moment it would mean that the mere tampering with one car door on one occasion could lead to a charge being preferred and, under the wording of the clause, a conviction being registered. It is extremely necessary for your Lordships to look very carefully at the wording of the clause, and the requirements before there could be a conviction under it, and it is in those circumstances and with some confidence that I move the amendment.
Lord Rawlinson of Ewell: Whenever I hear the noble Lord, Lord Mishcon, moving an amendment I find it difficult to resist agreeing with him, because of the manner in which he presents his case; I also see the very distinguished names which are added to the proposal he is making. However, I find the proposal—namely, that there should be two or more separate acts to constitute the offence—unacceptable.
First, let us look at the offence as now contained in the Bill, and let us consider what must be done before the offence is committed. It is a new offence. It is necessary to prove that a person has interfered with a motor vehicle, or its contents, with intent to steal the vehicle, or something in it, or to take it away. Those are the two constituents. If the court decides that there has been an act of interference with the motor vehicle or something in it and, secondly, an intent to steal the car or something in it, or an intent to take away the car, then the offence is deemed to have been committed. It seems to me right that that should be the offence.
On Second Reading we were told that there were nearly 280,000 thefts from vehicles in this country in 1979. There were over 300,000 thefts of vehicles, or offences of taking away vehicles. It is a very serious situation, not something which we as legislators should brush aside. The amendment proposes that the person must interfere with the vehicle twice before the offence is committed, and that seems to me to be remarkable. Why should it be twice? Why not three times or four times? If we are not very careful about this, the general public will think the legislature mad to try to make things easier in terms of the committing of these offences. If there are 600,000 such offences, consider how many people are affected by them. Probably more than a million people are affected every year, bearing in mind that some families have at least two cars and that some cars might contain goods that do

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not belong to the car owners, but to other people. So every year over a million of our fellow subjects find themselves on the receiving end of criminals' activities.
If the Bill removes the old vagrancy offence, so be it. But we must be very careful in this area. I note with respect what the noble Lord, Lord Mishcon, said about the work done by stipendiaries and lay benches. He was very courteous about them, but, apart from being courteous let us be fair. They have a very difficult task to do, and without volunteers on the lay benches it would certainly not be possible to administer justice in this country. In my experience people who serve on the lay benches approach their work in a fair and sensible way, and do not merely accept the evidence from whoever gives it. That is my experience; if it differs from that of the noble Lord, Lord Mishcon, so be it. I have always felt that a great debt is owed to these people, who do their job extremely well.
As I have said, we have removed the old vagrancy offence; so be it. On Second Reading a reference was made—certainly not by the noble Lord, Lord Mishcon, and his supporters here—to what was called racial motivation in bringing charges of this kind. That was mentioned by a noble Lord in your Lordships' House, and I found it very offensive. Such accusations are often levied wantonly and irresponsibly, and a lobby grows up. I am not sure whether all the people in such a lobby are very honestly motivated. It is claimed that every prosecution of any person belonging to an ethnic minority is somehow corrupt. I find that claim offensive and I think that it does great harm to the ethnic communities. Many of the alleged spokesmen of the ethnic communities appear to be rejected by the communities themselves, and it seems very difficult to find a genuine representative. I consider that such a lobby is having the serious consequence of arousing resentment among ordinary people who are perfectly well disposed to the ethnic minorities. Such a lobby may be joined by some injudicious people who perhaps do not understand the true purpose of the matter.
We have done what sensible people have thought should be done—namely, removed the "sus" offence, for which we have substituted the offence that we are now considering. It requires evidence, proof, both that a person has interfered with a motor vehicle and that he had intent to steal from it. Surely that is good enough. I think it only right that in fairness to the people of this country, to the million or so who are affected by these offences, that we should maintain the offence as it is at present proposed in the Bill. We should not, as was proposed with great grace by the noble Lord, Lord Mishcon, make it even more difficult to convict people who do a great deal of harm to many citizens of this country.
Lord Donaldson of Kingsbridge: I am very sorry that the distinguished speaker who has just sat down has taken the line that he has taken. I think it quite irrelevant to refer to remarks made on Second Reading by a noble Lord who is not present and who has not put his name to the amendment. I do not think that we should be prejudiced by racial talk which, I agree with the noble and learned Lord, Lord Rawlinson of Ewell, can be very damaging. The important point
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here is that, as everybody knows, "sus" was deeply resented by ethnic minorities—whether rightly or wrongly, I shall not say. There is a natural desire not to return to that situation when we have agreed to abolish it. In the Bill as it stands the new offence will be even more easy to apply than was the old "sus" offence, in regard to which evidence of more than one instance was required.
I think it worthwhile to look back a little to the Home Office Working Party on Vagrancy and Street Offences in 1976. The working party consisted of three chief constables, an inspector of constabulary, and officials from the Home Office, the DHSS and the department of the Director of Public Prosecutions. They all rejected the suggestion put to them that evidence of one instance should be sufficient. They proposed that the "antecedent conduct" should include at least one suspicious act before, and distinct from, the act which caused the individual to be charged with the offence. The working party stated in a working paper:
"The new offence might then refer to 'a course of suspicious conduct', or 'a repetition of suspicious conduct', or by exclusion, provide that it should not suffice to establish suspicion that there has been only one instance of such conduct".
The amendment proposes precisely that, and I greatly hope that the Government will look at it very carefully. My noble friend Lord Wigoder is in entire agreement with it—and he is sorry that he cannot be present today. I think it very important that we should try to persuade the Government to include this proposal as a modification to Clause 9, which has worried many people.
12.28 p.m.
Lord Renton: I hope that my noble friend on the Front Bench will not accept the amendment. I warmly support the powerful case put by my noble and learned friend Lord Rawlinson of Ewell. I wish briefly to add three points. First, a policeman would be placed in an absurd position if, having seen a man interfere with one vehicle, having caught him redhanded, so to speak, he then had to stand aside and wait until the man interfered with another vehicle. That would be a quite absurd and impossible situation for the police.
My second point relates to what has been said about the ethnic minorities. Of course we are all anxious to be careful about the way in which we legislate, but the possibility that the susceptibilities of some members of the ethnic minority might be offended cannot be regarded as a good reason for generally weakening the law which applies to everybody, including all the members—
Lord Mishcon: I am sure that the noble Lord, Lord Renton, will forgive me for intervening, but I wish to point out that in moving the amendment I did not at all mention the ethnic minority point. I listened most carefully to the noble Lord, Lord Donaldson of Kingsbridge, and I did not hear him mention that point as being a reason why we should pass the amendment. I do not want the Committee to be misled into thinking that this is part of the case.
Lord Renton: May I say that I am very glad that the noble Lord, Lord Mishcon, has intervened and made

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that clear so far as his own position is concerned. I clearly misunderstood what the noble Lord, Lord Donaldson of Kingsbridge, was saying if he was not saying what I understood and said; namely, that we had to be careful as to how we legislated on this particular point with regard to the ethnic minorities—and perhaps we can leave it at that.
My last point is this. If it were right to allow the criminals several opportunities to attempt to commit their offence before they could be convicted, and if it were right to do so in relation to these cases affecting motor vehicles, then the whole range of cases to which it might apply would be enormous. In other words, we would be creating a precedent which we would regret for the rest of time. I hope that my noble friends on the Front Bench will strongly resist this amendment.
Lord Hunt: I rise to support very strongly both parts of this amendment, although I propose to speak only in regard to the maximum sentence which can be imposed for the offence of tampering with a motor vehicle and its parts with intent. At a time when the Home Secretary himself has been insisting time and again on the need to reduce the length of prison sentences, and indeed to make fewer offences liable to imprisonment, and at a time when the Lord Chief Justice has been enjoining the magistracy and the courts in the same vein—the noble and learned Lord did so only two days ago at the annual general meeting—
Lord Elwyn-Jones: If the noble Lord will forgive my interrupting him, I think he is speaking to the next amendment at the moment, which deals expressly with the reduction from three months' imprisonment to one month's imprisonment. I hope the noble Lord will not think me impertinent, but that is the purpose of my unexpected intervention upon words which we listen to with admiration.
Baroness Wootton of Abinger: After 44 years' experience of metropolitan benches as a magistrate I must say that I have not found the shortcomings that my noble friend Lord Mishcon referred to—that magistrates formed a habit of conviction in sus cases. I should like to report that the very last case I ever heard in court before my retirement happened to be a sus case in which my colleagues—I was in the chair—were inclined to take the case at face value. After a considerable discussion of the evidence we finally acquitted, because it appeared to us all in the end that there was in fact a doubt.
I think a good deal depends on the nature of the act of interference—and I have heard some very strange acts quoted in court as acts of interference in sus cases; for instance, touching the handle of a car. Indeed, I have heard of touching the handle of the rear door of a car of a make which has only one door on each side, which has no rear door. These things get rather standardised and formalised; and possibly two police officers are watching the same thing, and they may see it the same way. I think that protection is necessary here to establish that there was an act of interference such as would lead to an offence. Without this dual protection, casual touchings and actions of that sort will, I think, be given a value that they do not have. I
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should therefore like to support very strongly the amendment moved by my noble friend.
Lord Elwyn-Jones: I should like briefly to intervene to add to what has been said by the noble Lord, Lord Donaldson, about the authoritative views expressed by the Home Office Working Party on Vagrancy and Street Offences; namely, the views which I understand to have been expressed by Sir David McNee, the Commissioner of the Metropolitan Police, in which I understand he expressed support for the recommendations of the Home Office working party during its inquiry into the sus law. Sir David, I am reliably informed, listed a number of specific proposals by the Home Office working party which he favoured, including the proposal that antecedent conduct should include at least one suspicious act before and distinct from the act which caused the man to be charged with the offence.
I understand, further, looking at it from the police point of view, that in evidence to the House of Commons Special Standing Committee on the Bill Sir Philip Knights, the chief constable of the West Midlands, said he did not envisage that in practice the police would bring any prosecutions unless at least two actions had been observed. Accordingly, while I am not suggesting that noble Lords opposite are accusing us of irresponsibility and of a reckless disregard of the public safety in this matter, it is at least reassuring to think that eminent policemen take the same view as we do.
If I may say so with great respect to the speech of the noble and learned Lord, Lord Rawlinson, of course the offence and crime of taking and stealing a motor car will remain. This is very much on the fringe of the problem; it is an important provision that the criminal law should provide; but it would really be intolerable if, having got rid of one much-criticised mischief—namely, the sus law—we were to put in its place something even more perilous than the sus law itself.
Lord Robbins: It is with the deepest regret that I venture an amateur's query with regard to the amendment which is fostered by the distinguished names on the Marshalled List. But my base mind suggests to me that if this amendment goes through the organisers of the stealing of motor cars, which we are assured goes on on a large scale, will be tempted simply to re-arrange their operations; and if some member of their group has incurred the suspicion of the police on one occasion, they will be careful to leave him out on the second occasion. Is this not improbable?
Lord Donaldson of Kingsbridge: May I say just one thing about that? There are, of course, two entirely separate issues here. One is organised crime, and in that case, no doubt, this sort of thing would be done and probably is done already. I think your Lordships will find that the organised criminals who are paid by central bodies to do this are very careful how they do it, and take very little risk. What we are concerned about in this amendment is the ordinary, feckless young man who is out of work, has nothing to do, sees a row of cars and, rather like a naughty boy, puts his hand on one handle just wondering whether there is anything that is going to happen.
What we are anxious is that people in this condition,

1033
who are vulnerable and liable to be turned to a life of crime by something which is in itself fairly trivial, should be protected from immediate prosecution, and that there should be some effort to make sure that there is a real attempt going on. I agree with the noble and learned Lord, Lord Elwyn-Jones, that as the police are the case which was used by the noble Lords opposite to oppose this, it is very curious and impressive that all the evidence we have from the very highest in the land in the police is in the opposite sense and is in favour of the amendment.
Lord Swinfen: The noble Lord, Lord Mishcon, appeared to me to base his arguments for his amendment basically on the offences of taking away or stealing a motor vehicle but not on subsection (2)(b) dealing with anything carried on or in a motor vehicle or trailer. There are a number of families who go on holiday and who fasten, sometimes very badly, their goods and chattels to their roofrack and into their trailers. It is not difficult very often to remove them by cutting one string only and not two strings. Therefore, if two instances of interference are necessary, I feel that an individual who cuts a string on a trailer or a roofrack and then allows his friend to dip his hand in and remove the article will get away scot free.
Lord Mishcon: I intervene in order to answer the noble Lord's sensible point. May I say that if it were outside the vehicle and somebody did what he has suggested, it would be attempted theft and there would be no need to invoke this section at all. Therefore, there is no question of two acts of interference applying. The doubt, when you are dealing with a vehicle and you have to enter the vehicle in order to commit the offence, would be whether it was an attempt to take and drive away the vehicle or to steal it. That was the problem of the past. There has never been a problem over anything attached to a vehicle.
Lord Belstead: I agree with the noble Lord, Lord Mishcon, who in moving this amendment said that we ought all to look carefully at Clause 9. I agree with him because I realise that, when the Government are proposing to Parliament the creation of a new offence, it is the responsibility of Members of both Houses to look carefully at the proposals made. I attach particular importance to today's debate because so many of your Lordships have taken part in it. But, with respect, I do not find that I agree with the noble Lord and many other noble Lords that we should draw an analogy between Clause 9 and the suspected person offence which has been done away with in Clause 8. If I may say so, I think that one fact that so many of your Lordships are drawing an analogy between Clause 9 and the offence of "sus" has led the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Donaldson of Kingsbridge, to remind the Government in this debate of the views of the Home Office working party on vagrancy and street offences. The views of that working party on the need for two acts before a conviction should be secured were in the context of a revised "sus" offence and not an entirely different offence as is the proposal in Clause 9 of the Bill.
I would think it fair for me to say that if your
1034
Lordships, none the less, conclude that Clause 9 and "sus" are the same, then all I can say is that in another place the spokesman for the Opposition, Mr. Cunningham—not learned in the law in the same way as the noble and learned Lord, Lord Elwyn-Jones, but none the less speaking for the Opposition—made his view clear in the Third Reading debate when he said:
"The new offence is not the same as 'sus'."—[Official Report, Commons, 31/3/81; column 250.].
This is the view that I should like to submit to the Committee on this particular amendment.
Lord Donaldson of Kingsbridge: I am sorry to interrupt, but it is an important point. Of course, it is not the same as "sus" but it is one of the offences over which "sus" was constantly exercised.
Lord Belstead: Let me develop the argument for a moment. If I may, I should like to explain why I attach such importance to the fact that the two offences are not the same and the burden of proof in both offences is, as I see it, clearly different. Before doing that, however, may I pick up a point made by the noble Lord, Lord Donaldson of Kingsbridge, in his first remarks when, in essence, he said that proof under the provisions of Clause 9 was going to be easier to obtain than would have been the proof necessary for the former offence of "sus".
The requirement in the case of the suspected person offence that there should be at least two suspicious acts is a gloss imposed over the years by the courts which was designed to try to make some sense of an otherwise vague guilty act, an actus reus. I am sure that your Lordships will agree that it would be harsh if an individual could be convicted of being a suspected person, of frequenting or loitering with intent, on the evidence that on one occasion only he had loitered near a handbag or beside a car. But—and this is the whole nub of the matter—a requirement that there should be two acts has no place in the definition of an offence which is as tightly drawn as the one which is to be found in Clause 9, which is specific both as to the guilty act and also, to be proved, the guilty state of mind.
The prosecution must prove both that the accused carried out an overt act of interference with a motor vehicle—and I emphasise this to the noble Lord, Lord Donaldson—and that the person concerned did so with intent to commit one of the specified offences. If this is established to the court's satisfaction, surely it cannot be right to have to say how many acts of interference took place or, to put it another way, if the court is satisfied on the evidence that the accused committed one act of interference with the prescribed intent, I cannot see why they should be compelled to acquit him merely because he did not go on to commit more.
If I may, I will add my voice to those of my noble and learned friend Lord Rawlinson of Ewell and the noble Baroness, Lady Wootton. I thought that, entirely uncharacteristically, the noble Lord, Lord Mishcon, was rather less than fair in his reference to magistrates and less than fair to his own profession, both to members of the solicitors' profession and also to counsel who may be appearing in such cases, who,

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I am sure, will argue cases effectively if Clause 9 is passed into law. I was grateful to my noble and learned friend Lord Rawlinson for expressing so clearly what I have been trying to say and to the noble Lord, Lord Robbins, for reminding the Committee—and I think it right that the Committee should be reminded—of the enormous amount of damage, of loss and of distress which is caused by the sort of offences which are committed and which Clause 9 attempts to deal with.
That is the fundamental objection to the amendment; but I believe that the amendment as drafted would also introduce unwelcome uncertainty and possibly seriously weaken the effect of the provisions—and I am not talking merely about any technical defects. The requirement of two separate acts in the case of the suspected person offence is, as I have said, a gloss by the courts and it has been subject to interpretation and reinterpretation over the years. May I indulge in the luxury of putting some difficult questions to those noble and learned and noble Lords who have put their names to the amendment and ask about cases in which I think this amendment would present some difficulties? Would it suffice if the amendment were made if an individual committed two separate acts of interference with the same car door, for instance, perhaps by trying to open the door and then trying to force it? Or would it require acts of interference with different parts of the vehicle or even with different vehicles? What length of time could or should elapse between the acts of interference? And what of the case where a policeman comes along and finds someone who is clearly pulling at a door and trying to wrench it open, but the policeman only sees it happening on the one occasion? Do we seriously contemplate that a charge of vehicle interference under this Bill should not be available in such a case?
To ask these questions is to show how unnecessary I think this provision would be if it were to be agreed by the Committee and to reveal the uncertainty and confusion which could result and the anomalies which could arise. It is on those grounds, but mainly on the basic grounds that we are creating a different offence which is not analogous to "sus", that I ask the Committee to reject this amendment.
12.51 p.m.
Lord Mishcon: I shall not weary the Committee with a repetition of the arguments, but in justice to the amendment I must deal with some of the points that have been raised. May I first of all impinge upon the courtesy of the Committee by telling a story that has definitely stayed with me throughout my professional life—a true story in which I was engaged. Possibly the noble and learned Lord, Lord Rawlinson, will now appreciate why I said what I did, as would my noble friend Lady Wootton if she were in her place.
It was as a young practitioner that I sat in Bow Street Magistrates' Court as the chief magistrate was sitting. He had had quite a few cases of pick-pocketing which, as one knows, is quite common in Bow Street and that area. An old gentleman was brought before him and the evidence was from the owner of a wallet that he had been walking down the Charing Cross Road (I think it was) and this old gentleman had come right up to him and asked him the time. He recollected
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afterwards that the old gentleman appeared to come rather close. He told the old gentleman the time, the old gentleman said, "Thank you" and walked off rather quickly. It was then found by the person who was giving this evidence that his wallet was missing. The old gentleman went into the witness box and he said that he had only asked about the time and that was all. Subsequently a policeman had chased him as a result of this complaint and had stopped him. There was no wallet found on the old gentleman and really that is all he had to say except that it was a most unjust charge.
I heard the learned chief magistrate—about whose fairness there could never be the slightest doubt—say: "I have heard this story so many times in my court. I convict. Let this man stand down; I want to know more about him." My case did not come until on late that afternoon. The gentleman who had given evidence in the morning came back in the early afternoon and said that he would like to address the chief magistrate. He was so sorry, he had gone home and he had looked in another suit and his wallet was in another suit. He wished to apologise to the court for the trouble that he had caused.
I am not putting this forward as a typical case; I am only saying that in busy courts, when there are repetitions of cases like "sus", as it was, or cases of interfering with vehicles, it is possible for magistrates, with all their sense of fairness and without there being the presence of a jury which has to assess how this might have happened to them, to make errors—and we are all human.
I remember another lesson I learned very early: better that nine guilty people should be acquitted than that one innocent man should be convicted. If that applies as a principle, it certainly applies to the young people who are frequenting our streets—and I make no difference between the colours of the young people. Their characters are the same and their ways are the same. I merely say that possibly some are subject to more disabilities than others.
Having said that, we are creating a new offence—an offence that usually will have merely one witness, possibly two, but they will be police officers; and again I do not in any way impugn the fairness of police officers who are trying their best to stop this dreadful business of the theft of motor-cars and the driving away of motor-cars without any proper, justifiable cause.
Is there really any difficulty in this question of two acts of interference? Would each Member of the Committee put himself in the place or his son or in the place of somebody finding himself in a magistrates' court? Maybe it is curiosity in regard to a vehicle where somebody is merely peering in to have a look. Does it depend upon the suit that he wears as to whether he ought to be suspected or not? Some of our young people—some of our own sons and grandsons—wear the most extraordinary clothes, as we all find. I should not like the police officer to think that a youngster wearing that type of clothing could be guilty whereas the noble Lord, Lord Belstead, attired as he habitually is, most certainly could not.
There ought to be in these circumstances of interfering with the outside of a vehicle—and I repeat it—at least the protection that was given in the "sus" case,

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because on motor vehicles this was the charge that was made when you could not prove an attempt and when you could not prove an actual act of theft or driving and taking away. We are taking away this protection.
I answer the noble Minister who very properly put a question arising out of the wording of the clause: "Two acts of interference—what a muddle for the persons who have to interpret this because does it mean two acts of interference with the same vehicle or another vehicle?" My answer is very simple. Two acts of interference with vehicles means what it says. It can be the same vehicle or it can be two vehicles. I would have thought that if it were two vehicles there is very much more reason for the charge to be brought.
I cannot carry the argument any further. My noble and learned friend Lord Elwyn-Jones quoted from police authorities in a way which obviously covers matters of this kind of vehicle interference. The arguments are before the Committee and I merely ask the Committee this. The very names on this amendment show that there is no party point of view. Can we therefore in sheer fairness, in our sense of justice when creating this new offence, thinking of our young people and not wanting to have convictions registered against them, or to have them think that the law is unjust and society is unjust, ensure that we give at least the protection—and I repeat it unashamedly—that was given even to the "sus" offence so that two acts of interference have to be seen by the police officers, not just one, before this charge is brought?
12.58 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 53; Not-Contents, 63.

CONTENTS

Ailesbury, M.

Ilchester, E.

Airedale, L.

Jeger, B. [Teller.]

Amherst, E.

Jenkins of Putney, L.

Amulree, L.

Kennet, L.

Briginshaw, L.

Kilmarnock, L.

Brockway, L.

Kirkhill, L.

Brookes of Tremorfa, L.

Lawrence, L.

Byers, L.

Leatherland, L.

Collison, L.

Llewelyn-Davies of Hastoe, B.

Davies of Leek, L.

Longford, E.

Diamond, L.

Mishcon, L.

Donaldson of Kingsbridge, L. [Teller.]

Molloy, L.

Peart, L.

Elwyn-Jones, L.

Pitt of Hampstead, L.

Foot, L.

Ponsonby of Shulbrede, L.

Gaitskell, B.

Ritchie-Calder, L.

Gladwyn, L.

Rugby, L.

Gosford, E.

Sainsbury, L.

Hale, L.

Seear, B.

Hall, V.

Stedman, B.

Hampton, L.

Stone, L.

Hanworth, V.

Underhill, L.

Henderson, L.

Vernon, L.

Heycock, L.

Wells-Pestell, L.

Howie of Troon, L.

Whaddon, L.

Hughes, L.

Willis, L.

Hunt, L.

Wootton of Abinger, B.

1038

NOT-CONTENTS

Abercorn, D.

McFadzean, L.

Alexander of Tunis, E.

Mackay of Clashfern, L.

Allen of Abbeydale, L.

Mancroft, L.

Ampthill, L.

Marley, L.

Avon, E.

Marshall of Leeds, L.

Barnby, L.

Melville, V.

Belstead, L.

Mersey, V.

Boyd-Carpenter, L.

Nugent of Guildford, L.

Brownlow, L.

Orr-Ewing, L.

Campbell of Croy, L.

Portland, D.

Cathcart, E.

Rankeillour, L.

Cork and Orrery, E.

Rawlinson of Ewell, L.

Cullen of Ashbourne, L.

Renton, L.

Davidson, V.

Robbins, L.

de Clifford, L.

Rochdale, V.

De Freyne, L.

St. Aldwyn, E.

Elphinstone, L.

Sandford, L.

Elton, L.

Sandys, L. [Teller.]

Ferrers, E.

Savile, L.

Fortescue, E.

Selkirk, E.

Fraser of Kilmorack, L.

Skelmersdale, L

Garner, L.

Spens, L

Gridley, L.

Swinfen, L.

Grimston of Westbury, L.

Terrington, L.

Hatherton, L.

Trumpington, B.

Henley, L.

Vaux of Harrowden, L.

Hylton-Foster, B.

Vickers, B.

Inglewood, L.

Vivian, L.

Killearn, L.

Westwood, L.

Kinnaird, L.

Widgery, L.

Long, V. [Teller.]

Windlesham, L.

Lyell, L.

Resolved in the negative, and amendment disagreed to accordingly.
1.5 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 7:
Page 6, line 17, leave out ("three months") and insert ("one month").
The noble and learned Lord said: I beg to move this amendment. We are now facing a crisis in the penal system and I begin my observations on this amendment with that thought in mind. It is not the paramount thought but it does enable us to consider what steps are appropriate for Parliament to take to achieve a reduction in the prison population.
We are in this Bill creating a new criminal offence. It is a summary offence and of course a serious one, but it is not as serious as the criminal offence of "attempt". Our view on this side of the Committee, and indeed on wider sides than that, is that a term of one month or £500 ought to be adequate to meet the needs of punishment in respect of this offence. I remember when I was appointed a recorder—I am not engaging in too much anecdotage today as I did on another occasion—talking to, I believe, Mr. Paterson, who will be known to many of your Lordships here, on the approach to imprisonment; the view then of the Home Office was: "It is useless to treat prison as a sort of transit hotel. We can't do anything with them unless we have them for six months or thereabouts. Don't pass short prison sentences". That was broadly the ideology.
It has changed completely. It has changed, first, because experience appears to have shown that deterrence is effective in the first beginnings of imprisonment, within the first month. It is then that the shock of the lack of liberty and the shock of interference with job and home becomes most apparent. It appears

1039
that thereafter the process of becoming accustomed to the situation diminishes the quality of the deterrent effect. The prisoner tends to become institutionalised. I am not talking about the punishment of violent or serious offences, where the need to protect the community, if only by deprivation of liberty for a time for the criminal is an important factor, or the need for the anger of the community to be reflected in an appropriate term of imprisonment. But we are not dealing here with a crime in that category.
The other feeling that has developed is that, quite apart from the critical factor of deterrence being an early consequence rather than one which is made much more effective by prolongation in many cases, whereas it used to be thought that being in prison was a good educative and rehabilitative process, no one pretends that any more. The criminal is sent to prison as a punishment and, while prison officers do their utmost in the process of rehabilitation and in assisting the prisoners as much as possible, the general view now is that the recidivist element in the criminal population is not diminished by an accumulation of prison convictions. So these factors, coupled with the basic question, which has now been so courageously faced by the Home Secretary in appeals to magistrates and judges to bear in mind the critical situation in which we stand, and, in addition, the active attempt by the noble and learned Lord the Lord Chief Justice in this field, also puts upon us as legislators the responsibility of doing what we can in this process.
Accordingly, I hope that the noble Lord, who I know is fully sensitive to this problem, which we have discussed more than once across the Floor of the House, will think that this is a good opportunity for Parliament, in turn, to play its part in endeavouring to deal with a situation which is becoming more and more intolerable, as I think most people in the country think—a large number of people certainly do—and as the opinion both of the Home Secretary and of the Lord Chief Justice seems to indicate. We think that a month or £500 is about right for this offence and, accordingly, I beg to move.
1.12 p.m.
Lord Hunt: Your Lordships' Committee is already aware that I support this amendment. I should like, before saying anything more, to apologise for my premature intervention in the Committee and to thank the noble and learned Lord, Lord Elwyn-Jones, for so properly proposing, That the noble Lord should no longer be heard, as I believe the expression is. Having listened to the noble and learned Lord, there is very little more for me to say.
I was on the point of saying very much what he said much more eloquently, to make the point that it seems to be a contradiction of the explicit policy of the Home Secretary, and of the desire of the Lord Chief Justice who has been equally explicit on this matter, at this time to put on the statute book a maximum sentence for the type of offence for which this clause makes provision. It causes me to wonder what goes on within and between departments of state, when a sentence of this magnitude is imposed for this type of offence. It seems to ignore the Home Secretary's declared intention to legislate to reduce sentences, if the
1040
courts do not reduce sentences of their own accord. I am not a betting man, but I would almost be prepared to wager that, if the Home Secretary is constrained to introduce legislation to reduce sentences, this sentence, if it goes on the statute book, will be one of those which are reduced.
The only other point I would make is to endorse, with humility, the observation of the noble and learned Lord, Lord Elwyn-Jones, that the evidence on the effect of prison sentences in the very first few weeks or 10 days, and wearing off progressively, is produced by all those who really know about this subject—prison governors, prison staff, probation officers and social workers—on the hard evidence of criminological research. For that reason, I am very strongly in support of this amendment.
Lord Renton: May I say that I agree with noble Lords opposite who have said that we should join with the Home Secretary in trying to keep people out of prison, if there are other suitable ways of dealing with them. May I add to what has already been said, that I rejoiced when I read a few weeks ago that the noble and learned Lord the Lord Chancellor came out with a very strong speech in support of the Home Secretary to this effect. On that there can be no dispute, I think, between the two sides of your Lordships' Committee.
But I suggest that this question of what should be the maximum sentence for any particular offence is a different issue, because the maximum sentence is not the usual sentence, if there be such a thing, and not the most frequent sentence. The maximum sentence has to be fixed according to our judgment or, if you like, our guesswork, in order to cover the worst type of case of the commission of that offence which may come before the courts from time to time. Therefore, although noble Lords who have spoken so far are most certainly right in saying that one month would normally be enough, if prison were the sentence at all—and it frequently would not—I could imagine, and one must be prepared to imagine, that there would be the occasional case in which a sentence of one month would not he enough, more especially if it were for a second or subsequent offence.
That is a factor which we have to bear in mind, also, when deciding what should be the maximum, because it is when the offender becomes repetitive that he, so to speak, runs up the scale and may eventually have to be awarded the maximum. In those circumstances, and as a matter of judgment—and that is all it can be on our part—I should have thought it would be right to keep three months in the Bill, and that it would perhaps be taking too much of a chance to reduce it to one month for the maximum.
Lord Hunt: I wonder whether the Committee would allow me to come in again very briefly, in response to the point made by the noble Lord, Lord Renton. He has pointed out that this is the maximum imposable sentence and, of course, that is true. He has also made the case that, perhaps, because of the degree of the offence, it would be wise to keep that as a maximum sentence. But I hope he will agree that not only may the offence vary, but the courts vary, too. The Lord Chief Justice, only two days ago, speaking to the

1041
Central Council of Probation and After-Care Committees, described courts as separate little empires. There will be some courts which, because of their character, will impose the maximum sentence for what is, perhaps, quite a light degree of offence.
Lord Renton: Yes, of course, the noble Lord, Lord Hunt, is quite right in what he has said. But, if I may say so, he has overlooked the fact that it is partly because of the disparity of sentencing on the part of the courts of first instance that we give to higher courts when an appeal takes place the opportunity of reducing the sentence. I think that that is really the answer to the noble Lord.
Lord Swinfen: While I agree with noble Lords opposite that there is a great deal to be said for reducing the number of people in prison I wonder whether my noble friend Lord Belstead and his department could think of the possibility of adding another punishment for this crime, that of community service, bearing in mind that a number of potential offenders could be extremely young?
Lord Leatherland: I cannot speak with experience. So far, I have never been to prison; but I feel that it would be quite unnecessary to have three months in prison for this kind of offence. One month is sufficient. The short sharp shock that people get when they first go to prison is something that we can hardly conceive. Whether it is one month, seven days or three months, the fact that you go into prison and hear those gates clang behind you is all the shock that is necessary. I think that one month is quite sufficient.
Lord Belstead: I acknowledge the reason which the noble and learned Lord, Lord Elwyn-Jones, gave for drawing attention to the need for shorter sentences of imprisonment as one of the main reasons for moving this amendment. The noble and learned Lord spoke not only persuasively but also in generous terms so far as my right honourable friend the Home Secretary is concerned about the wish, which I think is felt quite genuinely on all sides of your Lordships' Committee, to head in that particular direction.
In picking up this point, I think I can reasonably say that the Government have already tried to put their money where their mouth is. Some months ago—the noble Lord, Lord Donaldson of Kingsbridge, I remember, was generous enough to say that he welcomed it—we brought in the small but none the less important provision to make sentences of up to one month liable to remission, to which such sentences had not before been liable. We thought it was important that we should do this.
As your Lordships know, a discussion study has now been put forward on the parole system which includes proposals about early release. I shall not go down that road but will come back to the amendment. I think my noble friend Lord Renton was, as is so often the case, absolutely right when he said that this is a question of balance and of judgment. In trying to get the balance and the judgment right, may I turn immediately to the nature of the offence about which we are talking and for which we are discussing the question of penalty. It is true that the offence in Clause 9 is an offence of a
1042
preparatory nature, although I must point out that the behaviour may not in some cases differ outwardly from that which would support a charge of attempt in circumstances where the precise intent is clear. But it is also true that the offence as amended in another place requires the prosecution to prove an overt act and specific criminal intent.
May I remind your Lordships that in the Bill as introduced in the other place the prosecution had to prove only an intent to gain entry into a vehicle. The prosecution now has to prove that the defendant had an intent to commit one of the offences mentioned in subsection (2). The seriousness with which those offences are regarded can be judged from the maximum penalties which are available under the law. For conviction on indictment, these are 10 years for theft and three years for taking and driving away a vehicle. On summary conviction, it is six months' imprisonment, maximum, in both cases.
In the light of those available sentences, which apply equally to an attempt to commit those offences, I do not think it seems draconian to make available a maximum sentence of three months' imprisonment, subject to remission, in circumstances where a person is convicted of an overt act of interference which has been carried out with intent to commit one of those offences. I was grateful to my noble friend Lord Renton for putting the matter in a rather wider perspective when he referred to the need to think also about the repetition of offences.
For a brief moment only before I finish, may I return to the question of the size of the prison population. Before I do that, the answer to the question asked by my noble friend Lord Swinfen is that community service orders may be made in respect only of imprisonable offences. It would be a major step, a matter which would need to be thought about very deeply indeed and which would be one of controversy, if we started to go wider than that so far as community service is concerned.
Lord Donaldson of Kingsbridge: Surely it is an imprisonable offence that we are talking about, is it not?
Lord Belstead: I am so sorry to have answered my noble friend Lord Swinfen in that way. The noble Lord, Lord Donaldson of Kingsbridge, is absolutely right to pick me up. Of course my noble friend Lord Swinfen—what a pity that I did not get it right the first time—is on to a good point. I think that I might have been a little less dim in taking on board my noble friend's suggestion and welcoming it instead of trying to rebut it.
May I return to the basic point which was made by the noble and learned Lord, Lord Elwyn-Jones. I suggested in reply to this amendment that a balance has to be struck with the greatest seriousness between the need to do everything we can to reduce the numbers of those in custody and the need to make the kind of provision which is appropriate to the seriousness of an offence, in order to provide the courts with sufficient powers to deal with the wide range of cases which may come before them.
Some room has to be left for the exercise by the court

1043
of sensible discretion. Where a sentence of imprisonment is necessary it is best kept as short as possible, but an adequate maximum has to be provided for the worst cases. In this case, I do not think it can seriously be argued that a maximum of three months is excessive, given that an offender will have been intending to commit one or more of a number of offences which are punishable very much more seriously in the way which I have just explained. In the Governments view, therefore, the proposals contained in the Bill strike the right balance.
In summary, the Government consider that a maximum sentence of one month's imprisonment would not recognise adequately the relative seriousness of the offence reflected in the burden imposed on the prosecution as to criminal intent, and would not provide the courts with a proper range of options. It is on those grounds that I would advise your Lordships not to accept this amendment.
Lord Robbins: Before the noble Lord sits down, may I ask what, doubtless, lawyers will regard as an ignorant question? Is it not possible in an Act of Parliament to discriminate between first offences and others?
Lord Belstead: I am not a lawyer, and I think the point will be picked up by the noble and learned Lord, Lord Elywn-Jones, when he addresses us on the course which he has decided to take on the amendment. Surely the answer to the question asked by the noble Lord, Lord Robbins, was encapsulated in some of the words which my noble friend Lord Renton spoke to your Lordships' Committee. The courts have room to manoeuvre within the maximum which is set. It is necessary, so my noble friend was advising the Committee, to see that the maximum is set to provide for various different contingencies.
Lord Renton: If I may presume to add to the reply which my noble friend has just given to the noble Lord, Lord Robbins, there have been a number of statutes in which the maximum penalty for the first offence has been fixed. They then go on to fix a maximum penalty for second and subsequent offences. However, when that is done it introduces sometimes an element of inflexibility. My own personal view, based on some experience, is that it is better that there should be just one maximum offence. Then the court can act according to the circumstances of the case. That is what has been done by the Government in this Bill.
Lord Mishcon: May I intervene briefly merely to say that everybody has agreed—the noble Lord, Lord Renton, as one would expect of him, has agreed—that a lead must be given to the courts in regard to shorter sentences. The Home Secretary has made some very eloquent speeches on the matter. I remember reading one speech of his in February last in which he made this abundantly clear. The May Committee when dealing with the matter of prisons also made it abundantly clear that they agreed with this. It was a Home Office advisory committee which sat in 1977 that made this recommendation. Speeches are very effective with those who happen to hear them—though possibly
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not always of a permanent nature in regard to their effect—and with those who happen to read them, but Parliament can play its part in trying to enforce policy by looking at maximum sentences when they are being laid down in a new statute or a new offence is being created.
This is the opportunity of Parliament at this time and, when we consider that we are dealing with a preparatory offence, it is perfectly true that there may be convictions against the person who is accused; there may be convictions of the major offence of the theft of cars or of driving away motor vehicles in the past, but this is a preparatory offence. Since courts look at comparative sentences and say "Well, even after the Home Secretary spoke, this preparatory offence has a maximum sentence of three months attached to it"—again you get the idea in the courts that this sort of offence ought to be answered by this sort of penalty, or that this period of imprisonment is the right proportion for a sentence.
That is why I ask that serious consideration be given by the Government to see whether they cannot carry out their own policy, which is so warmly endorsed, as my noble and learned friend Lord Elwyn-Jones said, from this side of the Committee—and choose this opportunity to show that the policy is one in which Parliament is now participating. I think it is a great opportunity to do this by supporting this amendment.
Lord Swinfen: Before the noble Lord sits down, are courts not given advice by the Lord Chancellor's Department on the sort of sentences that should be passed, to ensure uniformity throughout the country?
Lord Elwyn-Jones: Perhaps I may have leave to answer that question very briefly. From my recollection of what they do, Lord Chancellors do occasionally give guidance, principally through magistrates' associations and other meetings, on their views of the principles that should apply. They are always very careful not to tell judges what sentences they ought to pass, but training courses are now compulsory for newly appointed magistrates and there is more involvement of High Court judges in discussions on penalties so that we can achieve as much uniformity of approach as possible. But on the specific point of appeals for shorter sentences we have the powerful combination of the Lord Chancellor, the Lord Chief Justice, the Home Secretary and I hope now your Lordships' House on this matter.
I wonder whether the noble Lord, Lord Belstead, who is so fully sensitive to these things, would be willing to look again at this. We are dealing here with a preparatory offence. It is a new offence and I venture to think that the combination of one month and/or £500 is quite adequate in the serious case as well as what is likely to be the run of cases.
Perhaps I may make one other observation in regard to the point that the noble Lord, Lord Swinfen, raised. Of course it will be open to the courts, if the penalty is one month, to pass instead an order for community service. That is increasingly being carried out to great effect, especially in respect of young offenders. So the noble Lord may be reassured by the knowledge that if this amendment is carried the courts will still have the opportunity of dealing with it by the

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way of a community service order, which may indeed be the effective order in a large number of cases. I do not want to take up more of the time of the Committee on this, but I wonder whether I am asking too much in asking whether the noble Lord will look again at this, without commitment of course—because I appreciate its importance.
Lord Belstead: It would be churlish of me not to respond to the noble and learned Lord and to the noble Lord, Lord Mishcon. I think, first, it is right to say again that this is a question of balance and of judgment, and we are talking about an area where nobody can be absolutely certain. But, secondly, in the context of wishing to see shorter sentences in appropriate cases, it is fair to say that the Government have, among other things—as I said in my original answer—looked at the penalties which are available for the substantive offences to which the preparatory offences could lead. These are substantial penalties for offences which earlier today my noble and learned friend Lord Rawlinson reminded the Committee are being committed in very substantial numbers every day of the year. That is why we felt that, on balance, it was right that, with remission, of course, the maximum penalty should be three months' imprisonment and the alternative of the £500 fine with, as the noble and learned Lord has reminded my noble friend Lord Swinfen, the right of the courts—and we all know that increasingly they are making use of this—to look to alternatives, such as community service, in appropriate cases.
Of course I am prepared to take it to the Home Office and ask one final time whether we are as certain as we can be in a matter of this sort that we have it right. It would be right for me to write to the noble and learned Lord, to the noble Lord, Lord Mishcon, and to those who are signatories to the amendment as quickly as possible. But I must underline that I think it highly unlikely, for the reasons I have given, that we would feel able to change on this matter.
Lord Donaldson of Kingsbridge: I do not want to prolong this discussion. But, of course, from my point of view and the point of view of my colleagues the comparison with a three-year sentence for taking and driving away, as opposed to stealing, a car, which is much more serious, is far too high in itself. I should have thought that one of the first things that the Home Secretary or the Lord Chancellor will do when they begin to talk about scaling down sentences, will be to deal with that. I think the analogy was falsely drawn; but, having said that, I am sure that the noble and learned Lord on the Front Bench will be happy to hear that the noble Lord is willing to take the amendment away and look at it.
Lord Elwyn-Jones: I am grateful to the noble Lord for having gone as far as he has gone. I appreciate that he has put limits on what he has said, but in the circumstances I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 9 shall stand part of the Bill?
Lord Renton: I have one final drafting point I should like to mention and I hope your Lordships will not think it trivial. If your Lordships will look at subsection (4), you will see that it reads:
"A constable may arrest without warrant anyone who is or whom he with reasonable cause suspects to be guilty of an offence under this section".
I must confess that there is a precedent for that, but there is also a very much better precedent in the same statute, and I think that really the better precedent is the one which should be used. If we refer to Section 2(5) of the Criminal Law Act 1967, we find that this subsection should be amended in this way: the words "be guilty of" would be struck out and the words "have committed" would be inserted. I am sure that is a more felicitous way of explaining the state of mind of the constable who has to arrest without warrant. Perhaps my noble friend will look at it, and it may be that the draftsman will wish to follow the better precedent in Section 2(5) of the 1967 Act.
Lord Belstead: As I understand it, again my noble friend is not questioning the effect of subsection (4), but is questioning the drafting of it; and of course I am only too ready to take that away and have it looked at.
Lord Pitt of Hampstead: Before your Lordships pass this clause, may I again repeat my worry about this particular clause. May I ask the Government whether they would look at it again and see whether it can be tightened. I am still worried about the possible consequences that will flow from our passing this clause. I am not asking for anything more than that I would like the Government to look at it again to see in what way it can be tightened.
Lord Belstead: As your Lordships know, this clause was tightened in another place. I see the noble Lord, Lord Pitt, nodding. I am sure he felt that that was the right way to go if there was to be a Clause 9 in the Bill. We will certainly look at it, but I must be straightforward about this; I think it is highly unlikely that we would be able to tighten the clause further. I will not conceal from the noble Lord that there has been a great deal of discussion in the Home Office as to how the clause ought to be drafted. Indeed, a point which the noble Lord, Lord Mishcon, put to me at Second Reading—and we will not go over it now—was looked at very carefully before the Bill came to your Lordships' House and has been discussed again since the noble Lord put the point to me. I would not want the noble Lord, Lord Pitt, to feel that the Government have simply got the clause drafted and then turned their back on it and gone on to other things. Continuing thought as to whether this was the right way has been given to the drafting of the clause while the Bill has been going through both Houses. We will look at it once more, but I can give the noble Lord no commitment to change it further.
Clause 9 agreed to.
Clause 10 agreed to.
Clause 11 [Commencement and extent.]:
Lord Belstead Lord Belstead moved Amendment No. 8:
Page 6, line 33, at beginning insert ("Section 7(1) in its application to each of the enactments which it amends extends to any place to which that enactment extends; but save as aforesaid,").
The noble Lord said: This is a purely technical amendment designed to take account of the fact that, while the Bill generally extends to England and Wales only, Clause 7(1) contains an amendment to legislation which extends outside the territory. If that amendment is to be effective it must extend wherever that legislation extends; the amendment now before your Lordships will achieve this result. I beg to move.
On Question, amendment agreed to.
Clause 11, as amended, agreed to.
Clause 12 agreed to.
In the Schedule:
Lord Belstead Lord Belstead moved Amendment No. 9:
Page 7, leave out lines 30 to 32 and insert—

("1980 c. 43.

Magistrates' Courts Act 1980.

Section 32(1)(c). In Schedule 1, paragraph 34 and in paragraph 35, the words "or 34".").

The noble Lord said: This amendment is consequential on Amendment No. 1, to which I have already spoken. I beg to move.
On Question, amendment agreed to.
Schedule, as amended, agreed to.
Title agreed to.
House resumed: Bill reported with amendments.

Royal Assent
1.45 p.m.
The Chairman of Committees (Lord Aberdare): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Energy Conservation Act,

Disused Burial Grounds (Amendment) Act,

Statute Law (Repeals) Act,

Judicial Pensions Act,

Western Isles Islands Council (Berneray Ferry)

Order Confirmation Act,

Barnsley Borough Council Act,

British Railways (Victoria) Act.

Great Yarmouth Borough Council Bill [H.L.]
  United Reformed Church Bill [H.L.]
  Reported from the Unopposed Bill Committee with amendments.